J.H. v. S.S.

FILED
Feb 14 2018, 5:40 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT
Erin L. Berger
Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

J.H., February 14, 2018
Appellant, Court of Appeals Case No.
82A05-1708-AD-2069
v. Appeal from the Vanderburgh
Superior Court
S.S., The Honorable Leslie C. Shively,
Appellee. Judge
Trial Court Cause No.
82D04-1511-AD-145

Pyle, Judge.

Statement of the Case
[1] This case is another example of how substance abuse is savaging the familial

bonds within Indiana and around the country. See Katherine Q. Seelye,

Children of Heroin Crisis Find Refuge in Grandparents’ Arms, The New York Times,

May 21, 2016. In this case, J.H. (“Mother”) appeals the trial court’s order

granting S.S.’s (“Paternal Grandmother”) petition to adopt Mother’s minor

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 son, J.S. (“J.S.”). Mother argues that the trial court erred in concluding that

her consent to the adoption was not necessary because she is unfit. Concluding

that the evidence supports the trial court’s conclusion that Mother is unfit and

that her consent to the adoption was not necessary, we affirm the trial court’s

judgment.

[2] We affirm.

Issue
Whether the trial court erred in granting Paternal Grandmother’s
petition to adopt J.S.

Facts
[3] Mother and K.S. (“Father”) were married in 2002. Their son, J.S., was born in

2004. Mother and Father began having marital problems in 2005 because of

Mother’s alcohol abuse. Father filed a dissolution petition in 2006, and Mother

was awarded primary custody of J.S. with the understanding that she was not

to consume any alcoholic beverages or prescribed substances while J.S. was in

her care. Three weeks later, Mother was court-ordered to attend inpatient

alcohol treatment, and J.S. was placed with Father. The parties subsequently

reconciled for sixty days until Father began finding vodka bottles in the back of

Mother’s car. One afternoon, Father returned home to find Mother “in the

garage fairly well tanked and after that it just got worse and worse.” (Tr. 103).

[4] In February 2011, Mother and Father entered into an agreed dissolution decree.

Fifteen months later Father filed an emergency petition to modify and suspend

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 parenting time wherein he alleged that Mother had a critical and ongoing drug

and alcohol addiction and had been drinking to the point of intoxication during

parenting time with J.S. According to the petition, although Mother had

completed three inpatient drug and alcohol treatment programs in the past three

years, she had relapsed and was in another inpatient treatment center. The

following month, Mother began treatment at a behavioral health center where

she was diagnosed with polysubstance abuse after she admitted to drinking a

fifth of vodka daily and consuming pills, opiates, and benzodiazepines.

[5] In June 2011, Mother entered into an agreed order modifying her parenting

time. Three months later, Father filed an emergency motion to suspend

Mother’s parenting time. In November 2011, Mother and Father filed an

agreed order, which awarded Mother supervised parenting time. Mother

agreed that her parenting time would be suspended if she failed drug or alcohol

tests.

[6] In 2013, Mother was charged with and convicted of operating a vehicle while

intoxicated endangering a person. During the pendency of the criminal matter,

Mother participated in another substance abuse program. Two years later, in

March 2015, Mother was arrested again and sent to a different substance abuse

program.

[7] In November 2015, Paternal Grandmother filed a petition to adopt J.S.,

wherein she alleged that Mother’s consent to the adoption was not necessary

because Mother: (1) had abandoned J.S.; (2) had failed to communicate

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 significantly with J.S.; (3) had knowingly failed to support J.S. when she had

the ability to do so; (4) was an unfit parent; and (5) had made only token efforts

to support or communicate with J.S.

[8] In March 2016, Mother was charged with invasion of privacy, and three

months later, she was charged with operating a motor vehicle with an alcohol

concentration equivalent of .08 or higher with a prior conviction and possession

of a controlled substance. Mother subsequently pled guilty to all charges and

was placed on probation.

[9] At the June 2017 hearing on Paternal Grandmother’s petition to adopt J.S.,

Mother admitted that, just days before the hearing, she had taken hydrocodone

that was not prescribed for her. Father testified that Mother’s “mental health

[made] her unstable and . . . [it was the] reason that she turn[ed] to the

substances.” (Tr. 100). Father consented to the adoption. J.S.’s therapist

testified that J.S. had a positive relationship with Paternal Grandmother and

that the adoption was in J.S.’s best interest. The guardian ad litem (GAL)

testified that Mother had had nine probation violations in the past year and had

been to six different treatment centers in three different states over the past eight

years. The GAL opined that Mother was not fit as a parent and recommended

that the trial court grant the adoption petition.

[10] The evidence also reveals that although Mother has a Master’s Degree in Social

Work, she had experienced difficulty maintaining stable employment and was

unemployed at the time of the hearing. She had recently worked at

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 McDonald’s for two months until she was arrested at work. The evidence

further reveals that Mother had not seen J.S. in over two years and had not had

unsupervised visitation with him in over six years. Her last contribution to his

expenses had been two to three years before the hearing.

[11] The trial court concluded that Mother’s consent to the adoption was not

required because she was unfit and had failed to communicate with and support

J.S. The trial court also concluded that adoption was in J.S.’s best interest and

granted Paternal Grandmother’s petition. Mother now appeals.

Decision
[12] At the outset, we note that Paternal Grandmother has failed to file an appellee’s

brief. When an appellee fails to submit a brief, we need not undertake the

burden of developing an argument for the appellee. Santana v. Santana, 708

N.E.2d 886, 887 (Ind. Ct. App. 1999). Applying a less stringent standard of

review, we may reverse the trial court if the appellant can establish prima facie

error. Id. However, we may in our discretion decide the case on the merits.

Kladis v. Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We

choose to exercise our discretion in this case.

[13] Mother argues that the trial court erred in finding that her consent to Paternal

Grandmother’s adoption of J.S. was not required. When reviewing the trial

court’s ruling in an adoption proceeding, we will not disturb the ruling unless

the evidence leads to one conclusion and the trial court reached an opposite

conclusion. In re Adoption of D.M., 82 N.E.3d 354, 358 (Ind. Ct. App. 2017).

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 We do not reweigh the evidence, but instead examine the evidence most

favorable to the trial court’s decision, together with the reasonable inferences to

be drawn therefrom. Id. Further, we generally give considerable deference to

the trial court’s decision in family law matters because 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 a parent and her relationship with her child.

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

[14] INDIANA CODE § 31-19-9-8 provides, in relevant part, as follows:

(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:

(A) a petitioner for adoption proves by clear and
convincing evidence that the parent is unfit to be a
parent; and

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 (B) the best interests of the child sought to be
adopted would be served if the court dispensed with
the parent’s consent.

* * * * *

(b) If 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.

Paternal Grandmother, as the petitioner, had the burden of proving by clear

and convincing evidence that Mother’s consent was not required. See In re

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

[15] Here, the trial court concluded that Mother’s consent to the adoption was not

required because she was unfit.1 Although the statute does not provide a

definition of “unfit,” in M.L., we pointed out that termination cases provide

useful guidance as to what makes a parent “unfit.” Id. at 1223. In those cases,

we considered factors such as a parent’s substance abuse, mental health,

willingness to follow recommended treatment, lack of insight, instability in

housing and employment, and ability to care for a special needs child to

determine whether a parent was unfit. Id. A parent’s criminal history is also

relevant to whether a parent is unfit. D.M.¸ 82 N.E.3d at 359.

1
Mother also challenges the trial court’s conclusions that her consent to the adoption was not required
because she had failed to communicate with and support J.S. However, the provisions of INDIANA CODE §
31-19-9-8 are written in the disjunctive and each provides independent grounds for dispensing with parental
consent. In re Adoption of K.S., 980 N.E.2d 385, 388 (Ind. Ct. App. 2012). Because we have found that
Mother’s unfitness rendered her consent unnecessary, we need not address her additional challenges to the
trial court’s order.

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[16] In M.L., where the father challenged the trial court’s conclusion that he was an

unfit parent, we noted the presence of these factors. M.L., 973 N.E.2d at 1223.

Specifically, we pointed out that the father had a long history of mental health

and substance abuse issues, and there was no indication that he intended to quit

drinking. He did not have stable employment or housing and had contributed

little to his son’s support. Id. at 1223-24. We concluded that this was sufficient

evidence to support the trial court’s conclusion that the father was not a fit

parent. Id. at 224.

[17] Here, as in M.L., these factors are present. Mother has a long history of mental

health and substance abuse issues. Specifically, she has been to six different

treatment centers in three different states over the past eight years and has

previously drunk to the point of intoxication during parenting time with J.S.

Mother has also been arrested for several alcohol and drug related offenses.

Yet, there is no indication that she intends to stop drinking or using drugs as

evidenced by her admission that, just days before the hearing, she had taken

hydrocodone that was not prescribed to her. Mother also has a history of

unstable employment and has contributed nothing to her son’s support over the

past two to three years. This evidence is sufficient to support the trial court’s

conclusion that Mother is unfit, and that her consent to the adoption was not

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 required.2 The trial court did not err in granting Paternal Grandmother’s

petition to adopt J.S.

[18] Affirmed.

Kirsch, J., and Bailey, J., concur.

2
In her appellate brief’s summary of the argument, Mother makes a cursory statement that there is
insufficient evidence that the adoption was in J.S.’s best interest. However, because she has failed to further
develop this argument and offers no authority in support of it, she has waived appellate review of it.
See A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n. 4 (Ind. Ct. App. 2013) (explaining that a
parent’s failure to support arguments with cogent reasoning results in waiver on appeal), trans. denied; see also
Ind. Appellate Rule 46(A)(8) (requiring that each contention be supported by cogent reasoning with citations
to authority).

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