MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 16 2017, 8:39 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffery A. Earl Karen Celestino-Horseman Danville, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re Adoption of C.H. and H.H., May 16, 2017
S.S., Court of Appeals Case No. 32A01-1607-AD-1599 Appellant, Appeal from the Hendricks v. Superior Court The Honorable Robert W. Freese, J.N. and Z.N., Judge Trial Court Cause No. Appellees-Interveners 32D01-1512-AD-32
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 1 of 7 [1] S.S. (Mother) appeals the trial court’s order finding that her consent to the
adoption of her children by J.N. and Z.N. (collectively, Adoptive Parents) was
not required and granting the Adoptive Parents’ petition to adopt the children.
Mother argues that the evidence is insufficient to make the requisite statutory
showing that her consent is not required. Finding the evidence sufficient, we
affirm.
Facts [2] Mother and A.H. (Father) were never married. C.H. was born to the couple on
November 3, 2005, and H.H. was born to the couple on December 28, 2006. 1
At some point, Mother and Father became estranged and have lived separate
lives for years.
[3] Over the years, Mother and all of her children have been involved with the
Department of Child Services in Putnam, Monroe, Morgan, Marion, and
Hendricks Counties. The most recent encounter occurred in 2010, when
Mother was convicted of neglect of a dependent and the children were placed
with Father. Since that time, Mother has had only supervised visitation with
the children and has never sought to have that changed. In addition to ordering
that the children be placed with Father, the trial court ordered that Mother was
1 Mother has two other children by a different father; both of those children have been adopted with Mother’s consent.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 2 of 7 to pay $77 per week in child support. She has never paid child support
pursuant to that order.
[4] Mother states that she suffers from bipolar disorder, anxiety, and depression.
Her bipolar disorder is untreated because she refuses to take medication;
instead, she was self-medicating with marijuana. Mother also has a history of
alcoholism and drug use. She has been required to submit to drug tests as a
condition of probation for various criminal convictions. 2 In 2013, she failed to
report twice and tested positive for THC twice; in 2014, she failed to report
three times, tested positive for THC five times, and tested positive for
methamphetamine on one occasion; in 2015, she failed to report nine times and
tested positive for THC three times.
[5] In January 2014, Father died. The children had lived with Father and his uncle
since August 2010. Throughout those years, Mother visited the children only
sporadically. The children maintained a regular relationship with Adoptive
Parents; J.N. is their godmother. She saw the children regularly, helped them
with homework, and celebrated holidays and birthdays with them. The
children also maintained a regular relationship with P.S. (Aunt), Mother’s
sister. After Father’s death, Aunt and Adoptive Parents filed competing
motions for third-party custody of the children in the paternity case. The
paternity court awarded temporary primary custody of the children to Aunt,
2 Mother has been convicted of neglect of a dependent, prostitution, and theft.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 3 of 7 awarded visitation to Adoptive Parents, and awarded supervised parenting time
to Mother. Mother has seen the children on a regular basis since they have
been placed with Aunt. The children are bonded to Aunt and to Adoptive
Parents.
[6] Aunt has three children of her own, two of whom have serious medical issues.
Aunt has been diagnosed with post-traumatic stress disorder and panic disorder
with agoraphobia. She suffers from regular panic attacks and is not currently
receiving treatment for her diagnoses.
[7] In December 2015, Aunt and the Adoptive Parents filed competing petitions to
adopt the children. The trial court consolidated the two petitions into one
cause.3 The trial court held an evidentiary hearing from May 16 through May
20, 2016. On June 16, 2016, the trial court issued a thorough and detailed order
granting the Adoptive Parents’ petition, denying Aunt’s petition, and finding
that Mother’s consent to the adoption is not required. Mother now appeals.
Discussion and Decision [8] When we review a trial court’s ruling in an adoption proceeding, we will not
disturb that ruling unless the evidence leads to but one conclusion and the trial
court reached an opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216,
1222 (Ind. Ct. App. 2012). On appeal, we will not reweigh the evidence,
3 Other ongoing cases in other counties related to custody and guardianship of the children were also transferred to the trial court in the underlying case.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 4 of 7 instead focusing on the evidence and inferences most favorable to the trial
court’s decision. Id. We generally give considerable deference to a trial court’s
rulings in family law matters, “as we recognize that the trial judge is in the best
position to judge the facts, determine witness credibility, get a feel for family
dynamics, and get a sense of the parents and their relationship with their
children.” Id.
[9] As a general matter, the parent of a child must consent to the adoption of the
child by a third party. Ind. Code § 31-19-9-1. Indiana Code section 31-19-9-
8(a) provides multiple exceptions to the general rule. Relevant to this case are
the following exceptions:
Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
***
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 5 of 7 (11) A parent if:
(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.
I.C. § 31-19-9-8. Here, the trial court found Mother’s consent was not required
for all three reasons: she failed without justifiable cause to communicate with
the children when able to do so; she knowingly failed to provide for their care
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 16 2017, 8:39 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffery A. Earl Karen Celestino-Horseman Danville, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re Adoption of C.H. and H.H., May 16, 2017
S.S., Court of Appeals Case No. 32A01-1607-AD-1599 Appellant, Appeal from the Hendricks v. Superior Court The Honorable Robert W. Freese, J.N. and Z.N., Judge Trial Court Cause No. Appellees-Interveners 32D01-1512-AD-32
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 1 of 7 [1] S.S. (Mother) appeals the trial court’s order finding that her consent to the
adoption of her children by J.N. and Z.N. (collectively, Adoptive Parents) was
not required and granting the Adoptive Parents’ petition to adopt the children.
Mother argues that the evidence is insufficient to make the requisite statutory
showing that her consent is not required. Finding the evidence sufficient, we
affirm.
Facts [2] Mother and A.H. (Father) were never married. C.H. was born to the couple on
November 3, 2005, and H.H. was born to the couple on December 28, 2006. 1
At some point, Mother and Father became estranged and have lived separate
lives for years.
[3] Over the years, Mother and all of her children have been involved with the
Department of Child Services in Putnam, Monroe, Morgan, Marion, and
Hendricks Counties. The most recent encounter occurred in 2010, when
Mother was convicted of neglect of a dependent and the children were placed
with Father. Since that time, Mother has had only supervised visitation with
the children and has never sought to have that changed. In addition to ordering
that the children be placed with Father, the trial court ordered that Mother was
1 Mother has two other children by a different father; both of those children have been adopted with Mother’s consent.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 2 of 7 to pay $77 per week in child support. She has never paid child support
pursuant to that order.
[4] Mother states that she suffers from bipolar disorder, anxiety, and depression.
Her bipolar disorder is untreated because she refuses to take medication;
instead, she was self-medicating with marijuana. Mother also has a history of
alcoholism and drug use. She has been required to submit to drug tests as a
condition of probation for various criminal convictions. 2 In 2013, she failed to
report twice and tested positive for THC twice; in 2014, she failed to report
three times, tested positive for THC five times, and tested positive for
methamphetamine on one occasion; in 2015, she failed to report nine times and
tested positive for THC three times.
[5] In January 2014, Father died. The children had lived with Father and his uncle
since August 2010. Throughout those years, Mother visited the children only
sporadically. The children maintained a regular relationship with Adoptive
Parents; J.N. is their godmother. She saw the children regularly, helped them
with homework, and celebrated holidays and birthdays with them. The
children also maintained a regular relationship with P.S. (Aunt), Mother’s
sister. After Father’s death, Aunt and Adoptive Parents filed competing
motions for third-party custody of the children in the paternity case. The
paternity court awarded temporary primary custody of the children to Aunt,
2 Mother has been convicted of neglect of a dependent, prostitution, and theft.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 3 of 7 awarded visitation to Adoptive Parents, and awarded supervised parenting time
to Mother. Mother has seen the children on a regular basis since they have
been placed with Aunt. The children are bonded to Aunt and to Adoptive
Parents.
[6] Aunt has three children of her own, two of whom have serious medical issues.
Aunt has been diagnosed with post-traumatic stress disorder and panic disorder
with agoraphobia. She suffers from regular panic attacks and is not currently
receiving treatment for her diagnoses.
[7] In December 2015, Aunt and the Adoptive Parents filed competing petitions to
adopt the children. The trial court consolidated the two petitions into one
cause.3 The trial court held an evidentiary hearing from May 16 through May
20, 2016. On June 16, 2016, the trial court issued a thorough and detailed order
granting the Adoptive Parents’ petition, denying Aunt’s petition, and finding
that Mother’s consent to the adoption is not required. Mother now appeals.
Discussion and Decision [8] When we review a trial court’s ruling in an adoption proceeding, we will not
disturb that ruling unless the evidence leads to but one conclusion and the trial
court reached an opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216,
1222 (Ind. Ct. App. 2012). On appeal, we will not reweigh the evidence,
3 Other ongoing cases in other counties related to custody and guardianship of the children were also transferred to the trial court in the underlying case.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 4 of 7 instead focusing on the evidence and inferences most favorable to the trial
court’s decision. Id. We generally give considerable deference to a trial court’s
rulings in family law matters, “as we recognize that the trial judge is in the best
position to judge the facts, determine witness credibility, get a feel for family
dynamics, and get a sense of the parents and their relationship with their
children.” Id.
[9] As a general matter, the parent of a child must consent to the adoption of the
child by a third party. Ind. Code § 31-19-9-1. Indiana Code section 31-19-9-
8(a) provides multiple exceptions to the general rule. Relevant to this case are
the following exceptions:
Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
***
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 5 of 7 (11) A parent if:
(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.
I.C. § 31-19-9-8. Here, the trial court found Mother’s consent was not required
for all three reasons: she failed without justifiable cause to communicate with
the children when able to do so; she knowingly failed to provide for their care
and support when able to do so as required by judicial degree; and she was unfit
to be a parent.
[10] Although Mother focuses primarily on the finding regarding her financial
support of the children, we elect to turn, instead, to the trial court’s findings
regarding her fitness as a parent:
As [Mother] herself has admitted, she is unable to care for or provide for her children. Further, she has admitted to years of substance abuse, untreated mental health disorders, and, as the evidence showed, a history of bad judgment regarding her children and instability in housing and employment. The Court finds that the [Adoptive Parents] have proven by clear and convincing evidence that [Mother’s] consent to the adoption is not required pursuant to I.C. 31-19-9-8(a)(11)(A)-(B). The Court notes that just two days before this trial began, [Mother’s] boyfriend was charged with committing domestic abuse in the home they shared and in front of the child which [Mother] was babysitting. Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 6 of 7 Appellant’s App. p. 25. The trial court later found that it is in the children’s
best interests to be placed with and adopted by the Adoptive Parents. Id. at 27-
28. We find a wealth of evidence in the record supporting the trial court’s
conclusion that the Adoptive Parents proved by clear and convincing evidence
that Mother is unfit and its implicit conclusion4 that it is in the children’s best
interests for Mother’s consent to be dispensed with so that they can be adopted
by Adoptive Parents.
[11] Mother also argues, without elaboration, that because she consented to the
adoption of the children by Aunt, the trial court should have granted Aunt’s
petition and denied that of the Adoptive Parents. As already noted, however,
Mother’s consent was not required. And in any event, Aunt has not appealed
the denial of her petition to adopt the children, and Mother may not appeal on
her behalf. Consequently, this argument is unavailing.
[12] The judgment of the trial court is affirmed.
Robb, J., and Barnes, J., concur.
4 Mother argues that because the trial court did not explicitly state that it was in the children’s best interests for her consent to be dispensed with, this finding cannot stand. We disagree. The trial court cited to both subsections of the statute, finding that both elements had been proved by clear and convincing evidence. Furthermore, by finding that it was in the children’s best interests to be adopted by Adoptive Parents, to which Mother did not consent, it implicitly also found that it was in their best interests to dispense with her consent.
Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017 Page 7 of 7