In Re of the Adoption of Z.F. (Minor Child), K.F. v. A.F. (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 Sep 11 2020, 8:28 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 Yvette M. LaPlante Jeff Shoulders LaPlante LLP Bob Zoss Law Office Evansville, Indiana Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA In Re of the Adoption of Z.F. September 11, 2020 (Minor Child), Court of Appeals Case No. 20A-AD-362 K.F., Appeal from the Vanderburgh Appellant, Superior Court v. The Honorable Brett J. Niemeier, Judge A.F., Trial Court Cause No. 82D04-1907-AD-72 Appellee.

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 1 of 18 [1] K.F. appeals from the trial court’s decree of adoption. We affirm in part,

reverse in part, and remand.

Facts and Procedural History [2] Z.F. was born to K.F. and L.F. (“Father”) in April 2007. In December 2007,

the trial court issued an order establishing paternity which awarded K.F.

custody and ordered Father to pay $111 per week in child support. On June 20,

2013, the court issued an order granting a petition to modify custody filed by

Father. The order provided that Father have primary physical custody of Z.F.,

K.F. have parenting time pursuant to the Indiana Parenting Time Guidelines,

and that K.F. pay $51 dollars per week in child support. 1 K.F. made payments

of $153 in March 2014, $100 in August 2014, and $100 in September 2014. [3] On June 20, 2017, the court issued an order stating that it was in Z.F.’s best

interest that K.F.’s parenting time be modified and exercised at Father’s

discretion. The order also stated the court found K.F. in contempt for continual

nonpayment of child support. A court entry dated February 1, 2018, stated that

K.F. shall exercise one midweek supervised visit and a supervised visit every

other Saturday, that K.F. had a child support arrearage of $9,149.67 and an

arrearage for her portion of non-covered medical expenses of $1,792.49, and

1 The child support obligation worksheet attached to the court’s order included a weekly gross income for K.F. of $290, and the order stated she had the capacity to work full time at minimum wage. According to counsel for A.F., Father’s spouse, “payments were to begin in 2014 after the credit.” Transcript Volume II at 14. When asked, “[a]t about 54.2 weeks, approximately, that credit for the approximately $2,700.00 that [Father] owed you was, for lack of a better term, eaten up or used up and then you were supposed to start paying your support,” K.F. answered affirmatively. Id. at 14-15.

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that she was ordered to pay $1,000 in attorney fees.2 An entry dated June 6,

2018, stated in part that, “[b]ecause [K.F.] has missed parenting time and, on

occasion, has failed to communicate with Father about her missed parenting

time, the Court will impose the requirement that [K.F.] will confirm with

Father 48 hours in advance of any scheduled parenting time that she will be

exercising the parenting time.” Petitioner’s Exhibit F at 2. The entry further

stated K.F.’s child support arrearage had increased to $10,067.67, she still had

an arrearage for her portion of non-covered medical expenses of $1,792.49, and

she had not paid the attorney fees as previously ordered. It stated that the court

entered judgment against K.F. in favor of Father and that he would have a lien

against K.F.’s back disability payments received from her disability claim. [4] On July 18, 2019, A.F. filed a Petition for Step-Parent Adoption stating she was

married to Father and was petitioning to adopt Z.F. On the same day, Father

filed a consent to the adoption. On August 16, 2019, K.F. filed a motion to

contest the adoption, and on November 4, 2019, she made a child support

payment of $60. [5] On November 20, 2019, the trial court held a hearing at which it stated “we’re

here for a consent hearing.” Transcript Volume II at 5. The juvenile child

support clerk testified that K.F. made no child support payments for the period

2 The entry stated: “The Court acknowledges that [K.F.] is in contempt, but does not enter an Order indicating the same. However, the Court orders [K.F.] to pay $1,000 of the Father’s attorney fees . . . within six (6) months of this order.” Petitioner’s Exhibit D at 3.

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of five years and two months between September of 2014 and November 2019.

K.F. testified that she was working at McDonald’s in 2013 and 2014, earning

$7.35 per hour, and her rent was $525. She testified she had custody of a child

who was seventeen years old, and the child’s father was $25,000 behind in child

support. She testified Z.F. was born after the wreck and she had been advised

not to have him. She testified that, in 2015, she slipped on ice and injured

herself. She stated: “I was advised to reapply for social security because I

already had done it twice before. But it was denied. I missed an appointment

the first time it was denied and the second time it was denied is when I was

working at McDonald’s and my income was too high. Well, I didn’t make too

much money, there was an incident at work and I got a lawyer and the matter’s

been resolved and dismissed and McDonald’s had to give me money.” Id. at

18. She indicated she received a settlement from McDonald’s of $10,000, and

when asked how much of the payment she applied toward child support for

Z.F., she testified: “None. I bought a vehicle and then it died. I fixed it and

that’s where that money went. The entire check went to getting a vehicle.” Id. [6] K.F. testified she currently worked at Arby’s, had worked there since July, and

earned $8.50 per hour. She indicated she worked at Long John Silver’s in

November 2018 and quit after a month, she started at Cracker Barrel in

February 2019 but received only eleven hours a week, and in July she quit and

started working at Arby’s. She indicated she worked forty hours a week when

she worked at McDonald’s. She also indicated she smoked about half a pack of

cigarettes a day and had done so for a number of years. When asked how she

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supported half a pack a day, she answered “I can support myself now and I’m

also on the nicotine patch now,” “before I would do side work or my Mom

would buy them,” and “[w]hen you don’t have a job you’re not supporting

nothing.” Id. at 24. She indicated she paid thirty-five dollars a month for her

cell phone. [7] K.F. testified she and her daughter lived in a house with her brother and his

girlfriend, she did not pay him rent, she sometimes paid the utility bills, and she

had given her brother about eighty-five dollars. She indicated she was not

working in February, May, or June of 2018. She also testified that she

previously lived with her mother and her boyfriend. When asked how many

years she had not had a housing expense, K.F. testified “it’s been six years.” Id.

at 53. [8] On cross-examination, K.F. Testified she had paid $1,000 for Zo.F., her

seventeen-year-old daughter, to take a trip when her daughter was a freshman,

and on redirect acknowledged that during this time she was paying no support

for Z.F. [9] K.F.’s counsel addressed the court: “My next questions go to best interest. Has

the Court previously ruled that I cannot introduce any best interest evidence?”

Id. at 63-64. The court replied: “Correct. We’ll show that over your objection.”

Id. at 64. K.F.’s counsel then stated: “Then the remainder of my questions will

be concluded.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 5 of 18 [10] Zo.F. testified that K.F. attempted to support and provide care for Z.F. and that

“we go over there and usually we play games because he enjoys that,”

“sometimes [K.F.] goes and gets new cards or something,” “she knows what

kind of drinks he likes so she brings drinks over there for him when we come

and visit,” and “she buys him clothes and if he happens to want something, like

a new game or really anything, food, whatever, she makes sure to try her best to

give that to him.” Id. at 37-38. She indicated K.F. brought snacks when she

visited Z.F. and that she visited him regularly each month. She stated K.F.

bought an Xbox in 2016 for Z.F. to use when he visited and that he had not

visited in over two years. [11] On December 4, 2019, the court entered an order finding that K.F.’s consent to

the adoption was not necessary. The court found:

4. Petitioner [A.F.] claims the mother’s consent is unnecessary as she has failed to financially support her son for a period of at least one year even though she had the means to assist in support.

5. The mother [K.F.] failed to pay any child support for her son after 9- 2-14 through the time that the Petition to Adopt was filed on 7-18-19.

6. After the Petition was filed the mother has made one token payment of $60.00.

7. The mother admitted that in 2015, she received a $10,000 award for being injured at McDonalds, but failed to pay any support to her child with this money; instead she purchased a car.

8. The mother admits she smokes cigarettes, which by the Court’s calculations amounts to over $50 a month.

9. The mother admits that she rarely pays rent or utilities as she has been living for an extended period of time with other family members. Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 6 of 18

10. The mother admits to sending her other daughter to New York for a performance, during this time period of nonsupport, which cost approximately $1000.

11. The mother admits at various times over the last five years she worked, including full time, but she “had to make a choice” and choose not to pay support due to her needs.

12. On 6-20-17, the mother was found in contempt for failing to pay child support, but continued to fail to pay support.

13. On 2-1-18, the mother was found by a Court to owe over $9000 in back child support and $1792 in medical expenses, but continued to fail to pay support.

14. On 6-6-18, the mother was found by a Court to owe over $10,000 in back child support and $1792 in non-covered medical expenses, but continued to fail to pay support for the next year.

15. The Court acknowledges that the mother is due a tremendous amount of back support from her other child’s father, but one parent’s failure to pay doesn’t excuse another parent’s failure to pay when they still have the means to do so. Zero payments for years, even after a court order, without any attempt to even pay small amounts which were owed, is clearly a failure to support a child.

16. Indiana law in accordance with IC 31-19-9-8 requires a parent to support their child . . . .

17. The Court finds the mother did not support her child for over one year, when she had the means to do so, thus her consent to adopt is unnecessary and the stepmother can continue to proceed in this matter.

Appellant’s Appendix Volume II at 11-12. Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 7 of 18 [12] On January 27, 2020, K.F. filed a Motion for Evidentiary Hearing on Best

Interests. On January 30, 2020, the court held a hearing. 3 Near the beginning

of the hearing, K.F.’s counsel stated that a “Petition for Hearing on the issue of

best interest” had been previously filed and that she had been “informed by the

Court that the Court does not feel that is necessary at this time, given the

Court’s earlier ruling in this matter,” and the court replied “Correct.”

Transcript Volume II at 75. K.F.’s counsel stated that, as an offer to prove,

K.F. would have testified, if she were allowed to have a hearing, that she has

had continuing visits with Z.F., she is financially unable to pay support, she has

a bond with Z.F., there is no danger to him, and she feels it is in his best interest

that the bond not be cut by way of adoption. The court stated:

Well and the statute calls basically if the Court finds that consent is not necessary then we go forward with the adoption. Of [sic] consent is necessary then we go to a best interest as to whether the child should be adopted or not. So that is the reason we are not holding a best interest hearing, is because the Court has already decided [K.F.’s] consent is unnecessary. And so that is the reason for that. The Court has appointed the Public Defender[’s] Office to represent [K.F.] for the purposes of appealing this adoption.

Id. at 76.

3 The transcript of the January 30, 2020 hearing is less than five pages, and the transcript of A.F.’s testimony is less than two pages.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 8 of 18 [13] Upon questioning by her counsel, A.F. testified that she lived with Father, her

daughter, and Z.F., she was employed as a registered nurse, Father was

employed as an occupational therapy assistant, and she had a comfortable

home and adequate accommodations to care for Z.F. When asked if she

believed it was in Z.F.’s best interest that the adoption take place, she

responded affirmatively. The court stated that the petition for adoption was

granted. It entered a decree of adoption which stated a Motion to Waive Home

Study had been granted, the court heard evidence in support of the petition for

adoption, Father had signed and filed a consent to the adoption, the allegations

contained in the petition for adoption were true, and the petition should be

granted.

Discussion [14] K.F. claims that the evidence did not establish she had the ability to pay

support and that the decree of adoption did not satisfy statutory requirements.

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, and obtain a feel for the family

dynamics and a sense of the parents and their relationship with their children.

E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018). 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. Id. [15] When reviewing the trial court’s ruling in an adoption proceeding, we will not

disturb that ruling unless the evidence leads to but one conclusion and the trial Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 9 of 18

judge reached an opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662

(Ind. 2014). The trial court’s findings and judgment will be set aside only if

they are clearly erroneous. E.B.F., 93 N.E.3d at 762. 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. Id. Rather, we examine the evidence in the light most

favorable to the trial court’s decision. Id.

A. Ability to Pay

[16] K.F. argues the trial court’s findings did not address her ability to pay, the court

addressed her expenses but not her income, her child support obligation was

based on imputed income, and her ability to pay should be based on her actual

income, and that, when she was making money, she made very little. She

argues she brought snacks to her visitations with Z.F., supported a seventeen-

year-old, purchased old vehicles, and obtained food from a food bank. She

argues she received her settlement money before she had a significant arrearage,

the purchase of a vehicle using the settlement money in her situation was not a

frivolous or unnecessary expenditure, and the facts she smokes cigarettes and

does not pay rent do not mean she had the ability to pay. A.F. responds that

K.F. made no child support payments for over five years and during that time

received a settlement, held employment, and had no housing expenses. She

asserts K.F. asks this Court to reweigh the evidence.

Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 10 of 18 [17] Ind. Code § 31-19-11-1 provides in part that the trial court shall grant a petition

for adoption if it hears evidence and finds in part that the adoption requested is

in the best interest of the child and “proper consent, if consent is necessary, to

the adoption has been given.” A petition to adopt a child may be granted only

if written consent to adoption has been executed by the mother. See Ind. Code

§ 31-19-9-1. However, Ind. Code § 31-19-9-8(a) provides that consent to

adoption is not required from:

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

*****

(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.

If a petition for adoption alleges that a parent’s consent to adoption is

unnecessary under Ind. Code § 31-19-9-8(a)(2) and the parent files a motion to

contest the adoption, the petitioner for adoption has the burden of proving that

the parent’s consent to the adoption is unnecessary under Ind. Code § 31-19-9-

8. Ind. Code § 31-19-10-1.2(a). Ind. Code § 31-19-10-0.5 provides: “The party

bearing the burden of proof in a proceeding under this chapter must prove the

party’s case by clear and convincing evidence.” [18] The clear and convincing evidence standard is an intermediate standard of

proof greater than a preponderance of the evidence and less than proof beyond

a reasonable doubt. See T.D. v. Eskenazi Health Midtown Cmty. Mental Health Ctr.,

40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear and convincing,

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the existence of a fact must be highly probable. Id. “The clear and convincing

standard is employed in cases where the wisdom of experience has

demonstrated the need for greater certainty, and where this high standard is

required to sustain claims which have serious social consequences or harsh or

far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans

Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and quotations omitted). [19] The trial court found that K.F. did not support Z.F. for over one year when she

had the means to do so. A petitioner for adoption must show that the parent

had the ability to make the payments which she failed to make. In re Adoption of

K.S., 980 N.E.2d 385, 388 (Ind. Ct. App. 2012). The mere showing that a

parent had a regular income, standing alone, is not sufficient to indicate the

parent’s ability to provide support. Id. Rather, we have held: “To determine

that ability, it is necessary to consider the totality of the circumstances. In

addition to income, it is necessary to consider whether that income is steady or

sporadic and what the non-custodial parent’s necessary and reasonable

expenses were during the period in question.” Id. (quoting In re Adoption of

K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010), trans. denied). [20] The record reveals that, in 2013, K.F. was ordered to pay child support of $51

per week. The payment history admitted into evidence shows that she made

payments of $153 in March 2014, $100 in August 2014, and $100 in September

2014. After the petition for adoption was filed on July 18, 2019, and prior to

the November 20, 2019 hearing, K.F. made one support payment of $60 on

November 4, 2019. The record supports the trial court’s finding that K.F. failed

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to pay any child support after September 2014 through the date of the petition

for adoption and that, after the petition was filed, she made one token payment.

The record further reveals an order was issued on June 20, 2017, finding K.F. in

contempt for nonpayment of child support; an entry was made on February 1,

2018, stating her child support arrearage was $9,149.67 and her medical

expense arrearage was $1,792.49 and ordering her to pay attorney fees; and an

entry on June 6, 2018, stated her child support arrearage had increased to

$10,067.67. While K.F. was not always employed and had minimal hours and

earnings at times, the record supports the conclusion that she was able to

provide some level of support and knowingly failed to do so. She was

employed on full-time and part-time bases for various periods, received a

settlement, and had minimal housing expenses for an extended period. [21] The trial court was in the best position to judge the facts, and we will not

reweigh evidence or assess the credibility of the witnesses. Based upon the

record, we do not disturb the trial court’s determination that K.F.’s consent to

the adoption is not required. See In re Adoption of K.F., 935 N.E.2d at 288

(affirming the trial court’s finding the mother had the ability to pay but failed to

pay child support for at least one year and observing that, while the mother

struggled to maintain employment and was mostly unemployed, she was held

in contempt three times for failure to pay child support, the record did not show

she ever petitioned to modify her support obligation, and she had a significant

arrearage of over $14,000 where her support obligation was $47 per week).

B. Best Interest and Decree of Adoption

Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 13 of 18 [22] K.F. also maintains the decree of adoption does not satisfy the requirements of

Ind. Code § 31-19-11-1. Ind. Code § 31-19-11-1(a) provides:

Whenever the court has heard the evidence and finds that:

(1) the adoption requested is in the best interest of the child;

(2) the petitioner or petitioners for adoption are of sufficient ability to rear the child and furnish suitable support and education;

(3) the report of the investigation and recommendation under IC 31-19-8-5 has been filed;

(4) the attorney or agency arranging an adoption has filed with the court an affidavit prepared by the state department of health under IC 31-19-5-16 indicating whether a man is entitled to notice of the adoption because the man has registered with the putative father registry in accordance with IC 31-19-5;

(5) proper notice arising under subdivision (4), if notice is necessary, of the adoption has been given;

(6) the attorney or agency has filed with the court an affidavit prepared by the state department of health under:

(A) IC 31-19-6 indicating whether a record of a paternity determination; or

(B) IC 16-37-2-2(g) indicating whether a paternity affidavit executed under IC 16-37-2-2.1;

has been filed in relation to the child;

(7) proper consent, if consent is necessary, to the adoption has been given;

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(8) the petitioner for adoption is not prohibited from adopting the child as the result of an inappropriate criminal history described in subsection (c) or (d); and

(9) the person, licensed child placing agency, or local office that has placed the child for adoption has provided the documents and other information required under IC 31-19-17 to the prospective adoptive parents;

the court shall grant the petition for adoption and enter an adoption decree.

[23] K.F. argues that the trial court made no findings and heard no evidence with

respect to subsections (1) and (2) of Ind. Code § 31-19-11-1(a) and that it did not

make findings, although evidence exists in the record, with respect to

subsections (3), (4), (6), (7), (8), and (9) of the statute. She argues, “[m]ore

disturbingly, evidence regarding the child’s best interest and [A.F.’s] ability to

provide is completely absent from the record.” Appellant’s Brief at 19. A.F.

responds that her January 30, 2020 testimony was sufficient and that K.F.

admits evidence in the record satisfied the requirements of subsections (3)

through (9) of the statute. [24] The Indiana Supreme Court has held that, 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. In re Adoption of

O.R., 16 N.E.3d 965, 974 (Ind. 2014). [25] In In re Adoption of K.S., this Court concluded that the mother’s consent to the

adoption of her child by the stepmother was not required on the basis that she

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had the ability to financially support the child and willfully failed to do so. 980

N.E.2d at 388-390. We then turned to the adoption statutes and observed:

Nevertheless, we are mindful that a petition for adoption is not automatically granted following a showing that a natural parent failed to provide support when able to do so. Once the statutory requirements are met, the court may then look to the arrangement which will be in the best interest of the child. The purpose of Indiana’s adoption statutes is to protect and promote the welfare of children by providing them with stable family units. On occasion we have observed that the relationship between parent and child is a bundle of human rights of such fundamental importance that adoption statutes, being in derogation of the common law, should be strictly construed in favor of a worthy parent and the preservation of such relationship. However, in evaluating the parent-child relationship, the best interest of the child is paramount and our main concern should lie with the effect of the adoption on the reality of the minor child’s life.

Id. at 389 (citations omitted). [26] This Court in In re Adoption of K.S. then reviewed the record and held:

During the instant proceedings, the parties and the trial court focused on the statutory requirements to waive [the mother’s] consent to the adoption of [the child] by [the stepmother]. Specifically, the trial court noted on the record “the only issue today is consent. [] so, we’ll solve that today and then decide where we go from there.” The parties did not present any evidence with regard to the impact of the adoption on [the child’s] life and whether the severance of her ties with [the mother] would be in [the child’s] best interest. Therefore, we remand to the trial court to determine whether the adoption will be in [the child’s] best interest. See I.C. § 31-19-11-1(a).

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Based on the foregoing, we conclude that [the mother’s] consent to the adoption of her minor child by [the stepmother] was not required. However, we remand for further proceedings to determine whether the adoption is in [the child’s] best interest.

Id. at 389-390 (some citations omitted). [27] Here, we cannot conclude that the trial court considered or permitted the

parties to present evidence regarding the impact of the adoption on Z.F.’s life

and whether the severance of his ties with K.F. would be in his best interest, nor

can we say it considered whether A.F. is of sufficient ability to rear Z.F. and

furnish suitable support and education. See Ind. Code § 31-19-11-1(a)(1) and

(2). While A.F. indicated that she and Father were employed and had a home,

the trial court expressly stated that it did not believe a hearing on the issue of

best interest was necessary given its previous ruling that K.F.’s consent was not

required. The court stated, “the reason we are not holding a best interest

hearing, is because the Court has already decided [K.F.’s] consent is

unnecessary.” Id. at 76. The court did not hear evidence from K.F., and K.F.’s

counsel stated that, if K.F. were allowed to testify, she would have testified that

she had continuing visits and a bond with Z.F. and that it was in Z.F.’s best

interest that the bond not be severed. [28] Remand is necessary to determine whether the adoption of Z.F. by A.F. is in

Z.F.’s best interest and whether A.F. is of sufficient ability to rear Z.F. and

furnish suitable support and education. See Ind. Code § 31-19-11-1(a); In re

Adoption of K.S., 980 N.E.2d at 389-390. If the court determines on remand that

the adoption is in Z.F.’s best interest and A.F. is of sufficient ability to rear Z.F. Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020 Page 17 of 18

and furnish suitable support and education, it should also determine whether

each of the other requirements of Ind. Code § 31-19-11-1 is satisfied.

Conclusion [29] Based on the foregoing, we affirm the trial court’s determination that K.F.’s

consent to the adoption of Z.F. was not required. However, we remand for

further proceedings to determine whether the adoption by A.F. is in Z.F.’s best

interest and for other findings consistent with this opinion. [30] Affirmed in part, reversed in part, and remanded for further proceedings.

Robb, J., and Crone, J., concur.

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