In Re the Adoption of M.R.R., a child, M.R. v. N.G. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 7, 2018
• Docket: 18A-AD-923
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 07 2018, 9:45 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Karen M. Heard John Andrew Goodridge Evansville, Indiana Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Adoption of M.R.R., a November 7, 2018 child Court of Appeals Case No. 18A-AD-923 M.R., Appeal from the Vanderburgh Appellant-Respondent, Superior Court-Juvenile Division v. The Honorable Brett J. Niemeier, Judge N.G., Trial Court Cause No. 82D04-1703-AD-29 Appellee-Petitioner.

Altice, Judge.

[1] M.R. (Father) appeals the trial court’s order granting the petition filed by N.G.

(Stepfather) to adopt Father’s biological child, M.R.R. Father claims that the

trial court erred in concluding that his consent to the adoption was not required.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 1 of 14 [2] We affirm.

Facts & Procedural History [3] Father and L.G. (Mother) are the biological parents of M.R.R., born in March

2009. At that time, Father and Mother were living together, and they married

sometime in 2010. Father “got caught up in drugs and it turned him into a

different person.” Transcript Vol. II at 31. By May 2011, their marriage was

dissolved. For about a year, Father exercised parenting time every other

weekend. During that time, Father was living in Evansville with his mother

(Grandmother), who was present for Father’s visitations with M.R.R. In 2012,

Father moved to Linton, Indiana, and while he still saw M.R.R. for visitations,

it was less regularly. Mother explained, “[I]f he stopped asking to see [M.R.R.]

that’s when I knew that he typically wasn’t clean. It was off and on a lot.” Id.

at 32. In January 2014, Mother married Stepfather. In May 2016, Mother filed

a petition to modify custody and parenting time. Father initially objected but

later signed an agreement in or around August 2016 awarding Mother sole

custody and requiring that his parenting time be supervised by the paternal

grandfather (Grandfather).

[4] On March 13, 2017, Stepfather filed a Petition for Adoption of M.R.R., alleging

that Father “has had no meaningful contact with the child within the 12 months

preceding the filing of this adoption petition and has not provided any support

in the 5 years preceding the filing of this adoption petition.” Appellant’s App.

Vol. II at 10. On the same date, Mother filed her consent to the adoption.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 2 of 14 Notice was sent to Father, and he filed a pro se objection to the petition. A few

days later, the county’s Legal Aid Society entered an appearance on behalf of

Father, and that same day, Father, by counsel, filed a more formal objection,

stating that he was contesting the adoption and asserting adoption was not in

M.R.R.’s best interests.1

[5] On January 24, 2018, the trial court held an evidentiary hearing on Father’s

objection and the issue of his consent. Mother testified that after Father moved

to Linton in 2012, he “went to rehab a few times” but he could not “stay clean”

and eventually he returned to living with Grandmother in Evansville. Transcript

Vol. II at 32. Mother testified that in 2015, Father became gravely ill with

MRSA2 that “was somehow connected with him having a drug problem” and,

in Mother’s view, Father was at “rock bottom, but he didn’t get clean after

hitting rock bottom.” Id. at 34. Believing that “it was no longer safe for

[M.R.R.] to be around him,” Mother sought full custody and supervised

visitation in May 2016. Id. Father was arrested on felony drug charges in or

around this time, and in late summer or early fall of 2016, he agreed to the

requested change in custody and supervised parenting time. Grandfather

1 Father’s counsel through the Legal Aid Society later withdrew and, in October 2017, the trial court appointed the Vanderburgh County Public Defender’s Office to represent Father. 2 MRSA is Methicillin-resistant Staphylococcus aureus infection and is caused by a type of staph bacteria that has become resistant to many of the antibiotics used to treat ordinary staph infections.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 3 of 14 agreed to supervise the visitation, but Grandmother declined, explaining that

she was not comfortable with supervising due to Father’s drug usage issues.

[6] Mother testified that Father’s last meaningful contact with M.R.R. was in

February or March 2016. She described that, up until then, Father had been

exercising parenting time “a day at a time here and there” but that stopped in

February or March 2016, when she believed “he was starting to use heavily

again.” Id. at 35. From May 2016 until July 2017, Mother testified that Father

had seen M.R.R. twice for some “hours” each time, and she did not consider it

as meaningful contact. Id. at 38. Father gave M.R.R. a card for her eighth

birthday, in March 2017, putting it in their mailbox. Mother stated that, since

the dissolution, Father had attended “zero” doctor appointments and dentist

appointments and had never contacted Mother about school or medical issues.

Id. at 42. Mother characterized Father as having been “non-existent for the past

three years or so[.]” Id. at 39. Stepfather testified that, to his knowledge,

Father had had no meaningful contact with M.R.R. in the two years preceding

the January 2018 hearing.

[7] When asked about when Father had last paid child support, Mother replied,

“Early 2015, late 2014. I don’t really keep track of the dates. I just never really

counted on it.” Id. at 42. She said that he paid consistently “for the first year or

so” after the 2011 dissolution, then inconsistently up until sometime in 2015,

and then he quit paying. Id. at 43. Mother explained her motivation in seeking

adoption was to keep M.R.R. safe, physically and emotionally, and to ensure

that if anything were to happen to Mother, that M.R.R. would remain in the

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 4 of 14 household with her siblings and Stepfather, who was reliable and had been

raising her. Mother stated that, if the adoption were granted, she “absolutely”

wanted to continue to foster the relationship between M.R.R. and Father’s

parents (Grandparents). Id. at 44. Mother had faith in Grandparents that they

would not let M.R.R. be around Father if he was under the influence of drugs.

[8] Grandmother testified that she saw M.R.R. regularly, about once a month, and

that M.R.R. would stay overnight with her. Grandmother arranged those visits

through Mother and Stepfather. Grandmother stated that while Stepfather was

a nice man, a responsible person, and she did not have any concerns about him

in terms of being a parental figure for M.R.R., she was opposed to adoption.

Grandmother explained that she wanted M.R.R. to have a relationship with

Father, stating although “he hasn’t always done everything he should” and has

had “a drug issue,” “he’s [M.M.R.’s] Dad and she should see him.” Id. at 14.

Grandmother added, “If he’s clean it doesn’t [need to be supervised]. But I

don’t know if he’s clean.” Id. at 25. In response to questioning about the drug

issue, Grandmother recalled that Father had struggled with addiction to opioids

“on and off” for about eight years, since the time that he had been living with

Mother, and he had been in jail twice. Id. at 18.

[9] When asked what communication Father had had with M.R.R. in the last year,

Grandmother replied, “I don’t think he’s had very much.” Id. at 27. With

regard to whether Father had given presents to M.R.R., Grandmother said,

“He’s told me that he has ‘em. He doesn’t kn[o]w when he can give ‘em to her.

I don’t know. I haven’t seen ‘em.” Id. Grandmother indicated that on

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 5 of 14 approximately three or four occasions in the last year, Father had asked her if

he could see M.R.R. while M.R.R. was staying with Grandmother, but

Grandmother did not allow him to do so because, when Grandmother asked

Mother if this was acceptable, Mother had said no to the request, and

Grandmother “respected” Mother’s decision. Id. at 29.

[10] Father also testified at the consent hearing. He acknowledged that he had been

an opiate addict for about ten years and a heroin addict for the last few years.

He had been “in rehab” four times, in jail a few times, and he had been charged

with two felony drug offenses. Id. at 50. Father testified that he had a daily

drug habit, but as of the date of the hearing, he had been clean for three days,

noting that he was in an outpatient program, but had been “struggling lately”

and hoped to be admitted to an inpatient program. Id. at 51. He also

acknowledged that he paid child support “here and there” but not consistently

and believed he last paid in 2015. Id. Father said that he was hospitalized in

September 2015 for MRSA, agreeing that, up until he was hospitalized, he had

been using drugs and needles, which was “probably” how he contracted the

MRSA infection. Id. at 52. He stated that, when he was working, he paid child

support, but he did not work for most of 2016. He testified that to satisfy his

drug habit he sometimes, but not always, would purchase “$20.00 bumps” of

heroin once or twice a day. Id. at 55. Father conceded that during periods of

being unemployed he bought drugs but did not pay child support.

[11] Father testified that from March 2016 to March 2017, he tried to see M.R.R. a

few times, with Grandfather as supervisor, but because Grandfather lived an

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 6 of 14 hour away, Father conceded, “[S]o no, I didn’t attempt a whole lot.” Id. at 59.

Father was asked, “Was it hard because of the distance or was it hard because

you were high?” and he replied, “I can still drive if I’m high. I mean, if I was

high I still wanna see my daughter.” Id. at 59. When asked to acknowledge

that he had not “been much of a dad to [his] daughter,” Father agreed that

“[a]bout the last year and a half, no, I haven’t been much of one.” Id. at 59.

Father explained that, although he had not “been the best Dad” and struggled

with addiction, he objected to the adoption because he wanted to be a part of

his daughter’s life and see her “every other weekend or whenever they decide”

and under whatever restrictions would be imposed. Id. at 65, 72.

[12] The trial court took the matter under advisement. On February 12, 2018, the

trial court ruled that Father’s consent was not required. Specifically, it

determined:

The Court having the matter of father’s consent under advisement now rules that the father’s consent is not required for the adoption to be granted. The father has had no meaningful contact with the child at least one year prior to the filing of the adoption nor has he supported the child for that same period of time. Further the court finds the father to be unfit. Father for a prolonged period of time has used various substances illegally and continues to illegally use substances that impair his ability to parent. After hearing the testimony of the father the court believes that the father has no intention of remedying his substance abuse problem, in that he doesn’t view it as a significant hindrance in his ability to parent, therefore in this court’s opinion rendering him unfit.

Appellant’s Appendix Vol. II at 6. Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 7 of 14 [13] On March 15, 2018, the trial court held a final adoption hearing, following

which the trial court issued a Decree of Adoption, granting Stepfather’s

petition. The trial court found that the allegations of Stepfather’s petition were

true and that adoption was in M.R.R.’s best interests.3 Father now appeals the

trial court’s determination that Father’s consent was not required for the

adoption.

Discussion & Decision [14] As our Supreme Court has recognized, “In family law matters, we generally

give considerable deference to the trial court’s decision because we recognize

that the trial judge is in the best position to judge the facts, determine witness

credibility, ‘get a feel for the family dynamics,’ and ‘get a sense of the parents

and their relationship with their children.’” E.B.F. v. D.F., 93 N.E.3d 759, 762

(Ind. 2018) (citing MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)).

Accordingly, when reviewing an adoption case, we presume that the trial

court’s decision is correct, and the appellant bears the burden of rebutting this

presumption. Id.; In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App.

2012). We will neither reweigh the evidence nor judge the credibility of

witnesses; instead, we will consider the evidence most favorable to the trial

court’s decision, and the reasonable inferences to be drawn therefrom, to

determine whether sufficient evidence exists to sustain the decision. In re S.W.,

3 The trial court also changed M.R.R.’s surname to that of Mother and Stepfather.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 8 of 14 979 N.E.2d at 639. We will not disturb the trial court’s ruling unless the

evidence leads to only one conclusion and the trial court reached an opposite

conclusion. Id.

[15] Generally, a trial court may grant a petition for adoption only if both the

mother and father of the child consent. Ind. Code § 31-19-9-1. However, Ind.

Code § 31-19-9-8(a) provides that consent to an adoption is not required from:

(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.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 9 of 14 Ind. Code § 31-19-9-8(a)(2), (11). Stepfather, as the petitioner, had the burden

of proving by clear and convincing evidence that consent was not required. In

re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012). The

provisions of Ind. Code § 31-19-9-8 are written in the disjunctive; therefore,

they each provide independent grounds for dispensing with parental consent.

Id.

[16] Here, the trial court determined that Father’s consent was not required because

(1) Father had failed to communicate significantly with M.R.R. for a year

preceding Stepfather’s filing of the petition in March 2017, (2) he had not paid

child support for that period of time, and (3) he was unfit to parent M.R.R.

While any one of those three grounds would independently support the

decision that Father’s consent was not required, we find that the record

supports all three and we address each.

[17] First, with regard to communication, our Supreme Court has recognized, “A

determination on the significance of the communication is not one that can be

mathematically calculated to precision.” E.B.F., 93 N.E.3d at 763. The Court

explained,

[S]ignificance of the communication cannot be measured in terms of units per visit. Even multiple and relatively consistent contacts may not be found significant in context. But a single significant communication within one year is sufficient to preserve a non-custodial parent’s right to consent to the adoption.

Id. (citations omitted).

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 10 of 14 [18] Here, Mother testified that, by early 2016, the frequency of Father’s visitations

with M.R.R. were “already starting to dwindle” and then stopped occurring in

February or March of 2016 when he resumed “heavily” using drugs. Transcript

Vol. II at 35. Mother testified that Father had had no meaningful

communication with M.R.R. since February or March 2016, and Stepfather

testified likewise. There was evidence presented that Father had seen M.R.R.

on two occasions between May 2016 and July 2017, for some hours each time,

but Mother testified that she did not consider those occasions as meaningful

contact. Father’s suggestion that such contact was meaningful is a request for

us to reweigh the evidence and witness testimony, which we cannot do on

appeal. In re S.W., 979 N.E.2d at 639. Furthermore, Father did not present any

evidence of specific visits on specific dates or elaborate in what way those

visitations were meaningful.4 Father also argues that he attempted on a few

other unspecified occasions in 2016 to see M.R.R. – by asking Grandmother to

see M.R.R. while she was visiting with Grandmother or by trying to arrange a

supervised visitation through Grandfather – and that either Grandmother did

not allow it because Mother had not approved or because Grandfather was too

busy. To the extent that Father is suggesting that his attempts to see M.R.R.

4 Father asserts that he had meaningful visits with M.R.R. in 2017 at a family gathering for his sister and her new baby, during a summer fireworks celebration that M.R.R. was attending with Grandfather, and when he attended some of M.R.R.’s sporting events. However, these events occurred after the filing of the petition to adopt and are not relevant to the determination of whether his consent was not required. See In re Adoption of S.W., 979 N.E.2d 633, 640 n.3 (Ind. Ct. App. 2012) (parent’s conduct after filing of adoption petition is “‘wholly irrelevant to the determination of whether parent failed to significantly communicate with child for any one year period,’” quoting In re Adoption of Subzda 562 N.E.2d 745, 750 n.3 (Ind. Ct. App. 1990)).

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 11 of 14 were thwarted by Mother or in some way justified his lack of communication

with M.R.R., we reject his claim. Father has failed to show that the trial court’s

determination that he failed to communicate significantly with M.R.R. in the

relevant time frame was erroneous.

[19] Second, with regard to the matter of supporting the child, Mother testified

Father had failed to pay child support since 2015, and Father agreed this was

accurate. Evidence of child support payments made through the Clerk’s office

was admitted into evidence and showed that Father made some payments, not

weekly however, during the months of January 2015 through June 2015, and he

made none in 2016.5 Father testified that he did not provide child support in

any other form or method besides the payments made through the Clerk’s

office. The record thus supports the trial court’s determination that Father

failed to provide care and support for M.R.R. for a year preceding the petition.

[20] Third, with regard to Father’s fitness to parent M.R.R., this court has observed

that, while I.C. § 31-19-9-8 does not define “unfit,” termination cases provide

useful guidance, where we considered factors such as a parent’s substance

abuse, mental health, willingness to follow recommended treatment, lack of

insight, and instability in housing and employment. In re M.L., 973 N.E.2d at

1223. Here, evidence was presented that Father had struggled with significant

drug addiction for ten years. He went to rehabilitation three or four times, but

5 Father resumed making some payments in May, June, July, and August 2017, which was after the petition was filed in March 2017.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 12 of 14 was not successful in remaining drug-free, as he resumed using opioids and

heroin, often daily. Father had managed to stay clean for three days preceding

the hearing, but admitted that he was struggling and hoped to return to

inpatient treatment. He conceded that he was unemployed for most of 2016

and was not working much in 2017. He acknowledged that, at times, he paid

for drugs and not child support. In his testimony, Father urged that he still

wanted to and could see his daughter even if he was high, so long as she did not

see or know that he was using drugs. The trial court found that Father’s failure

to recognize the drug use “as a significant hindrance in his ability to parent”

rendered him unfit to parent. Appellant’s Appendix Vol. II at 6. The record

supports the trial court’s determination that Father was not fit to parent M.R.R.

[21] No one, including Mother, disputes that Father loves his daughter.

Unfortunately, however, “the destructive tentacles of the substance abuse

epidemic” have a grip on Father. E.B.F., 93 N.E.3d at 760. As stated, we will

not disturb the trial court’s ruling unless the evidence leads to only one

conclusion and the trial court reached an opposite conclusion. In re S.W., 979

N.E.2d at 639. The record in this case supported the trial court’s decision that

Father’s consent was not required.6

[22] Judgment affirmed.

6 Father does not challenge the trial court’s subsequent determination that the adoption was in M.R.R.’s best interest.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 13 of 14 Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018 Page 14 of 14