In re Adoption of MLL

• Decision Date: 29 June 2004
• Docket Number: No. 48A02-0401-CV-2.,48A02-0401-CV-2.
• Citation: 810 N.E.2d 1088
• Parties: Matter of the ADOPTION OF M.L.L. Mary Ann Lowe, Appellant-Respondent, v. Jeff and Krista White, Appellees-Petitioners.
• Court: Indiana Appellate Court

810 N.E.2d 1088

Matter of the ADOPTION OF M.L.L.

Mary Ann Lowe, Appellant-Respondent, v. Jeff and Krista White, Appellees-Petitioners.

No. 48A02-0401-CV-2.

Court of Appeals of Indiana.

June 29, 2004.

George O. Lopez, Hinkle, Racster, Lopez & Clamme, Portland, IN, Attorney for Appellant.

David W. Stone IV, Stone Law Office, Anderson, IN, Attorney for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Mary Ann Lowe appeals the trial court's grant of Jeff and Krista White's Petition for Adoption of M.L.L., Lowe's biological daughter. Lowe presents the following issues for our review:

1. Whether the trial court has jurisdiction over the adoption.

2. Whether her consent to the adoption was voluntarily and validly executed.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 11, 2000, Lowe gave birth to M.L.L., out-of-wedlock, in Tennessee. In December 2001, Lowe filed a petition to establish paternity alleging that Ronald Stephens is M.L.L.'s father, which was confirmed by a paternity test. Also that month, Lowe contacted her cousin Jeff White, an Indiana resident, and asked him whether he would "take care of" M.L.L. for her. But later that month, Lowe told Jeff that she had changed her mind about that arrangement.

On February 2, 2002, Scott County, Tennessee, Sheriff's Deputy Hubert Yancey arrested Lowe for possession of either methamphetamine or cocaine.¹ After her arrest, Lowe advised Deputy Yancey that she would be willing to act as a confidential informant ("CI") and execute a controlled drug buy with a certain drug dealer. Accordingly, Deputy Yancey arranged for Lowe to meet with officers from the Governor's Drug Task Force. While Lowe was waiting for those officers, she explained to Deputy Yancey that she was afraid for M.L.L.'s safety as a result of Lowe's participation in the drug buys, because the drug dealer was a dangerous man. Lowe told Deputy Yancey that as a result of that fear she was sending M.L.L. to live in Indiana.

In an attempt to make certain that Lowe would fulfill her obligations as a CI, Deputy Yancey explained that if she went to court on her drug charge, "the worst case scenario for her was the child protective services could get involved and she could lose her child." Lowe consistently expressed her willingness to act as a CI. She ultimately participated in three controlled drug buys.

On February 4, 2002, Lowe called Jeff's mother and asked her whether Jeff and Krista would still be interested in adopting M.L.L. So Jeff called Lowe, and she told him that she wanted him to come down to Tennessee to pick up M.L.L. "because there was some trouble." Jeff and Krista immediately left for Tennessee and arrived at 6:00 a.m. on February 5. Lowe met the Whites at their grandmother's house, and Jeff gave Lowe a Consent to Adoption and a Consent to Guardianship for her signature. Jeff and Lowe then drove to the courthouse in Oneida, Tennessee, so that Lowe could execute the consents and have them notarized. Jeff asked Lowe to read the consents during the trip, and, upon their arrival, Lowe signed the consents in the presence of a notary public. The notary asked Lowe for identification and asked whether she had read and understood the consents before notarizing them. Lowe wanted to talk to a judge, but the judge's secretary told her she should consult with an attorney instead. Lowe and Jeff made an appointment to meet with an attorney later that day, but Lowe had a change of plans and did not meet with the attorney.

At the end of the day, Lowe helped the Whites pack M.L.L.'s belongings, and she gave them M.L.L.'s birth certificate and social security card. The Whites then took M.L.L. and returned to Indiana. On February 12, 2002, the Whites filed a Petition for Adoption and Lowe's Consent to Adoption with the Madison Circuit Court in Indiana.

On February 14, 2002, Lowe signed a Revocation of Consent to Guardianship and Revocation of Consent to Adoption Procedures, which was later filed with the Madison Circuit Court.² On February 20, Lowe sought and obtained a temporary restraining order from the Juvenile Court for Scott County, Tennessee, which provided in relevant part: "Jeffrey and Krista White are hereby restrained and prohibited from interfering with Petitioner's right to gain access to her minor child, [M.L.L.], and they are required to immediately surrender possession of said child to [Lowe]." Despite that order, M.L.L. continued to live with the Whites. On February 26, following a hearing, a Tennessee court entered an order establishing Stephens' paternity of M.L.L. The court noted that "[a]n adoption of this child may be pending in Indiana." And the court stated that it "has not addressed any right [Stephens] may have to visitation or custody."

On March 4, the Juvenile Court for Scott County, Tennessee, held a hearing on Lowe's petition for the return of M.L.L. The Whites were not present, but their counsel, attorney Huff represented them at the hearing. Huff argued that Indiana had jurisdiction over this matter pursuant to the adoption petition, but the Tennessee court disagreed, finding in relevant part:

[A]t the time the child was removed to the State of Indiana, there was a paternity petition pending in the Juvenile Court for Scott County, Tennessee, which had been filed in December 2001, prior to the removal of said child; that Respondents never dealt with the father of said child, and he never consented to the removal of the child; that Tennessee never gave up jurisdiction of the child; there was not an effective surrender of the child under Tennessee law; and the minor child should be immediately returned to Petitioner in the State of Tennessee.

Despite that order, M.L.L. continued to live with the Whites in Indiana.

On March 27, Lowe filed an Emergency Petition to Dismiss Adoption and Return Child with the Madison Circuit Court. Following a hearing on that petition, the court ordered that the Whites retain custody of M.L.L., but also granted Lowe visitation with her. The trial court heard evidence regarding the Whites' adoption petition and all pending motions beginning on November 22, 2002, and additional hearings were held on January 8, 2003, October 31, 2003, and November 5, 2003. On December 2, 2003, the trial court issued its findings and conclusions granting the Whites' petition to adopt M.L.L. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

As a reviewing court, we will not disturb the trial court's decision in an adoption proceeding unless the evidence at trial leads to but one conclusion and the trial court reached the opposite conclusion. Bell v. A.R.H., 654 N.E.2d 29, 32 (Ind.Ct.App.1995). We will neither reweigh the evidence, nor assess the credibility of witnesses. Id. We examine the evidence most favorable to the trial court's decision. Id.

Issue One: Jurisdiction

Lowe first contends that the trial court does not have jurisdiction over this matter under the Uniform Child Custody Jurisdiction Act ("UCCJA").³ The UCCJA was adopted in part to avoid competition and conflict among courts of different jurisdictions in matters of child custody, to promote interstate cooperation in rendering custody decrees, and to deter abductions and other unilateral removals of children undertaken to obtain custody awards. Hughes v. Hughes, 665 N.E.2d 929, 931 (Ind.Ct.App.1996). Under the UCCJA, the trial court must first determine whether it has jurisdiction and, if it does, whether to exercise that jurisdiction. Pryor v. Pryor, 709 N.E.2d 374, 376 (Ind.Ct.App.1999).

In determining whether a trial court has improperly exercised jurisdiction under the UCCJA, we apply an abuse of discretion standard. Id. An abuse of discretion will occur when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

The UCCJA provides in relevant part:

Jurisdiction. (a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

(2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(3) the child is physically present in this state and the child has been abandoned; or

(4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.

(b) Except under paragraphs (3) and (4) of subsection (a) physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Ind.Code § 31-17-3-3 (emphasis added).

Here, the trial court found that M.L.L. was living in Indiana and that Lowe had abandoned M.L.L. at the time the adoption petition was filed. Thus, the trial court concluded that it...