MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 07 2019, 9:01 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
David W. Stone IV
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE ADOPTION OF March 7, 2019
A.G. & Ju.G. Court of Appeals Case No.
18A-AD-267
A.R.,
Appeal from the Madison Circuit
Appellant-Respondent, Court
v. The Honorable Angela Warner
Sims, Special Judge
M.G. & Je.G, Trial Court Cause No.
48C01-1407-AD-34
Appellees-Petitioners
Altice, Judge.
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Case Summary
[1] A.R. (Mother) appeals from the trial court’s grant of the petition of M.G.
(Stepmother) and Je.G. (Father) for the adoption of Mother’s two sons by
Stepmother. Mother contends that the trial court erroneously determined that
her consent for the adoption was not required.
[2] We affirm.
Facts & Procedural History
[3] Mother and Father have two children together (the Children). A.G. was born
in January 2000, and Ju.G. was born in January 2004. Mother and Father’s
relationship ended in 2005. Although the Children were initially in Mother’s
custody, Father was granted custody in April 2007 pursuant to a court order in
a paternity action. Mother was ordered to pay child support and was granted
parenting time. Mother has paid no support for the Children since 2011 and
last saw them in 2013.
[4] Mother has a long history of substance abuse. By her own admission, she has
struggled with addictions to alcohol, crack cocaine, opiates, and heroin.
Relevant to this case, Mother admitted that she began abusing opiates following
a surgery in 2005 and then moved to heroin in 2013. She has also used
methamphetamine. Mother testified that she last used methamphetamine in
December 2015 and heroin in February 2016.
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[5] As a result of her substance abuse, Mother has accumulated a substantial
criminal history. She has been incarcerated at least three times since 2008. In
August 2008, Mother was charged under two separate cause numbers in
Madison County – 48D01-0808-FC-220 (FC-220) and 48D01-0808-FC-213
(FC-213). She entered into a plea agreement to resolve both causes in February
2009, pleading guilty to Class C felony forgery and two counts of Class D
felony receiving stolen property in FC-220 and Class C felony forgery in FC-
213. She was sentenced in March 2009 to an aggregate sentence of seven years
in prison, with two years executed and five years suspended to probation. She
was released to probation in March 2010. In early 2012, Mother violated
probation by testing positive for cocaine, opiates, and methadone, but the court
continued Mother on probation without modification. In September 2013,
Mother was again found in violation of probation following a positive drug
screen. This time, the court revoked her previously suspended sentence and
ordered her to serve two years in prison. The remaining three years were
ordered conditionally stayed. Thus, Mother was incarcerated from September
2013 to September 2014.
[6] Within the first year of her stayed sentence, Mother committed theft, and the
probation department filed a violation. She failed to appear at the evidentiary
hearing for her violation. The court issued a warrant for her arrest, which was
served on December 3, 2015. She was released on bond on January 1, 2016,
after which she continued using heroin. At a hearing on February 16, 2016, the
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three-year stay in FC-220 was lifted, and Mother was ordered to serve the
remainder of her sentence in prison.
[7] On December 2, 2015, Mother committed several additional offenses. She was
driving with an adult passenger and her passenger’s infant late in the evening
when she was pulled over for a traffic stop. Mother provided the officer with a
false name and then fled from the scene in her vehicle. After a vehicle pursuit,
she jumped out of the moving vehicle and ran through a yard before being
apprehended by a K-9. Mother had syringes containing heroin on her person
and in her purse, as well as drug paraphernalia in her vehicle. On April 12,
2016, Mother pled guilty to Level 6 felony resisting law enforcement, Class C
misdemeanor reckless driving, Class A misdemeanor false informing, and Class
C misdemeanor operating a vehicle with a schedule I or II controlled substance
in her body. In May 2016, Mother received an aggregate sentence of eighteen
months executed to be served consecutively to the remainder of her executed
sentence under FC-220.
[8] While Mother was in and out of prison and using drugs, the Children were
being raised and cared for by Father and Stepmother. 1 Stepmother has been in
their lives since September 2005, and she married Father in July 2007. The
1
Mother exercised parenting time at certain points when not incarcerated between 2010 and 2013 and had
the Children in her care for an extended time in 2011 when she seemed to be doing well. She relapsed,
however, shortly thereafter. On one occasion in 2013, Mother came to the family’s home to visit with the
Children and was obviously under the influence, dozing in and out of consciousness as she sat in the driver’s
seat of her car. She was not allowed contact with the Children at that time and has not been permitted
parenting time since her later incarceration beginning in 2013.
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Children have a strong bond with Stepmother and call her “Mom.” A.G.
explained, “she’s been there since I was five (5), six (6) years old” and has
“done everything for me.” Transcript at 57. Ju.G. testified that he had no bond
with Mother and that Stepmother had “been a good mother all my life.” Id. at
72. Both of the Children wished to be adopted by Stepmother.
[9] On July 16, 2014, Father and Stepmother filed a petition for adoption, pursuant
to which Stepmother sought to adopt the Children. Father and A.G. (who was
fourteen years old at the time) consented to the stepparent adoption. The
petition alleged that Mother’s consent was not required due to her parental
unfitness and her lack of contact with and support of the Children. Mother
contested the adoption.
[10] Following a contested hearing in December 2015, the trial court granted the
adoption petition. Mother appealed. On appeal, this court addressed only one
of the five issues raised by Mother and concluded that the trial court abused its
discretion by granting the public defender’s motion to withdraw filed shortly
before the hearing and resulting in Mother representing herself. See In re
Adoption of A.G., 64 N.E.3d 1246 (Ind. Ct. App. 2016) (reversing and remanding
for a new adoption hearing).
[11] The adoption hearing following remand was held on August 17, 2017, with
Mother represented by appointed counsel. Mother remained incarcerated at the
time with an expected release date of December 29, 2017. She had been
incarcerated since February 2016. At the adoption hearing, both of the
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Children – then ages seventeen and thirteen – testified regarding their desire to
be adopted by Stepmother and their belief that the adoption was in their best
interests. Neither of the Children wanted any further contact with Mother.
A.G. testified regarding alarming past visits with Mother and opined that he
would not feel safe and secure in her presence. A.G. testified, “I don’t like her.
She’s never been really there for me.” Transcript at 65.
[12] On December 22, 2017, the trial court issued its decree of adoption.
Specifically, the court found that Mother’s consent was not required and that
adoption by Stepmother was in the Children’s best interests. Mother appeals
from the trial court’s granting of the adoption petition. Additional information
will be provided below as needed.
Discussion & Decision
[13] When reviewing a trial court’s ruling in an adoption proceeding, we may not
disturb that ruling unless the evidence leads to but one conclusion and the trial
court reached an opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662
(Ind. 2014). We presume the decision is correct and consider the evidence in
the light most favorable to that decision. Id.
[14] The overarching question before us is whether Mother’s consent was required
in order to grant Stepmother’s adoption petition. Under certain limited
circumstances, a biological parent’s consent to an adoption is not required. See
Ind. Code § 31-19-9-8. In this case, the trial court relied upon three of the
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enumerated circumstances listed in the statute, which provide that consent 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
(B) the best interests of the child sought to be adopted
would be served if the court dispensed with the parent’s
consent.
I.C. § 31-19-9-8(a). Mother challenges the trial court’s determination with
respect to each provision. Because the statute is written in the disjunctive, the
existence of any one of the circumstances provides sufficient ground to dispense
with consent. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014).
Accordingly, we need only conclude that the trial court properly relied on at
least one of these statutory provisions.
[15] With respect to I.C. § 31-19-9-8(a)(11)(A), the trial court found Mother unfit to
parent the Children due to “her pattern of criminal behavior, convictions and
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her significant pattern of drug and alcohol abuse.” Appellant’s Appendix at 19.
We agree with the trial court.
[16] In determining the meaning of “unfit” as used in the statute, we have looked to
Black’s Law Dictionary’s definition of the word. In re Adoption of M.L., 973
N.E.2d 1216, 1223 (Ind. Ct. App. 2012) (“‘[u]nsuitable; not adapted or
qualified for a particular use or service” or “[m]orally unqualified;
incompetent’”) (quoting BLACK’S LAW DICTIONARY 1564 (8th ed. 2004)).
Additionally, we have found that cases involving the termination of parental
rights pursuant to a petition filed by the Department of Child Services provide
useful guidance in determining whether a parent is unfit. See In re Adoption of
D.M., 82 N.E.3d 354, 358-59 (Ind. Ct. App. 2017); In re Adoption of M.L., 973
N.E.2d at 1223.
Termination cases have 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 child’s special needs.
Also, this Court has consistently held in the termination context
that it need not wait until children are irreversibly harmed such
that their physical, mental, and social development are
permanently impaired before terminating the parent-child
relationship. It is well-settled that individuals who pursue
criminal activity run the risk of being denied the opportunity to
develop positive and meaningful relationships with their
children. … A parent’s criminal history is relevant to whether the
parent is unfit to be a parent under Ind. Code § 31-19-9-8(a)(11).
In re Adoption of D.M., 82 N.E.3d at 359 (citations omitted).
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[17] The record clearly and convincingly establishes that Mother is unfit to parent
the Children. Her substance-abuse issues span nearly twenty years and have
escalated over the years, especially after the birth of her children. Between 2009
and the adoption hearing in August 2017, Mother had been incarcerated on
three separate occasions for a year or more, and she was still completing her
longest stint of incarceration at the time of the final hearing. Mother was
incarcerated when the adoption petition was filed in July 2014. Despite the
pending adoption proceedings, upon her release from prison in September 2014,
Mother continued to use illegal drugs (including methamphetamine and
heroin), violate probation, and commit new criminal offenses. 2 She has not
functioned as a parent to the Children for many years, and she remained unable
to parent them at the time of the adoption hearing. This and other evidence in
the record support the trial court’s determination by clear and convincing
evidence that Mother is unfit to be a parent.
[18] With regard to whether it was in the Children’s best interests to dispense with
her consent, Mother simply asserts:
It was … in the best interest of the children to have both a step-
mother and a mother. The step-mother can continue to do the
things for the children she has been doing. The mother will have
2
Contrary to Mother’s assertion on appeal, her criminal record is far from minor. And it is of no moment
that she has never been charged with neglect of the Children. A.G.’s testimony detailed several concerning
incidents he experienced while in Mother’s care, including a friend passing her needles in front of A.G.,
Mother begging for money from strangers, and Mother leaving them unattended in a car at night while she
visited friends. At the adoption hearing, A.G. testified that he wanted no further contact with Mother and
that he would not feel safe and secure in her presence.
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a chance to improve herself and resume a relationship with her
sons without interference by the father.
Appellant’s Brief at 20-21. On the contrary, Mother has had ample time to
improve herself, address her serious substance abuse issues, and refrain from
committing new crimes. Mother’s consistent pattern of behavior establishes
that she has not made the Children a priority for the majority of their lives,
leaving Stepmother in the role of their mother. The Children, ages thirteen and
seventeen at the time of the final hearing, testified that they wanted Stepmother
to adopt them and opined that the adoption was in their best interests.
Moreover, they expressed concern for their safety if placed in Mother’s care.
The evidence clearly and convincingly establishes that dispensing with Mother’s
consent to the adoption was in the best interests of the Children. Accordingly,
the trial court did not err when it did just that pursuant to I.C. § 31-19-9-
8(a)(11).
[19] Judgment affirmed.
Najam, J. and Pyle, J., concur.
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