J.H. v. S.S.

93 N.E.3d 1137
Indiana Court of Appeals·Decided February 14, 2018·No. Court of Appeals Case No. 82A05–1708–AD–2069·Published·Cited by 2 cases

Opinion

Pyle, Judge.

Statement of the Case

[1] This case is another example of how substance abuse is savaging the familial bonds within Indiana and around the country. See Katherine Q. Seelye, Children of Heroin Crisis Find Refuge in Grandparents' Arms , The New York Times, May 21, 2016. In this case, J.H. ("Mother") appeals the trial court's order granting S.S.'s ("Paternal Grandmother") petition to adopt Mother's minor son, J.S. ("J.S."). Mother argues that the trial court erred in concluding that her consent to the adoption was not necessary because she is unfit. Concluding that the evidence supports the trial court's conclusion that Mother is unfit and that her consent to the adoption was not necessary, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court erred in granting Paternal Grandmother's petition to adopt J.S.

Facts

[3] Mother and K.S. ("Father") were married in 2002. Their son, J.S., was born in 2004. Mother and Father began having marital problems in 2005 because of Mother's alcohol abuse. Father filed a dissolution petition in 2006, and Mother was awarded primary custody of J.S. with the understanding that she was not to consume any alcoholic beverages or prescribed substances while J.S. was in her care. Three weeks later, Mother was court-ordered to attend inpatient alcohol treatment, and J.S. was placed with Father. The parties subsequently reconciled for sixty days until Father began finding vodka bottles in the back of Mother's car. One afternoon, Father returned home to find Mother "in the garage fairly well tanked and after that it just got worse and worse." (Tr. 103).

[4] In February 2011, Mother and Father entered into an agreed dissolution decree. Fifteen months later Father filed an emergency petition to modify and suspend parenting time wherein he alleged *1139that Mother had a critical and ongoing drug and alcohol addiction and had been drinking to the point of intoxication during parenting time with J.S. According to the petition, although Mother had completed three inpatient drug and alcohol treatment programs in the past three years, she had relapsed and was in another inpatient treatment center. The following month, Mother began treatment at a behavioral health center where she was diagnosed with polysubstance abuse after she admitted to drinking a fifth of vodka daily and consuming pills, opiates, and benzodiazepines.

[5] In June 2011, Mother entered into an agreed order modifying her parenting time. Three months later, Father filed an emergency motion to suspend Mother's parenting time. In November 2011, Mother and Father filed an agreed order, which awarded Mother supervised parenting time. Mother agreed that her parenting time would be suspended if she failed drug or alcohol tests.

[6] In 2013, Mother was charged with and convicted of operating a vehicle while intoxicated endangering a person. During the pendency of the criminal matter, Mother participated in another substance abuse program. Two years later, in March 2015, Mother was arrested again and sent to a different substance abuse program.

[7] In November 2015, Paternal Grandmother filed a petition to adopt J.S., wherein she alleged that Mother's consent to the adoption was not necessary because Mother: (1) had abandoned J.S.; (2) had failed to communicate significantly with J.S.; (3) had knowingly failed to support J.S. when she had the ability to do so; (4) was an unfit parent; and (5) had made only token efforts to support or communicate with J.S.

[8] In March 2016, Mother was charged with invasion of privacy, and three months later, she was charged with operating a motor vehicle with an alcohol concentration equivalent of .08 or higher with a prior conviction and possession of a controlled substance. Mother subsequently pled guilty to all charges and was placed on probation.

[9] At the June 2017 hearing on Paternal Grandmother's petition to adopt J.S., Mother admitted that, just days before the hearing, she had taken hydrocodone that was not prescribed for her. Father testified that Mother's "mental health [made] her unstable and ... [it was the] reason that she turn[ed] to the substances." (Tr. 100). Father consented to the adoption. J.S.'s therapist testified that J.S. had a positive relationship with Paternal Grandmother and that the adoption was in J.S.'s best interest. The guardian ad litem (GAL) testified that Mother had had nine probation violations in the past year and had been to six different treatment centers in three different states over the past eight years. The GAL opined that Mother was not fit as a parent and recommended that the trial court grant the adoption petition.

[10] The evidence also reveals that although Mother has a Master's Degree in Social Work, she had experienced difficulty maintaining stable employment and was unemployed at the time of the hearing. She had recently worked at McDonald's for two months until she was arrested at work. The evidence further reveals that Mother had not seen J.S. in over two years and had not had unsupervised visitation with him in over six years. Her last contribution to his expenses had been two to three years before the hearing.

[11] The trial court concluded that Mother's consent to the adoption was not required because she was unfit and had failed to communicate with and support J.S. The trial court also concluded that adoption was in J.S.'s best interest and granted Paternal Grandmother's petition. Mother now appeals.

*1140Decision

[12] At the outset, we note that Paternal Grandmother has failed to file an appellee's brief. When an appellee fails to submit a brief, we need not undertake the burden of developing an argument for the appellee. Santana v. Santana , 708 N.E.2d 886, 887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may reverse the trial court if the appellant can establish prima facie error. Id. However, we may in our discretion decide the case on the merits. Kladis v. Nick's Patio, Inc. , 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We choose to exercise our discretion in this case.

[13] Mother argues that the trial court erred in finding that her consent to Paternal Grandmother's adoption of J.S. was not required. When reviewing the trial court's ruling in an adoption proceeding, we will not disturb the ruling unless the evidence leads to one conclusion and the trial court reached an opposite conclusion. In re Adoption of D.M. , 82 N.E.3d 354, 358 (Ind. Ct. App. 2017).

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J.H. v. S.S., 93 N.E.3d 1137 (Ind. Ct. App. 2018).

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