K.H. v. M.M.

• Decision Date: 29 July 2020
• Docket Number: Court of Appeals Case No. 20A-AD-337
• Citation: 151 N.E.3d 1259
• Parties: In the Adoption of K.H., D.R., Appellant, v. M.M. and C.M., Appellees.
• Court: Indiana Appellate Court

151 N.E.3d 1259

In the Adoption of K.H., D.R., Appellant,

v.M.M. and C.M., Appellees.

Court of Appeals Case No. 20A-AD-337

Court of Appeals of Indiana.

Filed July 29, 2020

Attorney for Appellant: John R. Worman, Evansville, Indiana

Attorneys for Appellee: Yvette M. LaPlante, LaPlante, LLP, Evansville, Indiana

Brown, Judge.

[1] D.R. appeals the trial court's decree of adoption. We affirm.

Facts and Procedural History

[2] On April 24, 2017, K.H. was born to Ka.H. ("Mother"). Under cause number 82D04-1704-JC-768 ("Cause No. 768"), the Indiana Department of Children Services ("DCS") filed a petition on April 27, 2017, alleging K.H. was a child in need of services ("CHINS") in the Vanderburgh Superior Court. On April 11, 2018, a chronological case summary ("CCS") entry under Cause No. 768 noted that "DCS has filed termination on this child (82D04-1802-JT-359)."¹ Appellant's Appendix Volume II at 90.

[3] Under Cause No. 768, a CCS entry dated September 13, 2018, indicated "State will be filing to add [D.R.] as an alleged father." Id. at 89. The court appointed counsel for D.R., and counsel requested a DNA test. A CCS entry dated October 15, 2018, mentions "DNA Results." Id. at 88. An October 24, 2018 CCS entry states:

[D.R.'s counsel] says that [D.R.] has had DNA done to confirm he is the father. DCS moves to show him as father; Court orders.... Over [D.R.'s counsel's] objection, Court allows DCS to orally amend. There are no allegations against father in the petition and he has no objection to the child being found to be a CHINS. He is at VCCC until February. He is to sign a release for VCCC. He does want services and visitation, Mother's rights have been terminated.

Id.

[4] On November 7, 2018, M.M. and C.M. filed a petition to adopt K.H. under cause number 82D04-1811-AD-210, the cause from which this appeal arises, in the Vanderburgh Superior Court. On November 21, 2018, D.R. filed an objection to the adoption and requested an attorney. The court appointed counsel for him.

[5] In a document dated July 5, 2018, and titled "Indiana State Department of Health Putative Father Registry Affidavit," Evelyn Riley asserted that she was responsible for the administration of the Putative Father Registry, searched the registry for K.H. and Mother, and found no putative father was registered and that no paternity determination was on file with the department. Id. at 29 (capitalization omitted).

[6] On June 11, 2019, the court held a hearing, and counsel for M.M. and C.M. argued D.R.'s consent to the adoption was not necessary. Specifically, he asserted: "We believe we've got I.C. 31-19-9-8(a) 11, unfit parent, best interest of the child. We think we've got 31-19-9-8(a)6, token effort with the child. We've got I.C. 31-19-9-15, he f[a]iled to file a paternity action. And the last is 31-19-5-18, failure to register as the putative Father." Transcript Volume II at 5.

[7] D.R. testified he was in custody for a DUI and an assault which occurred the previous night, but that he did not know whom he had allegedly assaulted. He testified he went to the hospital after K.H. was born and was told that the baby was not his. When asked if he did not have any contact with K.H. for the first eighteen months of his life, he answered: "Right, 'cause I was told that it wasn't mine so I left it alone. I ain't gonna go around looking for a kid." Id. at 7. Counsel for M.M. and C.M. asked: "Now you have not filed a putative Father affidavit." Id. He answered: "Yes, I have." Id. D.R.'s counsel stated she believed "that was filed right after we had our hearing where he was established" and later stated "I don't have it with me, but we did do it." Id. D.R. indicated he did not initially obtain any presents for K.H., but he did so after he became aware he was the father at the time of the DNA test in October 2018. M.M. and C.M.'s counsel asked: "But you haven't done anything prior to the DNA results, correct, in regard to the child?" Id. at 10-11. D.R. answered: "Yes. I've done everything. I've fed and bought toys and all." Id. at 11. D.R. denied refusing to complete a substance abuse evaluation. When asked if he had completed NOW Counseling, he answered: "Yes, I did, and when I got released from the Safe House they told me that I didn't have to continue. Same thing (Indiscernible) was talking about. Until I got this new case worker, then she wanted me to start all that stuff over. I'm not gonna do that." Id. He testified that he went to Fatherhood Engagement Services "once a week. Went twice a week." Id. at 12. He denied that the police were called to his house on February 21, 2019, regarding domestic violence. When asked if he was kicked out of his house or his girlfriend's house, he answered: "Yeah, but wasn't no police involved. It was a freaking argument." Id. at 13. He indicated he had eight children including "four grown, four little." Id. at 14. He testified he worked at Rally's on 41 and Tristate Cylinder and lived with his fiancée. He asserted that visits which "ended early wasn't on" him and that DCS canceled visits. Id. at 15. On cross-examination, he testified he was in jail and on his way to the "Safe House" when there was a DCS case against Mother. Id. at 21. He related he has good relationships with all his children and that he has three in Evansville besides K.H., two in Lexington, and two in Hopskinsville.

[8] Lauren Koehler, a foster care specialist and family case manager for DCS, testified that D.R. did not comply with the mandates of DCS. Court Appointed Special Advocate Linda Atchison ("CASA Atchison") testified that K.H. had been in the care of the foster parents since two days after his birth, foster parents also had two of K.H.'s half-siblings, and D.R. initially told her that he was not interested in taking K.H. away from his siblings and not interested in services at that time. She testified her concern with several visits ending early, including one in which D.R. stated "it was because it was his birthday." Id. at 45. She indicated she heard D.R. testify that it was his birthday but he had to attend a meeting and, when asked if she was saying she verified that was not the case, she answered: "Yeah, they told me there was no meeting scheduled on that Sunday evening." Id. at 46. She testified D.R. told her he had eight children and that they were all around the age of two years, but he later reported their ages ranged from nineteen years to two years. She testified that the only time D.R. participated in the NOW Counseling was when he was at the Safe House or in jail and that he told her he was going to participate in NOW Counseling when he was released but did not do so. D.R. was a "no call, no show on February the 12^th, February 14^th, February 21^st, and February 26[th]" for random drug screens, tested positive for alcohol on February 22nd, and "was a no call, no show on March 21^st of 2019, March 28^th of 2019, April 3^rd of 2019, April 9^th of 2019, and April 18^th of 2019." Id. at 51, 53. She recommended that the adoption be granted. On cross-examination, she testified that "on January the 22^nd while [D.R.] was at the Safe House and he was very close to ending his time there, he was PTRed because of smoking a leafy green substance" and his conduct "just didn't show a commitment to developing that relationship." Id. at 56-57. When asked if she believed D.R. had given anything more than a token effort in being involved with the child, she answered in the negative.

[9] On June 25, 2019, the hearing continued. Lee Poag, a field case worker with Ireland Home Based Services, testified D.R. was one of his clients for supervised visitations and Fatherhood Engagement. He testified that he observed primarily positive interactions between K.H. and D.R., D.R. always had what was necessary for the visits including food, diapers, wipes, and toys, D.R. followed a lot of his recommendations, and the bond between them became better as visits progressed. On cross-examination, he stated that D.R. was one of his first clients, D.R. was in jail when he first started working on the case on December 3rd until he was released in February, and he was remanded back to jail in January for smoking a leafy green substance. He also testified that D.R. was not complying with services, D.R. was not going to change his mind despite his encouragement, and D.R. stated he "won't take orders from anybody." Id. at 84.

[10] On July 22, 2019, the court entered an order finding that D.R.'s consent to the adoption was not required. The court found:

1. [K.H.] is a ward of the Court under the care and supervision of the Vanderburgh County Department of Child Services ("VCDCS") under Cause No. [768] ("CHINS case").

2. The Petitioners, [M.M.] and [C.M.], are [K.H.'s] licensed foster parents and pre-adoptive placement.

3. [K.H.] was born on April 24, 2017 and is two (2) years old.

4. [D.R.] ( [ ] "Putative Father") claims to be [K.H.'s] father but has never established paternity. [D.R.] was shown to be the biological father of the child as indicated by a DNA test taken as part of the Child In Need of Services case. There has been no formal adjudication by a court of [K.H.'s] paternity.

5. [K.H.'s] Mother is [Ka.H.]. She executed a voluntary termination of parental rights on June 6, 2018 in [Cause No. 359].

6. [Mother] and [D.R.] were never married to each other.

7. On September 13, 2018, [D.R.] was added as a party to the CHINS case.

8. On October 24, 2018, [D.R.] was confirmed as the biological father of [K.H.] through DNA testing as part of the CHINS case.

9. Further, Disposition in the CHINS case was held for [D.R.] on November 21[,] 2018. [D.R.] was present for the hearing. At the time of the hearing [D.R.] was at the Vanderburgh Community Corrections Complex ("VCCC").

10. The Disposition Order stated that [D.R.] was to participate in the Fatherhood Engagement Program, have supervised visitation, and remain drug and alcohol free. A substance abuse evaluation and any recommended therapy or

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