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FILED
FOR PUBLICATION
Dec 31 2009, 10:36 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: BRYAN LEE CIYOU Ciyou & Dixon, P.C. Indianapolis, Indiana

ATTORNEY FOR APPELLEE: RICHARD A. MANN Richard A. Mann, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE MATTER OF THE ADOPTION OF: S.A., Minor Child, M.H. and C.H. and INDIANA DEPARTMENT OF CHILD SERVICES, Appellants, vs. C.R., Appellee-Cross-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 49A02-0906-CV-549

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge The Honorable Mark Batties, Master Commissioner Cause No. 49D08-0707-AD-030517

December 31, 2009 OPINION-FOR PUBLICATION

` BAKER, Chief Judge

Appellant-petitioner M.H. and C.H. and appellant Indiana Department of Child Services (DCS) (collectively, the appellants) appeal the denial of their motion to correct error after the probate court denied M.H. and C.H.'s petition to adopt S.A. and granted appellee-cross-petitioner C.R.'s petition to adopt. Specifically, the appellants argue that the adoption decree cannot stand because the findings were incomplete, the probate court did not enter any findings regarding DCS's consent to the adoption, and C.R. failed to present sufficient evidence satisfying the requirements for interstate adoption, and that the evidence was clear and convincing that M.H. and C.H.'s petition to adopt S.A. should have been granted. Concluding that the evidence was sufficient to support the probate court's granting of the adoption petition in favor of C.R., and finding no other error, we affirm. FACTS V.A. (hereinafter referred to as Biological Mother) gave birth to S.A. on March 5, 2005, in Marion. Immediately thereafter, S.A. aspirated meconium and was transported to Fort Wayne's Children's Hospital. Six days later, DCS removed S.A. from Biological Mother's care and placed S.A. in a foster home with M.H. and C.H. Because of the hospitalization, DCS filed a Child In Need of Services (CHINS) petition. After learning that S.A. had been placed in foster care, C.R.--who had ultimately adopted Biological Mother's teenage children--contacted DCS and requested that S.A. 2

be placed with her. However, DCS informed C.R., who lived in Chicago, that such placement would not occur because the initial plan was for reunification with Biological Mother. Sometime in 2006, the permanency plan was changed to adoption because Biological Mother was unable to complete the services that DCS offered and she could not provide a stable lifestyle to care for S.A. In late 2006 or early 2007, a permanency plan was developed for S.A.'s placement with C.R. because Biological Mother's other children were living with her. On May 18, 2006, DCS filed a petition to sever the parental rights of Biological Mother and S.A.'s alleged biological father. Following a hearing, their parental rights of custody and control of S.A. were terminated on January 4, 2007. However, prior to the final hearing, Biological Mother attempted to consent to C.R.'s adoption. Biological Mother knew that C.R. had provided her other children with a loving and caring home, where they had succeeded in school and in extracurricular activities. DCS

representatives informed Biological Mother that she could only give consent to C.R. if she also consented to an adoption by M.H. and C.H. However, because Biological Mother did not want to consent to M.H. and C.H.'s adoption of S.A., Biological Mother withheld her consent from both parties. Thereafter, DCS changed the original plan to adoption with M.H. and C.H., because S.A. had been living with them. C.R. and the teenage children had several

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supervised visits in Indiana with S.A. during the CHINS, termination, and adoption proceedings. On July 24, 2007, M.H. and C.H. filed their adoption petition. C.R. then filed a cross-petition for adoption on November 20, 2007. DCS entered its consent for M.H. and C.H. to adopt S.A. on February 15, 2008. Thereafter, on April 24, 2008, DCS filed an adoption summary, with an evaluation and recommendation stating: "It is the

recommendation of the [DCS] that M.H. and C.H. become the legal parents for S.A." Appellant's App. p. 50-55. After hearing evidence on the competing adoption petitions on December 10, 2008, the probate court took the matter under advisement. The evidence showed that C.R. is financially capable of supporting S.A. Moreover, it was established that S.A.'s biological siblings who live with C.R. participate in extra-curricular activities, play musical instruments, regularly spend time together as a family, and are excellent students. M.H. and C.H. have had twenty-three different foster children in their home over the past four years. Neither M.H. nor C.H. could remember the names of many of the foster children who had lived with them. C.H. has been treated for depression, and both she and M.H. are unemployed and were not able to provide proof as to their ability to support S.A. On May 29, 2009, the probate court issued an order, granting the adoption in favor of C.R. In particular, the probate court determined:

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18. That [C.R.] has adopted [D.R.] and [J.R.] and is the foster parent of [K.E.] and all three are half siblings to [S.A.]. 19. That in a Parenting Assessment completed by Barbara Brands of the Children's Bureau dated 10/3/07, Ms. Brands concludes that [S.A.] does appear to be bonded to [C.R.] and her siblings. ... 21. That Anthony Moya, Family Case Manager . . . at DCS, stated in his Petitioner's Answers to Intervenors Interrogatories dated October 5, 2007, that it is in [S.A.'s] best interest to live in the home with her siblings. ... 24. That [C.R.] testified that [S.A.] would be able to interact with her mother's biological family as they are invited to attend special family functions held at her home. ... IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT: 1. The Court finds that it is in the best interest of [S.A.] to be adopted by the Cross-Petitioner, [C.R.] and the Court orders this Petition for Adoption set for final hearing. 2. The Court denies the Petition for Adoption filed by [M.H. and C.H.].

Id. at 19-20. This appeal now ensues.1 DISCUSSION AND DECISION2 I. Standard of Review

The probate court granted the appellants' motion to stay the adoption order on June 19, 2009, pending the resolution of this appeal.
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The Appellants filed a "Motion to Strike C.R.'s Appellee's Appendix in its Entirety," a "Motion to Strike References to Appellee's Appendix in Appellee's Brief," and/ or in the Alternative to "Strike Paragraphs in Appellee's Brief That Rely Upon Appellee's Appendix." On December 4, 2009, this court ordered those motions held in abeyance to be ruled upon by the writing panel to which this case is assigned. We now grant the appellants' motion to strike with regard to the factual materials that were not properly before the probate court. We decline to consider those materials for purposes of deciding this appeal. See Sports Lounge, 833 N.E.2d 70, 73 n.1 (Ind. Ct. App. 2005).
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In general, when an adoption has been granted, we consider the evidence most favorable to the trial court's decision and the reasonable inferences that can be drawn therefrom to determine whether the evidence is sufficient to support the judgment. Irvin v. Hood, 712 N.E.2d 1012, 1013 (Ind. Ct. App. 1999). We will not disturb the trial court's decision in an adoption proceeding unless the evidence at trial led to but one conclusion and the trial court reached an opposite conclusion. Id. II. The Appellants' Contentions A. Incomplete Findings The appellants contend that the adoption decree must be set aside because "it is devoid of certain statutory findings required of any final order in adoption." Appellants' Br. p. 10. More specifically, the appellants maintain that the trial court failed to make specific findings regarding S.A.'s adoption that are set forth in Indiana Code section 3119-11-1. Pursuant to Indiana Code section 31-19-11-1: (a) Whenever the court has heard the evidence and finds that: (1) the adoption requested is in the best interest of the child; (2) the petitioner or petitioners for adoption are of sufficient ability to rear the child and furnish suitable support and education; (3) the report of the investigation and recommendation under IC 31-19-8-5 has been filed; (4) the attorney or agency arranging an adoption has filed with the court an affidavit prepared by the state 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 in accordance with IC 31-19-5; 6

(5) proper notice arising under subdivision (4), if notice is necessary, of the adoption has been given; (6) the attorney or agency has filed with the court an affidavit prepared by the state department of health under: (A) IC 31-19-6 indicating whether a record of a paternity determination; or (B) IC 16-37-2-2(g) indicating whether a paternity affidavit executed under IC 16-37-2-2.1; has been filed in relation to the child; (7) proper consent, if consent is necessary, to the adoption has been given; (8) the petitioner for adoption is not prohibited from adopting the child as the result of an inappropriate criminal history described in subsection (c) or (d); and (9) the person, licensed child placing agency, or county office of family and children that has placed the child for adoption has provided the documents and other information required under IC 31-19-17 to the prospective adoptive parents; the court shall grant the petition for adoption and enter an adoption decree. In light of the above, it is apparent that the trial court must find certain factors to exist before granting a petition to adopt. I.C.

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