IN RE THE ADOPTION OF A.G. & Ju.G. A.R. v. M.G. & Je.G. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 7, 2019
• Docket: 18A-AD-267
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 07 2019, 9:01 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 David W. Stone IV Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN RE THE ADOPTION OF March 7, 2019 A.G. & Ju.G. Court of Appeals Case No. 18A-AD-267 A.R., Appeal from the Madison Circuit Appellant-Respondent, Court v. The Honorable Angela Warner Sims, Special Judge M.G. & Je.G, Trial Court Cause No. 48C01-1407-AD-34 Appellees-Petitioners

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 1 of 10 Case Summary

[1] A.R. (Mother) appeals from the trial court’s grant of the petition of M.G.

(Stepmother) and Je.G. (Father) for the adoption of Mother’s two sons by

Stepmother. Mother contends that the trial court erroneously determined that

her consent for the adoption was not required.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father have two children together (the Children). A.G. was born

in January 2000, and Ju.G. was born in January 2004. Mother and Father’s

relationship ended in 2005. Although the Children were initially in Mother’s

custody, Father was granted custody in April 2007 pursuant to a court order in

a paternity action. Mother was ordered to pay child support and was granted

parenting time. Mother has paid no support for the Children since 2011 and

last saw them in 2013.

[4] Mother has a long history of substance abuse. By her own admission, she has

struggled with addictions to alcohol, crack cocaine, opiates, and heroin.

Relevant to this case, Mother admitted that she began abusing opiates following

a surgery in 2005 and then moved to heroin in 2013. She has also used

methamphetamine. Mother testified that she last used methamphetamine in

December 2015 and heroin in February 2016.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 2 of 10 [5] As a result of her substance abuse, Mother has accumulated a substantial

criminal history. She has been incarcerated at least three times since 2008. In

August 2008, Mother was charged under two separate cause numbers in

Madison County – 48D01-0808-FC-220 (FC-220) and 48D01-0808-FC-213

(FC-213). She entered into a plea agreement to resolve both causes in February

2009, pleading guilty to Class C felony forgery and two counts of Class D

felony receiving stolen property in FC-220 and Class C felony forgery in FC-

213. She was sentenced in March 2009 to an aggregate sentence of seven years

in prison, with two years executed and five years suspended to probation. She

was released to probation in March 2010. In early 2012, Mother violated

probation by testing positive for cocaine, opiates, and methadone, but the court

continued Mother on probation without modification. In September 2013,

Mother was again found in violation of probation following a positive drug

screen. This time, the court revoked her previously suspended sentence and

ordered her to serve two years in prison. The remaining three years were

ordered conditionally stayed. Thus, Mother was incarcerated from September

2013 to September 2014.

[6] Within the first year of her stayed sentence, Mother committed theft, and the

probation department filed a violation. She failed to appear at the evidentiary

hearing for her violation. The court issued a warrant for her arrest, which was

served on December 3, 2015. She was released on bond on January 1, 2016,

after which she continued using heroin. At a hearing on February 16, 2016, the

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 3 of 10 three-year stay in FC-220 was lifted, and Mother was ordered to serve the

remainder of her sentence in prison.

[7] On December 2, 2015, Mother committed several additional offenses. She was

driving with an adult passenger and her passenger’s infant late in the evening

when she was pulled over for a traffic stop. Mother provided the officer with a

false name and then fled from the scene in her vehicle. After a vehicle pursuit,

she jumped out of the moving vehicle and ran through a yard before being

apprehended by a K-9. Mother had syringes containing heroin on her person

and in her purse, as well as drug paraphernalia in her vehicle. On April 12,

2016, Mother pled guilty to Level 6 felony resisting law enforcement, Class C

misdemeanor reckless driving, Class A misdemeanor false informing, and Class

C misdemeanor operating a vehicle with a schedule I or II controlled substance

in her body. In May 2016, Mother received an aggregate sentence of eighteen

months executed to be served consecutively to the remainder of her executed

sentence under FC-220.

[8] While Mother was in and out of prison and using drugs, the Children were

being raised and cared for by Father and Stepmother. 1 Stepmother has been in

their lives since September 2005, and she married Father in July 2007. The

1 Mother exercised parenting time at certain points when not incarcerated between 2010 and 2013 and had the Children in her care for an extended time in 2011 when she seemed to be doing well. She relapsed, however, shortly thereafter. On one occasion in 2013, Mother came to the family’s home to visit with the Children and was obviously under the influence, dozing in and out of consciousness as she sat in the driver’s seat of her car. She was not allowed contact with the Children at that time and has not been permitted parenting time since her later incarceration beginning in 2013.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 4 of 10 Children have a strong bond with Stepmother and call her “Mom.” A.G.

explained, “she’s been there since I was five (5), six (6) years old” and has

“done everything for me.” Transcript at 57. Ju.G. testified that he had no bond

with Mother and that Stepmother had “been a good mother all my life.” Id. at

72. Both of the Children wished to be adopted by Stepmother.

[9] On July 16, 2014, Father and Stepmother filed a petition for adoption, pursuant

to which Stepmother sought to adopt the Children. Father and A.G. (who was

fourteen years old at the time) consented to the stepparent adoption. The

petition alleged that Mother’s consent was not required due to her parental

unfitness and her lack of contact with and support of the Children. Mother

contested the adoption.

[10] Following a contested hearing in December 2015, the trial court granted the

adoption petition. Mother appealed. On appeal, this court addressed only one

of the five issues raised by Mother and concluded that the trial court abused its

discretion by granting the public defender’s motion to withdraw filed shortly

before the hearing and resulting in Mother representing herself. See In re

Adoption of A.G., 64 N.E.3d 1246 (Ind. Ct. App. 2016) (reversing and remanding

for a new adoption hearing).

[11] The adoption hearing following remand was held on August 17, 2017, with

Mother represented by appointed counsel. Mother remained incarcerated at the

time with an expected release date of December 29, 2017. She had been

incarcerated since February 2016. At the adoption hearing, both of the

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 5 of 10 Children – then ages seventeen and thirteen – testified regarding their desire to

be adopted by Stepmother and their belief that the adoption was in their best

interests. Neither of the Children wanted any further contact with Mother.

A.G. testified regarding alarming past visits with Mother and opined that he

would not feel safe and secure in her presence. A.G. testified, “I don’t like her.

She’s never been really there for me.” Transcript at 65.

[12] On December 22, 2017, the trial court issued its decree of adoption.

Specifically, the court found that Mother’s consent was not required and that

adoption by Stepmother was in the Children’s best interests. Mother appeals

from the trial court’s granting of the adoption petition. Additional information

will be provided below as needed.

Discussion & Decision

[13] When reviewing a trial court’s ruling in an adoption proceeding, we may not

disturb that ruling unless the evidence leads to but one conclusion and the trial

court reached an opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662

(Ind. 2014). We presume the decision is correct and consider the evidence in

the light most favorable to that decision. Id.

[14] The overarching question before us is whether Mother’s consent was required

in order to grant Stepmother’s adoption petition. Under certain limited

circumstances, a biological parent’s consent to an adoption is not required. See

Ind. Code § 31-19-9-8. In this case, the trial court relied upon three of the

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 6 of 10 enumerated circumstances listed in the statute, which provide that consent 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.

****

(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(a). Mother challenges the trial court’s determination with

respect to each provision. Because the statute is written in the disjunctive, the

existence of any one of the circumstances provides sufficient ground to dispense

with consent. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014).

Accordingly, we need only conclude that the trial court properly relied on at

least one of these statutory provisions.

[15] With respect to I.C. § 31-19-9-8(a)(11)(A), the trial court found Mother unfit to

parent the Children due to “her pattern of criminal behavior, convictions and

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 7 of 10 her significant pattern of drug and alcohol abuse.” Appellant’s Appendix at 19.

We agree with the trial court.

[16] In determining the meaning of “unfit” as used in the statute, we have looked to

Black’s Law Dictionary’s definition of the word. In re Adoption of M.L., 973

N.E.2d 1216, 1223 (Ind. Ct. App. 2012) (“‘[u]nsuitable; not adapted or

qualified for a particular use or service” or “[m]orally unqualified;

incompetent’”) (quoting BLACK’S LAW DICTIONARY 1564 (8th ed. 2004)).

Additionally, we have found that cases involving the termination of parental

rights pursuant to a petition filed by the Department of Child Services provide

useful guidance in determining whether a parent is unfit. See In re Adoption of

D.M., 82 N.E.3d 354, 358-59 (Ind. Ct. App. 2017); In re Adoption of M.L., 973

N.E.2d at 1223.

Termination cases have considered factors such as a parent’s substance abuse, mental health, willingness to follow recommended treatment, lack of insight, instability in housing and employment, and ability to care for a child’s special needs. Also, this Court has consistently held in the termination context that it need not wait until children are irreversibly harmed such that their physical, mental, and social development are permanently impaired before terminating the parent-child relationship. It is well-settled that individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children. … A parent’s criminal history is relevant to whether the parent is unfit to be a parent under Ind. Code § 31-19-9-8(a)(11).

In re Adoption of D.M., 82 N.E.3d at 359 (citations omitted).

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 8 of 10 [17] The record clearly and convincingly establishes that Mother is unfit to parent

the Children. Her substance-abuse issues span nearly twenty years and have

escalated over the years, especially after the birth of her children. Between 2009

and the adoption hearing in August 2017, Mother had been incarcerated on

three separate occasions for a year or more, and she was still completing her

longest stint of incarceration at the time of the final hearing. Mother was

incarcerated when the adoption petition was filed in July 2014. Despite the

pending adoption proceedings, upon her release from prison in September 2014,

Mother continued to use illegal drugs (including methamphetamine and

heroin), violate probation, and commit new criminal offenses. 2 She has not

functioned as a parent to the Children for many years, and she remained unable

to parent them at the time of the adoption hearing. This and other evidence in

the record support the trial court’s determination by clear and convincing

evidence that Mother is unfit to be a parent.

[18] With regard to whether it was in the Children’s best interests to dispense with

her consent, Mother simply asserts:

It was … in the best interest of the children to have both a step- mother and a mother. The step-mother can continue to do the things for the children she has been doing. The mother will have

2 Contrary to Mother’s assertion on appeal, her criminal record is far from minor. And it is of no moment that she has never been charged with neglect of the Children. A.G.’s testimony detailed several concerning incidents he experienced while in Mother’s care, including a friend passing her needles in front of A.G., Mother begging for money from strangers, and Mother leaving them unattended in a car at night while she visited friends. At the adoption hearing, A.G. testified that he wanted no further contact with Mother and that he would not feel safe and secure in her presence.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 9 of 10 a chance to improve herself and resume a relationship with her sons without interference by the father.

Appellant’s Brief at 20-21. On the contrary, Mother has had ample time to

improve herself, address her serious substance abuse issues, and refrain from

committing new crimes. Mother’s consistent pattern of behavior establishes

that she has not made the Children a priority for the majority of their lives,

leaving Stepmother in the role of their mother. The Children, ages thirteen and

seventeen at the time of the final hearing, testified that they wanted Stepmother

to adopt them and opined that the adoption was in their best interests.

Moreover, they expressed concern for their safety if placed in Mother’s care.

The evidence clearly and convincingly establishes that dispensing with Mother’s

consent to the adoption was in the best interests of the Children. Accordingly,

the trial court did not err when it did just that pursuant to I.C. § 31-19-9-

8(a)(11).

[19] Judgment affirmed.

Najam, J. and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-267 | March 7, 2019 Page 10 of 10