NAJAM, Judge.
M.R. appeals the trial court's order granting a petition to adopt N.W.R. (or "the child") filed by Rg.B. and Rb.B. ("Foster Parents") following an evidentiary hearing. M.R. presents the following issues for review:
We reverse and remand with instructions.
N.W.R. was born on November 15, 2009, and is the biological son of B.T. and J.R. When N.W.R. was seventeen days old, DCS filed a petition alleging the child to be a child in need of services ("CHINS") and placed him with Foster Parents.
Shortly after DCS placed N.W.R. with Foster Parents, M.R., the child's biological paternal aunt ("Aunt M.R."), learned that the child had been removed from his biological parents. In December 2009, Aunt M.R. asked DCS to place the child with her in East Chicago. N.W.R.'s three older siblings had already been placed with her. Those siblings were five years old, four years old, and three years old at the time of the instant final adoption hearing. DCS did not change the child's placement from Foster Parents' home and later informed Aunt M.R. that the child's permanency plan was reunification with the biological parents. DCS also told Aunt M.R. that N.W.R.'s biological maternal aunt had expressed an interest in adopting the child.
Aunt M.R. persisted in contacting DCS and, in early 2010, the department agreed to allow Aunt M.R. and the siblings to have visitation with N.W.R. beginning May 2010. Short visitations began that month in Lebanon. By November 2010, the visitations had increased to weekend visitation, and by the time of the December 9, 2010, hearing, Aunt M.R. had visited N.W.R. for at least 200 hours.
The parental rights of N.W.R.'s biological parents were terminated by September 2010, at which time Foster Parents filed a petition to adopt the child. DCS executed its consent to the adoption on September 15, 2010. But thirty days later, on October 14, DCS filed a motion to intervene in the adoption proceedings and a motion to withdraw its consent. At a hearing on December 6, the trial court granted DCS' motion to intervene and heard evidence on its motion to withdraw consent. On December 9, Aunt M.R. filed a petition to adopt N.W.R. On December 9, the trial court consolidated the competing adoption petitions and heard additional evidence on DCS' motion to withdraw consent. On December 22, the trial court issued its order denying DCS' motion to withdraw consent.
On July 11, 2011, the trial court held a final hearing on the consolidated adoption petitions. On August 5, the court issued its decree granting Foster Parents' petition to adopt N.W.R. Aunt M.R. now appeals.
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. In re Adoption of S.A., 918 N.E.2d 736, 740-41 (Ind.Ct.App.2009), trans. denied. 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.
However, Foster Parents have not filed an appellee's brief. Thus, we will not undertake the burden of developing arguments for the appellee. Painter v. Painter,
Aunt M.R. first contends that the trial court abused its discretion when it denied DCS' motion to withdraw consent. Here, N.W.R. became a ward of DCS when he was determined to be a child in need of services on December 16, 2009. Thus, DCS had a statutory duty to make recommendations to the trial court regarding what placement and services would be in N.W.R.'s best interests. Ind.Code chs. 31-34-1 through -25. That obligation continues through the adoption phase of the child's wardship. See Ind.Code § 31-19-8-5 (requiring county DCS to file report of its investigation and recommendation as to adoption petition regarding adoption of a child in need of services). As this court has observed,
In re Adoption of S.A., 918 N.E.2d at 742 (emphasis added). In other words, while the determination of the child's best interests is ultimately in the hands of the trial court, DCS' job is to assist the court in that decision first by investigating which course of action is in the child's best interests and then by giving its opinion on that issue.
Additionally, a trial court deciding an adoption petition must find that "proper consent, if consent is necessary, to the adoption has been given."
(Emphasis added).
Here, on September 15, 2010, DCS executed a written consent to N.W.R.'s adoption by Foster Parents. But then, on October 14, DCS filed its motion to intervene in the adoption proceedings, which motion the trial court granted, as well as a motion to withdraw its consent.
On December 22, the trial court denied DCS' motion to withdraw consent. The court's order states in relevant part:
Appellant's App. at 5 (emphases in original).
The trial court discounted DCS' stated reason for seeking to withdraw consent, namely, the desire to investigate whether adoptive placement with a biological relative was in N.W.R.'s best interests. But DCS informed the court that it had not discharged its obligation to investigate fully what placement would be in the child's best interests, and the department sought only to complete its work and fulfill its obligation. The trial court denied the motion primarily on the ground that the withdrawal constituted, according to the trial court, a change in N.W.R.'s permanency plan that rendered the same "a temporary permanency plan" and made "his life, moving to stability ... ambiguous." Id.
While "permanency" is a long-term goal, a permanency plan is not fixed and unchangeable. The legislature has provided for both the creation and modification of permanency plans. Initially, DCS may choose any of several possible permanency plan placements for a child in need of services, such as return to the child's parent or guardian; placement with another responsible adult, such as an adult sibling, a grandparent, or other relative; appointment of a legal guardian; placement of the child for adoption; or placement in "another planned, permanent living arrangement." Ind.Code § 31-34-21-7.5. A child's permanency plan shall be re-evaluated to determine whether an existing permanency plan must be modified. See Ind. Code § 31-34-21-7(a), (b)(6). And with regard to adoptive placement of CHINS, the legislature has provided for the withdrawal of consent if that is in the best interests of the child. Ind.Code § 31-19-10-3. Thus, the relevant statutes clearly contemplate modification of a child's permanency plan.
Again, the paramount interest in adoption and CHINS cases is the best interests of the child. Further investigation by DCS in this case will take time that may appear contrary to that ultimate goal by delaying permanency and stability for the child. But here, whether through miscommunication or inadequate communication within the Jackson County DCS, the department's director executed a consent to adoption without having fully investigated an adoptive placement with a relative who had consistently expressed an interest in placement of the child with her and who has since adopted N.W.R.'s three older siblings. And DCS' regional director testified at length about studies supporting adoptive placement with a child's relative.
The trial court's concern with the child's stability is entirely appropriate. But N.W.R. is a ward of DCS, and, again, DCS has a statutory duty to take whatever action it deems to be in the child's best interest, acting "in loco parentis." In re Adoption of S.A., 918 N.E.2d at 742. Here, DCS sought to withdraw consent to Foster Parents' adoption of N.W.R. for the sole purpose of investigating whether adoptive placement with Aunt M.R., who has already adopted the child's three older siblings, would be in N.W.R.'s best interests.
Here, DCS had the integrity to declare on its own initiative that it had failed to meet its statutory duty. And this notice by DCS that its investigation was incomplete went directly to the heart of the adoption because it is the court's responsibility to determine the best interests of the child based upon a full investigation of credible placement alternatives. The court's ruling against DCS' motion to withdraw its consent affected the substantial rights of the parties and was not harmless. See Ind. Trial Rule 61. Thus, we hold that the trial court erred when, on these facts, the court denied DCS' request to withdraw its consent to the Foster Parents' adoption of N.W.R.
Aunt M.R. also contends that the trial court abused its discretion when it granted Foster Parents' petition to adopt N.W.R. Again, 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. In re Adoption of S.A., 918 N.E.2d at 740-41. And 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.
Here, the trial court issued a decree granting Foster Parents' petition for adoption ("Decree"). In the Decree the trial court found in relevant part as follows:
Appellant's App. at 12-13.
DCS' consent to N.W.R.'s adoption was required by Indiana Code Section 31-19-9-1(a)(3). But, as discussed above, we have determined that the trial court erred when it denied DCS' request to withdraw consent to Foster Parents' adoption of N.W.R. The parties do not argue, nor did the trial court make a record to show, that consent is not required. See Ind.Code § 31-19-9-8(a)(10). Because we hold that the trial court should have granted DCS' motion to withdraw its consent, it necessarily follows that the trial court entered the Decree without the consent required by statute. As such, the Decree is invalid. Therefore, we must reverse the Decree and remand.
DCS discovered that it had failed in its statutory obligation to conduct a complete adoptive placement investigation. When DCS acknowledged that failure and moved to withdraw its previous consent to adoption, the trial court denied the motion. We conclude on these facts that the motion to withdraw consent was made for good cause and in the best interests of the child and that the trial court abused its discretion when it denied the motion.
The DCS county director testified that he had learned after he had executed the consent that a relative of N.W.R., who was adopting N.W.R.'s three older siblings, was seriously interested in adopting N.W.R. and was a credible placement alternative indicating that further investigation was needed. And DCS' regional director testified about the benefits of placement with a child's siblings and that placement with Aunt M.R. was in the child's best interests.
In sum, while Aunt M.R. is only required to show prima facie error in this case, the evidence from DCS clearly and convincingly shows that withdrawal of DCS' consent was in the best interests of the child in order to allow DCS to investigate Aunt M.R. as an adoptive placement and, thereby, better to inform the court in its determination of the best interests of the child. We hold that where, as here, before an adoption decree has been entered, the agency acting in loco parentis moves to withdraw its consent because it has failed in its statutory obligation to conduct a complete placement investigation, the presumption that its initial consent
In light of our conclusion that the trial court erred when it denied DCS' motion to withdraw consent, the Decree was issued without the consent required by statute. As such, the Decree is invalid and we must reverse the Decree and remand with instructions. Upon completion of the investigation of Aunt M.R. as a potential adoptive placement, DCS shall execute and file its report and recommendation regarding placement with Aunt M.R., pursuant to Indiana Code 31-19-8-5, and its consent to adoption either by Aunt M.R. or the Foster Parents or by both.
Reversed and remanded with instructions.
RILEY, J., and DARDEN, J., concur.
