In Re the Adoptions of D.A.M.S. and N.D.S., N.S. and J.H. v. J.S. and L.S. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 08 2017, 9:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES
Nancy A. McCaslin Elizabeth A. Bellin
Elkhart, Indiana Elkhart, Indiana
Heidi J. Cintron
Elkhart, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Adoptions of November 8, 2017
D.A.M.S. and N.D.S., Court of Appeals Case No.
20A04-1705-AD-1108
N.S. and J.H.,
Appeal from the Elkhart Circuit
Appellants-Respondents, Court
v. The Honorable Michael A.
Christofeno, Judge
J.S. and L.S., The Honorable Deborah A.
Domine, Magistrate
Appellees-Petitioners.
Trial Court Cause No.
20C01-1605-AD-40 & 20C01-1605-
AD-41

Riley, Judge.

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 STATEMENT OF THE CASE
[1] Appellants-Respondents, N.S. (Father) and J.H. (Mother) (collectively,

Parents), appeal the trial court’s Order on Petitions for Adoption and Parental

Consent, granting the adoption of their two minor children by Appellees-

Petitioners, J.S. (Adoptive Father) and L.S. (Adoptive Mother) (collectively,

Adoptive Parents).

[2] We affirm.

ISSUE
[3] In separate briefs, Father raises two issues on appeal while Mother raises one

issue. We find the following single issue to be dispositive: Whether the trial

court erred in granting Adoptive Parents’ petitions for adoption.

FACTS AND PROCEDURAL HISTORY
[4] In 2006, Parents met, and in 2007, they began cohabiting. They are the

biological parents of N.D.S., born April 23, 2009; and D.S., born August 26,

2010 (collectively, Children). Mother has two additional children from prior

relationships: A.S. and K.H., born in 1998 and 2000, respectively. Parents

maintained an on-again/off-again relationship until 2016.

[5] In April of 2011, an incident of domestic violence between Father, Mother, and

a third party—during which a firearm was discharged—resulted in a criminal

investigation. At the time, the four children were not present, but the police

contacted the Elkhart County Office of Department of Child Services (DCS).

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 The children were removed from Parents’ home and placed in the care of their

maternal aunt and her husband—i.e., Adoptive Parents. The children were

subsequently adjudicated as Children in Need of Services (CHINS), and

Parents were court ordered to comply with services as a condition of reunifying

with the children. Over the next two years, Parents engaged in visitation with

the four children and participated in some services as ordered. However,

Father had several run-ins with law enforcement as a result of drugs, and there

were ongoing concerns regarding his domestic abuse of Mother, which Parents

never addressed through therapy. Instead, “[t]here was a lot of deception on

those issues.” (Tr. Vol. II, p. 245). Moreover, despite a no-contact order

between Father and Mother, Mother allowed Father to be present during her

time with the children, which resulted in the children’s removal on two

additional occasions when DCS had attempted trial home visits.

[6] After two years with no progress by Parents in remedying the conditions that

resulted in the children’s removal, DCS had to consider permanent options for

the children’s care. In lieu of having their parental rights terminated, Parents

consented to a guardianship arrangement, whereby they could eventually

petition to have the guardianships terminated and their custodial rights

restored. Accordingly, on July 18, 2013, Adoptive Parents were granted

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 guardianship of A.S. and the Children. 1 At that time, DCS closed the CHINS

case and discontinued its involvement with the family.

[7] Subsequent to the guardianship order, Father was in and out of incarceration:

he was found in possession of marijuana, he violated probation with “dirty

drop[s],” and he perpetrated domestic violence against Mother. (Tr. Vol. II, p.

59). Nevertheless, Parents’ relationship persisted. Mother maintained

employment and stable housing, and Father also worked between his stints of

incarceration; however, neither parent paid any support to Adoptive Parents for

the Children’s care during the guardianship. Rather, despite the fact that the

guardianship order granted Adoptive Parents the right to claim the Children as

dependents for tax purposes, in 2013, 2014, and 2015, Father claimed both

Children on his tax returns, and Mother did the same for A.S. and K.H. On

their tax returns, Parents declared that their respective dependents had lived in

their home for the entirety of the years claimed. Parents acknowledge that the

last time they saw or spoke with the Children was July 18, 2013—the date that

the guardianship was granted. Thereafter, Father never made any effort to visit

or otherwise contact the Children, whereas it is unclear to what extent Mother

tried to maintain a relationship with the Children but was prevented from doing

so by Adoptive Parents. It is undisputed that neither Father nor Mother ever

1
Although K.H. lived with Adoptive Parents for a majority of the CHINS case, it was determined that it
would be best for A.S. and K.H. to have separate placements due to their constant conflict. Thus, K.H.’s
paternal aunt became K.H.’s guardian for approximately a year and a half until K.H.’s biological father
moved to terminate the guardianship and obtained custody. Mother has regular contact with K.H.

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 petitioned the court for a parenting time order or for termination of the

guardianship.

[8] On May 31, 2016, Adoptive Parents filed petitions to adopt the Children, which

they amended on October 21, 2016. 2 In their petitions, Adoptive Parents

alleged that Parents’ consent to the adoption was not required because Parents

had not provided any support for the Children for more than one year and had

not had any significant communication with the Children for more than one

year. Adoptive Parents also argued that Parents’ consent to the adoption was

unnecessary because they are each “unfit to be a parent and it is in the

[Children’s] best interest for the court to dispense with [their] consent.”

(Appellant-Father’s App. Vol. II, p. 128). Adoptive Parents contended that

they satisfied the statutory criteria for adoption, including by being “fit and

proper persons to care for, maintain, support, and educate” the Children.

(Appellant-Father’s App. Vol. II, p. 35).

[9] On July 1, 2016, Mother filed notice of her intent to contest the adoption, and

on July 12, 2016, Father did the same. On July 26, 2016, Adoptive Parents

filed a home study conducted by Adoption Resource Services, Inc., which

recommended that the adoption be finalized. On December 16, 2016, February

2
On August 28, 2016, Adoptive Parents adopted A.S. with A.S.’s consent (as A.S. had reached the age of
majority and parental consent was not required).

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 6, 2017, and April 10, 2017, the trial court conducted a hearing on Adoptive

Parents’ petitions.

[10] On April 17, 2017, the trial court issued its Order on Petitions for Adoption and

Parental Consent. The trial court found that Parents failed to provide support

for the Children throughout the guardianship, but because Parents “seemed

legitimately confused over this issue[,]” the trial court declined to find that

Parents had “knowingly” failed to do so. (Appellant-Father’s App. Vol. II, p.

18). However, the trial court found that Parents had failed to communicate

significantly with the Children for “half or more than half of the [C]hildren’s

lives” with “no excuse for that failing.” (Appellant-Father’s App. Vol. II, p.

21). The trial court also found that Parents are “unfit to parent their

[C]hildren.” (Appellant-Father’s App. Vol. II, p. 24). Based on these findings,

the trial court determined that parental consent for the adoption was not

required, and the trial court further concluded that adoption would serve the

Children’s best interests. On April 28, 2017, the trial court issued a Decree of

Adoption.

[11] Parents now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION
I. Standard of Review

[12] When reviewing a trial court’s ruling in an adoption case, “we presume that the

trial court’s decision is correct, and the appellant bears the burden of rebutting

this presumption.” In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). In

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 fact, in matters of family law, the trial court is generally entitled to

“considerable deference” owing to the recognition that the trial court “is in the

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

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

their children.’” Id. at 973 (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938,

940 (Ind. 2005)). Our court will not disturb the ruling of the trial court “unless

the evidence leads to but one conclusion and the trial judge reached an opposite

conclusion.” Id. Thus, we neither reweigh evidence nor assess the credibility of

witnesses, and we consider the evidence most favorable to the trial court’s

decision. Id. Furthermore, the trial court’s findings and judgment will only be

set aside if they are clearly erroneous. Id. “A judgment is clearly erroneous

when there is no evidence supporting the findings or the findings fail to support

the judgment.” Id. (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.

2009)).

II. Consent

[13] Parents challenge the trial court’s judgment granting Adoptive Parents’

petitions to adopt the Children in the absence of parental consent. Indiana

Code section 31-19-9-1(a) provides, in relevant part, that “a petition to adopt a

child who is less than eighteen (18) years of age may be granted only if written

consent to adoption has been executed by . . . [t]he mother of a child born out

of wedlock and the father of a child whose paternity has been established.”

Nevertheless, Indiana’s adoption statute delineates certain exceptions where an

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 adoption may proceed without parental consent. Specifically, as relevant to the

case at hand, consent is not required by:

****
(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:
(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.

Ind. Code § 31-19-9-8(a). “The provisions of this section are disjunctive, and

any one provides independent grounds for dispensing with parental consent.”

In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).

[14] Adoptive Parents had the burden of establishing by clear and convincing

evidence that Parents’ consent was not required. Id. 3 In their petition for

adoption, Adoptive Parents alleged that consent was not required based on all

of the aforementioned statutory bases. The trial court determined that it could

not dispense with parental consent based on a failure to provide for the care and

3
Father contends that Adoptive Parents had to prove that consent was not required “by clear and
indubitable evidence”; however, this standard has long been abrogated. (Appellant-Father’s Br. p. 20); see In
re Adoption of S.W., 979 N.E.2d at 640.

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 support of the Children because Parents had not knowingly failed to provide

such. Nonetheless, the trial court found that consent was not required because

Adoptive Parents had sufficiently proven that Parents had, without justifiable

cause, failed to communicate with the Children for at least one year; that

Parents are unfit to parent the Children; and adoption is in the Children’s best

interests.

[15] Parents concede that they did not have significant communication with the

Children for at least one year, but they now claim that this failure was justified

because Adoptive Parents thwarted their attempts to maintain a relationship

with the Children. Although the burden of proof in an adoption proceeding

rests with the prospective adoptive parents, Indiana Code section 31-19-9-

8(a)(2)(A) clearly establishes that the non-custodial parent is responsible for

maintaining a relationship with his or her child in order to exercise the right to

consent to an adoption. Indeed, the purpose of this statutory provision “is to

foster and maintain communication between non-custodial parents and their

children, not to provide a means for parents to maintain just enough contact to

thwart potential adoptive parents’ efforts to provide a settled environment to the

child.” In re Adoption of S.W., 979 N.E.2d at 640 (internal quotation marks

omitted). Efforts of the prospective adoptive parent “to hamper or thwart

communication between a [non-custodial] parent and child are relevant in

determining the ability to communicate” and should be weighed in the non-

custodial parent’s favor. E.W. v. J.W., 20 N.E.3d 889, 896-97 (Ind. Ct. App.

2014), trans. denied.

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[16] According to Mother, Adoptive Parents “cut off communications” after the

guardianship was established. (Appellant-Mother’s Br. p. 19). Prior to the

guardianship, Mother insisted that she had engaged in regular visits with the

Children and had provided the Children with gifts and taken them on outings,

but her post-guardianship requests to see the Children or deliver gifts were

ignored. Mother also contended that she persistently asked her mother (who is

also the mother of Adoptive Mother), to request visits with Adoptive Mother on

Mother’s behalf. Mother claimed that she attempted to contact Adoptive

Mother, in one way or another, “[a]t least” once a month between 2013 and

2015 and did not cease communicating until Adoptive Parents filed their

petitions for adoption. (Tr. Vol. II, p. 172). Mother also now relies on the fact

that she maintained a relationship with K.H. throughout K.H.’s guardianship

and subsequent placement in her biological father’s custody as evidence of the

fact that Mother would have made the same efforts to maintain communication

with the Children.

[17] As to Father, the record is clear that he never made any effort to communicate

with or visit the Children during the guardianship because he “don’t got [sic]

their phone number. And I don’t got [sic] their address. And I’m not friend [sic]

with them on Facebook.” (Tr. Vol. II, p. 73). In fact, it was not until just prior

to the hearing on Adoptive Parents’ adoption petitions that Father sent a letter

to inquire about the Children, but “conduct after the petition to adopt was filed

is wholly irrelevant to the determination of whether the parent failed to

significantly communicate with the child for any one year period.” In re

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 Adoption of S.W., 979 N.E.2d at 640 n.3 (internal quotation marks omitted).

Yet, on appeal, he argues that “he was justified in the lack of significant

communication because [Adoptive Parents] had made communication difficult,

if not impossible for [Father].” (Appellant-Father’s Br. p. 24). Father

complains that, unlike during DCS’s involvement in the CHINS case, visitation

during the guardianship was not facilitated. Father also testified that, at the

time the guardianship was established, Adoptive Parents had informed him “he

would not see the [C]hildren again.” (Appellant-Father’s Br. p. 25).

[18] During the hearing, Adoptive Parents conversely testified that they never

prevented Parents from sending or dropping off gifts for the Children, but they

never sent anything—i.e., gifts, birthday or Christmas cards, letters, clothing,

etc. Adoptive Parents denied that they cut off Mother’s communication, and

Adoptive Parents could not recall Mother or Father ever requesting to see the

Children after the guardianship was established. Adoptive Parents also

conceded that they had significant safety concerns about Father and would not

have granted an unsupervised visitation request for Mother in light of the fact

that Father would also have been present. Adoptive Parents indicated that they

wanted Parents to establish stability before having access to the Children.

[19] The trial court “considered the conflicting testimony of family members over

whether or not contact between [Father] and [Mother] and their [C]hildren was

blocked by [Adoptive Parents], or whether [Mother] and [Father] simply did

not call.” (Appellant-Father’s App. Vol. II, p. 20). Rather than making a

credibility determination, the trial court concluded

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 that it does not matter which of the family members is telling the
truth. And it does not matter if [Father] did or did not have
[Adoptive Parents’] phone number. It does not matter because
even if [Father’s] lack of communication could be excused by his
not having [Adoptive Parents’] phone number, and even if
[Adoptive Parents] thwarted [Mother’s] attempts to
communicate with her [C]hildren, both [P]arents could have
sought visitation through a court under the [g]uardianship case
that placed the [C]hildren in [Adoptive Parents’] home. Both
[P]arents testified that they did not even attempt to petition a
court for visitation. Both testified that they never attempted to
have the [g]uardianship terminated. Therefore, the [c]ourt finds
that [Father] and [Mother] have failed to communicate
significantly with [the Children] for three and a half years, which
is half or more than half of the [C]hildren’s lives. They have no
excuse for that failing.

(Appellant-Father’s App. Vol. II, pp. 20-21). We agree with the trial court.

[20] Our supreme court has held that in instances of an apparent inability to

communicate with a child, the non-custodial parent has a duty “to investigate

reasonable means of doing so.” In re Adoption of O.R., 16 N.E.3d at 974. The

conduct of the prospective parents in thwarting communication is relevant, but

it is not dispositive; the onus is on the non-custodial parent to attempt

significant communication. Here, Parents have pled ignorance as to their

ability to petition the court for recourse against Adoptive Parents’ purported

thwarting activities, but we are unpersuaded by such a claim. See id. (noting

that the non-custodial father could have initiated contact with petitioners’

counsel or the court to obtain communication with his child and finding no

merit in the father’s claimed unfamiliarity with the court system in light of his

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 criminal history). Parents were clearly aware that they maintained certain

parental rights because they consented to a guardianship in lieu of having those

rights terminated. Parents were further aware of their ability to ask the court

that the guardianship be terminated in light of their testimony that K.H.’s

biological father had successfully terminated her guardianship and obtained

custody. With handwritten letters and even in the absence of legal

representation, Parents successfully notified the court that they wished to

contest Adoptive Parents’ adoption petitions, which only serves to dilute their

claim that they did not know they could seek court intervention. It was the

Parents’ duty to investigate the available channels for communication, but the

record is clear that they expended minimal effort in the fight for their Children

and did not avail themselves of the available means. Therefore, the trial court

properly concluded that Parents failed, without justifiable cause, to significantly

communicate with the Children for at least one year such that their consent to

the adoption was not required. 4

III. Best Interests & Suitability of Adoptive Parents

[21] Even where consent is not required, the trial court may only grant a petition for

adoption if the adoption is in the best interest of the child and if the prospective

4
Because we find that Parents’ consent was not required based on their failure to communicate, we need not
address either Parents’ claim that the trial court erroneously found that they were unfit or Adoptive Parents’
claim that the trial court erroneously found that Parents had not knowingly failed to provide support.
Furthermore, we note that Father has claimed that the trial court abused its discretion by admitting evidence
of his criminal history that was irrelevant as to his fitness as a parent. As we have determined that Father’s
consent was not required based on his failure to communicate, we need not address his claim.

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 adoptive parents “are of sufficient ability to rear the child and furnish suitable

support and education,” among other factors. I.C. § 31-19-11-1(a)(1)-(2). “The

primary concern in every adoption proceeding is the best interests of the child.”

In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). Although the

“adoption statute does not provide guidance for which factors to consider when

determining the best interests of a child in an adoption proceeding,” our courts

“have noted that there are strong similarities between the adoption statute and

the termination of parental rights statute in this respect.” Id. Thus, the trial

court must consider “the totality of the evidence to determine the best interests

of a child.” Id. “Relevant factors include, among others, a parent’s historical

and current inability to provide a suitable environment for the child; the

recommendations of the child’s case worker or guardian ad litem; and the

child’s need for permanence and stability.” Id. at 1281-82 (internal citations

omitted).

[22] Mother contends that the Children’s best interests require reversal of the

adoption because she “has a clean home and a stable job and can care for all of

her children.” (Appellant-Mother’s Br. p. 24). She also argues that this

“adoption not only severs the parent child relationship between [her] and [the

Children], but it also severs the sibling group” as K.H. is in the custody of her

biological father. (Appellant-Mother’s Br. p. 23). She posits that it is in the

Children’s best interest “to have a relationship and bond with their entire family

unit.” (Appellant-Mother’s Br. p. 24). Similarly, Father asserts that the

adoption should be reversed for the Children’s best interests because he “had

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 supported himself earlier and the record does not show he would be unable to

do so when he was no longer incarcerated.” (Appellant-Father’s Br. p. 29).

Furthermore, Father “was taking courses to make him a better person after

incarceration.” (Appellant-Father’s Br. p. 30).

[23] In finding that adoption would serve the Children’s best interests, the trial court

relied, in part, on the opinions of both the DCS caseworker who handled the

family’s CHINS case and the Children’s former court-appointed special

advocate (CASA). The DCS caseworker testified at the adoption hearing that

Parents never addressed the domestic violence issues that resulted in the

Children’s initial removal, and, instead, Parents were deceptive and continued

to maintain an unstable relationship. The DCS caseworker claimed that she

refused to meet with Father alone because of his hostility. The DCS

caseworker also remarked on instances of Father’s inappropriate parenting

style—such as his references to N.D.S. as “Little Sexy” and D.S. as “Little

N*****.” (Tr. Vol. II, p. 243). The CASA testified at the adoption hearing

regarding her disagreement with returning the Children to Parents’ care based

on their lack of progress. Although she did not “observe the kind of—of easy

nurturing and interaction that goes on, usually[,] between parents and children”

in the Children’s interactions with Mother, the CASA stated that, with

Adoptive Parents, “there’s always patience, there’s conversation, there is gentle

discipline when it’s necessary, encouragement, umm, just conversation and

nurturing.” (Tr. Vol. III, p. 37).

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[24] In addition, the trial court cited the opinion of the social worker who completed

the adoption home study. The social worker recommended the adoption would

be in the Children’s best interests as Adoptive Parents “are good, ethical,

nurturing parents.” (Tr. Vol. II, p. 201). References for Adoptive Parents

provided “glowing accounts of how well the [C]hildren were doing and how . . .

happy and content and well-adjusted they were.” (Tr. Vol. II, p. 200). A.S.

also testified during the adoption hearing and opined that the Children would

not be safe if they were returned to Parents’ care.

[25] Our review of the record establishes that the Children have continuously been

in Adoptive Parents’ care since April of 2011, except for two brief trial home

visits. At the time of their removal, N.D.S. was almost two years old, and D.S.

was approximately eight months. Thus, the Children have spent most of their

lives in the care of Adoptive Parents because of Parents’ refusal to put the

Children’s needs ahead of their own. For nearly two years during the CHINS

proceedings, Parents failed to address the issues necessary for reunification, and

during the three years between the establishment of the guardianship and the

filing of adoption petitions, Parents made no effort to safeguard their parental

rights, and they offered no support for the Children. Meanwhile, during that

entire time, Adoptive Parents provided for the financial, emotional, and

physical needs of the Children. Thus, the trial court’s determination regarding

the Children’s best interests is clearly supported by the evidence.

[26] Parents also challenge Adoptive Parents’ ability to rear the Children. Parents

both cite Adoptive Mother’s chronic pancreatitis as an impairment to her ability

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 to care for the Children and claim that it is contrary to the Children’s best

interests. At the hearing, Adoptive Mother testified that she has been battling

chronic pancreatitis for more than fifteen years. During that time, she has been

on various pain medications, including morphine, a fentanyl patch, and other

narcotics. She administers her medicine through a feeding tube as she needs it,

and “[s]ometimes, [she] get[s] a little sleepy.” (Tr. Vol. IV, p. 102). She

regularly sees her doctors and has had several operations and procedures over

the years; her need for pain medication varies day by day. Adoptive Mother

admitted that in April of 2016, her feeding tube had fallen out, which caused

her to become dehydrated and experience low levels of potassium. As a result,

while driving to go have her tube changed, she blacked out and was involved in

a minor car accident. The Children were not in the car at the time of the

accident.

[27] The trial court took the evidence concerning Adoptive Mother’s illness into

account but determined that “those concerns [do not] negate the best interest

finding otherwise supported by the evidence.” (Appellant-Father’s App. Vol.

II, p. 26). The trial court noted that Adoptive Mother

explained that her chronic disease impacts how her body
processes food and the car accident was the result of low
potassium levels. She testified that she believes that her disease is
under control and she testified that she has a lot of family support
when needed by her medical condition. And even while
struggling with a serious illness, she described that she has been
able to provide for the needs of [the Children]. There is no
evidence to the contrary.

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 (Appellant-Father’s App. Vol. II, p. 26). The evidence clearly establishes that

Adoptive Mother has managed this medical condition for more than fifteen

years, during which time she raised two biological children and has provided

safe and consistent care for the Children at issue. The social worker who

conducted the case study reviewed Mother’s medical history and did not find

that the condition should hinder the adoption. Adoptive Parents share in the

responsibilities of raising children and have demonstrated their ability to rear

the Children notwithstanding Adoptive Mother’s medical condition. We

decline Parents’ obvious request to reweigh the evidence already considered by

the trial court.

CONCLUSION
[28] Based on the foregoing, we conclude that the trial court did not err in granting

Adoptive Parents’ adoption petitions because they established by clear and

convincing evidence that Parents’ consent to the adoption was not required and

because adoption is in the Children’s best interests.

[29] Affirmed.

[30] Robb, J. and Pyle, J. concur

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