MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 07 2015, 8:58 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.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Jordan L. Tandy Kristina L. Lynn Mark A. Frantz Lynn and Stein, P.C. Tiede Metz Downs Tandy Wabash, Indiana & Petruniw, P.C. Wabash, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Adoption of: December 7, 2015 B.B. (Minor Child), Court of Appeals Case No. 85A02-1505-AD-426 K.B. Appeal from the Wabash Circuit Appellant-Respondent, Court v. The Honorable Robert R. McCallen, III, Judge J.K., Trial Court Cause No. 85C01-1501-AD-1 Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 1 of 8 [1] K.B. (Mother) appeals the trial court’s order that her consent is not required for
her cousin, J.K. (Guardian), to adopt Mother’s child, B.B. (Child). The trial
court found that Guardian established, by clear and convincing evidence, that
Mother is an unfit parent and that adoption of Child by Guardian would be in
Child’s best interests. Finding sufficient evidence to support the trial court’s
judgment, we affirm.
Facts [2] In 2008, Mother’s father and stepmother were appointed guardians of her oldest
child, who has been in their care since that time. In June 2013, when Mother
became pregnant with Child, there was an open Child in Need of Services
(CHINS) case regarding her two other children. Mother’s participation in
CHINS services was unsuccessful, and her parental rights were terminated with
respect to those two children in October 2013.
[3] During Mother’s pregnancy with Child, she used methadone, hydrocodone,
and oxycodone. She did not have a prescription for the latter two drugs, and
while she did have a prescription for methadone, she abused the medication
and did not take it as prescribed. In November 2013, while six months
pregnant, Mother overdosed on methadone.
[4] Child was born on February 10, 2014, and suffered from narcotic withdrawals
as a result of Mother’s drug use during the pregnancy. Child remained in the
hospital for a week and needed careful medical care for the first two months of
her life as she weaned off of the narcotics.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 2 of 8 [5] On February 17, 2014, Mother was arrested on charges of forgery and theft.
On May 19, 2014, Mother pleaded guilty to one count of class C felony forgery
and received a five-year sentence, with two years suspended to probation.
Mother was released from incarceration on January 12, 2015.
[6] The same day that Mother was arrested, Child was released from the hospital
and into Guardian’s care. She has remained in his care since that time. On
January 26, 2015, Guardian filed a petition to adopt Child, contending that
Mother’s consent was not required. On February 9, 2015, in a separate
proceeding, Guardian was named Child’s temporary guardian.
[7] On March 25 and April 24, 2015, the trial court held an evidentiary hearing
regarding Mother’s consent to the adoption. On March 25, 2015, Mother was
employed and had her own apartment. By April 24, she had lost her job and
her apartment and had moved in with her parents. Since being released from
incarceration, Mother had scheduled appointments for a substance abuse
evaluation as required by the terms of her probation, but she missed or canceled
most of those appointments. As of April 24, Mother had not completed any
substance abuse treatment since her release. Between March 25 and April 24,
Mother admittedly used methadone once and heroin twice. Between those
dates, Mother attended some, but not all, scheduled visits with Child, and
ended other scheduled visits early.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 3 of 8 [8] On April 27, 2015, the trial court issued an order determining that Mother’s
consent to the adoption was not required. In pertinent part, the trial court
found and concluded as follows:
In prior CHINS termination proceedings of [Mother’s] rights to other children, the Court made the following findings:
***
The DCS made significant efforts to facilitate reunification. Services were offered, time and again. Despite those efforts . . . [Mother’s] efforts fell short, far short. At no time during the pendency of this action has reunification been considered. Reunification was the goal, and it was pursued, to no avail.
Sadly, nothing has changed. [Mother] continues to associate with persons of poor character. She continues to have problems with drugs. She has no ability to care for herself, let alone another child. She is unemployed. She has no transportation. She has not re-engaged in services. She misses parenting time opportunities.
. . . She is unfit to parent [Child].
[Guardian] has proven, by clear and convincing evidence, that [Mother’s] consent is not required . . . and it is in [Child’s] best interests to be adopted by [Guardian], who has been [Child’s] sole source of support since birth.
Appellant’s App. p. 5-6. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 4 of 8 Discussion and Decision [9] Mother argues that the trial court erred by concluding that her consent to
Child’s adoption is not required. 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.
[10] 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 85A02-1505-AD-426 | December 7, 2015 Page 5 of 8 (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.
Mother makes arguments regarding both subsection (2) and subsection (11). It
is well established that the provisions of Indiana Code section 31-19-9-8 are
disjunctive, and “as such, either provides independent grounds for dispensing
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 07 2015, 8:58 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.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Jordan L. Tandy Kristina L. Lynn Mark A. Frantz Lynn and Stein, P.C. Tiede Metz Downs Tandy Wabash, Indiana & Petruniw, P.C. Wabash, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Adoption of: December 7, 2015 B.B. (Minor Child), Court of Appeals Case No. 85A02-1505-AD-426 K.B. Appeal from the Wabash Circuit Appellant-Respondent, Court v. The Honorable Robert R. McCallen, III, Judge J.K., Trial Court Cause No. 85C01-1501-AD-1 Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 1 of 8 [1] K.B. (Mother) appeals the trial court’s order that her consent is not required for
her cousin, J.K. (Guardian), to adopt Mother’s child, B.B. (Child). The trial
court found that Guardian established, by clear and convincing evidence, that
Mother is an unfit parent and that adoption of Child by Guardian would be in
Child’s best interests. Finding sufficient evidence to support the trial court’s
judgment, we affirm.
Facts [2] In 2008, Mother’s father and stepmother were appointed guardians of her oldest
child, who has been in their care since that time. In June 2013, when Mother
became pregnant with Child, there was an open Child in Need of Services
(CHINS) case regarding her two other children. Mother’s participation in
CHINS services was unsuccessful, and her parental rights were terminated with
respect to those two children in October 2013.
[3] During Mother’s pregnancy with Child, she used methadone, hydrocodone,
and oxycodone. She did not have a prescription for the latter two drugs, and
while she did have a prescription for methadone, she abused the medication
and did not take it as prescribed. In November 2013, while six months
pregnant, Mother overdosed on methadone.
[4] Child was born on February 10, 2014, and suffered from narcotic withdrawals
as a result of Mother’s drug use during the pregnancy. Child remained in the
hospital for a week and needed careful medical care for the first two months of
her life as she weaned off of the narcotics.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 2 of 8 [5] On February 17, 2014, Mother was arrested on charges of forgery and theft.
On May 19, 2014, Mother pleaded guilty to one count of class C felony forgery
and received a five-year sentence, with two years suspended to probation.
Mother was released from incarceration on January 12, 2015.
[6] The same day that Mother was arrested, Child was released from the hospital
and into Guardian’s care. She has remained in his care since that time. On
January 26, 2015, Guardian filed a petition to adopt Child, contending that
Mother’s consent was not required. On February 9, 2015, in a separate
proceeding, Guardian was named Child’s temporary guardian.
[7] On March 25 and April 24, 2015, the trial court held an evidentiary hearing
regarding Mother’s consent to the adoption. On March 25, 2015, Mother was
employed and had her own apartment. By April 24, she had lost her job and
her apartment and had moved in with her parents. Since being released from
incarceration, Mother had scheduled appointments for a substance abuse
evaluation as required by the terms of her probation, but she missed or canceled
most of those appointments. As of April 24, Mother had not completed any
substance abuse treatment since her release. Between March 25 and April 24,
Mother admittedly used methadone once and heroin twice. Between those
dates, Mother attended some, but not all, scheduled visits with Child, and
ended other scheduled visits early.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 3 of 8 [8] On April 27, 2015, the trial court issued an order determining that Mother’s
consent to the adoption was not required. In pertinent part, the trial court
found and concluded as follows:
In prior CHINS termination proceedings of [Mother’s] rights to other children, the Court made the following findings:
***
The DCS made significant efforts to facilitate reunification. Services were offered, time and again. Despite those efforts . . . [Mother’s] efforts fell short, far short. At no time during the pendency of this action has reunification been considered. Reunification was the goal, and it was pursued, to no avail.
Sadly, nothing has changed. [Mother] continues to associate with persons of poor character. She continues to have problems with drugs. She has no ability to care for herself, let alone another child. She is unemployed. She has no transportation. She has not re-engaged in services. She misses parenting time opportunities.
. . . She is unfit to parent [Child].
[Guardian] has proven, by clear and convincing evidence, that [Mother’s] consent is not required . . . and it is in [Child’s] best interests to be adopted by [Guardian], who has been [Child’s] sole source of support since birth.
Appellant’s App. p. 5-6. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 4 of 8 Discussion and Decision [9] Mother argues that the trial court erred by concluding that her consent to
Child’s adoption is not required. 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.
[10] 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 85A02-1505-AD-426 | December 7, 2015 Page 5 of 8 (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.
Mother makes arguments regarding both subsection (2) and subsection (11). It
is well established that the provisions of Indiana Code section 31-19-9-8 are
disjunctive, and “as such, either provides independent grounds for dispensing
with parental consent.” In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.
App. 2006). Because we find below that the trial court did not err by finding
that Mother’s consent was not required pursuant to subsection (11), we need
not, and will not, address her arguments with respect to subsection (2).
[11] Subsection (11) requires that the petitioner prove by clear and convincing
evidence that the parent is unfit and that adoption is in the child’s best interest.
This Court has determined that “termination [of parental rights] cases provide
useful guidance as to what makes a parent ‘unfit.’ In these cases, we have
considered factors such as a parent’s substance abuse, . . . willingness to follow
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 6 of 8 recommended treatment, lack of insight, [and] instability in housing and
employment . . . .” M.L., 973 N.E.2d at 1223.
[12] In this case, the evidence most favorable to the trial court’s judgment reveals
that Mother has been struggling with substance abuse issues for years. She has
had multiple opportunities to address these issues by participating in services,
but has failed to do so. She has had her parental rights involuntarily terminated
with two of her children, and a third is cared for by guardians. Not only did
Mother use illicit substances while pregnant with Child, causing Child to have
significant medical issues at birth, but she admittedly used methadone and
heroin in between hearing dates in this very case. Mother was also unable to
maintain employment or housing while these matters were pending.
Additionally, she was incarcerated for nearly all of Child’s first year of life, and
it is well settled that “‘[i]ndividuals who pursue criminal activity run the risk of
being denied the opportunity to develop positive and meaningful relationships
with their children.’” In re Adoption of H.N.P.G., 878 N.E.2d 900, 907 (Ind. Ct.
App. 2008) (quoting Castro v. State Office of Family and Children, 842 N.E.2d 367,
374 (Ind. Ct. App. 2006)).
[13] Mother directs our attention to the strides she has made. We do not discount
her seemingly genuine desire to better herself, nor do we discount the attempts
that she has made to do so. But this argument amounts to a request that we
reweigh the evidence, which we may not, and will not, do. The evidence in the
record supports the trial court’s conclusion that Guardian established by clear
and convincing evidence that Mother is an unfit parent and that it is in Child’s
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 7 of 8 best interests to be adopted by Guardian. See In re Adoption of J.M., 10 N.E.3d
16, 21 (Ind. Ct. App. 2014) (holding that parents’ consent to adoption not
required given their historical difficulty with substance abuse and their inability
to rectify the situation, notwithstanding genuine attempts to do so, by the time
of the consent hearing).
[14] Additionally, it is undisputed that Guardian has provided Child with a stable,
nurturing environment. It is also undisputed that Child has a strong bond with
Guardian—a stronger bond than she has with Mother. Guardian is able to
provide for all of Child’s needs. This evidence supports the trial court’s
conclusion that adoption is in Child’s best interests.
[15] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015 Page 8 of 8