Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Dec 28 2012, 10:05 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
KRISTINA L. LYNN ELDON E. STOOPS, JR.
Lynn and Stein, P.C. North Manchester, Indiana
Wabash, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE ADOPTION OF C.H., )
)
M.W., )
)
Appellant-Respondent, )
)
vs. ) No. 85A02-1205-AD-449
)
B.H. and V.H., )
)
Appellees-Petitioners. )
APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen III, Judge
Cause No. 85C01-1105-AD-6
December 28, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
M.W. (“Mother”) appeals the trial court’s post-hearing order concluding that
Mother’s consent to the adoption of her child, C.H., is not required under Indiana Code
Section 31-19-9-8. Mother presents a single issue for review, namely, whether the
evidence is sufficient to support the trial court’s determination.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother gave birth to C.H. on October 21, 2008. Mother was not married to C.H.’s
putative father, who died a few months before C.H. was born. B.H. and V.H. (“the
Grandparents”) are the putative father’s parents.
Mother, her boyfriend, and C.H. lived with the Grandparents on at least one
occasion in C.H.’s first year. In March 2010, C.H. was placed with the Grandparents in a
Child in Need of Services (“CHINS”) proceeding, and Mother was ordered to pay
twenty-five dollars weekly child support. Mother never paid support as ordered, either
through the court or directly to the Grandparents. Mother initially had supervised
visitation with C.H., which was eventually changed to unsupervised visitation in June
2011. Visitation ended in August when Mother turned herself in on an arrest warrant for
conversion.
On May 20, 2011, the Grandparents filed a verified petition to adopt C.H. and a
request that the court waive Mother’s consent under Indiana Code Section 31-19-9-8.1
On February 22, 2012, the court held a hearing on the request to waive parental consent.
1
Mother has not included a copy of the adoption petition or the request to waive parental consent
in the record on appeal.
2
And on March 6, the court entered its order, concluding that Mother’s consent to C.H.’s
adoption was not required (“Order”). The Order provides, in relevant part:
[The Grandparents] have proven by clear, cogent and indubitable evidence
that the Natural Mother’s consent is not required under I.C. [§] 31-19-9-
8(2)(B).
The Court does not believe that the Natural Mother was not aware that she
was ordered to pay child support in a related CHINS and paternity
proceeding. The Court takes judicial notice of 85C01-1002-JC-2 and
85C01-1001-JP-2.
The Natural Mother is claiming she is disabled and seeking [S]ocial
[S]ecurity. She has been denied but testified she has hired an attorney to
further pursue her claim. Significantly, her own Exhibit A reflects on page
2 that she has self-employment income of $200.00 per moth for house
cleaning from January 2010, continuing (to at least 12/7/10). Mom is
apparently able to perform some physical labor. She testified she has not
otherwise sought employment because she was advised not to while she
pursues disability.
The Natural Mother has paid zero support. She has made token efforts to
otherwise offer support by supplying diapers on one occasion and leftover
food following supervised visitation.
When the Natural Mother needs money, she has been able to find it. She
needed bus fare to attend a funeral, and she found it. She need [sic] to pay
fees towards a conversion charge in Huntington, she found it. Natural
Mother has no incentive to seek any employment since her needs were
being met by public assistance and others. The Court recognizes Natural
Mother may not have been able to pay the ordered, but modest sum of
$25.00 per week, however, she could and should have paid something.
Instead, and inaccurately, she claims the disability benefits she procured on
behalf of the child as a result of his father’s death, a death benefit which
was transferred to the [Grandparents] when they received custody, should
be credited to her.
Further, other than her self-serving testimony as to her specific disability
she presented no evidence that she is, in any way, disabled.
Accordingly, the adoption may proceed without the Natural Mother’s
consent.
3
Appellant’s App. at 5-6. Mother filed a motion to correct error. The trial court denied
that motion and determined that the Order is a final appealable judgment.2 Mother now
appeals.
DISCUSSION AND DECISION
Mother contends that the trial court erred when it concluded that her consent to the
adoption of C.H. is not required pursuant to Indiana Code Section 31-19-9-8. When
reviewing the trial court’s ruling in an adoption proceeding, we will not disturb that
ruling unless the evidence leads to but one conclusion, and the trial court reached the
opposite conclusion. In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App.
2004). We will not reweigh the evidence, but instead will examine the evidence most
favorable to the trial court’s decision together with reasonable inferences drawn
therefrom, to determine whether sufficient evidence exists to sustain the decision. Id.
The decision of the trial court is presumed to be correct, and it is the appellant’s burden to
overcome that presumption. Id.
The most protected status in any adoption proceeding is that of the natural parent.
Stout v. Tippecanoe Co. Dep’t of Public Welfare, 182 Ind. App. 404, 395 N.E.2d 444,
449 (Ind. Ct. App. 1979). Recognizing the fundamental importance of the parent-child
relationship, our courts have strictly construed the statute to preserve that relationship.
Id. However, even the status of natural parent, though a material consideration, is not
one which will void all others, and under carefully enumerated circumstances, the statute
allows the trial court to dispense with parental consent and allow adoption of the child.
2
Mother did not include a copy of the order denying her motion to correct error in the record on
appeal.
4
Indiana Code Section 31-19-11-1 provides that the trial court “shall grant the
petition for adoption and enter an adoption decree” if the trial court hears evidence and
finds, in part, that “the adoption requested is in the best interest of the child” and “proper
consent, if consent is necessary, to the adoption has been given.” According to Indiana
Code Section 31-19-9-8(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:
***
(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.
Thus, the Grandparents were required to prove by clear and convincing evidence that
Mother’s consent was not required.3 See In re Adoption of T.W., 859 N.E.2d 1215, 1217
(Ind. Ct. App. 2006).
Mother contends that the Grandparents did not prove by clear and convincing
evidence that her consent was not required for failing to pay child support. Specifically,
she argues that the Grandparents did not prove that she knowingly failed to provide for
the care and support of C.H. when able to do so. But the evidence shows that Mother has
been unemployed since before C.H. was born and has not attempted to find regular
3
The Grandparents argue, and we agree, that the trial court applied an incorrect burden in the
Order when it concluded that the Grandparents had proved by “clear, cogent and indubitable evidence”
that Mother’s consent to the adoption is not required. Appellant’s App. at 5. But because that burden is
even higher than the correct clear and cogent evidence burden, see In re Adoption of T.W., 859 N.E.2d at
1217, the error is harmless.
5
employment because she was applying for disability. But in her 2010 disability
application, she stated that she was disabled but was self-employed helping a friend clean
a house from January through at least December 7, 2010. She was paid $200 per month
for that, which she used to pay her rent. Further, the trial court found that, “[w]hen [she]
needs money, she has been able to find it.” Appellant’s App. at 6. For instance, she
brought toys, diapers, and food items to C.H. during visitations, and she obtained bus fare
to go to a funeral in Ohio and to eventually return to Indiana. The trial court determined
that she could have paid some amount, even if not the full twenty-five dollars weekly, for
child support but failed to do so.
Still, Mother maintains that the Grandparents did not meet their burden under
Indiana Code Section 31-19-9-8(a). In support, she cites case law showing that the
ability to buy personal items such as cigarettes and gas is insufficient to show an ability
to pay twenty dollars weekly child support. See In re Adoption of H., 439 N.E.2d 1376,
1377 (Ind. Ct. App. 1982). She also cites Snyder v. Shelby County Department of Public
Welfare, where the court held that a mother’s gifts to her children did not show a willful
failure to pay child support because those gifts were in anticipation of the children’s
return to her home. 418 N.E.2d 1171, 1181 (Ind. Ct. App. 1981). Similarly, Mother’s
failure to pay was due partly to her period of incarceration and term of unemployment.
Id. at 1182. Finally, Mother cites In re Adoption of N.W., where the court held that proof
of employment and income are not the only components in determining a parent’s ability
to pay child support. 933 N.E.2d 909, 913 (Ind. Ct. App. 2010), trans. denied.
6
While each of the cases Mother cites involves one or more factual elements
similar to the present facts, we must consider the totality of the circumstances when
determining her ability to pay support. See In re Adoption of K.F., 935 N.E.2d 282, 288
(Ind. Ct. App. 2010), trans. denied. And we note initially that here, the trial court clearly
found Mother not credible. Mother initially testified at the hearing that she was unaware
that she was supposed to pay support or that her ability to pay support would be an issue
at the hearing, but she later conceded both points. She testified about a tumor on her
spine, tingling in her legs, and back pain, but did not bring medical records or other
documentation to support her contention that she is in any way disabled. Moreover, she
testified that when she is with C.H. she feels no pain. And she does not explain how,
with her condition, she was able to work cleaning a house in 2010 for $200 per month,
the exact amount of her rent.
The trial court found that Mother is able to perform some physical labor but is
making no attempt to work because her “needs were being met by public assistance and
others.” Appellant’s App. at 6. And despite Mother’s self-described disability and
medical issues, she had walked to the courthouse for the trial wearing high heels, shoes
she later conceded that the doctor would “absolutely not” recommend that she wear.
Transcript at 45. The trial court found that Mother could have provided some support,
even if not the full twenty-five dollars per week, but did not. As a result, the court
concluded that Mother had knowingly failed to provide support when able to do so.
While we may not have reached the same conclusion at the trial level, we cannot say that
the evidence leads to the opposite conclusion. See In re M.A.S., 815 N.E.2d at 218.
7
Mother has not shown that the evidence is insufficient to support the trial court’s
conclusion that her consent to the adoption is not required under Indiana Code Section
31-19-9-8(a)(2)(B).
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
8