In the Matter of the Adoption of Minor Children: I.B. and W.B.: B.B. v. B.C. and J.L., and Indiana Department of Child Services

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR APPELLEES

Steven E. Ripstra INDIANA DEPARTMENT OF B.C. AND J.L.

Melissa Jo Haley CHILD SERVICES Julie Fox

Ripstra Law Office Gregory F. Zoeller Matthew W. Lutz

Jasper, Indiana Attorney General of Indiana Fox & Lutz, LLC

Evansville, Indiana

Robert J. Henke

Christina D. Pace

Deputy Attorneys General

Indianapolis, Indiana

__________________________________________________________________________________

In the

Indiana Supreme Court

_________________________________ Jun 11 2015, 2:32 pm

No. 82S05-1502-AD-63

IN THE MATTER OF THE ADOPTION OF MINOR CHILDREN: I.B. AND W.B.:

B.B.,

Appellant (Cross-Petitioner/Intervenor),

V.

B.C. AND J.L.,

Appellees (Adoptive Parents/Petitioners),

AND

INDIANA DEPARTMENT OF CHILD SERVICES,

Co-Appellee (Wardship of I.B. and W.B.).

_________________________________

Appeal from the Vanderburgh Superior Court, Nos. 82D07-1302-AD-22 and 82D07-1302-AD-23

The Honorable Renée Allen Ferguson, Magistrate

The Honorable Brett J. Niemeier, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 82A05-1402-AD-65

_________________________________

June 11, 2015

Rush, Chief Justice.

After I.B. and W.B. were removed from their parents, both grandmothers petitioned to adopt

them. The trial court permitted the maternal grandmother and her fiancé to adopt the children—even

though the maternal grandmother has a prior felony conviction that statutorily disqualifies her from

adopting—and the paternal grandmother appealed. The Court of Appeals affirmed, holding the statu-

tory disqualification unconstitutional as applied because it created an “irrebuttable presumption”

that blocked consideration of the children’s best interests.

We disagree with that analysis. The United States Supreme Court has left its “irrebuttable

presumption” cases lying dormant for several decades. And under its more recent “classification”

analysis, the statute’s regrettable consequences under the facts of this case establish no as-applied

constitutional violation. We therefore reverse the trial court and remand to reconsider both adoption

petitions to the extent they are statutorily permissible, receiving supplemental evidence if it chooses.

Facts and Procedural History

In May of 2011, toddler W.B. and newborn I.B.—and also their early adolescent half-brothers

J.C. and G.C.—were removed from their home because I.B. tested positive at birth for marijuana

and the mother tested positive for methamphetamine. I.B. also has extensive special medical needs,

including cerebral palsy and a gastrostomy tube (“G-tube”), and was hospitalized for the first six

months of his life. All four were eventually adjudicated to be children in need of services (CHINS).

From May until October of 2011, the three oldest children were placed in the home of their

maternal grandmother, B.C. (“Maternal Grandmother”), and her fiancé, J.L. (“Fiancé”), while I.B.

stayed in the hospital. But then Maternal Grandmother and Fiancé tested positive for marijuana and

were initially uncooperative with services, so W.B. was briefly placed with his paternal grandmother,

Appellant B.B. (“Paternal Grandmother”). Around Thanksgiving 2011, I.B. was released from the

hospital, and all four children were returned to their mother and W.T.B. (W.B. and I.B.’s father) for

a trial home visit. But the trial home visit failed, and the children went to two different foster

homes—the older children in one, and W.B. and I.B. in another.

Then in mid-2012, the children—first the older two, then W.B., and finally I.B.—transitioned

back to Maternal Grandmother and Fiancé, who petitioned to adopt all four of them with the mother’s

consent.1 The older boys’ adoption was uncontested and was granted in early October 2013. But

Paternal Grandmother cross-petitioned to adopt W.B. and I.B., and the court heard testimony in a

1

The older boys’ father is deceased, and the trial court found W.T.B.’s consent was not required under

Indiana Code section 31-19-9-8(a) (2008).

2

two-day-long contested hearing. We summarize that evidence in the light most favorable to the trial

court’s findings and judgment.

Maternal Grandmother’s and Fiancé’s Home and Relationship with the Children

The Department of Child Services (DCS) and Court Appointed Special Advocate (CASA)

recommended adoption by Maternal Grandmother and Fiancé instead of Paternal Grandmother.

Maternal Grandmother and Fiancé had proactively sought out G-tube training early in the case. And

they also (along with the older siblings) use playtime to reinforce aspects of I.B.’s physical therapy,

so that I.B.’s mobility and speech have far exceeded providers’ expectations. The success Maternal

Grandmother and Fiancé had in handling I.B.’s special needs echoes their similar success in helping

his half-brother J.C. manage his special emotional needs through anger-management strategies and

seeking out appropriate inpatient treatment when it was warranted.

Furthermore, all four siblings are closely bonded with each other—especially I.B. with G.C.,

and W.B. with J.C. Likewise, W.B. and I.B. (like the older two) are strongly bonded with Maternal

Grandmother and Fiancé. For example, even with I.B.’s limited speech, he enthusiastically greets

Fiancé as “Buddy.” Their home has three bedrooms. And because Maternal Grandmother and Fiancé

work different schedules, they need third-party childcare only three half-days per week, and both

their employers offer significant flexibility for accommodating I.B.’s frequent doctor appointments.

Finally, DCS and CASA in their recommendations emphasized the importance of preserving the

sibling relationship between the four children, believing it would be detrimental to all four children

if I.B. and W.B. were separated from the older boys.

Maternal Grandmother and Fiancé both testified candidly about their prior marijuana use

and initial hostility to cooperating with DCS after the children’s removal—as well as their change

of heart and renewed focus on providing what the children needed. At first, when Maternal Grand-

mother tested positive for marijuana, Fiancé refused to consent to testing until several weeks later,

and both were initially uncooperative with services offered by DCS. But they relented, and each

began substance-abuse counseling as referred by DCS. After counseling identified no dependency

on illegal substances, however, they both declined further services because the sessions were

expensive. At the hearing, both Maternal Grandmother and Fiancé admitted they had occasionally

used marijuana (Fiancé more frequently), but had stopped using and had been drug-free for nearly

two years, confirmed by random testing. Their conduct had persuaded the family case manager

that “they turned their mindsets around . . . that they needed to be in this for the children.”

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Paternal Grandmother’s Home and Relationship with the Children

By contrast, even though Paternal Grandmother undisputedly had a good relationship with

I.B. and W.B., DCS and CASA had reservations about her as an adoptive parent. The trial court’s

findings reflect that she had been passive and disengaged during the CHINS case, never obtaining

G-tube training, nor attempting to do so until it became an issue in the case. As a working single

parent, she would need to rely heavily on third-party childcare, but had not adequately investigated

her options—even though childcare would be particularly challenging because any provider would

also need G-tube training. She had struggled to meet J.C.’s special needs during the brief time the

children were in her home, and at least once had lacked adequate food. And her home and her work

schedule are generally less-suited to raising children—her home has only two bedrooms, her ability

to take even important phone calls at work is restricted, and her schedule is rigid (with only five days’

paid leave per year) so that accommodating I.B.’s frequent medical appointments would be difficult.

But the trial court’s greatest concern, reflected three times in its findings, was with Paternal

Grandmother’s poor judgment about her son W.T.B.—I.B. and W.B.’s father and the other children’s

stepfather. The record amply supports the court’s concern: J.C.’s special emotional needs stem from

witnessing W.T.B.’s domestic violence against the children’s mother. In particular, in the fall of

2012, W.T.B. had beaten her so severely she could barely breathe and needed emergency medical

care. Afterward, Paternal Grandmother arrived at the scene of the beating (a motel where the parents

were living together despite a no-contact order), but did not call the police. As she testified, “It

never crossed my mind. Didn’t think about it. They both had been drinking and I just wanted the

situation to become peaceful.” Rather, Maternal Grandmother and Fiancé reported the beating to

authorities, after the mother showed up severely injured at their home and they took her to the

hospital. Once before that, as well, Paternal Grandmother had briefly allowed the parents to live

together with her despite her knowledge of the protective order. The court’s findings reflect

concern that she would permit the children to have detrimental contact with the father, while failing

to preserve their relationship with Maternal Grandmother and Fiancé.

Maternal Grandmother’s and Fiancé’s Criminal History

Complicating the trial court’s best-interests analysis, both Maternal Grandmother and

Fiancé had felony convictions from fifteen or more years prior. In 1989, Fiancé was convicted of

armed robbery in Iowa, and had also been convicted of burglary twice in Illinois, serving prison

4

time in both states. And in 1997, Maternal Grandmother had pleaded guilty to Class D felony

neglect of a dependent, resulting in a two-year suspended sentence, for failing to report her ex-

husband’s molestation of her daughter (the children’s mother). DCS and CASA were aware of those

convictions but had no concerns about how well either of them could raise the children—and indeed,

DCS had formally waived any disqualifying effect of Fiancé’s convictions. But as DCS’s written

report acknowledged, Maternal Grandmother’s neglect conviction was disqualifying by statute and

could not be waived. See Ind. Code § 31-19-11-1(c)(15) (2008). Both Maternal Grandmother and

Fiancé testified on direct and cross-examination about their criminal histories, but none of the parties

specifically argued (nor included in their proposed orders) that Maternal Grandmother’s conviction

was an absolute bar.

Trial Court’s Order

The trial court entered sua sponte findings of fact and conclusions of law. In essence, it found

that it was in the best interests of I.B. and W.B. for Maternal Grandmother and Fiancé to adopt them,

based partly on their success in working with I.B.’s special needs and the desirability of keeping

all four siblings in the same home. One of its conclusions of law specifically addressed Maternal

Grandmother’s neglect conviction:

The Court concludes that [Maternal Grandmother]’s criminal

history is not dispositive of her ability to care for children. That is

not to say the Court cast this evidence aside. There was testimony

from [Maternal Grandmother] and [the family case manager]

regarding this issue and the documentation pertaining to the 1997

conviction was made a part of the record. The explanation given by

[Maternal Grandmother] regarding the conviction and the

overwhelming amount of confidence the [case managers] and the

CASA have in [Maternal Grandmother]’s suitability as a caregiver

cannot be overlooked in consideration of this evidence. Nor can [the

mother]’s consent for [Maternal Grandmother] to adopt, as she was

the alleged victim in that case.

The court accordingly granted adoption to Maternal Grandmother and Fiancé, and denied Paternal

Grandmother’s petition. Paternal Grandmother appealed.

Court of Appeals Disposition

In the Court of Appeals, Paternal Grandmother for the first time directly argued that under

Indiana Code section 31-19-11-1(c)(15), Maternal Grandmother and Fiancé are barred from adopting

5

because of their disqualifying felony convictions. In response, Maternal Grandmother and Fiancé

argued that the best-interests analysis favored them, that Fiancé’s convictions were not an absolute

bar because they were more than five years old, and that the court specifically determined that

Maternal Grandmother’s conviction was not dispositive. DCS also filed a response brief, arguing

that the statutory bar on Maternal Grandmother’s adoption constituted an “irrebuttable presumption”

that, as applied, would violate the due process rights of Maternal Grandmother, Fiancé, and the

children, and would also frustrate the overall best-interests purposes of the adoption statutes.

The Court of Appeals affirmed in a unanimous published opinion. In re Adoption of I.B.

and W.B., 19 N.E.3d 784 (Ind. Ct. App. 2014). Echoing DCS’s argument, the Court held the statute

unconstitutional as applied, amounting to an irrebuttable presumption in violation of due process.

Id. at 790–91 (citing Stanley v. Illinois, 405 U.S. 645, 656–57 (1972) and In re Adoption of Jonee,

695 N.Y.S.2d 920 (N.Y. Fam. Ct. 1999)). Upholding the trial court’s determination that adoption

by Maternal Grandmother and Fiancé was in the children’s best interests, the Court affirmed the

adoption.

Paternal Grandmother sought transfer, which we granted, thus vacating the Court of Appeals

opinion. We now hold the statute constitutional, despite its harsh consequences under these facts,

and remand to the trial court to reconsider the petitions in view of the absolute statutory bar.

Standard of Review

Because neither party filed a written request for findings and conclusions, see Ind. Trial Rule

52(A), the trial court’s findings are controlling only as to issues they cover. Yanoff v. Muncy, 688

N.E.2d 1259, 1262 (Ind. 1997). We limit our review of those matters to whether the evidence

supports the findings and then whether the findings support the judgment, reversing the findings only

if they are clearly erroneous. Id. On all other matters, the general-judgment standard applies, and we

will affirm on any legal theory supported by the evidence. Id. But the trial court’s conclusions of law,

Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013)—and any constitutional challenges, Lock v.

State, 971 N.E.2d 71, 74 (Ind. 2012)—are reviewed de novo.

Discussion

Our as-applied constitutional analysis of Indiana Code section 31-19-11-1(c) begins “with

a strong presumption of constitutionality,” so that “every doubt must be resolved in favor of [the

6

statute’s] validity.” Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 255 (Ind.

2013). The party challenging the statute must clearly overcome that presumption by a contrary

showing. Hubbard v. State, 849 N.E.2d 1165, 1169 (Ind. Ct. App. 2006), trans. denied. And as dis-

cussed below the challengers have not carried that burden.

I. Indiana Code Section 31-19-11-1 Is Constitutional Because Its Prohibitions Are

Rationally Related to the Classifications They Draw.

The Court of Appeals characterized the statutory bar on adoptions by certain convicted

felons as an “irrebuttable presumption” that infringes on the children’s “cognizable and substantial

. . . liberty interest in preserving the integrity and stability of their existing familial relationship.”

I.B., 19 N.E.3d at 790–91 (citing Stanley, 405 U.S. 645 and Jonee, 695 N.Y.S.2d 920). In reaching

that conclusion, the Court quoted Vlandis v. Kline, 412 U.S. 441, 446 (1973) that “‘[s]tatutes

creating permanent irrebuttable presumptions have long been disfavored under the Due Process

Clauses of the Fifth and Fourteenth Amendments.’” I.B., 19 N.E.3d at 790 (alteration in original).

The Court of Appeals “recognize[d] that the Supreme Court has retreated to some extent from the

irrebuttable presumption doctrine since Vlandis and Stanley,” but held it is “still . . . applicable to

interests that enjoy constitutionally protected status.” Id. at 790 n.5 (citing Weinberger v. Salfi, 422

U.S. 749 (1975)). On that basis, it “conclude[d] that I.B. and W.B. were entitled to an individualized

determination of their best interests” before being removed from Maternal Grandmother and

Fiancé, rendering the statute unconstitutional as applied to them—relying on Jonee and other New

York cases reaching a similar conclusion. Id. at 791 & n.6 (collecting New York cases). The Court

of Appeals’ inclination to keep the siblings together in the only long-term home they have ever

known is eminently understandable, but its rationale cannot be squared with controlling Supreme

Court precedent.

First, even if an “irrebuttable presumption” analysis is “still . . . applicable to interests that

enjoy constitutionally protected status” as the Court of Appeals concluded, id. at 790 n.5, “the Due

Process Clause affords only those protections so rooted in the traditions and conscience of our people

as to be ranked as fundamental.” Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality

opinion) (internal quotation marks omitted). And so in Stanley, the high Court invalidated a statute

that specifically singled-out the father-child relationship, 405 U.S. at 657–59, which certainly

“rank[s] as fundamental,” Michael H., 491 U.S. at 122. But the statute here does not target a

“fundamental” right—rather, the complaint is that it lacks a generalized best-interests exception,

and therefore interferes as-applied with the boys’ sibling and family relationship. Of course, the

7

children’s best interests are paramount in any adoption, and sibling relationships, especially here,

are extraordinarily valuable and a weighty best-interests factor. But declaring that the statute’s lack

of an ad hoc best-interests exception violates Due Process would effectively elevate best interests,

and each of its infinite factual variations, into a constitutional doctrine. That is a step we are

unwilling to take.

And more fundamentally, the United States Supreme Court has tacitly abandoned2 the “irre-

buttable presumption” doctrine, which “was a strange hybrid of ‘procedural’ due process and equal

protection invented by the Supreme Court in the early 1970s, and laid to rest soon after.” Brennan

v. Stewart, 834 F.2d 1248, 1258 (5th Cir. 1988) (citing Vlandis as “applying the doctrine” and

Weinberger, 422 U.S. 749 as “effectively overruling” Vlandis). Instead, as the high Court

explained in Michael H., “‘irrebuttable presumption’ cases must ultimately be analyzed as calling

into question not the adequacy of procedures but—like our cases involving classifications framed

in other terms—the adequacy of the ‘fit’ between the classification and the policy that the

classification serves.” 491 U.S. at 121 (citations omitted).

Under that “classification” analysis, there is no constitutional defect in barring adoptions by

petitioners with felony child-neglect convictions. I.C. § 31-19-11-1(c)(15). Statutory classifications

that neither violate a fundamental right nor discriminate against a suspect class are reviewed only

for “whether the statute is rationally related to legitimate legislative goals.” Lindley for Lindley v.

Sullivan, 889 F.2d 124, 132 (7th Cir. 1989). But “there is no fundamental right to adopt” because the

adoption process depends on so many variables, id. at 131—and convicted felons are not a protected

class, Baker v. State, 747 N.E.2d 633, 638 (Ind. Ct. App. 2001), trans. denied. Distinguishing between

convicted child-neglect felons and non-felons is rationally related to the legitimate legislative goal

of ensuring that children will not be adopted into a neglectful home—and so the consequences of

that distinction here, though regrettable, are not unconstitutional.3

2

Though the Supreme Court has never expressly overruled Vlandis, it has not invalidated a statute under

Vlandis since United States Dep’t of Agric. v. Muerry, 413 U.S. 508 (1973), over forty years ago. People

v. Wildman, 858 N.Y.S.2d 504, 509 (N.Y. Crim. Ct. 2008). So while we would follow Vlandis or Stanley if

they were directly controlling, we will not expand them when the high Court has conspicuously declined to

do so.

3

Accordingly, we do not find Jonee, 695 N.Y.S. at 923–25, or other similar New York cases to be

persuasive. See I.B., 19 N.E.3d at 790–91 & n.6 (collecting New York cases).

8

A final point warrants mention. We recognize I.B.’s and W.B.’s crucial interest in remaining

in the same home as their older brothers, preserving their sibling bond as fully as possible. But that

relationship is jeopardized here only because the older children’s adoption, though uncontested, also

violated this statute. In other words, the siblings’ dilemma is caused not by enforcing the statute now,

but by disregarding it previously. That irregularity has now caused serious collateral consequences

for I.B. and W.B.—but it does not give them a due process right to be adopted in violation of the

same statute. Rather, it demonstrates why, even in unopposed proceedings, courts must be vigilant

not to overlook any controlling law.

II. The Trial Court Must Reconsider the Children’s Best Interests in Light of Indiana Code

Section 31-19-11-1’s Restrictions.

Having determined that Indiana Code section 31-19-11-1(c) is not unconstitutional as

applied, and therefore bars Maternal Grandmother from adopting the children, we must determine

the appropriate remedy. Paternal Grandmother argues that even apart from the statutory violation,

the evidence did not support granting Maternal Grandmother’s and Fiancé’s petition, and that instead

her own petition should be granted on appeal. In response, Maternal Grandmother and Fiancé argue

that the adoption may be affirmed as to Fiancé even if it is reversed as to her. But instead, we vacate

the trial court’s rulings on both petitions and remand to give the trial court the first opportunity to

reconsider which of those alternatives—if any—is in the children’s best interests.

First, even though the evidence presented could have supported a conclusion in Paternal

Grandmother’s favor, by no means did it compel that result. To the contrary, apart from the

statutory bar, there would have been ample evidence for us to affirm that adoption by Maternal

Grandmother and Fiancé was in the children’s best interests. Some of those considerations, such

as keeping the siblings together and the larger home, would also hold true for Fiancé individually—

and certainly there was substantial evidence that all of the children, especially I.B., have a closely

bonded relationship with him. But on the other hand, the children’s mother consented to adoption

by Maternal Grandmother and Fiancé, and might not have consented to Fiancé adopting alone with

no legal bond between him and Maternal Grandmother. In sum, we simply cannot know how the

trial court might have weighed those considerations if it knew its choices were limited to either

Fiancé alone or else to Paternal Grandmother.

Indeed, the trial court did not face an either-or choice—we must also consider that it might

have denied both petitions. Though the permanency of adoption is usually in a child’s best interests,

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the risk of separating the siblings might have persuaded the court that under these circumstances, a

non-adoptive placement would better serve the children’s best interests. For example, it might have

encouraged Maternal Grandmother and Fiancé to pursue a joint guardianship4 since a joint adoption

was statutorily impermissible. See In re Adoption of J.L.S., 908 N.E.2d 1245 (Ind. Ct. App. 2009)

(trial court found adoption was barred by Indiana Code section 31-19-11-1, but awarded custody for

60 days to prospective adoptive parents, and requested that they file a guardianship petition; Court

of Appeals reversed on grounds that the parent had not been “convicted” of a disqualifying

offense). It is only proper to remand for the trial court to make the first choice among its many

options.

Finally, we note that the trial court on remand need not limit itself to the evidence it heard a

year and a half ago. If, for example, either family’s housing or employment circumstances—both of

which were significant factors in the trial court’s decision—have changed, it would be appropriate

to consider new evidence in that regard. Likewise, even Maternal Grandmother’s disqualifying

felony conviction is not necessarily etched in stone, since it may be possible (though we express no

legal opinion) for her to expunge it under Indiana Code 35-38-9 (2014), convert it to a misdemeanor

under Indiana Code section 35-50-2-7(d),5 or otherwise seek some form of post-conviction relief—

any of which could potentially “re-qualify” her to adopt. We are therefore unwilling to declare

what is in the children’s best interests today on the basis of a dry record developed in 2013. To ensure

the trial court can fully reconsider I.B.’s and W.B.’s best interests in light of this opinion, we reverse

and remand the trial court’s orders on both adoption petitions. On remand, the trial court shall

reconsider the cross-petitions consistent with this opinion, including whether a non-adoptive

placement may currently be in the children’s best interests and by receiving supplemental evidence

if the trial court chooses to do so.

Conclusion

Under the circumstances of this case, Indiana Code section 31-19-11-1(c) regrettably bars

an adoption that, to all appearances, would otherwise be in I.B. and W.B.’s best interests. But that

4

Maternal Grandmother’s neglect conviction is not a bar to guardianship; instead, only certain sex-crime

convictions (of which she has none) are disqualifiers for guardianship. I.C. § 29-3-7-7 (Supp. 2014).

5

Just as Indiana Code section 35-50-2-7(c) gives criminal courts discretion at sentencing to enter an A-

misdemeanor conviction on what would otherwise be a Class D felony, part (d) of the statute gives them

discretion to do so retroactively. The conversion is not mandatory—but any relief granted under this statute

would eliminate Maternal Grandmother’s statutory disqualification.

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does not make the statute unconstitutional as applied, because its prohibitions are rationally related

to a legitimate legislative purpose and do not discriminate against a suspect class. We therefore

reverse the trial court’s judgment on both adoption petitions and remand with instructions to vacate

the adoption decree within thirty days of this Court’s opinion being certified and reconsider both

adoptions to the extent they are not barred by the statute, including by considering whether a non-

adoptive placement such as guardianship may be in the children’s best interests and by receiving

additional evidence if the trial court so chooses.6

Dickson, Rucker, David, and Massa, JJ., concur.

6

We also note that the findings and conclusions were signed by the magistrate, but not by the court.

Magistrates may enter final orders in criminal cases, I.C. §§ 33-23-5-5(14), -9(b), but otherwise “may not

enter a final appealable order unless sitting as a judge pro tempore or a special judge.” I.C. § 33-23-5-8(2).

Instead, they may only “report findings,” while “[t]he court shall enter the final order.” I.C. § 33-23-5-9(a).

Effective July 1, 2015, Indiana Code section 33-23-5-5 has been amended to expand magistrates’ authority to

approve and accept plea agreements, civil settlement agreements, and agreements in domestic-relations and

paternity actions, see P.L. 173-2015, § 4—but that newfound authority does not extend to issuing an adoption

decree. We trust the court will observe this necessity on remand.

Nevertheless, “it has been the long-standing policy of this court to view the authority of the officer

appointed to try a case not as affecting the jurisdiction of the court”—and so “the failure of a party to object

at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.” Floyd

v. State, 650 N.E.2d 28, 32 (Ind. 1994). The issue is thus waived here, since neither party has raised it.

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