In Re the Adoption of S.O., A.O., and N.O.: P.P. v. A.O. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 6, 2018
• Docket: 41A01-1712-AD-2967
• 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 Jun 06 2018, 8:35 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 ATTORNEY FOR APPELLEE Donna Jameson Roger A. Young Jameson Law Office Young and Young Greenwood, Indiana Franklin, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Adoption of S.O., June 6, 2018 A.O., and N.O.: Court of Appeals Case No. 41A01-1712-AD-2967 P.P., Appeal from the Johnson Superior Appellant-Respondent, Court v. The Honorable Marla Clark, Judge Trial Court Cause No. A.O., 41D04-1505-AD-016 Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 1 of 8 Case Summary [1] P.P. (“Mother”) appeals the trial court’s order terminating her parental rights

and permitting Am.O. (“Stepmother”) to adopt her children. Finding no error,

we affirm.

Facts and Procedural History [2] N.O., S.O., and A.O. were born out of wedlock to Mother and L.O. (“Father”)

in 2004, 2005, and 2008, respectively. Mother and Father’s relationship ended,

and Father married Stepmother in February 2009.

[3] In October 2011, Mother contacted Father and stated that she thought it would

be best if he kept the children. Seven months later, in May 2012, Father

established paternity of the children and was awarded sole physical and legal

custody of the children. The court entered a supervised parenting-time schedule

for Mother and ordered that she pay $93 per week in child support. Over the

next three years, Mother did not exercise her right to parenting time or pay any

child support. In May 2015, Stepmother petitioned to adopt the children.

[4] Mother objected to Stepmother’s petition, and a hearing on the petition was

held in September 2015. The court granted Stepmother’s petition, concluding

in part that (1) Stepmother had proven by clear and convincing evidence that

for at least one year Mother knowingly failed to provide for the care and

support of the children when able to do so as required by law or judicial decree

and (2) adoption was in the best interests of the children. Appellant’s App. Vol.

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 2 of 8 II pp. 68-72. Mother appealed, and this Court reversed and remanded because

the trial court had failed to consolidate the paternity and adoption cases and

because Stepmother’s background check did not satisfy the requirements of

Indiana Code section 31-9-2-22.5. In re Adoption of S.O., 56 N.E.3d 77 (Ind. Ct.

App. 2016).

[5] On remand, the trial court consolidated the paternity and adoption cases, and

Stepmother filed a background check that complied with the statute. The trial

court also set aside the child-support order, finding that Mother had not been

properly served with it. The court permitted Mother to have parenting time

with the children every other weekend and one evening during the week, and

Mother began exercising her parenting time.

[6] A final hearing on Stepmother’s adoption petition was held in August 2017.

Father testified that Mother had not provided any financial support for the

children since 2012. From 2012 to 2016 Mother’s annual income ranged from

$15,387 to $23,002. See Exs. 2-6. Despite her income being “at poverty levels,”

Mother lived independently, paid her own bills, never received food stamps or

rent assistance, and never filed for bankruptcy. Tr. Vol. II p. 91. Mother stated

that she had surgery in 2012 and that “most” of her income went to paying her

medical bills and that she had no money left over for child support. Id. at 83-

84. But Mother’s bank statements from December 2015 to December 2016,

which were admitted into evidence without objection, see id. at 74, showed that

Mother frequently ate at restaurants, purchased diet and fitness programs that

cost hundreds of dollars, and paid for cable television, Ex. 8. Mother confirmed

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 3 of 8 that the statements were “reflective” of her expenses “for the last several

years[.]” Tr. Vol. II p. 74.

[7] Stepmother stated that she has a good, healthy relationship with the children,

that they talk to her about “everything,” and that they refer to her as “mom”

even though Mother was still in their lives. Id. at 33, 43. The children saw

Stepmother as a parental figure and obeyed her. Stepmother also transported

the children to and from their extracurricular activities and attended doctor

appointments with them.

[8] In November 2017, the court granted Stepmother’s petition to adopt. It

concluded that Stepmother had proven by clear and convincing evidence that

(1) “Mother failed to meaningfully communicate with the children for a period

of at least one year”; (2) Mother had a common law duty to support her

children even in the absence of a court order and that she “failed to provide for

the care and support of the children for at least one year when she had the

ability to do so”; and (3) adoption is in the children’s best interests. Appellant’s

App. Vol. II pp. 22-23.

[9] Mother now appeals.

Discussion and Decision [10] Mother contends that the trial court erred when it concluded that her consent to

the adoptions was not necessary and that adoption is in the best interests of the

children. “When reviewing adoption proceedings, we presume that the trial

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 4 of 8 court’s decision is correct, and the appellant bears the burden of rebutting this

presumption.” In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). We will

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

conclusion and the trial judge reached an opposite conclusion.” Id. at 973. The

trial court’s findings of fact and conclusions will “be set aside only if they are

clearly erroneous.” Id. We will not reweigh the evidence or judge witness

credibility, and we will only examine the evidence most favorable to the trial

court’s conclusion. Id.

[11] In most cases, a natural parent must consent to the adoption of their minor

child. However, consent is not required from:

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)(2). The petitioner has the burden of proving by clear

and convincing evidence that the non-custodial parent’s consent to a stepparent

adoption is not required. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct.

App. 2012).

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 5 of 8 [12] Mother argues that the trial court erred when it concluded that she failed to

provide for the care and support of the children for at least one year when she

had the ability to do so as required by law or judicial decree. She challenges

this conclusion on two grounds. First, she contends that she was not required

by law or judicial decree to provide for the care and support of the children

because the 2012 child-support order was set aside. She claims that the trial

court erroneously relied on this child-support order when it reached its

conclusion. But the trial court did not rely on the child-support order. Rather,

it relied on Indiana’s common law, as stated in In re Adoption of S.W., which

imposes a duty upon a parent to support their children even in the absence of a

court order or statute. 979 N.E.2d at 639 n.2 (Ind. Ct. App. 2012); see

Appellant’s App. Vol. II p. 23. Mother does not argue that S.W. was wrongly

decided or that the case is distinguishable from her situation. In fact, despite

the trial court’s explicit reliance on S.W., Mother makes no mention of it on

appeal. The trial court did not err when it concluded that Mother was

“required by law or judicial decree” to support the children.

[13] Mother also challenges the court’s conclusion that she had the financial ability

to support and care for the children. During the hearing, multiple exhibits

regarding Mother’s finances were admitted, including her tax returns from 2012

to 2015, her 2016 W-2, and her bank statements from December 2015 to

December 2016. Mother’s annual income during these four years varied from

$15,000 to $23,000. Despite earning near “poverty levels,” Mother never

received food stamps or rent assistance, never filed for bankruptcy, paid her

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 6 of 8 own bills, and lived independently. Furthermore, Mother’s bank statements

showed that she frequently dined out, bought diet and fitness programs that cost

hundreds of dollars, and paid for cable television. Mother contends that the

bank statements show her financial activity after the adoption petition was filed

and could not be relied on by the trial court. But Mother herself admitted that

the statements were reflective of her expenses “for the last several years.” The

trial court’s conclusion that Mother’s consent was not necessary because she

had knowingly failed to provide for the care and support of the children when

able to do so as required by law or judicial decree is not clearly erroneous.1

[14] Mother contends that even if her consent was not required, adoption is not in

the children’s best interests. See Ind. Code § 31-19-11-1(a)(1) (requiring the trial

court to also conclude that adoption is in the best interests of the children). The

court found that Stepmother has a good, healthy relationship with the children,

she cares for the children by preparing meals and transporting them to school

and extracurricular events, she assists with homework, and the children refer to

her as “mom.” Appellant’s App. Vol. II p. 20. Mother does not challenge

these findings. Instead, she focuses on the fact that, while on remand, she

began exercising her parenting time. Mother claims that a bond formed

between her and the children and that the trial court ignored this bond. This

1 Mother also challenges the trial court’s conclusion that her consent was not necessary because she failed for at least one year to communicate significantly with the children when able to do so. Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive, and either provision provides a ground for dispensing with parental consent. S.W., 979 N.E.2d at 640. Because we affirm on the ground that Mother failed to support the children for at least one year, we do not address this argument.

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 7 of 8 argument is a request for us to reweigh the evidence, which we will not do.

O.R., 16 N.E.3d at 973.

[15] Mother further contends that the trial court based its best-interests conclusion

“on monetary issues and Stepmother being involved in the children’s lives as a

result of marriage to Father.” Appellant’s Br. p. 27 (citing to Appellant’s App.

Vol. II p. 23, conclusions 15, 17). But the trial court is required to make certain

findings and conclusions, including that Stepmother is “of sufficient ability to

rear the child and furnish suitable support and education.” I.C. § 31-19-11-

1(a)(2). Furthermore, the trial court’s conclusion that “Stepmother has filled

the role of mother to the children for the last seven years[]” was supported by

the court’s findings of fact, and Mother does not challenge any of the court’s

findings. Appellant’s App. Vol. II p. 23. The trial court’s conclusion that

adoption is in the children’s best interests is not clearly erroneous.

[16] Affirmed.

Barnes, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 41A01-1712-AD-2967 | June 6, 2018 Page 8 of 8