MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 02 2016, 8:56 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Adam J. Sedia Robert L. Lewis Rubino, Ruman, Crosmer & Polen Robert L. Lewis & Associates Dyer, Indiana Gary, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re Guardianship and February 2, 2016 Adoption of L.J.M. (a Minor) Court of Appeals Case No. 45A05-1508-GU-1109 M.M. and L.M., Appeal from the Lake Superior Appellants-Petitioners, Court v. The Honorable Elizabeth F. Tavitas, Judge J.R., Trial Court Cause Nos. 45D03-1406-GU-19 Appellee-Respondent 45D03-1409-GU-41 45D03-1409-AD-26
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 1 of 9 [1] M.M. (Grandmother) and L.M. (Grandfather) (collectively, Grandparents)
appeal the trial court’s order terminating their guardianship over L.J.M. (Child)
and denying their petition to adopt her. Grandparents argue that the evidence
in the record does not support the trial court’s ruling. Finding the evidence
sufficient, we affirm.
Facts [2] J.C.R. (Father) and A.M. (Mother) were in a romantic relationship for about
two months in 2009. Child was born as a result of the relationship on January
30, 2010. After Child’s birth, she and Mother lived with Grandparents
(Mother’s parents) in Indiana. Father lived out of state, but traveled by car
from Texas or by plane from California to visit Child five or six times a year.
Father’s visits generally lasted one to two weeks. In the summer of 2011,
Mother was having substance abuse issues and was kicked out of Grandparents’
home. Mother asked Father to care for Child. He agreed, flew to Indiana from
California to retrieve Child, and cared for her in his home for two months. At
the end of those two months, Grandmother flew to California to retrieve Child.
Father saw Child two more times between her retrieval by Grandmother and
November 2011.
[3] On November 6, 2011, Mother died. Three weeks later, on November 29,
2011, Grandparents filed a petition for temporary and permanent guardianship.
They did not mention Father in either filing; in fact, in the petition for
temporary guardianship, Grandmother attested that the identity of Child’s
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 2 of 9 Father was unknown. Father found out about the guardianship proceedings
and appeared at the first hearing on March 27, 2012, to contest the
guardianship. Because Father had not yet established paternity, the trial court
granted the permanent guardianship to Grandparents. On March 28, 2012,
Father filed a petition to establish paternity, and on July 10, 2012, based upon
DNA evidence, Father was adjudicated to be Child’s father and parenting time
was ordered. He visited with her about five to six times in 2012. At some point
in the summer of 2012, Father filed a motion to modify custody. The
modification hearing was originally set for November 2012, but was continued
multiple times for reasons beyond Father’s control.
[4] In summer 2013, Grandmother made a report to the Department of Child
Services (DCS) that Father had been sexually abusing Child. As a result of this
report, DCS and law enforcement began investigating the allegations. The
custody modification hearing was continued pending the results of the
investigation. A police detective who was investigating Grandmother’s report
told Father that he could not visit with Child until after the investigation was
complete. May or June of 2013 was the last time Father saw Child. After that
time, he repeatedly asked his attorney and the Guardian ad Litem when he
could see Child, and both advised him “to just wait, so [he] just waited.” Tr. p.
40. Eventually, the allegations were unsubstantiated and neither a criminal
case nor a Child in Need of Services case was ever filed. The Guardian ad
Litem assigned to the investigation concluded that no abuse had ever taken
place.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 3 of 9 [5] Finally, an all-day custody modification hearing was set for March 10, 2014.
The hearing was again continued, twice, at Grandparents’ request. On
September 26, 2014, Grandparents filed a petition to adopt Child, arguing that
Father’s consent to the adoption was not required. The adoption, guardianship,
and paternity cases were consolidated and set for a final hearing. The trial
court held a hearing on the guardianship and adoption cases on July 13 and 14,
2015. On July 27, 2015, the trial court entered an order finding in Father’s
favor:
5. The Court finds that Father had contact with his daughter when Mother was alive and after her passing. Father has resided in Los Angeles and Texas, and the Court finds that despite the distance, Father has made great efforts to stay in contact with his daughter.
***
9. During the investigation regarding the allegations of abuse, the Court suspended parenting time between Father and the child. Subsequent to the investigation, Maternal Grandparents kept the child from Father. Father made several efforts to contact the Maternal Grandparents and child, and the Maternal Grandparents have denied Father all contact with the child.
10. The Court finds that the Maternal Grandparents have not been entirely credible and that Father has been more credible.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 4 of 9 ANALYSIS AND CONCLUSIONS OF LAW
2. The Court finds no evidence submitted that this child would be in any harm in her father’s custody. The Court does recognize the bond that the child has with the Maternal Grandparents. The Court also finds that this bond has been strengthened by the delays in these proceedings and due to the Maternal Grandparents thwarting Father’s efforts to maintain a relationship with the child. Had Father simply been able to maintain his visitation schedule with the child, the child would have been in a better position.
5. The Court finds that Father did not abandon the child.
6. The Court finds that Father’s Consent is not implied and his Consent is necessary for an adoption to proceed. The Maternal Grandparents have failed to prove that Father knowingly and intentionally failed to keep contact with the child for a year and the Maternal Grandparents have failed to prove that Father knowingly failed to provide for the care and support of the child when able to do so as required by law or judicial decree.
Appellants’ App. p. 30-38. The trial court terminated the guardianship and
denied the petition for adoption. Grandparents now appeal.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 5 of 9 Discussion and Decision [6] The Grandparents appeal only the denial of their petition for adoption; they do
not appeal the termination of the guardianship. 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).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 02 2016, 8:56 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Adam J. Sedia Robert L. Lewis Rubino, Ruman, Crosmer & Polen Robert L. Lewis & Associates Dyer, Indiana Gary, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re Guardianship and February 2, 2016 Adoption of L.J.M. (a Minor) Court of Appeals Case No. 45A05-1508-GU-1109 M.M. and L.M., Appeal from the Lake Superior Appellants-Petitioners, Court v. The Honorable Elizabeth F. Tavitas, Judge J.R., Trial Court Cause Nos. 45D03-1406-GU-19 Appellee-Respondent 45D03-1409-GU-41 45D03-1409-AD-26
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 1 of 9 [1] M.M. (Grandmother) and L.M. (Grandfather) (collectively, Grandparents)
appeal the trial court’s order terminating their guardianship over L.J.M. (Child)
and denying their petition to adopt her. Grandparents argue that the evidence
in the record does not support the trial court’s ruling. Finding the evidence
sufficient, we affirm.
Facts [2] J.C.R. (Father) and A.M. (Mother) were in a romantic relationship for about
two months in 2009. Child was born as a result of the relationship on January
30, 2010. After Child’s birth, she and Mother lived with Grandparents
(Mother’s parents) in Indiana. Father lived out of state, but traveled by car
from Texas or by plane from California to visit Child five or six times a year.
Father’s visits generally lasted one to two weeks. In the summer of 2011,
Mother was having substance abuse issues and was kicked out of Grandparents’
home. Mother asked Father to care for Child. He agreed, flew to Indiana from
California to retrieve Child, and cared for her in his home for two months. At
the end of those two months, Grandmother flew to California to retrieve Child.
Father saw Child two more times between her retrieval by Grandmother and
November 2011.
[3] On November 6, 2011, Mother died. Three weeks later, on November 29,
2011, Grandparents filed a petition for temporary and permanent guardianship.
They did not mention Father in either filing; in fact, in the petition for
temporary guardianship, Grandmother attested that the identity of Child’s
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 2 of 9 Father was unknown. Father found out about the guardianship proceedings
and appeared at the first hearing on March 27, 2012, to contest the
guardianship. Because Father had not yet established paternity, the trial court
granted the permanent guardianship to Grandparents. On March 28, 2012,
Father filed a petition to establish paternity, and on July 10, 2012, based upon
DNA evidence, Father was adjudicated to be Child’s father and parenting time
was ordered. He visited with her about five to six times in 2012. At some point
in the summer of 2012, Father filed a motion to modify custody. The
modification hearing was originally set for November 2012, but was continued
multiple times for reasons beyond Father’s control.
[4] In summer 2013, Grandmother made a report to the Department of Child
Services (DCS) that Father had been sexually abusing Child. As a result of this
report, DCS and law enforcement began investigating the allegations. The
custody modification hearing was continued pending the results of the
investigation. A police detective who was investigating Grandmother’s report
told Father that he could not visit with Child until after the investigation was
complete. May or June of 2013 was the last time Father saw Child. After that
time, he repeatedly asked his attorney and the Guardian ad Litem when he
could see Child, and both advised him “to just wait, so [he] just waited.” Tr. p.
40. Eventually, the allegations were unsubstantiated and neither a criminal
case nor a Child in Need of Services case was ever filed. The Guardian ad
Litem assigned to the investigation concluded that no abuse had ever taken
place.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 3 of 9 [5] Finally, an all-day custody modification hearing was set for March 10, 2014.
The hearing was again continued, twice, at Grandparents’ request. On
September 26, 2014, Grandparents filed a petition to adopt Child, arguing that
Father’s consent to the adoption was not required. The adoption, guardianship,
and paternity cases were consolidated and set for a final hearing. The trial
court held a hearing on the guardianship and adoption cases on July 13 and 14,
2015. On July 27, 2015, the trial court entered an order finding in Father’s
favor:
5. The Court finds that Father had contact with his daughter when Mother was alive and after her passing. Father has resided in Los Angeles and Texas, and the Court finds that despite the distance, Father has made great efforts to stay in contact with his daughter.
***
9. During the investigation regarding the allegations of abuse, the Court suspended parenting time between Father and the child. Subsequent to the investigation, Maternal Grandparents kept the child from Father. Father made several efforts to contact the Maternal Grandparents and child, and the Maternal Grandparents have denied Father all contact with the child.
10. The Court finds that the Maternal Grandparents have not been entirely credible and that Father has been more credible.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 4 of 9 ANALYSIS AND CONCLUSIONS OF LAW
2. The Court finds no evidence submitted that this child would be in any harm in her father’s custody. The Court does recognize the bond that the child has with the Maternal Grandparents. The Court also finds that this bond has been strengthened by the delays in these proceedings and due to the Maternal Grandparents thwarting Father’s efforts to maintain a relationship with the child. Had Father simply been able to maintain his visitation schedule with the child, the child would have been in a better position.
5. The Court finds that Father did not abandon the child.
6. The Court finds that Father’s Consent is not implied and his Consent is necessary for an adoption to proceed. The Maternal Grandparents have failed to prove that Father knowingly and intentionally failed to keep contact with the child for a year and the Maternal Grandparents have failed to prove that Father knowingly failed to provide for the care and support of the child when able to do so as required by law or judicial decree.
Appellants’ App. p. 30-38. The trial court terminated the guardianship and
denied the petition for adoption. Grandparents now appeal.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 5 of 9 Discussion and Decision [6] The Grandparents appeal only the denial of their petition for adoption; they do
not appeal the termination of the guardianship. 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, 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.
[7] Indiana Code section 31-19-9-8(a) provides, in pertinent part, as follows:
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
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 6 of 9 (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.
Grandparents argue that the trial court erred by finding that Father had not
failed without justifiable cause to communicate with Child for one year and that
Father had not knowingly failed to provide for support of the Child when
required to do so.
[8] Father does not deny that he did not communicate with Child for over one year
after Grandmother lodged the sexual abuse allegations. The evidence in the
record, however, readily supports the trial court’s implicit conclusion that there
was “justifiable cause” for the lack of communication. Specifically, Father
followed the advice of the investigating police officer, who told him to refrain
from communicating with Child during the investigation, and his attorney and
the Guardian ad Litem, who advised him to wait. Then, he followed the court
order preventing him from seeing Child. Once the allegations were deemed to
be unsubstantiated by all investigating authorities, he attempted to contact
Child on multiple occasions but was thwarted by Grandparents, who did not
answer his calls and did not facilitate his attempts to see or communicate with
his daughter. Tr. p. 41. Father testified that the sole reason he had not been
able to see Child was because Grandmother “wouldn’t let me . . . [h]ave any
communication with [Child].” Id. at 43.
[9] The trial court explicitly found that Father was credible and that Grandparents
were not credible; we will not second-guess that assessment. The evidence in
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 7 of 9 the record, together with the trial court’s assessment of the credibility of all
parties involved, readily supports the trial court’s conclusion that Father had
not failed without justifiable cause to communicate with Child for one year.
[10] As for Father’s financial support of Child, it is undisputed that he did not
provide support to Grandparents for the care of Child. We again emphasize
that Grandparents were unwilling to communicate with Father and repeatedly
failed to answer or return his calls. Additionally, Father testified that
Grandmother told him “that she didn’t need my money anymore” and refused
to give him her bank account information for direct deposit purposes. Tr. p. 34.
Given the Grandparents’ obstreperous behavior, we decline to reverse the trial
court on the basis of Father’s lack of financial support.
[11] We acknowledge, as did the trial court, that Child is significantly bonded to
Grandparents. However, we share the trial court’s conclusion that if
Grandparents had handled things differently—if they had facilitated a
relationship between Father and Child, if they had not drawn out the
litigation—then Child would have had a much stronger relationship with
Father at the close of the litigation. We decline to allow the behavior of
Grandparents in this regard to deprive Father of his constitutional right to
parent his child. Father has made great efforts to be a presence in Child’s life
and wants to be her parent. Nothing in the record leads us to second-guess the
trial court’s determination that he is entitled to do so.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 8 of 9 [12] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A05-1508-GU-1109 | February 2, 2016 Page 9 of 9