COA: adoption consent not required from father convicted of Class C felony

In affirming the adoption of a child without the father’s consent, the Indiana Court of Appeals found the “plain and ordinary meaning” of the state statute allowed the trial court to take into account the parent’s prior criminal acts.

Michael Mendez appealed the Cass Circuit Court’s decision that his consent was not needed to allow his child, D.M., to be adopted by his ex-wife’s husband. The marriage ended after Mendez was arrested for molesting his stepchild and later pled guilty to child molesting as a Class C felony. He was sentenced to 16 years, with eight years suspended, and ordered to not contact his ex-wife, child or stepchild.

The ex-wife, Leilani, eventually re-married and her husband, Brent Weaver, filed a petition for a stepfather’s adoption of minor, requesting to adopt D.M. In granting the petition, the trial court stated the consent from Mendez is not required because his conviction of the Class C felony for child molesting renders him unfit to be a parent.

On appeal, Mendez asserted the trial court erred because Indiana Code 31-19-9-10 requires a conviction for a Class A or B felony molestation for an automatic waiver of consent. He also argued he has taken responsibility for his crime, served his sentence, earning an early release for completing a substance abuse treatment program, and has been seeing a therapist and complying with probation.

However, the unanimous Court of Appeals found that Ind. Code 31-19-9-8(a)(11) does not prohibit the trial court from considering a parent’s criminal history, including a conviction for child molesting as a Class C felony or a conviction for any other crime.

“The plain and ordinary meaning of the statutory language does not preclude a trial court from considering the circumstances of a parent’s criminal activity in determining whether the parent is unfit to be parent,” Judge Elaine Brown wrote for the court.

Brown also pointed to other factors the trial court considered in finding Mendez an unfit parent. He molested his stepchild in D.M.’s home and he had a parental and moral duty to provide care. Also, he acknowledged he did not provide child support although he had the means to do so, and he did not file a petition for visitation despite being directed to do so by the dissolution decree.

Moreover D.M. is happy, has a good relationship with her stepsibling and Weaver, and has no recollection of Mendez. The Court of Appeals ruled the evidence supports the trial court’s decision.

The case is In re Adoption of D.M., Michael Mendez v. Brent L. Weaver, 09A02-1612-AD-2844.

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