IN RE: the Adoption of E.H. (Minor Child) (2025)

MEMORANDUM DECISION

[1] T.A. appeals the trial court's decree of adoption, which granted the petition—filed by E.T.—to adopt minor child E.H. (“the child”). T.A. also appeals the trial court's order finding that his consent to the adoption was not required (“the Order”). T.A. raises the following restated issues for our review:

I. Whether the trial court erred when it concluded that T.A.’s consent was not required; and

II. Whether the trial court's finding that T.A.’s consent was not required violated T.A.’s right to due process.

[2] We affirm.

Facts and Procedural History

[3] The child was born to J.H.¹ (“Mother”) in November of 2022. At this time T.A. was incarcerated, but Mother contacted T.A. and notified him of the child's birth.² See Tr. Vol. 2 p. 10. Prior to this communication, T.A. was unaware that Mother had been pregnant. After the child's birth, a Child in Need of Services (“CHINS”) petition was filed in Marion County by the Indiana Department of Child Services (“DCS”) concerning the child and T.A. was named as a party to that action. T.A. was represented by a public defender in the CHINS proceeding and the trial court took judicial notice of a dispositional order issued in the CHINS proceeding that ordered T.A. to submit to DNA testing.³

[4] On October 30, 2023, E.T. filed a Verified Petition For Adoption that named T.A. as the putative father. The Petition alleged in part that Mother's and T.A.’s “consent to this adoption is not required and/or is irrevocably implied[,]” that the child is a “ward of [DCS] under a CHINS action pending in the Marion County Superior Court[,]” and that DCS placed the child with E.T. in November of 2022. Appellant's App. Vol. 2. pp. 17, 18.

[5] On November 30, 2023, T.A. filed a letter with the trial court objecting to the adoption of the child, which was regarded as a motion to contest adoption. On January 3, 2024, T.A. was appointed a public defender in the adoption matter. On January 30, 2024, E.T. filed a notice informing the trial court that Mother's consent to the adoption was irrevocably implied pursuant to Indiana Code section 31-19-9-18(b)(1). See id. at 39–40.

[6] On March 20, 2024, a hearing was held which, in part, addressed the issue of T.A.’s consent to the adoption. T.A. remained incarcerated and appeared via remote video. At the hearing, T.A. testified that he was never married to J.H. and was unaware that Mother was pregnant. T.A. acknowledged that after he learned of the child's birth that he had not filed a paternity affidavit, registered with the putative father registry, or filed a paternity case. At the hearing, the trial court admitted into evidence a putative father registry affidavit from the Indiana Department of Health which stated that there was no putative father registered for the child and no paternity determination was on file with the department. See Pet'r’s Ex. 1. With respect to the CHINS matter, T.A. did state that he was “still waiting on Marion County to come take [his] DNA. They have not yet.” Tr. Vol. 2 p. 6. Although T.A. believed that a petition for paternity had been filed, T.A.’s attorney clarified that “DCS had previously ordered paternity testing to be completed and they were in the process of doing that[,]” but “[a]s far as filing a formal petition to establish [paternity,]” he was “not aware of that having occurred.” Id. at 7. At that point, the trial court reviewed Odyssey and took judicial notice of a dispositional order in the CHINS case and determined that it did “not see anything ․ with respect to a [paternity] matter.” Id. at 8. T.A. explained that his anticipated release date was January 16, 2027, but he was eligible for work release in 2025. T.A. explained that he was currently participating in recovery while incarcerated, was “a month away from getting [his] GED[,]” and had employment and housing arranged upon his release. Id. at 9. T.A. stated that his plan was to “start saving money to get on [his] feet and get [his] own home and being able to financially take care of [the child] and [him]self.” Id. at 12.

[7] Upon the conclusion of the evidentiary hearing, E.T. informed the trial court that although she had raised a number of assertions in support of her contention that T.A.’s consent was not required, she was “proceeding forward only on the allegation that [T.A.] has in fact not established paternity either by court action or by virtue by being married to [M]other of th[e] child at the time of the child's birth[,]” and therefore, pursuant to statute, there was no requirement that T.A. consent to the adoption of the child. Id. at 14. The trial court issued the Order finding that T.A.’s consent to the adoption was not required. See Appellant's App. Vol. 2 pp. 62–64. In relevant part, the Order found that:

8. [T.A.] has failed to execute a paternity affidavit under [Indiana Code section] 16-37-2-2.1 and he has failed to establish paternity pursuant to a court proceeding as evidenced by the Affidavit issued by the Indiana Department of Health.

See id. T.A. filed a Motion To Certify Interlocutory Appeal on April 16, 2024, which was not granted. On November 8, 2024, a Final Adoption Hearing was held and later that day, the decree of adoption was issued. See id. at 79. T.A. now appeals.⁴

Discussion and Decision

I. Consent to Adoption

[8] T.A. argues that there was insufficient evidence to support the trial court's determination that his consent was not required for the adoption of the child. In family law matters, “we generally give considerable deference to the trial court's decision because we recognize that the trial judge is in the best position to judge the facts, determine witness credibility, get a feel for the family dynamics, and get a sense of the parents and their relationship with their children.” E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018) (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)) (internal quotations omitted). “In adoption cases specifically, [the reviewing court] neither reweighs evidence nor assesses witness credibility and presume[s] that the trial court's decision is correct, with the appellant bearing the burden of rebutting that presumption.” In re Adoption of P.J.W., 248 N.E.3d 574, 578–79 (Ind. 2025) (internal quotations and citations omitted).

[9] We also observe that, in this case, neither party sought special findings pursuant to Trial Rule 52(A). Under the circumstances, any sua sponte findings control only as to the issues they cover with a general judgment standard applicable to all other issues. Ind. Trial Rule 52(D). Under a general judgment standard, an appellate court will affirm under any theory supported by the evidence. Miller v. Carpenter, 965 N.E.2d 104, 108–09 (Ind. Ct. App. 2012). “As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). To the extent the findings control, an appellate court “shall not set aside the findings or judgment unless clearly erroneous[.]” T.R. 52(A). “A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts.” Drake v. Drake, 221 N.E.3d 734, 739 (Ind. Ct. App. 2023). In conducting our review, we defer to the trial court's factual determinations.

[10] Indiana Code section 31-19-9-1(a) provides that:

Except as otherwise provided in this chapter, a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by the following:

․

(2) The mother of a child born out of wedlock and the biological father of the child if the father's paternity has been established by:

(A) a court proceeding other than the adoption proceeding, except as provided in [Indiana Code section] 31-14-20-2; or

(B) a paternity affidavit executed under [Indiana Code section] 16-37-2-2.1[.]

Ind. Code § 31-19-9-1(a)(2).

[11] However, Indiana Code section 31-19-9-8(a)(3) provides that consent to adoption is not required from:

(3) The biological father of a child born out of wedlock whose paternity has not been established:

(A) by a court proceeding other than the adoption proceeding; or

(B) by executing a paternity affidavit under [Indiana Code section] 16-37-2-2.1.

I.C. § 31-19-9-8(a)(3).

[12] The trial court concluded that T.A.’s consent was not required because the child was born out of wedlock and T.A.’s paternity had not been established pursuant to Indiana Code section 31-19-9-8(a)(3). The uncontroverted evidence presented at the hearing demonstrated that T.A. was never married to J.H. such that the child was born out of wedlock. Despite learning about the child's birth from Mother at the time of the birth, T.A. did not execute a paternity affidavit nor had the child's paternity been established by a court proceeding. T.A. makes no attempt to dispute that (1) the child was born out of wedlock and (2) as of the filing of adoption, his paternity had not been established through either a separate court proceeding or the execution of a paternity affidavit. See I.C. § 31-19-9-8(a)(3).⁵

[13] Therefore, we conclude that T.A. failed to establish that there was insufficient evidence presented at the hearing to support the trial court's determination that T.A.’s consent was not required for the adoption of the child.

II. Deprivation of Due Process Rights

[14] T.A. appears to challenge, for the first time on appeal, the constitutionality of Indiana Code section 31-19-8(a)(3) and argues that his Due Process rights were violated.⁶ See Appellant's Br. p. 15. “To the extent we consider matters of law, including constitutional questions, our review is de novo, but all statutes are presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute in favor of constitutionality.” Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015) (internal quotations omitted) (quoting Dep't of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 587 (Ind. 2014)). “A facial challenge to the constitutionality of a statute requires that the party claiming the unconstitutionality of the statute demonstrate that there are no set of circumstances under which the statute can be constitutionally applied[.]” Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014) (internal quotations omitted) (quoting Harris v. State, 985 N.E.2d 767, 774 (Ind. Ct. App. 2013), trans. denied). “[W]hereas a challenge to the constitutionality of a statute as applied asks the reviewing court only to declare the challenged statute or regulation unconstitutional on the facts of the particular case.” Id. T.A. argues that due to his incarceration, he was denied Due Process because he was “precluded [from] ․ seek[ing] paternity testing independently[,]”, which we interpret to be an as applied challenge to the relevant statutes. Appellant's Br. p. 15.

[15] First, we note that T.A. failed to raise his constitutional claims before the trial court and has therefore waived appellate review. “[T]he general rule is that failure to challenge the constitutionality of a statute at trial results in waiver of review on appeal, [Appellate Courts have] long exercised [their] discretion to address the merits of a party's constitutional claim notwithstanding waiver.” Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). Waiver notwithstanding, we elect to exercise our discretion and consider T.A.’s claims, which we interpret to be an “as-applied” challenge.

[16] We agree with T.A. and E.T. that “[t]he Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children[ ]” and that “a parent's interest in the care, custody, and control of his or her children is perhaps the oldest of our fundamental liberty interests.” In re B.J., 879 N.E.2d 7, 17–18 (Ind. Ct. App. 2008), trans. denied. However, we also recognize the “legitimate state interests in facilitating the adoption of young children and having the adoption proceeding completed expeditiously that underlie the entire statutory scheme also justify a trial judge's determination to require all interested parties to adhere precisely to the procedural requirements of the statute.” In re Adoption of K.G.B., 18 N.E.3d 292, 300 (Ind. Ct. App. 2014) (citing Lehr v. Robertson, 463 U.S. 248, 265 103 S. Ct. 2985, 77 L.Ed.2d 614 (1983)).

[17] T.A. argues that he made reasonable efforts to obtain DNA testing by relying upon the pending DNA test through DCS and that due to his incarceration he was otherwise unable to establish paternity. While we are sympathetic to the fact that T.A.’s incarceration may make compliance with the statute more difficult, in this instance, T.A. took no affirmative steps to exercise his rights to establish paternity. See In re Adoption of K.G.B., 18 N.E.3d 292 at 301 (explaining “[E.S.] has failed to demonstrate that he established a substantial relationship with the Child or took any action to take advantage of any opportunity to participate in the Child's life before or even within thirty days after T.B. filed his petition to adopt the Child.”). Shortly after the child's birth a CHINS petition was filed wherein T.A. was named as a party and was represented by a public defender. T.A. was ordered to submit to paternity testing. But, almost one year later, T.A. had taken no action towards establishing paternity, electing instead to wait for DNA testing to be conducted in the CHINS matter. After the child's birth, T.A. could have filed a paternity affidavit pursuant to Indiana Code section 31-19-9-8(a)(3)(B) in an effort to establish paternity or filed his own paternity action pursuant to Indiana Code section 31-14-4-1(2). T.A. fails to demonstrate how his incarceration prevented him from pursuing either of these options. As noted by the Lehr court, the paternity statutes and putative father registry were enacted in order to protect his rights to assume a responsible role in the child's life, and neither his ignorance of the statutes nor his incarceration, standing alone, are sufficient to demonstrate a violation of his Due Process rights. See Lehr, 463 U.S. at 264–65.

[18] T.A. has failed to meet his burden that the challenged statutes are unconstitutional as applied to him; and therefore, T.A. was not denied Due Process.

Conclusion

[19] There was sufficient evidence presented that T.A.’s consent to the adoption was not required. Further, T.A. failed to meet his burden that the challenged statutes are unconstitutional as applied and therefore, has failed to establish that he was denied Due Process.

[20] Affirmed.

FOOTNOTES

1.   J.H. is not a party to this appeal.

2.   T.A. was incarcerated at the Wabash Valley Correctional Facility and remained incarcerated through the duration of this case. See Tr. Vol. 2 pp. 8, 9.

3.   The only reference to judicial notice was provided in the transcript. Neither the CHINS case under cause number 49D09-2211-JC-008788 nor any portion of the CHINS dispositional order were made part of the record for purposes of this appeal.

4.   Mother's consent to the adoption was irrevocably implied. See Appellant's App. Vol. 2 p. 30.

5.   Despite the trial court's clear findings and order indicating that the trial court based its determination that T.A.’s consent was not required under Indiana Code section 31-19-9-8(a)(3), T.A. claims there was insufficient evidence of the factors set forth under Indiana Code section 31-19-9-8(a)(2). Indiana Code section 31-19-9-8(a)(2) states:(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:(A) fails without justifiable cause to communicate significantly with the child when able to do so; or(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.Ind. Code § 31-19-9-8(a)(2).However, because Indiana Code section 31-19-9-8 lists independent circumstances under which a parent's consent to adoption is not required and the trial court based its ruling on subsection 8(a)(3), we do not address this argument.

6.   We note that on appeal, T.A. fails to specify if his Due Process rights were violated under the United States Constitution, the Indiana Constitution, or both.

Foley, Judge.

Judges Mathias and Felix concur. Mathias, J. and Felix, J., concur.