Rush, C.J.
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 statutory 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.
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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, 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), or otherwise seek some form of post-conviction relief—any of which could potentially “re-qualify” her to adopt. [Footnote omitted.] 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 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. [Footnote omitted.]
Dickson, Rucker, David, and Massa, JJ., concur.