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G.L.R. v. A.R.

Court of Appeals of Indiana
Aug 23, 2023
No. 23A-AD-592 (Ind. App. Aug. 23, 2023)

Opinion

23A-AD-592

08-23-2023

In Re the Adoption of G.L.R. J.D.W. and J.H.W., Appellants-Petitioners, v. A.R., Appellee-Respondent.

ATTORNEY FOR APPELLANT David W. Stone, IV Anderson, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Andrew Hopper, Judge The Honorable Christian Cage, Master Commissioner Trial Court Cause No. 48C03-2204-AD-19

ATTORNEY FOR APPELLANT

David W. Stone, IV

Anderson, Indiana

MEMORANDUM DECISION

RILEY, JUDGE.

STATEMENT OF THE CASE

[¶1] Appellants-Petitioners, J.D.W. (Grandfather) and J.H.W. (Grandmother), (collectively, Grandparents), appeal the trial court's Order requiring the consent of Appellee-Respondent, A.R. (Mother), in order for them to adopt the minor child, G.L.R. (Child).

[¶2] We affirm.

ISSUE

[¶3] Grandparents present this court with two issues, which we consolidate and restate as the following single issue: Whether the trial court's Order that Mother's consent is necessary for them to adopt Child was clearly erroneous.

FACTS AND PROCEDURAL HISTORY

[¶4] Child was born on October 21, 2013, to Mother and Ju.W. (Father), who is Grandparents' son. Mother and Father did not live together, and Mother had custody of Child. Father instituted a paternity proceeding in Madison County, Indiana, and on May 25, 2016, Father obtained an order granting him emergency custody of Child. On May 26, 2016, in violation of the emergency custody order, Mother absconded with Child to Tennessee, and she kept her and Child's whereabouts a secret from Father.

Father executed a consent to Child's adoption by Grandparents. Father does not participate in this appeal.

[¶5] In January 2021, law enforcement located Child in Tennessee and returned Child to Indiana to Father's custody, in accordance with the paternity court's emergency custody order. Father receives disability benefits due to having polio, and he lives with Grandparents in their home. Grandparents, Father, and Child have lived together since January 2021, and Grandparents and Father work as a team to provide for Child's needs. Father never sought to obtain child support from Mother, and no child support order was ever entered. After January 2021, Mother sent Child four boxes filled with items such as hairbows, costume jewelry, and clothing on her birthdays, Christmas, and one Valentine's Day. After January 2021, Mother instigated proceedings in the paternity matter attempting to alter custody and parenting time. Mother texted Grandmother daily after Child was in Father's custody, asking about Child's well-being and if Child needed anything. Grandmother ignored all of Mother's texts except one wherein Grandmother responded, "No, she's good." (Transcript p. 235). On May 23, 2021, Mother obtained an order in the paternity proceeding that she and Child would have a half-hour video chat every Sunday and Wednesday, and Mother was extremely consistent in exercising her video chat rights with Child after the order was entered.

[¶6] On April 19, 2022, Grandparents filed their petition to adopt Child. On May 6, 2022, Mother filed her objection to Child's adoption. On February 8, 2023, the trial court held a hearing on Mother's objection. Grandparents testified that they wished to raise Child without Mother's "interference" and to avoid what they considered to be spurious litigation Mother had engaged in with her own mother concerning Mother's two older children. (Tr. pp. 80, 105). Father acknowledged at the hearing that, due to his living arrangements and Grandparents' role in Child's life, Child's life would not be significantly different if the adoption were to take place.

[¶7] Mother testified at the hearing that she had taken Child to Tennessee after learning of the emergency custody order because Father had allegedly pointed a firearm at her stomach when she was pregnant, tried to run Mother over with his vehicle, and had threatened to "get rid" of Child if he had custody of her, all of which placed Mother in fear for her and Child's safety. (Tr. p. 156). Mother had pleaded guilty to Level 6 felony interference with custody and had received an eighteen-month sentence of home detention and probation which she was just about to complete. Mother had also been charged with two Counts of felony nonsupport of her two older children who were in their maternal grandmother's care. Mother invoked the Fifth Amendment when asked questions about those charges. Mother had not worked for most of 2021 due to a knee injury. Mother obtained employment in February of 2022 but slipped and fell at her worksite four days after starting, injuring the same knee. Mother received workman's compensation payments from mid-March 2022 to November 2022. Mother was hired by a retail store at the end of 2022 but was terminated after two weeks when her criminal background check revealed her criminal history. Mother continued to search for work and was required to turn in proof of her search to child support authorities.

[¶8] On February 14, 2023, the trial court entered its Order that Mother's consent to Child's adoption was necessary. The trial court ruled that Grandparents had not shown that Mother, without justifiable cause and when able to do so, had failed to communicate significantly with Child or had failed to provide support for Child. The trial court also found that Grandparents had not met their burden of proof that Mother was unfit to parent and that it was in Child's best interests that Mother's consent be deemed unnecessary.

[¶9] Grandparents now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[¶10] Grandparents challenge the evidence supporting the trial court's Order that Mother's consent is necessary for Child's adoption. The trial court entered findings of fact and conclusions thereon in support of its Order. Our supreme court recently re-iterated our standard of review in such matters as follows:

We generally show considerable deference to the trial court's decision in family law matters because we recognize that the trial judge 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. So, when reviewing an adoption case, we presume that the trial court's decision is correct, and the appellant bears the burden of rebutting this presumption. And we will not disturb that decision unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion. We will not reweigh evidence or assess the credibility of witnesses. Rather, we
examine the evidence in the light most favorable to the trial court's decision.
Matter of Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quotations and citations omitted); see also In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) (examining the trial court's order dispensing with a parent's consent to adoption for clear error).

[¶11] In addition, we observe that Mother has not filed an appellee's brief. When an appellee fails to file a brief, we do not undertake the burden of developing an argument on his or her behalf. McElvain v. Hite, 800 N.E.2d 947, 949 (Ind.Ct.App. 2013). Instead, we will reverse the trial court's determination if the appellant demonstrates a case of prima facie error. Id. "Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it." C.H. v. A.R., 72 N.E.3d 996, 1001 (Ind.Ct.App. 2017). Under a prima facie error standard of review, we are relieved of the burden of controverting arguments advanced in favor of reversal, as that burden properly rests with the appellee. M.R. v. B.C., 120 N.E.3d 220, 223 (Ind.Ct.App. 2019). However, even under this relaxed standard of review, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Id. In doing so, we still may not reweigh the evidence or reassess witness credibility. Bokori v. Martinoski, 70 N.E.3d 441, 443 (Ind.Ct.App. 2017).

II. Consent

[¶12] As a general matter, a biological parent's consent to adoption is required. In re Adoption of K.T., 172 N.E.3d 326, 336 (Ind.Ct.App. 2021), trans. denied; Ind. Code § 31-19-9-1(a). However, under certain circumstances enumerated in the adoption statute, a trial court may dispense with parental consent and allow the adoption of the child. In re Adoption of W.K., 163 N.E.3d 370, 374 (Ind.Ct.App. 2021), trans. denied. Indiana Code section 31-19-9-8(a) provides in relevant part that consent to adoption is not required from the following categories of biological parents and under the following circumstances:

(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.

The consent statute is written in the disjunctive, and each provision provides an independent basis for dispensing with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App. 2006). The petitioner in the adoption proceeding bears the burden of proving by clear and convincing evidence that the parent's consent is unnecessary. I.C. § 31-19-10-1.2(a).

[¶13] Here, the trial court entered findings and conclusions in favor of Mother on sections (a)(2)(A) (communication), (a)(2)(B) (support), and (a)(11) (fitness/best interests). Grandparents do not challenge the evidence supporting the trial court's conclusion that they had not proved that Mother failed to communicate significantly with Child for a one-year period. Therefore, we focus our analysis on the evidence relevant to the support and fitness/best interests subsections of the consent statute.

A. Support

[¶14] In order to prevail under this portion of the statute, the petitioner must show that that the parent had the ability to provide support that she failed to provide. Matter of Adoption of E.M.L., 103 N.E.3d 1110, 1116 (Ind.Ct.App. 2018), trans. denied. The ability to pay is not adequately shown by proof of income alone. Id. Instead, it is necessary to consider the totality of the circumstances, which could include whether income is steady or sporadic and what the noncustodial parent's necessary and reasonable expenses were. Id. "A parent's failure to support may have occurred during 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.L.J., 4 N.E.3d 1189, 1194 (Ind.Ct.App. 2014) (quotation omitted), trans. denied.

[¶15] Here, the evidence most favorable to the trial court's Order is that, although Mother admitted that she had paid no support for Child, there was no child support order in effect as to Mother and Mother had texted Grandmother daily after January 2021 to inquire about Child's welfare and to ask if Child needed anything. Grandmother only answered one of these daily texts, stating "No, she's good." (Tr. p. 235). In the case of In re Adoption of D.H., 135 N.E.3d 914, 924-25 (Ind.Ct.App. 2019), this court reversed the trial court's order dispensing with a natural mother's consent to a step mother's petition to adopt due to Mother's failure to provide support for a period of one year, where there was no child support order in effect for the natural mother and where the natural mother had offered financial assistance that the custodial father refused to accept, even where it had been shown that the natural mother had income and financial assistance from her significant other sufficient to provide some meaningful support for the child in question. The case for retaining Mother's right of consent in the instant case is even stronger, where since January 2021 when Child was returned to Father's care, Mother had been injured, had received workman's compensation payments for most of 2022, and had been unsuccessfully looking for work. Because there is evidence supporting the trial court's conclusion that Mother did not unjustifiably fail to support Child for a period of one year, the trial court's judgment on this issue was not clearly erroneous. See id.; see also E.W. v. J.W., 20 N.E.3d 889, 894 (Ind.Ct.App. 2014) (holding that a trial court's adoption ruling is only clearly erroneous where all the evidence leads to a conclusion opposite to that reached by the trial court), trans. denied.

[¶16] Grandparents argue that Mother's provision of gifts on Child's birthday and certain holidays did not constitute support, and we agree with that general proposition. See In re Adoption of M.A.S., 815 N.E.2d 216, 220 n.1 (Ind.Ct.App. 2004) (concluding that the occasional provision of groceries, diapers, formular, clothing, presents, and cash are gifts, not support). However, here, the trial court did not conclude that Mother's gifts had constituted support. Rather, the trial court noted that Mother had offered testimony regarding her gifts, and the court could have found that Mother's provision of gifts to Child was additional evidence of her willingness to provide for Child despite being rebuffed by Grandparents. Contrary to Grandparents' assertions, the trial court did not find that the fact that there was no support order in effect "excused" Mother's failure to pay support, nor did it find that Mother had no common law duty of support. (Appellants' Br. p. 8). Neither can we credit Grandparents' suggestions that there was an impermissible "agreement" among the parties that Mother would not provide support for Child and that Mother could have paid something from her workman's compensation benefits towards Child's support but simply chose not to do so. (Appellants' Br. p. 9). These arguments are unpersuasive because, contrary to our standard of review, they require us to ignore evidence that Mother texted Grandmother daily to inquire if Child needed anything and that these inquires were rejected. See Matter of Adoption of I.B., 163 N.E.3d at 274 (requiring us to examine the evidence in the light most favorable to the judgment). Accordingly, even under our relaxed standard of review due to Mother's failure to tender a response to Grandparents' arguments, Grandparents have failed to rebut the presumption of correctness of the trial court's Order. See id.

B. Fitness to Parent and Child's Best Interests

[¶17] Grandparents argue that they proved that Mother was unfit to parent and that dispensing with Mother's consent was in Child's best interests within the meaning of Indiana Code section 31-19-9-8(a)(11). Although the term "unfit" is not defined by the adoption consent statute, we have looked to termination of parental rights cases for guidance as to its meaning. In re Adoption of M.L., 973 N.E.2d 1216, 1223 (Ind.Ct.App. 2012). Those cases have led us to conclude that "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" are all relevant to our inquiry. Id. Regarding the "best interests" inquiry embedded in this portion of the consent statute, this court has observed that

[t]he adoption statute does not provide guidance for which factors to consider when determining the best interests of a child in an adoption proceeding, but we have noted that there are strong similarities between the adoption statute and the termination of parental rights statute in this respect. 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. 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.
In re Adoption of M.S., 10 N.E.3d 1272, 1281-82 (Ind.Ct.App. 2014) (citations omitted). Here, the trial court rejected Grandparents' argument that Mother's violation of the emergency custody rights should automatically terminate her parental rights, it found that no other evidence led to a reasonable conclusion that Mother was unfit to parent, and it concluded that Grandparents' desire to avoid Mother was inadequate to find that dispensing with Mother's consent was necessarily in Child's best interests.

[¶18] On appeal, Grandparents assert that "[t]he trial court ignored the clearly established educational and social problems of [Child] that existed when she was in [M]other's illegally retained custody for several years." (Appellants' Br. p. 13). Yet, as Grandparents acknowledge on appeal, the parties presented contradictory evidence on Child's development. Mother related that she had enrolled Child in school, where she had some behavioral issues but did well. Mother had subsequently homeschooled Child. According to Mother, prior to her return to Father's custody, Child was reading, working on her writing, and doing second grade level work. Mother also related that Child was with friends and family in Tennessee and that Child had not appeared to have had any socialization or emotional regulation issues prior to leaving her custody. On the other hand, Grandparents presented the testimony of two educators who had worked with Child at her new school in Indiana. According to those witnesses, Child was "wild" when she arrived at her new school, could not relate properly to her peers or to adults, and tested at a pre-kindergarten level when she entered the school in the first grade. (Tr. p. 14). However, one of these witnesses also acknowledged on cross-examination that Child's sudden removal from Mother could have been the source of at least some of Child's issues. It was up to the trial court as the finder of fact to weigh this conflicting evidence, and given Mother's testimony, it cannot be said that the trial court's determination regarding Mother's fitness and Child's best interests is clearly erroneous, as the trial court could have reasonably concluded that Mother had adequately addressed Child's social and educational development. See Matter of Adoption of I.B., 163 N.E.3d at 274 ; E.W., 20 N.E.3d at 894.

[¶19] Grandparents also maintain that the trial court failed to adequately take into account Mother's two nonsupport charges and the fact that she absconded to Tennessee with Child for five years. We have already addressed the trial court's conclusions regarding Mother's support of Child, Grandparents do not explain why Mother's nonsupport charges relating to her two older children are relevant here, and while we strongly condemn Mother's violation of the paternity court's emergency custody order, Grandparents have not presented us with any legal authority holding that nonsupport of other children and/or a violation of a custody order renders parental consent to adoption unnecessary. Therefore, even in light of our relaxed standard of review, Grandparents have failed to rebut the presumption we are required to follow that the trial court's Order is correct. See E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018) ("[W]hen reviewing an adoption case, we presume that the trial court's decision is correct, and the appellant bears the burden of rebutting this presumption.").

CONCLUSION

[¶20] Based on the foregoing, we conclude that the trial court's Order requiring Mother's consent to Child's adoption was not clearly erroneous.

[¶21] Affirmed.

[¶22] Bradford, J. and Weissmann, J. concur.


Summaries of

G.L.R. v. A.R.

Court of Appeals of Indiana
Aug 23, 2023
No. 23A-AD-592 (Ind. App. Aug. 23, 2023)
Case details for

G.L.R. v. A.R.

Case Details

Full title:In Re the Adoption of G.L.R. J.D.W. and J.H.W., Appellants-Petitioners, v…

Court:Court of Appeals of Indiana

Date published: Aug 23, 2023

Citations

No. 23A-AD-592 (Ind. App. Aug. 23, 2023)