In re Adoption of J.C., No. 49A02-0909-CV-862 (Ind. App. 6/9/2010)

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IN RE THE ADOPTION OF D.C.¹ J.C., Appellant, v. J.C. and A.C. Appellees.

No. 49A02-0909-CV-862.

Court of Appeals of Indiana.

June 9, 2010.

APPEAL FROM THE MARION SUPERIOR COURT, The Honorable Tanya Walton Pratt, Judge Cause No. 49D08-0502-AD-7131.

RYAN H. CASSMAN Hollingsworth & Zivitz, P.C. Carmel, Indiana, ATTORNEY FOR APPELLANT.

MARRYN GLUYS, Neighborhood Christian Legal Clinic Indianapolis, Indiana,

ATTORNEYS FOR AMICUS CURIAE SITKA TRIBE OF ALASKA.

DAVID AVRAHAM VOLUCK Sitka, Alaska, Temporary Admission.

AUDREY K. GROSSMAN, MONTY K. WOOLSEY, Cross, Woolsey & Glazier, Indianapolis, Indiana, ATTORNEYS FOR APPELLEES.

OPINION

BAILEY, Judge

Case Summary

J.C. ("Biological Father") appeals an order of the Marion Superior Court, Probate Division, granting the petition of J.C. ("Stepfather") and his wife, A.C. (collectively "Adoptive Parents"), to adopt eleven-year-old D.C., who has lived with Stepfather since his birth. We affirm.

Issues

Biological Father presents three issues for review:

I. Whether his parental rights may not be terminated absent the procedural protections of the Indian Child Welfare Act;

II. Whether the probate court clearly erred in finding that Biological Father'ss consent to adoption is unnecessary; and

III. Whether the probate court's finding that adoption is in the best interests of D.C. is clearly erroneous.

Facts and Procedural History

Biological Father was previously married to S.C., who gave birth to three children during the marriage: J.C., born November 14, 1993, I.C.,² born September 15, 1996, and D.C., born May 5, 1998. Biological Father and S.C. separated before D.C.'s birth; they later divorced and S.C. married Stepfather.³ Stepfather is the biological father of S.C.'s middle child, and Biological Father is the father of S.C.'s eldest and youngest children. S.C. and Stepfather had custody of all the children until S.C.'s death in 2005.

A few months prior to S.C.'s death, Stepfather petitioned to adopt J.C. and D.C., alleging that Biological Father's consent was not required, due to his failure to communicate significantly with the children and provide support, according to Indiana Code Section 31-199-8(a)(2)(A)-(B). S.C.'s notarized consent was attached to the adoption petition. On April 4, 2005, Biological Father filed his motion contesting the adoption. He alleged that the children were subject to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901-1963 (1982) ("the ICWA") and further asserted that he had not failed to communicate significantly with or support the children.⁴

Stepfather remarried and his wife joined in the petition for adoption. The probate court conducted a series of hearings. The Sitka Tribe of Alaska was permitted to intervene, and evidence and arguments were heard regarding the potential application of the ICWA. The representative of the Sitka Tribe argued that the ICWA was applicable, but advised the probate court that transfer of jurisdiction was not being sought because the children were domiciled outside Alaska. On May 10, 2007, the probate court found the ICWA inapplicable because the proposed adoption would not cause a removal from an Indian home.

Next, the probate court conducted a hearing on the issue of whether Biological Father's consent to adoption was required. On July 14, 2008, the probate court issued an order declaring that Biological Father's consent was not required and setting a hearing date to address the best interests of the children.

Prior to the final hearing, J.C., then age fifteen, went to live with Biological Father. Biological Father moved to dismiss the adoption petition as to J.C. and, on January 30, 2009, that motion was granted. On May 29, 2009, the probate court conducted a hearing regarding the pending adoption petition as to D.C. On June 29, 2009, the probate court issued its Findings of Fact, Conclusions of Law and Order granting the Adoptive Parents' petition to adopt D.C. The order also included provisions for sibling visitation, with J.C. to visit her siblings in Indiana and D.C. to visit J.C. at Biological Father's home in Alaska. The order also provided for unlimited and unmonitored telephonic visitation between D.C., J.C., and Biological Father. This appeal ensued.

Discussion and Decision

I.A. Standard of Review

We will disturb the ruling of a probate court in an adoption case only where the evidence leads to a single conclusion and the probate court reached an opposite conclusion. In re Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied, cert. denied, 129 S.Ct. 619 (2008). We will not reweigh the evidence but 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. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.

The probate court, at a party's request may enter findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A). Id. In that case, we employ a two-tiered standard of review: we determine whether the evidence supports the findings and whether the findings support the judgment. Id. We will set aside the findings or judgment only if they are clearly erroneous. Id. Findings of fact are clearly erroneous if the record is devoid of any evidence or reasonable inferences to support them, while a judgment is clearly erroneous when it is unsupported by the findings of fact and the conclusions relying on those findings.

Id.

I.B. Analysis — ICWA

Biological Father presented evidence that he had recently become an enrolled member of the Sitka Tribe of Alaska with a Tribe Degree of 1/16^th. He has enrolled J.C., with a Tribe Degree of 1/32^nd. Presumably, D.C. would be eligible for enrollment upon presentation of required documentation. Biological Father sought the procedural protections of the ICWA applicable in termination proceedings,⁵ while not formally seeking a transfer of jurisdiction to a tribal council.

The probate court found the ICWA to be inapplicable here because there was no "removal" from custody within an Indian family as contemplated by 25 U.S.C. § 1902 and § 1912(f), providing as follows:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

No termination of parental rights may be ordered in such proceedings in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(emphasis added.) Biological Father concedes that our Indiana Supreme Court has construed the ICWA as "applicable when you have Indian children being removed from their existing Indian environment." Matter of Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. 1988), cert. denied, 490 U.S. 1069 (1989). He nonetheless requests that we "overturn the `existing Indian family' doctrine." Appellant's Brief at 8. It is not within our province to do so. See Liberty Mut. Ins. Co. v. OSI Indus., Inc., 831 N.E.2d 192, 205 (Ind. Ct. App. 2005) (observing that "we may not overrule the decisions of our supreme court."), trans. denied.

Alternatively, Biological Father argues that he, J.C. and D.C. constitute an existing Indian family because of his and J.C.'s tribal enrollment and D.C.'s eligibility for enrollment. The probate court's conclusion concerning removal is supported by factual findings that D.C. has never lived with Biological Father and thus has never lived in an Indian home from which he could be removed. Biological Father's argument is merely an invitation to reweigh the evidence, which we cannot do. In re A.S., 912 N.E.2d at 851 II. Necessity of Consent

Biological Father next challenges the probate court's determination that his consent to D.C.'s adoption is not required. Indiana Code Section 31-19-11-1 provides that the trial court "shall grant the petition for adoption and enter an adoption decree" if the court hears evidence and finds, in part, that "the adoption requested is in the best interest of the child" and "proper consent, if consent is necessary, to the adoption has been given."

According to Indiana Code Section 31-19-9-8(a):

Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:

* * * * * *

(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:

(A) fails without justifiable cause to communicate significantly with the child when able to do so; or

(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

Accordingly, the Adoptive Parents were required to prove by clear and convincing evidence that Biological Father's consent was not required. See In re Adoption of M.A.S., 815 N.E.2d 216, 219 (Ind. Ct. App. 2004). The trial court concluded that the necessity of obtaining Biological Father's consent to the adoption was obviated on grounds that he failed to provide support when able to do so. The provisions of Indiana Code Section 31-19-9-8 are disjunctive; as such, either provides independent grounds for dispensing with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006).

At a time when the adoption petition was pending as to both J.C. and D.C., the probate court found that there were separate court...