In re the Adoption of: E.L.I. (Minor Child), N.I. and R.I. v. P.R.H. (Natural Mother) and R.L.I. (Natural Father) (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 17, 2017
• Docket: 10A01-1702-AD-262
• 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 Oct 17 2017, 5:37 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Matthew J. McGovern Larry O. Wilder Anderson, Indiana Jeffersonville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Adoption of: October 17, 2017 E.L.I. (Minor Child), Court of Appeals Case No. 10A01-1702-AD-262 N.I. and R.I. Appeal from the Clark Circuit Court Appellants-Petitioners, The Honorable Andrew Adams, v. Judge Trial Court Cause No. P.R.H. (Natural Mother) and 10C01-1603-AD-12 R.L.I. (Natural Father), Appellees-Respondents.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 1 of 12 Case Summary and Issue [1] N.I. and R.I. (“Grandparents”) appeal the trial court’s order denying their

petition for adoption of E.L.I., the daughter of their son, R.L.I. Grandparents

raise one issue for our review, which we restate as: whether the trial court erred

in denying their petition for adoption by failing to make the required findings to

support that result. Concluding the trial court’s findings of fact are insufficient,

we remand for findings that address the proper statutory considerations.

Facts and Procedural History [2] E.L.I. was born on November 22, 2002, to P.R.H. (“Mother”) and R.L.I.

(“Father”). In November 2004, Father filed a petition to establish paternity of

E.L.I. The parties stipulated that Father was the natural father of E.L.I. and

the paternity court preliminarily ordered that Mother and Father share joint

legal custody with Mother maintaining primary physical custody and Father

having extended parenting time. The paternity court also appointed a special

advocate to provide a recommendation for custody and parenting time. In her

report filed with the court, the special advocate explained that “[m]ost troubling

is [Mother’s] involvement with drug dealers and drug users, which would

include her live-in boyfriend.” Appellant’s Appendix, Volume III at 50. The

special advocate concluded that although “[n]either parent is a great candidate

for [E.L.I.’s] care[,]” Father should be awarded primary physical custody

because he lived with his parents and thus had “a bit more stability.” Id. The

trial court also appointed a guardian ad litem who recommended that the

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 2 of 12 parties have joint legal custody, with Mother to retain primary physical custody

and Father to have parenting time according to the Guidelines.

[3] On July 14, 2005, Grandparents appeared in the action and filed a petition for

custody of E.L.I. Grandparents alleged they had been the de facto custodians

of E.L.I. since her birth and that neither Father nor Mother were fit to care for

E.L.I. Mother filed a motion to dismiss Grandparents’ petition, and the

guardian ad litem recommended to the court that Mother retain primary

physical custody because E.L.I had not been physically harmed while in

Mother’s custody. Grandparents and Mother reached an agreement on

November 1, 2005, wherein Mother and Grandparents would “share joint

custody” of E.L.I. Id. at 129. The agreement acknowledged that Father was

incarcerated and incapable of exercising visitation with the child. Id. The

Court approved the agreement and ordered Father to have no contact with

E.L.I. Id.

[4] On July 11, 2011, Mother and Grandmother were involved in an altercation at

Mother’s home. Police discovered methamphetamine and drug paraphernalia

in the home and Mother admitted she was addicted to methamphetamine. The

Clark County Department of Child Services investigated and obtained an

emergency custody order over E.L.I., thereafter placing E.L.I. with

Grandparents. On August 5, 2011, Grandparents filed a petition to modify

custody. The paternity court awarded sole physical and legal custody of E.L.I.

to Grandparents. The paternity court ordered Mother’s parenting time be

supervised by Grandparents and later granted Father supervised visitation.

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 3 of 12 [5] Mother was incarcerated between 2012 and 2014 on drug related charges. On

June 15, 2015, Mother filed a petition to modify custody alleging that she was

“drug free and employed.” Appellant’s App., Vol. III at 149. In her petition,

Mother requested incremental visitation and the paternity court appointed a

guardian ad litem.

[6] On March 4, 2016, Grandparents filed a petition to adopt E.L.I. and provided

notice to Father and Mother. The petition alleged Father had consented to the

adoption and further alleged Mother’s consent was not required because she

had failed for a period of at least one year to communicate with and provide

care and support for E.L.I. During a hearing on April 20, 2016, the parties

agreed the adoption court has exclusive jurisdiction and the paternity case was

transferred to that court and consolidated with the adoption case.1 A day later,

the guardian ad litem appointed in the paternity case filed her report

recommending Grandparents remain permanent custodians of E.L.I. The

guardian ad litem also recommended that Grandparents investigate the

financial benefits of adoption for E.L.I.

[7] On November 14, 2016, Mother requested the trial court make findings of fact

and conclusions of law. After a hearing on November 18, 2016, the trial court

1 Indiana Code section 31-19-2-14(a) provides, “If a petition for adoption and a paternity action are pending at the same time for a child sought to be adopted, the court in which the petition for adoption has been filed has exclusive jurisdiction over the child, and the paternity proceeding must be consolidated with the adoption proceeding.”

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 4 of 12 made eleven findings of fact and denied Grandparents’ petition for adoption.

The court’s findings were:

1. That the adoption terminates the parental rights of the biological parent(s); without a separate post adoption visitation agreement.

2. That [Grandparents] have been the de facto custodians of [E.L.I.] through [the paternity case] since approximately August 2011 by agreed order.

3. That [Mother] was incarcerated from December 2012 to September 2014.

4. That during her incarceration, [Mother] made attempts to contact [E.L.I] and sent letters.

5. That upon her release, [Mother] had contact with [E.L.I.] routinely by phone and sought additional contact and visitation.

6. That [Mother] was advised that [E.L.I.] was choosing not to communicate with her mother and did not wish to have visitation.

7. That [Father] consents to the adoption but continues to have regular contact with [E.L.I.] at the [Grandparents’] residence.

8. That through [the paternity case] the Court appointed [a] Guardian Ad Litem . . . and her recommendations were that [Mother] begin visitation with [E.L.I.] beginning with therapeutic sessions.

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 5 of 12 9. That [Mother] has continued in this pursuit to have a parental relationship with [E.L.I.] even if small.

10. The parties have agreed not to pursue or force the issue of visitation out of concerns for [E.L.I.’s] emotional and mental stability.

11. The [Grandparents] believe it is in [E.L.I.’s] best interest that the adoption be granted, they believe that any contact between [E.L.I.] and [Mother] would be a harm to the child, and that [E.L.I.] may benefit from the [Grandparents’] social security benefits in the amount of approximately one thousand eight hundred dollars ($1,800.00) per month.

The Court hereby DENIES the [Grandparents’] Petition for Adoption and identifies a parent’s parental rights and pursuit of a relationship over the financial interest or benefit [E.L.I.] or the [Grandparents] may receive.

Appellant’s App., Vol. II at 86-87. This appeal ensued.

Discussion and Decision I. Standard of Review [8] We will not disturb a trial court’s ruling in an adoption proceeding unless the

evidence leads only to the conclusion opposite that of the trial court. E.W. v.

J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans. denied. “Appellate

deference to the determinations of our trial court judges, especially in domestic

relations matters, is warranted because of their unique, direct interactions with

the parties face-to-face, often over an extended period of time.” Best v. Best, 941

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 6 of 12 N.E.2d 499, 502 (Ind. 2011). We do not reweigh evidence and we consider

evidence most favorable to the decision together with reasonable inferences

drawn from that evidence. E.W., 20 N.E.3d at 894. Where, as here, an

adoption petition is filed without the required parental consent, the party

seeking to adopt bears the burden to prove the statutory criteria for dispensing

with consent by “clear and convincing evidence.” In re Adoption of M.A.S., 815

N.E.2d 216, 220 (Ind. Ct. App. 2004).

[9] We also note that the trial court entered written findings of fact and conclusions

of law on Mother’s request pursuant to Indiana Trial Rule 52(A). Upon such a

motion, the trial court “shall find the facts specially and state its conclusions

thereon.” Ind. Trial Rule 52(A) (emphasis added). We apply a two-tiered

standard of review to such cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964

N.E.2d 213, 216 (Ind. 2012). First, we determine whether the evidence

supports the findings of fact and second, we determine whether the findings

support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App.

2009). Indiana’s appellate courts “shall not set aside the findings or judgment

unless clearly erroneous, and due regard shall be given to the opportunity of the

trial court to judge the credibility of the witnesses.” T.R. 52(A).

II. Applicable Law [10] “Generally, a trial court may only grant a petition to adopt a child born out of

wedlock who is less than eighteen years of age if both ‘[t]he mother of [the]

child’ and ‘the father of [the] child whose paternity has been established’

consent to the adoption.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014) Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 7 of 12 (quoting Ind. Code § 31-19-9-1(a)(2)). However, Indiana law allows a child to

be adopted without a parent’s consent in certain, statutorily defined

circumstances. E.W., 20 N.E.3d at 894. Indiana Code section 31-19-9-8

provides, in relevant part,

(a) 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.

Ind. Code § 31-19-9-8(a).

III. Findings of Fact [11] Grandparents allege the trial court failed to make specific findings regarding the

only contested issues: whether Mother’s consent to the adoption was required

and whether adoption was in E.L.I.’s best interest.

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 8 of 12 A. Consent to Adoption [12] Grandparents argue that the trial court failed to make a finding of fact

concerning whether Mother’s consent to the adoption was necessary.

Specifically, Grandparents contend that although the trial court “devoted

Finding Nos. 4-6 and 9 to whether or not [Mother] failed to communicate

significantly with E.L.I. . . . there are no findings regarding whether [Mother]

failed to provide for the care and support of E.L.I.” Brief of Appellants at 29-30

(citation omitted). Indeed, none of the trial court’s eleven factual findings

address the issue.

[13] The trial court made a factual finding that E.L.I. had been in the care of

Grandparents for longer than the one-year period required by Indiana Code

section 31-19-9-8(a)(2). See Appellant’s App., Vol. II at 86 ¶ 2. Thus, the trial

court found the prerequisite to consider whether Mother failed to communicate

with E.L.I. or whether Mother failed to provide for E.L.I.’s care and support

during that period. Ind. Code § 31-19-9-8(a)(2)(A)-(B).

[14] The trial court devoted four of its eleven factual findings to the issue of

communication. See Appellant’s App., Vol. II at 86-87 ¶¶ 4-6, 9. The court

found that Mother attempted to contact E.L.I while she was incarcerated and,

since her release, routinely contacted E.L.I. by phone and has “sought

additional contact and visitation.” Id. at 86 ¶¶ 4-5. Our review of the record

reveals sufficient evidence to support those findings. However, the trial court

made no finding regarding whether Mother failed to provide for E.L.I.’s care

and support. The provisions of Indiana Code section 31-19-9-8(a) are written in Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 9 of 12 the disjunctive, meaning any one provides independent grounds for dispensing

with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

App. 2006), trans. denied. Therefore, whether Mother failed to provide for

E.L.I.’s care and support was an issue requiring a finding by the trial court to

either grant or deny the petition for adoption. We are “not at liberty to scour

the record to find evidence to support the judgment.” Parks v. Delaware Cnty.

Dep’t of Child Servs., 862 N.E.2d 1275, 1280-81 (Ind. Ct. App. 2007).

Accordingly, we must remand for the trial court to make the appropriate

findings on this issue.

B. Best Interest of the Child [15] Grandparents also argue that the trial court failed to make a factual finding

regarding the best interest of the child. Grandparents allege that the trial court

was required to make findings about the best interest of the child pursuant to

Indiana Code section 31-19-11-1:

(a) Whenever the court has heard the evidence and finds that:

(1) the adoption requested is in the best interest of the child; [and]

(7) proper consent, if consent is necessary, to the adoption has been given;

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 10 of 12 the court shall grant the petition for adoption and enter an adoption decree.

This statute lists nine requirements that, if applicable, the trial court must find

before granting a petition for adoption. Any one of the requirements is

potentially dispositive, meaning if the trial court finds one lacking, it need look

no further.

[16] After reviewing the trial court’s findings, we are unable to discern the basis for

the trial court’s dismissal of Grandparents’ petition. On one hand, because the

court found that Mother had communicated with the child but made no specific

finding regarding the best interest of the child, it appears that the court found

Mother’s consent was necessary and thus did not consider the best interest of

the child. On the other hand, the trial court concluded that it “identifies a

parent’s parental rights and pursuit of a relationship over the financial interest

or benefit the child or the [Grandparents] may receive.” Appellant’s App., Vol.

II at 87. This reads as though the trial court concluded Mother’s consent was

not required and considered the best interest of the child. In that event, the trial

court failed to make a factual finding regarding the best interest of the child as

required by Indiana Code section 31-19-11-1(a)(1).

[17] Regardless of which path the trial court chose, due to the court’s failure to make

complete findings regarding whether Mother’s consent to the adoption was

required and whether adoption was in the best interest of the child, we are

unable to discern whether the trial court dismissed Grandparents’ petition on

proper statutory considerations. Cf. In re Involuntary Termination of Parent-Child Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 11 of 12 Relationship of N.G., 61 N.E.3d 1263, 1266 (Ind. Ct. App. 2016) (remanding for

proper findings that supported the trial court’s judgment terminating parental

rights).

[18] Grandparents urge us to reverse with instructions that their adoption petition be

granted. We decline to do so as we are not convinced the evidence leads only

to that conclusion. See E.W., 20 N.E.3d at 894. We choose instead to remand

for findings that address the proper statutory considerations. On remand, the

court need not conduct another hearing but it must, however, reconsider its

findings based on evidence already in the record in light of this opinion. If the

court finds Mother’s consent is required, then it need not make findings

regarding the best interest of the child. Alternatively, if the court finds Mother’s

consent is not required, then the court must make factual findings regarding the

best interest of the child.

Conclusion [19] For the reasons discussed above, we remand with instructions for the trial court

to enter proper findings of fact and conclusions of law regarding Grandparents’

petition for adoption.

[20] Remanded.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 12 of 12