IN RE: the Adoption of C.I. (2026)

MEMORANDUM DECISION

[1] K.S. (“Mother”) appeals the decree approving the adoption of her son, C.I. (“Child”), by his stepmother, S.I. (“Stepmother”). Mother presents five issues for our review, which we consolidate and restate as the following three issues:

I. Whether sufficient evidence supported the trial court's determination that Mother's consent to the adoption was unnecessary;

II. Whether Mother established prima facie error where the trial court denied her request for a separate hearing on whether the adoption was in Child's best interests; and

III. Whether Mother established prima facie error regarding the failure to enter a statutory finding regarding the filing of an affidavit concerning the putative father registry.

[2] We conclude that there was sufficient evidence that Mother's consent was unnecessary, but that Mother identified prima facie error in (1) the entry of a finding that the adoption was in Child's best interests without a hearing directed to that question and (2) the failure to enter a finding as to the filing of an affidavit concerning the putative father registry. Therefore, although we affirm the consent determination, we reverse the adoption decree and remand for a hearing on Child's best interests. On remand, the trial court should enter findings regarding the existence or absence of the putative father affidavit.

Facts and Procedural History

[3] Stepmother, who is married to Child's biological father, C.I. (“Father”), filed a petition to adopt Child on October 23, 2024, alleging Mother's consent was unnecessary under Indiana Code section 31-19-9-8 (“the Consent Statute”). Mother filed an objection to the adoption.

[4] At a pretrial conference on April 30, 2025, Mother's counsel (“Mother's Counsel”) informed the trial court that Mother would be her sole witness on the issue of consent. Mother's Counsel requested bifurcation to resolve the consent issue, which prompted the following exchange between Mother's Counsel and Judge Kelly S. Benjamin (“Judge Benjamin”), the appointed special judge:

[Mother's Counsel]:

I would ask that the Court bifurcate the hearings, so first determine whether consent is necessary and if determined the consent is not necessary, then have another hearing.

[Judge Benjamin]:

The Court is going to have the first hearing on the consent only because if it's, for whatever reason and whichever way it goes, it may determine how much time we need at the next hearing. So, I'm not going to set that. I just wouldn't know yet. Otherwise, in fact, you may have witnesses that you may not need. So, we'll have the first issue first and then we'll move on with the second, if needed.

[Mother's Counsel]:

Sounds good. Thank you.

Tr. Vol. 2 p. 5.

[5] The consent hearing was held on August 13, 2025, with Judge Benjamin presiding over the hearing. There was testimony from Stepmother and Father. There was also testimony from Mother, who was incarcerated at the time and personally appeared in custody. On June 21, 2016, Child was born to Mother and Father, who were unmarried. Child lived with Mother. In mid-2018, when Child was approximately two years old, the Indiana Department of Child Services (“DCS”) filed a petition alleging that Child was a Child in Need of Services (“CHINS”) while in Mother's care. Child was removed from Mother's home and placed with Father. Child has remained in Father's care.

[6] In January 2020, Father began dating Stepmother, who was introduced to Child about two weeks later. Meanwhile, there was an active custody case before the Jackson Superior Court 2 (“the paternity court”) that was resolved on January 23, 2020, with Father receiving sole legal and physical custody of Child. At that point, Mother was incarcerated, and the paternity court directed that Mother “not have any court ordered parenting time with [Child] while incarcerated,” specifying that, following her release, Mother was to have parenting time as “agreed upon by [the] parties.” Ex. Vol. 4 p. 12. If Mother and Father could not agree, Mother was to petition the paternity court.

[7] Mother was released to probation and filed a petition seeking custody and parenting time. In October 2020, the paternity court denied Mother's request. The paternity court observed that Mother previously pleaded guilty to felony neglect of a dependent, her probation was revoked in May 2020, and she had four pending criminal cases involving, respectively, allegations of (1) Class A misdemeanor trespass; (2) seven counts of unlawful use of the 911 service; (3) criminal trespass, resisting law enforcement, and disorderly conduct; and (4) domestic battery and resisting law enforcement. The paternity court found that “[p]arenting time for [Mother] at this time would endanger [Child] and impair his emotional development.” Ex. Vol. 4 p. 14. The paternity court further found that “[l]etting [Mother] back into [Child's] life is not in his best interest until her criminal matters are resolved and it is established she will not be incarcerated for these crimes.” Id. at 14–15. The court specified that Mother could request parenting time once her pending criminal cases were resolved either “by dismissal” or “with her on probation.” Id. at 15.

[8] When Mother was released, Father permitted video calls between Mother and Child. Father ended them after Mother started recording the calls and made comments about Father that upset Child. Mother then filed a petition seeking parenting time. On August 2, 2021, the paternity court granted Mother supervised weekly parenting time at Father's home. A few days later, Father filed an emergency petition to temporarily suspend parenting time after Mother arrived early for parenting time, started taking pictures, and wanted to look through a window into Father's home. The paternity court set the matter for a hearing on August 20, 2021, specifying that its prior parenting time order would remain in effect, but Mother was “ordered not to videotape or photograph during parenting time.” Id. at 18. The court held a hearing and appointed a visit supervisor, specifying that it would review the matter after receiving a report from the visit supervisor. The visit supervisor reported that Mother “threatened her with filing contempt against her” and failed to pay a court-ordered deposit, which resulted in an order suspending Mother's parenting time as of August 26, 2021. Id. at 19. The paternity court noted that Mother was to be sentenced on September 15, 2021, in two criminal cases. As to those cases, Mother eventually received fully suspended sentences and was placed on probation.

[9] In October 2022, Mother was charged with multiple counts of harassment based upon allegations that Mother repeatedly made baseless DCS reports accusing Father and Stepmother of abusing Child. At the consent hearing, Father testified that because of Mother's reports to DCS, there were extensive investigations that required Child to undergo multiple forensic examinations, with none of the allegations ever substantiated. In January 2024, Mother was tried by jury and found guilty of seven counts of Class B misdemeanor harassment. The sentencing hearing was held in April 2024. Mother received consecutive sentences and was remanded to the Bartholomew County Jail with a projected release date in January 2025.

[10] Stepmother and Father each testified that Mother had no contact with Child after August 2021. Stepmother testified that Child had received no letters or gifts since the last visit. Father testified that since Mother's parenting time was suspended in August 2021, Mother had not sent cards or otherwise contacted Child, and that they had not received any contact from Mother's family. He believed Mother knew his address, which was included on filings in DCS matters. Father had the same attorney since 2018 and was unaware of any attempt by Mother to obtain information about Child from his attorney. Asked what communication he would accept between Mother and Child, Father answered, “Zero.” Tr. Vol. 2 p. 44.

[11] Mother's account differed. She testified that her last contact with Child came “[s]hortly before I became incarcerated,” at Father's rental properties, and that “[Father] let me see [Child].” Id. at 53. However, Father testified that, for years, Mother had been making false allegations about events at his rental properties, including allegations that he had raped her there. Father said that the allegations had been investigated, and nothing was found to be true.

[12] Mother testified that she saw Child “two (2) times a week” through those meetings until approximately one month before she was returned to jail in April 2024, and she always brought Lego toys. Id. at 64. Mother said that she mailed letters for Child to her grandmother without knowing whether Child received them, and that she never wrote to him at Father's home because she did not know the address and feared violating a protective order. Mother said that she began mailing filings to the paternity court seeking phone visits in May 2024, about a month after her incarceration began, and she kept a log of her outgoing mail because mail had gone missing. The paternity court did not receive a request for phone visitation from Mother until November 14, 2024. The paternity court later denied the request, stating that Mother “may request visitation upon her release from incarceration ․” Ex. Vol. 4 p. 20.

[13] The trial court took the matter under advisement. On September 25, 2025, the court issued an order titled “Order Finding Mother's Consent Not Required for the Adoption” (hereinafter, the “Consent Order”). Appellant's App. Vol. 2 p. 18. In accompanying findings and conclusions, the trial court found Mother's testimony about the alleged meetings at Father's rental properties “absolutely unbelievable and disturbing” and stated that it did “not find [Mother] credible at all.” Id. at 22. The court, likewise, declined to credit her testimony that she had mailed written requests for parenting time that the jail withheld. The trial court instead found that Mother “did not request telephone contact in the paternity cause until after the present adoption petition was filed.” Id. at 25.

[14] In the Consent Order, the trial court found that Mother's consent was unnecessary under three subsections of the Consent Statute. See id. at 30–34 (concluding that Mother failed to communicate, knowingly failed to provide support, and is unfit); but see id. at 34 (reciting only the failure to communicate and parental unfitness). The first subsection was (a)(2)(A) (“the Communication Subsection”), which applies when the parent “fails without justifiable cause to communicate significantly with the child when able to do so ․” Ind. Code § 31-19-9-8(a)(2)(A). The second was subsection (a)(2)(B) (“the Support Subsection”), which applies when 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.” I.C. § 31-19-9-8(a)(2)(B). The third subsection was (a)(11) (“the Parental Fitness Subsection”), which dispenses with a parent's consent when “a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent” and “the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent.” I.C. § 31-19-9-8(a)(11). Separate from the issue of parental consent, an independent statute—Indiana Code section 31-19-11-1 (“the Adoption Statute”)—requires that, to grant an adoption, the court must “hear[ ] the evidence and find[ ] that ․ the adoption requested is in the best interest of the child ․” I.C. § 31-19-11-1(a)(1).

[15] In the Consent Order, the trial court organized its findings under headings that correspond to subsections of the Consent Statute. Under the heading “Parent is Unfit,” the trial court found in Finding 69 that “[a]doption by [Stepmother] serves Child's best interests by ensuring permanence, stability, and continuation of care and love in his established home.” Appellant's App. Vol. 2 p. 34. The next finding, Finding 70, was that Stepmother “has proven by clear and convincing evidence[ ] that [Mother] is unfit and that dispensing with [her] consent is in ․ Child's best interests as required by [the Parental Fitness Subsection].” Id.

[16] On October 7, 2025, Stepmother moved for a final hearing. Appellant's App. Vol. 2 p. 7. Before Mother responded, the trial court granted the motion and set the matter for a fifteen-minute final hearing on November 5, 2025. Appellant's App. Vol. 2 pp. 7–8. Mother then filed a response stating that the proceedings had been bifurcated “with the first hearing to address whether [Mother's] consent was required, and the second hearing addressing whether adoption is in [Child's] best interests.” Respondent's Response to Petitioner's Motion for Final Hearing at 1, No. 03C01-2410-AD-5887 (Bartholomew Cir. Ct. Oct. 9, 2025).¹ Mother argued that, at the prior hearing, “the evidence presented focused on whether [her] consent should be dispensed with.” Id. She “request[ed] the opportunity to present evidence regarding whether adoption by [Stepmother] is not in ․ Child's best interests.” Id. The trial court gave Stepmother ten days to file a response, which she did.

[17] Stepmother responded that, “[w]hile the parties agreed to bifurcation,” it was “inaccurate to state the purpose of the second hearing would address whether adoption is in ․ Child's best interests.” Petitioner's Response to Respondent's Response to Petitioner's Motion for Final Hearing at 1, No. 03C01-2410-AD-5887 (Bartholomew Cir. Ct. Oct. 23, 2025). Stepmother asserted that Finding 69 satisfied the requirement of the Adoption Statute that the adoption is in the child's best interests. She asked the court to “maintain the currently scheduled fifteen (15) minute hearing ․” Id. at 3.

[18] On October 27, 2025, Judge Benjamin ordered that the cause would remain set for a fifteen-minute final adoption hearing, writing: “[A]fter a full hearing on August 13, 2025, in determining that Mother's consent is not required for the adoption, the Court also found and determined that the adoption by [Stepmother] serves ․ Child's best interests by ensuring permanence, stability[,] and continuation of care and love in ․ [C]hild's established home.” Order at 1, No. 03C01-2410-AD-5887 (Bartholomew Cir. Ct. Oct. 27, 2025).

[19] The final hearing was held on November 5, 2025. Senior Judge Roger L. Duvall (“Judge Duvall”) presided over the hearing, noting that he was “covering today for Judge Benjamin.” Tr. Vol. 2 p. 78. At the outset of the hearing, Mother's Counsel objected to the trial court's entry of a finding on Child's best interests, explaining that she took Judge Benjamin's remarks to mean that “the first hearing would be regarding whether [M]other's consent should be dispensed with” and if it was determined that Mother's consent was statutorily unnecessary, “then there would be a second separate hearing regarding whether it's in [Child's] best interest to be adopted by [Stepmother].” Id. Mother's Counsel stated that she “recognize[d] that the Court has already entered findings, finding that it is [Child's] best interest,” but asserted that she “wanted to note [the] objection for the record, and ask that a hearing on best interests be scheduled with two (2) hours set aside.” Id.

[20] As to the consent hearing, Mother's Counsel explained that she “did not understand that best interest would be addressed that day,” so “[she] did not have the opportunity to prepare or present any evidence on that issue.” Id. Mother's Counsel stated that, had she been given the opportunity, she “would have presented evidence regarding [Child's] adjustment to his current home, [the] nature of existing parent-child relationships, [and] [Child's] overall stability and continuity of care.” Id. at 79. Stepmother's trial counsel (“Stepmother's Counsel”) did not dispute Mother's recitation of the events at the pretrial conference, telling Judge Duvall: “In regards to the best interests of [Child] and its determination, [Mother's Counsel] is correct. A pre-trial conference was held and it was determined that the consent would be bifurcated. The issue of best interest was never stated for a final hearing.” Id. However, Stepmother's Counsel stated: “This is not an opportunity to re-litigate the issue of best interests. This is merely a statutory requirement. The issue of whether or not this is in [Child's] best interest has already been determined by this Court in [its] Findings of Fact issued on September 25, 2025.” Id.

[21] The trial court took note of Mother's objection while observing that Judge Benjamin “made findings concerning the best interest of [Child]” in the prior order. Id. at 80. The court observed that the issue of best interests was integral to “this final hearing as we review the petition that was filed.” Id. The court also questioned whether Mother could participate in further proceedings, stating: “But, the fact that an order has been issued that says the adoption [sic] is not required, I think, presents a procedural obstacle as to her participation in this matter.” Id.

[22] Mother's Counsel objected on a second ground, noting “for the record that [Stepmother] has not filed the Affidavit from the State Department of Health verifying the results of the Putative Father Registry search as required under the [Adoption] [S]tatute.” Id. at 78. She objected “to a final hearing going forward ․ because the statutory requirements have not been met.” Id. Stepmother's Counsel responded that consent is required of putative fathers but that “we do not have putative fathers” in this case because Father's paternity had been established by court order in 2017 and had “remained established without question since 2017.” Id. at 79. Mother's Counsel replied that she was “not aware of any exception with regards to the Affidavit to the State Department of Health, including paternity being established.” Id. The trial court overruled the objection, stating it did not think that “the failure to provide that form, at this point [in] time, given the finding of paternity[,] is fatal to the proceedings,” characterizing the affidavit issue as “a relatively minor matter․” Id. at 80.

[23] The court then heard brief testimony from Stepmother and Father. Tr. Vol. 2 pp. 81–84. Judge Duvall later entered a Decree of Adoption, stating that the court was “reaffirm[ing] its findings contained in the Order issued on September 25, 2025, that adoption by [Stepmother] is in the best interest of [Child].” Appellant's App. Vol. 2 p. 11. Mother now appeals.

Discussion and Decision

[24] Mother challenges certain findings and procedures underlying the Decree of Adoption. At the outset, we observe that a natural parent “enjoys special protection in any adoption proceeding,” and we “strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship.” In re Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021). Moreover, we note that Stepmother represents herself on appeal. A pro se litigant is afforded no inherent leniency simply by virtue of being self-represented and is held to the same standards as a trained attorney. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Although Stepmother filed a brief addressing several issues, she did not respond to Mother's challenge to the procedures resulting in the best interests finding, nor to Mother's challenge to the entry of a decree without the affidavit required by the Adoption Statute. Failure to respond to an issue is akin to failure to file a brief, subjecting the Appellee to reversal if the Appellant establishes prima facie error on that issue. Evansville Auto, LLC v. Labno-Fritchley, 207 N.E.3d 447, 454 (Ind. Ct. App. 2023), trans. denied. Prima facie error means error at first sight, on first appearance, or on the face of it. Id.

I. Consent

[25] Mother challenges the sufficiency of the evidence supporting the finding that her consent to the adoption was unnecessary. A petition to adopt a minor child may generally be granted only if the child's living parents have consented. I.C. § 31-19-9-1. Under enumerated circumstances, however, the Consent Statute permits the trial court to dispense with that consent and allow the adoption to proceed. See I.C. § 31-19-9-8(a); I.B., 163 N.E.3d at 274. Here, the trial court found that Mother's consent was unnecessary under three subsections of the Consent Statute: (1) the Communication Subsection; (2) the Support Subsection; and (3) the Parental Fitness Subsection. The subsections of the Consent Statute are written in the disjunctive, so the existence of any one of the enumerated circumstances is sufficient ground to dispense with consent. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). We therefore need only determine whether sufficient evidence supported one of the three subsections the trial court identified under the Consent Statute. For the reasons below, we conclude there was sufficient evidence supporting the trial court's finding that Mother's consent was unnecessary under the Communication Subsection.

A. Standard of Review

[26] When a petition for adoption alleges that a parent's consent is unnecessary and the parent moves to contest the adoption, the petitioner bears the burden of proving that the consent is unnecessary. I.C. § 31-19-10-1.2(a). The petitioner carries that burden by presenting clear and convincing evidence. I.B., 163 N.E.3d at 274–75. On appeal, we give “considerable deference” to the trial court's decision in family law matters “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.” I.B., 163 N.E.3d at 274 (quoting E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018)). We therefore presume the trial court's decision is correct, and the appellant bears the burden of rebutting that presumption. Id. We will not disturb the decision “unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.” Id.

[27] In conducting our review, we neither reweigh the evidence nor reassess the credibility of witnesses. Id. Rather, we examine the evidence in the light most favorable to the trial court's decision. Id. Furthermore, to the extent the trial court entered findings of fact and conclusions of law, we apply a two-tiered standard, asking whether the evidence supports the findings and whether the findings support the judgment. O.R., 16 N.E.3d at 973. We will not set aside the findings or the judgment unless they are clearly erroneous. See Ind. Trial Rule 52(A); In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006). Findings are clearly erroneous “if the record lacks any evidence or reasonable inferences to support them.” T.W., 859 N.E.2d at 1217. A judgment is clearly erroneous if “it is unsupported by the findings of fact and the conclusions relying on those findings.” Id.

B. Consent Finding

[28] Mother claims there was insufficient evidence supporting the finding that her consent was unnecessary under the Communication Subsection. To dispense with consent on this ground, the petitioner must prove five things: that the child was in the custody of another person; that a period of at least one year elapsed; that the parent failed to communicate significantly with the child during that period; that the parent was able to communicate; and that the failure was without justifiable cause. I.C. § 31-19-9-8(a)(2)(A). Our Supreme Court has cautioned that a “determination on the significance of the communication is not one that can be mathematically calculated to precision,” that “[e]ven multiple and relatively consistent contacts may not be found significant in context,” and that, conversely, “a single significant communication within one year is sufficient to preserve a non-custodial parent's right to consent to the adoption.” I.B., 163 N.E.3d at 276 (quoting E.B.F., 93 N.E.3d at 763).

[29] The first two elements are not in serious dispute. Child has lived with Father since June 2018, and Father has held sole legal and physical custody since January 23, 2020. As to communication, the trial court found that Mother “has had no contact with Child, whether de minim[i]s or significant, since her parenting time was suspended in August 2021.” Appellant's App. Vol. 2 p. 25. Both Stepmother and Father testified that there had been no contact between Mother and Child since the last visit in August 2021. Father added that Mother's family had not reached out. Mother testified to the contrary, describing regular meetings at Father's rental properties through early 2024. However, the trial court found Mother's testimony about the alleged meetings “absolutely unbelievable,” adding that it “does not find [Mother] credible at all.” Id. at 22. We do not revisit that credibility determination.

[30] As to Mother's ability to contact Child and the lack of justifiable cause, Father testified that, in DCS matters, correspondence bearing his address had been mailed to Mother, and he had been represented by the same attorney since 2018. Father was unaware of any attempt by Mother to obtain information about Child. The trial court found Mother familiar with the court system, “evidenced by [her] filing in the paternity cause requesting phone calls with Child only after this petition for adoption was filed.” Id. at 30–31. The court specifically found that Mother “has had the ability to communicate with Child but has chosen not to do so,” adding: “That incarceration and protective orders may make communication more cumbersome does not excuse her failure, as those barriers are the direct result of her own actions.” Id. at 31. The trial court referred to O.R., where the Indiana Supreme Court affirmed on materially similar facts. There, the trial court rejected an incarcerated father's claims that he could not communicate and did not know the child's address, reasoning that he could have written letters or initiated contact through the custodians’ counsel or the court—and the father's professed unfamiliarity with the court system was belied by his involvement in prior cases. 16 N.E.3d at 973–74.

[31] Mother advances three arguments. First, she contends that the evidence does not establish that she ever went a full year without significant communication before her parenting time was suspended in August 2021. See Appellant's Br. p. 16. But this argument focuses on the wrong timeline; the pertinent inquiry instead concerned whether Mother had significant communication with Child after August 2021. Second, Mother argues that after her parenting time was suspended in August 2021, “the record reflects layered legal barriers that materially restricted Mother's ability to communicate.” Id. Mother points out that she “no longer had court-authorized access to ․ Child,” and “[b]ecause Father was the custodial parent and the gatekeeper” and she was prohibited from contacting him, she was “functionally foreclosed” from “direct communication from ordinary channels.” Id. at 16–17. But, as in O.R., Mother could have attempted communication with Father's counsel. She also could have filed a request with the paternity court—there was evidence that Mother knew how to do so but waited until after Stepmother petitioned for adoption.

[32] Mother's third argument is that, unlike the father in O.R., she did not sit idle—she asked the paternity court to establish phone visits—and Father testified he would not have agreed to phone contact in any event. However, the evidence supported the trial court's determination that Mother did not file a request until after the adoption petition was filed, and a parent's conduct after the petition is filed is “wholly irrelevant to the determination of whether the parent failed to significantly communicate with the child for any one year period.” In re Adoption of S.W., 979 N.E.2d 633, 640 n.3 (Ind. Ct. App. 2012) (quoting In re Adoption of Subzda, 562 N.E.2d 745, 750 n.3 (Ind. Ct. App. 1990)). Nor does Father's testimony that he would have prohibited contact assist Mother; as earlier discussed, she did not pursue other means of contact.

[33] For the reasons above, sufficient evidence supports the trial court's finding that Mother's consent to the adoption was unnecessary under the Communication Subsection of the Consent Statute. Because that ground independently supports the trial court's determination, we do not reach Mother's challenges to the findings under the Support Subsection or the Parental Fitness Subsection.

II. Best Interests Finding

[34] Mother claims the trial court erred in entering a finding under the Adoption Statute that adoption by Stepmother was in Child's best interests without holding an evidentiary hearing on the issue. Mother argues that Judge Benjamin reserved the issue of whether the adoption was in Child's best interests for a separate evidentiary hearing, that Mother relied on there being two separate hearings—confining her evidence at the first hearing to solely those issues under the Consent Statute—and that she was denied the opportunity to present evidence under the Adoption Statute.

[35] We conclude that Mother established prima facie error in the proceedings that led to the Decree of Adoption. Indiana Code section 31-19-10-5 provides that “[w]henever a motion to contest an adoption is filed, the court shall, before entering a decree under IC 31-19-11, set the matter for a hearing to contest the adoption.” And Indiana Code section 31-19-10-7(a)(2) expressly authorizes “conduct[ing] bifurcated hearings” in contested adoption cases. Here, Judge Benjamin bifurcated the proceedings at Mother's request, explaining that the trial court would first hold an evidentiary hearing regarding whether Mother's consent was necessary. Judge Benjamin indicated that this approach would be beneficial to Mother, noting: “Otherwise, in fact, you may have witnesses that you may not need. So, we'll have the first issue first and then we'll move on with the second, if needed.” Tr. Vol. 2 p. 5.

[36] Mother relied on Judge Benjamin's procedural order and confined her evidence to the issue of consent. As Mother explained at the final hearing, if given the opportunity, she “would have presented evidence regarding [Child's] adjustment to his current home, [the] nature of existing parent-child relationships, [and] [Child's] overall stability and continuity of care.” Id. at 79. Moreover, when Mother objected to the entry of a best interests finding under the Adoption Statute, Stepmother's Counsel confirmed that bifurcation of the issues was intended, informing the court that Judge Benjamin agreed to bifurcate issues and “[t]he issue of [Child's] best interest was never stated for a final hearing.” Id.

[37] In contested adoption cases, multiple statutes apply. The Consent Statute first determines whether a natural parent's consent to the adoption is required, because if consent is required, but not provided, then the court must deny the petition. The Parental Fitness Subsection of the Consent Statute requires two separate findings, first that a parent is unfit, and second, that “the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent.” I.C. § 31-19-9-8(a)(11) (emphasis added). The Adoption Statute focuses on the adoption itself, asking, in relevant part, whether “the adoption requested is in the best interest of the child ․” I.C. § 31-19-11-1(a)(1) (emphasis added). Much of the same evidence may bear on both questions. But the findings are separate and independent, and a court that makes the first has not, thereby, made the second.

[38] Here, the Consent Order inaccurately recited the requirements of the Parental Fitness Subsection, stating that “a parent's consent is unnecessary if clear and convincing evidence shows the parent is unfit and adoption is in the child's best interests.” Appellant's App. Vol. 2 p. 32 (emphasis added). This partly tracks language in the Adoption Statute rather than the Parental Fitness Subsection. In any case, the hearing preceding the Consent Order was set on the issue of consent alone, and the best interests finding appears under the heading “Parent is Unfit,” immediately before a conclusion that Stepmother had proven “that [Mother] is unfit and that dispensing with [Mother's] consent is in ․ Child's best interests as required by [the Parental Fitness Subsection].” Id. at 34.

[39] Due to the bifurcation of the issues—with a hearing convened solely on the issue of consent, and the evidence likewise confined to the issue of consent—we conclude that the best interests finding in the Consent Order is limited to a finding under the Parental Fitness Subsection, namely that the best interests of the Child are served if the court dispensed with Mother's consent. Our analysis is unaffected by the fact that the Consent Order recited the Adoption Statute's standard rather than the Parental Fitness Subsection's and included a finding that “[a]doption by [Stepmother] serves Child's best interests ․” Id. This finding—made in the first phase of bifurcated proceedings, after a hearing confined to evidence on the issue of consent under the Consent Statute—cannot supply what the Adoption Statute requires, which is a best interests finding made after the court has “heard the evidence” on the broader question of whether the adoption is in the Child's best interests. I.C. § 31-19-11-1(a).

[40] Given the fundamental interests involved in an adoption case, Stepmother's lack of appellate briefing on the issue, Mother's reliance on the trial court's order to bifurcate the proceedings, and the failure to hold a hearing directed to whether the adoption itself was in Child's best interests, we conclude that Mother identified prima facie error in the procedures that led to the Decree of Adoption.² We, therefore, reverse the adoption decree and remand for fact-finding regarding Child's best interests.

III. Affidavit Finding

[41] Mother contends the trial court erred with respect to an affidavit requirement under the Adoption Statute. However, Stepmother does not respond to these arguments in appellate briefing. Mother directs us to the requirement that, before granting an adoption, the court find that “the attorney or agency arranging an adoption has filed with the court an affidavit prepared by the Indiana department of health under IC 31-19-5-16 indicating whether a man is entitled to notice of the adoption because the man has registered with the putative father registry.” I.C. § 31-19-11-1(a)(4). The Adoption Statute refers to the affidavit requirement a second time, specifying in subsection (b) that “[a] court may not grant an adoption unless the Indiana department of health's affidavit under IC 31-19-5-16 is filed with the court as provided under subsection (a)(4).” I.C. § 31-19-11-1(b). The chapter related to the putative father registry also refers to this requirement, stating: “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).” I.C. § 31-19-5-16(d).

[42] At the final hearing, Mother's Counsel objected on the basis that no affidavit from the Indiana Department of Health had been filed. The trial court overruled the objection, treating the omission as “a relatively minor matter” in light of the established finding of paternity. Tr. Vol. 2 p. 80. Under certain circumstances, this type of omission can constitute harmless error. See In re Adoption & Paternity of K.A.W., 99 N.E.3d 724, 727 (Ind. Ct. App. 2018) (involving circumstances where the registered putative father had actual notice of the adoption case and was actively participating in the proceedings). Here, however, there is no contention that the error is harmless. Rather, Stepmother did not address the issue on appeal. Because harmless error was not argued and we are already reversing and remanding, on remand, we direct the trial court to address the existence or absence of the affidavit through the entry of findings.

Conclusion

[43] There was sufficient evidence supporting the trial court's determination that Mother's consent to the adoption was unnecessary. We, therefore, affirm that finding. However, Mother identified prima facie error in the procedure that led to the trial court's determination that the adoption was in Child's best interests, and in the failure to enter the finding required by Indiana Code section 31-19-11-1(a)(4) related to the filing of an affidavit concerning the putative father registry. Therefore, although we affirm in part, we reverse the adoption decree and remand for a hearing on Child's best interests. On remand, the trial court should enter findings regarding the existence or absence of the putative father affidavit.

[44] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   We accessed this document and related filings through the Odyssey case management system.

2.   Mother also frames this issue as a denial of due process, relying on Santosky v. Kramer, 455 U.S. 745 (1982), and Troxel v. Granville, 530 U.S. 57 (2000). Because we resolve the issue on the bifurcation record and Indiana's adoption statutes, and because Mother has established prima facie error, we do not reach the constitutional claim.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur.