MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 21 2019, 10:24 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 ATTORNEY FOR APPELLEES
Deidre L. Monroe Julie R. Glade
Public Defender’s Office Law Office of Julie R. Glade, RN,
Crown Point, Indiana JD
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
R.S., May 21, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-AD-2812
v. Appeal from the Lake Superior
Court
J.S.S. and K.S., The Honorable Alexis Vazquez
Appellees-Petitioners Dedelow, Referee
Trial Court Cause No.
45D06-1708-AD-139
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019 Page 1 of 12
[1] R.S. (“Father”) appeals the trial court’s grant of a petition to adopt R.D.S. 1
(“Child”) filed by J.S.S. (“Stepfather”). Father argues Stepfather did not
provide sufficient evidence from which the trial court could make findings and
conclusions that: (1) Father had failed to significantly communicate with Child
for at least a year; (2) Father had failed to provide for the care of Child for at
least a year; and (3) adoption was in Child’s best interests. We affirm.
Facts and Procedural History
[2] K.S. (“Mother”) gave birth to Child on June 25, 2011. On March 12, 2014,
Father established paternity, was granted parenting time pursuant to the
Indiana Parenting Time Guidelines, and was ordered to pay $50.00 per week in
child support. Mother married Stepfather in July 2017, though Stepfather has
been a presence in Child’s life since approximately 2012.
[3] On August 23, 2017, Stepfather filed a verified petition for adoption, which
alleged Father’s consent to the adoption was not required per statute. Father
appeared at the initial adoption hearing on January 29, 2018, and orally
objected to Child’s adoption. The trial court appointed counsel for Father. On
March 5 and April 16, 2018, the trial court held hearings regarding Child’s
adoption, specifically regarding whether Father’s consent was required for the
adoption and whether adoption was in Child’s best interests. On October 2,
1
As part of the adoption order, Child’s name was changed to D.A.D.
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2018, the trial court entered its order on adoption, outlining numerous findings
to support its decision to grant Stepfather’s petition to adopt Child. On October
22, 2018, the trial court issued an order and decree of adoption granting
Stepfather’s petition to adopt Child.
Discussion and Decision
[4] We will not disturb a decision in an adoption proceeding unless the evidence
leads to but one conclusion and the trial judge reached an opposite conclusion.
In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). We will not
reweigh the evidence or judge the credibility of witnesses. Id. Instead we
examine the evidence most favorable to the decision together with reasonable
inferences drawn therefrom to determine whether there is sufficient evidence to
sustain the decision. Id. The decision of the trial court is presumed correct, and
it is the appellant’s burden to overcome that presumption. Id.
[5] When, as here, the trial court sua sponte enters findings of fact and conclusions
of law pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of
review. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans.
denied. First, we determine whether the evidence supports the findings and
second, whether the findings support the trial court’s conclusions. Id. The trial
court’s findings or conclusions will be set aside only if they are clearly
erroneous. Id. A finding of fact is clearly erroneous if the record lacks evidence
or reasonable inferences from the evidence to support it. Id. Issues on which
the trial court makes no findings will be reviewed as a general judgment. C.B. v.
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B.W., 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. A “general
judgment will be affirmed if it can be sustained upon any legal theory by the
evidence introduced at trial.” Id.
Consent Not Required
[6] Generally, courts may not grant a petition for adoption without the consent of
the child’s biological parents. Ind. Code § 31-19-9-1(a). There are, however,
exceptions to that general rule. The exception at issue herein provides:
(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:
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(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)(2)(B) (2016). When considering whether a parent has
knowingly failed to support a child for one year, we note “the relevant time
period is not limited to either the year preceding the hearing or the year
preceding the petition for adoption, but is any year in which the parent had an
obligation and the ability to provide support, but failed to do so.” In re Adoption
of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013), reh’g denied, trans. denied.
[7] Father argues Stepfather did not adequately demonstrate his consent was not
required due to failure, for a period of one year, to communicate significantly
with Child or to provide for Child’s care. Because Indiana Code section 31-19-
9-8 is written in the disjunctive, we need only to decide if Stepfather provided
sufficient evidence for one of these factors. See Matter of Adoption of E.M.L., 103
N.E.3d 1110, 1116 (Ind. Ct. App. 2018) (statute written in disjunctive therefore
petitioner required to prove one factor), trans. denied. We conclude Stepfather
presented sufficient evidence to support the findings and conclusion that
Father’s consent was not required because Father had failed to provide for
Child’s care and support for at least a year.
[8] Regarding this issue, the trial court found:
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9. Pursuant to the Judgement on Paternity, Child Support and
Parenting Time entered on March 12, 2014, Father was awarded
parenting time with Minor Child on alternating weekends from
Friday at 4:30 p.m. to Sunday at 6:00 p.m. and holidays pursuant
to the Indiana Parenting Time Guidelines and Father’s weekly
child support obligation was ordered at $50.00 per week in
support.
*****
24. Per Court Orders of October 15, 2013, and March 12, 2014,
Father was ordered to pay child support for Minor Child in the
amount of $50.00 per week retroactive to October 15, 2013.
Father was employed at a gas station at the time. Father worked
odd jobs between 2014 and 2017; including, but not limited to
working at Trinity Hospital, Wendy’s, Strack’s, his uncle’s
company and IHOP.
25. Between 2012 and 2014, Father paid a total of $900.00
directly to Mother toward child support payments; and, an
additional $200.00 in 2013.
26. In the summer of 2014, Father contacted Mother asking her
to meet him in Whiting, Indiana, so that he could pay her
$150.00 toward child support. At said meeting, Father asked
Mother for a kiss, then became angry and belligerent. Father
appeared to be intoxicated and was unstable on his bicycle.
Mother was concerned for her safety and Father did not give
Mother the child support he had promised.
27. Paternal grandmother opened a savings account for all of her
grandchildren, including Minor Child. Father has not
contributed toward this savings account. Father has not paid
child support since 2014.
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(Appellant’s App. at 8, 10) (errors in original). Father argues he was consistent
with child support when given parenting time, he wanted to pay his child
support and would do so starting immediately, and he “has tried [the] best he
could to meet his obligations” despite his “incarceration, lack of driver license,
and lack of steady employment[.]” (Br. of Appellant at 13.)
[9] However, Father testified at the hearing that he could have paid child support
and there was “no good reason” that he had not. (Tr. Vol. II at 144.) He also
testified he was not “denying child support” but had money to buy “weed and
cocaine[.]” (Id. at 165.) He indicated he did not think it was “right” for him to
“just giv[e] [Mother] the money and [he’s] not seeing [his] kid.” (Id. at 125.)
Father’s testimony at the hearing also supports the trial court’s findings that he
was employed multiple times through the years and did not pay child support
though able to do so. Father’s arguments are invitations for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See In re
Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot reweigh evidence
or judge the credibility of witnesses). The evidence supports the trial court’s
findings, and those findings support the court’s conclusion that Father had
failed to provide for Child’s care and support for one year. See, e.g., Matter of
Adoption of A.M.K., 698 N.E.2d 845, 847 (Ind. Ct. App. 1998) (affirming trial
court’s decision that father’s consent to child’s adoption was not required
because father did not support child for one year, during which he was
voluntarily unemployed), trans. denied.
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Child’s Best Interests
[10] “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). Even
if the trial court determines a parent’s consent is not required for adoption, the
court still must decide if adoption is in the child’s best interests. Id. While the
adoption statutes do not provide guidance regarding the factors a court is to
consider when determining the best interests of the child,
we have noted that there are strong similarities between the
adoption statute and the termination of parental rights statute in
this respect. See In re Adoption of M.L., 973 N.E.2d 1216, 1224
(Ind. Ct. App. 2012) (holding that the adoption statutes and the
termination statutes provide similar balances between parental
rights and the best interests of the children; also holding that
termination cases provide “useful guidance as to what makes a
parent ‘unfit’”). In termination cases, we have held that the trial
court is required to look to the totality of the evidence to
determine the best interests of a child. In re I.A., 903 N.E.2d 146,
155 (Ind. Ct. App. 2009). Relevant factors include, among
others, a parent’s historical and current inability to provide a
suitable environment for the child, In re J.C., 994 N.E.2d 278, 290
(Ind. Ct. App. 2013) [,reh’g denied]; the recommendations of the
child’s case worker or guardian ad litem; and the child’s need for
permanence and stability, see A.J. v. Marion Cnty. Office of Family
and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008) [, trans.
denied].
Id. at 1281-2. Father argues Stepfather did not provide sufficient evidence from
which the trial court could make findings and conclude adoption was in Child’s
best interests. We disagree.
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[11] Regarding factors relevant to Child’s best interests, the trial court found:
10. . . . Mother discovered that Father was dropping off Minor
Child at an undisclosed location with an unknown person. On
several occasions, Mother requested that Father inform her of the
name, phone number and location of the person to whom Father
was taking their son during his parenting time. Despite repeated
requests, Father refused to provide Mother with the requested
information. Mother was concerned for the safety of Minor
Child, who was a young toddler at the time, so Mother declined
Father’s parenting time until he provided Mother with the
information as to where and with whom Father was leaving
Minor Child. At no time, did Father provide Mother with said
information; instead Father advised Mother not to worry about it
and that he was taking Minor Child to someone’s home close to
Maternal Grandfather’s home.
*****
16. Mother has had the same telephone number since Minor
Child was born and has resided in the same home since 2012.
Father has failed to provide Mother with his updated location
and phone number(s) over time. Father admitted that he did not
expect Mother to be able to reach him based on his changes in
contact information, and that he had not reached out to Mother
for parenting time as much as he could have.
17. Over the years, Father has suffered from alcohol and drug
addiction which have led to legal consequences for excessive use
of alcohol, such as charges of public intoxication, disorderly
conduct and driving under the influence . . . Furthermore, Father
has also been charged with possession of marijuana and cocaine.
Father has not had a driver’s license since he was 19 years old.
*****
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19. Father’s criminal arrest history includes operating a vehicle
while intoxicated in 2012 and again in 2013; felony battery
conviction as a plea agreement from charges of rape, criminal
confinement, strangulation, interference with reporting a crime
and battery causing moderate bodily injury in 2016; public
intoxication, disorderly conduct, resisting law enforcement and
driving while suspended in 2017. Father’s criminal behavior has
contributed to his failure to contact his son.
*****
29. By all accounts, Minor Child is currently thriving under the
care of Mother and Step-Father. He is happy, empathetic, bright,
engaging and outgoing. Step-Father and Mother ensure that
Minor Child is engaged with outside activities, and that he
participates in a close relationship with all members of his
extended family.
30. Step-Father has known Mother since 2008 or 2009. During
Mother’s pregnancy with Minor Child, Step-Father, Mother and
Father all resided together.
31. Step-Father has known Minor Child since birth, and became
more actively involved in Minor Child’s life since June 2012,
when Minor Child was only one (1) year old. Step-Father
became more regularly involved on a daily basis and actively
participated in Minor Child’s life and case since Minor Child was
three or four years old.
*****
33. Minor Child considers Step-Father to be his dad and Step-
Father considers Minor Child to be his son. The relationship
between them consists of a close, stable father-son relationship.
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34. Step-Father is able to financially support Minor Child, and
provides Minor Child with everything he needs. Step-Father
assists Mother with providing Minor Child with health care, and
to provide Minor Child with support to receive the education he
needs.
(Appellant’s App. Vol. II at 8-10) (errors in original).
[12] Despite these findings, which Father does not challenge, 2 Father contends
adoption is not in Child’s best interest because Mother “purposely refused” to
allow Child to visit with Father. (Br. of Appellant at 15.) Father acknowledges
he does not have a relationship with his son, and Father asks for additional time
to develop that relationship. Father’s arguments are invitations for us to
reweigh the evidence and judge the credibility of witnesses, which we cannot
do. See In re Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot
reweigh evidence or judge the credibility of witnesses). Because the trial court’s
unchallenged findings support the trial court’s conclusion that adoption is in
Child’s best interest, Father has not demonstrated clear error in the court’s
reaching this conclusion. See, e.g., In re Adoption of M.L., 973 N.E.2d 1216, 1223
(Ind. Ct. App. 2012) (concluding father unfit as parent due to continued
substance abuse and instability; and concluding adoption was in child’s best
interests because she was thriving in adoptive parents’ care).
2
Unchallenged findings “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019 Page 11 of 12
Conclusion
[13] Stepfather presented sufficient evidence to support the trial court’s findings,
which support the trial court’s conclusions that Father’s consent was not
required for Stepfather’s adoption of Child and that adoption was in Child’s
best interest. Accordingly, we affirm.
[14] Affirmed.
Mathias, J., and Brown, J., concur.
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R.S. v. J.S.S. and K.S. (mem. dec.)
Combined Opinion