|
(Cite
as: 928 N.E.2d 602) |
Court
of Appeals of Indiana.
In
re the ADOPTION OF D.C.FN1
FN1.
Some documents on appeal are captioned ?Adoption of J.C. et al.? Because the
trial court dismissed the adoption petition as to J.C., we caption the case to
identify the minor who is the subject of the appealed order.
J.C.,
Appellant,
v.
J.C.
and A.C., Appellees.
No.
49A02-0909-CV-862.
June
9, 2010.
Audrey
K. Grossman, Monty K. Woolsey, Cross, Woolsey & Glazier, Indianapolis, IN,
Attorneys for Appellees.
Marryn
Gluys, Neighborhood Christian Legal Clinic, Indianapolis, IN, Attorneys for
Amicus Curiae Sitka Tribe of Alaska.
David
Avraham Voluck, Sitka, AL, Temporary Admission.
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's
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.,FN2
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.FN3
Stepfather is the biological*604
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.
FN2.
I.C.'s first and last names were later changed after it was determined that
Stepfather was her biological father.
FN3.
The November 1998 dissolution decree required Biological Father to pay child
support only for the eldest child. Because the middle child was the biological
child of Stepfather, no child support was ordered on her behalf. Because the
paternity of the youngest child was not yet established, the dissolution decree
was silent as to financial responsibility for him. In 2003, Biological Father
was ordered to pay child support for the youngest child, D.C.
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 31-19-9-8(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.FN4
FN4.
Biological Father initially requested a transfer of jurisdiction to the tribal
council court, but later withdrew that request. (Tr. 8.)
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,
--- U.S. ----, 129 S.Ct. 619, 172 L.Ed.2d 460 (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.
*605
[1] 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
[2]
Biological Father presented evidence that he had recently become an enrolled
member of the Sitka Tribe of Alaska with a Tribe Degree of 1/
FN5.
Specifically, Section 1912(f) of the ICWA requires that a termination of
parental rights be supported by evidence beyond a reasonable doubt, as opposed
to clear and convincing evidence. The statutory provision also requires the
testimony of qualified expert witnesses.
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 proceeding 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, 109 S.Ct. 2072, 104 L.Ed.2d 636 (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*606
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
[3]
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.
[4][5]
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 orders requiring Biological
Father to pay child support for J.C. and D.C. In 1998, he was ordered to pay
$230.00 per month for J.C.; in 2003, he was ordered to pay $322.78 per month for
D.C. The probate court found that, from Biological Father's income of
$23,430.00, ?no more than $500? had been paid on behalf of both children in the
twelve months preceding the adoption petition, and characterized the aggregate
amount as ?token payments.? (App. 42.) It consisted of $279.99 from a Navy
pension and two checks amounting to $220.
The
evidence of record indicates that, when he was in the Navy and not subject to a
support order with regard to D.C., Biological Father had signed an allotment for
J.C.'s benefit. Accordingly, in 2004, when Biological Father was entitled to a
Navy pension, $279.99 was withheld and forwarded to his ex-wife. There is no
evidence of an allotment or garnishment established to benefit D.C. With regard
to the checks that Biological Father sent to his ex-wife during 2004, $70 was
designated for J.C. and $150 was designated for clothes.
As
to D.C. in particular, there is at most evidence that he may have benefited from
the check for clothing. There is no showing that Biological Father made any
single conforming child support payment for D.C.'s benefit during the year
preceding the filing of the adoption petition, although a substantial child
support arrearage had accrued.FN6
Accordingly, the Adoptive Parents*607
established, by clear and convincing evidence, that Biological Father failed to
provide for D.C.'s care and support when able to do so.
FN6.
By the time of the final hearing, Biological Father's child support arrearage
was approximately $30,000 (for both children).
III.
Best Interests
[6][7][8]
Finally, we consider the probate court's determination that adoption was in
D.C.'s best interests. The purpose of Indiana's adoption statutes is to protect
and promote the welfare of children by providing them with stable family units.
In
re Infant Girl W.,
845 N.E.2d 229, 236 (Ind.Ct.App.2006), trans.
denied.
The best interests of the children are paramount. Id.
Stepfather
cared for D.C., without interruption, throughout the eleven years preceding the
adoption petition. Meanwhile, Biological Father had extremely limited contact
with D.C. and accumulated a child support arrearage of tens of thousands of
dollars. At all times prior to the filing of the instant petition, Biological
Father acquiesced to Stepfather's custody of D.C.
By
all accounts, D.C. is well-adjusted to his surroundings and bonded with his
adoptive parents; Biological Father does not claim otherwise. Rather, he points
to facial inconsistency in the order severing parental rights while at the same
time permitting sibling visitation and unlimited telephonic
visitation.FN7
He contends that the findings and conclusions are so contradictory and
internally inconsistent that the adoption decree must be reversed. Biological
Father does not explain how he is prejudiced by the provisions for sibling
visitation and telephonic communication. Essentially, he was relieved of future
parental obligations as to D.C.FN8
while he was afforded opportunities for contact. Indiana Trial Rule 61 provides
in pertinent part:
FN7.
Indiana Code Section 31-19-16.5-1 permits the court entering an adoption decree
to order the adoptive parents to provide specific post-adoption contact for an
adopted child at least two years of age with a pre-adoptive sibling if (1) the
court determines that such would serve the best interests of the adopted child
and (2) each adoptive parent consents to the court's order for post-adoption
contact privileges. Here, with the testimonial consent of the Adoptive Parents,
the order specified that D.C.'s sibling visitation with J.C. was to take place
in the home of Biological Father. The order also provided for unlimited
telephonic visitation between D.C., J.C., and Biological Father, a gratuitous
provision entered by the probate court and not challenged on cross-appeal by the
Adoptive Parents.
FN8.
We do not suggest that Biological Father is relieved of his obligation to make
child support payments accrued prior to the instant proceedings.
No
error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order in anything done or omitted by the court or by any
of the parties is ground for granting relief under a motion to correct errors or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a
judgment or order or for reversal on appeal, unless refusal to take such action
appears to the court inconsistent with substantial justice.
Accordingly,
we will not reverse a judgment where the appellant has failed to demonstrate
prejudice to his substantial rights.
Affirmed.
MAY,
J., concurs.
BARNES,
concurs with separate opinion.BARNES, Judge, concurring.
Although
I concur with the majority opinion, I write separately to note Indiana's
minority position in applying the *608
?existing Indian family? doctrine. The ICWA was enacted in 1978 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.
25
U.S.C. ? 1902. Four years after the statute was enacted, the Kansas appellate
courts adopted the ?existing Indian family? doctrine, which holds that the ICWA
does not apply where the child was not in an ?existing? Indian environment.
In
re the Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982), overruled
by In
re A.J.S.,
288 Kan. 429, 204 P.3d 543 (2009). Several other courts, including Indiana,
adopted this approach to the ICWA. See
In
re T.R.M.,
525 N.E.2d 298 (Ind.1988), cert.
denied.
In
T.R.M.,
an Indian mother gave her child to a non-Indian couple shortly after the child's
birth so that the couple would adopt the baby. However, the mother later changed
her mind about the adoption. Relying on In
re Adoption of Baby Boy D.,
742 P.2d 1059 (Okla.1985), cert.
denied,
our supreme court held:
In
the case before us, the child's biological ancestry is Indian. However, except
for the first five days after birth, her entire life of seven years to date has
been spent with her non-Indian adoptive parents in a non-Indian culture. While
the purpose of the ICWA is to protect Indian children from improper removal from
their existing Indian family units, such purpose cannot be served in the present
case before this Court. From the unique facts of this case, where the child was
abandoned to the adoptive mother essentially at the earliest practical moment
after childbirth and initial hospital care, we cannot discern how the subsequent
adoption proceeding constituted a ?breakup of the Indian family.? We therefore
hold that, separate from and independent of our consideration of the merits of
appellant's specific issues, the ICWA should not be applied to the present case
in which the purpose and intent of Congress cannot be achieved
thereby.
T.R.M.,
525 N.E.2d at 303. However, Baby
Boy D.,
upon which our supreme court relied, has since been overruled by In
the Matter of Baby Boy L.,
103 P.3d 1099, 1108 (Okla.2004), which held that the existing Indian family
doctrine was ?no longer a viable doctrine? in Oklahoma.
In
fact, the validity of the existing Indian family doctrine has repeatedly been
called into question, and many courts have now abandoned the doctrine.
See
A.J.S.,
204 P.3d at 549 (holding that ?abandonment of the existing Indian family
doctrine is the wisest future course?); see
generally
Vento, Carol Schultz, Construction
and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. ?? 1901
et seq.) Upon Child Custody Determinations,
89 A.L.R.5th 195 (2001); Suzianne D. Painter-Thorne, One
Step Forward, Two Giant Steps Back: How the ?Existing Indian Family? Exception
(Re)imposes Anglo American Legal Values on American Indian Tribes to the
Detriment of Cultural Autonomy,
33 Am. Indian L. Rev. 329 (2008-2009).
We
do not have the authority to overrule our supreme court, and we must apply the
existing Indian family doctrine in this case. However, given the controversy
surrounding the existing Indian family doctrine, I *609
encourage our supreme court to revisit its applicability in
Indiana.