I N T H E

Indiana Supreme Court

Supreme Court Case No. 20S-AD-5

In the Matter of the Adoption of C.A.H., 

A.C.S. (Father),

Appellant-Respondent,

–v–

R.S.E. and R.K.E. (Grandparents),

Appellees-Petitioners.

Decided: January 10, 2020

Appeal from the Morgan Superior Court, No. 55D01-1705-AD-85

The Honorable Peter R. Foley, Judge

On Petition to Transfer from the Indiana Court of Appeals, 

No. 19A-AD-240

Per Curiam Opinion

All Justices concur. 
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Per curiam. 

Indiana law allows trial courts to find that a natural parent’s consent to 

the adoption of a child is irrevocably implied if the parent fails to 

prosecute a motion to contest the adoption “without undue delay.” Ind. 

Code § 31-19-10-1.2(g). 

However, a parent’s implied consent to the adoption of a child may not 

be based solely on the parent’s failure to appear at a single hearing, absent 

further findings to support a failure to prosecute. Accordingly, we reverse 

the trial court’s finding that Father’s consent was irrevocably implied in 

this matter and remand for further proceedings.

Facts and Procedural History

C.A.H. (“Child”) was born in 2015 to M.H. (“Mother”)1 and A.C.S. 

(“Father”). R.S.E. and R.K.E. (“Grandparents”), Child’s maternal 

grandparents, have cared for Child since March 2016. In June 2016, 

Grandparents were appointed Child’s guardians, and in May 2017, 

Grandparents filed a verified petition to adopt Child. This petition 

claimed that Father’s consent to the adoption was unnecessary under 

Indiana Code sections 31-19-9-8(a)(1)-(2), 31-19-9-8(a)(11), and 31-19-9-

8(b). Specifically, Grandparents claimed that for a period of at least six 

months preceding the filing of the petition, Father had “abandoned and 

deserted” Child, and that for a period of at least one year preceding the 

filing of the petition, Father had failed to communicate with or provide 

financial support for Child. bAppellant’s App. Vol. II, p. 14. 

Father filed a motion contesting the adoption and was appointed 

counsel. Father appeared, with his attorney, at an August 2017 pretrial 

hearing, and the trial court set a hearing for November on the issue of 

whether Father’s consent to the adoption was necessary. But when Father 

failed to appear for a deposition in September 2017, Grandparents filed a 

 

1 Mother voluntarily terminated her parental rights to Child and does not participate in this 

appeal. 
Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020 Page 3 of 7

motion to dismiss Father’s motion to contest the adoption for failure to 

prosecute. Father responded, indicating that he failed to appear because 

he was incarcerated in the Hamilton County Jail, and Grandparents 

voluntarily withdrew their motion to dismiss. Shortly thereafter, the

November 2017 hearing on whether Father’s consent was necessary was 

vacated and the adoption proceedings were stayed “pending resolution of 

the issue of paternity.” App. Vol. II, p. 38. 

In April 2018, the trial court issued orders establishing paternity in 

Father and setting the final hearing in the adoption case for June. On the 

morning of the final hearing, Father, by counsel, moved to continue, 

indicating that the previous day he was released from the Morgan County 

Jail “and picked up by Hamilton County” and was therefore unable to 

attend. Id. at 43. The trial court continued the hearing to July 18, 2018.

Father appeared at the July 18 hearing, but when Mother withdrew her 

consent to the adoption, the trial court appointed Mother counsel and 

continued the final hearing to October 5. Id. at 46-47. On October 4, 

Grandparents, by counsel, requested a continuance of all pending matters 

to allow them time to obtain other legal counsel, and the hearing was reset 

to November 14, 2018. Id. at 53, 55. Before this hearing, Grandparents filed 

an unopposed motion to continue, and the final hearing again was reset to 

January 4, 2019. Id. at 56, 58.

Father failed to appear the morning of the final hearing. Although 

Father’s counsel informed the court that she had had “multiple” phone 

calls with Father the day before and he had indicated he would attend, the 

trial court denied her oral motion for a continuance. Tr. Vol. II at 33, 35. 

The trial court then entered a decree of adoption in which it found that 

“Natural father [ ] fails to appear. The Court finds [Father’s] consent is not 

necessary. See Ind. Code Sec. 31-19-10-1.2. The rights of the natural father

[ ] are hereby terminated.” App. Vol. II, p. 93. Father filed a Trial Rule 

60(B) motion for relief from judgment, indicating that he overslept on 

January 4 but “still appeared at the courthouse during the scheduled 

hearing time.” The trial court denied this motion. Id. at 99. 

In a divided opinion, the Court of Appeals affirmed. Matter of Adoption 

of C.A.H., 132 N.E.3d 403 (Ind. Ct. App. 2019). The majority found that this 
Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020 Page 4 of 7

case was similar to K.S. v. D.S., 64 N.E.3d 1209 (Ind. Ct. App. 2016), trans. 

not sought, which affirmed the trial court’s finding that the birth mother’s 

consent to adoption was irrevocably implied due to her failure to appear 

at two hearings and her failure to maintain contact with her attorney. 

Judge Vaidik dissented, contending that the majority opinion sets the bar 

for finding implied consent in adoption cases “too low,” and would 

remand the case to allow Father to contest Grandparents’ failure-tosupport and failure-to-communicate allegations. 132 N.E.3d at 409.

We now grant transfer, thereby vacating the Court of Appeals opinion. 

Ind. Appellate Rule 58(A).

Discussion and Decision

“When reviewing a trial court’s ruling in an adoption proceeding, we 

will not disturb that ruling unless the evidence leads to but one conclusion 

and the trial judge reached an opposite conclusion.” In re Adoption of T.L., 

4 N.E.3d 658, 662 (Ind. 2014) (cleaned up). 

Indiana Code section 31-19-10-1.2(g)2 provides that “[i]f a court finds 

that the person who filed the motion to contest the adoption is failing to 

prosecute the motion without undue delay, the court shall dismiss the 

motion to contest with prejudice, and the person’s consent to the adoption 

shall be irrevocably implied.”

As to Father, the trial court’s decree of adoption cited to only this 

provision—and the fact that Father failed to appear at the final hearing—

in concluding that Father’s consent to Child’s adoption was not required. 

We therefore must decide whether Father’s failure to appear at the 

January 4, 2019 final hearing constituted a “fail[ure] to prosecute the 

motion without undue delay[.]”

 

2 K.S. v. D.S. relied on a different (but functionally identical) statute, Indiana Code section 31-

19-9-18, and neither party argues that K.S. can be distinguished on this basis. 
Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020 Page 5 of 7

First, we note that Father did appear at the first continued final hearing 

on July 18, 2018, but when Mother withdrew her consent to the adoption, 

the hearing was continued to October 5. This hearing then was continued 

two more times at Grandparents’ request. 

We also note that, on the morning of January 4, 2019, Grandparents’ 

counsel and the trial court referred to Father’s failure to appear as a basis 

to find his implied consent and as a basis for default. After Father’s 

counsel moved to continue the hearing, the following colloquoy took 

place: 

[GRANDPARENTS’ COUNSEL]: Your honor, on behalf of my clients, 

we object to the continuance. [Father] was aware of the hearing date. 

This matter has been pending since May of 2017. So, it’s been a very 

long time. He’s appeared at other proceedings. Counsel has informed 

him of the hearing date. He was served. This hearing date has been 

pending for quite some time. We ask that we proceed in default ... 

pursuant to the Indiana Rules of Trial Procedure and Indiana Code 31-

19-10-1.2. And I would also note it’s 10:17 on the clock.

THE COURT: Right. Well, as far as a continuance, there doesn’t appear 

to be any cause shown by the natural father as to why he’s failed to 

appear. By the acknowledgment of [Father’s counsel], she’s had recent 

contact with him and has made appointments, so there’s no known 

cause. With that, we will deny the Motion for Continuance, and move 

forward and default [Father]. There is a citation, I believe ...

[GRANDPARENTS’ COUNSEL]: In the Decree that I provided, Indiana 

Code 31-19-10-1.2 subparagraph g.

Tr. Vol. II, p. 34.

A few moments later, the trial court stated its intention to “make the 

finding as requested by Grandparents. Today is the date for the hearing. 

And there is no showing of cause for [Father’s] failure to appear. So this is 

an undue delay, as found under subsection g of the statute, and the Court 

will then find that his consent has been irrevocably implied for failure to 

prosecute his ... what amounts to the objection to the adoption.” Id. at 35.
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In civil matters, a trial court may enter a default judgment against a 

party for a failure to appear at a hearing or file responsive pleadings. Ind. 

Tr. R. 55. And while a parent’s interest in the care, custody, and control of 

his child is “perhaps the oldest of the fundamental liberty interests,” that 

parent’s non-participation in adoption or child welfare proceedings may

still result in the involuntary termination of parental rights. In re C.G., 954 

N.E.2d 910, 923 (Ind. 2011), quoting Troxel v. Granville, 530 U.S. 57, 65, 120 

S.Ct. 2054, 147 L.Ed.2d 49 (2000); Termination of Parent-Child Relationship of 

I.B. v. Ind. Dep’t of Child Services, 933 N.E.2d 1264, 1270-71 (Ind. 2010); K.S., 

supra. Within this framework, the General Assembly has created several 

means by which a parent’s consent to the adoption of a child may be 

irrevocably implied, including the parent’s failure to timely prosecute a 

motion to contest the adoption. 

But Father’s failure to attend the final hearing—one that had been 

rescheduled once at his request and three times at the request of other 

parties—is insufficient to overcome the important liberty interests at stake

by finding him in default. Father’s failure to appear at a single hearing 

also is insufficient to support a finding of implied consent when he

appeared at other hearings, maintained contact with his attorney, and 

otherwise participated in the proceedings. See L.G. v. S.L. 76 N.E.3d 157, 

170 (Ind. Ct. App. 2017), summarily aff’d in part, 88 N.E.3d 1069 (Ind. 2018) 

(holding that the dismissal of a motion to contest based solely on the 

parent’s failure to appear at a deposition was unwarranted given the 

fundamental liberty interests at stake). We agree with Judge Vaidik that

affirming the trial court’s judgment impermissibly lowers the bar for 

finding implied consent in adoption cases. See C.A.H., 132 N.E.3d at 409. 

Finally, we note that Grandparents’ verified petition alleged that 

Father’s consent to Child’s adoption was unnecessary because he had 

abandoned Child for at least six months preceding the petition’s filing;

failed without justifiable cause to communicate significantly with Child;

and failed to provide for Child’s care and support when able to do so. 

App. Vol. II, p. 14. This opinion does not resolve these claims, and our

reversal of the trial court’s order does not mean that Father necessarily 

will succeed in rebutting these allegations on remand; it simply provides 

him the opportunity to try. 
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Conclusion

A parent’s implied consent to the adoption of a child may not be based 

solely on the parent’s failure to appear at a single hearing.

There may be a situation, as in K.S., where a finding of implied consent 

can be supported by a parent’s failure to appear at the final hearing as part 

of an overall failure to advance a motion to contest an adoption. But this is 

not the case here. Father appeared at the initial final hearing before it was 

rescheduled, responded to pleadings, and maintained communication 

with his attorney throughout the proceedings. Under these circumstances, 

K.S. is inapposite.

We reverse the judgment of the trial court and remand for a hearing on 

the merits of Father’s motion to contest the adoption.

All Justices concur. 

A T T O R N E Y F O R A P P E L L A N T, F A T H E R

Alexander W. Robbins

The Law Office of Alex Robbins

Bedford, Indiana

A T T O R N E Y F O R A P P E L L E ES , G R A N D P A R E N T S

Glen E. Koch, II

Boren, Oliver & Coffey, LLP

Martinsville, Indiana