In re Adoption of J.D.B., 49A04-0701-CV-1.

• Decision Date: 31 May 2007
• Docket Number: No. 49A04-0701-CV-1.,49A04-0701-CV-1.
• Citation: 867 N.E.2d 252
• Parties: In re the Matter of the ADOPTION OF J.D.B. Gregory Lucas, Appellant-Respondent, v. C.F.K., Appellee-Petitioner, and Marion County Department of Child Services, Appellee-Intervenor.
• Court: Indiana Appellate Court

867 N.E.2d 252

In re the Matter of the ADOPTION OF J.D.B. Gregory Lucas, Appellant-Respondent, v. C.F.K., Appellee-Petitioner, and Marion County Department of Child Services, Appellee-Intervenor.

No. 49A04-0701-CV-1.

Court of Appeals of Indiana.

May 31, 2007.

Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.

Barbara J. Baird, Law Office of Barbara J. Baird, Indianapolis, IN, Attorney for Appellee C.F.K.

Kimberly Spindler, Marion County Department of Child Services, Indianapolis, IN, Attorney for Appellee Marion County Department of Child Services.

OPINION

CRONE, Judge.

Case Summary

Gregory Lucas appeals the decree granting the adoption of J.D.B. to C.F.K. We affirm.

Issues

Lucas raises two issues, which we restate as follows:

I. Whether the probate court had jurisdiction to rule on the adoption petition notwithstanding the pending Child In Need of Services ("CHINS") and termination of parental rights proceedings in the juvenile court; and

II. Whether the probate court's decision that Lucas's consent was not required for adoption is contrary to law.

Facts and Procedural History

In November or December of 2002, Lucas and L.B. had sexual intercourse. L.B. was then fourteen years old, and Lucas was twenty-nine years old. On August 20, 2003, L.B. gave birth to J.D.B. J.D.B.'s birth certificate did not name a father. However, a report that Lucas committed sexual misconduct with L.B., a minor, was substantiated. Appellant's App. at 30. Criminal charges were not pursued because L.B.'s mother declined to press charges. Id.¹

On January 12, 2004, L.B. was in the Juvenile Detention Center.² On that day, the Marion County Department of Child Services ("DCS") filed a petition in the Marion Superior Court, Juvenile Division, alleging that J.D.B was a CHINS, and J.D.B. became a ward of DCS.³ J.D.B. was placed in foster care with C.F.K., with whom he has since remained. Lucas initially denied paternity, but eventually entered an admission to paternity of J.D.B. on November 4, 2004.

On November 10, 2004, DCS filed a petition in juvenile court to terminate the parent-child relationship ("TPR") between L.B. and J.D.B. Also in November, the juvenile court issued an order suspending visitation between Lucas and J.D.B. Tr. at 105. On November 29, 2004, DNA testing was completed, which indicated a 99.99% probability that Lucas was J.D.B.'s father. Appellant's App. at 30.

On March 17, 2005, in an internal meeting, DCS approved C.F.K.'s adoption of J.D.B. Id. at 28. On May 4, 2005, the juvenile court granted DCS's petition to terminate the parent-child relationship between L.B. and J.D.B.

On June 10, 2005, C.F.K. filed a petition for adoption in the Marion Superior Court, Probate Division, seeking to adopt J.D.B. and alleging that the possible biological father was known to her, but that his consent was not required because J.D.B. was born out of wedlock and was conceived as a result of Lucas's sexual misconduct with a minor. Id. at 10-11.

Sometime in June, July, or August 2005, DCS filed a petition in juvenile court to terminate the parent-child relationship between Lucas and J.D.B. Id. at 29.⁴

On August 4, 2005, Lucas filed a motion in the probate court to contest C.F.K.'s adoption of J.D.B. In his motion, Lucas stated that he was challenging whether his consent to adoption was unnecessary in a TPR proceeding that was currently pending in the juvenile court, and requested that the probate court stay all proceedings until the juvenile court and/or the Court of Appeals had determined his rights. Id. at 13.

Lucas then filed a petition to establish paternity in the Marion Circuit Court, Paternity Division. On October 11, 2005, that court issued a judgment of paternity and support, establishing Lucas's paternity of J.D.B. Ex. at 4-6. The paternity judgment indicated that decisions regarding custody, visitation, and child support would be determined at a November 18, 2005 hearing. Id. The record before us is silent as to whether this hearing was held.

Sometime before December 31, 2005, DCS's legal division determined that because J.D.B. was born out of wedlock and was conceived as a result of Lucas's sexual misconduct with a minor, Lucas's consent to adoption was not required. Appellant's App. at 28, 30. On February 24, 2006, DCS requested that the probate court hold a hearing on whether Lucas's consent to adoption was required. On March 2, 2006 DCS filed its consent to C.F.K.'s adoption of J.D.B. in the probate court. Id. at 21.

On March 21, 2006, the probate court held a hearing to determine whether Lucas's consent to adoption was required. Lucas argued that the probate court did not have jurisdiction to rule on the adoption. Tr. at 6-7. Additionally, he argued that he had not committed sexual misconduct with L.B. On August 7, 2006, the probate court issued an order finding that Lucas's consent was not required. Appellant's App. at 41.

On September 25, 2006, the probate court held a hearing on C.F.K.'s adoption petition. J.D.B.'s guardian ad litem testified that J.D.B. had clearly bonded with his foster mother and that the adoption was in his best interest. Tr. at 92-93. The DCS case manager for J.D.B. testified that DCS did not recommend that J.D.B. be placed in Lucas's care because Lucas had not completed the services ordered by the juvenile court in the CHINS proceeding. Id. at 105. The case manager also testified that DCS consented to the adoption. The probate court issued its decree of adoption, affirming its August 7 order and granting C.F.K.'s petition to adopt J.D.B. Lucas now appeals.

Discussion and Decision

I. Jurisdiction

Lucas asserts that because a CHINS proceeding and a TPR proceeding were pending in juvenile court, the probate court did not have jurisdiction to rule on C.F.K.'s adoption petition.⁵ Initially, we note that the probate court has exclusive jurisdiction in all adoption matters. Ind. Code § 31-19-1-2. Juvenile courts, with some exceptions, have exclusive original jurisdiction over CHINS cases. Ind.Code § 31-30-1-1. Probate courts have concurrent original jurisdiction with juvenile courts in proceedings on a petition to terminate the parent-child relationship involving a CHINS. Ind.Code § 31-35-2-3.

Often CHINS, TPR, and adoption proceedings involve the same parties. In Matter of Adoption of T.B., our supreme court resolved the jurisdictional overlap by focusing on the nature of the proceedings. 622 N.E.2d 921, 923-24 (Ind.1993). There, an adoption petition was filed in circuit court in 1986 to adopt T.B., who was then a ward of Family and Children Services ("FCS"). The adoption was granted. After her adoption, T.B. developed progressively worse behavioral problems. In 1991, T.B. ran away from home, and her adoptive mother sought help from the juvenile court, which found T.B. to be a CHINS and placed her in a residential care facility. Subsequently, T.B.'s adoptive mother filed a petition to revoke adoption in the circuit court that had granted the adoption. FCS moved to dismiss the adoptive mother's petition, contending that the circuit court lacked jurisdiction. The circuit court denied the motion and ultimately issued an order revoking the adoption. The supreme court held that the circuit court had properly exercised its jurisdiction in ruling on the petition to revoke T.B.'s adoption. The supreme court explained An action for adoption and a CHINS proceeding ... are separate actions which affect different rights. The CHINS proceeding is directed at helping the child directly by assuring that the child receives necessary assistance. Adoption, on the other hand, establishes a family unit. An adoption severs the child entirely from its own family tree and engrafts it upon that of another. As a result of the adoption, the adopted child becomes the legal child of the adoptive parent.

The legislature established the jurisdiction of juvenile courts and probate courts. The juvenile court was expressly given jurisdiction over CHINS proceedings and, similarly, a court with probate jurisdiction was expressly given jurisdiction over adoption matters. The power to adjudicate either matter does not divest the other court of its respective jurisdiction. Consequently, a court with probate jurisdiction may adjudicate an adoption matter simultaneously with the juvenile court's adjudication of a CHINS proceeding.

Id. at 924 (citations and quotation marks omitted).

In In re Adoption of E.B., another panel of this Court distinguished T.B. and concluded that the probate court had not erred in denying a petition to adopt while a CHINS proceeding was still pending. 733 N.E.2d 4, 6 (Ind.Ct.App.2000), trans. denied. In E.B., the Office of Family and Children ("OFC") formulated a reunification plan for E.B., who had been found a CHINS, and her father. E.B.'s father complied with all the plan's requirements, including anger management and parenting classes, and the OFC recommended reunification. However, because E.B.'s father lived in Georgia, reunification could not be finalized until the State of Georgia approved an interstate compact. The petition to adopt E.B. was filed while the CHINS action was delayed in waiting for receipt of the interstate compact. The E.B. court concluded that the specific fact situation carried the case outside the holding in T.B. Id. The E.B. court explained that the CHINS proceeding was directed at reunifying father and daughter, whereas the adoption proceeding involved a third party attempting to adopt a child when the father's parental rights had not been terminated. Id.

Here, Lucas stresses that this situation presents the same factual situation as that presented in E.B., and therefore E.B. is dispositive. We disagree. In E.B., OFC was actively pursuing reunification and was not seeking to terminate the father's parental rights. As Lucas succinctly notes, "In E.B., the two proceedings were at odds with each other." Reply Br. at 1. Here, in contrast,...