Stout v. Tippecanoe County Dept. of Public Welfare

• Decision Date: 15 October 1979
• Docket Number: No. 2-176A14,2-176A14
• Citation: 395 N.E.2d 444,182 Ind.App. 404
• Parties: Robert L. STOUT, Isabelle A. Stout (In the Matter of the Petition of Robert L. STOUT and Isabelle A. Stout to adopt John Joe Bowling, A Minor), Appellants. v. TIPPECANOE COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee.
• Court: Indiana Appellate Court

Page 444

395 N.E.2d 444

182 Ind.App. 404

Robert L. STOUT, Isabelle A. Stout (In the Matter of the Petition of Robert L. STOUT and Isabelle A. Stout to adopt John Joe Bowling, A Minor), Appellants. v. TIPPECANOE COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee.

No. 2-176A14.

Court of Appeals of Indiana, Second District.

Oct. 15, 1979.

Robert Leirer Justice, Logansport, George E. Weigle, Lafayette, for appellants.

H. Hanley Hammel, Jr., Lafayette, for appellee.

SHIELDS, Judge.

Stouts appeal from summary judgment granted by the trial court in favor of the Tippecanoe County Department of Public Welfare (Department) in an adoption proceeding in which Stouts sought adoption of a minor ward of the Department. The trial court granted summary judgment based on the Department's refusal to consent to the adoption and its refusal to place the child in the Stouts' home. We reverse and remand.

The trial court summarized in its findings of fact the particulars resulting in this appeal:

1. John Joe Bowling, minor subject of the petition, was born November 8, 1972, handicapped by some degree of mental retardation, coupled with mild sensory-perceptual motor deficiency.

2. He was first cared for by his mother, then by his maternal grandmother, following which he was made a ward of the Department of Public Welfare.

3. In July, 1973, he was placed by the Department with Charles R. and Pauline Kyees, as a temporary foster home placement, and the Kyees were informed that the Department would seek a suitable adoptive home.

4. In April, 1974, the Department advised Kyees of a proposed adoptive home placement outside of the county. By this time the Kyees had lavished much care upon the child and he had made excellent progress. Although the Department had emphasized that they would not be considered as prospective adopting parents, the Kyees had become so emotionally involved with the child that they could not accept the proposed placement, and they promptly filed a petition to adopt him, together with a petition to waive the requirement of prior written approval by the Department. After an extended hearing, the Kyees' petitions were denied.

5. The child remained with the Kyees as a foster home placement, and their attorneys sought to persuade the Department to abandon plans for placement outside the county and seek a local adoptive placement, allowing Kyees to maintain contact with him.

6. In May, 1975, the Department arranged certain visits by the child with their prospective adopting couple. Meanwhile, Kyees' attorneys located another prospective adoption couple (Robert and Isabelle Stout, Petitioners herein) and arranged certain visits with them.

7. Late in July, the Department arranged for the child to visit their prospective adopting couple over the weekend August 2-3 and notified the Kyees. On the advice of their attorneys, the Kyees removed the child from the state for approximately ten (10) days. Immediately thereafter the Stouts filed their petition for adoption and the Department filed a petition to cite Kyees for contempt.

8. Finally, on August 9, the Department removed the child from Kyees' home and placed him with their prospective adopting couple.

Stouts' adoption petition complied with the procedural requirements of IC 31-3-1-2 ¹ and, pursuant to subsection (5)(d), named the Department as custodian of the child. Stouts also filed a motion to waive consent of the Department to the adoption. The Department responded with its motion for summary judgment supported by the affidavit of the Department's director, in which he averred:

John Joe Bowling . . . was made a ward of the County Department of Public Welfare.

Said ward has never been placed in the home of the petitioners as a proposed adoptive home, and said Department has no intention of so placing said ward.

According to the policies and practices of said Department, as approved by the County Board of Public Welfare of Tippecanoe County, Indiana, the home of the petitioner is not eligible or qualified for placement of said ward as a proposed adoptive home. (Emphasis added.)

In a memorandum in support of summary judgment the Department further urged Department consent to the adoption was a statutory prerequisite to granting Stouts' petition.

In granting summary judgment in favor of the Department the trial court framed the issue to be:

whether persons seeking to adopt a minor ward of the Department whose parental rights have been terminated may proceed without prior written approval of placement, or placement of the child with them and without consent to adoption and litigate their petition for adoption as against a separate placement made and approved by the Department.

Stouts challenge the summary judgment on several grounds, but dispositive of this appeal are the following:

1. Whether the trial court, under the Indiana adoption act, in particular IC 31-3-1-6 and 31-3-1-7 (Burns Code Ed.1978 Supp.), must dismiss a petition seeking adoption of a ward of the Department of Public Welfare when the Department refuses to consent to the proposed adoption without first determining whether consent is being unreasonably withheld. ²

2. Whether IC 31-3-1-3 (Burns Code Ed.1978 Supp.) requires placement of a child by the Department in the proposed adoptive home as a prerequisite to the trial court's consideration of the merits of an adoption petition.

Scope of Review

The purpose of summary judgment is to provide a speedy determination of whether a genuine issue of fact is present and must be resolved. 3 Harvey, Indiana Practice, 542 (1970). Indiana Rules of Procedure, Trial Rule 56(C) therefore permits summary judgment only when the pleadings, affidavits, depositions, etc. show "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment must establish the absence of a material factual dispute. Accordingly, the trial court, in determining the propriety of summary judgment, must examine the evidence in a light favorable to the non-moving party, resolving any doubts against the moving party. Petro v. McCullough, (1979) Ind.App., 385 N.E.2d 1195; Crase v. Highland Village Value Plus Pharmacy, (1978) Ind.App., 374 N.E.2d 58.

When reviewing a summary judgment, the appellate court applies this same standard, and will reverse if the record discloses either an unresolved issue of material fact or an incorrect application of the law. Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Richards v. Goerg Boat and Motors, Inc., (1979) Ind.App., 384 N.E.2d 1084.

Indiana Code 31-3-1-8 (Burns Code Ed.1978 Supp.) requires prior to granting a petition for adoption, the trial court determine:

(a) that the adoption prayed for is for the best interest of the child;

(b) that the adopting parent or parents are of sufficient ability to rear the child and furnish suitable support and education;

(c) that the report of such investigation (IC 31-3-1-4) ³ and recommendation has been filed; and

(d) that proper consent, if any be necessary, to the adoption has been given.

Stouts presented uncontradicted evidence the proposed adoption was in the child's best interest and they would be able to furnish suitable support and education. In addition, Stouts requested the court dispense with Department consent and order the Department to inspect and supervise Stouts' home and file its report. Despite this uncontradicted evidence and Stouts' request for a hearing concerning necessity of Department consent, the trial court determined Department consent to both placement and adoption was an absolute prerequisite to further consideration of Stouts' adoption petition. Thus, Stouts' failure to establish that consent entitled the Department to a judgment as a matter of law.

I.

Consent of the Department to Adoption of its Ward Cannot be

Unreasonably Withheld

Indiana Code 31-3-1-6 requires the proposed adoptive parents establish the written consent of, among others, "any person, agency or county department of public welfare having lawful custody of the child whose adoption is being sought." ⁴ The necessity of agency consent is qualified, however, by subsection (g)(6) of that section which obviates the need of consent from "(a) ny legal guardian or lawful custodian of the person to be adopted Other than a parent who has failed to respond in writing to a request for consent for a period of sixty (60) days or who, after examination of his written reasons for withholding consent, is found by the court to be unreasonably withholding his consent." (Emphasis added) Section six would therefore require consent of the Department, as lawful custodian, as a prerequisite to adoption, absent the Department's failure to respond for sixty days to a request for its consent or a determination by the trial court that consent is being unreasonably withheld.

The Department responds, however, that when section six is read in conjunction with IC 31-3-1-7 allowing for termination of parental rights, a different result obtains. When custody is awarded the Department through termination or relinquishment of parental rights under IC 31-3-1-7, the Department is placed In loco parentis with the child, possessing the same power as the natural parent to withhold consent. In support of this interpretation, the Department emphasizes subsection (a) of IC 31-3-1-7 providing "(t)he rights of a parent . . . with reference to a child, including Parental right to control or consent to an adoption, may be relinquished or terminated (in favor of a county department of public welfare) in or prior to an adoption proceeding as provided in this section. ⁵ (Emphasis added.)

The statutory procedure allowing adoption of children reflects the state's concern for the "care and protection of infants who have been abandoned, neglected or mistreated." Aramovich v. Doles, (1964) 244 Ind. 658, at 665, 195 N.E.2d 481, at 485. The paramount...