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CHAPTER 13

ADOPTION

Table of Contents

I. OVERVIEW OF HIGHLIGHTS........................................................................................... 13-5

II. JURISDICTION AND STANDING

A. Statutes................................................................................................................................... 13-5

B. Case Law

1. Jurisdiction...................................................................................................................... 13-6

2. ICWA Jurisdiction.......................................................................................................... 13-9

3. Standing........................................................................................................................... 13-11

III. PETITIONING FOR ADOPTION

A. Who May Petition

1. In General....................................................................................................................... 13-12

a. Case Law On Unmarried Couple Petitions or Same Sex Couple Petitions.............. 13-13

b. Substitution of Adoption Petitioners........................................................................ 13-14

c. DCS Initiates Adoption............................................................................................ 13-15

2. Foster Parent Petitioners................................................................................................. 13-16

3. Relative Petitioners and Sibling Placements.................................................................. 13-17

B. Where to File a Petition........................................................................................................ 13-18

C. Form and Contents of Petition.............................................................................................. 13-18

D. Adoption Filing Fees............................................................................................................. 13-19

E. Criminal History Check For Adoptive Petitioners

1. Statutory Requirements................................................................................................. 13-20

2. Criminal Convictions Which Can Prevent Adoption.................................................... 13-21

F. Adoptive Petitioner’s Input in Termination Proceedings.................................................... 13-23

G. Custody of Child Pending Adoption.................................................................................... 13-23

H. Court Orders to Protect Anonymity of Petitioners.............................................................. 13-24

IV. ADOPTION CONSENTS

A. In General.............................................................................................................................. 13-24

B. Hearing on Consent in Uncontested Adoptions..................................................................... 13-27

C. Minor Parent’s Consent..........................................................................................................13-28

D. Required Consents................................................................................................................ 13-28

E. Guardian/Custodian’s Ability to Withhold Consent............................................................. 13-29

F. Withdrawal of Consent

1. Statutes............................................................................................................................ 13-32

2. Case Law........................................................................................................................ 13-32

G. Criminal Statutes on Child Selling and Profiting From an Adoption................................... 13-34

V. LEGAL GROUNDS FOR DISPENSING WITH PARENTAL CONSENT

A. In General.............................................................................................................................. 13-35

B. Standard and Burden of Proof.............................................................................................. 13-36

C. Abandonment........................................................................................................................ 13-37

D. Lack of Significant Contact.................................................................................................. 13-38

E. Knowing Failure to Support When Able.............................................................................. 13-41

F. Sexual Malfeasance by Putative Father................................................................................ 13-44

G. Judicial Declaration of Incompetency................................................................................... 13-45

H. Parental Conviction and Incarceration.................................................................................. 13-46

I. Irrevocably Implied Consent................................................................................................ 13-47

1. Irrevocably Implied Consent When Actual Pre-Birth Notice Received........................ 13-47

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2. Establishment of Paternity When Adoption Does Not Take Place

After Actual Pre-Birth Notice......................................................................................... 13-48

3. Irrevocably Implied Consent In Other Situations............................................................ 13-49

a. Irrevocably Implied Consent When Pre-Birth Notice Has Not Been Served;

When Actual Post Birth Notice Received................................................................ 13-50

b. When Putative Father Fails to Timely Register with the Putative

Father Registry When Required.............................................................................. 13-51

c. Irrevocably Implied Consent Due to Failure to Prosecute Motion to Contest

Adoption................................................................................................................... 13-53

4. Time Limitations For Establishing Paternity in Adoption Situations............................ 13-55

J. Parental Unfitness and Child’s Best Interests...................................................................... 13-56

K. Written Denial of Paternity by Biological Father................................................................ 13-57

VI. PUTATIVE FATHER REGISTRY

A. Purpose................................................................................................................................... 13-58

B. Who Must Register................................................................................................................ 13-58

C. Form of Registration............................................................................................................. 13-59

D. Time For Registration........................................................................................................... 13-59

E. Request For Putative Father Registry Search....................................................................... 13-60

F. Case Law on Putative Father Registry.................................................................................. 13-61

VII. NOTICE

A. Pre-Birth Notice Requirements to Putative Fathers and Implied Consent........................... 13-62

B. After Birth Notice Requirements and Exemption From Notice............................................ 13-64

1. General Requirements.................................................................................................... 13-64

2. Who Must Be Given After Birth Notice......................................................................... 13-65

3. Who Does Not Need to Be Given After Birth Notice..................................................... 13-66

4. Form of Notice Pursuant to IC 31-19-4.5....................................................................... 13-68

C. Notice to Putative Fathers..................................................................................................... 13-69

D. Service of Notice.................................................................................................................... 13-71

E. Notice to Persons Other Than Putative Father

1. Statutes............................................................................................................................ 13-72

2. Case Law........................................................................................................................ 13-73

VIII. CONTESTING AN ADOPTION

A. Motion and Prosecution of Motion Required....................................................................... 13-74

B. Counsel For Parents in Contested Adoptions....................................................................... 13-76

C. Discovery in Contested Adoptions........................................................................................ 13-78

D. Guardian ad Litem or Court Appointed Special Advocate in Contested Adoptions

1. Statutes........................................................................................................................... 13-79

2. Case Law......................................................................................................................... 13-79

3. Practical Considerations For Guardians Ad Litem and Court

Appointed Special Advocates........................................................................................ 13-80

E. Hearing on Contested Adoption........................................................................................... 13-81

1. Hearings on Competing Adoption Petitions in Contested Adoptions............................. 13-81

F. Dismissal of Petition and Custody Determination................................................................ 13-83

G. How Putative Fathers May Prevent Adoption

1. Statutory Compliance...................................................................................................... 13-84

2. Case Law......................................................................................................................... 13-85

IX. LEGAL ROLE OF ADOPTION AGENCY

A. Prior Written Approval of Placement................................................................................... 13-87

B. Preparation of Adoption History........................................................................................... 13-87

C. Supervision Period................................................................................................................. 13-89

D. Agency Report For Finalization of Adoption....................................................................... 13-89

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E. Case Law on Liability Issues................................................................................................ 13-91

F. Confidentiality....................................................................................................................... 13-92

X. ADOPTION HEARING

A. Required Documents............................................................................................................. 13-93

B. Legal Requirements For Granting Adoptions

1. Statutes Regarding Legal Requirements For Granting Adoptions.................................. 13-94

2. Case Law Regarding Legal Requirements For Granting Adoptions.............................. 13-95

C. Effect of Adoption Decree

1. New Birth Certificate...................................................................................................... 13-97

2. Effect on Birth Parent-Child Relationship...................................................................... 13-97

D. Recusal of Judge................................................................................................................... 13-98

E. Dismissal of Petition

1. Statutes............................................................................................................................ 13-99

2. Case Law........................................................................................................................ 13-99

XI. ADOPTION APPEALS

A. Persons Prevented From Challenging an Adoption Decree................................................... 13-101

B. Time Frame for Appeals from Adoption Decrees................................................................ 13-101

C. Final Judgment Required Before Appeal............................................................................... 13-101

D. Appellate Counsel in Appeals From Adoption Decrees........................................................ 13-102

E. Ability of Appellate Court to Overlook Appeal’s Procedural Defects.................................. 13-103

XII. POSTADOPTION CONTACT............................................................................................. 13-104

A. Statutes.................................................................................................................................. 13-104

1. Non-enforceable Postadoption Contact With Birth Parents........................................... 13-104

2. Enforceable Postadoption Contact With Birth Parents................................................... 13-104

3. Postadoption Birth Sibling Contact................................................................................. 13-105

B. Case Law.............................................................................................................................. 13-106

XIII. POSTADOPTION FINANCIAL ASSISTANCE FOR ADOPTIVE FAMILIES

A. Overview................................................................................................................................ 13-107

B. Definitions............................................................................................................................. 13-108

C. Eligibility.............................................................................................................................. 13-109

1. Eligibility for Title IV-E Adoption Assistance Program................................................ 13-111

2. Eligibility for State Adoption Subsidy............................................................................ 13-111

3. Eligibility for Medicaid................................................................................................... 13-112

4. Eligibility For Nonrecurring Adoption Expenses........................................................... 13-112

D. Duties and Responsibilities of Adoptive Parents.................................................................. 13-113

E. Duties and Responsibilities of DCS...................................................................................... 13-114

F. Payment Under Adoption Assistance Agreements................................................................ 13-115

G. Continuation of Adoption Assistance Past Age Eighteen..................................................... 13-115

H. Modification of Adoption Assistance Agreements................................................................ 13-116

I. Suspension of Adoption Assistance Agreements.................................................................. 13-116

J. Termination of Adoption Assistance Agreements................................................................ 13-117

XIV. REVOCATION OF ADOPTION......................................................................................... 13-118

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CHAPTER 13

ADOPTION

I. OVERVIEW OF CHAPTER

Adoption is the legal process which creates a new, permanent parent-child relationship, and forever

severs a former biological parent-child relationship, as well as all other biological relationships that

hinged upon that parent-child relationship. Matter of Adoption of Thomas, 431 N.E.2d 506, 512

(Ind. Ct. App. 1982); Mariga v. Flint, 822 N.E.2d 620, 629-31 (Ind. Ct. App. 2005); In Re C.W.,

723 N.E.2d 956, 963 (Ind. Ct. App. 2000) (after child’s adoption, maternal grandparents no longer

held status as child’s grandparents).

When an adoption is granted, the parent-child relationship is terminated by operation of law;

consequently, an adoption decree has the effect of relieving the biological parents of all legal duties

and obligations to the adopted child and to divest the biological parents of all rights to the child. IC

31-19-15-1. After the adoption, the child may obtain a new birth certificate. IC 31-19-13-1.

There are some exceptions to this general rule of ending all rights and duties between a parent and a

child as a result of an adoption. For example, if the adoptive parent is married to a biological parent,

the parent-child relationship between that biological parent who is married to the adoptive parent

and the child is not affected by the stepparent's adoption. IC 31-19-15-2. Another example of an

exception to this rule includes agreed upon postadoption visitation or contact privileges, pursuant to

IC 31-19-16-1, and discussed more in this Chapter at XII.

There is often overlap between adoption cases and CHINS cases. If a permanency plan for a

CHINS includes adoption, some children's factual situations may allow for the filing of an adoption

petition requesting that the court dispense with the need for parental consent, instead of filing a

petition for the involuntary termination of the parent-child relationship in juvenile court. The

grounds for dispensing with parental consent are discussed in this Chapter at V.

Case law has provided rulings on and clarification to adoption law in Indiana. Some of the more

recent and major topics which case law has addressed include: subsequent adoptions by a second

parent and adoptions by unmarried couples; the jurisdictional tension between juvenile and probate

courts regarding jurisdiction of adoption of children adjudicated to be CHINS; irrevocably implied

consent by putative fathers; and the granting adoption petitions while an appeal of the termination of

the parent-child relationship is pending.

Indiana adoption statutes have been amended numerous times in significant ways. Some of the

changes in recent years include: (1) the ability to award adoption petitioners custody of the child

pending adoption, along with certain limitations (see this Chapter at III.G); (2) the imposition of

extra duties upon adoption agencies, county offices of family and children, and attorneys who

arrange adoptions (see this Chapter at IX); (3) the significant overhaul of all statutes and DCS

policies affecting postadoption financial assistance (see this Chapter at XIII); and (4) the inclusion

of certain subsets of grandparents as persons deserving of notice of an adoption (see this Chapter at

II.B.3).

II. JURISDICTION AND STANDING

II. A. Statutes

Probate courts have exclusive original jurisdiction over adoption matters in each Indiana

county that has a separate probate court. IC 31-19-1-2. See also In Re Adoption of J.T.D., 21

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N.E.3d 824 (Ind. 2014) (Court held that the statutory provision which gave exclusive

jurisdiction of all adoption matters to probate courts in any county that had a separate probate

court did not confer exclusive adoption jurisdiction on the Superior Court’s civil division). A

child born in one state who is sought to be adopted by a person in another state is subject to the

Interstate Compact on the Placement of Children (“ICPC”). IC 31-19-1-1. The ICPC is

codified at IC 31-28-4 and IC 31-28-6.

If a paternity action and an adoption petition regarding the same child are pending at the same

time, practitioners should consult IC 31-19-2-14. The court in which the petition for adoption

has been filed has exclusive jurisdiction over the child, and the paternity proceeding must be

consolidated with the adoption proceeding. IC 31-19-2-14(a). When the paternity and adoption

cases are consolidated, the court having jurisdiction over the paternity action must comply with

IC 31-14-21-9(b) (conduct an initial hearing not more than 30 days after the child’s birth or the

filing of the paternity petition, whichever occurs later, except as provided under IC 31-14-21-

13). The court having jurisdiction over the paternity action must also comply with IC 31-14-

21-9.1 (order all parties to undergo blood or genetic testing, except as provided under IC 31-

14-21-13), and IC 31-14-21-9.2 (subject to IC 31-19-2-14 and IC 31-14-21-13, court must

conduct a final hearing to determine paternity not later than 90 days after the initial hearing

and issue its ruling not later than fourteen days after the final hearing). IC 31-14-21-9.1(b)

states that if the alleged father is unable to pay for the initial costs of the testing, the court shall

order that the tests be paid by the state department of health from putative father registry fees

collected under IC 31-19-2-8(2). The department of health may recover the costs from an

individual found to be the biological father.

Many of the above statutes list exceptions provided by IC 31-14-21-13. This statute provides that

when a paternity court has notice that an adoption court assumed jurisdiction of a paternity

matter, the paternity court must stay all paternity proceedings until further order from the

adoption court.

If a paternity proceeding was consolidated into an adoption petition, and the adoption petition is

later dismissed, practitioners should consult IC 31-19-2-14(b) and (c). If the petition for adoption

is dismissed, the court hearing the consolidated adoption and paternity proceeding shall determine

who has custody of the child under IC 31-19-11-5. Following a dismissal of the adoption petition,

the adoption court may: (1) retain jurisdiction over the paternity proceeding; or (2) return the

paternity proceeding to the court in which it was originally filed. If the paternity proceeding is

returned to the original paternity court, the paternity court assumes jurisdiction over the child,

subject to any provisions of the consolidated court’s order under IC 31-19-11-5.

Venue is addressed at IC 31-19-2-2. A petition for adoption may be filed with the clerk of court

having probate jurisdiction in any of the following counties: (1) the county where the adoption

petitioner resides; (2) the county where the licensed child placing agency or governmental agency

with custody of the child is located; or (3) the county where the child resides. See this Chapter at

II.B.1. and III.B. for more discussion of venue.

II. B. Case Law

II. B. 1. Jurisdiction

A probate court has exclusive original jurisdiction over adoption cases in each Indiana county

that has a separate probate court. IC 31-19-1-2. See In Re Adoption of J.T.D., 21 N.E.3d

824 (Ind. 2014) (Court held that: (1) the statutory provision which gave exclusive jurisdiction

of all adoption matters to probate courts in any county that had a separate probate court did

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not confer exclusive adoption jurisdiction on the Superior Court’s civil division; (2) the

Superior Court’s four divisions were for administrative convenience and venue, rather than

imposition of jurisdictional limits; and (3) the Superior Court lacked discretion to retain

venue of the proposed adoptions, and was obligated to transfer the case to the Juvenile

Court); Holderness v. Holderness, 471 N.E.2d 1157 (Ind. Ct. App. 1984) (holding that the

dissolution court lack jurisdiction to approve the father’s voluntary termination of parental

rights); Devlin v. Peyton, 946 N.E.2d 605, 607 (Ind. Ct. App. 2011) (holding that Dissolution

Court erroneously addressed issues involving Stepfather’s petition to adopt the children, and

since Stepfather’s adoption petition was pending in Adoption Court, Dissolution Court could

not properly exert jurisdiction over the issue); see also Mariga v. Flint, 822 N.E.2d 620, 629-

31 (Ind. Ct. App. 2005) (although Adoptive Mother and Biological Mother were now

separated, Indiana statutes do not predicate the court’s jurisdiction upon the parents’ status as

to each other; Adoptive Mother had assumed all rights and duties of a biological parent

through the adoption, and the court with proper jurisdiction to address child support was the

superior court, as both common law and statutes vest superior courts with jurisdiction to

award child support).

Subject matter jurisdiction over an adoption is not lost if there are deficiencies in the adoption

petition. See Matter of Adoption of H.S., 483 N.E.2d 777, 781 (Ind. Ct. App. 1985).

Jurisdictional conflicts between a CHINS case and an adoption case are highly fact sensitive.

If there is no termination of parental petition filed, and the permanency plan is still

reunification, then the probate court may lack jurisdiction to hear and issue an order on the

adoption petition. See In Re Adoption of H.L.W., Jr., 931 N.E.2d 400 (Ind. Ct. App. 2010)

(Court found that trial court erred when it determined that DCS’s withholding of consent to

foster parents’ adoption was not in child’s best interest; DCS was working with child’s father

on reunification and Father was complying with DCS services); In Re Adoption of E.B., 723

N.E.2d 4 (Ind. Ct. App. 2000) (because CHINS petition with goal of reunification of child

and father was pending, the probate court lacked jurisdiction to hear the foster parents’

adoption petition; fact situation was outside the holding of prior case law allowing probate

court to hear adoption petition). See also Chapter 3, II.G.1 for further discussion on the

resolution of the jurisdictional conflict between CHINS, TPR, and adoption cases involving

the same child or children.

If a termination of parental rights petition has been filed, or if the plan is not reunification,

then a probate court may be able to hear the adoption petition and issue orders upon it. See In

Re Adoption of H.N.P.G., 878 N.E.2d 900, 904, 906 (Ind. Ct. App. 2008) (court with

probate jurisdiction may adjudicate adoption matter simultaneously with juvenile court’s

adjudication of CHINS proceeding where, as here, DCS does not pursue reunification in

CHINS proceeding), trans. denied; In Re Adoption of J.D.B., 867 N.E.2d 252, 255 n.5 (Ind.

Ct. App. 2007) (Court held probate court had jurisdiction to rule on adoption petition despite

pendency of CHINS and TPR proceedings in juvenile court with regard to same child, but,

citing K.S. v. State, 849 N.E.2d 538, 541 (Ind. 2006), Court noted that “jurisdictional” issue

raised might be more properly explored in terms of comity), trans. denied; Matter of

Adoption of T.B., 622 N.E.2d 921 (Ind. 1993) (initiation of a CHINS proceeding, over which

the juvenile court had exclusive jurisdiction, did not deprive the circuit court which had

granted the adoption of the child of jurisdiction over a petition to revoke the adoption).

The case of Infant Girl W. is perhaps the most edifying case as to how to resolve the tension

between a CHINS case where reunification is not the permanency plan and a competing

adoption petition. In In Re Infant Girl W., 845 N.E.2d 229, 238-41 (Ind. Ct. App. 2006),

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trans. denied sub nom. In Re Adoption of M.W., 851 N.E.2d 961 (Ind. 2006) (Dickson, J.

dissenting), Morgan County had placed the child with Foster Parents under a CHINS

proceeding. Foster Parents petitioned for adoption in Marion County, which was granted

without the consent of the Morgan County OFC. On appeal, Morgan County OFC argued that

the Marion Probate Court should not have granted the petition for adoption because Probate

Court was prevented from exercising jurisdiction over the case as a result of the pending

CHINS case in Morgan Circuit Court. The Court held first that OFC had waived the

jurisdiction argument by failing to raise a timely and specific objection. The Court also

addressed the tension between the adoption, CHINS, and Termination of the Parent-Child

relationship cases. The Court noted that probate courts have exclusive jurisdiction over all

adoption matters and that juvenile courts have no authority to create permanent parent-child

ties through adoption. The Court was persuaded that the adoption consent statute, IC 31-19-9-

1(a)(3), which gave OFC as the child’s legal guardian an opportunity to consent to the

adoption, enabled Probate Court to retain exclusive jurisdiction over an adoption proceeding

even as it respected the opinion of OFC as the child’s legal guardian and the petitioner in the

simultaneous TPR proceeding. The Court further found that the mere fact that there were

pending CHINS and TPR proceedings did not in any way divest the Probate Court of its

exclusive jurisdiction over all adoption proceedings. The Court concluded that the Probate

Court had properly exercised jurisdiction over the adoption petition.

See Chapter 3, II.G.1 for further discussion on the resolution of the jurisdictional conflict

between CHINS, TPR, and adoption cases involving the same child or children.

Venue of an adoption petition has also been addressed by case law. See:

In Re Adoption of W.M., 55 N.E.3d 386, 388-9 (Ind. Ct. App. 2016), in which the Court

affirmed the order of the Greene Circuit Court transferring Grandparents’ adoption

petition to the Monroe Circuit Court, where the child’s CHINS case, the termination of

parental rights case, and Aunt and Uncle’s adoption petition were pending. Greene

Circuit Court did not have exclusive jurisdiction over the adoption proceeding, and the

preferred venue for the case was Monroe Circuit Court. Grandparents properly filed their

adoption petition in Greene County because that was their county of residence; Aunt and

Uncle also properly filed their adoption petition in Monroe County, where the child was a

ward. Monroe Circuit Court was not required to divest itself of jurisdiction just because

Grandparent’s adoption petition was pending in Green Circuit Court. Since neither court

had exclusive jurisdiction, the case should be decided in the court that was the preferred

venue. The preferred venue for this case was the Monroe Circuit Court because the

child’s CHINS and termination of parental rights cases and Aunt and Uncle’s adoption

petition were all pending in the Monroe Circuit Court.

In Re Adoption of Z.D., 878 N.E.2d 495, 497-98 (Ind. Ct. App. 2007), where the Court

held that (1) IC 31-19-2-2 permitted adoption petitions to be filed in both Benton County

and Tippecanoe County and, under Ind. Trial Rule 75(A), preferred venue was in

Tippecanoe County; and (2) Tippecanoe Circuit Court was not required to divest itself of

jurisdiction and render its decree of adoption by Foster Parents void because

grandmother’s petition to adopt the child was pending in Benton County. The Court

noted that there was no longer a statute requiring either the Tippecanoe Circuit Court or

the Tippecanoe County DCS to provide notice of that adoption proceeding.

In Re Adoption of Infants H., 904 N.E.2d 203, 206-07 (Ind. 2009), reh’g denied,

935 N.E.2d 146 (Ind. 2009), where the Court held that under these facts—a New Jersey

resident who came to Indiana to adopt twins born in Indiana to a South Carolina woman

who had been inseminated with biological material from California—the adoption court

should transfer the matter to the county where the children are located. The Court noted

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further that (1) when the petitioner is not an Indiana resident, venue lies only in the

county in which the LCPA or governmental agency with custody of the child is located,

or in the county where the child resides, and (2) venue is not jurisdictional but courts

should still observe the directives of the statute.

The Interstate Compact on the Placement of Children (ICPC) must be followed and all of its

detailed requirements addressed and met, when it actually applies to the case. See In Re

Adoption of Infants H., 904 N.E.2d 203, 206-07 (Ind. 2009), reh’g denied, 935 N.E.2d 146

(Ind. 2009) (reversed and remanded in part due to lack of compliance with the ICPC; holding

that all requirements of the ICPC had not been properly addressed and met, and without such

compliance, the matter must be remanded).

For case law on when the ICPC is not implicated, see In Re Adoption of M.L.L., 810

N.E.2d 1088, 1092-93 (Ind. Ct. App. 2004) (holding that the trial court had not erred when it

found that Mother had abandoned the child for purposes of the UCCJA, as Mother had shown

a “settled purpose to forego all parental duties and relinquish all parental claims to the child”;

also holding that Tennessee did not retain jurisdiction over the matter pursuant to the ICPC,

as the ICPC does not apply to the sending or bringing of a child into a receiving state by the

child’s parent and leaving the child with a non-agency guardian, and since Mother had sent

the child to Indiana to live with relatives whom she designated as guardians, this was not

governed by the ICPC).

II. B. 2. ICWA Jurisdiction

In Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2559-64 (2013), an ICWA decision, the

U.S. Supreme Court reversed the judgment of the South Carolina Supreme Court. The U.S.

Supreme Court remanded the case for further proceedings not inconsistent with its opinion.

Baby Girl was classified as an Indian because she is 3/256 Cherokee. Biological Father was a

member of the Cherokee Nation. Birth Mother and Biological Father broke off their

engagement, and eventually, Biological Father told Birth Mother that he relinquished his

rights. Birth Mother decided to put Baby Girl up for adoption, and her attorney contacted the

Cherokee Nation to determine whether Biological Father’s status, but misspelled Biological

Father’s first name and incorrectly stated his birthday. The Cherokee Nation could not verify

Biological Father’s membership in the tribal records. Birth Mother consented to Baby Girl’s

adoption by Adoptive Couple. Biological Father provided no financial assistance at any point,

he was served with notice of the adoption, and he signed papers stating that he accepted

service and that he was not contesting the adoption. He later changed his mind and contacted

a lawyer. Around the same time, the Cherokee Nation identified Biological Father as a

registered member and concluded that Baby Girl was an “Indian Child” as defined in the

Indian Child Welfare Act (ICWA). The Cherokee Nation intervened in the litigation.

A trial took place in the South Carolina Family Court, by which time Baby Girl was almost

two years old. The Family Court concluded that Adoptive Couple had not carried the

heightened burden under section 1912(f) of the ICWA, which provides that “[n]o termination

of parental rights may be ordered in such proceeding in the absence of a determination,

supported by evidence beyond a reasonable doubt.... 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 in opinion). The Family Court denied Adoptive Couple’s petition for

adoption, awarded custody to Biological Father, and at the age of 27 months, Baby Girl was

handed over to Biological Father, whom she had never met. The South Carolina Supreme

Court affirmed the Family Court’s denial of the adoption petition and awarded custody of

Baby Girl to Biological Father.

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The U.S. Supreme Court said that it is undisputed that, had Baby Girl not been 3/256

Cherokee, Biological Father would have had no right to object to her adoption under South

Carolina law. The U.S. Supreme Court did not decide whether Biological Father is a

“parent”, but assuming for the sake of argument that he is a “parent”, the Court held that

neither section 1912(f) nor 1912(d) bars the termination of his parental rights. The Court held

that the phrase “continued custody of the child” in section 1912(f) refers to custody that a

parent already has (or at least had at some point in the past) and does not apply where the

Indian parent never had custody (emphasis in opinion). The Court observed that this reading

comports with the statutory text, which demonstrates that the ICWA was designed primarily

to counteract the unwarranted removal of Indian children from Indian families (emphasis in

opinion). The Court said that the ICWA’s primary goal is not implicated when and Indian

child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole

custodial rights. The Court opined that section 1912(f) does not apply in cases where the

Indian parent never had custody of the Indian child.

Section 1912(d) applies only when an Indian family’s “breakup” would be precipitated by

terminating parental rights. The Court said that the term “breakup” refers in this context to

“[t]he discontinuance of a relationship,” or “an ending as an effective entity”. When an Indian

parent abandons an Indian child prior to birth and that child has never been in the Indian

parent’s legal or physical custody, there is no “relationship” to be discontinue[d]” and no

“effective entity” to be “end[ed]” by terminating the Indian parent’s rights. In such a

situation, the “breakup of the Indian family” has long since occurred, and section 1912(d) is

inapplicable. The Court observed that this interpretation is consistent with the explicit

congressional purpose of setting certain “standards for the removal of Indian children from

their families,” section 1902 and with Bureau of Indian Affairs Guidelines.

Finally, the Court opined that section 1915(a)’s adoption-placement preferences are

inapplicable in cases where no alternative party has formally sought to adopt the child. The

Court said that Biological Father is not covered by section 1915(a) because he did not seek to

adopt Baby Girl, instead he argued that his parental rights should not be terminated (emphasis

in opinion). The Court noted that parental grandparents never sought custody of Baby Girl

and no other members of the Cherokee Nation or “other Indian families” sought to adopt her.

ICWA jurisdiction was also thoroughly addressed and discussed in Matter of Adoption of

T.R.M., 525 N.E.2d 298 (Ind. 1988), where the Porter Circuit Court was found to have good

cause for denying transfer of jurisdiction to the tribal court of an Indian child who had never

lived on the reservation and had been voluntarily placed with a non-Indian adoptive family by

her Indian birth mother. The Court first addressed §1911(a), which gives an Indian trial court

exclusive jurisdiction if the child resides or is domiciled within the reservation or if the tribal

court has wardship of the child. The trial court found that neither Mother nor the child were

residing or domiciled within the reservation, the wardship order that the tribal court entered

was over a year after the child’s birth, when the child had already been abandoned by Mother

and was not living or domiciled within the reservation, and several months after the Tribe had

filed habeas corpus petitions. Since the record supported these findings, §1911(a) did not give

the tribal court exclusive jurisdiction. The Court then addressed §1911(b), which would

require a transfer of the matter to a tribal court “absent good cause to the contrary.” The

Court held that the trial court’s findings that not only was there good cause to the contrary,

but also that it was in the best interests of the child not to grant transfer to a tribal court, were

supported by the record. Mother and the tribe also asserted several other jurisdictional

arguments, all of which the Court dismissed or declined to accept.

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ICWA may not apply if the removal of a child was not a removal from custody within an

Indian family. See In Re Adoption of D.C., 928 N.E.2d 602, 605-6 (Ind. Ct. App. 2010),

trans. denied (affirming trial court determination that ICWA was not applicable because the

proposed adoption would not remove a child from an Indian home; holding that Indiana

Supreme Court had already determined that ICWA is inapplicable where there was no

“removal” from custody within an Indian family as contemplated by 24 U.S.C. sections 1902

and 1912; Court declined to give credit to Father’s argument that he, child’s sister, and the

child constituted an Indian family, where the child had never lived with Father and the child

was not enrolled as a member of the tribe); Matter of Adoption of T.R.M., 525 N.E.2d 298,

303 (Ind. 1988) (holding that ICWA did not apply to the case; although parties stipulated

that the child was an Indian child, the Court noted that ICWA was only applicable when the

matter dealt with the removal of Indian children from their families, and in this case, other

than the first five days of her life, the child had lived with adoptive parents for her entire life

of seven years; Court opined that since 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.’”)

See Chapter 2 at III.C. for further discussion of the Indian Child Welfare Act.

II. B. 3. Standing

Only a person entitled to notice of an adoption under IC 31-19-4 or IC 31-19-4.5 has standing

to contest an adoption. IC 31-19-10-1(a). People who are entitled to notice is discussed more

in this Chapter at VII.

Generally, persons whose consent is needed have standing to participate in an adoption

hearing or to intervene in the case. IC 31-19-9-1 provides for categories of people whose

consent is needed; these people have standing an adoption case.

Thus, if a person is given by statute the right to notice or a chance to object to or consent to

an adoption, they have standing. Beyond biological parents, this can also include guardians,

stepparents who have been granted custody, and persons who qualify as de facto custodians.

See In Re Adoption of L.C.E, 940 N.E.2d 1224, 1226-8 (Ind. Ct. App. 2011) (holding that

since Stepfather was the child’s legal custodian, the trial court erred when it failed to consider

Stepfather’s objection and grant his motion to vacate the adoption; Stepfather had not been

given notice or a chance to intervene in the adoption, and IC 31-19-9-1(a)(3) requires written

consent of each person having lawful custody of the child before a child may be adopted.

Since Stepfather was the lawful custodian of the child, his consent was required for

adoption); In the Matter of the Adoption of B.C.H., 22 N.E.3d 580, 585-6 (Ind. 2014)

(holding that for purposes of IC 31-19-9-1(a)(3), “lawful custody” encompasses individuals

who fit the statutory definition of a de facto custodian at the time a petition for adoption is

filed. Maternal Grandparents were lawful custodians of the child, and as such, were entitled

to notice and an opportunity to consent to the adoption proceedings. “Lawful” did not just

mean via court order, but rather meant something that is not contrary to law, and therefore,

“lawful custody means custody that is not unlawful.” The use of this language likely reflected

the General Assembly’s policy decision that adoption trial courts should be able to hear, and

want to be able to hear from a party “with care, custody, and control of the child in

question—regardless of whether the party’s responsibility derives from a court order”).

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DCS may also have standing to intervene in and participate in an adoption case; if a child is a

ward of DCS, then DCS is an “agency or local office having lawful custody of the child

whose adoption is being sought” and their consent is needed. IC 31-19-9-1(3). See In Re

Infant Girl W., 845 N.E.2d 229, 238 (Ind. Ct. App. 2006), trans. denied sub nom. In Re

Adoption of M.W., 851 N.E.2d 961 (Ind. 2000) (Dickson, J. dissenting) (Court held that OFC

was a party to the adoption case with standing to appeal; Court noted the following:

(1) normally OFC’s consent to the adoption would have been required because it had legal

custody of the child and was responsible for the child’s care and placement; (2) OFC was

entitled to receive notice of the pending adoption pursuant to IC 31-19-2.5-3 and IC 31-19-9-

1(a)(3); and (3) OFC had been heavily involved in the child’s adoption at every key juncture,

as it should have been because it was the child’s legal guardian).

Persons who are not entitled to notice of an adoption, or are not entitled to object or consent

to an adoption generally do not have standing in an adoption matter. See In Re Adoption of

Z.D., 878 N.E.2d 495, 498 (Ind. Ct. App. 2007) (it is well-settled that “noncustodial

grandparents do not have standing to intervene in adoption proceedings”); In Re Adoption of

J.B.S., 843 N.E.2d 975, 978-79 (Ind. Ct. App. 2006) (holding that while Maternal Aunt had

been granted visitation privileges in a guardianship case, Maternal Aunt was not a party in the

adoption, had no standing to participate in the adoption proceedings, and no standing to

object to those proceedings once final; the Court further opined that maternal aunts were not

comparable to grandparents, who under some circumstances can petition a court for visitation

rights, as no such right exists for aunts).

Although grandparents who might be entitled to grandparent visitation rights may, in some

circumstances, qualify as persons to whom notice of an adoption must be given, the notice

itself is limited to the issue of visitation, and may not be used to contest an adoption. IC 31-

19-4.5-1.5(1). In effect, the statute that provides that they must be given notice does not give

them standing. IC 31-19-4.5-1(3); IC 31-19-4.5-1.5(1).

III. PETITIONING FOR ADOPTION

III. A. Who May Petition

III. A. 1. In General

A husband and wife must join in an adoption petition, unless it is a stepparent adoption; in

this case, only the stepparent needs to petition to adopt. IC 31-19-2-2. If a person who

filed to adopt a child decides not to adopt or is unable to adopt the child, the adoption

petition can be amended, or a second petition can be filed in the same action to substitute

another person as the petitioner for adoption. IC 31-19-2-2(c). The amended petition or

second petition relates back to the date of the original petition. IC 31-19-2-2.

Indiana residents may petition to adopt any child, but non-Indiana residents may only

petition in Indiana to adopt a “hard to place” child. IC 31-19-2-2 and -3. Non-Indiana

residents may petition to adopt an Indiana child who is not hard to place, but the adoption

should be filed in the petitioner's home state and the Interstate Compact at IC 31-28-4 and

IC 31-28-6 applies. A “hard to place” child is a child who is “disadvantaged because of

ethnic background, race, color, language, physical, mental or medical disability, age, or

because the child is a member of a sibling group that should be placed in the same home.”

IC 31-9-2-51.

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III. A. 1. a. Case Law On Unmarried Couple Petitions or Same Sex Couple Petitions

A second parent who wishes to adopt a child does not need to be married to the biological

parent; this includes both unmarried opposite sex couples as well as same-sex couples.

In Re Adoption of J.T.A., 988 N.E.2d 1250, 1251-4 (Ind. Ct. App. 2013), trans. denied,

where the Court found that the trial court erred in determining that Father’s parental

rights would have been terminated if Fiancée’s adoption petition had been granted;

holding that it was clear that both Father and Fiancée were acting as parents to the child,

that this was in intra-family adoption, that neither Fiancée nor Father wished to have

Father’s parental rights terminated by the adoption, and that “it would be absurd and

contrary to the intent of the legislature to divest Father of his parental rights where he

would continue to live in a family unit with the [c]hild and parent the [c]hild”) (affirmed

on other grounds).

In Re Adoption of A.M., 930 N.E.2d 613, 621 (Ind. Ct. App. 2010), where the Court

concluded that the trial court erred in denying Grandfather’s petition to adopt his

granddaughter. Both Mother and Father consented to the adoption, but the petition

included that Mother was not relinquishing her legal maternal rights, resulting in

Grandfather and Mother being co-parents of the child. The Court looked to IC 31-10-2-1,

which provides that it is the “policy of this state and the purpose of this title to: (1)

recognize the importance of family and children in our society; (2) recognize the

responsibility of the state to enhance the viability of children and family in our society…

(4) strengthen family life by assisting parents to fulfill their parental obligations”. While

the legislature did not define “family,” IC 31-9-2-44.5 provides that “[a]n individual is a

‘family or household member’ of another person if the individual…is related by blood or

adoption to the other person.” The Court said that Grandfather is considered family under

the statute. The Court noted that: (1) Grandfather is the child’s biological grandfather; (2)

Mother and Grandfather live only fifteen minutes apart; (3) the child stays overnight with

Grandfather almost every weekend and has contact with Grandfather three or four times

per week; (4) Grandfather takes the child to church, dance class, and the park;

(5) Grandfather provides discipline and financial support. The Court said, “[i]n summary,

the record reveals that Grandfather and Mother are both acting as parents.”

In Re Infant Girl W., 845 N.E.2d 229, 242-44 (Ind. Ct. App. 2006), trans. denied sub

nom. In Re Adoption of M.W., 851 N.E.2d 961 (Ind. 2006) (Dickson, J. dissenting),

where the Court concluded that, under the Indiana Adoption Act, an unmarried couple

may file a joint petition to adopt a minor child. The same sex foster parents jointly

petitioned to adopt their eighteen-month-old foster child who had resided with them since

she was two days old; the adoption was granted over DCS’s objections. This issue is not

limited by or related to the sexual orientation of the would-be adoptive parents. IC 31-19-

2-2(a) provides that “a resident of Indiana” may file a petition to adopt a child under the

age of eighteen. The Court stated that it is a well-settled rule of statutory construction that

words used in their singular also include their plural. Upon examining the statute

regarding adoption by married couples, IC 31-19-2-4, the Court concluded that the

purpose of requiring married persons to both petition for adoption was for public policy

reasons to guarantee harmony on the part of the adoptive parents. The Court opined that it

does not follow that the legislature was simultaneously denying an unmarried couple the

right to petition for adoption jointly.

Mariga v. Flint, 822 N.E.2d 620, 626-27 (Ind. Ct. App. 2005), the Court applied In Re

Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) retroactively in response to

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the former domestic partner adoptive mother’s contention in her 2004 petition to vacate

adoption that the trial court had lacked authority to grant her petition for adoption of her

domestic partner’s biological children in 1997. The Court stated that generally,

“pronouncements” of common law made in rendering judicial opinions of civil cases

have retroactive effect unless such pronouncements impair contracts made or vested

rights acquired in reliance on an earlier decision.

In Re Adoption of K.S.P., 804 N.E.2d 1253, 1257-60 (Ind. Ct. App. 2004), where the

Court reversed and remanded the trial court’s denial of a domestic partner’s petition to

adopt the biological children of her same sex partner. The trial court denied the domestic

partner’s adoption petition because of its interpretation that IC 31-19-15-1 provided that

Mother would be divested of all rights to the children after the adoption. The Court

concluded that, in light of the purpose and spirit of Indiana’s adoption laws, the

legislature could not have intended a “destructive and absurd” result of divesting

Mother’s right to her children by granting the domestic partner’s adoption petitions. The

Court stated that resolution of the instant case affected many possible benefits and legal

entitlements for the children and that entitlement to benefits from a second parent cannot

rationally hinge on whether the child’s natural parent is a biological or adoptive parent.

Allowing continuation of the rights of both the biological and adoptive parents, where

compelled by the best interests of the child, was the only rational result.

In Re Adoption of M.M.G.C., 785 N.E.2d 267, 270-71 (Ind. Ct. App. 2003), where the

Court concluded that, consistent with the General Assembly’s policy of providing stable

homes through adoption, Indiana’s common law permits a second parent to adopt a child

without divesting the rights of the first adoptive parent. In this case, one member of

same-sex domestic partnership had adopted children, her partner sought to adopt the

children as a second parent, and the trial court had denied the petition.

III. A. 1. b. Substitution of Adoption Petitioners

IC 31-19-2-2(c) provides that, subject to IC 31-19-9-3, if a person who filed to adopt a

child decides not to adopt or is unable to adopt the child, the adoption petition can be

amended, or a second petition can be filed in the same action to substitute another person

as the petitioner for adoption. This statute also provides that the amended petition or

second petition relates back to the date of the original petition.

IC 31-19-9-3 addresses substitution of an adoption petitioner as it pertains to the mother’s

consent. IC 31-19-9-3(b) states that an adoption petitioner may be substituted under IC

31-19-2-2 if the mother executed a written consent to the substitution, or the initial

consent contains a statement by the mother that she voluntarily agrees to a substation of

adoption petitioners without her additional consent. This statute further provides that the

mother’s consent “is not conditional regardless of whether the mother consents or does

not consent to the substitution of petitioners under this subsection.” For case law on

blanket consents, see Johnson v. Cupp, 274 N.E.2d 411, (Ind. Ct. App. 1971).

There are also statutes which directly relate to a putative father’s attempt to establish

paternity and the possibility of a failed adoption. IC 31-19-9-17(b) bars a putative father

whose consent to adoption is implied under IC 31-19-9-15 from establishing paternity in

Indiana or in any other jurisdiction unless the putative father submits an affidavit

prepared by the licensed child placing agency or the attorney that served the putative

father with pre-birth notice of the adoption. The affidavit must state that neither a petition

for adoption nor placement of the child in a prospective adoptive home is pending. These

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requirements are jurisdictional and must be strictly adhered to by the putative father and

the court. IC 31-19-9-17(c) states: “An individual who is otherwise barred from

establishing paternity under this article may establish paternity in relation to a child if an

adoption for the child is not pending or contemplated. A petition for adoption that is not

filed or a petition for adoption that is dismissed is not a basis for enabling an individual to

establish paternity under this section unless the requirements of subsection (b) are

satisfied.” Please note that case law such as In Re Adoption of Infant Female Fitz, 778

N.E.2d 432, 438-39 (Ind. Ct. App. 2002 has been rendered null, since this decision was

issued before the amendments to IC 31-19-9-17.

III. A. 1. c. DCS Initiates Adoption

DCS could initiate an adoption proceeding for a CHINS whose permanency plan of

adoption has been approved by the court. See IC 31-34-21-5.8(b)(2) which states that

DCS shall make reasonable efforts to complete whatever steps are necessary to finalize

the permanent placement of the child in a timely manner.

The Court explored this question in In Re Parent-Child Relationship of S.M., 840

N.E.2d 865, 871-72 (Ind. Ct. App. 2006), where DCS argued that Putative Father did not

have standing to challenge the termination of his parental rights by the juvenile court

because he had taken no action to establish paternity. The Court discussed IC 31-35-1-4.5

(voluntary termination statute) and IC 31-19-9-15(a) (adoption statute), both of which

state that the putative father’s consent to adoption is irrevocably implied without further

court action in certain situations when the putative father has failed to file a paternity

action. The Court contrasted these statutes with the involuntary termination statutes at

IC 31-35-2, which do not require the putative father to take any steps to establish his

paternity in order to contest a termination action where an adoption is not pending. The

Court opined “[w]here a child services agency has developed a plan for adoption of a

child in a particular home, that agency is free to choose between these two statutory

frameworks in proceeding with the termination of a putative father’s parental rights.”

Consequently, that DCS could initiate adoption proceedings and, under IC 31-35-1-4.5,

provide the putative father with notice of the proceedings. Then, if the putative father

failed to take steps to establish his paternity under 31-35-1-4.5, he would be presumed to

consent to the adoption, and DCS could proceed unhindered by any claim he might

thereafter bring.

Practice Note: Practitioners are cautioned that IC 31-35-1-4.5 and IC 31-19-9-15(a)

discussed in In Re Parent-Child Relationship of S.M., 840 N.E.2d 865 (Ind. Ct. App.

2006), apply only in limited factual situations where the putative father has received

actual pre-birth notice under IC 31-19-3 of Mother’s intention to proceed with adoptive

placement of the child. Most CHINS cases do not involve pre-birth adoption notices or

mothers consenting to adoption. Practitioners must be careful to send the statutorily

required adoption notice to the putative father which is appropriate to the facts of the

individual situation. Also, there are ethical conflict of interest issues to consider for

practitioners representing both DCS and the adoption petitioners. See Ind. Professional

Conduct Rules 1.7 and 1.8. Conflict of interest issues could arise when there is a dispute

between DCS and the adoption petitioners regarding availability and amounts of adoption

subsidy or adoption assistance or postadoption issues regarding parental or birth sibling

contact.

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III. A. 2. Foster Parent Petitioners

Foster parents may petition for adoption. For issues on jurisdiction between CHINS

proceedings, termination of the parent-child relationship proceedings, and adoption

proceedings, see Chapter 3 at II.D and II.F.

For case law in which a foster parent’s petition for adoption was granted, see:

In Re Adoption of A.S., 912 N.E.2d 840, 850 (Ind. Ct. App. 2009) (adoption petitions of

Second Foster Mother and her adult daughter granted; Court concluded that parties whose

consent is required for an adoption to be granted may execute subsequent consents, and, here,

the biological parents and MCDCS executed subsequent consents allowing Second Foster

Mother and her adult daughter to adopt the children, which resulted in their petitions being

supported by the necessary consents);

In Re Adoption of L.M.R., 884 N.E.2d 931 (Ind. Ct. App. 2008) (Court affirmed trial

court’s grant of adoption petition of child’s former foster mother and denial of adoption

petition of child’s paternal grandparents; trial court properly determined that DCS failed to

act in child’s best interest by refusing to consent to former foster mother’s adoption);

In Re Adoption of H.N.P.G., 878 N.E.2d 900, 904, 906 (Ind. Ct. App. 2008) (Court

affirmed probate court’s grant of foster parents’ petition to adopt child where foster parents

proved that Father was unfit to be parent and adoption of child by foster parents was in

child’s best interests), trans. denied;

In Re Adoption of Z.D., 878 N.E.2d 495, 497 (Ind. Ct. App. 2007) (adoption petition of

foster parents granted; under the circumstances of this case, Tippecanoe Circuit Court was

not required to divest itself of jurisdiction and render its decree of adoption void because

Dawson’s petition to adopt the child was pending in Benton County);

In Re Adoption of J.D.B., 876 N.E.2d 252 (Ind. Ct. App. 2007) (in adoption case foster

parents proved that father’s consent to adoption was not needed because child was born out

of wedlock and conceived as a result of sexual misconduct with a minor; DCs consented to

foster parents’ adoption), trans. denied;

In Re Infant Girl W., 845 N.E.2d 229 (Ind. Ct. App. 2006), trans. denied sub nom. In Re

Adoption of M.W., 851 N.E.2d 961 (Ind. 2006) (Dickson, J. dissenting) (Court affirmed the

Marion Probate Court’s grant of the unmarried, same sex foster parents’ petition for adoption

of their eighteen-month-old foster child. The Morgan County OFC had filed a CHINS

petition shortly after the child’s birth because the child’s mother decided to place the child

for adoption. The Morgan County OFC objected to the adoption, but the Marion Probate

Court found that the reasons for OFC’s refusal to consent to the adoption were not in the

child’s best interests, and, consequently, that OFC’s consent was not required);

In Re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999) (a foster parent, with the

consent of DFC, adopted a child who was in the custody of DFC; the probate court

dispensed with the birth mother’s consent due to her failure to communicate significantly

with the child. The Court of Appeals affirmed the adoption).

For case law where a foster parent’s petition for adoption was ultimately denied, see:

In Re Adoption of J.S.S., 61 N.E.3d 394 (Ind. Ct. App. 2016) (Court held that the trial court

did not err in determining that Foster Parents failed to meet their burden of proof to show that

Father’s consent to the adoption was not necessary. Foster Parents were required to show by

clear and convincing evidence that Father’s consent was not required under IC 31-19-9-8(a),

and they did not);

In Re Adoption of C.B.M., 992 N.E.2d 687 (Ind. 2013) (Supreme Court vacated children’s

adoption by foster parents because adoption was based upon termination of natural mother’s

parental rights which had been reversed on appeal after adoption was granted);

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In Re Adoption of N.W.R., 971 N.E.2d 110 (Ind. Ct. App. 2012) (Court held that DCS’s

motion to withdraw consent to foster parents’ adoption so DCS could investigate alternative

placement with relative should have been granted by trial court);

In Re Adoption of H.L.W., Jr., 931 N.E.2d 400 (Ind. Ct. App. 2010) (Court found that trial

court erred when it determined that DCS’s withholding of consent to foster parents’ adoption

was not in child’s best interest; DCS was working with child’s father on reunification and

Father was complying with DCS services);

In Re Adoption of E.B., 733 N.E.2d 4 (Ind. Ct. App. 2000) (the Court affirmed the probate

court’s denial of an adoption petition by foster parents of an adjudicated CHINS on

jurisdictional grounds).

Regarding stays of proceedings, see A.D. v. Clark, 737 N.E.2d 1214 (Ind. Ct. App. 2000), in

which the Court affirmed the trial court’s order granting a stay of the involuntary termination

proceeding pending a hearing on the foster parent’s petition for adoption.

III. A. 3. Relative Petitioners and Sibling Placements

Case law provides that relatives have no preferential legal right to adopt, and that it is not

completely necessary for siblings to be adopted together. For case law on this topic, see

In Re Adoption of J.L.J, 4 N.E.3d 1189, 1199-1200 (Ind. Ct. App. 2014) (Court affirmed

trial court’s decision denying Grandmother’s petition for adoption, and granting Guardian’s

petition to adopt the children. The Court, quoting In Re Adoption of Childers, 441 N.E.2d

976, 980 (Ind. Ct. App. 1982), noted that a “[b]lood relationship, while a material factor, is

not controlling... Relatives have no preferential legal right to adopt.”);

In Re Adoption of A.S., 912 N.E.2d 840 (Ind. Ct. App. 2009) (Court affirmed adoption of

one of four siblings by foster mother and adoption of other three by foster mother’s adult

daughter)

In Re Adoption of L.M.R., 884 N.E.2d 931 (Ind. Ct. App. 2008) (Court affirmed trial court’s

grant of adoption petition of child’s former foster mother and denial of adoption petition of

child’s paternal grandparent, where child had two siblings, neither of whom was adopted by

foster mother)

In Re Adoption of Z.D., 878 N.E.2d 495, 498 (Ind. Ct. App. 2007) (when parental rights of

Father, petitioner’s son, were terminated, any of petitioner’s derivative due process rights

with respect to visitation, custody, or adoption were effectively extinguished)

In Re Adoption of B.C.S., 793 N.E.2d 1054, 1062-63 (Ind. Ct. App. 2003) (Court affirmed

the trial court’s order granting the adoption petition filed by Mother’s former long term

companion and denying Great-Aunt and Great-Uncle’s adoption petition, who had previously

adopted the child’s half-brother; Indiana law does not give preferential treatment to blood

relatives who seek to adopt a child, and Court determined that IC 31-19-8-6 while that

subsection could be read to imply a preference for placing sibling groups in the same home, it

by no means indicates that siblings must be placed in the same home, and that these half

siblings had not grown up in the same household)

In Re Adoption of I.K.E.W., 724 N.E.2d 245, 249 n.6 (Ind. Ct. App. 2000) (Court cited

Childers for the principle that it is well settled that relatives have no preferential legal right to

adopt in Indiana; Foster Parents’ adoption of child was reversed because the trial court failed

to notify Grandparents, who had also petitioned for adoption, of Foster Parents’ adoption

hearing);

In Re Adoption of Childers, 441 N.E.2d 976, 980 (Ind. Ct. App. 1982) (Court stated that

blood relationship, while a material factor, is not controlling. The controlling factor is the

best interests of the child).

See Chapter 3 at II.C.4 for further discussion.

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III. B. Where to File a Petition

Indiana residents may file their petition for adoption in their county of residence, in the

child’s county of residence, or in the county where the agency which has custody of the

child is located. IC 31-19-2-2(a). Non-residents may file their petition for adoption in the

child’s county of residence or in the county where the agency having custody of the child is

located. IC 31-19-2-3(a).

Case law regarding where to file an adoption petition includes:

In Re Adoption of W.M., 55 N.E.3d 386, 388-9 (Ind. Ct. App. 2016), in which the Court

affirmed the order of the Greene Circuit Court transferring Grandparents’ adoption petition to

the Monroe Circuit Court, where the child’s CHINS case, the termination of parental rights

case, and Aunt and Uncle’s adoption petition were pending. Greene Circuit Court did not

have exclusive jurisdiction over the adoption proceeding, and the preferred venue for the case

was Monroe Circuit Court. Grandparents were proper in filing their adoption petition in

Greene County, their county of residence; Aunt and Uncle also properly filed their adoption

petition in Monroe County, where the child was a ward. The Monroe Circuit Court was not

required to divest itself of jurisdiction just because Grandparent’s adoption petition was

pending in Green Circuit Court. Since neither court had exclusive jurisdiction, the case

should be decided in the court that was the preferred venue, which was the Monroe Circuit

Court because the child’s CHINS and termination of parental rights cases and Aunt and

Uncle’s adoption petition were all pending in the Monroe Circuit Court.

In Re Adoption of Infants H., 904 N.E.2d 203, 206-07 (Ind. 2009), reh’g denied,

935 N.E.2d 146 (Ind. 2009), where a New Jersey resident who came to Indiana to adopt twins

born in Indiana to a South Carolina woman who had been inseminated with biological

material from California. The Court reversed and remanded for want of compliance with the

Interstate Compact; the adoption court should transfer the matter to the county where the

children are located. When the petitioner is not a resident of Indiana, venue lies only in the

county in which the licensed child placing agency or governmental agency having custody of

the child is located, or in the county where the child resides. Venue is not jurisdictional but

courts should still observe the directives of the statute. The disconnect between the adoption

and the CHINS proceedings underscored the importance of honoring the legislative judgment

about venue. The Supreme Court left open the question of whether Indiana courts have

authority to grant adoption requests made by non-residents for children who are not residents.

In Re Adoption of Z.D., 878 N.E.2d 495, 497-98 (Ind. Ct. App. 2007), where Grandmother

argued that Benton Circuit Court had exclusive jurisdiction over the child’s adoption because

her petition was filed in that court before Foster Parents’ petition was filed in Tippecanoe

Circuit Court. The Court held that (1) in accordance with IC 31-19-2-2, adoption petitions

could properly be filed in both Benton County and Tippecanoe County and, under Ind. Trial

Rule 75(A), preferred venue was in Tippecanoe County; (2) Tippecanoe Circuit Court was

not required to divest itself of jurisdiction and void the adoption because Grandmother’s

petition to adopt the child was pending in Benton County; and (3) there was no longer a

statute requiring either the Tippecanoe Circuit Court or the Tippecanoe County DFC to

provide notice of that adoption proceeding.

III. C. Form and Contents of Petition

IC 31-19-2-6 provides that several pieces of information are necessary in a petition for adoption. The

petition must contain the name, age, place of residence, date and place of marriage of the adoptive

petitioners. IC 31-19-2-6(a)(4). It also must state whether the adoption petitioners have been

convicted a felony or a misdemeanor relating to the health and safety of children, and, if so, the

date and description of the conviction. IC 31-19-2-6(a)(7).

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The petition must include the following information about the child: child's name (if known), sex,

race, age or approximate age (if known), place of birth, proposed adoptive name, and the length

of time (if any) which the child has resided with the petitioners. IC 31-19-2-6(a)(1), (2), and (6).

The petition must also note whether the child possesses real or personal property and the

property's description and value must also be included in the petition. IC 31-19-2-6(a)(3).

The petition must also contain information about the birth parents, or others who may have

custody of or a legal relationship to the child. These pieces of information are: the name and

address of the birth parents (if known), the name and address of the child's guardian or nearest

kin if the child is an orphan, the name of the court or agency which has wardship of the child and

the name of the agency sponsoring the adoption. IC 31-19-2-6(a)(5).

If there is a current, ongoing child support order or medical support order in effect, the petition

must so state. IC 31-19-2-6(a)(8). Furthermore, if there is such a child support or medical order

for the child, the following must be filed with the adoption petition: (1) A copy of the child

support order or medical support order; and (2) A statement as to whether the child support order

or medical support order is enforced by the prosecuting attorney through the Title IV-D child

support program. IC 31-19-2-6(b).

An adoption petition must also specify any “[a]dditional information consistent with the purpose

and provisions of this article that is considered relevant to the proceedings.” IC 31-19-2-6(a)(9).

The child’s medical report, prepared on a form prescribed by the state registrar, must accompany

the adoption petition, or it must be filed not later than sixty days after the petition. IC 31-19-2-

7(a). The description of what the medical report must include can be found at IC 31-19-2-7(b),

and who it must be sent to can be found at IC 31-19-2-7(c). This statute should not be construed

as authorizing the release of medical information that would result in the identification of an

individual. IC 31-19-2-7(d).

Adoption subsidies are defined at IC 31-19-26.5-1, and it may be necessary to include a request

for the adoption subsidies in the adoption petition. It is important for practitioners to note that all

postadoption financial assistance agreements must be finalized prior to the granting of an

adoption. See this Chapter at XIII for further discussion of postadoption financial assistance.

IC 31-19-2-5 provides that an adoption petition must be filed in triplicate, unless the petition for

adoption is sponsored by a licensed child placing agency; in that case, the adoption petition must

be filed in quadruplicate. The original copy of a petition for adoption must be verified by the oath

or affirmation of each petitioner for adoption.

The court clerk shall send one copy of the adoption petition to a licensed child placing agency, as

described in IC 31-9-2-17.5, with preference given to the agency sponsoring the adoption. IC 31-

19-2-12.

Agency placement of the child in the adoptive petitioners' home is not a prerequisite to the court's

consideration of the adoption petition on its merits. See Stout v. Tippecanoe Cty. Dept. of Pub.

Welfare, 395 N.E.2d 444, 452 (Ind. Ct. App. 1979); IC 31-19-7-1.

III. D. Adoption Filing Fees

The adoption filing fee in 2017 is $156.00. The fee changes frequently, so practitioners should

check and confirm the fee amount. IC 31-19-2-8 provides that the $20.00 adoption history fee and

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the $50.00 putative father registry fee must be paid to the state department of health at the time of

filing the adoption petition. The registry fee is used to administer the registry and pay for

paternity or genetic testing in a paternity action in which an adoption is pending in accordance

with IC 31-14-21-9.1. Adoption petitioners must also pay the fees and other costs for a criminal

history check pursuant to IC 31-19-2-7.5(c). However, if the adoption petitioner seeks to adopt a

child under the care and supervision of DCS at the time of filing the adoption petition or at any

time thereafter, DCS may pay the fees and other costs of the required criminal history check.

IC 31-19-2-7.5(d). See this Chapter at III.E.1.

Practice Note: IC 31-19-12-3.5 is a new statute and requires that before a birth certificate can be

processed with respect to an adoption record, the following must first happen: (1) the adoption

history fee and the putative father registry fee have been paid as required by IC 31-19-2-8; and

(2) the report required to be prepared under IC 31-19-17-2 has been submitted to the state health

department.

Counsel for the adoptive petitioners should save copies of the fee receipts to present to the court at

the final hearing. The court may order any or all of the above fees waived due to the low income

of the adoptive petitioners, if such circumstances exist. An affidavit regarding the adoptive

petitioners’ income and expenses should be attached to the motion for fee waiver, along with a

proposed order for the judge’s signature which directs the clerk to waive the fee.

III. E. Criminal History Check For Adoptive Petitioners

III. E. 1. Statutory Requirements

IC 31-19-2-7.5 requires that adoptive petitioners shall submit the necessary information,

forms, or consents for a licensed child placing agency or the local office which conducts the

inspection and investigation needed for adoption under IC 31-19-8-5 to conduct a criminal

history check

of the

petitioners. However, this statute does not apply to a petitioner for

adoption who provides the licensed child placing agency or the local office with the results of

a criminal history check conducted in accordance with IC 31-9-2-22.5, and not more than one

year before the date on which the petition is filed. IC 31-19-2-7.5(a). Practically speaking, it

may be easier to furnish these forms, information, and consents to a licensed child placing

agency or the local office.

IC 31-19-2-7.3 prohibits a court from waiving any criminal history check requirements set

forth in IC 31-19-2.

Criminal history check is defined at IC 31-9-2-22.5. It includes a fingerprint based criminal

history background check of both state and national databases for persons who are at least 18

years old. It also includes, for certain delineated persons, the collection of substantiated

reports of child abuse or neglect in a jurisdiction where the person resided within the past

five years, conducting checks in the National Sex Offender Registry, and conducting checks

of local law enforcements records for all jurisdictions where a person lived. IC 31-9-2-22.5 is

a lengthy statute and for more details, should be consulted in full.

The agency’s report must contain the criminal history check information, among other things,

and the information is required for the court to grant the adoption. See IC 31-19-8-6(c) and

IC 31-19-11-1(a)(8). In addition, IC 31-19-2-7.6 mandates an adoption petitioner to notify the

court in writing if the petitioner is charged with a felony or a misdemeanor relating to the

health and safety of children while the adoption proceeding is pending.

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In cases regarding adoption of CHINS children, a criminal history check will usually have

been completed prior to the filing of the adoption petition, since most adoption petitioners are

licensed foster parents or approved relative placements.

In In Re Adoption of S.O., 56 N.E.3d 77, 82-3 (Ind. Ct. App. 2016), the Court reversed the

trial court’s order granting Stepmother’s petition to adopt the three children. The Court

remanded with instructions to order a statutorily compliant background check. The Court held

that a background check that complies with IC 31-9-2-22.5 is an essential particular of the

adoption process, and its absence renders an adoption petition fatally deficient. Stepmother’s

Johnson County and CPS checks complied with only two of the five requirements of a

criminal history check under IC 31-9-2-22.5. Stepmother’s criminal history check did not

comply with the statute because there was no check of state and national records using

fingerprints, there was no check of the national registry containing reports of child abuse and

neglect, and there was no check of the national sex offender registry. The Court observed that

IC 31-19-2-7.3 provides that no part of a criminal history check can be waived.

In In Re Adoption I.B., 32 N.E.3d 1164, 1169-71 (Ind. 2015), the Supreme Court found that

IC 31-19-11-1 is constitutional because its prohibitions are rationally related to the

classifications they draw. Maternal Grandmother and Fiancé were barred from adopting the

children because of their disqualifying felony convictions. IC 31-19-11(c) states that a court

may not grant an adoption if a petitioner has been convicted of neglect of a dependent (IC 35-

46-1-4(a)(1) and IC 35-46-1-4(a)(2)) or if a petitioner has a felony conviction involving a

weapon unless the conviction did not occur within the past five years. The Court found there

was no constitutional defect in barring adoptions by petitioners with felony child-neglect

convictions. The Court noted that “there is no fundamental right to adopt” because the

adoption process depends on so many variables, and that convicted felons are not a protected

class. The Court opined that distinguishing between child-neglect felons and non-felons was

rationally related to the legitimate legislative goal of ensuring that children will not be

adopted into a neglectful home.

In Moore v. State, 845 N.E.2d 225, 229 (Ind. Ct. App. 2006), trans. denied, the Court

reversed the OFC case manager Moore’s conviction for obstruction of justice, finding that the

charges had been filed outside the statute of limitations and the evidence was insufficient.

The Court noted that the evidence was insufficient to support Moore’s conviction because:

(1) it was IFFSA’s policy to ignore misdemeanor convictions and felony theft convictions

when considering placement of children in potential homes; (2) based on IFSSA policies,

Moore’s statement in the Adoptive Home Study was not false because there was no material

criminal history to report; (3) there was no evidence that Moore knew of the adoptive

family’s previous contact with OFC and falsely reported that there was none; (4) negligent

conduct is not a criminal act in Indiana; (5) there was “not a shred of evidence” that Moore

actually intended to mislead a public official. See Chapter 2 at VIII. for further discussion.

Practice Note: Practitioners should note the seriousness of adoption home study information

and be especially careful to thoroughly research criminal history and DCS abuse and neglect

history of adoptive petitioners for inclusion in adoption reports to the court.

III. E. 2. Criminal Convictions Which Can Prevent Adoption

There are criminal convictions which may prevent an adoption from proceeding, and a list of

these can be found at IC 31-19-11-1(c). The following convictions of an adoption petitioner

mean that a court cannot grant the adoption:

(1) Murder (IC 35-42-1-1)

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(2) Causing suicide (IC 35-42-1-2)

(3) Assisting suicide (IC 35-42-1-2.5)

(4) Voluntary manslaughter (IC 35-42-1-3)

(5) Reckless homicide (IC 35-42-1-5)

(6) Domestic battery (IC 35-42-2-1.3)

(7) Aggravated battery (IC 35-42-2-1.5)

(8) Kidnapping (IC 35-42-3-2)

(9) A felony sex offense under IC 35-42-4

(10) Incest (IC 35-46-1-3)

(11) Neglect of a dependent (IC 35-46-1-4(a)(1) and IC 35-46-1-4(a)(2))

(12) Child selling (IC 35-46-1-4(d)

(13) An offense relating to material or a performance that is harmful to minors or obscene

under IC 35-49-3

(14) A felony under the laws of another jurisdiction, including a military court, that is

substantially equivalent to any of these offenses.

Other convictions of an adoption petitioner may not necessarily bar an adoption; the court

may still grant the adoption if the date of the conviction did not occur within the immediately

preceding five year period. IC 31-19-11-1(c). These include:

(1) Battery as a felony (IC 35-42-2-1)

(2) Criminal confinement (IC 35-42-3-3)

(3) Carjacking (IC 35-42-5-2) (repealed)

(4) Arson (IC 35-43-1-1)

(5) A felony involving a weapon under IC 35-47 or IC 35-47.5

(6) A felony relating to controlled substances under IC 35-48-4

(7) A felony under IC 9-30-5 [Operating a vehicle while intoxicated]

Other permissible basis for a court to deny an adoption include an adoption petitioner’s:

juvenile adjudication for an act listed at IC 31-19-11-1(c) that would be a felony if committed

by an adult; conviction of a misdemeanor related to the health and safety of a child, or

conviction of a felony not listed in IC 31-19-11-1(c).

Lastly, a court may not grant an adoption if the petitioner is a sex or violent offender (as

defined in IC 11-8-8-5) or a sexually violent predator (as defined in IC 35-38-1-7.5). IC 31-

19-11-1(d). In addition to IC 11-8-8-5 providing a definition of sex or violent offender,

IC 11-8-8-5(c) also provides that the court shall consider expert testimony” in making the

determination as to whether the delinquent child who is fourteen years of age or older is

likely to repeat an act that would be an offense described in subsection 5(a) if committed by

an adult.

In In Re Adoption I.B., 32 N.E.3d 1164, 1169-71 (Ind. 2015), the Supreme Court found that

IC 31-19-11-1 is constitutional because its prohibitions are rationally related to the

classifications they draw. Maternal Grandmother and Fiancé were barred from adopting the

children because of their disqualifying felony convictions. IC 31-19- 11(c) states that a court

may not grant an adoption if a petitioner has been convicted of neglect of a dependent (IC 35-

46-1-4(a)(1) and IC 35-46-1-4(a)(2)) or if a petitioner has a felony conviction involving a

weapon unless the conviction did not occur within the past five years. The Court found there

was no constitutional defect in barring adoptions by petitioners with felony child-neglect

convictions. The Court noted that “there is no fundamental right to adopt” because the adoption

process depends on so many variables, and that convicted felons are not a protected class. The

Court opined that distinguishing between child-neglect felons and non-felons was rationally

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related to the legitimate legislative goal of ensuring that children will not be adopted into a

neglectful home.

In Re Adoption of J.L.S., 908 N.E.2d 1245, 1250 (Ind. Ct. App. 2009) (Court determined

that, although jury had found prospective adoptive father guilty of aggravated battery, he was

sentenced only for, and judgment of conviction was entered only for attempted murder, which

IC 31-19-11-1(c) does not list as conviction prohibiting a court from granting an adoption;

therefore, because his conviction “does not appear to impede the prospective parents’

adoption petition as the law now stands,” Court reversed and remanded case to determine

whether adoption was still in best interests of child and whether prospective parents were of

sufficient ability to rear the child and furnish suitable support and education pursuant to

IC 31-19-11-1(a)(1) and (2)).

III. F. Adoptive Petitioner’s Input in Termination Proceedings

Prospective adoptive parents must receive notice of a hearing on a petition or motion filed under

IC 31-35-2 if anyone one of the following conditions is met: (A) each consent to adoption of the

child that is required has been executed in the form and manner required and filed with the local

office or DCS; or (B) the court having jurisdiction in the adoption case has determined that

consent to adoption is not required from a parent, guardian, or custodian; or (C) a petition to

terminate the parent-child relationship between the child and any parent who has not executed a

written consent to adoption, has been filed and is pending. IC 31-35-2-6.5(c)(3)

Prospective adoptive parents and foster parents have the right to be heard and to make

recommendations to the court at the termination hearing. This includes the right of prospective

adoptive parents and foster parents to submit written statements to the court that may be made

part of the record if the statements are properly served on all parties to the CHINS proceedings.

IC 31-35-2-6.5(e).

Neither a foster parent nor prospective adoptive parents are made parties to the case as a result of

the right to notice and the right to be heard. IC 31-35-2-6.5(g).

III. G. Custody of Child Pending Adoption

IC 31-19-2-13 allows petitioners for adoption to file a separate, ex parte, verified petition

requesting temporary custody of a child sought to be adopted at the time of the filing of the

adoption petition or any time thereafter. This statute does not apply to children who are under the

care and supervision of DCS. The custody petition must be verified and signed by each petitioner

for adoption. IC 31-19-2-13(a). The Court may grant the custody petition pending the hearing on

the petition for adoption if the court finds that: (1) the petition for adoption is in proper form; and

(2) placing the child with the petitioner(s) pending the adoption hearing is in the child’s best

interests. IC 31-19-2-13(b). If temporary custody is granted, the petitioner(s) are legally and

financially responsible for the child until otherwise ordered by the court. IC 31-19-2-13(c). A new

subsection provides that a temporary order regarding custody under this statute controls to the

extent that another custody order issued by another court conflicts with an order entered under

this statute. This does not apply to courts having appellate jurisdiction. IC 31-19-2-13(d).

Either a party to the adoption or a person who had custody of or parenting time or visitation the

child before the temporary custody order was issued under this statute may file a petition to

suspend, modify, or revoke the temporary custody order granted under this statute. IC 31-19-2-

13(e). If such a petition is filed, the court must set the matter for hearing. IC 31-19-2-13(f). The

court may suspend, modify, or revoke the temporary custody order if the court determines

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suspension, modification, or revocation of the temporary custody order is in the best interests of

the child. IC 31-19-2-13(g).

In In Re Adoption of C.B.M., 992 NE.2d 687, 695, 697 (Ind. 2013), the Court determined that

the children’s adoption must be set aside. The children had been adjudicated CHINS and the

natural mother’s parental rights were later terminated, so the children’s foster parents petitioned

to adopt them. The adoption by the children’s foster parents was granted by the adoption court

before Mother’s appeal of the termination order was resolved, and the termination order was

ultimately reversed. The Indiana Supreme Court instructed the adoption court to vacate the

adoption decree, to reset the adoption petition for a contested hearing, and to promptly serve

notice and summons of that hearing on the natural mother. The Court observed that, pending the

hearing, the trial court could exercise its authority to entertain motions regarding temporary

custody of the children under IC 31-19-2-13 until final judgment is entered.

Practice Note: Counsel for adoption petitioners are cautioned that several Indiana Supreme Court

opinions have sanctioned attorneys for obtaining ex parte orders without notice or compliance

with Ind. Trial Rule 65. See Matter of Robison, 856 N.E.2d 1202, 1203 (Ind. 2006) (public

reprimand for attorney who obtained ex parte order removing wife from residence without notice

or certification of why notice should not be given); Matter of Anonymous, 786 N.E.2d 1185,

1190 (Ind. 2003) (private reprimand for attorney who engaged in ex parte communication with

the judge resulting in order without complying with requirements of T.R. 65(E) by alleging that

an injury would result to the moving party if no immediate order were issued); Matter of Wilder,

764 N.E.2d 617, 621 (Ind. 2002) (attorney suspended from practice of law for three days due to

obtaining ex parte order with lack of adequate notice to opposing counsel and failure to satisfy

conditions for relief without notice pursuant to T.R. 65); Matter of Anonymous, 729 N.E.2d

566, 569 (Ind. 2000) (private reprimand for attorney who obtained ex parte order regarding

emergency custody based on GAL report without notifying opposing counsel of intention to seek

immediate emergency judicial relief or complying with T.R. 65). Judges should review Ind. Code

of Judicial Conduct Rule 2.9 which forbids ex parte communications, except in certain situations.

See Matter of Jacobi, 715 N.E.2d 873, 875 (Ind. 1999) (judge suspended for three days without

pay for violation of Judicial Conduct Canons 1, 2, and 3 by signing ex parte order without notice

or compliance with T.R. 65). Even though IC 31-19-2-13 allows an ex parte petition, the Court is

not precluded from holding a hearing on temporary custody before issuing a custody order

pending the adoption hearing. In fact, if a petition is filed according to IC 31-19-2-13(e), then the

court must hold a hearing.

III. H. Court Orders to Protect Anonymity of Petitioners

The Court may issue an order protecting the anonymity of adoption petitioners with specific

orders to the attorneys for the parties to the case. IC 31-19-10-7. See this Chapter at VIII.D.3 for

detailed discussion.

IV. ADOPTION CONSENTS

IV. A. In General

A consent to an adoption may be signed at any time after the child’s birth in the presence of the

court, a notary public, or an authorized agent of a licensed child placing agency or DCS. IC 31-

19-9-2. See Bell v. Adoption of A.R.H., 654 N.E.2d 29, 31 (Ind. Ct. App. 1995), for a

description of the process of accepting consents in the presence of a Probate Commissioner.

A child’s mother may not execute a consent to adoption before the birth of the child. IC 31-19-9-

2(b). But see Matter of Adoption of H.M.G., 606 N.E.2d 874 (Ind. Ct. App. 1993) (there is no

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doubt the statute contemplates execution of the adoption consent after the child’s birth; however,

a pre-birth consent can be ratified by the biological mother's post-birth actions). A child’s father

may execute a written, notarized consent to adoption that contains an acknowledgement that the

consent is irrevocable and that he will not receive notice of the adoption proceedings before the

birth of the child. IC 31-19-9-2(c). A child’s father who so consents to adoption may not

challenge or contest the child’s adoption. IC 31-19-9-2(d).

If the birth parent has counsel, counsel should be notified by a family case manager or social

worker before accepting the birth parent’s consent to adoption. See In Re A.M.H., 732 N.E.2d

1284 (Ind. Ct. App. 2000). A consent must be voluntary to be valid; consent is voluntarily given

if it is an act of the parent’s own volition, free from fraud, duress or other consent-vitiating

factors, and if it is made with knowledge of the essential facts. See Matter of Adoption of

Topel, 571 N.E.2d 1295, 1298 (Ind. Ct. App. 1991).

Except as otherwise provided, a person who executes a written consent for adoption may not

execute a second or subsequent consent for adoption for the same child unless one the following

circumstances applies: (1) Each original petitioner provides a written statement that the

petitioner is not adopting the child; or (2) The person consenting to the adoption has been

permitted to withdraw the first consent to adoption under IC 31-19-10; or (3) The court

dismisses the petition to adopt the child filed by the original adoptive petitioner(s); or (4) The

court denies the petition to adopt the child filed by the original adoptive petitioner(s). IC 31-19-

9-2(e). One of the noted exceptions is that DCS may execute more than one written consent to

the adoption of the child if DCS determines that the execution of more than one written consent

is in the best interests of the child. IC 31-19-9-2(f). The second exception provides that the

parents of a child who is a ward of the state may execute a second or subsequent consent if the

court with jurisdiction over the CHINS case determines that the adoption by the person to whom

consents were originally signed is not in the child’s best interests, or if the child’s placement

with the person who has petitioned or intends to petition to adopt the child is disrupted. IC 31-

19-92(g).

A consent to an adoption does not need to name the prospective adoptive parents as long as

the consent to adoption contains a statement, by the person consenting to adoption, that the

person consenting to adoption voluntarily executed the consent to adoption without disclosure

of the name or other identification of the petitioner for adoption. IC 31-19-9-3. An adoption

petitioner may be substituted under IC 31-19-2-2 if Mother executed a written consent to the

substitution, or the initial consent contains a statement by Mother that she voluntarily agrees

to a substation of adoption petitioners without her additional consent. IC 31-19-9-3(b). This

statute further provides that Mother’s consent “is not conditional regardless of whether

Mother consents or does not consent to the substitution of petitioners under this subsection.”

Copies of the signed consent shall be filed with the clerk of the court where the adoption petition

is pending and with the investigating agency which is preparing the court adoption report. IC 31-

19-9-5.

The birth parent who consents to adoption must be provided with a copy of the state registrar’s

non-release form for adoption history and must receive an explanation of the availability of

adoption history information under IC 31-19-17 through 25.5 and the birth parent's option to file a

nonrelease form. IC 31-19-9-6.

Please note that effective July 2018, this statute will change; instead of using the term “nonrelease

form”, IC 31-19-9-6 will provide that there must be an explanation that identifying information

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may be released unless the birth parent files the contact preference form with the state registrar

indicating the birth parent's lack of consent to the release of identifying information, and that

form must be sent to the birth parent. Currently, the subsection provides that identifying

information about an adoption may be released unless the birth parent files the nonrelease form

with the state registrar. IC 31-19-9-6(1)(C).

Practice Note: Practitioners should include with the consent form or by separate affidavit the

parent’s notarized statement regarding whether the parent does or does not claim membership or

eligibility for membership in an American Indian tribe or is an Alaska Native member of a

Regional Corporation. If the parent claims tribe membership or eligibility for membership, the

identity of the tribe, if known, should be included in the parent’s consent. 25 U.S.C.A. 1913

establishes specific procedures for adoption consents if the parent is Indian, which include that

the consent was executed in writing, recorded before a judge who certified that the terms and

consequences were fully explained and understood, and the court’s certification that the parent

understood the explanation in English or that it was interpreted in a language the parent

understood. A consent given prior to or within ten days after an Indian child’s birth is invalid, and

an adoption consent by an Indian parent may be withdrawn for any reason prior to the entry of the

adoption decree. Notice of the child’s adoption must also be given to the Indian Tribe, or to the

Secretary of the Interior, if the name of the tribe is not known. See Chapter 2 at III.C. for

discussion of the Indian Child Welfare Act.

In In Re Adoption of M.P.S., Jr., 963 N.E.2d 625, 629-30 (Ind. Ct. App. 2012), the Court held

that Mother’s consent to adoption of her child was involuntary where she was assured it was

revocable and she did not intend to relinquish contact with her child. The Court observed that IC

31-19-9-2 provides that a consent to adoption may be executed at any time after the birth of the

child in the presence of the court, a Notary Public, or any authorized agent of DCS or a licensed

child placement agency. The Court said that it is undisputed that the consents at issue were not

signed before a Notary Public, as the attorney before whom they signed their consents had let her

commission lapse. The Court disagreed with Grandparents’ argument that because the attorney

was an officer of the court, the intent of the Notary Public element of the statute was satisfied.

The Court also observed that the parents, Grandparents, and Grandparents’ attorney anticipated

that parental contact would survive the execution of the consents to adopt. The Court noted that

Mother did not manifest an intention to permanently relinquish all parental rights.

In Re Adoption of A.S., 912 N.E.2d 840, 846-50 (Ind. Ct. App. 2009) concluded that (1) parties

whose consents are required for an adoption to be granted may execute subsequent consents, and

(2) here, the biological parents and Marion County DCS (MCDCS) executed subsequent consents

allowing the Second Foster Mother and her adult daughter to adopt the children, which resulted in

their petitions being supported by the necessary consents. First Foster Mother argued that, since

she received the initial consents to adopt the Children and they were not withdrawn, only she may

adopt the Children. However, the Court found (1) no basis for holding that all subsequent

consents are void; (2) nothing indicates a limitation on the ability to file additional consents,

although Indiana Code limits the ability to withdraw a consent or to substitute a petitioner; and

(3) public policy does not dictate a contrary result, in that allowing competing petitions and

subsequent consents gives a probate court a choice between two families to determine if

placement with one of them is in the best interest of the child, avoids a “race” to obtain a parental

consent, and allows biological parents whose rights have not yet been terminated and a county

DCS to address changing circumstances.

In In Re Adoption of Infant Child Baxter, 799 N.E.2d 1057, 1062-63 (Ind. 2003), the Court

reversed and remanded to the trial court for a determination of whether the consents were valid

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and authentic even though they were not executed in the presence of any one of the six entities

specified in the consent statute. The Court quoted the consent statute, IC 31-19-9-2, noting that a

consent to adoption can be executed at any time after a child’s birth in the presence of one of the

following: (1) the court; (2) a notary public or other person authorized to take acknowledgements;

or (3) an authorized agent of the division of family and children, a county office of family and

children, or a licensed child placing agency. The Court held that, if the written consent is not

executed in the presence of any one of the six specified entities, the validity of the consent may

nevertheless be satisfied by evidence that signatures are authentic and genuine in all respects and

manifest a present intention to give the child up for adoption.

In In Re Adoption of N.J.G., 891 N.E.2d 60, 64-65, 67 (Ind. Ct. App. 2008), the Court reversed

and remanded for further proceedings the trial court’s order to the extent that it concluded that

Mother consented to and may not contest the child’s adoption. In making its finding, the Court

noted that Matter of Adoption of H.M.G., 606 N.E.2d 874, 875 (Ind. Ct. App. 1993) had held that

the intent of the statute was best served by finding a pre-birth consent to adoption to be voidable

rather than void, and therefore one that could be ratified by a post-birth act which sufficiently

manifested a present intention to give the child up for adoption. The Court found, however, that

when the legislature amended IC 31-19-9-2 in 2005, it explicitly provided that “[t]he child’s

mother may not execute a consent to adoption before the birth of the child,” and that this new

language “indicates a clear legislative intent that pre-birth consents to adoption are void, rather

than voidable.”

IV. B. Hearing on Consent on Uncontested Adoptions

Practice Note: The person or agency who accepts the birth parent's consent may request a consent

hearing be held before the court having jurisdiction over the adoption. This consent hearing may

occur before the adoption petition is filed. The hearing may be conducted based on the written or

oral motion of DCS, a licensed child placing agency, or an attorney arranging an adoption. A

record may be made of the consent hearing. This practice is recommended if the birth parent is a

minor or suffers from developmental disability, mental illness, or some other possible consent

vitiating condition. The birth parent may be represented by counsel, and the person accepting the

consent may request court appointed counsel or provide private, independent counsel for the birth

parent. Expert evidence of the birth parent's physical or mental condition, including the parent's

ability to comprehend the meaning of consenting to adoption could be offered to the court to

forestall future issues. Before attempting such a hearing, practitioners should check with local

rule or determine local practice.

A consent to an adoption may not be withdrawn more than thirty days after the consent is

signed. IC 31-19-10-3(b)(1). A consent also may not be withdrawn after a person who signs

the consent appears, in person or by telephonic communications or video conferencing, before a

court in which the petition for adoption has been or will be filed or a court of competent

jurisdiction if the person is outside of Indiana, and acknowledges that the person understood the

consequences of signing the consent, freely and voluntarily signed the consent, and believes that

adoption is in the best interests of the person sought to be adopted. IC 31-19-10-3(b)(2) and (3).

If such a hearing is conducted by telephonic communication or video conferencing, “the court

shall ensure that the hearing is recorded.” IC 31-19-10-3(c). Of these two provisions by which

consent cannot be withdrawn, whichever occurs first is the date past which the consent cannot be

withdrawn. IC 31-19-10-3(b).

Practice Note: This statute could be used in a hearing on an adoption consent and clarify that the

person who consented is foreclosed from seeking to withdraw the consent after the hearing.

Although this statute does not directly address the issue in this manner, the person or agency who

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accepts the birth parent's consent may request a consent hearing be held before the court having

jurisdiction over the adoption. This consent hearing may occur before the adoption petition is filed,

and a record would be made of the proceeding. This practice is recommended if the birth parent is a

minor or suffers from developmental disability, mental illness, or some other possible consent

vitiating condition. The birth parent may be represented by counsel, and the person accepting the

consent may request court appointed counsel or provide private, independent counsel for the birth

parent. Expert evidence of the birth parent's physical or mental condition, including the parent's

ability to comprehend the meaning of consenting to adoption could

be offered

to the court to

forestall future issues.

A consent to an adoption may be withdrawn no later than thirty days after the consent is signed

if the court finds, after notice and opportunity to be heard afforded to the petitioner for adoption,

that the person seeking the withdrawal is acting in the best interest of the person sought to be

adopted; and (2) the court orders the withdrawal. IC 31-19-10-3(a). As evidenced by the

necessity of a hearing, this potential ability to withdraw consent is not an automatic right.

Furthermore, a person who seeks to withdraw consent under this statute must give notice of this

intention to all parties to the adoption and to a person whose consent to adoption is required by

IC 31-19-9.

IV. C. Minor Parent’s Consent

A parent who is under eighteen years old may consent to the adoption of her/his child. IC 31-19-

9-1(b). The parent or legal guardian of a minor birth parent need not concur in the minor's

consent unless the court requires the concurrence due to the best interests of the child to be

adopted. IC 31-19-9-1(b). Although her age was not an issue on appeal, the Court of Appeals

held that a sixteen-year-old mother’s pre-birth consent could be ratified by her post-birth actions

in Matter of Adoption of H.M.G., 606 N.E.2d 874 (Ind. Ct. App. 1993). However, practitioners

are encouraged not to rely on post-birth ratification of a birth mother’s pre-birth consent, since

such consent is not permitted according to Indiana Code.

IV. D. Required Consents

Unless another statutory provision applies, the following persons must consent to the child's

adoption (IC 31-19-9-1(a)):

(1) each living parent of the child born in wedlock, including a man who is presumed to be

the child's biological father under IC 31-14-7-1(1) if the man is the biological or adoptive

parent of the child;

(2) the mother of a child born out of wedlock and the father whose paternity has been

established by a court proceeding other than the adoption proceeding (except as provided in

IC 31-14-20-2), established by a paternity affidavit (executed under IC 16-37-2-2.1), unless

the putative father has given implied consent to the adoption under IC 31-19-9-15;

(3) each person, agency, or local office having lawful custody of the child;

(4) the court having jurisdiction of the custody of the child if the legal guardian is not

empowered to consent to adoption;

(5) the adoptive child who is over fourteen years old;

(6) the adoptive child's spouse.

Since paternity affidavits legally establish a man was a child’s legal father, practitioners

must remember that the consent of a father who has signed a paternity affidavit is required

unless another provision allowing the court to dispense with his consent applies. See IC 16-37-

2-2.1; In Re Adoption of A.K.S., 713 N.E.2d 896, 898 (Ind. Ct. App. 1999) (paternity affiant

father was entitled to notice of adoption); Matter of Adoption of M.A.S., 695 N.E.2d 1037,

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1039 (Ind. Ct. App. 1998) (adoption reversed due to incorrect legal notice to incarcerated father

who had signed a paternity affidavit and whose consent was required).

As discussed in this Chapter at section V., a court may dispense with the consent requirement in

certain factual situations if clear and convincing evidence is offered. Putative fathers who are

entitled to notice and who establish paternity in a timely manner may legally block the

adoption. See In Re M.B.H., 571 N.E.2d 1283 (Ind. Ct. App. 1991). For more information on

the putative father notice requirements see this Chapter at VII.C. for specific details, and this

Chapter at VII.A., VII.B., and VII.D for more general details.

Regarding consent being required from a child who is fourteen years or older, see In Re

Adoption of J.E.H., 859 N.E.2d 388, 390 (Ind. Ct. App. 2006), where the Court affirmed the

trial court’s denial of Stepmother’s petition to adopt her two stepsons, who were ages fourteen

and ten at the time of the adoption hearing. The fourteen-year-old had not consented to the

adoption as required by IC 31-19-9-1(a)(5). Stepmother contended that the older stepson’s

consent was not required because he was only thirteen years of age when she filed her adoption

petition. The Court concluded that IC 31-19-9-1(a) is not ambiguous and that its clear language

provides that a trial court may not grant a petition for adoption of a child more than fourteen

years of age unless the child has executed a written consent to adoption.

For more case law on consent and obviating the need for consent, see this Chapter at V.

IV. E. Guardian or Lawful Custodian’s Ability to Withhold Consent

Each person, agency, or local office having lawful custody of the child has to give consent to an

adoption. IC 31-19-9-1(a)(3). This includes the local DCS office who has wardship over a while.

See A.D. v. Clark, 737 N.E.2d 1214, 1217 (Ind. Ct. App. 2000). It can also include a guardian,

or stepparent, grandparent, or other non-parent who has been given third party custody. See In

Re Adoption of L.C.E, 940 N.E.2d 1224, 1226-8 (Ind. Ct. App. 2011).

It is important for practitioners to note that “person having lawful custody” can include people

beyond those who have court-ordered custody of a child. It can include people with whom a child

resides without such a court order. See In the Matter of the Adoption of B.C.H., 22 N.E.3d 580

(Ind. 2014).

Although the consent of such individuals, agencies, or DCS local offices is required, their consent

can be dispensed with under certain circumstances. IC 31-19-9-8(a)(10) provides that a legal

guardian or lawful custodian of the person to be adopted who has failed to consent to the adoption

for reasons found by the court not to be in the best interests of the child.

For case law on persons who have court-ordered custody of a child, such as guardians or third

party custodians and the necessity of their consent, see:

In Re Adoption of L.C.E, 940 N.E.2d 1224, 1226-8 (Ind. Ct. App. 2011), where the Court

held that, since Stepfather was the child’s legal court ordered custodian, Lawrence Circuit

Court erred when it failed to consider Stepfather’s objection and grant his motion to vacate

the adoption. Mother and Grandfather argued that Stepfather was not a lawful custodian

because Johnson Circuit Court did not have jurisdiction over the child, as the child was not a

child of the marriage nor was Stepfather declared a de facto custodian. The Court

characterized this argument as a request to review the validity of an order that had not been

appealed, and was not an issue before the Court. Under Trial Rule 69(B)(8), Stepfather has

reason for relief from the judgment granting the child’s adoption. IC 31-19-9-1(a)(3) requires

written consent of each person, agency, or county office of family and children having lawful

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custody of the child before a child may be adopted. Since Stepfather was the lawful custodian

of the child, his consent was required for adoption. Citing IC 31-19-10-1(b), the Court said

that when a person with standing pursuant to IC 31-19-9-1 objects to the adoption, he must

“file a motion to contest the adoption with the court not later than thirty (30) days after

service of notice of the pending adoption.” Stepfather filed an objection to the adoption on

June 4, which was twenty-nine days after the petition for adoption was filed; therefore,

Lawrence Circuit Court had to consider Stepfather’s objection prior to granting Grandfather’s

petition.

In Re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 1992), where the adoption

reversed and remanded for purpose of determining whether grandmother/legal guardian's

consent was being unreasonably withheld). As with other guardianship or wardship

situations, a ward of the county office of family and children may be adopted without the

consent of the county office of family and children.

For case law on persons who do not have court-ordered custody of a child, but may nevertheless

qualify as “lawful custodians”, see:

In the Matter of the Adoption of B.C.H., 22 N.E.3d 580, 585-6 (Ind. 2014), where the

Court held that for purposes of IC 31-19-9-1(a)(3), “lawful custody” encompasses individuals

who fit the statutory definition of a de facto custodian at the time a petition for adoption is

filed. Maternal Grandparents were lawful custodians of the child, and as such, were entitled

to notice and an opportunity to consent to the adoption proceedings. Maternal Grandparents

argued that they had lawful custody of the child during the adoption proceedings because

they qualified as de facto custodians by statute, even though the juvenile court had not yet

adjudicated them as such; however, the Court noted that it would not consider Maternal

Grandparents’ court-adjudicated status as de facto custodians, since that status was not

recognized and ordered by the juvenile court until after the adoption petition had already been

granted. The Court instead focused on the circumstances surrounding Maternal Grandparent’s

apparent custody of the child, and held that “lawful” meant something that is not contrary to

law, and therefore, “lawful custody means custody that is not unlawful.” The Court further

stated that the use of this language likely reflected the General Assembly’s policy decision

that adoption trial courts should be able to hear, and want to be able to hear from a party

“with care, custody, and control of the child in question—regardless of whether the party’s

responsibility derives from a court order.”

For case law on DCS being a child’s legal guardian or custodian, and dispensing with DCS’s

consent in an adoption, see:

In Re Adoption of N.W.R., 971 N.E.2d 110 (Ind. Ct. App. 2012), where the Court held that

when, as here, the agency acting in loco parentis moves to withdraw consent before an

adoption decree has been entered because it has failed in its statutory obligation to conduct a

complete placement investigation, the presumption that its initial consent was proper is

nullified. The Court held that on these facts, the trial court erred when it refused to grant

DCS’ motion to withdraw its consent to Foster Parents’ adoption petition; consequently, the

adoption decree was entered without the consent required by statute, and was thus invalid.

In Re Adoption of H.L.W., Jr., 931 N.E.2d 400, 408-10 (Ind. Ct. App. 2010), where the

Court reversed the trial court’s grant of Foster Parents’ petition to adopt the child. On appeal,

DCS argued, inter alia, that the trial court erred when it found that DCS was not acting in the

child’s best interest by withholding its consent to Foster Parents’ adoption. The Court found

the trial court erred when it determined that DCS’s withholding of consent to Foster Parents’

adoption was not in the child’s best interest. DCS was the child’s legal custodian, so its

consent to the adoption was required by IC 31-19-9-1. DCS had the burden of demonstrating

by clear and convincing evidence that its withholding of consent was in the child’s best

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interests. The Court agreed with DCS that the trial court had applied the wrong standard by

requiring DCS to show that Foster Parents were “not fit.” The Court noted the evidence in

support of its conclusion that DCS met its burden of demonstrating by clear and convincing

evidence that its withholding of consent to the adoption was in the child’s best interests.

In Re Adoption of S.A., 918 N.E.2d 736, 742-3 (Ind. Ct. App. 2009), trans. denied, where

the Court held that Adoptive Mother did not need DCS’s consent for her petition for the

child’s adoption to be granted because DCS failed to consent for reasons that were not in the

child’s best interest. The trial court determined that adoption of the child by Adoptive Mother

was in the child’s best. Foster Parents and DCS appealed. The Court was not persuaded by

Foster Parents’ contention that the adoption must be set aside because DCS had consented to

Foster Parents’ adoption but not to Adoptive Mother’s adoption. The Court, citing Stout v.

Tippecanoe County Dep’t. of Pub. Welfare, 182 Ind. App. 404, 411, 395 N.E.2d 444, 448

(1979), stated that the trial court is solely responsible for making the determination of the

child’s best interest in an adoption, and DCS is not granted the unbridled discretion to refuse

consent. The evidence showed: (1) DCS initially consented to Adoptive Mother’s request for

adoption, but later withdrew its consent in favor of Foster Parents; and (2) the DCS case

manager could not explain why DCS had withdrawn consent.

In Re Adoption of L.M.R., 884 N.E.2d 931, 936-38 (Ind. Ct. App. 2008), where the Court

held that the trial court properly determined that DCS had failed to act in the child’s best

interest by refusing to consent to Foster Mother’s adoption of the child. IC 31-19-9-8(a)(10),

permits DCS, as the child’s legal guardian, to express its opinion regarding the adoption, and,

if the trial court finds that DCS’ consent to the adoption was unreasonably withheld, the

Court can review that determination for reasonableness. It is the prospective adoptive parent’s

burden to show that DCS is not acting in the child’s best interests in withholding consent. In

support of this conclusion, the Court noted many pieces of evidence which showed large

discrepancies in the way Foster Mother diligently cared for and parented the child, who had

extreme special needs, versus Grandparents’ more indifferent approach.

In Re Adoption of Z.D., 878 N.E.2d 495, 498-99 (Ind. Ct. App. 2007), where the Court

noted that (1) the Tippecanoe County Department of Family and Children (TCDFC) had

refused to consent to her adoption of the child; (2) IC 31-19-9-1 required TCDFC’s written

consent as it had lawful custody of the child; (3) in accordance with IC 31-19-9-8(a)(10),

TCDFC’s refusal to consent required the trial court to determine whether TCDFC was acting

in the best interests of the child in doing so; (4) from the record it appeared that TCDFC was

acting in the child’s best interests by refusing consent in that grandmother had indicated that

she would allow contact between the child and the biological father, a child molester whose

parental rights to the child had been terminated.

In Re Infant Girl W., 845 N.E.2d 229, 244 (Ind. Ct. App. 2006), trans. denied sub nom. In

Re Adoption of M.W., 851 N.E.2d 961 (Ind. 2006) (Dickson, J., dissenting), where the Court

briefly considered whether Marion Probate Court properly granted the unmarried same sex

couple’s petition for adoption of their foster child despite Morgan County OFC’s refusal to

consent to the adoption. The Court noted that, because OFC was the child’s guardian, its

consent would normally have been required. Because the Probate Court concluded that the

reasons for OFC’s refusal to consent were not in the child’s best interests, OFC’s consent was

not necessary.

See also A.D. v. Clark, 737 N.E.2d 1214, 1217 (Ind. Ct. App. 2000) (Court noted at footnote 4

that the adoption petition might be granted over the MCOFC’s refusal to consent if it were shown

that MCOFC was not acting in the child’s best interest in withholding consent); Matter of

Adoption of L.C., 650 N.E.2d 726 (Ind. Ct. App. 1995) (adoptive petitioners have a heavy

burden in demonstrating unreasonable withholding of consent in light of the implicit statutory

presumption that the legal guardian is acting in the child's best interests); Stout v. Tippecanoe

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Cty. Dept. of Pub. Welfare, 395 N.E.2d 444, 450 (Ind. Ct. App. 1979) (county department is not

vested with the power of a natural parent to withhold consent to an adoption).

IV. F. Withdrawal of Consent

IV. F. 1. Statutes

As evidenced by the statutes noted within this section, the potential ability to withdraw

consent is not an automatic right.

A consent to an adoption may be withdrawn no later than thirty days after the consent is

signed if the court finds, after notice and opportunity to be heard afforded to the petitioner

for adoption, that the person seeking the withdrawal is acting in the best interest of the

person sought to be adopted; and (2) the court orders the withdrawal. IC 31-19-10-3(a). This

places the burden of proof on the person seeking to withdraw his or her consent; the person

must do so by clear and convincing evidence. IC 31-19-10-0.5. Furthermore, a person who

seeks to withdraw consent under this statute must give notice of this intention to all parties

to the adoption and to a person whose consent to adoption is required by IC 31-19-9.

A consent to an adoption may not be withdrawn more than thirty days after the consent is

signed. IC 31-19-10-3(b)(1). A consent also may not be withdrawn after a person who

signs the consent appears, in person or by telephonic communications or video conferencing,

before a court in which the petition for adoption has been or will be filed or a court of

competent jurisdiction if the person is outside of Indiana, and acknowledges that the person

understood the consequences of signing the consent, freely and voluntarily signed the

consent, and believes that adoption is in the best interests of the person sought to be adopted.

IC 31-19-10-3(b)(2) and (3). If such a hearing is conducted by telephonic communication or

video conferencing, “the court shall ensure that the hearing is recorded.” IC 31-19-10-3(c).

Of these two provisions by which consent cannot be withdrawn, whichever occurs first is the

date past which the consent cannot be withdrawn. IC 31-19-10-3(b).

Consents to adoption may only be withdrawn as is provided in IC 31-19-10, and they may

not be withdrawn after the entry of the adoption decree. IC 31-19-10-4. A court may

bifurcate a hearing in this matter. IC 31-19-10-7.

IV. F. 2. Case Law

Case law pertaining to withdrawing consent via statute and motion includes:

In In Re Adoption of N.W.R., 971 N.E.2d 110, 113-4, 115-7 (Ind. Ct. App. 2012), the

Court reversed and remanded with instructions the trial court’s order granting Foster

Parents’ adoption petition. The Court held that the trial court should have granted DCS’

motion to withdraw its consent to Foster Parents’ adoption petition because DCS failed to

perform its statutory duty to investigate placement alternatives, and thus, DCS had not

given valid consent to Foster Parents’ adoption petition. The child’s status as a DCS ward

meant that DCS had a statutory duty to make recommendations to the trial court about

what placement and services would be in the child’s best interests. The Court reasoned

that DCS did not merely change its mind, but rather, confessed that it had failed to do its

statutory duty to investigate alternative placements, and in effect, repudiated its consent.

DCS’s lack of proper consent to Foster Parents’ adoption petition satisfied the clear and

convincing evidence test to show that the withdrawal of consent was in the child’s best

interests. Once consent is given, it can only be withdrawn by filing a motion in court. The

party seeking to withdraw consent must prove by clear and convincing evidence that

withdrawal is in the best interests of the child. The county director of the DCS office

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testified that DCS was seeking to withdraw its consent in order to fully explore the best

interests of the child.

In In Re Adoption of N.J.G., 891 N.E.2d 60, 65-67, n.3 (Ind. Ct. App. 2008), the Court

reversed and remanded for further proceedings the trial court’s order to the extent that it

concluded that Mother consented to and may not contest the child’s adoption. But, the

Court noted that its holding did not terminate the adoption proceedings “inasmuch as

under certain circumstances, Mother’s consent may not be required for the adoption to

occur. See [IC 31-19-9-8].” Mother’s pre-birth consent to the child’s adoption was void

pursuant to IC 31-19-9-2 because it was executed pre-birth, as well as because it did not

meet the requirement of IC 31-19-9-2(a) that it be executed in the presence of the court, a

notary public, or an authorized agent of the state department of family and children, a

county office of family and children, or a licensed child placing agency. None of the

documents in the record that were signed after the child’s birth meet the requirements of

IC 31-19-9-2 to be valid consents to the adoption. The Court noted it was troubled by

many of the circumstances and financial aspects of the case.

In In Re Adoption of M.L.L., 810 N.E.2d 1088, 1094-95 (Ind. Ct. App. 2004), Mother’s

contention on the voluntariness issue was that she would not have signed the consent to

adoption if the deputy sheriff had not threatened her with jail time and having her child

taken from her. The Court was unpersuaded by this argument because (1) Mother had

first expressed her desire that her relative take the child to live with him and his wife in

Indiana before she was arrested or volunteered to work as a confidential informant; and

(2) the Court could not say the only conclusion to be gleaned from the evidence was that

the deputy sheriff’s pressure on Mother to serve as a confidential informant overcame

Mother’s volition regarding adoption. Mother also contended that her consent was invalid

because it did not comply with Tennessee law, the Court determined that the validity of

Mother’s consent was governed by Indiana law because the Indiana trial court had

jurisdiction over the adoption. Indiana law, IC 31-19-9-2, allows a consent to adoption to

be executed in the presence of the court or a notary public. Because Mother executed her

consent before a notary public, her consent was valid, and the trial court did not err when

it granted the adoption.

See also Bell v. Adoption of A.R.H., 654 N.E.2d 29, 33-35 (Ind. Ct. App. 1995) (no

evidence Mother’s consent was involuntary because the birth mother’s grief over her

grandmother’s death did not rise to the level of overcoming Mother’s volition; Mother failed

to prove that withdrawing her consent was in the child’s best interests); Matter of Adoption

of Johnson, 612 N.E.2d 569 (Ind. Ct. App. 1993) (Court affirmed order allowing birth

mother to withdraw consent because adoptive parents had been diagnosed with AIDS and

birth mother feared the adoptive parents' deaths would leave child without parents); Matter

of Adoption of H.M.G., 606 N.E.2d 874 (Ind. Ct. App. 1993) (Court found that sixteen-year-

old birth mother's consent given twenty-seven days prior to child's birth was not void but

voidable; voidable pre-birth consent could be ratified by post-birth act which sufficiently

manifests a present intention to give the child up for adoption); Matter of Adoption of

Hewitt, 396 N.E.2d 938 (Ind. Ct. App. 1979) (the fact that eighteen-year-old mother's

consent had been given in hospital two days after child's birth was insufficient to void

consent; emotions, tensions and pressure are insufficient to void consent unless parent can

show they rose to the level of overcoming her volition).

A birth parent may also allege that consent is invalid because it was obtained through fraud

or duress or any other consent-vitiating factor. To be valid, a consent must be made with

knowledge of the essential facts. For case law on attempting to withdraw consent by alleging

that the consent was obtained through fraud or duress or any other consent-vitiating factor,

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see In Re Adoption of M.P.S., Jr., 963 N.E.2d 625, 630-2 (Ind. Ct. App. 2012), the Court

held that the mother’s consent to adoption of her child was involuntary, as she was assured

by the grandparent’s attorney that it was revocable and she did not intend to relinquish

contact with her child. The Court noted that the mother did not manifest an intention to

permanently relinquish all parental rights, and intended contact to continue after signing the

consent. The Court noted many irregularities: (1) IC 31-19-9-2 provides that a consent to

adoption may be executed at any time after the birth of the child in the presence of the court,

a notary public, or any authorized agent of DCS or a licensed child placement agency, and

this was not accomplished; (2) there was no compliance with statutory home study

procedures; (3) it was unclear if the a comprehensive criminal background check was

performed in accordance with IC 31-9-2-22.5; and (4) there was discrepancies as to whether

Mother actually received proper notice. The Court characterized the record as “replete with

evidence of procedural error, involuntariness, and fraud upon the court.” The Court

concluded that the mother had met her burden to set aside the adoption in light of the

extremely irregular and—to some extent—fraudulent circumstances surrounding the child’s

adoption.

See also Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054 (Ind. 1992) (putative

father whose consent to adoption was not necessary could not prevail on fraud allegation

based on adoptive parents having permitted visitation between putative father and children);

Matter of Adoption of Topel, 571 N.E.2d 1295 (Ind. Ct. App. 1991) (father's consent was

allowed to be withdrawn because he did not understand that consenting to child's adoption

meant he would have no right to see the child again); Matter of Snyder, 438 N.E.2d 1171

(Ind. Ct. App. 1981) (mother did not meet burden of proof that her facially valid adoption

consents had been procured by undue influence; essence of undue influence is destruction of

one’s free agency).

IV. G. Criminal Statutes on Child Selling and Profiting From an Adoption

Adoption practitioners should familiarize themselves with the criminal statute, IC 35-46-1-9,

profiting from an adoption. IC 35-46-1-9(c) provides that except as otherwise provided, “a person

who, with respect to an adoption, transfers or receives any property in connection with the waiver

of parental rights, the termination of parental rights, the consent to adoption, or the petition for

adoption commits profiting from an adoption, a Level 6 felony.” Furthermore, all the limitations

of this statute apply regardless of the state or country in which the adoption is finalized. IC 35-46-

1-9(h). However, IC 35-46-1-9(b) provides that this section does not apply if the birth mother is

not a resident of Indiana; and the adoption takes place in a jurisdiction outside Indiana.

The exceptions to this rule are found in IC 35-46-1-9(d), which lists multiple instants in which the

exchange of money in connection with an adoption does not result in a felony. These exceptions

include:

(1) reasonable attorney’s fees;

(2) hospital and medical pregnancy and childbirth expenses incurred by the birth mother;

(3) reasonable fees from a child placing agency licensed or DCS;

(4) reasonable expenses for psychological counseling regarding the adoption incurred by the

birth parents;

(5) reasonable costs of housing, utilities, and phone service for the birth mother, but only

during the second or third trimester of pregnancy until six weeks after childbirth;

(6) reasonable costs of maternity clothing for the birth mother;

(7) reasonable travel expenses, related to the pregnancy or adoption, incurred by the birth

mother;

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(8) additional itemized necessary living expenses for the birth mother. These extra expenses

must occur during the second or third trimester of pregnancy until six weeks after childbirth,

cannot be the expenses already outlined in this statute, and the amount cannot exceed $1,000;

(9) other fees approved by the court, which may include reimbursement of actual wages lost

as a result of the inability of the birth mother to work at her normal existing job due to a

physical medical condition if the birth mother’s doctor has ordered or recommended that she

cease working, and the physical medical condition and its relation to her pregnancy are

documented by the doctor. This subsection also makes provision for the calculation of the

wage reimbursement.

Although these exceptions cover a wide range of areas in which fees and expenses could be paid

by prospective adoptive parents in the course of an adoption, practitioners should also be mindful

of IC 35-46-1-9(e). This subsection provides that payments made under IC 35-46-1-9(d)(5)

through (d)(9) may not exceed four thousand dollars and must be disclosed to the court

supervising the adoption. This four thousand dollar limit for IC 35-46-1-9(d)(5) through (d)(9)

may be exceeded if the court approves the expenses after making a determination that: (1) the

expenses are not being offered as an inducement to proceed with an adoption; and (2) failure to

make the payments may seriously jeopardize the health of either the child or the birth mother and

the direct relationship is documented by a licensed social worker or the attending physician.

IC 35-46-1-9(f) further clarifies the payment limit by providing that the payment limitation under

IC 35-46-1-9(e) applies to the total amount paid under IC 35-46-1-9(d)(5) through (d)(9) in

connection with an adoption from all prospective adoptive parents, attorneys, and licensed child

placing agencies.

Attorneys and licensed child placing agencies (LCPA) must inform a birth mother of the penalties

for committing adoption deception (IC 35-46-1-9.5) before the attorney or the LCPA transfers a

payment for adoption related expenses to the birth mother. IC 35-46-1-9(g).

Practitioners should also become informed regarding local court policies concerning expenses

which adoptive parents may legitimately pay to birth parents. Additionally, practitioners and

attorneys for licensed child placing agencies must be familiar with IC 35-46-1-9.5, which

provides that adoption deception, a Level 6 felony, is committed when a birth mother or a woman

who holds herself out to be a birth mother knowingly or intentionally benefits from adoption

related expenses paid:

(1) when she knows or should have known that she is not pregnant;

(2) induces two or more sets of prospective adoptive parents to pay adoptions expenses to her

at the same time in an effort to adopt the same child;

(3) when she does not intend to make an adoptive placement.

In addition to any other penalty imposed, a court may order the person who commits adoption

deception to make restitution to a prospective adoptive parent, attorney, or licensed child placing

agency that incurs an expense as a result of the offense.

V. LEGAL GROUNDS FOR DISPENSING WITH PARENTAL CONSENT

V. A. In General

An adoption petition may be granted without parental consent in situations delineated at IC 31-

19-9-8 through IC 31-19-9-19. If an adoption petition is filed the court may find, after notice,

appointment of counsel for the parent, and hearing, that there is a statutory reason for dispensing

with parental consent. The adoption may then be granted without a separate termination

proceeding and order obtained under IC 31-35-2 or IC 31-35-3. If there is a pending CHINS

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matter, jurisdiction issues must be considered. See this Chapter at II.A and II.B.1., and see

Chapter 3, II.G.1 for further discussion on the resolution of the jurisdictional conflict between

CHINS, TPR, and adoption cases involving the same child or children.

Indiana law provides for many different situations in which a judicial determination to dispense

with consent; some of these may be made:

• abandonment;

• lack of significant contact for specified period of time;

• knowing failure to support when able to do so;

• various types of sexual misconduct by putative father;

• alleged father’s failure to take timely action to register with putative father registry and

establish paternity;

• judicial declaration of incompetency;

• parental rights were terminated in a termination of the parent-child relationship proceeding;

• a parent’s unfitness and the child’s best interests;

• a guardian or lawful custodian who fails to consent to an adoption for reasons not in the

child’s best interests;

• an alleged father’s written denial of paternity under certain circumstances;

• conviction of certain crimes against the adoptive child's other parent;

• and conviction of certain crimes against the adoptive child or the adoptive child's sibling.

In addition to these factual situations, the court may find that a parent has otherwise relinquished

their ability to consent to an adoption as provided in this chapter; this includes when a putative

father's consent to adoption is implied by his failure to do certain things, such as register with the

putative father registry, establish paternity, contest an adoption, and other circumstances.

Practitioners should note that the various provisions of IC 31-19-9-8 are disjunctive; as such,

either provides independent grounds for dispensing with parental consent. See In Re Adoption of

T.W., 859 N.E.2d 1215, 1218-19 (Ind. Ct. App. 2006).

V. B. Standard and Burden of Proof

The standard of proof in adoptions is clear and convincing evidence. The standard of proof was

clarified by statute and case law. IC 31-19-10-0.5 provides that the party bearing the burden of

proof in a proceeding to contest an adoption or withdraw consent to adoption must prove the

party’s case by clear and convincing evidence.

For case law discussing the standard and burden of proof, see In Re Adoption of S.W., 979

N.E.2d 633 (Ind. Ct. App. 2012) (Court held that Maternal Grandparents had the burden of

proving their petition for adoption without Father’s consent by clear and convincing evidence); In

Re Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct. App. 2011) (Court held that the burden of

proof for an adoption without consent, under any of the subsections in IC 31-19-9-8, is the clear

and convincing standard); In Re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004)

(Court looked to a statute on burden of proof in termination of the parent-child relationship (IC

31-37-14-2) and guardianship case law in discussing the standard of proof in adoptions where the

petitioner seeks to prove that the parent’s consent to adoption is unnecessary; Court also

considered IC 31-19-9-8(a)(11)(A), which allows the court to dispense with the need for parental

consent if an adoption petitioner proves by clear and convincing evidence that the parent is unfit

and that adoption is in the child’s best interests).

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IC 31-19-10-1.2 clarifies who has the burden of proving that a parent’s consent to adoption is

unnecessary. The adoption petitioner has the burden of proof in most situations under this statute.

The burden depends on which statutory exception to the need for the consent is alleged in the

adoption petition.

If the parent properly files a motion to contest the adoption under IC 31-19-10-1, the adoption

petitioner carries the burden of proof that parental consent is not required in the following

situations: (1) IC 31-19-9-8(a)(1) (abandonment); (2) IC 31-19-9-8(a)(2) (knowing failure to

support or failing without justifiable cause to communicate significantly with the child for at least

one year); (3) IC 31-19-9-8(a)(9) (parent judicially declared incompetent or mentally defective);

(4) IC 31-19-9-8(a)(11) (parent unfit and adoption would serve child’s best interests); (5) IC 31-

19-9-9 (parent convicted of and incarcerated at time of filing of adoption petition for murder,

causing suicide or voluntary manslaughter, victim is other parent, and dispensing with parental

consent is in child’s best interests); (6) IC 31-19-9-10 (parent convicted and incarcerated at time

of filing of adoption petition for specific crimes against child, child’s sibling, or step-sibling and

dispensing with parental consent in child’s best interests). IC 31-19-10-1.2(a), (c), (e), (f).

If the biological father properly files a motion to contest the adoption under IC 31-19-10-1, and

the petition for adoption alleges that the biological father’s consent is unnecessary under:

(1) IC 31-19-9-8(a)(4)(B) (child born out of wedlock who was conceived as a result of child

molesting (IC 35-42-4-3); or (2) IC 31-19-9-8(a)(4)(C) (child born out of wedlock who was

conceived as a result of sexual misconduct with a minor (IC 35-42-4-9), the biological father has

the burden of proving that the child was not conceived under circumstances that would cause the

father’s consent to be unnecessary under IC 31-19-9-8(a)(4). The absence of a criminal

prosecution and conviction is insufficient to satisfy the biological father’s burden of proof. IC 31-

19-10-1.2(b).

If a petition for adoption alleges that a legal guardian or lawful custodian’s consent to

adoption is unnecessary under IC 31-19-9-8(a)(10) (legal guardian or lawful custodian’s

failure to consent is not in child’s best interests), the legal guardian or lawful custodian has

the burden of proving that withholding consent to adoption is in the child’s best interests.

IC 31-19-10-1.2(d).

V. C. Abandonment

IC 31-19-9-8(a)(1) states that parental consent to adoption is not required if the child is adjudged

to have been abandoned or deserted for at least six months immediately preceding the date of the

filing of the petition for adoption. Abandonment may be actual or constructive; meaning, that if

“a parent has made only token efforts to support or to communicate with the child the court may

declare the child abandoned by the parent.” IC 31-19-9-8(b).

For the court to determine abandonment, it is only necessary that the parent voluntarily fail to

perform his required parental duties and obligations. Emmons v. Dinelli, 235 Ind. 249, 133

N.E.2d 56, 63 (1956). Abandonment as used in the statute means any conduct by the parent

which evinces an intent or settled purpose to forego all parental duties and to relinquish all

parental claims to the child. In Re Adoption of Childers, 441 N.E.2d 976, 979 (Ind. Ct. App.

1982).

In K.S. v. D.S., 64 N.E.3d 1209, 1215 (Ind. Ct. App. 2016), the Court held that the trial court’s

finding that Birth Mother abandoned the child was clearly supported by the evidence. IC 31-19-

9-8(a)(1) provides that “[i]f a parent has made only token efforts to support or communicate with

the child, the court may declare the child abandoned by the parent.” The Court noted the trial

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court’s finding that Birth Mother’s consent to the adoption was not required because she had

abandoned the child for at least six months immediately preceding the date the adoption petition

was filed. The Court listed the following evidence which supported the trial court’s finding: (1) it

was undisputed that Birth Mother had not visited the child since March 2015; (2) according to

Father, Birth Mother stopped showing up for visits, and when he contacted her to see if she was

coming to visit, he received no response; (3) after March 2015, Birth Mother never requested

visitation, and the dissolution court suspended her visitation in September 2015; (4) Birth Mother

texted Father in November 2015 asking to talk to the child on the phone, but Father did not allow

the telephone call because he believed the dissolution court order prohibited Mother from having

contact with the child; (5) Adoptive Mother testified that Birth Mother had sent a card to the

child in December 2015, but there was no support in the record for Birth Mother’s assertion that

Father and Adoptive Mother prevented the child from receiving it.

In In Re Adoption of J.T.A., 988 N.E.2d 1250, 1254-5, 1257 (Ind. Ct. App. 2013), trans. denied,

the Court affirmed the trial court’s denial of Father’s Fiancée’s petition to adopt Father’s child

without the consent of Mother. The Court found that Mother’s consent to the child’s adoption was

necessary and could not be dispensed with based on Fiancée’s claim that Mother had abandoned

the child. The Court, quoting In Re Adoption of Childers, 441 N.E.2d 976 (Ind. Ct. App. 1982),

said that abandonment is defined as “any conduct by a parent that evinces an intent or settled

purpose to forgo all parental duties and to relinquish all parental claims to the child.” The J.T.A.

Court noted that the relevant time period is at least six months immediately preceding the date of

the filing of the petition for adoption. The Court found that the trial court’s conclusion that

Mother had not abandoned the child was supported by the evidence, as the record indicated

Mother had regular contact with the child in the six months prior to the filing of the adoption

petition, during which Mother was living with the maternal grandmother and Mother saw the

child when he visited his grandmother. The Court said that the record did not indicate that Mother

otherwise evinced an intent to relinquish all parental claims.

Practitioners should note that In Re Adoption of M.L.L., 810 N.E.2d 1088, 1092 (Ind. Ct. App.

2004) does not address the legal standard for abandonment in adoption at IC 31-19-9-8(a)(1), but

the language of this opinion may be helpful in defining Indiana law regarding abandonment. The

M.L.L. Court opined that the trial court did not err when it found that the birth mother had

abandoned the child for purposes of the Uniform Child Custody Jurisdiction Act (UCCJA). The

Court quoted In Re Adoption of Force, 131 N.E.2d 157, 160 (Ind. Ct. App. 1956) for the common

law principle that “abandonment exists when there is such conduct on the part of a parent which

evidences a settled purpose to forego all parental duties and relinquish all parental claims to the

child…” The M.L.L. Court noted the following conduct by the birth mother which supported the

trial court’s finding of abandonment for purposes of the UCCJA: (1) birth mother requested that

Adoptive Parents take the child from Tennessee to live with them in Indiana; (2) birth mother

signed a consent to guardianship and consent to adoption; (3) birth mother helped Adoptive

Parents pack the child’s belongings, including giving the child’s birth certificate and social

security card to adoptive parents.

V. D. Lack of Significant Contact

IC 31-19-9-8(a)(2)(A) provides that consent to adoption is not needed from a parent of a child in

the custody of another person if for a period of at least one year the parent fails, without

justifiable cause, to communicate significantly with the child when able to do so. IC 31-19-9-

8(b) provides that if a parent has made only token efforts to support or communicate with the

child, the court may declare the child abandoned by the parent. Efforts of a noncustodial parent

to hamper or thwart communication between parent and child are relevant in determining the

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ability to communicate; see In Re Adoption of Augustyniak, 505 N.E.2d 868, 871 (Ind. Ct.

App. 1987); Lewis v. Roberts, 495 N.E.2d 810, 812-813 (Ind. Ct. App. 1986).

Indiana cases in which the Court of Appeals found that parental consent could be dispensed with

due to failure to significantly communicate with the child include:

Adoption of E.B.F. v. D.F., 79 N.E.3d 394, 401 (Ind. Ct. App. 2017), the Court affirmed the

trial court’s judgment which found that the child’s Birth Mother failed without justifiable

cause to communicate significantly with the child for over one year when she was able to do

so. The Court noted: (1) Birth Mother did not seriously contest that her only contacts with the

child over the time period in question were few, fleeting, and sometimes unintended, and

therefore not significant; (2) even her proposed communications with the child were not

significant; (3) outside of chance publics run-ins, her only attempted contacts were phone

calls that for various reasons were not connected; (4) she never attempted to write, participate

in the child’s school life, seek court enforcement of her parenting time, or investigate other

reasonable means of communication (emphasis in opinion). Although Birth Mother argued

that she had one significant communication with the child when she expressed a desire to

continue parenting him after she encountered the child, Father, and Stepmother at the local

baseball fields, the Court found that, at best, this incident manifested her desire to have

significant communication with the child, which was not the same as having a significant

communication.

In Re Adoption of E.A., 43 N.E.3d 592, 595, 598-9 (Ind. Ct. App. 2015), trans. denied,

where the Court affirmed the trial court’s order granting Stepfather’s adoption petition, and

finding that Father’s consent to the adoption was not required. The Court found that Father’s

consent to the child’s adoption was not required under IC 31-19-9-8(a)(2)(A). Stepfather held

the burden of proving that there was a lack of communication for the specified time period

and that during that time period the ability to communicate existed. Although imprisonment

does change what constitutes significant communication it does not alone justify a parent’s

failure to maintain significant communication. The Court found that Father did not persist in

his communications with the child and that he voluntarily chose to stop trying to

communicate with the child for over two years at the time Stepfather filed his adoption

petition. Therefore, Father’s consent to the adoption was not required.

In Re Adoption of O.R., 16 N.E.3d 965, 973-5 (Ind. 2014), where the Court affirmed the

trial court’s conclusion that Father’s consent to his child’s adoption was not required and that

Adoptive Parents’ adoption was in the child’s best interest. The Court found there was clear

and convincing evidence that Father’s consent to the child’s adoption was not required

because, while the child was in the custody of another person for at least one year, Father

failed without justifiable cause to communicate significantly with the child when able to do

so. The Court noted the following evidence: (1) Father did not dispute that the child was in

the custody of another person for a period of at least one year; (2) Father admitted that the

only communication he had with the child in over a six year period of time was a phone call

in 2011; (3) Father admitted that, while incarcerated over the last several years, he had never

attempted to write a letter to the child or to communicate with her at all; (4) Father’s claim

that the judge had ordered Adoptive Parents to bring the child to visit him in prison was

contradicted by the record; (5) although he blamed his failure to investigate a means of

obtaining the child’s address by communicating with Adoptive Parents’ counsel or the court,

Father’s claim of unfamiliarity with the court system was undermined by his adjudication as

an habitual offender.

In Re Adoption of S.W., 979 N.E.2d 633, 640-1 (Ind. Ct. App. 2012), where the Court held

that the trial court had not clearly erred in finding that Father failed to communicate

significantly with the child for a period of one year even though he was able to do so.

Maternal Grandparents were not required to prove that Father had no communication with the

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child, but they had to prove that he, for a period of one year, “fail[ed] without justifiable

cause to communicate significantly with the child when able to do so” (emphasis added in

opinion). The Court noted the following evidence in support of the trial court’s

determination: (1) Father had few visits with the child and failed to appear for scheduled

visits with the child; (2) Father had no contact at all with the child from 2002 until Mother

was released from prison in 2005; (3) after his incarceration, Father had little communication

with the child despite Maternal Grandparents’ willingness to let the child visit Father in

prison. The Court also refused to hold that the trial court clearly erred by failing to consider

Paternal Grandmother’s visits with the child as significant communication by Father.

In Re Adoption of T.W., 859 N.E.2d 1215, 1218-19 (Ind. Ct. App. 2006), where the Court

affirmed the trial court’s order granting Aunt and Uncle’s petition for adoption; Father’s

consent was not required under IC 31-19-9-8(a)(2)(A). The Court found that the following

evidence supported the determination that Father failed to communicate significantly with the

children: (1) the guardianship court denied in-jail visitation with the children, but not written

or telephonic communication; (2) Father did not try to write to or telephone the children;

(3) Uncle offered to buy Father’s stamps and stationary, but Father refused; (4) Father

conceded that he had not attempted to personally communicate with the children for three

years by the time of the adoption trial. The Court was not persuaded by Father’s argument

that, if he had tried to communicate with the children, Aunt and Uncle would have thwarted

his efforts.

In Re Adoption of C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006), where the Court

affirmed the trial court’s decision that, due to Mother’s lack of visits and communication with

the child, Mother’s consent to the adoption was not required. The Court noted that the six-

year-old child had been in custody of Adoptive Parents since he was eight months old.

In Re Adoption of R.L.R., 784 N.E.2d 964, 969-970 (Ind. Ct. App. 2003), where the Court

reversed and remanded with instructions to grant Stepmother’s adoption petition without

Mother’s consent, even though Mother had been clean and sober for a couple of years and

showed an interest in her child. Mother had no contact with her daughter for more than three

years including six months when mother was incarcerated. During this time, the child lived

with and developed a very close mother-daughter relationship with her stepmother.

See also Rust v. Lawson, 714 N.E.2d 769 (Ind. Ct. App. 1999) (Father failed to communicate

with child for a twenty-two month period); In Re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct.

App. 1999) (Mother’s brief monthly visits to adjudicated CHINS were not significant

communications); Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct. App. 1994) (Father was

serving fifty year prison sentence; sent only occasional letters and cards and took no other

action); In Re Adoption of Thornton, 358 N.E.2d 157 (Ind. Ct. App. 1976) (Mother may not

have known where child was, but nothing indicated that she had inquired about the child; statute

contemplates communication with the child itself and not merely involvement in litigation

relating to the child's custody).

Cases in which the Court of Appeals opined that parental consent due to alleged failure to

significantly communicate could not be dispensed with include:

In In Re Adoption of J.S.S., 61 N.E.3d 394, 397-9 (Ind. Ct. App. 2016), the Court affirmed

the trial court’s decision denying Foster Parents’ petition to adopt the children, and held that

the trial court did not err in determining that Foster Parents failed to meet their burden of

proof to show that Father’s consent to the adoption was not necessary. Foster Parents were

required to show by clear and convincing evidence that Father’s consent was not required

because Father failed to communicate with the children when able to do so (IC 31-19-9-

8(a)(2)(A)). The Court determined that In Re O.R., 16 N.E.3d 965 (Ind. 2014) was not as

broad an opinion as Foster Parents argued. While Foster Parents conceded that Father could

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not communicate with the children when there were court orders in place preventing contact,

they argued that Father could have had visitation with the children if he had acted in a more

timely manner to contact the children’s therapist. Foster Parents argued that this case meant

that they could be relieved of their obligation to show that Father was able to communicate

with the children and failed to do so, because other than his single, late contact with the

therapist, he had no contact with the children. The Court disagreed that this alleviated them

from their burden of proof. The Court found that evidence must favorable to the trial court’s

determination showed that Father had never gained the ability to contact the children, which

supported the trial court’s decision that Foster Parents had not met their burden of proof.

D.D. v. D.P., 8 N.E.3d 217, 220-22 (Ind. Ct. App. 2014), where the Court held that the trial

court had not erred when it found that Mother hampered and thwarted Father’s efforts to

communicate with the children. The Court then held that since Father had demonstrated

justifiable cause for not initiating direct communication with his children, Stepfather had not

met his burden of showing by clear and convincing evidence that Father’s consent was not

needed as provided in IC 31-19-9-8(a)(2)(A). The Court stated that even if Father was

required to directly communicate with the children, there were multiple emails where Father

had laid out plans to re-establish contact between himself and the children, and Mother never

responded to these emails. The Court opined that this was an indication that Father was

attempting to establish parenting time in a way that was least disruptive to the children.

McElvain v. Hite, 800 N.E.2d 947, 949 (Ind. Ct. App. 2003), where the Court reversed the

trial court’s grant of Stepfather’s petition for adoption which alleged that Father’s consent

was not needed due to failure to communicate significantly with the children. The Court

noted the following evidence: (1) Father had visited the children without Mother’s

knowledge, while the children were staying with a mutual friend; (2) Father had overnight

visitation with the children and visited one of the children at school after she had injured

herself requiring stitches; and (3) Mother testified that father had visited the children seven

months prior to the filing of the adoption petition.

See also In Re Adoption of Augustyniak, 505 N.E.2d 868 (Ind. Ct. App. 1987), reh'g granted

at 508 N.E.2d 1307 (Father lived in Florida and could not visit child regularly but sent child

cards and gifts and offered to drive to Indiana for a visit which Mother refused); Matter of

Adoption of Thomas, 431 N.E.2d 506 (Ind. Ct. App. 1982) (Louisiana divorce decree denied

visitation to Father, but he attempted communication; personal visits by paternal grandmother

constituted indirect significant communication; Father paid substantial child support without any

legal compulsion to do so); Lewis v. Roberts, 495 N.E.2d 810 (Ind. Ct. App. 1986)

(incarcerated adjudicated father’s letters, gifts, visits and requests for visits displayed a

continuing interest in his daughter).

V. E. Knowing Failure to Support When Able

IC 31-19-9-8(a)(2)(B) provides that the court may dispense with parental consent if the child is

in the custody of another person and if, for a period of at least one year, the parent knowingly

fails to provide for the care and support of the child when able to do so as required by law or

judicial decree.

Cases in which parental consent was not needed due to knowing failure to support when able to

do so include:

In Re The Adoption of T.L., 4 N.E.3d 658, 662-3 (Ind. 2014), where the Court affirmed the

trial court’s decision granting the adoption on the grounds that Father had knowingly failed to

provide for the care and support of the child when able to do so as required by law or judicial

decree. Father’s history of payment and non-payment of child support supported the trial

court’s conclusion that Father was able to pay child support while incarcerated, but chose not

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to do so, and this supported the trial court’s judgment that Father’s consent to the adoption

was not required. The Indiana legislature did not intend for incarcerated parents to be granted

a complete reprieve from their child support obligations, and the proper way to decide the

child support obligation of an incarcerated parent was to use the “non-imputation approach”

described in Lambert v. Lambert, 861 N.E.2d 1176, 1179 (Ind. 2007), which would impose a

minimal level of support without ignoring the realities of incarceration. Father’s own actions

demonstrated that Father had not been incarcerated during the entire duration of the support

order, and that even while Father was incarcerated, he demonstrated an ability to pay at least

some support.

In Re Adoption of M.S., 10 N.E.3d 1272, 1279-81 (Ind. Ct. App. 2014), where the Court

held that Mother’s consent was not needed because of Mother’s knowing failure, for a period

of a year, to support the child when able to do so, and that the adoption was in the child’s best

interests. The Court did not need to address Mother’s arguments about the trial court’s

aggregation of child support arrearage, because even if the Court were to interpret the word

“year” to only mean a calendar year, Mother still failed to support the child for over a year

(between January 12, 2011 and January 18, 2012). The Court determined that the payments

that Mother did make over a year and four month time period were insufficient to provide

support for the child. Token payments are not sufficient to comply with the terms of the

statute to make consent from the parent necessary. Mother made only one payment of $300

between September 17, 2010 and January 18, 2012. Although this exceeded to amount noted

as a token payment in prior case law, it was only the equivalent of six weeks’ worth of child

support payments, was the only payment Mother made in one year and four months, and was

insufficient to provide for the child’s maintenance and support. The Court concluded that

there was clear and convincing evidence to show that Mother did not support the child when

she was able to do so, noting several of the trial court’s finding indicating Mother’s ability to

pay.

In Re Adoption of J.L.J., 4 N.E.3d 1189, 1194-5, 1197 (Ind. Ct. App. 2014), where Father’s

consent to the adoption of his twin children was not required based on his knowing failure to

provide care and support for them despite an ability to do so. Quoting In Re Adoption of

J.T.A., 988 N.E.2d 1250, 1253 (Ind. Ct. App. 2013), the Court observed that a parent’s failure

to support may have occurred during “any year in which the parent had an obligation and the

ability to provide support, but failed to do so.” The J.L.J. Court observed that parents have a

duty to support their children regardless of a court mandate to pay. Among many other items

of evidence, the Court noted that Father: (1) never claimed he was unable to afford the

support payments; (2) admitted that he intentionally did not pay support based on his belief

that he was satisfying his obligation by “taking care of” the twins; (3) testified that his

disability payments were stopped based on Social Security’s finding that he was not disabled;

(4) clarified that he could work.

In Re the Adoption of T.L., 4 N.E.3d 658, 662-3 (Ind. 2014), where the Court affirmed the

trial court’s decision granting the adoption on the grounds that Father, who was incarcerated,

had knowingly failed to provide for the care and support of the child when able to do so as

required by law or judicial decree. Father’s history of both payment and non-payment of

child support, even while incarcerated, supported the trial court’s conclusion that Father was

able to pay child support while incarcerated, but chose not to do so, and this finding

supported the trial court’s judgment that Father’s consent to the adoption was not required.

The Court opined that it had said before that it “cannot imagine that the legislature intended

for incarcerated parents to be granted a full reprieve from their child support obligations”

and that such a position would “cut against the established common law tradition that has

long held parents responsible for the support of their offspring.” (citing Lambert v. Lambert,

861 N.E.2d 1176, 1179 (Ind. 2007)). The Court determined that the proper way to decide the

child support obligation of an incarcerated parent was to use the “non-imputation approach”

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described in Lambert, which would impose a minimal level of support without ignoring the

realities of incarceration.

In Re Adoption of K.S., 980 N.E.2d 385, 389-90 (Ind. Ct. App. 2012), where the Court

concluded that Mother’s consent to the child’s adoption was not required due to Mother’s

failure to pay child support when able to do so. Because Mother was found in contempt for

failure to pay child support on May 4, 2012, the Court must necessarily find that Mother had

the ability to financially support the child and willfully failed to do so. Because the child

support order was issued on January 11, 2010, and made retroactive to December 3, 2009,

and the petition for adoption was filed on December 19, 2011, Mother willfully failed to pay

support for more than one year.

In Re Adoption of K.F., 935 N.E.2d 282, 288-9 (Ind. Ct. App. 2010), trans. denied, where

the Court affirmed the trial court’s grant of Stepmother’s petition to adopt Mother’s two

children. The children lived in Father’s physical custody since their parents’ divorce. Mother

entered into three agreed orders on dissolution court contempt actions in 2006, 2007, and

2009, where she conceded that she had knowingly and intentionally failed to pay child

support as ordered. The Court held that the evidence was sufficient to prove that Mother had

the ability to pay but failed to pay child support for at least one year.

In Re Adoption of D.C., 928 N.E.2d 602, 606-7 (Ind. Ct. App. 2010), trans. denied, where

the Court concluded that Adoptive Parents established that Father failed to provide for the

child’s care and support when able to do so, and his consent was not needed. The following

evidence was noted: (1) Father was ordered to pay support of $322.78 per month for the

child; (2) Father paid no more than $500 in the 12 months before the adoption petition; (3)

there was no showing that Father made any single conforming child support payment for the

child’s benefit during the year preceding the filing of the adoption petition although a

substantial child support arrearage had accrued.

In Re Adoption of B.R., 877 N.E.2d 217, 218-19 (Ind. Ct. App. 2007), where the Court held

that Father had the common law duty of a parent to support his child, and that his failure to

do so satisfied IC 31-19-9-8(a)(2)(B). The trial court had found that Father had failed to pay

support when, at various times in the past five years, he had the ability to pay; but, inasmuch

as there was no court order or other requirement that Father pay child support, Father’s

consent to the adoption was necessary.

In Re Adoption of M.A.S., 815 N.E.2d 216, 220-21 (Ind. Ct. App. 2004), where the Court

affirmed the trial court’s grant of Stepfather’s adoption. The Court noted the following

evidence: (1) Father failed to pay child support for two years during which time he was

employed and also paid for bail; (2) even though the trial court’s order to pay child support

terminated when the CHINS action was dismissed, Father still had a common law duty to

support the child; (3) Father was aware that the child support he was paying applied only to

his two older children; and (4) Father’s occasional provision of groceries, diapers, formula,

clothing, presents, and cash were gifts, not child support.

See also Irvin v. Hood, 712 N.E.2d 1012, 1014 (Ind. Ct. App. 1999) (paternity affiant father did

not pay child support for three years despite employment; Indiana law imposes upon a parent a

duty to support his children which exists apart from any court order or statute); In Re Adoption

of A.K.S., 713 N.E.2d 896 (Ind. Ct. App. 1999) (paternity affiant father’s consent was dispensed

with due to his failure to pay child support for three years; fathers have a common law duty to

support their children); Matter of Adoption of A.M.K., 698 N.E.2d 845, 847 (Ind. Ct. App.

1998) (paternity affidavit signed shortly after the child's birth acknowledged the father's

obligation to support the child).

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Cases in which a parent’s consent was needed under IC 31-19-9-8(a)(2)(B) include:

In Re Adoption of J.T.A., 988 N.E.2d 1250, 1251, 1254-5 (Ind. Ct. App. 2013), trans.

denied, where the Court found that Fiancée failed to carry her burden of proof that Mother’s

failure to support the child was a reason for the trial court to determine that Mother’s consent

to the child’s adoption was not required. The Court stated that, while the abandonment

ground requires that the abandonment have occurred in the time immediately preceding the

filing of the petition for adoption, there is no such requirement for the failure to support

ground. The Court clarified that the plain language of the statute indicates that the relevant

time period is any one year period in which the parent was required to and able to support the

child but failed to do so (emphasis in opinion). The Court found that the record was silent as

to Mother’s ability to provide support during those years. The Court said that Fiancée needed

to prove that Mother was required to support, able to support, and failed to support the child

for any one year period.

In In Re Adoption of M.B., 944 N.E.2d 73, 77-8 (Ind. Ct. App. 2011), where the Court

concluded that Father provided support by providing childcare during his parenting time one

workday per week and that Father cared for the child. The Court found that Stepfather had

not shown that Father failed to provide support; therefore, Stepfather had not met his burden

of showing that Father’s consent is not required.

In Re Adoption of N.W., 933 N.E.2d 909, 913-4 (Ind. Ct. App. 2010), adopted by the

Indiana Supreme Court at 941 N.E.2d 1042 (Ind. 2011) where the Court concluded that

Stepmother failed to prove by clear and convincing evidence that Mother’s consent to

adoption was not required. The Court opined that the mere showing that Mother had a regular

income, standing alone, is not sufficient to indicate Mother’s ability to provide support

(emphasis added by Court). The evidence established that Mother provided for the child to

the best of her ability: (1) both parties agreed that due to Mother’s economic situation no

child support payments were required; (2) the trial court concluded that Mother had a

“negative child support obligation”; (3) Mother remained under a common law duty to

provide support to the child when able to do so; (4) Mother fulfilled her duty of support in

non-monetary terms by providing the child with housing, clothing, food, etc. during parenting

time.

McElvain v. Hite, 800 N.E.2d 947, 950 (Ind. Ct. App. 2003), where the Court reversed the

trial court’s grant of Stepfather’s petition for adoption which alleged that Father’s consent

was not needed due to his failure to provide support to the children. The Court noted the

following evidence: (1) Father failed to maintain his support obligations after losing his

unemployment benefits; (2) after losing his benefits Father was unable to pay support and had

to move in with family members; (3) once Father secured part-time employment, he had

support payments withheld from his salary; and (4) the trial court had determined that Father

was not in contempt for failing to maintain support when it determined his arrearage.

See also In Re Adoption of Augustyniak, 505 N.E.2d 868 (Ind. Ct. App. 1987), reh'g granted at

508 N.E.2d 1307 (Court held that an inability to pay support cannot be shown by proof of income

standing alone; totality of circumstances, including whether income is steady or sporadic, and the

parent's reasonable expenses must also be considered).

V. F. Sexual Malfeasance by Putative Father

IC 31-19-9-8(a)(4) states that the consent to adoption is not required by a biological father of a

child born out of wedlock who was conceived as a result of rape for which the father was

convicted under IC 35-42-4-1; child molesting (IC 35-42-4-3); sexual misconduct with a minor

(IC 35-42-4-9); incest (IC 35-46-1-3); or a crime in any other jurisdiction in which the elements

of the crime are substantially similar to the elements of a crime listed previously.

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If the biological father properly files a motion to contest the adoption, and the petition for

adoption alleges that the biological father’s consent is unnecessary under: (1) IC 31-19-9-

8(a)(4)(B) (child born out of wedlock who was conceived as a result of child molesting; or

(2) IC 31-19-9-8(a)(4)(C) (child born out of wedlock who was conceived as a result of sexual

misconduct with a minor), the biological father has the burden of proving that the child was not

conceived under circumstances that would cause the father’s consent to be unnecessary under

IC 31-19-9-8 (a)(4). The absence of a criminal prosecution and conviction is insufficient to

satisfy the biological father’s burden of proof. IC 31-19-10-1.2(b).

In In Re Adoption of J.D.B., 867 N.E.2d 252, 258-59 (Ind. Ct. App. 2007), trans. denied, the

Court affirmed the court’s judgment granting the foster parent’s adoption and determining that

Father’s consent was not required. The petition for adoption alleged that Father’s consent was

not required because the child was born out of wedlock and was conceived as a result of

Father’s sexual misconduct with a minor. The Court noted that, contrary to Father’s contention,

the burden of proof regarding whether the child was conceived as a result of sexual misconduct

with a minor, was his burden. The absence of a criminal prosecution was insufficient to satisfy

that burden of proof. Father also contended that “he did not commit sexual misconduct with a

minor because he did not knowingly or intentionally perform or submit to sexual intercourse

with” the 14-year old mother, because she “had sexual intercourse with him while he was

asleep, he did not wake up, and he had no knowledge of having had sex with [her].” The girl’s

testimony at the consent hearing was consistent with Biological Father’s contention. The Court

noted, however, that Biological Father “presented no evidence that the medication he had taken

was capable of causing him, a 180-pound man, to remain asleep while a teenage girl, weighing

only 120 pounds, removed his pants and had sexual intercourse with him,” and held that “the

fact that a twenty-nine year old man and a fourteen-year old girl had sexual intercourse and

conceived a child solidly supports an inference that the man intended and/or knew that he was

engaging in sexual intercourse.”

See also Pena v. Mattox, 84 F. 3d 894 (7th Cir. 1996) (Court opined that society rightly

disapproved of the alleged father's act in impregnating a fifteen-year- old girl and the

Constitution does not forbid states from penalizing father's illicit and harmful conduct by

refusing to grant him parental rights to block the adoption); Mullis v. Kinder, 568 N.E.2d 1087

(Ind. Ct. App. 1991) (although Father was not criminally convicted of child molesting and

lacked notice of potential implications of sexual intercourse with a fifteen-year-old, the Court

held that to establish by a preponderance of evidence that the father committed child molesting,

adoptive parents must show only Father’s and Mother’s respective ages and that Father had

sexual intercourse with Mother).

V. G. Judicial Declaration of Incompetency

IC 31-19-9-8(a)(9) provides that consent is not needed from a parent who is judicially declared

incompetent or mentally defective, “if the court dispenses with the parent’s consent to adoption.”

The terms “incompetent” and “mentally defective” are not defined in Title 31. A separate

guardianship incompetency adjudication could be used to meet the statutory standard. Expert

psychological or psychiatric evidence may be required to prove the parent is incompetent or

mentally defective.

The authors of this Deskbook are unaware of any adoption case law pertaining to IC 31-19-9-

8(a)(9), but termination of parental rights case law premised upon a parent’s emotional or mental

impairment may be found in Chapter 11 at IX.C.

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V. H. Parental Conviction and Incarceration

IC 31-19-9-9 and 10 both pertain to certain crimes that parent has committed, been convicted of,

and is incarcerated for, and how these crimes make a parent’s consent unnecessary, after notice

and a hearing.

IC 31-19-9-9 provides that a court shall determine that consent to adoption is not required from a

parent if that parent is convicted of and incarcerated at the time of the filing of the adoption

petition for murder (IC 35-42-1-1), causing suicide (IC 35-42-1-2), voluntary manslaughter (IC

35-42-1-3), an attempt under IC 35-41-5-1 to commit one of these crimes, or a crime in another

state that is substantially similar these crimes. IC 31-19-9-9(2) provides that the victim must be

the other’s parent. The Court must determine, after notice to the convicted parent and a hearing,

that dispensing with the parent's consent to adoption is in the child's best interests. IC 31-19-9-

9(3).

IC 31-19-9-10 provides that a court shall determine that consent to adoption is not required from

a parent if that parent is convicted of and incarcerated at the time of the filing of the adoption

petition for:

• murder (IC 35-42-1-1)

• causing suicide (IC 35-42-1-2)

• voluntary manslaughter (IC 35-42-1-3)

• rape (IC 35-42-4-1)

• criminal deviate conduct (IC 35-42-4-2) (before its repeal)

• child molesting (IC 35-42-4-3) as a Class A or Class B felony or a Level 1, Level 2, Level

3, or Level 4 felony

• incest (IC 35-46-1-3) as a Class B felony or a Level 4 felony

• neglect of a dependent (IC 35-46-1-4) as a Class B felony or Level 1 or Level 3 felony

• battery of a child (IC 35-42-2-1) as a Class C felony or a Level 5 felony

• battery (IC 35-42-2-1) as a Class A or Class B felony or a Level 2, Level 3, or Level 4

felony

• domestic battery (IC 35-42-2-1.3) as a Level 5, Level 4, Level 3, or Level 2 felony

• aggravated battery (IC 35-42-2-1.5) as a Level 3 or Level 1 felony

• an attempt under IC 35-41-5-1 to commit an offense described in this subdivision.

The victim must be the child or the child’s sibling, half sibling, or stepsibling of the parent’s

current marriage. IC 31-19-9-10(2). The Court must determine, after notice to the convicted

parent and a hearing, that dispensing with the parent's consent to adoption is in the child's best

interests. IC 31-19-9-10(3).

Practitioners should note That IC 31-19-9-10(1)(E) addresses the effect of a conviction for

criminal deviate conduct on a parent’s consent to an adoption, and criminal deviate conduct as a

separate, independent crime was repealed. However, criminal deviate conduct was added as part

of the definition of rape at IC 35-42-4-1, and IC 31-19-9-10(1)(D) addresses rape.

Proof of conviction and incarceration can be offered by certified copy of criminal conviction,

(Ind. Evidence Rule 803(22)) and Department of Correction records (Ind. Evidence Rule 803(8)).

See also Payne v. State, 658 N.E.2d 635 (Ind. Ct. App. 1995).

Parental incarceration, standing alone, generally does not establish abandonment so as to allow

adoption without parental consent. Murphy v. Vanderver, 349 N.E.2d 202 (Ind. Ct. App. 1976).

An incarcerated parent may fail to communicate significantly with his child, thus establishing

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legal cause for dispensing with his consent. Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct.

App. 1994). Imprisonment alone is generally not deemed a justifiable reason for failing to

maintain significant contact with one's child. Matter of Adoption of Herman, 406 N.E.2d 277

(Ind. Ct. App. 1980).

V. I. Irrevocably Implied Consent

IC 31-19-9-12 through 19 establish irrevocably implied consent to adoption by operation of law

for a person, mostly a putative father, who fails to take certain legal actions at certain times. A

putative father whose consent to the adoption is deemed irrevocably implied is not permitted to

challenge the adoption or the validity of his implied consent. IC 31-19-9-13; IC 31-19-9-16; IC

31-19-9-19.

A putative father whose consent is irrevocably implied may also be barred from establishing

paternity, either by a court proceeding or by executing a paternity affidavit, in Indiana or in any

other jurisdiction. IC 31-19-9-14; IC 31-19-9-17(a). There may be exceptions to this general

rule, but they are extremely limited. See IC 31-19-9-17(b) and (c); see also this Chapter at V.I.2

and V.I.4.

For more detailed information on the various ways in which consent can be deemed irrevocably

implied, see V.I.1 and V.I.3.a through c.

V. I. 1. Irrevocably Implied Consent When Actual Pre-Birth Notice Received

If a putative father receives actual pre-birth notice (IC 31-19-3) of the mother’s intention to

place the child for adoption, the putative father’s consent is irrevocably implied unless he

files a proper paternity action within thirty days of receiving the notice. IC 31-19-9-15. The

paternity action must be filed regardless of whether the child is born before or after the thirty

day period. IC 31-19-9-15(a)(1).

The putative father who receives actual pre-birth notice may also have his consent irrevocably

implied if he fails to establish paternity in the paternity proceeding under IC 31-14 after filing

the action. IC 31-19-9-15(a)(2). Arguably, this requires the putative father to comply with the

notice and time deadlines of IC 31-14-21 for paternity actions filed when an adoption is

pending.

A putative father whose consent to an adoption is irrevocably implied under IC 31-19-9-15 is

not permitted to contest the adoption, and is not permitted to contest the validity of his

implied consent to adoption. IC 31-19-9-16.

See this Chapter at V.I.2 and V.I.4. below for establishment of paternity consequences.

In In Re Adoption of Fitz, 805 N.E.2d 1270, 1273-74 (Ind. Ct. App. 2004), trans. denied,

the Court opined that Putative Father’s consent to adoption was irrevocably implied because

Putative Father failed to file a paternity action not more than thirty days after receiving actual

pre-birth notice of Mother’s intent to proceed with an adoptive placement of the child.

Putative Father filed his paternity action after the attorneys for Adoptive Parents contacted

him, thirty-one days after receipt of pre-birth notice. The Court found that the trial court had

not erred in denying Putative Father’s motion to set aside the judgment of irrevocably implied

consent.

In In Re Paternity of Baby W., 774 N.E.2d 570, 578-79, n.6 (Ind. Ct. App. 2002), the Court

was unpersuaded by Putative Father’s argument that he substantially complied with IC 31-19-

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9-15 by initiating DNA testing within the thirty day time period after receiving pre-birth

notice. Putative Father had received the pre-birth notice contemplated by IC 31-19-9-15,

which is a nonclaim statute, and Putative Father’s failure to file a paternity action within

thirty days resulted in his consent to the child’s adoption being irrevocably implied. The

Court rejected Putative Father’s contention that IC 31-19-9-15 is unconstitutional, citing its

decision in In Re Paternity of M.G.S., 756 N.E.2d 990, 1006 (Ind. Ct. App. 2001), trans.

denied, and stated that Putative Father had not raised any additional argument that would

cause the Court to hold otherwise. The Court noted that “it would be both appropriate and

desirable” to appoint a guardian ad litem to represent the child in the adoption proceedings.

In In Re Paternity of M.G.S., 756 N.E.2d 990, 997-1000, 1007 (Ind. Ct. App. 2001), trans.

denied, the Court ruled that from the clear language of IC 31-19-9-15 and the corresponding

pre-birth notice and intervention provisions, it is apparent that no right of action exists outside

of the thirty-day statutory time limit; therefore, IC 31-19-9-15 is a nonclaim statute and is not

subject to any equitable deviation. The Court defined a nonclaim statute as “one which

creates a right of action and has inherent in it the denial of a right of action. It imposes a

condition precedent – the time element which is part of the action itself.” Nonclaim statutes

limit the time in which a claim may be filed or an action brought; they have nothing in

common with general statutes of limitation. The Court noted that, while an ordinary statute of

limitations may be waived and is subject to equitable tolling, a nonclaim statute is not. The

Court concluded that Putative Father’s consent to adoption was irrevocably implied because

he failed to file a paternity action within the statutory time limit. The Court clarified that its

opinion in In Re Adoption of A.N.S., 741 N.E.2d 780 (Ind. Ct. App. 2001), does not stand for

the proposition that the Court accepts that equitable arguments justify circumvention of the

thirty-day time limit. The Court found that Putative Father had it within his own power to

assert his rights and obtain an opportunity to be heard by filing for paternity within the thirty-

day statutory time limit, but his own failure to act on the notice given him deprived him of the

opportunity to be heard. The Court concluded, in a matter of first impression, that the implied

consent provision of Indiana’s adoption statutes does not violate the constitutional right to

due process. In a concurring opinion, Judge Robb opined that the appointment of a guardian

ad litem to represent the child’s interests at the adoption proceeding would be highly

appropriate.

But see In Re Adoption of A.N.S., 741 N.E.2d 780 (Ind. Ct. App. 2001) (although not

addressed on appeal, adoption court concluded that irrevocably implied consent was

inequitable when putative father filed paternity action thirty-eight days after receipt of pre-

birth notice; clarified in In Re Paternity of M.G.S., 756 N.E.2d 990, 997-1000, 1007 (Ind. Ct.

App. 2001))

V. I. 2. Establishment of Paternity When Adoption Does Not Take Place After Actual Pre-Birth

Notice

A putative father whose consent to an adoption is deemed irrevocably implied under IC 31-

19-9-15 is not entitled to establish paternity of the child either in a court proceeding or by

executing a paternity affidavit. IC 31-19-9-17(a).

However, there is an exception to this rule. If neither a petition for adoption nor placement of

the child in a proposed adoptive home is pending, IC 31-19-9-17(b) allows the putative father

who received actual pre-birth notice to establish paternity in Indiana or another jurisdiction.

To do so, the putative father must submit an affidavit prepared by the licensed child placing

agency or attorney that served him with the pre-birth notice. IC 31-19-9-17(b)(1). The

affidavit must state that neither a petition for adoption nor placement of the child in an

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adoptive home is pending. IC 31-19-9-17(b)(1). The affidavit must be submitted with the

putative father’s paternity petition. IC 31-19-9-17(b)(1). Paternity may then be established if

the court finds on the record that neither a petition for adoption nor a prospective adoptive

placement is pending. IC 31-19-9-17(b)(2).

This potential ability to establish paternity as set forth by IC 31-19-917(b) is very limited; the

“requirements of this subsection are jurisdictional and must be strictly adhered to by the

putative father and the court.” IC 31-19-9-17(b).

IC 31-19-9-17(c) does further provide for other situations beyond actual pre-birth notice. It

states that a person, not just a putative father, who is otherwise barred from establishing

paternity under IC 31-19 may be able to establish paternity of a child if an adoption for the

child is not pending or contemplated. However, a “petition for adoption that is not filed or a

petition for adoption that is dismissed is not a basis for enabling an individual to establish

paternity under this section unless the requirements of subsection (b) are satisfied.” IC 31-19-

9-17(c).

In In Re Adoption of K.G.B., 18 N.E.3d 292, 294-5, 297-9, 303-4 (Ind. Ct. App. 2014), the

Court affirmed the trial court’s orders dismissing Putative Father’s petition to establish

paternity, and striking Putative Father’s motion to contest the child’s adoption. Because

Putative Father failed to timely register with the Registry, he had irrevocably waived his right

to notice of the child’s adoption, had impliedly consented to the adoption, and was barred

from contesting the adoption. A putative father who fails to register within the period

specified by IC 31-19-5-12 waives notice of an adoption proceeding, which constitutes an

irrevocably implied consent to the child’s adoption (IC 31- 19-5-18), and a putative father

whose consent has been implied may not challenge the adoption or establish paternity (IC 31-

19-9-13 and -14). The Court concluded that Putative Father’s implied consent also meant he

was barred from establishing paternity (IC 31-19-9-14). Putative Father argued that his

amended paternity petition, styled as being filed on behalf of the child, endured; but this

argument ignored IC 31-14-5-9, which explicitly states that “[a] man who is barred under

[Indiana Code article] 31-19 from establishing paternity may not establish paternity by: (1)

filing a paternity action as next friend of the child.” The Court also held that Putative Father

failed to meet his burden of proving that the challenged statutes were unconstitutional as

applied to him.

In In Re Adoption of Infant Female Fitz, 778 N.E.2d 432, 438 (Ind. Ct. App. 2002), the

Court reversed and remanded with instructions to hold a hearing on Putative Father’s T.R.

60(B) motion. The Court opined that Putative Father’s consent to the first adoptive family’s

petition was irrevocably implied because he did not file a paternity action within thirty days

of receiving pre-birth notice. The Court went on to state that if the first adoptive family’s

petition for adoption fell through for any reason, including voluntary dismissal by petitioners,

Putative Father was entitled to establish paternity pursuant to IC 31-19-9-17(b).

V. I. 3. Irrevocably Implied Consent In Other Situations

IC 31-19-9-12 provides that a putative father’s consent to an adoption is irrevocably implied

if he does any of the following:

(1) fails to file a motion to contest the adoption within thirty days after service of notice

under IC 31-19-4 in the court in which the adoption is pending;

(2) if he files a proper motion to contest the adoption, he then fails to appear at the

hearing set to contest the adoption;

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(3) if he files a paternity action in Indiana or any other jurisdiction, he then fails to

establish paternity in the action; or

(4) if he is required to but fails to register with the putative father registry within the

period under IC 31-19-5-12.

A putative father whose consent to an adoption is irrevocably implied under IC 31-19-9 or IC

31-19-5-18 is not permitted to challenge the adoption, and is not permitted to challenge the

validity of his implied consent to the adoption. IC 31-19-9-13. Furthermore, unless a putative

father falls into the exception noted at IC 31-19-9-17(b) and (c), the putative father whose

consent to an adoption is irrevocably implied cannot establish paternity of a child, by

affidavit or otherwise, in Indiana or any other jurisdiction. IC 31-19-9-14. See also In Re

Adoption of K.G.B., 18 N.E.3d 292, 294-5, 297-9, 303-4 (Ind. Ct. App. 2014) (Putative

Father’s implied consent also meant he was barred from establishing paternity (IC 31-19-9-

14). Putative Father argued that his amended paternity petition, styled as being filed on behalf

of the child, endured; but this argument ignored IC 31-14-5-9, which explicitly states that “[a]

man who is barred under [Indiana Code article] 31-19 from establishing paternity may not

establish paternity by: (1) filing a paternity action as next friend of the child”). For more case

law on this topic, see this Chapter at V.I.2, V.I.4., and VI.F.

If a putative father’s motion to contest an adoption is denied, he is barred from establishing

paternity by affidavit or otherwise, in Indiana or any other jurisdiction. IC 31-19-10-8.

For discussion of irrevocably implied consent due to failure to prosecute a motion to contest

an adoption, see V.I.3.c.

V. I. 3. a. Irrevocably Implied Consent When Pre-Birth Notice Has Not Been Served; When Actual

Post Birth Notice Received

IC 31-19-9-12 was amended after the 2009 Indiana Supreme Court Case of In Re B.W.,

908 N.E.2d 586 (Ind. 2009). IC 31-19-9-12 now provides that consent to an adoption is

irrevocably implied for a putative father without further court action in any one of the

following situations:

• The putative father fails to contest the adoption in accordance with IC 31-19-10

within thirty (30) days after service of notice under IC 31-19-4 in the court in which

the adoption is pending; or

• The putative father fails to appear at the hearing set to contest the adoption, having

filed a motion a motion to contest the adoption in accordance with IC 31-19-10; or

• Having filed a paternity action under IC 31-14 or in any other jurisdiction, the

putative father fails to establish paternity [see also IC 31-14-21 for time requirements

for establishing paternity]; or

• The putative father is required to but fails to register with the putative father registry

within the period described under IC 31-19-5-12.

If a putative father fails to meet one of these deadlines, his consent can be deemed to be

irrevocably implied, which will have consequences for his ability to contest an adoption

or establish paternity. A putative father whose consent to an adoption is irrevocably

implied under IC 31-19-9 or IC 31-19-5-18 is not permitted to challenge the adoption,

and is not permitted to challenge the validity of his implied consent to the adoption. IC

31-19-9-13. Furthermore, unless a putative father falls into the exception noted at IC 31-

19-9-17(b) and (c), the putative father whose consent to an adoption is irrevocably

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implied cannot establish paternity of a child, by affidavit or otherwise, in Indiana or any

other jurisdiction. IC 31-19-9-14.

IC 31-19-9-17(c) provides that a person, not just a putative father, who is otherwise

barred from establishing paternity under IC 31-19 may be able to establish paternity of a

child if an adoption for the child is not pending or contemplated. However, a “petition for

adoption that is not filed or a petition for adoption that is dismissed is not a basis for

enabling an individual to establish paternity under this section unless the requirements of

subsection (b) are satisfied.” IC 31-19-9-17(c). The requirements of IC 31-19-9-17(b)

are: (1) the putative father must submit an affidavit prepared by the licensed child placing

agency or attorney that served him with the pre-birth notice. IC 31-19-9-17(b)(1); (2) the

affidavit must state that neither a petition for adoption nor placement of the child in an

adoptive home is pending; (3) IC 31-19-9-17(b)(1). The affidavit must be submitted with

the putative father’s paternity petition; (4) IC 31-19-9-17(b)(1); (5) Paternity may then be

established if the court finds on the record that neither a petition for adoption nor a

prospective adoptive placement is pending. IC 31-19-9-17(b)(2).

In Re B.W., 908 N.E.2d 586, 592-94 (Ind. 2009), was decided before the statutory

amendment of IC 31-19-9-12, and this case should now be read in light of the

amendments to IC 31-19-9-12. Practitioners should be cautious in citing to this case,

given the sweeping amendments to the statute. The Court held that, under IC 31-19-9-

12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative

father must have failed to file both a paternity action and a motion to contest the

adoption. (emphasis in opinion). Boehm, J, concurred with separate opinion “to observe

that these statutes, taken together, seem to provide multiple opportunities for confusion or

even intentional obfuscation,” and with the hope that “the General Assembly will

consider requiring that a putative father wishing to contest an adoption or declare

paternity must file in the court in which an adoption action is pending or otherwise assure

consolidation of these two proceedings...”

See also In Re Adoption of E.L.,913 N.E.2d 1276, 1279-81 (Ind. Ct. App. 2009)

(relying on In Re B.W., 908 N.E.2d 586 (Ind. 2009), Court held that, contrary to trial

court’s finding, because Putative Father timely filed a paternity petition, his failure to file

a motion contesting adoption did not imply consent to adoption under IC 31-19-9-12(1),

but Putative Father’s failure to register as a putative father constituted an irrevocably

implied consent to the child’s adoption).

V. I. 3. b. When Putative Father Fails to Timely Register with the Putative Father Registry When

Required

In order for a putative father to be entitled to a notice of an adoption under IC 31-19-3 or

-4, he must register with the putative father registry within than the later of the following

options (IC 31-19-5-12(a):

(1) thirty days after the child's birth; or

(2) the earlier of the date of the filing of a petition for the:

(A) child's adoption; or

(B) termination of the parent-child relationship between the child and the mother.

A putative father may register with the putative father registry before the child’s birth. IC

31-19-5-12(b).

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If a putative father fails to register within the period specified by IC 31-19-5-12 waives

notice of an adoption proceeding. This waiver by the putative father constitutes an

irrevocably implied consent to the adoption. IC 31-19-5-18.

In In Re I.J., 39 N.E.3d 1184, 1187-8 (Ind. Ct. App. 2015), the Court reversed the trial

court’s orders which: (1) denied Putative Father’s motions to intervene in the child’s

adoption; (2) denied Putative Father’s motion for genetic paternity testing; and (3)

granted the child’s adoption. The Court found that, because Putative Father registered

before the child was thirty days old, his registration was timely. Putative Father therefore

was entitled to notice of the adoption and should have been permitted to contest the

adoption. The Court looked to IC 31-19-5-12 for the timeline under which a putative

father must register with the putative father registry. The Court observed that, pursuant to

the statute, a putative father would still be entitled to notice of an adoption if he

registered “no later than… thirty (30) days after the child’s birth…” because the deadline

is thirty days after the birth or the date a petition for adoption is filed, “whichever occurs

later.” The Court found that Putative Father registered after the petition for adoption was

filed, but that did not foreclose his right to challenge the adoption if he registered before

the child was thirty days old. Since Putative Father registered before the child was thirty

days old, his registration was timely, he was entitled to notice of the adoption, and he

should have been permitted to contest it. The Court also held that Putative Father’s timely

registration gave him standing to challenge the adoption petition in the trial court and in

the appellate court. The Court further found that Putative Father’s timely registration with

the putative father registry entitled him to an opportunity to challenge the presumption

that Husband is the child’s father. The presumption of fatherhood created by IC 31-14-7-

1(1) can be rebutted by “direct, clear, and convincing evidence” that someone else is the

father, which is often done via genetic testing.

In In Re Adoption of K.G.B., 18 N.E.3d 292, 294-5, 297-9, 303-4 (Ind. Ct. App. 2014),

the Court affirmed the trial court’s orders dismissing Putative Father’s petition to

establish paternity, and striking Putative Father’s motion to contest the child’s adoption.

Because Putative Father failed to timely register with the Registry, he had irrevocably

waived his right to notice of the child’s adoption, had impliedly consented to the

adoption, and was barred from contesting the adoption. A putative father who fails to

proceeding, which constitutes an irrevocably implied consent to the child’s adoption (IC

31- 19-5-18), and a putative father whose consent has been implied may not challenge the

adoption or establish paternity (IC 31-19-9-13 and -14). The Court disregarded Putative

Father’s unsupported arguments that the putative father registry did not apply to him

because of his allegations Mother had disclosed his name or address to the attorney who

was arranging the adoption on or before the date she executed her adoption consent. The

Court concluded that Putative Father’s implied consent also meant he was barred from

establishing paternity (IC 31-19-9-14). Putative Father argued that his amended paternity

petition, styled as being filed on behalf of the child, endured; but this argument ignored

IC 31-14-5-9, which explicitly states that “[a] man who is barred under [Indiana Code

article] 31-19 from establishing paternity may not establish paternity by: (1) filing a

paternity action as next friend of the child.” The Court also held that Putative Father

failed to meet his burden of proving that the challenged statutes were unconstitutional as

applied to him.

In In Re Paternity of G.W., 983 N.E.2d 1193, 1194, 1197 (Ind. Ct. App. 2013), the

Court held that, as Birth Father acknowledged that he never registered with the putative

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father registry, he was not entitled to notice of the adoption proceeding, and had

irrevocably and implicitly consented to the child’s adoption. A putative father who

registers within thirty days of the child’s birth or the date the adoption petition is filed,

whichever occurs later, is entitled to notice of the child’s adoption (IC 31-19-5-4 and

IC 31-19-5-12). The Court, citing IC 31-19-5-5, said that if, on or before the date Mother

executes a consent to adoption, she does not disclose to the attorney or agency that is

arranging the adoption, the name or address, or both for the putative father, the putative

father must register to entitle him to notice of the child’s adoption (emphasis added by

the Court). The Court opined that the repercussions of failing to register with the putative

father registry are far-reaching and include irrevocably implied consent to an adoption

(IC 31-19-5-18).

In In Re Adoption of E.L., 913 N.E.2d 1276, 1279-80 (Ind. Ct. App. 2009), the Court

held that, by operation of IC 31-19-5-18, Putative Father’s failure to register as a putative

father constituted irrevocably implied consent to the adoption. Since Putative Father’s

consent was implied, he was not entitled to establish paternity while the adoption was

pending (IC 31-19-9-14). Putative Father’s timely filing of the paternity petition did not

render moot the requirement that he file with the putative father registry (IC 31-14-20-

1(b) and IC 31-19-5-6(b)). A putative father who fails to register with the putative father

registry set forth by IC 31-19-5-12 waives notice of the adoption proceeding and this

constitutes irrevocably implied consent (IC 31-19-5-18 and IC 31-19-9-12(4)), and is also

barred from establishing paternity (IC 31-19-9-14). However, if an adoption is no longer

“pending or contemplated,” the bar on establishing paternity is lifted (IC 31-19-9-17(c)).

See this Chapter at VI.D. for discussion of IC 31-19-5-12, the statute which provides the

time period by which the putative father must register to be entitled to notice of an

adoption.

V. I. 3. c. Irrevocably Implied Consent Due to Failure to Prosecute Motion to Contest Adoption

Who bears the burden of proof in a contested adoption depends on what statutory reason

for dispensing with the need for consent is alleged. IC 31-19-10-1.2. If the court finds

that the person who filed the motion to contest adoption is failing to prosecute the motion

without undue delay, the court shall dismiss the motion to contest with prejudice, and the

person’s consent to the adoption shall be irrevocably implied. IC 31-19-10-1.2(g). The

party who bears the burden of proof must prove the party’s case by clear and convincing

evidence. IC 31-19-10-0.5.

It is important to note that IC 31-19-9-18 does not apply to the consent of an agency or

DCS local office that is served with notice of an adoption petition under IC 31-19-4.5 and

has lawful custody of a child whose adoption is being sought. IC 31-19-9-18(a).

A person who is served with notice of an adoption under IC 31-19-4.5 may have their

consent to an adoption irrevocably implied if they fail to take certain timely actions. IC

31-19-9-18(b). A person served with such notice can have their consent deemed

irrevocably implied if the person:

(1) fails to properly file a motion to contest the adoption within thirty days after

service of notice; or

(2) properly files a motion to contest the adoption but fails to:

(A) appear at the hearing to contest the adoption; and

(B) prosecute the motion to contest without unreasonable delay.

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If a court finds that the person who filed the motion to contest is failing to prosecute the

motion without unreasonable delay, the court shall dismiss the motion to contest the

adoption with prejudice and the person’s consent to the adoption shall be irrevocably

implied. IC 31-19-9-18(c).

In L.G. v. S.L., 76 N.E.3d 157 (Ind. Ct. App. 2017), the Court held that the trial court

erred when it dismissed Father’s motion to contest the adoption in part because of his

failure to appear in person at a hearing. The trial court concluded that IC 31-19-9-12(2)

provided that a putative father’s consent could be irrevocably implied if, having filed a

motion to contest the adoption, the putative father then failed to appear at the hearing set

to contest the adoption, and that Father had failed to appear without justifiable cause. The

Court noted that the record showed, unequivocally, that the hearing at which Father failed

to appear was not the hearing set to contest the adoption, and instead, was a motions

hearing on other matters. Father’s motion to contest the adoption was set for hearing on a

different date. Therefore, IC 31-19-9-12(2) was inapplicable.

In K.S. v. D.S., 64 N.E.3d 1209, 1214 (Ind. Ct. App. 2016), the Court held that Birth

Mother’s consent to the adoption was irrevocably implied due to her failure to appear and

prosecute her motion to contest the adoption. IC 31-19-9-18 provides that the consent of

a person who had been served with notice of an adoption petition is irrevocably implied if

the person files a motion to contest the adoption, but then fails to appear at the hearing to

contest the adoption and fails to prosecute the motion without unreasonable delay. The

Court noted the following: (1) Birth Mother’s attorney made every effort to personally

notify her of the hearings, but her disappearance made it impossible for him to do so; (2)

Birth Mother could not short-circuit the adoption proceedings by vanishing; (3) the trial

court was not obligated to accept Birth Mother’s claim that she was in drug treatment as

true; (4) even if Birth Mother was in drug treatment, that would not excuse her complete

failure to maintain contact.

In In Re Adoption of K.M., 31 N.E.3d 533, 536-8 (Ind. 2015), the Court affirmed the

trial court’s order granting the adoption petition, and held that: (1) Mother’s procedural

due process rights were not violated by having her consent irrevocably implied pursuant

to IC 31-10-1 and IC 31-19-9-18; and (2) because IC 31-19-9-18 is a nonclaim statute,

Mother was not entitled to equitable deviation from the statutory thirty day time limit to

file a motion to contest the adoption. Both IC 31-19-10-1 and IC 31-19-9-18 provided

Mother with procedural due process; it was Mother’s failure to timely file a motion to

contest the adoption, not any State action, that prevented Mother from further opposing

Stepmother’s adoption petition. Mother received proper notice and failed to file her

motion to contest the adoption in the thirty day time period. However, Mother argued that

it was unconstitutional for IC 31-19-9-18 to allow her consent to be irrevocably implied

without a hearing, in essence arguing that a hearing on consent must be held in all

adoption cases. The Court noted that there was nothing in the statutory language that

required a hearing before deeming a person’s consent to be irrevocably implied under IC

31- 19-9-18, and declined to read a requirement for a hearing into the statute. The plain

language of IC 31-19-9-18 makes it a nonclaim statute, a statute with a condition

precedent that must be met before the enforcement of a right; as such, Mother was not

entitled to equitable deviation from the thirty day time limit. A nonclaim statute is not

subject to equitable tolling of a time limit, since a nonclaim statute creates a right of

action only if the action is taken within the prescribed time period.

See this Chapter at VII.B.3 for discussion this statute as it pertains to notice and consent.

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V. I. 4. Time Limitations For Establishing Paternity in Adoption Situations

Except as otherwise provided, if a court presiding over a paternity action knows of a pending

adoption for the same child, and the court in which the adoption is pending, the paternity

court must establish paternity of the child within the time period set forth by IC 31-14-21. IC

31-14-21-9(a). The exception to this statute is IC 31-14-21-13, which provides that if an

adoption court assumes jurisdiction of a paternity action pursuant to IC 31-19-2-14, the

paternity court must stay all its own paternity proceedings under further order from the

adoption court.

Except as otherwise provided, the paternity court must conduct an initial hearing within thirty

days of the filing of the paternity petition or the birth of the child, whichever occurs later. IC

31-14-21-9(b). Again, this is subject to IC 31-14-21-13, which provides that if an adoption

court assumes jurisdiction of a paternity action pursuant to IC 31-19-2-14, the paternity court

must stay all its own paternity proceedings under further order from the adoption court.

The paternity court must order all the parties to a paternity action to under blood or genetic

testing at an initial hearing, except as otherwise provided at IC 31-14-21-13 (when an

adoption court assumes jurisdiction of a paternity action; proceedings stayed). IC 31-14-21-

9.1(a). If the alleged father is unable to pay for such testing, the court must order the tests be

paid by the state department of health, who may in turn recover costs from the person found

to be the biological father of the child. IC 31-14-21-9.1(b).

Within ninety days of the initial hearing (IC 31-14-21-9), the court must conduct a final

hearing to determine paternity, subject to IC 31-14-21-13 (when an adoption court assumes

jurisdiction of a paternity action; proceedings stayed). IC 31-14-21-9.2. The paternity court

must issue its ruling within fourteen days of the final hearing. IC 31-14-21-9.2.

A putative father whose consent to an adoption is irrevocably implied under IC 31-19-9 or IC

31-19-5-18 (failing to timely register with putative father registry) is not permitted to

establish paternity, by affidavit or otherwise, in Indiana or any other jurisdiction, unless he

fits into one of the exceptions noted at IC 31-19-9-17(b) and (c). IC 31-19-9-14. The first of

these exceptions is found at IC 31-19-9-17(b). If neither a petition for adoption nor placement

of the child in a proposed adoptive home is pending, a putative father who received actual

pre-birth notice may establish paternity in Indiana or any other jurisdiction. To do so, the

putative father must submit an affidavit prepared by the licensed child placing agency or

attorney that served him with the pre-birth notice. IC 31-19-9-17(b)(1). The affidavit must

state that neither a petition for adoption nor placement of the child in an adoptive home is

pending. IC 31-19-9-17(b)(1). The affidavit must be submitted with the putative father’s

paternity petition. IC 31-19-9-17(b)(1). Paternity may then be established if the court finds on

the record that neither a petition for adoption nor a prospective adoptive placement is

pending. IC 31-19-9-17(b)(2).

This potential ability to establish paternity as set forth by IC 31-19-917(b) is very limited; the

“requirements of this subsection are jurisdictional and must be strictly adhered to by the

putative father and the court.” IC 31-19-9-17(b).

IC 31-19-9-17(c) does further provide for other situations beyond actual pre-birth notice. It

states that a person, not just a putative father, who is otherwise barred from establishing

paternity under IC 31-19 may be able to establish paternity of a child if an adoption for the

child is not pending or contemplated. However, a “petition for adoption that is not filed or a

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petition for adoption that is dismissed is not a basis for enabling an individual to establish

paternity under this section unless the requirements of subsection (b) are satisfied.” IC 31-19-

9-17(c). See this Chapter at V.I.2. for more discussion.

The putative father who receives actual pre-birth notice may also have his consent

irrevocably implied if he fails to establish paternity in the paternity proceeding under IC 31-

14 after filing the action. IC 31-19-9-15(a)(2). See this Chapter at V.I.1 and V.I.2. for more

discussion.

Practice Note: IC 31-14-21-13 clarifies that the paternity court should not act when an

adoption petition is pending in another court. IC 31-19-2-14 requires the consolidation of the

paternity proceeding with the adoption in the court which is hearing the petition for adoption.

If paternity is being established as part of the consolidated proceeding, it appears that the time

limits imposed by IC 31-14-21-9, 9.1, and 9.2 should be followed by the court hearing the

consolidated cases.

V. J. Parental Unfitness and Child’s Best Interests

IC 31-19-9-8(a)(11) provides that consent to adoption is not required from a parent if:

(A) a petitioner for adoption proves by clear and convincing evidence that the parent is

unfit to be a parent; and

(B) the best interests of the child sought to be adopted would be served if the court

dispensed with the parent’s consent.

The adoption petitioner has the burden of proving, by clear and convincing evidence, that the

requirements of IC 31-19-9-8(a)(11) are satisfied and that the best interests of the child are served

if the court dispenses with the parent’s consent to adoption. IC 31-19-10-1.2(e). IC 31-19-10-1.4

clarifies standards for the court’s determination in adoption when parental unfitness is alleged. It

provides that a court must consider all relevant evidence, but cannot base its determination solely

on a finding that the adoption petition would be a better parent to the child than the person

contesting the adoption, or that a parent has a biological link to the child.

In In Re Adoption of J.M., 10 N.E.3d 16, 21-2 (Ind. Ct. App. 2014), the Court affirmed the trial

court and held, among other things, that the trial court was not required to reevaluate parental

fitness at the time of the adoption hearing. Since the trial court concluded that Mother and Father

were unfit at the time of the consent hearing, this terminated Mother’s and Father’s parental

rights; the trial court did not need to reconsider Mother’s and Father’s fitness again at the

adoption hearing. Mother and Father argued that the trial court erred because it failed to consider

their fitness at the time of the consent hearing and again at the adoption hearing. The Court noted

previous case law, which held that evidence of a historical pattern of serious drug abuse was

sufficient to show that a parent was unfit. Given the evidence and the trial court’s findings on

Mother’s and Father’s historical difficulty with alcohol, drug use, and domestic violence, the

Court could not say that the trial court erred when it determined that Mother and Father were

unfit parents at the time of the consent hearing. Mother’s and Father’s “argument that the trial

court should have reevaluated their fitness at [the time of the adoption hearing] is merely a

request for a second bite at the proverbial apple. Once the trial court concluded that the Natural

Parents were unfit at the consent hearing…the effect was the termination of their parental rights.”

In In Re Adoption of M.L., 973 N.E.2d 1216, 122-4 (Ind. Ct. App. 2012), the Court affirmed the

trial court’s order which granted Adoptive Parents’ petition to adopt the child without Father’s

consent. There was sufficient evidence to support the trial court’s conclusions that Father was not

a fit parent and that the adoption is in the child’s best interests. The Court noted: (1) Adoptive

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Parents had the burden of proving by clear and convincing evidence that consent was not

required; (2) regardless of which provision of IC 31-19-9-8 adoption petitioners allege, an

adoption is granted only if it is in the best interests of the child. The Court looked to Black’s Law

Dictionary and termination of the parent-child relationship cases to provide guidance as to what

makes a parent “unfit.” The Court noted that in termination cases the Court has considered factors

such a parent’s substance abuse, mental health, willingness to follow recommended treatment,

lack of insight, instability in housing and employment, and ability to care for a child’s special

needs. The Court noted many of these factors present in this case. Regarding best interests, the

Court noted several pieces of evidence supporting the trial court’s conclusion that the adoption

was in the child’s best interests, including evidence on a stable, nurturing environment, a strong

bond with Adoptive Parents and others in the house, the child’s lack of bonding with Father, and

the child’s special needs.

In In Re Adoption of K.F., 935 N.E.2d 282, 288-9 (Ind. Ct. App. 2010), trans. denied, the Court

affirmed the trial court’s ordering granting the adoption and holding that the evidence was

sufficient to prove that Mother was unfit. The Court noted the following evidence in support of

the trial court’s unfitness conclusion: (1) Mother’s long history of substance abuse; (2) Mother’s

recent positive test for illicit substances; (3) Mother was arrested to dealing heroin and had a

pending case; (4) Mother has had only supervised visitation with the children; (5) the children

were stressed by visits with Mother. The Court noted that Mother’s struggle with drug addiction

has persisted for most of the children’s lives, and the children are thriving in the loving and caring

home provided by Father and Stepmother.

In In Re Adoption of H.N.P.G., 878 N.E.2d 900, 906-08 (Ind. Ct. App. 2008), trans. denied, the

Court found that Foster Parents proved that Father was unfit to be a parent and that the adoption

was in the child’s best interests. In arriving at its holding, the Court noted: (1) Father had never

met or communicated with the child; (2) Father’s substantial history of illegal drug use;

(3) Father’s current incarceration; (4) Father’s release date would be when the child would be

thirteen years old; (5) Father was habitually unemployed; (6) it is well-settled law that those who

pursue criminal activity run the risk of being denied the opportunity to develop relationships with

their children; (7) the child’s needs were too important to force her to wait until a determination

can be made that Father will be able to be a fit parent to her; (8) ample evidence supported the

trial court’s conclusion that the child’s best interests were served by granting Foster Parents’

adoption petition.

In In Re Adoption of T.W., 859 N.E.2d 1215, 1218-19 (Ind. Ct. App. 2006), the Court opined

that Adoptive Parents had presented clear and convincing evidence that Father was unfit to be a

parent and the children’s best interests would be served if the court dispensed with his consent.

(IC 31-19-9-8(a)(11)). The Court noted the following evidence in support: (1) Father admitted he

was unable to care for the children because of his drug use and criminal cases; (2) Father was on

house arrest; (3) Father did not provide financial support for the children; (4) Father could barely

provide for himself; (6) Father opined that parental drug use did not harm children as long as drug

use did not occur in the same location as the children; (7) there was ample evidence that Adoptive

Parents had consistently provided for the children’s needs, and the children had thrived in their

care.

V. K. Written Denial of Paternity by Biological Father

IC 31-19-9-8(a)(12) provides that consent to adoption is not needed from the child’s biological

father who denies paternity of the child before or after the child’s birth, if the denial of paternity

is in writing, is signed by the child’s father in the presence of a notary public, and the documents

contains and acknowledgement that the denial of paternity is irrevocable and he will not receive

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notice of adoption proceedings. A child’s father who denies paternity of the child under this

subdivision may not challenge or contest the child's adoption.

Practice Note: Practitioners could consider using this statute in CHINS proceedings when the

biological father denies paternity and does not want to be involved in the CHINS case, especially

when it appears that termination and adoption will be the permanency plan. This statute should

not be used if paternity has been established by affidavit or court proceeding or if the father was

married to the child’s mother.

VI. PUTATIVE FATHER REGISTRY

VI. A. Purpose

The purpose of the putative father registry is to determine the name and address of a father, who

may have conceived a child for whom an adoption petition has been or will be filed, who also

was not identified by the mother in a specific manner before or at the time she signed an adoption

consent. IC 31-19-5-3. This helps ensure that he gets notice of the adoption. IC 31-19-5-3.

The registry allows a putative father to receive adoption notice through records of his name and

address maintained by the state department of health. IC 31-19-5-2; IC 31-19-5-4; IC 31-19-5-5.

The registry allows the putative father to take action on his own to receive notice of a pending

adoption, instead of relying on the biological mother to provide his name or address or both on

or before the date she gives her consent to an adoption to the adoption agency or attorney

arranging the adoption. IC 31-19-5-5. Registration is a necessary prerequisite to entitle the

putative father to notice of an adoption petition unless the mother provides his name or address

by the date she consents. The putative father who fails to timely register waives notice of

adoption and his consent to his child’s adoption is irrevocably implied by operation of law. IC

31-19-5-18.

The registry also allows prospective adoptive parents, an attorney or licensed child placing

agency that represents prospective adoptive parents, a court presiding over an adoption, as well as

other parties to an adoption to learn the identity and address of a putative father so that his

consent to adoption may be requested or notice can be sent to him. IC 31-19-5-21. The attorney

or agency could contact the registered father prior to the filing of the adoption petition to

ascertain whether he objects to the adoption; requirements for who may obtain the records and in

what manner are set forth at IC 31-19-5-21(b) and (c). If the putative father objects, the mother or

adoptive petitioners may make a decision from there as to whether to proceed with the adoption.

If a putative father wants to assure that he receives notice of an adoption, he must be certain to

keep his address current with the registry by submitting necessary amendments, pursuant to

IC 31-19-5-11. 31-19-4-9 underscores the importance of an accurate registry address for the

putative father to receive pre-birth notice of an adoption; it provides that if a person has attempted

to give notice to a putative father at a particular address under IC 31-19-3 (the pre-birth notice

statute) and the putative father could not be located at that address, notice is not required under

IC 31-19-4 unless the putative father registers that address with the putative father registry.

VI. B. Who Must Register

A putative father is a male of any age who is alleged to be or claims that he may be a child’s

father but who has not established paternity and who is not a presumed father under IC 31-14-7-

1(1) or IC 31-14-7-1(2) due to his marriage or attempted marriage to the child’s mother. IC 31-9-

2-100.

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Presumed fathers under IC 31-14-7-2 are not exempt from needing to register with the putative

father registry. IC 31-19-5-6(b). A putative father’s filing of a paternity action does not relieve

the putative father from the obligation of or consequences from failing to register with the

putative father registry, unless paternity has been established before the filing of the petition for

adoption of the child. IC 31-19-5-6(b). IC 31-14-7-2 deals with fathers who are presumed to be

biological fathers of a child under the following circumstances: (1) there is not an already

presumed biological father; (2) with the consent of the mother, the man receives the child into

his home; (3) with the consent of the mother, the man holds the child out as his own biological

child. This is a rebuttable presumption, and does not legally establish paternity. IC 31-14-7-2.

Legally established fathers do not need to register with the putative father registry, as they are

not included within the definition of putative father found at IC 31-9-2-100. They are entitled to

notice to an adoption and the chance to contest it as a result of their legal status, unless otherwise

provided. IC 31-14-7-3 provides that paternity affidavits do legally establish paternity, so long as

they have been executed in accordance with IC 16-37-2-2.1 and not been rescinded or set aside

under IC 16-37-2-2.1. See Chapter 12 at IV. and VI. for detailed discussion of establishing

paternity.

To register with the Indiana Putative Father Registry, please call (317) 233-7589 or email Evelyn

Riley at [email protected]. To request a search of the registry, please complete and submit Form

54808, found at http://www.in.gov/isdh/26802.htm. along with appropriate identification. A

search of the registry costs $16.00.

VI. C. Form of Registration

A putative father registry form is available through the state department of health, each clerk of a

circuit court, and each local health department. IC 31-19-5-13. The form is provided by the state

department of health, and must include the father’s name, address for legal notice, Social Security

number, and date of birth and must be signed by the putative father and notarized. IC 31-19-5-10;

IC 31-19-5-7(a)(1). The following information must be included if known: mother’s name

including aliases, mother’s address, Social Security number and birth date; and child’s name and

place of birth, if known. IC 31-19-5-7(a)(2) and (3).

An amended registration form shall be submitted by the putative father each time the information

he must supply changes. IC 31-19-5-11. The putative father may revoke his registration at any

time by submitting a signed notarized statement. IC 31-19-5-19.

He may register in person, by mail, by facsimile, or by private courier. IC 31-19-5-20. The

putative father may designate an agent for service of notice if he does not have an address where

he may receive notice. IC 31-19-5-7(b); see also Form 46750, Indiana Putative Father

Registration. Service on the agent under Ind. Trial Rule 4.1 constitutes service of notice on the

putative father. IC 31-19-5-7(b). If the agent cannot be served according to T.R. 4.1 further notice

to the agent or putative father is not necessary. IC 31-19-5-7(b).

VI. D. Time For Registration

The putative father may register before the child’s birth. IC 31-19-5-12(b).

To be entitled to notice of an adoption under IC 31-19-3 or IC 31-19-4, a putative father must

date of the filing of a petition for the child’s adoption or the termination of the parent-child

relationship between the child and the mother, whichever of these petitions comes first. IC 31-19-

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5-12(a). Of the thirty days of the child’s birth and the petition dates, the later of these two options

is the controlling date by which the putative father must register. IC 31-19-5-12(a).

Practice Note: IC 31-19-5-12 contains several time provisions, necessitating careful reading of

the statute. A putative father has the choice between the later dates provided in subsection(a)(1)

and (a)(2), but must adhere to the earlier of the two dates in subsection (a)(2). A putative father

generally has at least thirty days after the child’s birth to register, but depending on the facts of

the case, may have more time to register, as specified in (a)(2).

See this Chapter, V.I.3.b. for case law on this topic.

VI. E. Request For Search of Putative Father Registry

An attorney or agency that arranges or may arrange an adoption may make a verified written

request for a putative father registry search or a search for paternity determinations or notices of

filing paternity petitions from the state department of health at any time. IC 31-19-5-15; IC 31-

19-6-1.

The state department of health shall respond to putative father registry search requests by

furnishing a certified copy of a putative father's registration form and a copy of any notice of a

filing of a petition to establish paternity prepared under IC 31-14-9-0.5. IC 31-19-5-21(a). The

state department of health must immediately respond to requests in writing. IC 31-19-5-22(a).

The state department of health must submit an affidavit to the attorney or agency within five

days, verifying whether a putative father: (1) is registered within the proper time period in

relation to a mother whose child is the subject of the adoption that the attorney or agency is

arranging; or (2) has filed a petition to establish paternity. IC 31-19-5-16(a). A fee may be

charged for searches under this section. IC 31-19-5-22.

The state department of health shall respond to paternity determination and paternity filing search

requests made under IC 31-19-6-1 within five days, and must: (1) submit an affidavit to the

attorney or agency verifying whether a record of a proper paternity determination has been filed

concerning the child; and (2) search the putative father registry established by IC 31-19-5 and

notify the attorney or agency, in compliance with IC 31-19-5-16 as to whether a putative father

has: (A) registered concerning the child; or (B) filed a petition to establish paternity in relation to

the child. IC 31-19-6-2.

If the state health department finds that one or more putative fathers have registered or have filed

a petition to establish paternity, the state health department must (1) submit a copy of each

registration form or notice with the state department's affidavit; and (2) include in the affidavit the

date that the attorney or agency submits the request for a search that relates to the affidavit. IC

31-19-5-16(b) and (c); IC 31-19-5-21(a).

DCS may request a putative father or paternity petition filing search request as the legal custodian

of the child and a party to an adoption case when adoption becomes the plan for the child. IC 31-

19-5-21(a)(4). IC 31-19-5-15 may also allow for DCS to search the putative father registry if they

are the agency that is arranging the adoption. Note, however, that the putative father may still

make a timely registration until the date the adoption petition is filed. IC 31-19-5-12.

A court may not grant an adoption unless the state department's affidavit under this section is

filed with the court as provided under IC 31-19-11-1(a)(4). IC 31-19-5-16(d).

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VI. F. Case Law on Putative Father Registry

In In Re I.J., 39 N.E.3d 1184, 1187-8 (Ind. Ct. App. 2015), the Court reversed the trial court’s

orders which: (1) denied Putative Father’s motions to intervene in the child’s adoption; (2) denied

Putative Father’s motion for genetic paternity testing; and (3) granted the child’s adoption. The

Court found that, because Putative Father registered before the child was thirty days old, his

registration was timely. Putative Father therefore was entitled to notice of the adoption and

should have been permitted to contest the adoption. The Court looked to IC 31-19-5-12 for the

timeline under which a putative father must register with the putative father registry. The Court

observed that, pursuant to the statute, a putative father would still be entitled to notice of an

adoption if he registered “no later than… thirty (30) days after the child’s birth…” because the

deadline is thirty days after the birth or the date a petition for adoption is filed, “whichever occurs

later.” The Court found that Putative Father registered after the petition for adoption was filed,

but that did not foreclose his right to challenge the adoption if he registered before the child was

thirty days old. Since Putative Father registered before the child was thirty days old, his

registration was timely, he was entitled to notice of the adoption, and he should have been

permitted to contest it. The Court also held that Putative Father’s timely registration gave him

standing to challenge the adoption petition in the trial court and in the appellate court.

In In Re Adoption of K.G.B., 18 N.E.3d 292, 294-5, 297-9, 303-4 (Ind. Ct. App. 2014), the

Court affirmed the trial court’s orders dismissing Putative Father’s petition to establish paternity,

and striking Putative Father’s motion to contest the child’s adoption. Because Putative Father

failed to timely register with the Registry, he had irrevocably waived his right to notice of the

child’s adoption, had impliedly consented to the adoption, and was barred from contesting the

adoption. A putative father who fails to register within the period specified by IC 31-19-5-12

waives notice of an adoption proceeding, which constitutes an irrevocably implied consent to the

child’s adoption (IC 31- 19-5-18), and a putative father whose consent has been implied may not

challenge the adoption or establish paternity (IC 31-19-9-13 and -14). The Court disregarded

Putative Father’s unsupported arguments that the putative father registry did not apply to him

because of his allegations Mother had disclosed his name or address to the attorney who was

arranging the adoption on or before the date she executed her adoption consent. The Court

concluded that Putative Father’s implied consent also meant he was barred from establishing

paternity (IC 31-19-9-14). Putative Father argued that his amended paternity petition, styled as

being filed on behalf of the child, endured; but this argument ignored IC 31-14-5-9, which

explicitly states that “[a] man who is barred under [Indiana Code article] 31-19 from establishing

paternity may not establish paternity by: (1) filing a paternity action as next friend of the child.”

The Court also held that Putative Father failed to meet his burden of proving that the challenged

statutes were unconstitutional as applied to him.

In In Re Paternity of G.W., 983 N.E.2d 1193, 1194, 1197 (Ind. Ct. App. 2013), the Court

concluded that Birth Father, who had not married Mother, signed the paternity affidavit, or

registered with Putative Father Registry by the date of the filing of Stepfather’s petition to adopt

Mother’s one-year-old child, was not entitled to notice of the adoption proceeding. The Court

concluded that Birth Father had irrevocably and implicitly consented to the child’s adoption by

Stepfather. The Court reversed the trial court’s order denying Mother’s motions to dismiss Birth

Father’s paternity action which was filed in the consolidated adoption and paternity case.

In In Re Adoption of E.L., 913 N.E.2d 1276, 1279-80 (Ind. Ct. App. 2009), the Court held,

among other things, that, by operation of statute (IC 31-19-5-18), Putative Father’s failure to

and because Putative Father’s consent is implied, he “is not entitled to establish paternity” while

the adoption is pending (IC 31-19-9-14). Contrary to Putative Father’s arguments, his timely

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filing of the paternity petition did not render moot the issues concerning the requirement that he

file with the Putative Father Registry, in that IC 31-14-20-1(b) provides that a man who files a

paternity action “shall register with the putative father registry ... within the period provided

under IC 31-19-5-12,” and IC 31-19-5-6(b) provides that “[t]he filing of a paternity action by a

putative father does not relieve the putative father from the: (1) obligation of registering; or

(2) consequences of failing to register ... unless paternity has been established before the filing of

the petition for adoption of the child.”

See also Mathews v. Hansen, 797 N.E.2d 1168 (Ind. Ct. App. 2003) (putative father’s failure to

trans. denied; In Re Adoption of J.D.C., 751 N.E.2d 747 (Ind. Ct. App. 2001) (putative father

was not entitled to notice of adoption because mother did not disclose his address to adoption

agency and he failed to preserve his rights by registering with the putative father registry); In Re

Paternity of Baby Doe, 734 N.E.2d 281, 287 (Ind. Ct. App. 2000) (putative father’s failure to

adoption, whichever occurs later) precluded him from establishing paternity, challenging his

irrevocably implied consent to adoption or contesting the adoption).

VII. NOTICE

VII.A. Pre-Birth Notice Requirements to Putative Fathers and Implied Consent

A pregnant woman may serve the putative father of her unborn child with actual notice that she is

considering an adoptive placement for the child. IC 31-19-3-1. Actual notice of the potential

adoption may be served on the putative father by a licensed child placing agency, an attorney

representing prospective adoptive parents of the child or an attorney for the mother. IC 31-19-3-1.

Providing notice to the putative father does not obligate the mother to proceed with adoptive

placement. IC 31-19-3-2.

The form of the actual notice, prescribed at IC 31-19-3-4, states that the putative father must file a

paternity action to establish his paternity of the unborn child within thirty days of receipt of the

notice. This time period may expire before the child's birth. See also IC 31-14-4-1(2)(B) which

allows an expectant father of an unborn child to file a paternity action. The actual pre-birth notice

form also states that if the putative father fails to file a paternity action timely or is unable to

establish paternity in Indiana or any other jurisdiction, the putative father's consent to adoption or

the voluntary termination of the putative father’s parent- child relationship under IC 31-35-1 or

both shall be irrevocably implied. IC 31-19-3-4. If the putative father fails to file the paternity

action timely or fails to establish paternity, the putative father loses the right to contest the

adoption, the validity of his implied consent to adoption, the termination of the parent- child

relationship or the validity of his implied consent to termination of the parent-child relationship.

IC 31-19-3-4. He also loses his ability to establish paternity by affidavit or any other manner, in

Indiana or any other jurisdiction, except as provided by IC 31–19–9–17(b). See this Chapter at

V.I.1. and V.I.3 for further discussion of implied consent after service of pre-birth notice.

The person who provides actual notice to the putative father shall submit an affidavit to the

court having jurisdiction over the adoption petition detailing the circumstances surrounding the

service of actual notice including the time, if known, date, and manner in which actual notice

was provided. IC 31-19-3-3. The Indiana Rules of Trial Procedure do not apply to the giving of

pre-birth notice. IC 31-19-3-8.

To use this statute effectively, it is very important that the correct pre-birth statutory notice be

served on the putative father. See Matter of Paternity of Baby Girl, Born 6/7/94, 661N.E.2d

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873 (Ind. Ct. App. 1996) (adoption, denial of putative father's motion to contest adoption, and

dismissal of paternity petition were all reversed because the putative father had not received the

statutorily required pre-birth notice form). DCS attorneys could use this statute to provide for

adoptions for mothers who seek or are already receiving agency services, including pregnant

wards who desire to place their unborn children for adoption.

The putative father who receives actual notice under the pre-birth notice statute to notify the

agency or attorney arranging the adoption if the putative father files a paternity action. IC 31-19-

3-5. The notice must include the name of the court in which the paternity action has been filed,

the cause number and date when the action was filed. IC 31-19-3-5(1), (2). If the putative father

fails to provide the required notice concerning his paternity action, IC 31-19-3-6 requires the

court with jurisdiction over the paternity action to allow the prospective adoptive parents to

intervene in the paternity action on the adoptive parents’ motion pursuant to Ind. Trial Rule 24. If

paternity has already been established and the putative father has failed to provide the required

notice under IC 31-19-3-5, the court is required by IC 31-19-3-7 to set aside the paternity

determination and to allow the prospective adoptive parents to intervene on their motion

pursuant to Ind. Trial Rule 24. See also IC 31-14-21.

Actual pre-birth notices may be validly served on putative fathers who are Indiana residents,

even if they are served outside of Indiana. IC 31-19-3-9(a).

Actual pre-birth notices may be validly served on putative fathers who are not Indiana residents

if the child was conceived in Indiana. IC 31-19-3-9(b)(1). Actual pre-birth notices may also be

validly served on putative fathers who are not Indiana residents if the child was conceived

outside of Indiana if the laws of the state in which the (A) father is served notice or resides, or

(B) child was conceived allow a paternity or similar action to be filed before the birth of a child.

IC 31-19-3-9(b)(2).

In each recent case that address the form of the pre-birth notice, the Court opined that the notice

received by the putative father substantially complied with IC 31-19-3-4 and was therefore

adequate notice.

In In Re Adoption of Fitz, 805 N.E.2d 1270, 1273-74 (Ind. Ct. App. 2004), trans. denied,

the Court stated that IC 31-19-3-4, which specifies the language and information which the

notice must contain, does not require that the adoptive parents be named.

In In Re Paternity of Baby W., 774 N.E.2d 570, 575-77, n.4 (Ind. Ct. App. 2002), the Court

stated that substantial compliance with the statutory notice provision will be sufficient if the

party receives notice which achieves the purpose for which the statute was intended. The

Court found that Putative Father received the notice contemplated by the statute in verbatim

form. The notice explicitly stated that “nothing…anyone…says to [putative father] relieves

[putative father] of his obligations under this notice”, therefore, Putative Father was alerted

that any statements made in the letter that were inconsistent with the terms of the notice

should not have been considered. The letter also provided fair notice that the attorney

represented interests adverse to those of Putative Father. The statute does not require that the

notice be signed by Adoptive Parents’ attorney, and does not require that the notice advise

Putative Father of his right to counsel.

In In Re Paternity of M.G.S., 756 N.E.2d 990, 1001-03, n.5 (Ind. Ct. App. 2001), trans.

denied, the Court addressed eight issues relating to the alleged defectiveness of the notice

raised by Putative Father, who claimed that the notice was confusing, misleading, and

improperly served. The Court opined that the omission of the word “or” in the notice was a

minor typographical or grammatical error, was not materially misleading, and did not render

the notice defective. The notice explicitly said that Putative Father may not rely on any

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representations by Mother to avoid his responsibilities under the statute. The notice statute

does not require reference to IC 31-19-9-17(b) (ability to establish paternity if neither a

petition for adoption nor a placement in a proposed adoptive home is pending). It was

irrelevant to the notice that the attorney named on the notice was not the attorney handling

the adoption, because Adoptive Parents had retained the first attorney to prepare the notice.

The Court opined that IC 31-19-3-1 provides that a licensed child placing agency or an

attorney may serve or cause Putative Father to be served with actual notice, and the statute

does not preclude the attorney from fulfilling the responsibility of service through another

individual or entity. The statute does not specify a required mode of service, contains no

prohibition against personal service, and actual service by Mother’s brother did not make the

notice defective. The Court also rejected several other of Putative Father’s claims.

VII.B. After Birth Notice Requirements and Exemption From Notice

If a parent or other person has not consented to adoption or had parental rights voluntarily or

involuntarily terminated under IC 31-35, the parent may be entitled to receive notice of the

adoption petition. IC 31-19-4-1; IC 31-19-4.5-2; IC 31-19-9-1. Those who are entitled to notice

and possible exemptions are discussed below in this section.

VII.B. 1. General Requirements

General notice requirements are addressed at IC 31-19-2.5-1 through 4. The general notice

requirements of IC 31-19-2.5 address: (1) to whom the chapter applies; (2) when notice is

required; (3) when notice is not required; and (4) notice validity.

Generally, IC 31-19-2.5 applies to both a putative under IC 31-19-4, and a person under IC

31-19-4.5, including a grandparent described at IC 31-19-4.5-1(3). IC 31-19-4 addresses

notice requirements for putative fathers. 31-19-4.5-1 through 5 establish notice requirements

for “Other Persons Entitled to Notice of Adoption.” Although an amendment removed

putative fathers from the list of people to whom this chapter applies, IC 31-19-2.5-2(b)

provides that IC 31-19-4.5 does include putative fathers under limited circumstances. Those

circumstances are when an adoption petition alleges that the putative father’s consent was not

obtained and is not needed under IC 31-19-9-8(a)(1) [abandonment]; IC 31-19-9-8(a)(2)

[failure to communicate or support]; IC 31-19-9-8(a)(4)(B) [child molesting]; IC 31-19-9-

8(a)(4)(C) [sexual misconduct with a minor]; IC 31-19-9-8(a)(9) [judicially declared

incompetent]; and IC 31-19-9-8(a)(11) [unfitness].

Except as otherwise provided, notice must be given to a person whose consent to adoption is

required under IC 31-19-9-1, a putative father who is entitled to notice under IC 31-19-4, and

a grandparent described in IC 31-19-4.5-1(3) of a child sought to be adopted. IC 31-19-2.5-

3(a). If the parent-child relationship has been terminated, notice must be given to licensed

child placing agency or local office of which the child is a ward. IC 31-19-2.5-3(b). For more

detailed discussion, see this Chapter at VII.E.

Practice Note: If the child is a CHINS and the mother’s rights have been involuntarily

terminated, but the putative father’s name is unknown to DCS, adoption attorneys should

request an affidavit from the DCS caseworker. The affidavit should include the following

information: (1) upon review of the records, DCS does not have the name of the putative

father; (2) the mother did not give the name or address of the putative father in the course of

the CHINS or termination proceedings; (3) the DCS caseworker has no memory that the

name or address of the putative father has ever been provided by the mother; (4) no father’s

name is listed on the child’s birth certificate; (5) the mother was not married at the time the

child was conceived; and (6) any information about whether the child was conceived in

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Indiana or outside the state. Note that IC 31-19-4-3(b) provides that the only circumstance in

which notice to the unregistered putative father by publication is necessary is when the child

was conceived outside the state of Indiana as described by IC 31-19-4-3(a).

VII.B. 2. Who Must Be Given After Birth Notice

Only a person who is entitled to notice of an adoption under IC 31-19-4 or IC 31-19-4.5 may

contest an adoption. IC 31-19-10-1.

Except as otherwise provided, notice must be given to a person whose consent to adoption is

required under IC 31-19-9-1, a putative father who is entitled to notice under IC 31-19-4, and

a grandparent described in IC 31-19-4.5-1(3) of a child sought to be adopted. IC 31-19-2.5-

3(a). For those exceptions, see this Chapter at VII.B.3. and VII.C. for a discussion of what

notice to which putative father may or may not be entitled. These persons listed at IC 31-19-

9-1 who must be given notice include:

(1) each living parent of a child born in wedlock, including a man who is presumed to be

the child’s biological father under IC 31-14-7-1(1) if the man is the biological or adoptive

parent of the child;

(2) the mother of a child born out of wedlock and the father whose paternity has been

established by a separate paternity proceeding or a paternity affidavit, unless the father’s

consent was implied pursuant to IC 31-19-9-15;

(3) each person, agency, or county office of family and children having lawful custody of

the child whose adoption is sought;

(4) the court having jurisdiction of custody of child if the legal guardian or custodian of

child is not empowered to consent to adoption;

(5) the child if the child is more than fourteen years of age;

(6) the spouse of the child if the child is married;

(7) the parent or guardian of a parent who is less than eighteen years of age, if the court

determines that the consent of the parent’s parent or guardian is in the best interest of the

child to be adopted.

If a person fits within one of the above categories, but also fits within the categories listed at

IC 31-19-2.5-4 for which no notice is required, then no notice of the adoption proceeding is

required.

A grandparent of a child sought to be adopted may be entitled to notice. IC 31-19-2.5-3(a)(3).

The notice chapter of IC 31-19-4.5 applies to a grandparent of a child sought to be adopted,

and the grandparent has an existing right to petition for visitation under IC 31-17-5, and that

right to visitation will not be terminated after the adoption, pursuant to IC 31-17-5-9. IC 31-

19-4.5-1(3). The grandparent must fit this category and have this right prior to the filing of

the adoption petition. IC 31-19-4.5-1(3). If a grandparent is entitled to notice of an adoption

under this statute, the notice is only limited to issue of visitation and may not be used to

contest the adoption. IC 31-19-4.5-1.5(1). Notice of an adoption to a grandparent who may be

entitled to visitation is not required if the child to be adopted is placed in the care, custody, or

control of DCS. IC 31-19-4.5-1.5(2).

Notice of the adoption must be sent to the putative father or a parent, even if the petition

alleges that the person’s consent to adoption had not been obtained and is unnecessary under

one of the following subcategories of IC 31-19-9-8: (1) IC 31-19-9-8(a)(1) (child

abandoned); (2) IC 31-19-9-8(a)(2) (parent has failed to support or have significant

communication with the child); (3) IC 31-19-9-8(a)(4)(B) (child conceived out of wedlock as

a result of biological father’s act of child molestation but criminal conviction not required);

(4) IC 31-19-9-8(a)(4)(C) (child conceived out of wedlock as a result of biological father’s

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act of sexual misconduct with a minor but criminal conviction not required); (5) IC 31-19-9-

8(a)(9) (parent declared incompetent or mentally defective if court dispenses with parent’s

consent to adoption); (6) IC 31-19-9-8(a)(11) (parent proven unfit and adoption in child’s

best interests).

A licensed child placing agency or local DCS office of which the child is a ward must be

given notice of pending adoption proceedings if the parent-child relationship has been

terminated under IC 31-35. IC 31-19-2.5-3(b).

For a discussion on benefits of giving notice to individuals even when statutes provide that

notice is not necessary; see this Chapter at VII.B.3; see also In Re Adoption of C.B.M., 992

N.E.2d 687 (Ind. 2013), discussed below and in this Chapter at VII.B.3.

In In Re Adoption of C.B.M., 992 N.E.2d 687, 694-6 (Ind. 2013), the Indiana Supreme

Court reversed and remanded the adoption court’s denial of Natural Mother’s petition to set

aside the adoption decree and motion for summary judgment. The Court found that the

children’s adoption was “based upon” the termination judgment; therefore, Natural Mother

became entitled to relief from the adoption when the termination order was “reversed or

otherwise vacated” on appeal. Ind. Trial Rule 60(B)(7) which states that a judgment may be

set aside when “a prior judgment upon which it is based has been reversed or otherwise

vacated.” The Court observed that, while Adoptive Parents were not required to serve notice

on Natural Mother due to IC 31-19-2.5-4(2)(F), doing so voluntarily may well have saved the

adoption from reversal. The Court explained that, had Natural Mother been served, Adoptive

Parents could then have requested a contested adoption hearing for litigating an alternative

basis for dispensing with consent under IC 31-19-9-8(a) (emphasis in opinion).

Practice Note regarding In Re Adoption of C.B.M., 992 N.E.2d 687, 694-6 (Ind. 2013):

Practitioners should note that IC 31-19-11-6 was amended in 2014 to provide that a court

may not grant a petition for adoption if the parent-child relationship was terminated and one

or more of the following apply: “(A) The time for filing an appeal (including a request for

transfer or certiorari) has not elapsed. (B) An appeal is pending. (C) An appellate court is

considering a request for transfer or certiorari.” This precludes the C.B.M. Court’s suggestion

of including a parent whose rights have been terminated in an adoption in order to proceed

with an adoption while an appeal is pending. The statute makes it impossible for adoptions to

be granted until such windows of opportunity for appeal have passed. While IC 31-19-2.5-4,

which was cited in Adoption of C.B.M. (above), still provides that notice does not have to be

given to parents whose rights have been terminated, IC 31-19-11-6 adds additional limits and

requirements on IC 31-19-2.5-4.

VII.B. 3. Who Does Not Need to Be Given After Birth Notice

A person whose consent to the adoption was filed with the adoption petition does not have to

be given notice of the adoption proceeding. IC 31-19-2.5-4(1). Likewise, a person who has

waived notice of adoption proceedings under IC 31-19-4-8 (putative fathers waiving notice)

or IC 31-19-4.5-4 (other persons waiving notice) do not need to be given notice of the

adoption proceedings. IC 31-19-2.5-4(5).

IC 31-19-2.5-4(2) provides that notice of adoption proceedings also does not need to be given

to the following categories of people whose consent is not required by:

(1) IC 31-19-9-8(a)(4)(A) [biological father of child conceived out of wedlock by father’s

rape of mother for which father was convicted].

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(2) IC 31-19-9-8(a)(4)(D) [biological father of child conceived out of wedlock by

biological father’s incest with mother but criminal conviction not required].

(3) IC 31-19-9-8(a)(5) [putative father whose consent is irrevocably implied because he

did not file paternity action within 30 days of actual pre-birth notification under IC 31-

19-3 (notice that child may be placed for adoption after birth), whether the child was born

before or after expiration of 30 days; also applies to putative father who timely filed the

paternity petition after actual pre-birth notification, but failed to establish paternity];

(4) IC 31-19-9-8(a)(6) [biological father who established his paternity by court paternity

proceeding or paternity affidavit after the adoption petition was filed, but did not timely

comply with putative father registry when he was required to because mother did not

disclose his name or address].

(5) IC 31-19-9-8(a)(7) [parent who relinquished parental right to consent to adoption as

provided by IC 31-19-9-9 et seq.]. Practice Note: This statute provides that “consent to

the adoption is not required from a parent who has relinquished the parent's right to

consent to adoption as provided in [chapter 9].” However, several statutes in IC 31-19-9

specifically require that notice be given and even a hearing be held before consent may

be dispensed with. When IC 31-19-8(a)(7) references a statute that requires notice to be

given to the person whose rights are to be terminated, it would be best practice to give

notice those situations. For example, IC-31-19-9-9, specifically provides that a court must

determine “after notice to the convicted parent and a hearing, that dispensing with the

parent's consent to adoption is in the child's best interests.” (emphasis added). It would be

best practice to give notice in this situation, since the more specific statute requires

notice.

(6) IC 31-19-9-8(a)(8) [parent whose parent-child relationship was terminated voluntarily

or involuntarily under the juvenile code termination statutes]. Practice Note: IC 31-19-

2.5-4 further provides that notice does not need to be given to a person described at IC

31-19-9-8(a)(8). However, IC 31-19-11-6 provides that adoptions may not be granted if

there is a pending appeal of a termination of parental rights, or the window of opportunity

for other appeal has not yet passed (emphasis added). See also In Re Adoption of

C.B.M., 992 N.E.2d 687 (Ind. 2013).

(7) IC 31-19-9-9 [parent convicted of and incarcerated at time of adoption petition for

murder, causing suicide, voluntary manslaughter, an attempt to commit one of these

crimes, or substantially similar crime in another state; victim of the crime is the child’s

other parent]. Practice Note: Although this category of parent is listed as not deserving of

notice, IC 31-19-9-9(3) specifically provides that after a hearing and notice to the

convicted parent, the court must determine that dispensing with the parent’s consent is in

the child’s best interests. This appears to contradict IC 31-19-2.5-4. Giving notice in such

situations may be best practice.

(8) IC 31-19-9-10 [parent is convicted of and incarcerated at time of adoption petition for

murder, causing suicide, voluntary manslaughter, rape, criminal deviate conduct, child

molesting, incest, neglect of a dependent, battery of a child, battery, or an attempt under

IC 35-41-5-1 to commit one of these crimes; victim is child or child’s sibling, half-blood

sibling, or step-sibling of the parent’s current marriage]. Practice Note: Although this

category of parent is listed as not deserving of notice, IC 31-19-9-10(3) specifically

provides that after a hearing and notice to the convicted parent, the court must determine

that dispensing with the parent’s consent is in the child’s best interests. This appears to

contradict IC 31-19-2.5-4. Giving notice in such situations may be best practice.

(9) IC 31-19-9-12 [putative father who either failed to file a motion to contest the

adoption or a petition to establish paternity within 30 days after notice of the adoption

proceeding, failed to appear for the hearing on the motion to contest the adoption

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proceeding, filed a paternity petition but failed to establish paternity, or failed to register

with the Putative Father Registry within the time limits, when required to do so].

(10) IC 31-19-9-15 [putative father whose consent is irrevocably implied because he did

not file paternity action within 30 days of actual pre-birth notification under IC 31-19-3

(notice that child may be placed for adoption after birth), whether the child was born

before or after expiration of 30 days; also applies to putative father who timely filed the

paternity petition after actual pre-birth notification, but failed to establish paternity].

Practice Note: This is the same as the above referenced IC 31-19-9-8(a)(5).

(11) IC 31-19-9-18 [a person who has been served with notice under IC 31-19-4.5, if the

person fails to file a motion to contest the adoption as required under IC 31-19-10 not

later than 30 days after service of the notice; or who files a motion to contest the adoption

but fails to appear at the hearing to contest the adoption and prosecute the motion to

contest without unreasonable delay]. Practice Note: although persons falling into the

category of IC 31-19-9-18 are not entitled to notice according to IC 31-19-2.5-4, IC 31-

19-9-18 specifically provides that this category of people must be served with notice

before their consent can be irrevocable implied. This appears to contradict IC 31-19-2.5-

4, and it may be best practice in this situation to proceed with notice. Practice Note: It is

important to note that IC 31-19-9-18 does not apply to the consent of an agency or DCS

local office that is served with notice of an adoption petition under IC 31-19-4.5 and has

lawful custody of a child whose adoption is being sought. IC 31-19-9-18(a).

Notice of the pendency of the adoption does not have to be given to the hospital where an

infant is born or to which an infant is transferred for medical reasons after birth if the infant is

being adopted at or shortly after birth. IC 31-19-2.5-4(3).

Even if a grandparent is entitled to notice of an adoption under IC 31-19-4.5-1(3) (existing

right to continuing visitation), notice is not required to be given to that grandparent if the

child sought to be adopted has been placed in the care, custody, or control of DCS. IC 31-19-

4.5-1.5.

IC 31-19-2.5-4(4) provides that notice need not be given to a person whose parental rights

have been terminated before the entry of a final decree of adoption. However, attorneys

should be cautious in interpreting IC 31-19-2.5-4 as not requiring notice because of due

process concerns. IC 31-19-2.5-4 further provides that notice does not need to be given to a

person described at IC 31-19-9-8(a)(8). However, IC 31-19-11-6 provides that adoptions may

not be granted if there is a pending appeal of a termination of parental rights, or the window

of opportunity for other appeal has not yet passed (emphasis added). See also In Re

Adoption of C.B.M., 992 N.E.2d 687 (Ind. 2013) (Ind. Trial Rule 60(B)(7), which states that

a judgment may be set aside when “a prior judgment upon which it is based has been reversed

or otherwise vacated.” Natural Mother became entitled to relief from the adoption when the

termination judgment was “reversed or otherwise vacated” on appeal).

VII.B. 4. Form of Notice Pursuant to IC 31-19-4.5

IC 31-19-4.5-1 states that IC 31-19-4.5 “shall not be construed to affect notice of an adoption

provided to a putative father under IC 31-19-4”; and it does apply to a father who has

abandoned, failed to support, or failed to communicate with the child. The notice form

provided at IC 31-19-4.5-3 shall be given to persons other than putative fathers who are

entitled to notice. This notice (IC 31-19-4.5-3) should only be given to putative fathers when

an adoption petition alleges that the putative father’s consent was not obtained and is not

needed under IC 31-19-9-8(a)(1) [abandonment]; IC 31-19-9-8(a)(2) [failure to communicate

or support]; IC 31-19-9-8(a)(4)(B) [child molesting]; IC 31-19-9-8(a)(4)(C) [sexual

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misconduct with a minor]; IC 31-19-9-8(a)(9) [judicially declared incompetent]; and IC 31-

19-9-8(a)(11) [unfitness]. IC 31-19-2.5-2(b).

In order to comply with the Indiana Rules of Trial Procedure, the word Summons has been

added to the title of the notice form for IC 31-19-4.5-3. The notice at IC 31-19-4.5-3 requires

“a brief description of the reason(s) the consent is not required.” The description of the

reasons the consent to adoption is not required only needs to include enough information to

put a reasonable person on notice that the petition alleging the person’s consent is

unnecessary is pending. IC 31-19-4.5-5. The description “does not require an exhaustive

description of the reasons” that consent is not required. Service of notice may be waived by a

person in writing before or after the child’s birth. IC 31-19-4.5-4(a). The waiver must: (1) be

in writing and signed in the presence of a notary public; (2) acknowledge that the waiver is

irrevocable; and (3) acknowledge that the person signing the waiver will not receive notice of

the adoption proceedings. IC 31-19-4.5-4(b). A person who waives notice of an adoption may

not challenge or contest the adoption. IC 31-19-4.5-4.

VII.C. Notice to Putative Fathers

Notice to putative fathers is governed by IC 31-19-4. In some circumstances, notice must be

given to a putative father according to IC 31-19-4.5. See IC 31-19-2.5-2(b) (IC 31-19-2.5-2(b)

provides that IC 31-19-4.5 does include putative fathers under limited circumstances: when an

adoption petition alleges that the putative father’s consent was not obtained and is not needed

under IC 31-19-9-8(a)(1) [abandonment]; IC 31-19-9-8(a)(2) [failure to communicate or support];

IC 31-19-9-8(a)(4)(B) [child molesting]; IC 31-19-9-8(a)(4)(C) [sexual misconduct with a

minor]; IC 31-19-9-8(a)(9) [judicially declared incompetent]; and IC 31-19-9-8(a)(11)

[unfitness]).

When a birth mothers makes known the name and address of a putative father to an attorney to an

adoption agency arranging he adoption, the putative father is likely entitled to notice. Except as

otherwise provided, a putative father shall be given notice of an adoption proceeding under Ind.

Trial Procedure Rule 4.1 if: (1) on or before the date the mother executes an adoption consent,

she has provided an attorney or agency arranging the adoption with the name and address of the

putative father, and (2) the putative father of the child has not consented to the adoption of the

child, or has not had the parent-child relationship terminated. IC 31-19-4-1.

When birth mothers do not make known the name or address or both of a putative father, he may

still be entitled to notice if he timely registers with the putative father registry. Except as

otherwise provided (IC 31-19-2.5-4) a putative father must be given notice of an adoption

proceeding under Ind. Trial Procedure Rule 4.1 if: (1) on or before the date the mother executes

an adoption consent, she has not provided an attorney or agency arranging the adoption with the

name or address, or both, of the putative father of the child; and (2) the putative father of the child

has not consented to the adoption of the child, or has not had the parent-child relationship

terminated, and has timely registered with the putative father registry. IC 31-19-4-2.

The exceptions to both of these notice provision regarding putative fathers are delineated at IC

31-19-2.5-4, which provides for multiple categories of people to whom notice of an adoption does

not need to be given. For more detailed discussion on these exceptions, see this Chapter at

VII.B.3.

Situations where a putative father is not registered with the putative father registry, his name and

address are undisclosed by the mother, and the child was conceived outside of Indiana are

covered by IC 31-19-4-3. An attorney or agency arranging an adoption shall serve the putative

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father with notice by publication under Indiana Trial Procedure Rule 4.13(C) if (1) the mother

informs the attorney or agency that the child was conceived outside Indiana, and does not disclose

the name, address, or both of the putative father, and (2) the putative father of the child has not

consented to the adoption of the child, or has not had the parent-child relationship terminated, and

has timely registered with the putative father registry.

The only circumstance under which notice to the putative father must be given by publication

under Rule 4.13(C) of the Indiana Rules of Trial Procedure is when the child was conceived

outside of Indiana as described in IC 31-19-4-3(a). IC 31-19-4-3(b).

The form for notice to an unnamed father may be found at IC 31-19-4-4, and the form for notice

to a named father may be found at IC 31-19-4-5. Both notices inform the putative father that he

must file a timely motion to contest the adoption in accordance with IC 31-19-10-1, or have his

consent possibly deemed irrevocably implied and lose the ability to establish paternity. Both

notices also state that the notice does not exhaustively list all of a putative father’s legal duties in

order to be able to contest an adoption.

Practice Note: Instructions given to putative fathers in IC 31-19-4-4 and -5 differ from what

Indiana law sets forth in IC 31-19-9-12. IC 31-19-9-12 provides that a putative father’s consent to

adoption is irrevocably implied if he: (1) fails to timely file a proper motion to contest the

adoption; (2) filed the motion to contest the adoption, but fails to appear at the hearing; (3) filed a

paternity action in Indiana or any other jurisdiction but fails to establish paternity; or (4) is

required to but fails to timely register with the putative father registry. The notice statutes of IC

31-19-4-4 and -5 only mention the putative father’s filing a motion to contest the adoption. Both

statutes require that the notice be given in “substantially the following form,” which does not

prevent practitioners from adding in additional language from IC 31-19-9-12, in order to address

all due process concerns. See Matter of Paternity of Baby Girl, Born 6/7/94, 661 N.E.2d 873

(Ind. Ct. App. 1996) (Court found that the putative father had been affirmatively misled by the

post birth notice form he received, when a pre-birth notice was required); see also this Chapter at

VIII.G. for further discussion on how putative fathers may prevent adoption.

If a putative father is entitled to notice under IC 31-19-4-1 through -3, actual notice of the

adoption proceedings may not be necessary. If service is accomplished pursuant to Indiana Trial

Procedure Rule 4.1 for IC 31-19-4-1 and -2, or Indiana Trial Procedure Rule 4.13 for IC 31-19-4-

3, then no further efforts of service on the putative father are necessary, regardless of whether he

receives actual notice. IC 31-19-4-7.

If a putative father has not properly and timely registered with the putative father registry, and on

or before the mother executes an adoption consent, she has not disclosed the identity, address, or

both of the putative father to an attorney or agency arranging the adoption, then the putative

father is not entitled to notice of the adoption. IC 31-19-4-6. The exception to this is found at IC

31-19-4-3 (Notice to putative father not registered with putative father registry; name or address

undisclosed by mother; child conceived outside Indiana).

A putative father may waive his right to notice of adoption proceedings, in writing, either before

or after the birth of the child. IC 31-19-4-8(a). Such a waiver must be in writing and signed in the

presence of a notary public, and acknowledge that the waiver is irrevocable and the person

signing the waiver will not receive notice of the adoption proceedings. IC 31-194-8(b). A person

who so waives notice may not subsequently challenge or contest an adoption of the child. IC 31-

19-4-8.

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If actual notice has been given pursuant to the pre-birth notice statutes, no additional notice is

required. IC 31-9-4-9(1). Lastly, notice to a putative father under IC 31-19-4 is not necessary if a

person attempted to give pre-birth notice to a putative father at a particular address, and he could

not be located at that address, unless he registered that address with the putative father registry;

then, notice is required. IC 31-19-4-9(2).

In In Re Paternity of G.W., 983 N.E.2d 1193, 1197 (Ind. Ct. App. 2013), the Court opined that,

because Putative Father never registered with the putative father registry, he was not entitled to

notice of the adoption proceeding, and had irrevocably and implicitly consented to the adoption

of his child by the child’s stepfather.

In In Re B.W., 908 N.E.2d 586, 591, 594 (Ind. 2009), the Court held that, under IC 31-19-9-

12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative father must

have failed to file both a paternity action and a motion to contest the adoption. Please note that

since this opinion was issued, the statute has been amended. In reaching this holding, the Court

noted, among other things, that the notice Putative Father received “substantially tracked the

language of IC 31-19-4-5,” and stated that “the notice informed the father that his consent to

adoption would be irrevocably implied if he failed to preserve his right to object to an adoption

petition by either filing a motion to contest the adoption or filing a paternity action.” (emphasis

provided by the Court). See this Chapter at V.I.3.b. for a more detailed discussion of this case.

In Mathews v. Hansen, 797 N.E.2d 1168 (Ind. Ct. App. 2003), trans. denied, and In Re

Adoption of J.D.C., 751 N.E.2d 747, 751, n.2 (Ind. Ct. App. 2001) the Court opined that putative

fathers who failed to register with the putative father registry were not entitled to notice of the

adoption. In J.D.C., the Court held that an inquiry of Putative Father’s whereabouts was not

required due to his failure to register. The Court further noted that IC 31-19-4-6 imposes no duty

on Mother to disclose the identity or address of Putative Father.

VII.D. Service of Notice

Only the specified rules in IC 31-19-4 of the Indiana Rules of Trial Procedure apply to the

giving of notice under I 31-19-4. IC 31-19-4-13.

If a putative father is entitled to notice under IC 31-19-4-1 or -2, and if service is done in the

same manner as a summons or complaint under Indiana Trial Procedure Rule 4.1, then no

further efforts to give notice to the putative father are necessary, regardless of whether he

receives actual notice. IC 31-19-4-7(1). If a putative father is entitled to notice under IC 31-19-

4-3, and if publication is accomplished in the same manner as a summons is served by

publication under Indiana Trial Procedure Rule 4.13, then no further efforts to give notice to

the putative father are necessary, regardless of whether he receives actual notice. IC 31-19-4-

7(2). See also IC 31-19-4-3. Practice Note: This statute only applies to putative fathers under

IC 31-19-4-1 through -3, and not to other persons who must receive notice.

In In Re Adoption of J.T.A., 988 N.E.2d 1250 (Ind. Ct. App. 2013), trans. denied, the Court

affirmed the trial court’s denial of the petition of Father’s Fiancée to adopt Father’s child. The

Court opined that the purpose of statute outlining adoption notice requirements is to advise

biological parent of his or her rights so that they may be protected.

See Matter of Adoption of M.A.S., 695 N.E.2d 1037 (Ind. Ct. App. 1998) (registry indicated a

paternity affidavit had been signed by both parents and was on file with the state health

department; adoption was reversed because institutionalized putative father did not receive

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correct legal notice pursuant to Ind. Trial Rule 4.3); In Re Adoption of A.K.S., 713 N.E.2d 896

(Ind. Ct. App. 1999) (paternity affiant father was entitled to notice).

VII.E. Notice to Persons Other Than Putative Father

VII.E. 1. Statutes

IC 31-19-4.5-2 states that, except as provided by IC 31-19-2.5-4, if it is alleged that a

person’s consent to adoption is not required under IC 31-19-9-8, notice must be given to the

person from whom consent is allegedly not required. Notice shall be given in the same

manner as a summons and complaint are served under Rule 4.1 of the Indiana Rules of Trial

Procedure if the person’s name and address are known. IC 31-19-4.5-2(1). Notice shall be

given in the same manner as a summons is served by publication under Rule 4.13 of the

Indiana Rules of Trial Procedure if the person’s name or address are not known. IC 31-19-

4.5-2(2).

Notice pursuant to IC 31-19-4.5 must be given to the following persons, if they have not

consented to the adoption or parental rights have not been terminated, and it is alleged that

their consent is not required:

(1) each living parent of a child born in wedlock, including a man who is presumed to be

the child's biological father under IC 31-14-7-1(1) if the man is the biological or adoptive

parent of the child.

(2) the mother of a child born out of wedlock and the father whose paternity has been

established by a separate paternity proceeding or a paternity affidavit, unless the father’s

consent was implied pursuant to IC 31-19-9-15;

(3) each person, agency, or county office of family and children having lawful custody of

the child whose adoption is sought, which includes DCS or a licensed child placing

agency which may have wardship over a child;

(4) the court having jurisdiction of custody of child if the legal guardian or custodian of

child is not empowered to consent to adoption;

(5) the child if the child is more than fourteen years of age;

(6) the spouse of the child if the child is married;

(7) the parent or guardian of a parent who is less than eighteen years of age, if the court

determines that the consent of the parent’s parent or guardian is in the best interest of the

child to be adopted.

These persons are all noted IC 31-19-9-1 and IC 31-19-2.5-3. Note that IC 31-19-4.5-2 states

that notice must be given “except as provided in IC 31-19-2.5-4”. For the exceptions of who

must be given notice in IC 31-19-2.5-4, see this Chapter at VII.B.3.