FILED
Sep 23 2016, 9:32 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Thomas C. Allen Timothy E. Stucky
Fort Wayne, Indiana Stucky, Lauer & Young, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Adoption of: September 23, 2016
J.S.S. and K.N.S., Court of Appeals Case No.
02A04-1603-AD-545
Rayburn and Beth Robinson,
Appeal from the Allen Superior
Appellants, Court
v. The Honorable Charles F. Pratt,
Judge
M.R.S., Trial Court Cause No.
02D08-1406-AD-86 and 87
Appellee.
Bailey, Judge.
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Case Summary
[1] B.R. and R.R. (“Foster Parents”) petitioned to adopt J.S.S. and K.N.S.
(“Children”) without the consent of M.S. (“Father”). 1 The trial court found
Foster Parents had not established the clear and convincing evidence necessary
to dispense with parental consent and Foster Parents filed a motion to correct
error, which was substantively denied. Appealing a negative judgment, Foster
Parents present a sole issue: whether the trial court’s decision is contrary to
law. We affirm.
Facts and Procedural History
[2] K.N.S. was born in 2006 and J.S.S. was born in 2008. Father and Mother
separated in 2008 but were not divorced until several years later. Mother
moved away without informing Father of Children’s location, and apparently
led Children to believe that her boyfriend was their biological father.
[3] In 2009, Mother was incarcerated, but Father was not informed as to where
Children were living. In 2010, Father was incarcerated. After his release from
incarceration, he became aware that Mother and Children were residing in Fort
Wayne, Indiana, but he did not have an address. Father moved to North
Vernon, Indiana.
1
K.S. (“Mother”) consented to adoption by Foster Parents.
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[4] In mid-November of 2012, an Allen County Department of Child Services
(“DCS”) caseworker informed Father that Children were in DCS custody.
Father appeared for an initial Child in Need of Services (“CHINS”) hearing on
November 26, 2012. The CHINS court found that Father was paying child
support but had not seen Children since 2009. The court entered an order
regarding visitation:
Visitation with the parents shall occur only upon the
recommendation of the children’s therapist, Dr. Mihlbauer, the
Department of Child Services and the Guardian Ad Litem.
Upon recommendation visitation shall be supervised therapeutic
visitation until further order of the Court.
(App. at 24.)
[5] On January 22, 2013, the CHINS court entered an order providing in relevant
part: “The Court now orders that [Father] shall have no visitation with
[Children] as visitation would be contrary to the best interests of the children.”
(App. at 29.) On August 12, 2013, the CHINS court ordered that Father was to
have supervised visitation “as recommended by the children’s
psychologist/therapist.” (App. at 56-57.)
[6] On September 30, 2013, the CHINS court entered a permanency plan order
contemplating a return of custody to Father and providing in part:
The modification of custody is subject to the development of a
relationship with his children; meeting the children’s therapist;
and the father securing safe, sustainable and independent
housing.
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(App. at 60.)
[7] On March 24, 2014, the CHINS court conducted a review hearing and entered
an order stating in part:
The court reminds the parties of this Court’s Order of September
30, 2013, in which the father was ordered to meet with the
children’s therapist. To date that has not been done. As reported
by the guardian ad litem the children do not yet know the
Respondent. He has not had contact with them for over four
years. Thus, the children, having experienced trauma, must be
given therapeutic introduction to the children [sic] before any
further modification of placement can occur.
(App. at 66.)
[8] Father contacted Dr. Mihlbauer in April of 2014. A supervised visit was
scheduled for June 26, 2014. However, on June 25, 2014, a permanency
hearing was conducted at which Dr. Mihlbauer provided a recommendation of
no visitation. At the conclusion of the hearing, the court ordered that Father
have no visitation. The permanency plan changed from reunification to
termination of parental rights and DCS was authorized to petition for such.
[9] On June 25, 2014, during the pendency of the CHINS proceedings, Foster
Parents petitioned to adopt Children and Mother consented to the adoption.
On September 30, 2014, Father filed his objections to the adoptions. After a
contested hearing, the trial court determined that Foster Parents had failed to
establish by clear and convincing evidence that Father’s consent was
unnecessary. The petitions for adoption were dismissed. Foster Parents filed a
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motion to correct error. After a hearing, the trial court corrected scrivener’s
error but denied the motion to correct error in substance. This appeal ensued.
Discussion and Decision
Standard of Review
[10] Indiana Code Section 31-19-9-8(a)(2) obviates the necessity of consent to
adoption by a parent who, for at least one year, has failed to communicate
significantly with his or her child, when able to do so. Foster Parents were
required to prove by clear and convincing evidence that Father’ consent was not
required. In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006).
Where a party has the burden of proof and an adverse judgment is entered, if
the party pursues an appeal, he or she does so from a negative judgment. J.W.
v. Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 481 (Ind. Ct. App.
1998). A party appealing from a negative judgment must show that the
evidence points unerringly to a conclusion different from that reached by the
trier of fact. Id. at 481-82. We will reverse a negative judgment only if the
decision of the trial court is contrary to law. Id. at 482. In determining whether
a negative judgment is contrary to law, we do not reweigh the evidence but will
examine the evidence most favorable to the prevailing party together with
reasonable inferences drawn therefrom. Id.
[11] Similarly, in decisions relating to adoption, we will presume the trial court’s
decision is correct. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). In
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other words, we will not disturb the court’s ruling unless the evidence leads to
but one conclusion and the trial judge reached the opposite conclusion. Id.
Analysis
[12] Indiana Code Section 31-19-9-8(a) provides that consent to adoption is not
required from:
(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.
Because Father contested the adoptions, Foster Parents as the petitioners were
required to prove by clear and convincing evidence that Father’s consent was
not required. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010),
trans. denied; In re Adoption of M.A.S., 815 N.E.2d 216, 219 (Ind. Ct. App. 2004).
The provisions of Indiana Code Section 31-19-9-8(a) are disjunctive; as such,
either provides independent grounds for dispensing with parental consent. In re
Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Regardless of which provision
is relied upon, adoption is to be granted only if it is in the best interests of the
child. Id. at 974. Here, Father regularly paid child support for Children.
Accordingly, Foster Parents alleged that consent was not required solely on
grounds of failure to communicate significantly when able to do so.
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[13] Foster Parents acknowledge that Children did not know Father and that Father
could not communicate with Children while court orders prohibited the
contact. However, Foster Parents insist that Father could have had visitation
had he acted more promptly to contact Children’s therapist. They direct our
attention to In re O.R., where our Indiana Supreme Court affirmed an order
dispensing with a father’s consent to adoption. The father, incarcerated on a
domestic battery conviction, claimed that he had justifiable cause when he
failed to communicate with his child because the foster parents did not honor
his request to bring the child to the prison for visitation. 16 N.E.3d at 974. At
the time visitation was denied, the protective order was in effect. After its
expiration, the father did not pursue mail communication with O.R. through
the court or through petitioners’ counsel. Id. On appeal, the Court reviewed
the evidence and concluded: “These facts do not demonstrate that Father was
unable to communicate with O.R., but only that he chose not to investigate
reasonable means of doing so.” Id.
[14] According to Foster Parents:
In O.R. the Petitioners were relieved of their obligation to show
that the father was able to communicate with the child because
he made no attempts to even try to communicate with the child.
That is exactly what happened in the case at bar. The father’s
one and only means of maintaining significant contact was to
contact the therapist to begin introductory therapy with the
children.
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Appellants’ Br. at 14. We do not read the O.R. decision so broadly. The
petitioners were not relieved of a burden of proof. Rather, the Court found that
they had presented sufficient evidence:
Based on the record before us there was clear and convincing
evidence before the trial court that while O.R. was “in the
custody of another person [and] for a period of at least one (1)
year [Father] … fail[ed] without justifiable cause to communicate
significantly with [O.R.] when able to do so.”
In re O.R., 16 N.E.3d at 974. Here, by contrast, the trial court found that Foster
Parents had not met their burden of proof. We will not disturb the ruling unless
all the evidence leads to a contrary conclusion.
[15] The evidence most favorable to the trial court’s determination is that Father
never gained the ability to contact Children. He did not know where Children
were living until a DCS caseworker contacted him. Although Father appeared
at hearings in the CHINS matter, he was not provided access to Children. He
was afforded a potential route to visitation, but no onus was upon the therapist
to authorize visitation even after contact. Indeed, after contact was made, the
therapist did not recommend visitation.
[16] DCS caseworker Dwila Lewis-Hess testified:
Question: And what was the Court’s orders as far as visitation?
Lewis-Hess: The initial order, the Department recommended
supervised visitation with [Father.]
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Question: And through what department was that supervised
visitation?
Lewis-Hess: I can’t remember, to be honest with you. I don’t
think – a referral was actually never made for visitation.
(Tr. at 34.)
[17] Based upon their assumption that Father delayed for one and one-half years,2
Foster Parents argue that Father should be held accountable for a lack of
diligence. However, our review is not one of whether a parent acted promptly
or reasonably. Foster Parents were required to show, by clear and convincing
evidence, Father failed to communicate “when able to do so.” I.C. § 31-19-9-8.
Our review is limited to whether there was any evidence of record to support
the trial court’s determination that Foster Parents failed to establish that Father
had such ability. J.W., 697 N.E.2d at 481. CHINS orders and caseworker
testimony support the trial court’s order.
2
This assumption highlights caseworker testimony most favorable to Foster Parents, asserting that Father
delayed from November 2012 to April 2014. However, the time lapse between the September 30, 2013 order
and the April 2014 contact is less than seven months.
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Conclusion
[18] The trial court did not clearly err in determining that Foster Parents failed to
meet their burden of proof to obviate the necessity of Father’s consent to the
proposed adoptions.
[19] Affirmed.
Riley, J., and Barnes, J., concur.
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