IN THE ADOPTIONS OF De.D. and Di.D. P.F. (Mother) v. R.D. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 22 2020, 9:30 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Katherine N. Worman Keith M. Wallace Evansville, Indiana Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE ADOPTIONS OF July 22, 2020 De.D. and Di.D. Court of Appeals Case No. 19A-AD-2922 P.F. (Mother), Appeal from the Vanderburgh Superior Court Appellant-Respondent, The Honorable Brett J. Niemeier, v. Judge The Honorable Renee Ferguson, R.D., Magistrate

Appellee-Petitioner Trial Court Cause Nos. 82D04-1812-AD-221 and 82D04- 1812-AD-222

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 19A-AD-2922 | July 22, 2020 Page 1 of 14 [1] P.F. (Mother) appeals the trial court’s grant of an adoption petition filed by

Ry.D. (Stepmother) for the adoption of Mother’s minor children, De.D. and

Di.D. (collectively, the Children). In addition to challenging the admission of

certain evidence, Mother challenges whether Stepmother presented sufficient

evidence to support the trial court’s grant of the adoption petition without

Mother’s consent. [2] We affirm.

Facts & Procedural History [3] Mother and Ri.D. (Father) are the biological parents of the Children. At the

time of De.D.’s birth in December 2008, Father and Mother executed a

paternity affidavit. Mother and Father were not in a relationship when Di.D.

was born in April 2012. Father’s paternity of Di.D. was established in a

paternity action filed in January 2013. [4] Father and Stepmother began living together in December 2011 and married in

July 2015. Although the record is not clear regarding the initial custody of the

Children, it is apparent that Father has had primary physical custody of them

since at least May 2013. In an order issued February 2014, the paternity court

modified Mother’s parenting time and specifically found:

Mother has anger issues related to her relationship with the Father. These anger issues also have been directed toward the Father’s fiancee. The Court further finds that there are issues in the Mother’s home with domestic violence involving her significant other. The Court strongly suggests that the Mother

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seek counseling to address her anger issues and the issue of domestic violence in her home. The Court retains jurisdiction, upon proper petition from the Father, to further modify or terminate Mother’s parenting time with the children if these anger issues and domestic violence issues are not addressed by the Mother.

Exhibits Vol. I at 12. [5] Due to conflicts during exchanges for parenting time, the paternity court

ordered, in November 2015, exchanges to be facilitated by the Parenting Time

Center (the PTC). Mother exercised parenting time utilizing the PTC through

October 2016. After about a six-month break, she began exercising parenting

time again in April 2017 but stopped within a month. Thereafter, the PTC had

difficulty reaching Mother and she never paid a balance due of $100. [6] In the meantime, after Mother moved into the YWCA shelter, the paternity

court issued an order on July 11, 2016, regarding custody, support, and

parenting time, which provided in part:

4. Once school begins in the summer/fall of 2016, the Mother’s current living situation at the YWCA will no longer be in the children’s best interest. If the Mother is still living at the YWCA when school begins, her parenting time will be modified to every other weekend from Saturday at 10:00 a.m. to Saturday at 6:00 p.m. and Sunday at 10:00 a.m. and Sunday at 6:00 p.m. Holidays and Special Days will be according to the Indiana Parenting Time Guidelines but shall not include overnights if the Mother is still residing at the YWCA.

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5. If the Mother can obtain adequate housing for herself and her two (2) children, consisting of at least two (2) bedrooms, and no other adults living in the home with the Mother, then the Mother’s parenting time shall be alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Holidays and Special Days shall be according to the Indiana Parenting Time Guidelines including overnights.

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9. All parenting time exchanges shall continue at the Parenting Time Center until further order of the Court.

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15. The Court orders temporary child support payable by the Mother to the Father of $50.00 per week effective Friday, July 15, 2016 and each Friday thereafter until further order. All support to he paid through the Clerk’s Child Support Office. The support amount ordered is less than mandated by the Indiana Child Support Guidelines but he [sic] Court is deviating to allow the Mother to save enough money to get suitable living accommodations for herself and her children.

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Id. at 7-8. [7] Mother never paid any child support to Father pursuant to the July 2016 order,

and she last exercised parenting time with the Children on May 21, 2017.

According to Mother, she lived at the YWCA for about four months and then

moved in with her mother in late 2016. Mother obtained her own housing in

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May 2018. At the time of the July 2016 order, Mother had a part-time job, and

she obtained full-time employment by early 2017. [8] On December 5, 2018, Stepmother filed the instant petitions to adopt the

Children, alleging that Mother’s consent was not required pursuant to Ind.

Code § 31-19-9-8. Father’s consents to the stepparent adoptions were filed

along with the petitions. After receiving notice, Mother timely objected to the

petitions, and the trial court appointed counsel for her. [9] A contested hearing was held on June 24 and August 7, 2019, regarding

whether Mother’s consent was required. The trial court took the matter under

advisement and then issued its order on October 15, 2019, which included

findings of fact. Ultimately, the court concluded that Mother’s consent was not

required because (1) Mother had failed without justifiable cause to

communicate significantly with the Children for more than a year and (2) she

willfully failed to pay child support for well in excess of a year when able to do

so. On November 14, 2019, the trial court held a final hearing on the adoption

petitions and approved the adoptions as in the best interests of the Children.

Mother now appeals. Additional facts will be provided below.

Discussion & Decision

1. Evidentiary Rulings

[10] Mother challenges the trial court’s admission of two exhibits at the consent

hearing. We review such challenges for an abuse of discretion. Snow v. State,

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77 N.E.3d 173, 176 (Ind. 2017). “An abuse of discretion occurs when the ruling

is clearly against the logic and effect of the facts and circumstances.” Id. [11] We turn first to Petitioner’s Exhibit 4, which was admitted over Mother’s

objection. This exhibit is a certified chronological case summary (CCS) of a

pending criminal matter involving Mother. The exhibit indicates that Mother

had a felony theft charge filed against her in June 2015. She pled guilty in

September 2015, and judgment of conviction was withheld in order for her to

enter a pretrial diversion program. Following two hearings where Mother

failed to appear, the criminal court held a sentencing hearing in March 2017, at

which the court placed Mother on one year of probation and ordered restitution

but still withheld judgment, indicating that it would enter the conviction as a

Class A misdemeanor if Mother was successful with probation. She was not,

and a warrant was issued for her arrest in January 2018. On December 6, 2018,

Mother appeared, now in custody, for another hearing, at which the criminal

court extended her probation by five months but indicated that she could “still

earn a misdemeanor”. Exhibits Vol. I at 25. After Mother again failed to appear

for a hearing, the criminal court issued a warrant for her arrest on May 9, 2019,

which was recalled. This criminal matter remained pending at the time of the

adoption hearing. [12] Mother argues on appeal, as she did below, that Petitioner’s Exhibit 4 was not

admissible under Ind. Evidence Rule 609 to impeach her credibility because the

felony theft – though a crime of dishonesty – had not been reduced to a

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conviction. 1 Mother is technically correct. Although she had already pled

guilty to felony theft, the CCS indicates that judgment of conviction had been

withheld by the criminal court. [13] As an alternate basis for admissibility, Stepmother argued at trial that the

evidence regarding the pending felony theft case was relevant to her claim that

one reason to dispense with consent was that Mother was unfit to parent. We

agree that the evidence was at least minimally relevant for this purpose, and

Mother does not present any developed argument otherwise. Indeed, the CCS

reflected that in the four years preceding the adoption consent hearing, Mother

had been given several chances for lenient treatment by the criminal court and

repeatedly failed due to noncompliance. The trial court did not abuse its

discretion by admitting Petitioner’s Exhibit 4. [14] The trial court also admitted Petitioner’s Exhibit 5 over Mother’s objection.

This exhibit was an uncertified CCS of a misdemeanor theft case involving

Mother. The CCS reflected charges filed in the Vanderburgh Superior Court on

September 2016 to which Mother pled guilty in July 2017 and received a 90-day

suspended sentence. Mother then failed to appear for subsequent review

1 Evid. R. 609(a) provides: “(a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.”

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hearings, and a bench warrant remained pending at the time of the adoption

consent hearing. [15] On appeal, as she did below, Mother argues that this exhibit was inadmissible

because it was an uncertified public record. Stepmother, however, requested

the trial court to take judicial notice of the CCS. Ind. Evidence Rule 201(b)(5)

“permits courts to take judicial notice of ‘records of a court of this state,’

precisely as the trial court did here.” Horton v. State, 51 N.E.3d 1154, 1160 (Ind.

2016) (quoting Evid. R. 201(b)(5)). Accordingly, we find no error.

2. Sufficiency

[16] Mother contends there was insufficient evidence to support the trial court's

conclusion that her consent to the Children’s adoption by Stepmother was not

required. Our standard of review is well settled:

We will reverse a trial court's decision in an adoption proceeding only if the evidence leads to one conclusion and the trial court reached the opposite conclusion. E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans. denied. “We do not reweigh evidence, and we consider the evidence most favorable to the decision together with reasonable inferences drawn from that evidence.” Id. We also recognize that trial courts are in the best position to judge facts, determine witness credibility, ascertain family dynamics, and evaluate the parents and their relationship with their child or children. Id.

Adoption of E.M.L., 103 N.E.3d 1110, 1115 (Ind. Ct. App. 2018), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-2922 | July 22, 2020 Page 8 of 14 [17] Further, where the trial court enters findings of fact and conclusions, as in this

case, we apply a two-tiered standard of review, determining: (1) whether the

evidence supports the findings of fact and (2) whether the findings support the

judgment. Id. We will not set aside the findings or judgment unless they are

clearly erroneous. Id. [18] In relevant part, I.C. § 31-19-9-8(a) provides that consent to 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.

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(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.

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Stepmother alleged each of the alternative bases set out above in support of her

claim that Mother’s consent was not required. The trial court found that the

evidence established the two bases set out in I.C. § 31-19-9-8(a)(2). That is, for

at least a year prior to the filing of the adoption petition, Mother failed to

communicate significantly with the Children and failed to support them. [19] With respect to lack of support, the trial court made the following findings:

26. Petitioner’s Exhibit 1 is an order from the two paternity causes between the father and mother which states that effective July 11, 2016 [Mother] was to pay child support in the amount of $50/week.

27. [Mother] testified about several jobs she had during the relevant time period.

28. [Mother] testified that she has never paid child support because she doesn’t think she should have to pay child support.

29. [Mother] testified that she could have paid child support.

30. This Court finds that Mother willfully chose not to pay child support from 7/11/2016 through the date of the filing of the adoption petitions even though according to her testimony she could have paid child support.

31. Petitioner’s Exhibit 16 is a certified record from the Vanderburgh County Clerk’s office that [Mother] did not pay any child support from July 11, 2016 through the date of filing of the adoption petitions on December 5, 2018.

Appellant’s Appendix Vol. III at 20-21. Based on these findings, the trial court

concluded that pursuant to I.C. § 31-19-9-8(a)(2)(B) Mother’s consent was not

required due to Mother’s “failure to pay child support for a period far in excess

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of one year, specifically from July 11, 2016 forward which totaled a period of

almost 2 and ½ years at the time the petition was filed on December 5, 2018

when according to [Mother’s] own testimony she could have paid child

support.” Appellant’s Appendix Vol. III at 21. [20] On appeal, Mother does not directly challenge any of the findings set out above,

nor does she dispute that she failed to pay even a single $50 weekly support

payment as required by the July 2016 order. Her argument on appeal is simply

that she did not have the ability to make the child support payments because

she was living in a shelter at the time the support order was issued and, though

she worked throughout the relevant time period, some of her jobs were only

part-time. Acknowledging that “she had a small support order and [] did poorly

in her attempts to meet it,” Mother suggests that “there is some evidence that

[she] provided direct support” through gifts and items that she purchased for the

Children. Appellant’s Brief at 19. We reject Mother’s invitation to reweigh the

evidence. [21] Indeed, Stepmother was required to prove at the hearing that Mother had the

ability to pay child support but that Mother knowingly failed to do so. E.M.L.,

103 N.E.3d at 1116. Here, in fact, the trial court expressly found that Mother

willfully failed to pay support for well in excess of a year when able to do so.

The evidence establishes that the amount of the support ordered in July 2016

was set intentionally low so that she could save money for suitable living

accommodations for herself and the Children. Mother was employed at the

time the support order was entered, and her employment situation improved

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over time. By early 2017, she was working full-time and continued to work

through the filing of the adoption petitions. Yet she never paid child support.

Mother’s own testimony reveals that this was intentional and not due to an

inability to make the small weekly support payments. When asked by her own

counsel whether she had the ability to make the payments between May 2017

and December 2018, Mother responded, “Yeah, I could’ve.” Transcript at 81.

She continued, “I was buying stuff for my household and taking care of my kids

on my own self instead of giving him $50.00 for his household.” Id. Further,

Mother’s claim that she was taking care of the Children when in her household

is refuted by the undisputed fact that she did not exercise parenting time (i.e.

have the Children in her care) after May 2017, not even after she obtained her

own housing a year later. [22] The trial court’s determination that Mother willfully chose not to pay child

support for more than a year prior to the filing of the adoption petitions despite

having the ability to pay is supported by the evidence and not clearly erroneous.

Thus, Mother’s consent to the adoptions was not required. See I.C. § 31-19-9-

8(a)(2)(B). [23] Though it is not necessary for us to reach the alternative basis for dispensing

with Mother’s consent, we briefly address it. The trial court entered detailed

findings of fact regarding Mother’s limited contact with the Children between

late May 2017 and December 5, 2018. In this period of more than a year

leading up to the filing of the adoption petitions, the trial court found that

Mother had only two contacts with the Children. One occurred on June 8,

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2017, when Mother attended the graduation at Di.D.’s preschool and briefly

interacted with the Children. Mother’s second and only other contact during

this time was about six months later, on December 14, 2017, when she went to

the Children’s school and had lunch with De.D. and then stopped by Di.D.’s

classroom. Mother claimed during her testimony to have seen the Children

several other times at school and elsewhere, but other evidence presented at the

hearing conflicted with her account. Further, in its findings, the trial court

specifically found that Mother was not a credible witness, and the court detailed

its many reasons for so finding. Finally, we note that the trial court found that

Mother could have exercised parenting time at the PTC during the relevant

time period, but she chose not to and refused to pay a $100 fee to the PTC. The

trial court’s findings are supported by the evidence and the findings support its

conclusion that, without justifiable cause, Mother failed to communicate

significantly with the Children for a period of more than a year when she was

able to do so. [24] In passing, Mother also argues on appeal that Stepmother’s adoption of the

Children is not in their best interests. See In re Adoption of M.S., 10 N.E.3d 1272,

1281 (Ind. Ct. App. 2014) (citing I.C. § 31–19–11–1(a)(1)). In this regard,

Mother directs us to her own testimony at the consent hearing in which she

disparaged Father’s character, claimed that she now has suitable income and

housing, and claimed to have had very meaningful contact with the Children.

The trial court was not required to, and in fact did not, believe Mother’s

generally unsupported and self-serving testimony. The evidence favorable to

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the judgment reveals that Stepmother has actively helped raise the Children for

many years and continued to do so when Mother essentially dropped out of

their lives in the middle of 2016 until after the adoption petitions were filed in

December 2018. The trial court’s determination that adoption is in the best

interests of the Children is not clearly erroneous. [25] Judgment affirmed.

Bailey, J. and Crone, J., concur.

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