Opinion
23A-AD-2236
02-05-2024
E.S., Appellant-Respondent, v. L.N. and R.N., Appellees-Petitioners
ATTORNEY FOR APPELLANT Joseph Leon Payne Payne Law Office, LLC Austin, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
ATTORNEY FOR APPELLANT Joseph Leon Payne Payne Law Office, LLC Austin, Indiana.
Appeal from the Jackson Superior Court The Honorable Bruce A. MacTavish, Judge Trial Court Cause No. 36D02-2303-AD-15
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] E.S. ("Biological Father") appeals the trial court's order granting the adoption of his son by the maternal grandparents, arguing the court erred in granting the adoption without his consent. The maternal grandparents did not file a brief to respond to Biological Father's claim. Finding prima facie error, we reverse.
Facts and Procedural History
[¶2] X.W.T. ("Child") was born in November 2021. W.T. ("Biological Mother") is Child's biological mother. In February 2022, Child was removed from Biological Mother due to her drug use, placed in the custody of the Indiana Department of Child Services (DCS), and found to be a child in need of services (CHINS). See No. 36D02-2201-JC-5. DCS placed Child with L.N., who is Biological Mother's mother, and R.N., who is L.N.'s husband ("Maternal Grandparents").
[¶3] On March 30, 2023, with the CHINS matter still pending, Maternal Grandparents petitioned to adopt Child. See No. 36D02-2303-AD-15. The petition alleged that Child's biological father is unknown. Appellant's App. Vol. II p. 9. Less than a month later, on April 18, Biological Father learned through DNA testing that he is Child's biological father (several other men had been tested and excluded as the biological father). See Tr. Vol. II p. 49. On May 18, Biological Father registered as a putative father. Five days later, on May 23, Biological Father filed an objection to the adoption petition and a motion to intervene in the adoption case, which the trial court granted. He also initiated a separate action to establish paternity of Child. See No. 36D02-2305-JP-29. On June 21, the trial court in the paternity case issued an order establishing Biological Father's paternity of Child. Around that time, Biological Father started having supervised visits with Child in the CHINS case.
[¶4] An adoption hearing was held on August 16. Biological Mother consented to Maternal Grandparents' adoption of Child, see Appellant's App. Vol. II p. 15, but Biological Father did not. Biological Father presented evidence that he was having supervised visits with Child, cooperating with DCS, and willing to do "[e]verything" to get his son. Tr. Vol. II p. 53. DCS opposed the adoption but did not give an explanation on the record. See id. at 57. Although Maternal Grandparents didn't argue that Biological Father's consent is not required, they presented evidence about Biological Father's criminal convictions and substance abuse. The following week, the trial court granted Maternal Grandparents' petition to adopt Child. The court found that DCS was "unreasonably withholding consent to the adoption" but didn't address Biological Father's consent. Appellant's App. Vol. II p. 8.
[¶5] Biological Father now appeals.
Discussion and Decision
[¶6] Biological Father contends the trial court erred in granting the adoption petition because he did not consent as required by Indiana Code section 31-19-9-1. Maternal Grandparents have not filed an appellees' brief. When an appellee does not respond to an appeal, we will not undertake the burden of developing an argument on their behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Id. In this context, "prima facie error" means error "at first sight, on first appearance, or on the face of it." Id.
[¶7] Generally, a trial court may grant an adoption petition only if both parents consent. See Ind. Code § 31-19-9-1. However, parental consent is unnecessary under several statutes, including Indiana Code sections 31-19-9-8, 31-19-9-12, 31-19-5-18, and 31-19-10-1.2(g). But Maternal Grandparents did not argue below that Biological Father's consent is unnecessary. They did not cite any consent-related statutes in their adoption petition, amend their petition to include any citations once Biological Father contested the adoption or had his paternity established, or argue the issue of consent at the adoption hearing. And the trial court's order granting the adoption does not address Biological Father's consent or any consent-related statutes. See I.C. § 31-19-11-1 (setting forth what a trial court must "find[]" in order to grant an adoption, including that "proper consent, if consent is necessary, to the adoption petition has been given"). Given that Biological Father's consent was not discussed below and there is no brief from Maternal Grandparents on appeal, Biological Father has established prima facie error. We therefore reverse the trial court's order granting the adoption.
[¶8] Reversed.
May, J., and Kenworthy, J., concur.