In re Adoption of H.N.P.G.

• Decision Date: 11 January 2008
• Docket Number: No. 06A05-0703-CV-184.,06A05-0703-CV-184.
• Citation: 878 N.E.2d 900
• Parties: In the Matter of the ADOPTION OF a Minor Child, H.N.P.G.
• Court: Indiana Appellate Court

878 N.E.2d 900

In the Matter of the ADOPTION OF a Minor Child, H.N.P.G.

No. 06A05-0703-CV-184.

Court of Appeals of Indiana.

January 11, 2008.

Carol Sparks Drake, Whitestown, IN, Attorney for Appellant.

Michael P. Bishop, Heather Wysong Zaiger, Cohen, Garelick & Glazier, P.C., Indianapolis, IN, Attorneys for Appellees.

OPINION

MATHIAS, Judge.

Blake O. ("Blake") filed a motion in Boone Superior Court to contest the adoption of his biological daughter, H.N.P.G. His motion was denied and the court granted H.N.P.G.'s foster parents' petition to adopt. Blake appeals and raises several arguments, which we consolidate and restate as:

I. Whether the Boone Superior Court's decree of adoption is void for lack of jurisdiction;

II. Whether the probate court abused its discretion when it admitted deposition testimony of H.N.P.G.'s mother over Blake's objection; and,

III. Whether the trial court's determination that Blake's consent was not required to the adoption is clearly erroneous.

We affirm.

Facts and Procedural History

H.N.P.G. was born on February 25, 2004. She was placed in foster care because she tested positive for cocaine. She was returned to her mother approximately one month later. However, on July 31, 2004, she was placed in foster care because her mother was arrested.

James George was identified as H.N.P.G.'s father at birth. However, Steve Breedlove was identified as her father when the Boone County Department of Child Services ("the BCDCS") filed its petition naming H.N.P.G. as a child in need of services ("CHINS"). H.N.P.G.'s mother told both Breedlove and Blake that one of them was H.N.P.G.'s father. Blake did not initially believe that H.N.P.G. was his child. In the summer of 2004, a paternity test established that Breedlove was not H.N.P.G.'s father.

Blake has been incarcerated since June 19, 2003, due to his convictions for dealing in methamphetamine and possession of precursors with intent to manufacture methamphetamine for which he received an aggregate eighteen-year sentence. The BCDCS first became aware that Blake might be H.N.P.G.'s father at a CHINS hearing held on February 23, 2005. Five days later, the BCDCS filed a petition to terminate the parental rights of both H.N.P.G.'s mother and Blake. Blake then requested a paternity test. Paternity testing was finally performed on December 23, 2005, and the test confirmed that Blake is H.N.P.G.'s father.

H.N.P.G.'s mother's parental rights were terminated on April 4, 2006. However, on May 30, 2006, the Boone Circuit Court denied the BCDCS's petition to terminate Blake's parental rights stating, "Termination of Father's Parental Rights at this stage of the proceeding would not survive appeal and would only serve to exacerbate the child's best interests." Appellant's App. p. 120.

Both Blake's mother and stepfather, Dawn and John Robertson ("the Robertsons") and H.N.P.G.'s foster parents, Paul H. and Kimberly H. ("the Foster Parents") filed petitions to adopt H.N.P.G. in Boone Superior Court in March of 2006. The court consolidated the petitions to adopt H.N.P.G. into one proceeding under cause number 06D01-0603-AD-4. On July 3, 2006, Blake moved to dismiss the adoption proceedings as moot and filed a motion to intervene. The court granted Blake's motion to intervene. In response, the Foster Parents filed an amended petition for adoption alleging that Blake abandoned and deserted H.N.P.G., and that he is an unfit parent. On August 9, 2006, Blake filed a motion to contest the adoption.

A guardian ad litem was appointed on September 12, 2006. An adoption hearing was held on January 25 and 26, 2007. On February 23, 2007, the probate court issued findings of fact and conclusions of law and found in pertinent part:

1. [H.N.P.G.'s] biological father, [Blake], is a convicted felon that is currently incarcerated at the Pendleton Correction[al] Facility[.] Not including potential time cuts, [Blake] will not be released from prison until 2017. Blake [ ] testified that if he is able to obtain time cuts he might be able to be released some time in 2010.

* * *

20. Despite the fact that [Blake] knew that he had sex with [H.N.P.G's mother] approximately nine months prior to the date that [H.N.P.G.] was born, that Breedlove was not the father, and that [H.N.P.G.'s mother] believed that he was [H.N.P.G.'s] father, [Blake] doubted [her] allegations and took no action.

21. To date, [Blake] has never met [H.N.P.G.], never communicated with [her], and has never provided any support to [her].

* * *

26. On May 10, 2005, approximately 15 months after [H.N.P.G.'s] birth, [Blake] first requested a DNA test to determine whether he is [her] biological father.

27. On January 14, 2006, the DNA tests confirmed that [Blake] is in fact [H.N.P.G.'s] biological father. At this time, the Robertsons first expressed an interest in [H.N.P.G.] and, on March 20, 2006, filed a Petition to Adopt [H.N.P.G.]. The Robertsons' Petition attached a document purportedly evincing [Blake's] consent to the Robertsons adopting [H.N.P.G.].

28. At the time that [Blake] signed his purported consent, [Blake] did not want his parental rights over [H.N.P.G.] severed.

29. As of the date of the hearing, [Blake] still does not want his parental rights over [H.N.P.G.] severed.

30. Rather, [Blake] wants the Robertsons to have "custody" of [H.N.P.G.] until he gets out of prison so that he may have the opportunity to establish a parent-child relationship with [H.N.P.G.] at that point.

* * *

41. No person with formal training or experience in child psychological development qualified to render expert opinion testimony, testified that in their opinions it would be in [H.N.P.G.'s] best interest for the Court to grant the Robertsons' Petition to Adopt. The evidence from child development professionals weighs in favor of the [Foster Parents] over the Robertsons.

* * *

53. [H.N.P.G.] has experienced, with the Robertsons, three (3) hours of mostly supervised visitation approximately every two (2) weeks since August of 2006 on a total of eleven (11) occasions.

Appellant's App. pp. 20-29. Clinical Psychologist Larry Wooley, Psychologist Sarah Norris, Guardian Ad Litem Kandi Killin, and Case Manager Regina Ley all testified that granting the Foster Parents' petition to adopt [H.N.G.P.] was in her best interests.

The court concluded that Blake's consent to the Foster Parents' adoption petition was not required because 1) Blake "failed without justifiable cause to communicate significantly with [H.N.P.G.] for a period of at least one (1) year when he was able to do so", and 2) "the [Foster Parents] have proven by clear and convincing evidence that [Blake] is an `unfit' parent and that it would be in [H.N.P.G.'s] best interests to grant their petition for adoption." Id. at 31-32. The court also concluded that Blake's consent to the Robertsons' petition was not valid and it would not be in H.N.P.G.'s best interests to grant their petition. Finally, the court granted the Foster Parents' petition concluding, "[t]he evidence presented at the hearing in this matter overwhelmingly established that granting the [Foster Parents'] Petition to Adopt [H.N.P.G.] would be in [her] best interests." Id. at 37. Blake now appeals.

Standard of Review

When we review a probate court's ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion. In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind.Ct.App.2004) (citing Rust v. Lawson, 714 N.E.2d 769, 771 (Ind. Ct.App.1999), trans. denied). "We will not reweigh the evidence but instead will examine the evidence most favorable to the [probate] court's decision together with reasonable inferences drawn therefrom to determine whether sufficient evidence exists to sustain the decision." Id. at 218-19. The [probate] court's decision is presumed to be correct, and it is the appellant's burden to overcome that presumption. Id.

Moreover, the [probate] court entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A).

Thus, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. We will not set aside the findings or the judgment unless they are clearly erroneous. The trial court's findings of fact are clearly erroneous if the record lacks any evidence or reasonable inferences to support them. A judgment is clearly erroneous when it is unsupported by the findings of fact and the conclusions relying on those findings.

In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind.Ct.App.2006).

I. Jurisdiction

First, Blake argues that the Boone Superior Court lacked jurisdiction to adjudicate the Foster Parents' petition to adopt H.N.P.G. because CHINS proceedings were pending in Boone Circuit Court. Exclusive jurisdiction over adoption proceedings is vested with the probate courts of our State. Ind.Code § 31-19-1-2 (1998). Yet, with some exceptions, juvenile courts have exclusive jurisdiction over CHINS proceedings. Ind.Code § 31-30-1-1 (1998 & Supp.2007). Probate courts have concurrent original jurisdiction with juvenile courts over proceedings to terminate the parent-child relationship involving a CHINS. Ind.Code § 31-35-2-3 (1998).

CHINS, termination of parental rights, and adoption proceedings often involve the same parties.

An action for adoption and a CHINS proceeding, however, 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...