W.M. v. H.T. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 18, 2020
• Docket: 20A-AD-403
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 18 2020, 7:39 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Ryan D. Bower Alice Bartanen Blevins New Albany, Indiana Salem, Indiana

IN THE COURT OF APPEALS OF INDIANA

W.M., November 18, 2020 Appellant-Petitioner, Court of Appeals Case No. 20A-AD-403 v. Appeal from the Washington Circuit Court H.T., The Honorable Larry Medlock, Appellee-Respondent. Judge Trial Court Cause No. 88C01-1903-AD-7, 88C01-1903- AD-8, & 88C01-1903-AD-9

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Petitioner, W.M. (Father), the biological father of J.K.N.M.,

Z.L.L.M., and M.J.R.M. (collectively, Children), appeals the trial court’s

Orders, granting the petition for adoption of the Children by H.T. (Adoptive

Mother).

[2] We affirm.

ISSUE [3] Father raises one issue on appeal, which we restate as the following: Whether

the trial court abused its discretion in granting Adoptive Mother’s petition for

adoption.

FACTS AND PROCEDURAL HISTORY [4] Daughters J.K.N.M. (born on September 18, 2003), Z.L.L.M. (born on

November 15, 2004), and M.J.R.M. (born on January 29, 2007), were all born

out of wedlock to Father and L.T. (Mother). Father’s paternity was established

at birth when Father signed paternity affidavits. In 2011, Father and Mother

separated. Mother thereafter began a relationship with Adoptive Mother and

the two resided together for a period of two years. On June 27, 2014, Mother

married Adoptive Mother.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 2 of 11 [5] In August 2017, Father was sentenced to ten years for his conviction for Level 2

felony dealing in methamphetamine, and his projected release date is 2023

when the Children will be nineteen, eighteen, and sixteen years of age

respectively.

[6] On March 25, 2019, with Mother’s consent, Adoptive Mother petitioned the

trial court to adopt the Children. Father filed his objection on April 18, 2019,

and on December 5, 2019, a hearing was conducted. Father testified that the

last time he had any contact with his daughters was in 2015. At the close of the

hearing, the trial court ordered a guardian ad litem report which was submitted

on January 15, 2020.

[7] In the report, Guardian Ad Litem Diane Haag (GAL Haag) stated that the

Children reported that they loved and were close to Adoptive Mother and

wanted to be adopted. Paternal Grandmother stated that she did not agree with

Mother’s and Adoptive Mother’s sexuality, did not understand why the girls

had to be adopted, and that the girls were well bonded with Father. Paternal

Grandmother also claimed that the Children were being mentally and

emotionally abused by Adoptive Mother. Paternal grandfather likewise stated

that he did not agree with the adoption. He claimed that Adoptive Mother was

a violent person, and he believed that the Children were being threatened or

coerced by Adoptive Mother to say that they wanted to be adopted. Maternal

Grandmother equally stated that she did not agree with the adoption or

Mother’s sexuality, and she believed that Adoptive Mother regularly beat the

Children with a belt. Mother stated that Father had been in and out of prison

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 3 of 11 for most of his daughters’ lives and that the girls did not want to visit Father

when he was in jail. Mother also claimed that she prevented her daughters

from being around their paternal grandparents due to them coming back with

head lice and bed bugs and that she also did not want them to be around the

drugs she believed Father was involved in when he was not in prison.

[8] As to the claims of abuse by Adoptive Mother, the Children confessed to GAL

Haag that they had lied about the abuse only to make their grandparents happy.

GAL Haag also determined that much of the opposition to the adoption from

the grandparents and Father stemmed from their dislike for Mother’s and

Adoptive Mother’s sexuality and their fear that they would lose the ability to

see the Children. GAL Haag then noted that Father had not been involved in

his daughters’ lives. Ultimately, GAL Haag recommended the adoption.

[9] On January 19, 2020, the trial court entered separate Orders of adoption in

favor of Adoptive Mother after finding that she was fit to raise the Children and

that it was in the Children’s best interest to be adopted. Father subsequently

appealed arguing that the trial court abused its discretion in granting Adoptive

Mother’s petition for adoption. Upon review, we determined that the Orders of

Adoption were defective because the trial court failed to make any findings that

would support dispensing with Father’s consent to the adoption. As such, we

retained jurisdiction, remanded to the trial court for specific findings which

would support dispensing with Father’s consent to the adoption. On October

19, 2020, the trial court entered Amended Adoption Decrees with respect to the

Children in which it found that Father has not financially supported the

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 4 of 11 Children for years, and he has not had physical contact with the Children in

years. Thus, the trial court concluded that pursuant to Indiana Code section

31-19-9-8, Father’s consent to the adoption was not required, and it was in the

best interests of the Children to be adopted by Adoptive Mother.

[10] Father now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION [11] Father contends that the trial court erred in granting Adoptive Mother’s petition

to adopt the Children. He argues that he did not give his consent to the

adoptions and that they should be set aside.

[12] As a reviewing court, we will not disturb the trial court’s decision in an

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

trial court reached the opposite conclusion. In re Infant Girl W., 845 N.E.2d

229, 238 (Ind. Ct. App. 2006), trans. denied. We will neither reweigh the

evidence nor reassess the credibility of witnesses, and we will examine only the

evidence most favorable to the trial court’s decision. Id. On appeal, we will not

reweigh the evidence, instead focusing on the evidence and inferences most

favorable to the trial court’s decision. J.H. v. J.L. & C.L., 973 N.E.2d 1216, 1222

(Ind. Ct. App. 2012). We generally give considerable deference to a trial court’s

rulings in family law matters, “as we recognize that the trial judge is in the best

position to judge the facts, determine witness credibility, get a feel for family

dynamics, and get a sense of the parents and their relationship with their

children.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 5 of 11 [13] The granting of a petition for adoption is a multi-step process. Indiana Code

section 31-19-11-1(a) lists the prerequisites to granting a petition, including that

“the adoption requested is in the best interest of the child” and “proper consent,

if consent is necessary, has been given.” If the requirements listed in the statute

are met, “the court shall grant the petition for adoption and enter an adoption

decree.” Ind. Code § 31-19-11-1(a).

[14] Generally, the first step in the process is determining whether the biological

parent’s consent to the adoption is required. Indiana Code section 31-19-9-8

addresses when consent is not required and provides, 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:

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 6 of 11 (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.

[15] The statute further provides that, “[i]f a parent has made only token efforts to

support or to communicate with the child the court may declare the child

abandoned by the parent.” I.C. § 31-19-9-8(b). The party seeking to adopt

bears the burden of proving by clear and convincing evidence that the

noncustodial parent’s consent is not required. Matter of Adoption of E.M.L., 103

N.E.3d 1110, 1116 (Ind. Ct. App. 2018), trans. denied. In the instant case, the

Amended Adoption Decrees provide that the necessity of obtaining Father’s

consent to the adoptions was obviated on alternative grounds: his failure to

communicate, and failure to financially support the Children.

[16] Father claims that from the GAL’s report, the Children had significant contact

with Paternal Grandmother, and were closely bonded. While that is admirable,

Father misses the mark. As a parent, Father, and not Paternal Grandmother,

was required to maintain communication with the Children. Adoptive Mother

presented evidence that Mother and Father separated in 2011, and after that,

Father was incarcerated for a majority of the years following the separation and

is presently serving a Level 2 felony dealing in methamphetamine sentence at

the Indiana Department of Correction (DOC). Adoptive Mother elicited

testimony from Father that he never once tried to write directly to the Children

or telephone them while in prison. Indeed, Father admitted that his last contact

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 7 of 11 with the Children was at a failed meeting in 2015. Four years later, Adoptive

Mother filed her petition to adopt the Children.

[17] The trial court also determined that Father’s consent was not necessary for

Adoptive Mother’s adoption of the Children because he failed to support the

Children. We initially note that there was no child support order in place.

However, we recognize that Indiana law imposes a duty upon a parent to

support his children. Irvin v. Hood, 712 N.E.2d 1012, 1015 (Ind. Ct. App. 1999).

This duty exists apart from any court order or statute. Id.; see also In Re Adoption

of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004). Consequently, even

though no court order to pay child support may exist, Father still had a duty to

support his children. To carry her burden, Adoptive Mother presented evidence

indicating that Father had failed to financially, within the year preceding the

adoption petition, to support the Children. Specifically, Adoptive Mother

extracted testimony from Father that it had been “some years ago” since he had

provided any financial support to the Children. (Transcript Vol. II, p. 22).

Based on the foregoing, we find that sufficient evidence supports the trial

court’s determination that Father’s consent was not required based on his

knowing failure to communicate and failure to financially support the Children

despite his ability to do so.

[18] Nevertheless, we are mindful that a petition for adoption is not automatically

granted following a showing that a natural parent failed to communicate or

provide support when able to do so. Once the statutory requirements are met,

the court may then look to the arrangement which will be in the best interests of

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 8 of 11 the child. In re Adoption of N.W., 933 N.E.2d 909, 914 (Ind. Ct. App. 2010),

adopted in In re Adoption of N.W., 941 N.E.2d 1042 (Ind. 2011). The purpose of

Indiana’s adoption statutes is to protect and promote the welfare of children by

providing them with stable family units. In re Adoption of D.C., 928 N.E.2d 602,

607 (Ind. Ct. App. 2010). On occasion we have observed that the relationship

between parent and child is a bundle of human rights of such fundamental

importance that adoption statutes, being in derogation of the common law,

should be strictly construed in favor of a worthy parent and the preservation of

such relationship. In re Adoption of K.S.P., 804 N.E.2d 1253, 1258 (Ind. Ct.

App. 2004). However, in evaluating the parent-child relationship, the best

interests of the child are paramount, and our main concern should lie with the

effect of the adoption on the reality of the minor child’s life. Id.

[19] Adoptive Mother presented evidence with regard to the impact of the adoption

on the Children’s lives and whether the severance of her ties with Father would

be in the Children’s best interest. Mother and Adoptive Mother married in

June of 2014 and have cooperatively raised the Children. Adoptive Mother

testified that she provided financial and emotional support for the Children. In

stark contrast to Father, Adoptive Mother testified that she has met each of the

Children’s needs, including “socks, shoes, panties, you name it. Hair supplies

to personal issue to groceries to everything. A roof over their head, food in

their belly, and water, electricity and so forth.” (Tr. Vol. II, p. 11). GAL Haag

interviewed the Children, the paternal and maternal families, and Adoptive

Mother. All three children expressed their wish to be adopted by Adoptive

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 9 of 11 Mother, with the oldest expressing that she “feels like [Adoptive Mother] is

already her mother.” (Appellant’s App. Vol. II, p. 92). GAL Haag noted that

Father had not been involved in his daughters’ lives, and she opined that the

adoption would be in the Children’s best interests. Adoptive Mother also

presented evidence that she was going to provide a safe and stable home for the

Children. While Father testified that he wanted to remain a loving presence in

the Children’s lives, as noted, Father, who has failed to communicate with the

Children since 2015 or offer financial support, is currently incarcerated and his

projected release date is June 27, 2023, at which time the Children would be

nineteen, eighteen, and sixteen years of age, respectively. Father’s projected

release date does not consider the fact that Father has unresolved dealing in

methamphetamine charges which may result in additional time in prison which

would further hamper Father’s ability to care and support the Children.

[20] In sum, we conclude that Adoptive Mother met her burden by proving by clear

and convincing evidence, that Father, without justifiable cause, failed to

communicate significantly with Children when able to do so, or that he failed to

provide support within the year that preceded the filing of the adoption

petitions. Therefore, we hold that the trial court did not err when it dispensed

with Father’s consent to the adoption. Further, we conclude that Adoptive

Mother presented evidence that the adoption is in the Children’s best interests.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 10 of 11 CONCLUSION [21] Based on the foregoing, we hold that Father’s consent was not necessary to

grant Adoptive Mother’s adoption petition, and we determine that the adoption

by Adoptive Mother was in the Children’s best interests.

[22] Affirmed.

[23] May, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-AD-403 | November 18, 2020 Page 11 of 11