Opinion
23A-AD-324
06-22-2023
S.M., Appellant-Respondent, v. C.W. and J.W., Appellees-Petitioners.
ATTORNEY FOR APPELLANT JUSTIN R. WALL HUNTINGTON, INDIANA ATTORNEY FOR APPELLEE JOSEPH K. WILEY BOWERS BREWER GARRETT & WILEY, LLP HUNTINGTON, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Huntington Circuit Court The Honorable Davin G. Smith, Judge Trial Court Cause No. 35C01-2008-AD-18
ATTORNEY FOR APPELLANT JUSTIN R. WALL HUNTINGTON, INDIANA
ATTORNEY FOR APPELLEE JOSEPH K. WILEY BOWERS BREWER GARRETT & WILEY, LLP HUNTINGTON, INDIANA
MEMORANDUM DECISION
Riley, Judge
STATEMENT OF THE CASE
[¶1] Appellant-Respondent, S.M. (Mother), appeals the trial court's findings of fact and conclusions thereon, granting Appellees-Petitioners', C.W. and J.W. (Adoptive Parents), petition to adopt the minor child, C.M. (Child).
Child's biological father consented to the adoption and is not part of these appellate proceedings.
[¶2] We affirm.
ISSUE
[¶3] Mother presents this court with one issue on appeal, which we restate as: Whether the trial court erroneously concluded that Mother's consent to the adoption of Child by Adoptive Parents was not required.
FACTS AND PROCEDURAL HISTORY
[¶4] Child was born on February 13, 2017, and has lived with Adoptive Parents since he was three days old. Adoptive Parents established temporary guardianship of Child on March 22, 2018, which was changed to permanent guardianship by order of September 5, 2018. Child has been diagnosed with autism spectrum disorder, sensory integration disorder, and food intolerances. He has sensory processing complications with foods and textures, a limited diet, oral motor difficulties, speech and language delays, touch sensitivities, strength deficits, coordination issues, issues with fine motor skills, and communication issues. Adoptive Parents have developed an extensive support network for Child to receive services from a speech language pathologist, an occupational therapist, and a pediatric physical therapist. Additionally, Child receives extensive assistance in school through his Individual Educational Plan (IEP).
[¶5] Mother was incarcerated at the time of Child's birth until approximately September 2017. After Mother was released from incarceration, she exercised regular visitation with Child in the home of Adoptive Parents. In 2018, Mother was placed at The Rose Home in Syracuse, Indiana. During that time, she exercised visitation with Child for a few hours on Sundays. In October 2018, Mother overdosed while residing at The Rose Home. She was again incarcerated in November 2018. By order dated December 31, 2018, issued in the guardianship cause, the trial court suspended Mother's visitation with Child. Since the order suspending her visitation, Mother has seen Child four times: December 2019, February 2020, June 2020, and September 2020. These four visits were each supervised by the Adoptive Parents. Mother has not seen Child in over two years and has not taken any legal steps to reinstate her visitation. She has made no contact with the Adoptive Parents, nor has she attempted to have any contact with Child since January 2021.
[¶6] On December 3, 2021, Adoptive Parents filed their amended verified petition alleging that the biological parents' consent to adoption was not required pursuant to Indiana Code section 31-19-9-8, in response to which Mother filed a motion to contest adoption on December 9, 2021. On October 26, 2022, the trial court conducted its evidentiary fact-finding hearing and issued its findings of fact and conclusions thereon on January 25, 2023. In its Order, the trial court concluded that Mother's consent to the adoption was not required "due to her failure to communicate significantly with [Child] for a period of at least one (1) year and her failure to financially support [Child]." (Appellant's App. Vol. II, p. 46). The trial court also held that it was "in the best interests of" Child to be adopted by Adoptive Parents. (Appellant's App. Vol. II, p. 46).
[¶7] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶8] In family law matters, we generally give considerable deference to the trial court's decision 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." MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Accordingly, 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. In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014).
[¶9] The trial court's findings and judgment will be set aside only if they are clearly erroneous. In re Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009). "A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment." Id. We will not reweigh evidence or assess the credibility of witnesses. In re Adoption of O.R., 16 N.E.3d at 973. Rather, we examine the evidence in the light most favorable to the trial court's decision. Id.
II. Mother's Consent
[¶10] Parental consent is generally required to adopt a child in Indiana. See Ind. Code § 31-19-9-1. However, consent to an adoption is not required from any of the following:
(1) A parent or parents if the child is adjudged to have been abandoned or deserted for at least six (6) months immediately preceding the date of the filing of the petition for adoption.
(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). Subsection (b) of this statute further provides that "[i]f 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." I.C. § 31-19-9-8(b).
[¶11] The provisions of Indiana Code section 31-19-9-8 are disjunctive, and thus any one of them provides independent grounds for dispensing with parental consent. See In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App. 2006). Adoptive Parents have the burden to prove by clear and convincing evidence that Mother's consent was not required. Id. at 2017. The trial court determined that Adoptive Parents carried their burden and concluded that Mother's consent was not required "due to her failure to communicate significantly with [Child] for a period of at least one (1) year and her failure to financially support [Child]." (Appellant's App. Vol. II, p. 46). In support of her overarching argument that the trial court erroneously granted Adoptive Parents' petition to adopt Child, Mother raises several issues. Initially, Mother contends that she was denied due process because the amended petition was deficient as it failed to put her on adequate notice. She also disputes the trial court's finding that she failed to communicate with Child for a period of at least one year and that she failed to provide financial support for Child. We will address each contention in turn.
A. Due Process
[¶12] Mother claims that Adoptive Parents failed to specifically allege in their amended verified petition for adoption that her consent to the adoption was "not required under Indiana Code § 31-19-9-8(a)(1) and (b) ([Abandonment], and (2)(A) and (B) [1-year no communication or support]." (Appellant's Br. p. 17). She maintains that, despite the Adoptive Parents' failure to include these specific allegations in their pleadings, "the trial court, sua sponte, created legal relief for the [Adoptive Parents] wherein they never argued for the same in their Amended Verified Petition. By doing so the trial court has thus become a legal advocate for the [Adoptive Parents][.]" (Appellant's Br. p. 18).
[¶13] We note that Mother failed to raise this due process argument before the trial court and, as an argument cannot be presented for the first time on appeal, she therefore has waived this issue for our review. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal).
[¶14] However, waiver notwithstanding, Indiana's notice pleading provision requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for relief to which the pleader deems entitled." Ind. Trial Rule 8(A); Buschman v. ADS Corp., 782 N.E.2d 423, 430 (Ind.Ct.App. 2003). Indiana's notice pleading rules do not require the complaint to state all elements of a cause of action. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008). Notice pleading merely requires pleading the operative facts so as to place the defendant on notice as to the evidence to be presented at trial. City of Clinton v. Goldner, 885 N.E.2d 67, 74 (Ind.Ct.App. 2008). Therefore, under notice pleading the issue of whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has been sufficiently notified concerning the claim so as to be able to prepare to meet it. Id. A complaint's allegations are sufficient if they put a reasonable person on notice as to why a plaintiff sues. Buschman, 782 N.E.2d at 430.
[¶15] In their amended verified petition, Adoptive Parents "respectfully petition[ed] the [c]ourt to adopt [Child] pursuant to Indiana Code 31-19, et seq., and Indiana Code section 31-19-9-8, which outlines when consent to adoption is not required." (Appellant's App. Vol. II, p. 67). To further support their claim that consent was not required, Adoptive Parents enumerated the following allegations in their amended verified petition:
a. [Child] has lived with both [Adoptive Parents] for the last four (4) years and nine (9) months consecutive months which is all but three (3) days of his entire life.
b. The biological father of [Child] has made no efforts regarding communication with [Child] for the past four (4) years and nine (9) months.
c. The biological mother of [Child] makes very little effort regarding communication with the minor child.
d. Neither parent have provided any remarkable financial support of the child.
e. Both natural parents have [a] history of criminal convictions, incarcerations, and patterns of criminal activity.
f. Both parents have alcohol or substance abuse problems.
g. Both the biological mother and the biological father have failed to obtain and keep safe, stable housing.
h. Both the biological mother and the biological father have an inability to meet [Child's] special needs in dealing with [Child's]
autism diagnosis of speech language development and feeding disorder.
i. The biological mother has an abuse or neglect history of other children in her household.
j. The biological father has abandoned [Child].
k. It is believed that the biological mother has had involuntary termination of the rights of the parent to other children of hers filed and prosecuted against her.
l. Neither natural parent is [a] fit and proper person to parent the minor child.(Appellant's App. Vol. II, pp. 70-71). Even though the amended verified petition did not list the specific statutory elements as to the reason Mother's consent was not required, the citation to the general Indiana Code section 3119-9-8, together with the enumerated factual allegations, sufficiently notified Mother as to the basis of Adoptive Parents' claim and enabled her to prepare to meet the evidence. Accordingly, we conclude that Mother's due process rights were not violated.
B. Communication
[¶16] Next, Mother contends that Adoptive Parents prevented Mother from maintaining and developing a relationship with Child and thwarted her opportunities for visitation. Mother maintains that Adoptive Parents "greatly frustrated Mother's ability to communicate or visit with Child due to their actions in stopping visitation outright and repeatedly not responding to Mother's requests for visits and communications regarding how Child was doing." (Appellant's Br. p. 22).
[¶17] Pursuant to Indiana Code section 31-19-9-1(2)(A), the trial court concluded that Mother's consent to the adoption was not required because she failed, without justifiable cause, to communicate significantly with Child when able to do so. We have previously held that a determination on the significance of the communication is not one that can be mathematically calculated to precision or measured in terms of standardized units per visit. In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind.Ct.App. 1999). Even multiple and relatively consistent contacts may not be found significant in context. Id. But a single significant communication within one year is sufficient to preserve a non-custodial parent's right to consent to the adoption. In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind.Ct.App. 1990).
[¶18] The record indicates that Mother initially exercised regular visitation with Child in the home of Adoptive Parents after she was released from incarceration. In 2018, when Mother was placed at The Rose Home, she exercised visitation with Child for a few hours on Sundays. After she overdosed on illegal substances in October 2018, the trial court suspended Mother's visitation with Child. After her visitation was suspended, Mother has seen Child four times: December 2019, February 2020, June 2020, and September 2020. These four visits were each supervised by the Adoptive Parents. Mother has not visited with Child since October 2020 and has not seen Child in over two years. The record is also devoid of any evidence that Mother sent letters or birthday cards, or initiated any other form of communication that may have been deemed significant. She is unaware of the support network of specialists who aid in Child's special needs, and she has never sought information or interaction with these specialists. Although Mother claimed during the evidentiary hearing that she had sent numerous text messages to Adoptive Parents, requesting visitation with Child, she did not submit evidence of those messages and the trial court found that "Mother has made no contact with the [Adoptive Parents] nor has she attempted to have any contact with [Child] since January 2021." (Appellant's App. Vol. II, p. 29). Accordingly, Mother's claim that Adoptive Parents failed to respond to her text messages to request visitation time with Child are nothing more than a request to reweigh the evidence which, within the parameters of our standard of review, we are not allowed to do. See In re Adoption of O.R., 16 N.E.3d at 973. Given the evidence, we cannot say that Mother had significant communication with Child since her final visit in September 2020 and therefore Mother's consent to the adoption of Child by Adoptive Parents was not required.
Because the provisions of Indiana Code section 31-19-9-8 are written in the disjunctive, and we find that Mother's consent was not required because she failed without justifiable cause to communicate significantly with Child when able to do so, we do not need to address Mother's argument that the trial court erroneously determined her consent was not required because she had failed to financially support Child when able to do so as required by law or judicial decree See In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind.Ct.App. 2006).
CONCLUSION
[¶19] Based on the foregoing, we hold that the trial court properly concluded that Mother's consent to the adoption of Child by Adoptive Parents was not required.
[¶20] Affirmed.
[¶21] Bradford, J. and Weissmann, J. concur