In Re Guardianship and Adoption of L.J.M. (a Minor) M.M. and L.M. v. J.R. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 02 2016, 8:56 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Adam J. Sedia Robert L. Lewis
Rubino, Ruman, Crosmer & Polen Robert L. Lewis & Associates
Dyer, Indiana Gary, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re Guardianship and February 2, 2016
Adoption of L.J.M. (a Minor) Court of Appeals Case No.
45A05-1508-GU-1109
M.M. and L.M.,
Appeal from the Lake Superior
Appellants-Petitioners, Court
v. The Honorable Elizabeth F.
Tavitas, Judge
J.R., Trial Court Cause Nos.
45D03-1406-GU-19
Appellee-Respondent 45D03-1409-GU-41
45D03-1409-AD-26

Baker, Judge.

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[1] M.M. (Grandmother) and L.M. (Grandfather) (collectively, Grandparents)

appeal the trial court’s order terminating their guardianship over L.J.M. (Child)

and denying their petition to adopt her. Grandparents argue that the evidence

in the record does not support the trial court’s ruling. Finding the evidence

sufficient, we affirm.

Facts
[2] J.C.R. (Father) and A.M. (Mother) were in a romantic relationship for about

two months in 2009. Child was born as a result of the relationship on January

30, 2010. After Child’s birth, she and Mother lived with Grandparents

(Mother’s parents) in Indiana. Father lived out of state, but traveled by car

from Texas or by plane from California to visit Child five or six times a year.

Father’s visits generally lasted one to two weeks. In the summer of 2011,

Mother was having substance abuse issues and was kicked out of Grandparents’

home. Mother asked Father to care for Child. He agreed, flew to Indiana from

California to retrieve Child, and cared for her in his home for two months. At

the end of those two months, Grandmother flew to California to retrieve Child.

Father saw Child two more times between her retrieval by Grandmother and

November 2011.

[3] On November 6, 2011, Mother died. Three weeks later, on November 29,

2011, Grandparents filed a petition for temporary and permanent guardianship.

They did not mention Father in either filing; in fact, in the petition for

temporary guardianship, Grandmother attested that the identity of Child’s

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 Father was unknown. Father found out about the guardianship proceedings

and appeared at the first hearing on March 27, 2012, to contest the

guardianship. Because Father had not yet established paternity, the trial court

granted the permanent guardianship to Grandparents. On March 28, 2012,

Father filed a petition to establish paternity, and on July 10, 2012, based upon

DNA evidence, Father was adjudicated to be Child’s father and parenting time

was ordered. He visited with her about five to six times in 2012. At some point

in the summer of 2012, Father filed a motion to modify custody. The

modification hearing was originally set for November 2012, but was continued

multiple times for reasons beyond Father’s control.

[4] In summer 2013, Grandmother made a report to the Department of Child

Services (DCS) that Father had been sexually abusing Child. As a result of this

report, DCS and law enforcement began investigating the allegations. The

custody modification hearing was continued pending the results of the

investigation. A police detective who was investigating Grandmother’s report

told Father that he could not visit with Child until after the investigation was

complete. May or June of 2013 was the last time Father saw Child. After that

time, he repeatedly asked his attorney and the Guardian ad Litem when he

could see Child, and both advised him “to just wait, so [he] just waited.” Tr. p.

40. Eventually, the allegations were unsubstantiated and neither a criminal

case nor a Child in Need of Services case was ever filed. The Guardian ad

Litem assigned to the investigation concluded that no abuse had ever taken

place.

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[5] Finally, an all-day custody modification hearing was set for March 10, 2014.

The hearing was again continued, twice, at Grandparents’ request. On

September 26, 2014, Grandparents filed a petition to adopt Child, arguing that

Father’s consent to the adoption was not required. The adoption, guardianship,

and paternity cases were consolidated and set for a final hearing. The trial

court held a hearing on the guardianship and adoption cases on July 13 and 14,

2015. On July 27, 2015, the trial court entered an order finding in Father’s

favor:

5. The Court finds that Father had contact with his daughter
when Mother was alive and after her passing. Father has
resided in Los Angeles and Texas, and the Court finds that
despite the distance, Father has made great efforts to stay
in contact with his daughter.

***

9. During the investigation regarding the allegations of
abuse, the Court suspended parenting time between Father
and the child. Subsequent to the investigation, Maternal
Grandparents kept the child from Father. Father made
several efforts to contact the Maternal Grandparents and
child, and the Maternal Grandparents have denied Father
all contact with the child.

10. The Court finds that the Maternal Grandparents have not
been entirely credible and that Father has been more
credible.

***

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 ANALYSIS AND CONCLUSIONS OF LAW

***

2. The Court finds no evidence submitted that this child
would be in any harm in her father’s custody. The Court
does recognize the bond that the child has with the
Maternal Grandparents. The Court also finds that this
bond has been strengthened by the delays in these
proceedings and due to the Maternal Grandparents
thwarting Father’s efforts to maintain a relationship with
the child. Had Father simply been able to maintain his
visitation schedule with the child, the child would have
been in a better position.

***

5. The Court finds that Father did not abandon the child.

6. The Court finds that Father’s Consent is not implied and
his Consent is necessary for an adoption to proceed. The
Maternal Grandparents have failed to prove that Father
knowingly and intentionally failed to keep contact with the
child for a year and the Maternal Grandparents have failed
to prove 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. p. 30-38. The trial court terminated the guardianship and

denied the petition for adoption. Grandparents now appeal.

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 Discussion and Decision
[6] The Grandparents appeal only the denial of their petition for adoption; they do

not appeal the termination of the guardianship. When we review a 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 an opposite

conclusion. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).

On appeal, we will not reweigh the evidence, instead focusing on the evidence

and inferences most favorable to the trial court’s decision. Id. 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.

[7] Indiana Code section 31-19-9-8(a) provides, in pertinent part, as follows:

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

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 (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.

Grandparents argue that the trial court erred by finding that Father had not

failed without justifiable cause to communicate with Child for one year and that

Father had not knowingly failed to provide for support of the Child when

required to do so.

[8] Father does not deny that he did not communicate with Child for over one year

after Grandmother lodged the sexual abuse allegations. The evidence in the

record, however, readily supports the trial court’s implicit conclusion that there

was “justifiable cause” for the lack of communication. Specifically, Father

followed the advice of the investigating police officer, who told him to refrain

from communicating with Child during the investigation, and his attorney and

the Guardian ad Litem, who advised him to wait. Then, he followed the court

order preventing him from seeing Child. Once the allegations were deemed to

be unsubstantiated by all investigating authorities, he attempted to contact

Child on multiple occasions but was thwarted by Grandparents, who did not

answer his calls and did not facilitate his attempts to see or communicate with

his daughter. Tr. p. 41. Father testified that the sole reason he had not been

able to see Child was because Grandmother “wouldn’t let me . . . [h]ave any

communication with [Child].” Id. at 43.

[9] The trial court explicitly found that Father was credible and that Grandparents

were not credible; we will not second-guess that assessment. The evidence in

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 the record, together with the trial court’s assessment of the credibility of all

parties involved, readily supports the trial court’s conclusion that Father had

not failed without justifiable cause to communicate with Child for one year.

[10] As for Father’s financial support of Child, it is undisputed that he did not

provide support to Grandparents for the care of Child. We again emphasize

that Grandparents were unwilling to communicate with Father and repeatedly

failed to answer or return his calls. Additionally, Father testified that

Grandmother told him “that she didn’t need my money anymore” and refused

to give him her bank account information for direct deposit purposes. Tr. p. 34.

Given the Grandparents’ obstreperous behavior, we decline to reverse the trial

court on the basis of Father’s lack of financial support.

[11] We acknowledge, as did the trial court, that Child is significantly bonded to

Grandparents. However, we share the trial court’s conclusion that if

Grandparents had handled things differently—if they had facilitated a

relationship between Father and Child, if they had not drawn out the

litigation—then Child would have had a much stronger relationship with

Father at the close of the litigation. We decline to allow the behavior of

Grandparents in this regard to deprive Father of his constitutional right to

parent his child. Father has made great efforts to be a presence in Child’s life

and wants to be her parent. Nothing in the record leads us to second-guess the

trial court’s determination that he is entitled to do so.

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[12] The judgment of the trial court is affirmed.

Bradford, J., and Pyle, J., concur.

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