In re Adoption of A.S.
| Decision Date | 08 September 2009 |
| Docket Number | No. 49A02-0901-CV-60.,49A02-0901-CV-60. |
| Citation | 912 N.E.2d 840 |
| Parties | In the Matter of the ADOPTION OF A.S., D.S., C.S., & J.S., minor children, By Next Friend, M.L.S. |
| Court | Indiana Appellate Court |
Janice E. Smith, Indianapolis, IN, Attorney for Appellant.
Karen Bullington, Marion Co. Dept. of Child Services, Indianapolis, IN, Attorney for Appellee.
M.L.S. appeals the probate court's ruling denying her petition to adopt minor children A.S., D.S., C.S., and J.S. (collectively, "the Children") and granting the petition to adopt the Children filed by cross-petitioners V.S. and L.S. The probate court judge who heard evidence and argument in the adoption case passed away before issuing a final ruling. Although the parties in such a situation are generally entitled to a new trial, M.L.S. waived her objection to the replacement judge's authority to issue a final ruling in this case. After the biological parents and the Marion County Department of Child Services ("MCDCS") had executed consents allowing M.L.S. to adopt the Children, one of M.L.S.'s adopted children who lived in the home was alleged to be a juvenile delinquent for committing three counts of child molesting. MCDCS removed the Children and placed them in the home of V.S. and L.S. MCDCS and the Children's biological parents subsequently executed consents allowing V.S. and L.S. to adopt the Children. We conclude that there is no basis under the statutes governing adoption or public policy to prohibit the execution of subsequent consents. Finally, we conclude that the evidence in this case supports the adoption decree in favor of V.S. and L.S. We affirm.
S.S. ("biological mother") is the biological mother of the Children. The Children, who currently range in age from thirteen to three years old, have three different fathers. The parental rights of A.S.'s father, K.B., were terminated in 2003. B.S. is the father of D.S. and C.S. H.S. is the father of J.S.
The Children were removed from biological mother's care and made wards of MCDCS because several of them tested positive for cocaine at birth. MCDCS initially placed the Children with a foster mother, M.L.S.1 M.L.S. had previously adopted three teenage children, two girls and one boy, whose name is Da.S. These three children live with M.L.S. Biological mother and the Children's biological fathers (with the exception of A.S.'s father, whose rights had been terminated) signed consents indicating consent that M.L.S. adopt the Children. In February 2006, M.L.S. filed a petition to adopt A.S., D.S., and C.S. She later amended her petition to include J.S.
After meeting to discuss the adoption plan for the Children, MCDCS consented to the adoption of A.S., D.S., and C.S. by M.L.S., but J.S. was not eligible for adoption at that time. An adoption hearing was set, but before the hearing was held, MCDCS received a report alleging that M.L.S.'s three adopted children were inappropriately touching the Children and two other minors, a niece and nephew of M.L.S. DCS Ex. 1. M.L.S.'s niece disclosed that Da.S. had engaged in oral and vaginal intercourse with her at M.L.S.'s home and in the bushes at a church yard. M.L.S.'s nephew disclosed that the two adopted daughters had fondled his genitals at M.L.S.'s home.
In response, the next day MCDCS removed the Children and placed them with V.S. V.S. shares a home with her adult daughter, L.S., and L.S.'s teenage daughter. L.S. filed a petition to adopt A.S., C.S., and J.S., and V.S. filed a petition to adopt D.S. Although MCDCS had signed consents for M.L.S. to adopt the Children, MCDCS subsequently consented to L.S. adopting A.S., C.S., and J.S. and to V.S. adopting D.S.
Before the adoption proceedings concluded, a petition was filed in Marion County Juvenile Court alleging Da.S. to be delinquent for committing three counts of child molesting. These counts resulted in the juvenile court entering a not true finding because the judge did not find M.L.S.'s niece to be credible.
Meanwhile, MCDCS conducted a bonding assessment to determine M.L.S.'s, V.S.'s, and L.S.'s level of bonding with the Children. M.L.S.'s scores on the Adult Adolescent Parenting Inventory (AAPI-2) given by the bonding assessor were slightly higher than L.S.'s and V.S.'s scores.
In probate court, the Honorable Charles J. Deiter presided over the adoption proceedings involving the Children. The probate court permitted MCDCS to participate as a party over M.L.S.'s objection. As a result of the numerous and varied consents the biological parents and MCDCS executed, the probate court ordered the parties to brief and argue the issue of the validity and effect of the consents. As described in further detail below, each of the biological parents signed separate consents allowing for M.L.S. to adopt the Children and then signed consents allowing for either V.S. or L.S. to adopt one of the Children.2 The probate court issued an order ruling that both the M.L.S. petition and the V.S./L.S. petition were supported by the necessary parental consents.
After this ruling, the court held several evidentiary hearings at which M.L.S., L.S., V.S., employees of MCDCS, the investigator assigned to Da.S.'s case, and several other individuals testified. Much of the testimony focused on allegations of incidents that occurred in M.L.S.'s home. C.S.'s therapist testified that C.S. reported to her that Da.S. had touched him in a private area. Tr. Vol. III p. 100. When C.S. first came to live with V.S. and L.S. he was acting out sexually: displaying his genitals at school, id. at 103; "humping" the laps of adults, Tr. Vol. V p. 106; "humping" the air because "[Da.S.] liked for him to do that," id. at 105, and rubbing Vaseline in between the cheeks of his buttocks because "[Da.S.] likes for me to do that," id. A.S. reported that M.L.S.'s two adopted daughters would force M.L.S.'s nephew to do sexual things to herself and to D.S. Tr. Vol. IV p. 63-64. A.S. also reported to the bonding assessor that M.L.S. used physical discipline, with her adopted daughters holding down the child being disciplined while M.L.S. would spank them with her hand, a belt, a paddle, or an extension cord. Tr. Vol. III p. 123.
In contrast, testimony revealed that the Children appeared happy and stable in the V.S./L.S. home. Tr. Vol. IV p. 89. V.S. and L.S. are both experienced with foster children and have the resources and ability to raise the Children. The MCDCS employees at a meeting to discuss the MCDCS recommendation unanimously voted in favor of L.S. and V.S. to adopt the Children. Id. at 111. V.S. and L.S. allowed the Children to see their biological family on an informal, supervised basis. V.S. testified that the Children reacted positively to spending time with their biological mother. Tr. Vol. III p. 86.
M.L.S. requested that the probate court issue specific findings of fact and conclusions of law. The court took the matter under advisement on March 27, 2008, and gave the parties until April 30 to submit proposed findings and any additional evidence regarding the outcome of the Da.S. case. Both proposed findings and additional evidence, which showed that the case against Da.S. was closed after a "not true" finding, were submitted.
Sadly, on November 12, 2008, Judge Deiter passed away. He died without issuing a final ruling. On December 22, 2008, the Honorable Tonya Walton Pratt, after having reviewed the evidence and arguments presented, issued a final adoption decree granting V.S.'s petition to adopt D.S. and L.S.'s petition to adopt A.S., C.S., and J.S. M.L.S. now appeals.
On appeal, M.L.S. raises a number of issues, which we consolidate and reorder into three: (1) whether the probate court erred by issuing an adoption decree when the previous probate court judge had heard all the evidence and argument in the case but died before issuing a ruling; (2) whether the probate court erred by considering a set of consents signed by the biological parents and the MCDCS allowing L.S. and V.S. to adopt which were executed after the biological parents and the MCDCS had signed never-withdrawn consents allowing M.L.S. to adopt; and (3) whether the probate court's findings of fact and conclusions of law were adequate to support the judgment.
M.L.S. argues that the probate court erred by issuing an adoption decree when the previous probate court judge heard all the evidence and died before issuing a final ruling. Indiana Trial Rule 63 governs the procedure for situations in which a judge becomes disabled or unavailable. Trial Rule 63(A) provides as follows:
The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded. If the judge before whom the trial or hearing was held is not available by reason of death, sickness, absence or unwillingness to act, then any other judge regularly sitting in the judicial circuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is returned or the findings or decision of the court is filed; but if he is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part. The unavailability of any such trial or hearing judge shall be determined and shown by a court order made by the successor judge at any time.
(Emphasis added.) The general rule in a case where a trial judge dies or resigns before making findings or ruling on the evidence presented is that
[a] party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, and where a case is tried by the...
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