Opinion
24A-AD-506
11-27-2024
In re: the Adoption of G.S. (Minor Child) v. T.H. (Mother), Appellee-Respondent D.O. (Stepmother), Appellant-Petitioner
ATTORNEY FOR APPELLANT Elizabeth Eichholtz Walker Becker Bouwkamp Walker, P.C. Indianapolis, Indiana ATTORNEY FOR APPELLEE Thomas Roberts Zentz & Roberts, P.C. Noblesville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Marcia Harper, Magistrate Trial Court Cause No. 49D14-2211-AD-38097
ATTORNEY FOR APPELLANT Elizabeth Eichholtz Walker Becker Bouwkamp Walker, P.C. Indianapolis, Indiana
ATTORNEY FOR APPELLEE Thomas Roberts Zentz & Roberts, P.C. Noblesville, Indiana
MEMORANDUM DECISION
MAY, JUDGE
[¶1] D.O. ("Stepmother") appeals the trial court's order denying her petition to adopt G.S. ("Child"). She raises several arguments, which we revise and restate as:
1. Whether findings concerning T.H.'s ("Mother") life circumstances, contact with Child, and payment of child support at the time of the fact-finding hearing, are supported by the evidence; and
2. Whether the trial court's conclusion that Mother's consent is necessary for Child's adoption by Stepmother is supported by the trial court's findings.
We affirm.
Facts and Procedural History
[¶2] Child was born to Mother and Father, who were not married, on August 26, 2012. In 2015, Father established paternity of Child. Father and Stepmother met in 2017. Child met Stepmother in 2018. During this time, Child lived primarily with Mother.
The original paternity order regarding physical and legal custody, parenting time, and child support is not in the record before us.
[¶3] In February 2019, the juvenile court adjudicated Child a Child in Need of Services ("CHINS") based on Mother's substance abuse. The CHINS case was dismissed after, in the paternity case, Mother and Father agreed Father would have primary physical custody, Mother and Father would share legal custody, and Mother would have supervised parenting time. The order explicitly indicated "Mother is not ordered to pay child support." (App. Vol. II at 39.)
[¶4] Child moved in with Father and Stepmother in April 2019 and has lived with them since. Father and Stepmother married in 2020. As part of the agreed paternity order, Mother exercised supervised parenting time at the home of Child's maternal grandparents ("Maternal Grandparents"). At some point thereafter, Mother stopped exercising her supervised parenting time at Maternal Grandparents' house because she and Maternal Grandparents were not speaking. Mother then asked Father to supervise parenting time so that she could see Child. Father refused because he did not want to "[m]eet at McDonald's or something[.]" (Tr. Vol. II at 20.) Mother last saw Child in March 2021.
[¶5] Father also allowed Mother to have phone calls with Child on Sundays at 7:00 p.m. Over the years, Mother "sporadically gave cards and gifts" to Maternal Grandmother to give to Child. (App. Vol. II at 15.) On June 8, 2021, Mother sent a text message to Father stating, "Hey . can u please tell [Child] i love her and I miss her please. Thank you[.]" (Id.) (errors in original).
It is unclear how many times Mother called Child.
[¶6] At some point thereafter, Mother entered inpatient residential drug treatment. Mother completed the program on June 24, 2022. On June 30, 2022, Mother sent a text message to Father stating, "Hey its [Mother] I was wanting to talk [to] you if u could make that happen sometime soon. I'd really appreciate it[.]" (Id.) (errors in original).
[¶7] On November 3, 2022, Stepmother filed a petition to adopt Child. She alleged Father consented to the adoption and Mother's consent was not required. On November 9, 2022, Mother sent a text message to Father stating:
Hey hey. All I want is to talk to [Child] I'm not asking for anything else. Sorry to have to say this but you know you r not supposed to be doing this. I have said before do u remember what the courts said [when] they gave her to u. I get supervised visits.(Id. at 16) (errors in original). Mother received notice of Stepmother's petition to adopt Child on January 31, 2023. On February 22, 2023, Mother filed her motion to contest Child's adoption by Stepmother.
[¶8] On six occasions between April 8, 2023, and May 11, 2023, Mother contacted Father to arrange supervised visitation with Child. Father did not allow Mother to see Child on any of those dates. On May 11, 2023, Father emailed Kids' Voice of Indiana ("Kids' Voice") to set up supervised parenting time between Mother and Child. Kids' Voice responded, and Father sent Kids' Voice an email containing the trial court's 2019 order regarding custody, his contact information, and Mother's contact information. Kids' Voice did not respond. On June 11, 2023, and June 12, 2023, Mother again contacted Father to arrange supervised visitation with Child. Father did not allow Mother to see Child on those dates. Father sent a follow up email to Kids' Voice on September 1, 2023. Father was unable to secure supervised parenting time between Mother and Child via Kids' Voice. In August 2023, Mother delivered a birthday card with a $50.00 gift card to Child through Maternal Grandparents. Mother later explained that during this time she did not file a motion alleging Father was in contempt of the trial court's order requiring him to allow her supervised parenting time with Child because she "was in a bad spot with [her] drug abuse[.]" (Tr. Vol. II at 162.)
The content of the email from Kids' Voice is redacted in the exhibit.
[¶9] On October 3, 2023, the trial court held a fact-finding hearing on Stepmother's petition to adopt Child. At the time of the hearing, Mother was sober, had just started a job as a supervisor at Kroger, and had lived in the same house for five years. On January 23, 2024, Mother completed the second of two intensive outpatient drug treatment programs. On February 2, 2024, the trial court found Mother's consent to the adoption was required, and the court issued an order with findings of fact and conclusions of law denying Stepmother's petition to adopt.
Discussion and Decision
[¶10] Stepmother argues the trial court erred when it denied her petition to adopt Child. She contends Findings 60, 63, 64, and 75 were not supported by the evidence and the trial court's conclusion that Mother's consent was required for Stepmother's adoption of Child was not supported by the findings. In family law matters, we generally give substantial deference to the trial court's decision and presume that decision is correct. In re E.B.F., 93 N.E.3d 759, 762 (Ind. 2018). We will not disturb a decision in an adoption proceeding unless the evidence leads to but one conclusion and the trial judge reached the opposite conclusion. In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind.Ct.App. 2014). 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.
[¶11] 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. We determine first 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. 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. "We accept unchallenged findings as true." Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.Ct.App. 2019).
[¶12] 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:
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(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.Ind. Code § 31-19-9-8(a)(2). 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.
[¶13] In its order denying Stepmother's petition to adopt Child, the trial court made several unchallenged findings including, in relevant part:
11. On April 16, 2019, under [the paternity case], at a hearing set alongside the Fact Finding under the CHINS case, Mother and Father entered an agreement on the record. Father and Mother agreed for Father to have primary physical custody of [Child] and for the Parties to share joint legal custody. Further, Mother was not ordered to pay child support. Father was to claim [Child] on taxes. Mother was awarded supervised parenting time agreed upon by the parties.
12. Prior to the April 16, 2019, Mother had primary physical custody of [Child]. [Child] was 6 years old at the time. The CHINs cause was initiated due to Mother's substance abuse.
13. The CHINS cause was dismissed prior to Fact Finding on the motion of DCS because Mother and Father agreed to a change of primary physical custody to Father.
14. Mother admits she has had a history of substance abuse. She has a total of 4 biological children including [Child]. [Child] has a younger sibling, [A.] and she has [an] older sibling [K.]. [K.] was adopted by [Maternal Grandparents].
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19. To date, Step-Mother plays an active parental role in [Child's] life. 20. Step-Mother and [Child] have a close and loving relationship.
21. Initially after the CHINS case closed and consistent with the parenting time order under [paternity case], Mother exercised parenting times at [M]aternal [G]randparents' home who supervised the parenting time.
22. Neither party could recall specifically when Mother's supervised parenting time last occurred at [M]aternal [G]randparents' home, but it had been years.
23. There came a period of time when Mother was not allowed to be at [M]aternal [G]randparents' home. Mother reached out to Father and requested parenting time with Father being present. Father said no, because "that's not something, I really didn't want to, meet at a McDonald's or something."
24. Father and Mother never reached another agreement about supervised parenting time. * * * * *
27. In 2019, Father suggested and Mother agreed, for Mother to have phone calls with [Child] on Sundays at 7:00 p.m. Father testified he did so for consistency. Mother was to initiate these calls.
28. There have been times when Mother contacted Father to see [Child], and she asked if she could see [Child] with Father present supervising. Father would not agree.
29. Father testified that he did not agree because it would put him in a position to make decisions as to when it might end and because Mother has attacked him before. Father believes a neutral supervisor would be better for [Child].
30. Father has not suggested any neutral third parties that he would agree would be appropriate to supervise Mother's parenting time with [Child].
31. The court is not persuaded by Father's testimony that the reason he would not agree to let Mother see [Child] because it would not be safe. Other than Father's single statement on cross [examination] that Mother attacked him before, there is no other evidence to suggest that Mother has been or would be a physical threat to Father.
32. Mother sporadically gave cards and gifts to her parents for [Child] other years, such as a unicorn picture and other little things.
33. Mother last saw [Child] in March 2021. [Child] was with Maternal [G]randmother and [A.] and they stopped by Mother's house. They stayed in the car and visited briefly. Mother gave [Child] a hug, but what was discussed between them or the length of the visit is not known to the court. It was after this contact that Father stopped allowing contact.
34. There was no evidence presented to suggest to the court that anything inappropriate occurred during this interaction or that Maternal Grandmother was not present and supervising.
35. Father quit letting [Child] go to her [M]aternal [G]randparents and that is where Mother was visiting with [Child].
36. On June 8, 2021, Mother sent Father the following text message: "Hey . can u please tell [Child] i love her and i miss her please. Thank you".
37. At some point thereafter, Mother entered inpatient residential drug treatment with Tara Treatment Center Inc., which she completed on June 24, 2022.
38. On June 30, 2022 [Mother texted Father]: "Hey its [Mother]. I was wanting to talk [to] you if u could make that happen sometime soon. I'd really appreciate it,"
39. Subsequent to residential treatment, Mother completed 2 Intensive Out Patient programs, one of which was completed on January 23, 2024.
40. Mother attends Narcotics Anonymous meetings.
41. Father testified that from June 9, 2021 to November 9, 2022, he did not receive a text message from [M]other and that Mother had no contact with [Child].
42. Mother testified that she called and texted in attempts to talk to [Child] from June 9, 2021 to November 9, 2022 and Father did not respond.
43. Mother was using an additional phone during that time, an government provided phone. Mother testified that she used both phones to text Father.
44. On November 9, 2022 [Mother texted Father]: "Hey hey. All I want is to talk to [Child] I'm not asking for anything else. Sorry to have to say this but you know you r not supposed to be doing
this. I have said before do u remember what the courts said when they gave her to u. I get supervised visits."
45. From 2019 to 2022, Mother had 4 different phone numbers. Father received texts or calls from 4 different phone numbers during this time and he knew or was aware at some point that the texts and/or calls were from Mother.
46. Father testified that if he ever received a call from Mother and he was home and available to take the call, he did. From this, the court deduces that there were times that Mother called and that he did not answer her call.
47. Mother left cards and gifts, like stickers and little things, at [Maternal Grandparents'] for [Child], from time to time.
48. Mother got a new phone and number last year when she left in patient rehabilitation in June 2022.
49. On May 11, 2023[] Mother called Father to see [Child]. In response, Father reached out to Kids' Voice to set up supervised parenting time for Mother and [Child]. Father sent another email to Kids Voice of Indiana September 2023, regarding setting up supervised parenting time.
50. In August 2023, Mother put a birthday card and a $50.00 gift card in [A.'s] diaper bag (Mother's younger child) for [Child] to receive when visiting with [M]aternal [G]randparents.
51. To Father's knowledge, this birthday card was the first time [M]other sent a birthday card or anything else for [Child] on her birthday in several years.
52. [Child] and her half-sister, [K.], who is 14 years old, have a close relationship and they currently see each other about once a month at [M]aternal [G]randparents home. Father supports this relationship.
53. Since this action was filed, Mother and [Child] have had a few phone conversations, Mother asks [Child] how she's doing in school and how was her day going and inquires if there is anything new going on.
54. Father is present for these phonecalls and describes them as awkward and that [Child] has been quiet and reserved after these calls.
55. Mother reached out to Father asked to have see [Child] on June 12, 2023, June 11, 20223, May 14, 2023, May 4, 2023, April 30, 2023, April 29, 2023, April 19, 2023, April 17, 2023, and April 8, 2023.
56. Mother argues that Father blocked her from being in [Child's] life, when he stopped taking her calls or responding to her text messages, stopped allowing [Child] to go to [M]aternal [G]randparents house and Mother was allowed at [M]aternal [G]randparents house when [Child] was there.
57. Mother did not file any motion with the court despite believing that Father was in contempt of the court's order.
58. Mother believes Father has been contempt for denying her parenting time since her parenting time at [M]aternal [G]randparents ceased. She says she did not file for contempt against Father because she knew that she wasn't in a good spot due to her substance abuse, that she was afraid Father would stop
allowing contact between [Child] and [M]aternal [G]randparents, like he did before, if she pursued a contempt litigation.
59. Mother also cites that she not financially able to do so is pursued contempt litigation.
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61. Father indicated in his testimony that he would be agreeable for [M]aternal [G]randmother to supervise Mother's parenting time if he and Mother agreed upon it and he knew about it. However, Father didn't offer than in response to Mother's recent request for parenting time.
62. The court finds that Father met his burden to show that Mother did not have significant contact with [Child] for a period of one year, specifically from June 2021 until November 2022.
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65. No judicial decree has ever been issued against Mother requiring her to pay child support, even when the issue was before the court.
66. In its April 2019 order, the court ordered that, "Mother is not ordered to pay child support." 67. Petitioner has never asked Mother for financial support. 68. Mother worked at Kroger from September 2021 until April 2023. 69. In August 2023, Mother was employed at Henry shein
70. Mother returned [to] working at Kroger [in] late September 2023. Mother is employed as a supervisor at Kroger.
71. Mother earned $5,846 in 2021 and earned $16,966 in 2022.
72. Eventhough no court order to pay child support exists, Father argues that Mother still has a common law duty to support Child.
73. To the best of Mother's knowledge, she was not required to pay support.
74. Here, Mother has not paid any support for [Child] or provided any financial support for [Child] since 2019.
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76. While Mother has been employed, her annual salaries for 2021 and 2022 would not support a conclusion that she had the ability to sustain herself and pay child support.
77. The court does not find that Petitioner has met her burden to prove by clear and convincing evidence that Mother has knowingly failed to provide for care and support of [Child], for a period of one year, when able to do so as required by law or judicial decree.(App. Vol. II at 12-19) (errors and formatting in original). Based thereon, the trial court concluded Mother's consent was necessary under Indiana Code section 31-19-9-1, Mother did not consent to Stepmother's adoption of Child, and thus Stepmother's petition to adopt Child was denied.
1. Challenged Findings
[¶14] Stepmother challenges Findings 60, 63, 64, and 75 of the trial court's order as unsupported by the evidence. We address each finding separately.
1.1 Finding 60
[¶15] Finding 60 states, "Mother is now in a much better place. Mother has invested in obtaining and maintain[ing] sobriety, she has a job as [a] supervisor, she retained a lawyer and has maintained stability in her residency." (App. Vol. II at 18.) Stepmother contends this finding is not supported by the evidence because Mother has had frequent relapses into substance abuse, had just started her job at the time of the fact-finding hearing, and lived in a housing situation that was unstable.
Stepmother also asserts Mother did not pay her own legal fees; however, Stepmother does not indicate how that is relevant. Nor does it undermine the trial court's finding that Mother has counsel.
1.1.1 Mother's Sobriety
[¶16] Stepmother argues the evidence suggests Mother is not invested in her sobriety because she had "drug interventions" in 2019, 2021, 2022, and 2023. (Br. of Appellant at 21.) During the adoption fact-finding hearing, Father testified the 2019 CHINS matter was opened because Child's sister A. was born "with drugs in her system[.]" (Tr. Vol. II at 46.) At the time of the fact-finding hearing, there was a CHINS case open as to A. because of Mother's substance abuse. Based thereon, Stepmother contends there is no evidence to support the trial court's finding that Mother is obtaining and maintaining sobriety.
[¶17] However, at the fact-finding hearing, Mother testified that she completed a thirty-day inpatient substance abuse program in 2022, completed two outpatient programs since then, and attends narcotics anonymous meetings. Mother admitted there was an open CHINS case as to A. as a result of her substance abuse, but she had not failed any drug tests in "the last few months" and she was "expecting [A.] back into [Mother's] home within a couple of weeks[.]" (Id. at 198.) This evidence supports the trial court's finding that Mother has invested in obtaining and maintaining sobriety.
1.1.2 Mother's Employment
[¶18] Regarding Mother's employment, Stepmother argues that, while Mother was a supervisor at Kroger at the time of the fact-finding hearing, she had only been in that position for one week. Mother testified she had worked at Kroger from September 2021 to April 2023. After leaving Kroger, Mother worked for Henry Shein. Mother testified she recently returned to Kroger as a supervisor. Mother told the trial court, "[e]mployment has never been, uh, it's never been a problem for me." (Id. at 160.) Mother's testimony supports the trial court finding she is employed as a supervisor.
1.1.3 Mother's Housing
[¶19] Finally, regarding Mother's housing, Mother testified she had been living in the house of her boyfriend's deceased mother for five years and boyfriend did not live there because he was incarcerated. Stepmother did not indicate why this living situation was unstable. Five years in the same residence qualifies as stable housing.
[¶20] The evidence supports all subparts of Finding 60. Stepmother's arguments are invitations for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See, e.g., In re Adoption of M.S., 10 N.E.3d at 1281 (appellate court cannot reweigh evidence or judge the credibility of witnesses).
1.2 Finding 63
[¶21] Finding 63 states:
The court further finds that Mother's lack of significant contact during this year [from June 2021 until November 2022] was justifiable when the court considers that Mother was abusing drugs and admitted she was not in a good place to see [Child], that Mother has addressed her substance abuse and is in recovery with all indications to the court that she has maintained sobriety, has a job as a supervisor and a residence.(App. Vol. II at 18.) Regarding Mother's lack of significant contact with Child from June 8, 2021, to November 9, 2022, Stepmother presents the same arguments regarding Mother's sobriety, employment, and residence that she made regarding Finding 60. As we determined those portions of Finding 60 are supported by the evidence, we will not repeat that analysis here. Further, as seeking substance abuse treatment is a justifiable cause for a lack of significant conduct in an adoption proceeding, Stepmother's argument fails. See E.B.F., 93 N.E.3d at 765 (mother's of communication for one year was justifiable because she was undergoing substance abuse treatment).
1.3 Finding 64
[¶22] Finding 64 states, "Further, the Court finds that Father has put forth resistance in accommodating Mother's contact with [Child] over the years." (App. Vol. II at 18.) Stepmother argues it was Mother's substance abuse, not Father's efforts to thwart Mother's contact with Child, that kept Mother from seeing Child after March 2021. She notes Father testified he attempted to "put forth good faith efforts to arrange communication between Mother and [Child]" but that sometimes he would not allow Mother to speak to Child because Child was unavailable, such as when she was at school or sleeping. (Br. of Appellant at 24.) During those times, Father would tell Mother to contact Child at another time, though it is unclear if Mother was ultimately able to speak to Child. In Finding 46, which Stepmother does not challenge, the trial court added emphasis to the fact that Father required that he be home and available to take the call and deduced that Father did not make efforts to answer Mother's calls or texts when able to do so.
As a part of this argument, Stepmother reasserts her argument that Mother did not ask to communicate with or see Child between June 2021 and November 2022. However, as we have already addressed that argument, we will not revisit the issue in this section.
[¶23] From 2019 to 2021, Mother and Father agreed Maternal Grandparents would supervise Mother's visitation with Child. Stepmother asserted that Maternal Grandparents were not "the court appointed supervisors" and thus not appropriate to supervise parenting time between Child and Mother. (Id. at 23.) Stepmother does not indicate why a court appointed parenting supervisor was required or necessary.
[¶24] After Maternal Grandparents indicated they no longer wanted to supervise Mother's parenting time with Child, Father stated he did not feel comfortable supervising parenting time and refused to allow Mother to meet with Child at a McDonald's because it "wasn't really what we wanted to do[.]" (Id. at 20.) Father indicated the reason he did not want to supervise visitation between Mother and Child was because Mother had been violent with him in the past. However, the trial court found, and Stepmother does not challenge, that it was
not persuaded by Father's testimony that the reason he would not agree to [] let Mother see [Child] because it would not be safe. Other than Father's single statement on cross [examination] that Mother attacked him before, there is no other evidence to suggest that Mother has been or would be a physical threat to Father.(App. Vol. II at 14-15.)
[¶25] When Father indicated to Mother that he wanted a third party to supervise Mother's parenting time with Child, Mother offered Maternal Grandparents as possible parenting time supervisors, and Father refused. Father instead emailed Kids' Voice to set up supervised parenting time between Mother and Child. When Mother asked about the progress with Father setting up supervised visitation with a third party, Father would not answer her, would tell her to set something up on her own, or would not indicate whom he had contacted.
[¶26] Mother has not seen Child since 2021, but Mother has attempted to contact Child through Father on several occasions and testified she was mostly unsuccessful. Father refused to supervise Mother's parenting time with Child, refused Maternal Grandparents as supervisors despite the fact he had agreed to them in the past, and would not communicate with Mother regarding the status of visits with a third-party parenting time supervisor. Stepmother's arguments and attempts to reinterpret the evidence are an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See, e.g., In re Adoption of M.S., 10 N.E.3d at 1281 (appellate court cannot reweigh evidence or judge the credibility of witnesses). Thus, we conclude Finding 64 was supported by the evidence.
1.4 Finding 75
[¶27] Finding 75 states, "However, Petitioner has failed to prove that Mother [sic] there was a one-year period that Mother had the ability to provide child support." (App. Vol. II at 19.) Stepmother contends Mother had the means to pay child support but did not do so. We need not analyze whether Mother had the means to pay support because even if the trial court's finding was erroneous, it was a superfluous finding. See Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind.Ct.App. 2004) ("To the extent that the judgment is based on erroneous findings, those findings are superfluous and are not fatal to the judgment if the remaining valid findings and conclusions support the judgment.").
[¶28] Indiana Code section 31-19-9-8(2)(B) states a parent's consent is not required for an adoption when that parent "knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree." Stepmother does not challenge Finding 11, which states, in relevant part, "Mother was not ordered to pay child support." (Id. at 12.) Nor does Stepmother challenge the trial court's findings that Father "never asked Mother for financial support" (App. Vol. II at 18), and that "[t]o the best of Mother's knowledge, she was not required to pay support." (Id. at 19.) These unchallenged findings support the trial court's determination that Mother had not "knowingly failed to provide" support for Child. (Id.)
Parents have a common-law duty to provide support when no court order regarding a child has ever been entered. In re Adoption of N.W., 933 N.E.2d 909, 914 (Ind.Ct.App. 2010) (holding that, when no court order regarding support had ever being entered, the mother continued to have a common-law duty to support her child), trans. granted and opinion adopted in full, 941 N.E.2d 1042 (Ind. 2011) (adopting pursuant to Ind. Appellate Rule 58(A)(1)). The circumstances herein are distinguishable, however, because a court order explicitly relieved Mother of a duty to provide support.
2. Challenged Conclusion
[¶29] Stepmother challenges the trial court's conclusion that Mother's consent is required for Stepmother's adoption of Child because the trial court's findings justifying Mother's failure to have contact and provide support for Child are not supported by the evidence. However, as noted in our previous section regarding those findings, there existed evidence to support them or they were superfluous.
[¶30] The trial court found Mother made several efforts to obtain and maintain sobriety and seemed to be on the right track in her life. It found Mother had a stable residence and employment. The trial court also found Mother attempted to contact Father to speak to Child on multiple occasions and Father either did not answer her calls and texts, or did not allow Mother to see Child without any appropriate justification. Finally, the trial court found that Mother had been ordered not to pay child support. Based thereon, we hold the trial court's findings support its conclusion that Mother's consent was required for Stepmother's petition to adopt Child. Contra, e.g., In re Adoption of A.G., 199 N.E.3d 1220, 1224 (Ind.Ct.App. 2022) (mother's consent to guardians' adoption of child not required because mother, who was ordered to pay support as part of a judicial decree, did not do so when able); and contra In re Adoption of T.W. , 859 N.E.2d 1215, 1218 (Ind.Ct.App. 2006) (father's consent to guardians' adoption of child was not needed when he did not attempt to contact child for at least a one year period of time).
Conclusion
[¶31] Stepmother's challenges to Findings 60, 63, 64, and 75 fail because those Findings are supported by the evidence or are superfluous. The trial court's findings support its conclusion that Mother's consent was required for Stepmother to adopt Child. As Mother did not consent to Stepmother's adoption of Child, the trial court did not err when it denied Stepmother's petition. Accordingly, we affirm the trial court's denial of Stepmother's petition to adopt Child.
[¶32] Affirmed.
Tavitas, J., and Felix, J., concur.