FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS C. ALLEN DUSTIN M. ROACH
Fort Wayne, Indiana Fort Wayne, Indiana
SUZAN M. RUTZ
Burt, Blee, Dixon, and Sutton
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE ADOPTION )OF T.J.F., )
2. [T.H.] was adopted by [the Hinrichs] on December 19, 1997.
3. [T.H.] is now seven (7) years old; [L.W.] is now thirteen
(13) years old.
4. Filed in the same cause prior to the granting of the
Decree of Adoption was a Post[-][A]doption Visitation Agreement which allowed for visitation between
[T.H.] and her biological sister, [L.W.].
5. Julie C. Hinrichs, adopted mother of [T.H.], admitted that she signed
the Post[-][A]doption Visitation Agreement.
6. An Agreed Entry amending post[-]adoption visitation was filed in the same-captioned
cause on or about August 11, 1998.
7. No visits pursuant to the Post[-][A]doption Visitation Agreement have taken place
since 1997.
8. Julie Hinrichs admitted that paragraph 10B of the Post[-][A]doption Visitation Agreement
placed the responsibility on her to arrange the visits.
9. That the original post[-]adoption visitation was not initiated at the suggestion
of Catholic Charities due to behavior problems [L.W.] was having.
10. The Allen Superior Court retained jurisdiction over [L.W.] with the Allen
County Office of Family and Children having wardship over said child.
11. In [L.W.’s] Child in Need of Services case, the [GAL] for
[L.W.], Susan Rutz, continued to act in her capacity as [GAL].
12. That Susan Rutz, as the [GAL], was unaware that visitation had
not been implemented between [L.W.] and [T.H.] since the time of the adoption
on December 19, 1997.
13. That the Hinrichs did not refuse or interfere with the post[-]adoption
agreement visitation until a request was made in September, 2001.
14. On or about April 18, 2002, the Office of Family and
Children filed a Motion to Permit Biological Sibling [Visitation] and on July 3,
2002, the Hinrichs, adoptive parents of [T.H.], filed a Motion to Modify and/or
Terminate Siblings Visitation.
15. That Patricia L. Bader [Dr. Bader] is an expert in pediatrics
and cytogenics and licensed to practice medicine in the State of Indiana.
16. That Dr. Bader is the doctor supervising the ongoing case of
[T.H.] and that [T.H] has been diagnosed [as] suffering from Fetal Alcohol Syndrome.
17. That the Fetal Alcohol Syndrome (hereinafter FAS) has caused her to
have delays in psychological development and maturation which includes developmental delays in social
interaction and academic developments.
18. That FAS children generally have difficulty sorting out realistic perceptions and
social/relational situations and often misinterpret their environment. They require routine and consistency
which are crucial to healthy developmental process.
19. Barbara Gelder, PHD, [Dr. Gelder] and [Dr. Bader], testified that FAS
children require stability and predictability in their lives.
20. Dr. Bader’s particular phraseology regarding [T.H.’s] needs was that she must
avoid “disturbances[.]”
21. Dr. Gelder’s particular phraseology was that a FAS child is in
need of “ongoing and predictable procedures.”
22. Dr. Gelder testified that FAS children do not transition well but
acknowledged that it was the fact of transition, not the stimulus, that creates
the possibility of detrimental consequences to an FAS child.
23. Dr. Gelder testified that FAS children respond better to “prepared transitions”
as opposed to “immediate transitions[.]”
24. Dr. Gelder testified that FAS children are capable of creating new
relationships.
25. Dr. Gelder and Dr. Bader acknowledged that a lack of stability
could arise out of any relationship in which [T.H.] is involved.
26. Dr. Bader testified that there is no predictability as to how
an FAS child will respond to a new situation and that it must
be dealt with on a “case by case” basis.
27. Dr. Bader recommended that it is not in [T.H.’s] best interest
to have visits with her sister, [L.W.], in that the visitations would create
a serious potential for psychological damage to [T.H.].
28. Dr. Bader also testified that visits with [L.W.] would be harmful
to the trusting bonds that she has formed with her current family.
29. Neither Dr. Bader nor Dr. Gelder have seen [L.W.] for diagnostic
or therapeutic consultation.
30. Neither Dr. Bader nor Dr. Gelder advised [T.H.] that she had
a biological sister.
31. [T.H.] is aware that she has a biological sister that exists
but has not shown any interest in meeting [L.W.].
32. That the mother, Julie Hinrichs, testified that it is not in
the best interest of [T.H.] to have visits with her sister due to
the uncertainty that the developing relationship would have on [T.H.].
33. Julie Hinrichs testified that five (5) other children live in her
household, several of whom are adopted and have biological siblings with whom they
do not visit.
34. Julie Hinrichs testified that [T.H.] has good relationships with her current
adoptive sisters.
35. Julie Hinrichs testified that [T.H.] had a normal childhood and has
been involved in school, church, and other extracurricular activities.
36. During these activities [T.H.] has met new children and formed relationships
with new children.
37. [The Hinrichs] had training in the behavioral needs of FAS children
and Julie Hinrichs testified that five other children live in her household and
several of them suffer from FAS.
38. The mother, Julie Hinrichs, testified that if the visits failed to
take place in an appropriate manner that it would harm [T.H.] psychologically and
emotionally, as well as seriously hamper the trust within the Hinrichs family unit.
39. Julie Hinrichs characterized [T.H.’s] behavior as “she has meltdowns all the
time[.]”
40. Julie Hinrichs testified that there is little predictability as to the
events that will trigger a “meltdown” in [T.H.].
41. No evidence was introduced that [L.W.] has any behavioral propensities that
may trigger “meltdowns” in [T.H.].
This Court now concludes that it is in the best interest of the
adopted child to modify the Post[-][A]doption Sibling Contract Agreement.
(Appellant’s App. pp. 5- 10).
The Hinrichs now appeal. Additional facts will be provided as necessary.
(1) the court determines that the post[-]adoption contact would serve the best
interests of the adopted child; and
(2) each adoptive parent consents to the court’s order for post[-] adoption
contact privileges.
In the instant case, the record shows that on December 19, 1997, the
trial court executed a Decree of Adoption. The record further shows that
the Decree of Adoption did not contain provisions authorizing post-adoption sibling visitation.
As stated above, I.C. § 31-19-16.5-1 clearly specifies that such post-adoption contact be
provided for in the adoption decree itself. Here, the adoption decree does
not mention any such post-adoption contact.
Nevertheless, the GAL and OFC argue that on June 27, 1997, the trial
court expressly authorized the visitation between T.J.F. and her sister L.W. However,
we find that this ruling was not final and conclusive.
See footnote Rather, it
was made as a temporary accommodation to the then relationship of the siblings.
It was an interlocutory order at best. As we previously stated
in
City of New Haven v. Chemical Waste Mgmt. Of Indiana, L.L.C., 701
N.E.2d 912, 924 (Ind. Ct. App. 1998), trans. denied:
[T]he very nature of interlocutory orders is that the case is not fully
developed before the case proceeds to a final hearing on the merits.
Such preliminary or interlocutory matters involve issues, which become merged in the final
judgment. However, the issue of post-adoption sibling visitation was not merged in
to the Decree of Adoption.
Further, at the final adoption hearing on December 19, 1997, the trial court
was aware of the post-adoption visitation agreement; nevertheless, the trial court did not
include a specific reference to the visitation between T.J.F. and L.W. in the
Decree of Adoption. Specifically, at the final adoption hearing, the following colloquy
occurred between the trial court and the Hinrichs’ attorney:
[THE HINRICHS’ ATTORNEY]: Oh. One other thing, Judge – uh – I forgot.
Um – prior to the – uh – setting this for final hearing
– um – we have entered into a visitation agreement with – uh
– a sibling. I – uh – and the – well, it’s
with the Welfare Department – uh – for visitation between [T.H.] and a
sibling that is not being adopted.
THE COURT: Okay. Very well. Has that been –
[THE HINRICHS’ ATTORNEY]: Yes. That’s – that’s –
THE COURT: - - made a part of this record?
[THE HINRICHS’ ATTORNEY]: - - in the file somewhere.
THE COURT: Okay.
THE COURT: The Record of Adoption needs to be correct, also.
(Appellant’s App. pp. 199 – 200). Based upon this exchange, it is
clear that the trial court was aware of the post-adoption visitation agreement.
However, the trial court did not include specific authorization for sibling visitation in
the Decree of Adoption. Thus, the adoption decree’s silence with reference to
the matter of sibling visitation is no more an indication of an inadvertent
omission on the part of the trial court than it is indicative that
the trial court in the final analysis determined that it was not in
the best interest of T.J.F. for continuing visitation with L.W.
We believe that the latter conclusion would seem to be the more likely
in that such continuing visitation might well be disruptive to the integrity of
the adoptive family unit. See 2 Am. Jur. 2D Adoption § 174
(1994). Although we believe that both possible conclusions involve a degree of
speculation, neither such inference is entitled to conclusive effect. We are therefore
left with an adoption decree that is silent upon the matter of sibling
visitation and which by common rules of construction subsumes, all issues which were
before the court in the adoption proceeding.
As a result, the instant case is similar to matters involved in marriage
dissolution cases. In such cases, we have previously held that “provisional orders
terminate when a final decree is entered.…” Dillon v. Dillon, 696 N.E.2d
85, 87 (Ind. Ct. App. 1998). Therefore, the June 27, 1997 temporary
order was terminated when the final Adoption decree was entered. Absent a
specific statement in the Decree of Adoption authorizing sibling visitation, the judicial authorization
for sibling contact ended with entry of the adoption decree.
See footnote Accordingly, we
hold that the trial court erred in ordering post-sibling visitation between T.J.F. and
L.W. Consequently, we find that the trial court erred in denying the
Hinrichs’ Motion to Dismiss the GAL and OFC’s Motion to Permit Biological Sibling
Visitation.