T.H. and R.H. v. C.J. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 13, 2017
• Docket: 32A01-1611-AD-2712
• 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 Jul 13 2017, 5:57 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 APPELLANTS ATTORNEY FOR APPELLEE Glen E. Koch II Jamie E. Harrell Boren, Oliver & Coffey, LLP Helfrich & Harrell Law Martinsville, Indiana Avon, Indiana

IN THE COURT OF APPEALS OF INDIANA

T.H. and R.H., July 13, 2017 Appellants-Petitioners, Court of Appeals Case No. 32A01-1611-AD-2712 v. Appeal from the Hendricks Superior Court C.J., The Honorable Robert W. Freese, Appellee-Intervenor. Judge Trial Court Cause No. 32D01-1605-AD-29

Najam, Judge.

Statement of the Case [1] T.H. and R.H. (“Guardians”) appeal from the trial court’s denial of their

petition to adopt minor child J.M.L. (“Child”) following an evidentiary

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 1 of 9 hearing. Guardians raise a single issue for our review, which we restate as

whether the trial court’s judgment that the consent of Child’s biological father,

C.J. (“Father”), was necessary to the adoption petition is contrary to law. We

affirm.

Facts and Procedural History [2] Child was born in December of 2010. Shortly after his birth, his mother died.

Father and Mother were dating and living together at the time but not married.

Father petitioned to be named Child’s guardian, which the trial court granted.

But Father did not establish his paternity at that time.

[3] Father, who is trained as an automobile mechanic, was unemployed at the time

of Child’s birth. However, due to the death of Child’s mother, Father began

receiving Social Security benefits on Child’s behalf. And, around April of 2011,

Father obtained part-time employment. He and Child also began to live with

Father’s biological mother and Father’s step-father, the Guardians.

[4] In January of 2012, Father moved to Nevada and asked his mother and step-

father to care for Child. In February of 2012, Guardians petitioned to be

appointed as the Child’s successor guardians, in that Child continued to live

with them while Father was in Nevada, they began to receive the Social

Security benefits on Child’s behalf, and they otherwise provided necessary care

for Child. The court granted Guardians’ request.

[5] In March, Father returned to Indiana. Over approximately the next year and

one-half, Father’s employment and living situation were unstable. In Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 2 of 9 September or October of 2013, Father moved back into Guardians’ home with

Child. He paid $50 per week to Guardians as rent and obtained regular

employment at a nearby grocery store. Father also contributed groceries to the

household, provided car maintenance, and would occasionally purchase gifts

for Child. Later, Father obtained employment at Goodyear, and from that

position he contributed more than $1,000 from his income to repair the

transmission on one of Guardians’ vehicles.

[6] In 2014, Father married F.J. Father and F.J. moved into their own residence

and they had a child together. Thereafter, Father obtained employment at Big

O’ Tires, and his 2015 joint tax return showed a household income of $59,358.

Father increased his overnights with Child and, in May of 2016, filed his

petition to establish paternity and custody. Later that month, Guardians filed a

petition to adopt and asserted that Father’s consent to the adoption was not

necessary because Father “has abandoned his son, does not support his son, . . .

has not had any contact with him for several months, and has not had a

meaningful relationship with him since birth.” Appellants’ App. Vol. 2 at 9.

[7] Father intervened in Guardians’ adoption request. After an evidentiary

hearing, the court entered the following findings of fact and conclusions

thereon:

1. Intervenor . . . is the father of [Child] . . . pursuant to Agreements and Orders of the Court entered in the related [paternity] action . . . .

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 3 of 9 2. Father’s consent to a petition to adopt is required pursuant to Indiana Code § 31-19-9-1(a)(1).

3. Father’s consent may not be waived pursuant to I.C. § 31- 19-[9]-8(a)(2)(A), as Father has communicated significantly with [C]hild throughout . . . his lifetime.

4. For [Guardians] to proceed . . . without Father’s consent . . . [they] must show by “clear and convincing evidence” that Father’s consent was not required because he . . . knowingly failed to provide for the care and support of the child when able to do so as required by law or judicial decree.

5. A parent’s ability to provide for the care and support of [his] child depends on more than proof of income, standing alone. It is determined by an examination of the totality of the circumstances.

6. Father was [C]hild’s guardian until February[] 2012, when [Guardians] were appointed as Successor Guardians.

7. Father’s housing and employment were unstable during 2012-2013 and he did not have the ability to support [C]hild.

8. Father lived with [Guardians] between 2013 and 2014[] and regularly provided both care for [C]hild[] as well as some financial support in the form of rent paid to [Guardians], providing groceries, and other various contributions. During this time, Father was earning minimum wage working at a local grocery store and he testified that he did not have a bank account.

9. During 2015 and 2016, Father exercised regular parenting time with [C]hild and not only provided care . . . but paid

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 4 of 9 transferred expenses, including the cost of food and transportation, and duplicated expenses, including the cost of providing shelter.

10. [Guardians] offered little to no evidence as to the amount of income Father earned during 2015 and 2016, or his ability to pay regular support payments during that time.

11. [Guardians] offered no evidence showing that [C]hild’s needs were unmet at any time relevant to these proceedings[.]

12. Father has been employed during 2015 and 2016 at Big O’ Tires and now earns $11.00 per hour. His average gross weekly income for 2016 is currently $710.46.

13. Since their appointment as Successor Guardians, [Guardians] have received [C]hild’s Social Security survivor benefits in the amount of $766.00 per month . . . . These are benefits that would have been received by Father had [C]hild been in his care and custody after February 2012. Those benefits were diverted from Father to [Guardians] to assist with [C]hild’s financial support.

14. [Guardians] offered no evidence of the amount that was necessary on a monthly or weekly basis for the support of [C]hild after February 2012, and the Court cannot determine whether [C]hild’s support was fully covered by the [S]ocial [S]ecurity benefits . . . .

15. [Guardians] have not met their burden to show by clear and convincing evidence that Father knowingly failed to provide for the care and support of [C]hild when able to do so as required by law or judicial decree.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 5 of 9 16. For the foregoing reasons, the Court finds that Father’s consent to the Petition for Adoption is required . . . .

17. [Guardians] Petition for Adoption is dismissed.

Id. at 15-17 (citations and footnotes omitted). This appeal ensued.

Discussion and Decision [8] Guardians appeal the trial court’s dismissal of the petition for adoption. The

trial court’s judgment against Guardians followed an evidentiary hearing at

which, as the trial court stated, Guardians bore the burden of proof by clear and

convincing evidence. M.W. v. A.W. (In re N.W.), 933 N.E.2d 909, 913 (Ind. Ct.

App. 2010), adopted, 941 N.E.2d 1042 (Ind. 2011). Specifically, to show that

Father’s consent to the adoption was not necessary, Guardians were required to

clear two hurdles: they were required to show that Father “knowingly fail[ed]

to provide for the care and support of the child when able to do so as required

by law or judicial decree,” and they were also required to show that “the

adoption requested is in the best interests of the child.” Ind. Code §§ 31-19-9-

8(a)(2)(B); -11-1(a)(1) (2016). However, the parties agreed to bifurcate the

issues before the trial court such that the court would first consider only

whether Father knowingly failed to provide for Child’s care and support when

he was able to provide that support before it considered Child’s best interests.

And because the court concluded that Father did not knowingly fail to provide

Child’s care and support when able, the court dismissed Guardians’ petition in

its judgment.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 6 of 9 [9] The trial court expressly concluded that Guardians “have not met their burden

to show by clear and convincing evidence that Father knowingly failed to

provide for the care and support of the child when able to do so as required by

law or judicial decree.” Appellants’ App. Vol. 2 at 17. Having failed to meet

their burden of proof in the trial court, Guardians appeal from a negative

judgment. A negative judgment is one entered against a party who bore the

burden of proof. Serenity Springs v. LaPorte Cty. Convention & Visitors Bureau, 986

N.E.2d 314, 319 (Ind. Ct. App. 2013). On appeal, we will reverse a negative

judgment only where the trial court’s decision is contrary to law. Kotsopoulos v.

Peters Broad. Eng’g, Inc., 962 N.E.2d 97, 105 (Ind. Ct. App. 2011). A trial court’s

judgment is contrary to law if the undisputed evidence and all reasonable

inferences to be drawn from that evidence lead to but one conclusion, and the

trial court reached a different conclusion. Id. Additionally, a judgment is

contrary to law if the trial court applied the wrong legal standard. Town of

Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198

(Ind. 2016).

[10] On appeal, Guardians assert that the trial court’s judgment is contrary to law

because Father “never paid child support” between January 2012 and

September 2013 or between February 2014 and May 2016. Appellants’ Br. at 7.

In particular, Guardians assert that the court erred in three of its findings,

namely, (1) when it found that Father was unable to financially support Child

in 2012 and 2013; (2) when it found that Father did provide some support in

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 7 of 9 2015 and 2016; and (3) when it found that “insufficient evidence had been

entered of Father’s 2015 income.” Id. at 8. We cannot agree.

[11] There is more in the record than the Guardians acknowledge on appeal, and

each of the trial court’s three challenged findings are supported by the totality of

the evidence before the court. First, Father testified that he was transient and

not stably employed between January of 2012 and September or October of

2013. Those facts support the trial court’s finding that Father was unable to

support Child financially during that time.

[12] Second, Father testified that he regularly exercised—when Guardians allowed

it—parenting time with Child in 2015 and 2016, and that he provided Child

with clothing, holiday gifts, and Child’s own room at Father’s house. Father

also noted the positive relationship Child had developed with Father’s wife,

F.J., and their child when he introduced photographs of the four to the court.

Contrary to Guardians’ supposition on appeal, support need not be exclusively

financial. Je. B. v. Ja. B. (In re M.B.), 944 N.E.2d 73, 77 (Ind. Ct. App. 2011)

(“A parent’s nonmonetary contribution to a child’s care may be counted as

support.”). The trial court’s finding that Father supported Child in 2015 and

2016 is demonstrated in the record.

[13] Third, the trial court’s assessment that Guardians had produced “little to no

evidence” of Father’s ability to pay regular support payments in 2015 and 2016

is correct. Appellants’ App. Vol. 2 at 16-17. The evidence demonstrates

Father’s joint gross income in 2015, but there is no evidence regarding Father’s

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017 Page 8 of 9 expenses, what a reasonable amount of support for Child would have been, or,

significantly, that Child’s Social Security benefits did not provide a reasonable

amount of support already. Moreover, Father’s testimony that he thought he

earned about $70,000 in 2015 was in conflict with his 2015 joint tax return, and

it was the trial court’s prerogative to rely on the tax return in its judgment.

[14] Guardians’ arguments on appeal select evidence from the record and ask this

court to rely on that evidence to the exclusion of the evidence most favorable to

the trial court’s judgment, which we will not do. Likewise, the case law

primarily relied on by Guardians discusses evidence relied on by our trial courts

in finding parental consent not to be necessary. See, e.g., C.L.S. v. A.L.S. (In re

M.S.), 10 N.E.3d 1272, 1280-82 (Ind. Ct. App. 2014). Here, on the other hand,

the trial court found that Father’s consent to the adoption was necessary.

Accordingly, the cases relied on by Guardians are inapposite to this appeal.

[15] In sum, we cannot say that the evidence before the trial court leads unerringly

to one conclusion and that the trial court reached a different conclusion. The

trial court’s judgment is not contrary to law, and, as such, we affirm.

[16] Affirmed.

Riley, J., and Bradford, J., concur.

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