J.W. v. T.M. and C.M. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 28, 2020
• Docket: 20A-AD-1011
• 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 28 2020, 8:18 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 APPELLEES Justin R. Wall Mark J. Wiley Wall Legal Services Bowers, Brewer, Garrett & Wiley, Huntington, Indiana LLP Huntington, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.W., October 28, 2020 Appellant-Respondent, Court of Appeals Case No. 20A-AD-1011 v. Appeal from the Huntington Circuit Court T.M. and C.M., The Honorable Davin G. Smith, Appellees-Petitioners Judge Trial Court Cause No. 35C01-1902-AD-2

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 1 of 9 Case Summary [1] J.W. (Father) appeals the trial court’s determination that his consent was not

required as a prerequisite to the adoption of his son, A.W. (Child), by Child’s

maternal grandparents, T.M. and C.M. (Grandparents). We affirm.

Facts and Procedural History [2] Father and S.M. (Mother) are the biological parents of Child. Since his birth in

June 2012, Child has resided with Grandparents. Mother and Father never

were married, and Mother has resided at Grandparents’ home off and on. In

2013, Mother filed a petition for paternity and child support, which the trial

court granted, and Father’s paternity was established. In 2014, the IV-D Child

Support Enforcement Division filed an information for contempt against Father

for failure to pay child support. A series of status hearings ensued, with Father

repeatedly being ordered to provide proof of filing five job applications per

week and/or paying child support. Father’s continued noncompliance resulted

in more contempt proceedings in 2015, which were continued several times.

Around that same time, Father twice sought a custody modification, with the

second petition being based on Mother’s incarceration. The trial court denied

his petitions for custody but granted him supervised parenting time through the

Youth Services Bureau. Father had approximately nine supervised visits with

Child in late 2015 and early 2016. By June 2016, Father had canceled all visits

indefinitely, citing financial problems. In July 2016, the trial court found him

to be in contempt for failure to pay child support.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 2 of 9 [3] In the summer and fall of 2016, the State charged Father with criminal offenses

under three different cause numbers. A jury ultimately found him guilty of

three counts of child molesting, two as level 1 felonies and one as a level 4

felony, level 5 felony battery with a deadly weapon, and level 5 felony battery,

and also found him to be a habitual offender. The trial court vacated the level 5

felony battery conviction on double jeopardy grounds. The victim of the

molestations and batteries was Father’s daughter (Child’s half-sibling). Father

was sentenced to an aggregate, nonsuspendible term of seventy years. His

convictions were affirmed on appeal, and his earliest possible release date from

the Indiana Department of Correction (DOC) is March 2069.

[4] In September 2017, Grandparents petitioned for guardianship of Child, and

Mother consented. Father did not answer or contest the petition, and the trial

court granted it. In February 2019, Grandparents filed a petition for adoption

by involuntary termination of the parent-child relationship. Mother consented

to the adoption. Father appeared in person and by counsel at a December 2019

factfinding hearing. The trial court judicially noticed the paternity, criminal,

and guardianship actions. In April 2020, the trial court issued an order with

findings of fact and conclusions thereon ruling that Father’s consent to

adoption was not required and terminating Father’s parental relationship with

Child. The court simultaneously granted Grandparents’ petition for adoption

and issued a decree of adoption. Father now appeals. Additional facts will be

provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 3 of 9 Discussion and Decision [5] Father contends that the trial court erred in concluding that his consent to

Child’s adoption by Grandparents was not required. Recognizing that the trial

court is in the best position to judge the facts and assess witness credibility, we

give considerable deference to the court’s ruling. J.H. v. J.L. & C.L., 973 N.E.2d

1216, 1222 (Ind. Ct. App. 2012). We will not disturb the court’s ruling in an

adoption proceeding unless the evidence leads to but one conclusion, and the

trial court reached the opposite conclusion. In re Adoption of D.M., 82 N.E.3d

354, 358 (Ind. Ct. App. 2017). We will set aside the trial court’s findings and

judgment only if they are clearly erroneous, which means that there is no

evidence to support the findings or the findings fail to support the judgment. In

re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). 1 In conducting our review,

we neither reweigh evidence nor reassess witness credibility but rather examine

the evidence and reasonable inferences most favorable to the decision and

determine whether sufficient probative evidence supports it. D.M., 82 N.E.3d at

358. The trial court’s decision is presumed to be correct, and the appellant has

the burden of overcoming the presumption. Id.

1 Father criticizes the amended findings because the trial court adopted Grandparents’ proposed findings verbatim. A trial court’s verbatim adoption of a party’s proposed findings is not prohibited. Country Contractors, Inc. v. A Westside Storage of Indianapolis, Inc., 4 N.E.3d 677, 694 (Ind. Ct. App. 2014). “Although we by no means encourage the wholesale adoption of a party’s proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 4 of 9 [6] When the trial court has heard evidence and finds that the adoption requested is

in the child’s best interest, and proper consent, if necessary, to the adoption has

been given, the court shall grant the petition and enter an adoption decree. Ind.

Code § 31-19-11-1(a). If the petition alleges that a parent’s consent is

unnecessary and the parent files a motion to contest the adoption, the petitioner

must prove by clear and convincing evidence that the parent’s consent is not

required. Id. (citing Ind. Code §§ 31-19-10-0.5, 31-19-9-8(a)). Indiana Code

Section 31-19-9-8 reads, 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.

(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 20A-AD-1011 | October 28, 2020 Page 5 of 9 Ind. Code § 31-19-9-8.2

[7] To determine what is in the best interests of a child, we must look at the totality

of the circumstances. In re A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). A

parent’s criminal offenses are properly considerable by the trial court in

assessing a parent’s unfitness as a parent under the statute. D.M., 82 N.E.3d at

360. The trial court concluded that it was in Child’s best interests to dispense

with Father’s consent based on several grounds: Father’s failure to significantly

communicate with Child, his failure to support Child, and his unfitness to

parent based on his criminal history. Because the statute is written in the

disjunctive, any one of the grounds listed therein is alone sufficient to dispense

with parental consent. O.R., 16 N.E.3d at 973.

[8] Here, the trial court found that Father’s efforts at communication and support

had been spotty at best. Communication efforts are particularly important in

circumstances such as these, where neither Father nor Mother has ever had

primary physical custody of Child. The only constant in Child’s life has been

Grandparents, with whom he has lived since birth. In 2015, when Father

sought and was awarded supervised visitation, he complied for a few months

and then canceled visitation indefinitely due to financial concerns. Father has

2 We acknowledge Father’s assertion that Grandparents’ adoption petition did not specifically allege the statutory basis for their claim that parental consent is not required. However, Father did not raise a due process claim or develop any cogent argument in this regard as required by Indiana Appellate Rule 46(A)(8). Therefore, he has waived the claim for our consideration. Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016).

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 6 of 9 been incarcerated since mid-2016, yet he did not write letters to Child, whose

mailing address had not changed for more than six years. His claim that

Grandparents thwarted his efforts at communication is an invitation to reweigh

evidence and reassess witness credibility, which we may not do. Probative

evidence supports the trial court’s conclusion that for at least one year, Father

failed without justification to communicate with Child through the means

available to him.

[9] With respect to child support, the record shows that in 2014, the IV-D Child

Support Enforcement Division filed an information against Father due to

nonpayment of support. Much of that year and the following year were spent

in the following cycle: Father being ordered to fill out at least five job

applications and/or pay child support; Father returning to court having not

done as ordered; and Father being sent out under the same order only to fail to

comply yet again. After he entered the DOC in the summer of 2016, his

support payments were intermittent and small. The payments generally went

toward other indebtedness, such as bills for paternity testing and DNA

bloodwork, and did not inure to Child’s benefit. Father’s only payment in the

final year of the proceedings that did inure to Child’s benefit was $65.21 toward

his support arrearage. He points out that his support obligation during

incarceration had dropped to zero and that his wages in the DOC were

miniscule. However, his child support arrearage, $5543.17 as of July 5, 2016,

cannot be ignored, as it underscores the fact that he was not paying support as

ordered even when he was outside the DOC. Appellant’s App. Vol. 2 at 175.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 7 of 9 The only sizeable payment throughout the proceedings was a 2016 purge

payment of $1500.00 made by Father’s ex-wife to satisfy a contempt order.

Simply put, Father did not provide for Child when he was under a judicial

order or when he had the resources to do so.

[10] Most significantly, the trial court concluded that Father’s criminal history and

the nature of his most recent convictions render him an unfit parent. We agree

and find his child molesting and battery convictions to be particularly troubling.

In his most recent consolidated causes, Father was convicted of five felonies,

including two counts of level 1 felony child molesting, one count of level 4

felony child molesting, and level 5 felony battery with a deadly weapon. He

committed these offenses against his daughter, Child’s half-sister, and is under a

no-contact order with respect to her. It is difficult to imagine a more

compelling example of unfitness to parent. Moreover, as a practical matter, the

length of Father’s nonsuspendible sentence must be considered. He is not

expected to be released from prison until March 2069, when Child is fifty-six

years old. Yet, by contesting the adoption, he now seeks to prevent Child from

having the formal, legal, and permanent security of being adopted by the only

“parents” he has ever known. To allow him to block the adoption by

withholding his consent would be antithetical to Child’s best interests.

[11] In sum, Father has failed at parenting in almost every respect. Whether inside

or outside the DOC, he has failed to demonstrate any sustained, earnest

attempt at communicating with Child or supporting him financially. His

criminal acts against Child’s half-sister render him unfit to be around a child, let

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 8 of 9 alone to parent one, and the length of his sentence makes parenting

impracticable if not impossible. Meanwhile, Grandparents have stood in the

gap for the entirety of Child’s life and wish to officially make him their son. It

is in Child’s best interests to remove the barrier of parental consent. Based on

the foregoing, we find no error in the trial court’s conclusion that Father’s

consent to adoption was not required. Consequently, we affirm.

[12] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020 Page 9 of 9