The question presented is whether the appellant biological father’s consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adoption court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another cou rt. Upon our consideration of the asserted statutory provisions and the facts of this case, we find that this appellant father’s actions did not irrevocably imply his consent, upon which the adoption decree was predicated, and thus reverse the judgment of the trial court.
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In this case, the father timely sought to establish his paternity and asserted his parental rights in the court designated in the local court rules. It is further noteworthy that Indiana Code § 31-35-1-4.5 provides that a “putative father’s consent to the termination of the parent-child relationship is irrevocably implied” only if the father (1) fails to file “a paternity action under IC 31-14 . . . or in a court located in another state that is competent to obtain jurisdiction over the paternity action” within thirty days after receiving notice; or (2) having done so, “fails to establish paternity in the paternity proceeding within a reasonable period.” Ind. Code § 31-35-1-4.5 (emphasis added). And section 31-14-10-1 provides, “Upon finding that a man is the child’s biological father, the court shall . . . conduct a hearing to determine the issues of support, custody, and parenting time.” Id. § 31-14-10-1 (emphasis added). In this case, the Superior Court, despite having been informed that a paternity action had been timely filed in Circuit Court, and subse-quently being advised that the father had successfully established his paternity, nevertheless granted the adoption and terminated the father’s constitutionally protected parental rights without the father’s consent. This father timely registered with the Putative Father Registry, filed a petition to establish paternity and contested the adoption in the Circuit Court, putting all parties on notice that he desired to play a role in his child’s life and that he sought adjudication of his parental rights.
Not at issue in this case is whether the putative father’s consent should be irrevocably implied due to his failure “to appear at the hearing set to contest the adoption” pursuant to § 31-19-9-12(2). No such hearing was ever scheduled. Moreover, at no time before the trial court or on appeal have the adoptive parents asserted the putative father’s failure to appear at such a hearing as grounds for finding his implied consent. Nor did the trial court base its implied consent decision upon the defendant’s failure to appear either at such a hearing or at the final adoption hearing. This is not surprising given the fact that notice of the date of the final adoption hearing was sent not to the putative father but only to his former attorney in the Circuit Court matter, which attorney had never entered an appearance in the Superior Court adoption proceedings. If the facts had been otherwise, that is, where a putative father files the statutory motion to contest the adoption but then fails after receiving notice “to appear at the hearing set to contest the adoption,” then his consent to the adoption may be irrevocably implied pursuant to Section 12(2) of the statute. The expeditious placement of eligible children in permanent adoptive homes should not be unnecessarily delayed or jeopardized.
In sum, we hold that under Indiana Code § 31-19-9-12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative father must fail to file both a paternity action and a motion to contest the adoption. The appellant-father here undisputedly timely filed his paternity action. It is therefore unnecessary to decide whether his timely attempt to contest the adoption, filed in the Circuit Court rather than in the Superior Court where the adoption was pending, satisfied the adoption implied consent statute. The paternity action sufficed to preclude a finding of implied irrevocable consent to the adoption.
Because the trial court’s decree of adoption was predicated upon its erroneous determination that the father’s consent to the adoption was irrevocably implied by law, we reverse the judgment and remand this matter to the Superior Court for further proceedings not inconsistent with this opinion.
Sullivan and Rucker, JJ., concur. Boehm, J., concurs with separate opinion.
Shepard, C.J., dissents with separate opinion.
BOEHM, J., concurring.
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I hope 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 to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.
SHEPARD, C.J., dissenting.
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Holding that a putative father can de[r]ail an otherwise lawful adoption by doing just one but not the other, as the Court does today, may help the occasional blunderer, like the inmate in this case.
But it will also provide a very simple roadmap for obstructionists, a tool to use in preventing what my colleagues call the “expeditious placement of eligible children.”
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