McNicholas v. Johnson

ROBERTSON, Judge. Donald and Jeanette MeNicholas appeal the trial court's decision to grant Gretchen Johnson's petition to withdraw her consent to the McNicholases' adoption of Johnson's daughter, Erica. The McNicholases raise three (8) issues which we restate and consolidate into two (2), neither of which constitutes reversible error. FACTS The facts in the light most favorable to the trial court's judgment indicate that in March of 1991, Gretchen Johnson was separated from her husband and became pregnant with Erica by another man. In May of 1991, Gretchen and her husband divorceed. In August of 1991, the couple reunited. In October of 1991, Gretchen approached the prospective adoptive par [571] ents, Donald and Jeanette McNicholas, about adopting the then unborn Erica because Mr. Johnson was not willing to support Erica. Jeanette MceNicholas is Mr. Johnson's sister, thus Gretchen and Mrs. McNicholas had been sisters-in-law. Gretchen and Mr. Johnson separated again shortly before the trial in this matter. Erica was born on December 19, 1991. Jeanette McNicholas was in the delivery room when Erica was born and took Erica home from the hospital. Erica remained in the MecNicholases' custody until the completion of the present proceeding at which time she was placed in the custody of the Department of Public Welfare [DPW]. An attorney was consulted who thoroughly explained the process of adoption to Johnson. Johnson executed a consent to adoption in favor of the MceNicholases on January 6, 1992. The McNicholases petitioned the court for the adoption of Erica on February 19, 1992. The trial court appointed a guardian ad litem to represent Erica and ordered the DPW to prepare an adoption report. The DPW prepared an "Adoption Summary" and filed it with the court. This report discloses that Mr. McNicholas is disabled, cannot work outside the home, and is infected with HIV, the virus which causes AIDS [Acquired Immune Deficiency Syndrome]. He has been diagnosed as having AIDS. Mr. McNicholas has suffered from encephalitis. Although the encephalitis is controlled to some extent with medication, MeNicholas occasionally experiences tremors or agitation. McNicholas has not yet had any opportunistic infection related to AIDS and is being treated with AZT, a drug which helps "slow the virus." MeNi-cholas takes medication to help him sleep and uses an inhaler to prevent pneumonia. The Adoption Summary reports that Mrs. McNicholas is also disabled, cannot work outside the home, and is infected with HIV. She also has been diagnosed as having AIDS. In 1988, she contracted a Non-Hodgkins Lymphoma which was treated with chemotherapy and is presently in remission. Mrs. MceNicholas does not take AZT because of the side effects. She does use the inhaler to ward off pneumonia. The DPW caseworker who prepared the Adoption Summary made no recommendation regarding adoption and left the decision to the discretion of the trial court. The caseworker noted however that she was "very concerned" about the MeNicho-lases' health and indicated that their doctor believed that they would develop "full-blown AIDS" in the next year or two at which time they would no longer be able to take care of Erica. The caseworker concluded: At this time Erica is probably the best medicine that Mr. and Mrs. McNicholas receive. However, the best interest of the child needs to be determined at this time. A final hearing was scheduled for May 20, 1992. However, before the hearing, the trial court received a letter from Johnson in which she expressed her concerns about the prospective adoption and requested the court not to permit the McNicholases to adopt Erica. Johnson has never been represented by counsel. At the beginning of the hearing, the trial judge stated that he had received a letter from Johnson and that he had learned some things from the guardian ad litem. The judge stated that he wanted to hear evidence about these matters. The trial judge conducted the direct examination of Johnson. Johnson supplied very little evidence in support of her request that her consent to the adoption be withdrawn. She did testify cryptically to the effect that she feared that the McNicholases' HIV infection would leave Erica without parents which "would be emotionally bad on her." She testified further: "It wouldn't be as hard on her now as if it happens later, such as loging them." Under questioning by the McNicholases' attorney, Johnson reiterated: "I feel that it would be hard on her to, to lose her parents...." The guardian ad litem recommended against adoption. The trial court granted Johnson's request to withdraw her consent and remanded Erica into the custody of the [572] Department of Public Welfare. been placed in foster care. She has Johnson remains without counsel. The guardian ad litem (and not Johnson) filed the red "appellees'" brief in this matter. On appeal, the MceNicholases are represented not only by private counsel, but also by the HIV/AIDS Legal Project of the Legal Services Organization of Indiana, Inc. DECISION L. For simplicity, we combine the McNicho-lases' first and third issues which read: 1. Did the trial court improperly receive and utilize ex porte communications to decide the issue before the Court. 3. Did the trial judge act in an impartial and unbiased manner given the ex parte communications, improper questioning of a witness, and evidence of a predetermined outcome. The law presumes that a judge is unbiased and unprejudiced. Jaske v. State (1990), Ind.App., 5538 N.E.2d 181, trons. denied. Judges are credited with the ability to remain objective notwithstanding their having been exposed to information which might tend to prejudice lay persons. Id. A judge's personal knowledge acquired through extra judicial sources requires re-cusal. Stivers v. Knox County Department of Welfere (1985), Ind.App., 482 N.E.2d 748. However, the type of personal knowledge which requires recusal is knowledge acquired from extrajudicial sources, not what the judge learned from his participation in the case. Jones v. State (1981), Ind.App., 416 N.E.2d 880. In order to preserve error based upon alleged trial judge bias resulting from his having engaged in improper extrajudicial communications, the complaining party must request the judge to recuse himself. Hobson v. State (1984), Ind., 471 N.E.2d 281. While a trial judge may not assume an adversarial role, he or she may intervene in the fact-finding process and question witnesses in order to promote clarity or dispel obscurity. Isaac v. State (1992), Ind., 605 N.E2d 144. The trial judge may appropriately question witnesses in order to permit the development of the truth or present facts which may have been overlooked by the parties. Id. The questioning of witnesses by the trial judge is a matter within the trial judge's discretion as long as the questioning is conducted in an impartial manner and no prejudice results from the questioning. Id. Even in a case tried by jury, the trial court may direct questions to the witness as long as it is done in an impartial manner. McManus v. State (1982), Ind., 483 N.E.2d 775. In Isaac, 605 N.E.2d 144, a petition to revoke Isaac's probation had been filed. But, on the day of the hearing, the prosecutor moved to dismiss the action and declined to present evidence. Id. The trial judge 1) denied the prosecutor's motion to dismiss, 2) called Isaac's probation officer to the witness stand, 3) questioned the probation officer eliciting evidence that Isaac had violated the terms of his probation, and 4) revoked Issac's probation. Id. Our supreme court affirmed the trial judge's actions holding: where the matter being decided is immediately within the knowledge or view of the judge or his officers, due process permits the judge to deal more directly with the matter than would be the case if the events under consideration occurred farther away from the judge's purview. 605 N.E.2d at 148. We perceive that the procedural irregularities about which the McNicholases complain resulted, at least in large part, from the fact that Johnson was not represented by counsel. For example, rather than writing an ex parte letter to the judge, Johnson, through counsel, could have filed an appropriate pleading with the court. The MceNicholases would appear to share this perception as they assert in their brief that the trial judge should have appointed independent counsel for Johnson rather than conducting the examination of Johnson himself. The McNicholases point out that Johnson had a right to be represented by counsel under the present circumstances, citing Taylor v. State (1991), Ind.App., 570 [573] N.E.2d 1833, trons. denied. We would simply note that if the McNicholases truly wished for Johnson to be represented by counsel in the present proceedings, they might have taken it upon themselves to move the court to make such an appointment. The MeNicholases never requested the judge to appoint counsel for Johnson, nor did they request the judge to recuse himself. The personal knowledge the judge obtained ex parte was in conjunction with his participation in the case and does not mandate recusal. Jones, 416 N.E.2d 880. From a careful examination of the transcript, we cannot discern that the judge harbored prejudice against the MeNicholas-es. Considering that Johnson was not represented by counsel, we cannot find any fault in the trial court's examination of Johnson during the hearing. The MeNicho-lases were given every opportunity to present their evidence and make their case before the trial court rendered its decision. In the present case, the matter being decided was within the immediate knowledge of the trial judge and his officers. The welfare department caseworker had filed her report with the court. The court appointed guardian ad litem had assessed the situation and had communicated with the trial judge. Therefore, we can discern no violation of due process or reversible error resulting from the manner in which the trial judge conducted this most difficult case. See, Isaac, 605 N.E.2d 144. IL. Whether the trial court erred by permitting Johnson to withdraw her consent? Indiana Code 31-3-1-6(f) reads in pertinent part as follows: A consent to adoption may not be withdrawn prior to the entry of the decree of adoption unless the court finds, after notice and opportunity to be heard afforded to the petitioner, the person seeking the withdrawal is acting in the best interest of the person sought to be adopted and the court orders the withdrawal. When a mother petitions to withdraw her consent to the adoption of her child, she has the burden of establishing that she is acting in the best interest of the child. Matter of Adoption of Hewitt (1979), Ind. App., 896 N.E.2d 9838. In the present case, neither party requested the trial court to enter specific findings of fact pursuant to Ind.Trial Rule 52. In such a case, a general finding or judgment will control as to issues upon which the trial court has not expressly found, and special findings will control only as to those issues which they cover. Quebe v. Davis (1992), Ind., 586 N.E.2d 914. Special findings will be reversed on appeal only if they are clearly erroneous. Id, A general judgment will be affirmed upon any legal theory consistent with the evidence, and the court of review neither reweighs the evidence nor rejudges the credibility of the witnesses. Id. Moreover, when reviewing a general judgment, we presume that the trial court correctly followed the law. Turpen v. Turpen (1989), Ind.App., 587 N.E.2d 587. The presumption that the trial court correctly followed the law is one of the strongest presumptions applicable to our consideration of a case on appeal. Baker v. Baker (1986), Ind.App., 488 N.E.2d 361. The MeNicholases' prognosis is grim; they are expected to develop full-blown AIDS in the next year or two at which time they will be unable to care for Erica. Johnson testified, in effect, that it would not be in Erica's best interests to be adopted and then orphaned. We empathize with the McNicholases and regret that their tragic situation has been compounded by the loss of their beloved Erica. However, we must agree with the DPW caseworker in her report as set out above, the paramount concern in these proceedings is the best interest of Erica. Under the cireumstances, we cannot conclude that the trial court erred in determining that Johnson's withdrawal of her consent is in Erica's best interest. Therefore, we find no error. Judgment affirmed. [574] BAKER, J., concurs. SHARPNACK, C.J., dissents with separate opinion.