In re the Adoption of A.S.C., N.L. v. P.F. and S.F. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 20 2018, 8:35 am regarded as precedent or cited before any 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 ATTORNEYS FOR APPELLEE J. Clayton Miller Ryan H. Cassman Jordan Law, LLC Brandi A. Gibson Richmond, Indiana Coots, Henke & Wheeler, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Adoption of A.S.C., April 20, 2018

N.L., Court of Appeals Case No. 68A05-1710-AD-2365 Appellant-Respondent, Appeal from the Randolph Circuit v. Court The Honorable Jay L. Toney, P.F. and S.F., Judge Trial Court Cause No. Appellees-Petitioners. 68C01-1608-AD-164

Mathias, Judge. [1] The Randolph Circuit Court granted P.F. and S.F.’s petition (collectively “the

Petitioners”) to adopt A.S.C. over the biological mother’s (“N.L.”) objection

after concluding that her consent to the adoption was not required. N.L.

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appeals and argues that the trial court erred in granting the petition in several

respects. First, she argues that the trial court should not have granted the

adoption petition because S.F. has a felony conviction for non-support of a

dependent. N.L. also argues that the trial court erred when it found that her

consent was not required because she knowingly failed to support A.S.C. for

more than one year. Finally, N.L. contends that the adoption is not in A.S.C.’s

best interests. [2] We affirm.

Facts and Procedural History [3] A.S.C. was born on October 23, 2009, to N.L., her biological mother, and

K.C., her biological father. P.F., who is married to S.F., is K.C.’s mother and

A.S.C.’s paternal grandmother. After A.S.C. was named a child in need of

services (“CHINS”) when she was thirteen months old, P.F. was named

A.S.C.’s guardian, and the CHINS proceedings were closed. In 2013, N.L. was

ordered to pay child support for A.S.C. in the amount of $43 per week. [4] In order to modify or terminate the guardianship, N.L. was required to

complete a drug rehabilitation program, abstain from any illegal drug use or

substance abuse for six months immediately preceding a request for

modification or termination of the guardianship, maintain stable housing, and

complete an anger management program. N.L. never made any effort to satisfy

the requirements for modifying or terminating the guardianship.

Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018 Page 2 of 11 [5] In June 2012, a protective order was issued in favor of A.S.C. and against N.L.

N.L.’s parenting time with the child was suspended as a result. The protective

order expired in 2014, and supervised parenting time of one hour per week

resumed. N.L. did not always attend her parenting time. N.L.’s employment

history is sporadic, and she does not have custody of her other three children.

She also lacked stable housing and has lived with her mother, friends, and

boyfriends. N.L. has a long history of substance abuse and illegal drug use. [6] N.L. has been incarcerated on multiple occasions since A.S.C.’s birth. On July

13, 2015, N.L. was charged with and later convicted of possession of

methamphetamine and theft in Wayne County, Indiana. In June 2016, she was

charged as a fugitive from justice in Darke County, Ohio. In that same month,

N.L. was charged with battery resulting in bodily injury and interference with

reporting a crime in Randolph County, Indiana. N.L. was convicted of the

battery charge. In August 2016, N.L. was charged with tampering with

evidence in Darke County, Ohio. In November 2016, she was charged with

telephone harassment and criminal damaging-endangering in Darke County,

Ohio. She was convicted of criminal damaging-endangering. And most

recently, she was charged and convicted of criminal damaging-endangering in

Darke County, Ohio in March 2017. [7] N.L. made only six child support payments in 2013 and 2014. Her payments

coincided with the State seeking to enforce the child support order. N.L.’s last

child support payment was made on March 10, 2014. The child support order

remained in effect, but the Petitioners asked the State to cease its attempts to

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collect support because they did not want N.L. or their son K.C. to be

incarcerated for failing to pay child support. P.F. told N.L. that the prosecutor’s

office would no longer attempt to collect unpaid support, but that N.L. was still

obligated to pay child support. N.L. has not provided any child support for

A.S.C. since the last payment made in March 2014. [8] On August 1, 2016, the Petitioners filed a petition to adopt A.S.C. with K.C.’s

consent. N.L., who was incarcerated at the time, filed a notice to contest the

adoption. A home study was completed, and it was recommended that the

Petitioners be allowed to adopt A.S.C. [9] The trial court set a hearing on the petition for December 30, 2016. N.L. was

shot by her boyfriend the night before the hearing and requested a continuance.

The trial court granted her request and reset the final hearing for January 31,

2017. The court reset the final hearing date again because N.L. contacted the

court to request a court-appointed attorney. N.L. requested three additional

continuances and the final hearing was rescheduled to May 30, 2017. [10] The final hearing was conducted on May 30 and July 5, 2017. The evidence

established that seven-year-old A.S.C. is a happy child who excels in school and

has many friends. [11] N.L. admitted that she has not paid child support for A.S.C. since 2014, but

alleged that P.F. told her that she was no longer obligated to do so. N.L. also

testified that she had recently completed an anger management program. On

the date of the hearing, N.L. was living with her mother.

Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018 Page 4 of 11 [12] S.F. admitted that he was found in contempt multiple times for failing to

support his children from a prior marriage. And in 2005, S.F. was convicted of

felony nonsupport of a dependent child. S.F. acknowledged that his failure to

pay child support was entirely his fault. S.F. eventually paid the arrearage and

has maintained his relationship with his children. [13] On September 13, 2017, the trial court issued a decree of adoption. The trial

court found that N.L.’s consent to the adoption was not required because she

failed to pay child support for at least forty-one months while under a court

order to do so. The trial court also found that N.L.’s consent to the adoption

was not required because N.L. is an unfit mother and the adoption was in

A.S.C.’s best interests. N.L. now appeals.

Standard of Review [14] Pursuant to statute, a trial court shall grant a petition for adoption if the

adoption is in the child’s best interest, the petitioners are sufficiently capable of

rearing and supporting the child, and proper consent, if required, has been

given. Ind. Code § 31-19-11-1(a). We will not disturb a trial court’s ruling in an

adoption proceeding unless the evidence leads only to the conclusion opposite

that of the trial court. E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014),

trans. denied. “Appellate deference to the determinations of our trial court

judges, especially in domestic relations matters, is warranted because of their

unique, direct interactions with the parties face-to-face, often over an extended

period of time.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We do not

reweigh evidence ,and we consider evidence most favorable to the decision Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018 Page 5 of 11

together with reasonable inferences drawn from that evidence. E.W., 20 N.E.3d

at 894. Where, as here, an adoption petition is filed without the required

parental consent, the party seeking to adopt bears the burden to prove the

statutory criteria for dispensing with consent by “clear and convincing

evidence.” In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004). [15] In this case, the trial court entered written findings of fact and conclusions of

law pursuant to Indiana Trial Rule 52(A). Therefore, we determine whether the

evidence supports the findings of fact and second, we determine whether the

findings support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind.

Ct. App. 2009). Our court “shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses.” T.R. 52(A).

Discussion and Decision [16] N.L. argues that the trial court erred when it issued the decree of adoption

because S.F. has a felony conviction for non-support of a dependent child and

the evidence does not support the trial court’s findings that she knowingly failed

to support A.S.C. for at least one year. N.L. also contends that the adoption is

not in A.S.C.’s best interests.

I. S.F.’s Felony Conviction

[17] First, we address N.L.’s argument that the trial court erred when it granted the

petition for adoption because S.F. has a prior felony conviction for nonsupport

of a dependent. Indiana Code section 31-19-11-1(c) provides in relevant part

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that “a conviction of a misdemeanor related to the health and safety of a child,

or a conviction of a felony not listed” in the subdivisions of the statute “by a

petitioner for adoption is a permissible basis for the court to deny the petition

for adoption.”1 It was therefore within the discretion of the trial court whether

to deny the petition for adoption after considering the fact that S.F. was

convicted of felony nonsupport of a dependent child in 2005. [18] The trial court considered S.F.’s conviction and the fact that he was held in

contempt more than once for failing to pay child support for his dependent

children. Eventually, S.F. paid the child support owed and he expressed regret

for failing to pay child support. S.F. testified that he did not pay child support

because he was angry at his former wife and he would not make that mistake

again. The trial court acted within its discretion when it considered S.F.’s

conviction and testimony and decided that it would not deny the petition to

adopt due to S.F.’s prior conviction.

II. Was N.L.’s Consent to Adoption Required?

[19] The adoption of a minor child generally requires, among other things, the

written consent of the child’s mother, and, if the child is born out of wedlock,

the consent of the child’s father whose paternity has been established by law. In

re B.W., 908 N.E.2d 586, 590 (Ind. 2009); Ind. Code § 31-19-9-1. A.S.C.’s

1 A person who has been convicted of neglect of a dependent may not adopt a child. See Ind. Code § 31-19- 11-1(c); see also In re I.B., 32 N.E.3d 1164, 1172 (Ind. 2015). However, nonsupport of a dependent is not listed as an offense that operates as a mandatory bar to adoption. See id.

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biological father consented to the adoption, but N.L. did not. The Petitioners

argued, and the trial court found, that N.L.’s consent was not required. [20] Indiana Code section 31-19-9-8(a) provides that consent to adoption is not

required by

A parent of a child in the custody of another person if for a period of at least one (1) year the 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.

***

A parent if . . . a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and [] the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.

It is well established that the provisions of Indiana Code section 31-19-9-8 are

disjunctive, and “as such, either provides independent grounds for dispensing

with parental consent.” In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

App. 2006). [21] The trial court found N.L.’s consent to the adoption was not required because

N.L. knowingly failed to provide support for A.S.C. for at least forty-one

months and N.L. was an unfit parent. The court also found that granting the

petition to adopt was in A.S.C.’s best interests. [22] N.L. admitted that she failed to pay child support after her last payment in

March 2014, but she argues that she did not knowingly fail to pay support. She

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testified that she stopped paying support because P.F. told her she no longer

needed to do so. P.F. testified that she told N.L. that she withdrew her request

to the prosecutor to pursue the unpaid child support so that N.L. and K.C.

would not be incarcerated for their failure to pay. But, P.F. told N.L. she was

still ordered to pay child support due to the order issued in the guardianship

proceedings. [23] The trial court credited P.F.’s testimony and concluded that N.L. failed to pay

court-ordered child support for at least forty-one months. The trial court also

found that N.L. had funds available to pay child support but used the money to

pay fees and fines imposed in her numerous criminal proceedings. And, on

appeal, N.L. does not claim that she lacked funds to pay child support.

Moreover, the petition to adopt A.S.C. alleged that N.L.’s consent was not

required, in part, because she had not contributed to the child’s support for the

last two years. N.L. did not attempt to contribute to the support of A.S.C. even

after she was served with the petition to adopt. This evidence supports the trial

court’s finding that N.L. knowingly failed to provide child support even though

she had money to do so, and therefore, N.L.’s consent to the adoption was not

necessary.

III. A.S.C.’s Best Interests

[24] Finally, N.L. does not challenge the trial court’s finding that she is an unfit

mother, but she argues that the adoption is not in A.S.C.’s best interests. N.L.

argues that P.F. is A.S.C.’s guardian which “sufficiently resolves A.S.C.’s

needs” and that she has a close bond with A.S.C. Appellant’s Br. at 9. Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018 Page 9 of 11

[25] The primary concern in every adoption proceeding is the best interests of the

child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind. Ct. App. 2012). Even

if a court determines that a natural parent’s consent is not required for an

adoption, the court must still determine whether adoption is in the child’s best

interests. See I.C. § 31-19-11-1(a)(1). In making this determination, the trial

court must consider “the totality of the evidence to determine the best interests

of a child.” In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014).

“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.” Id. at 1281–82 (internal citations omitted). [26] A.S.C. was raised and cared for by the Petitioners for over six years when the

adoption decree was issued. She is a happy child, does well in school, and has

many friends. The Petitioners have created a loving and stable home

environment for A.S.C. [27] A.S.C. loves N.L. and N.L. loves her in return, but N.L. is not fit to parent

A.S.C. N.L.’s history of substance abuse and criminal activity speaks for itself.

Moreover, N.L.’s lack of commitment to A.S.C. is evident in this case. A.S.C.

was adjudicated a CHINS when she was thirteen months old and after P.F. was

named A.S.C.’s guardian, and the CHINS proceedings were closed. In addition

to failing to pay child support, N.L. never attempted to complete any of the

requirements that would have allowed her to seek modification or termination

of the guardianship.

Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018 Page 10 of 11 [28] For all of these reasons, we agree with the trial court that the adoption was in

A.S.C.’s best interests.

Conclusion [29] The trial court did not err when it determined that N.L.’s consent to A.S.C.’s

adoption was unnecessary and that adoption was in A.S.C.’s best interests. [30] Affirmed.

Najam, J., and Barnes, J., concur.

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