MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     Apr 19 2018, 8:50 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 APPELLANTS                                  ATTORNEY FOR APPELLEES
Philip R. Skodinski                                      Mark F. James
South Bend, Indiana                                      Anderson Agostino & Keller, PC
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of A.R.,                              April 19, 2018
S.R., C.R., and M.R.                                     Court of Appeals Case No.
                                                         71A03-1710-AD-2359
                                                         Appeal from the St. Joseph Probate
                                                         Court
                                                         The Honorable James N. Fox,
                                                         Judge
                                                         Trial Court Cause No.
                                                         71J01-1410-AD-93



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018            Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellants-Respondents, C.R. (Father) and A.H. (Mother) (collectively,

      Parents), appeal the trial court’s Order Approving Adoption in favor of

      Appellees-Petitioners, T.H. and C.H. (Adoptive Mother) (collectively, Adoptive

      Parents).


[2]   We affirm.


                                                    ISSUE
[3]   Parents raise one issue on appeal, which we restate as: Whether the trial court

      erred by granting Adoptive Parents’ petition to adopt Parents’ four minor

      children following a determination that parental consent to the adoption was

      not required.


                                   STATEMENT OF FACTS
[4]   Father and Mother are the biological parents of four children: A.R., born

      September 19, 2004; S.R., born February 15, 2008; C.R., born October 18,

      2009; and M.R., born December 5, 2012 (collectively, the Children). Parents

      have never been married. Father never legally established his paternity to S.R.

      and C.R.


[5]   Beginning in approximately October of 2012, a number of concerns were raised

      with respect to the health and well-being of the Children while in Parents’ care.

      In particular, the St. Joseph County Health Department became involved when

      it was discovered that Parents’ South Bend, Indiana, home contained

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 2 of 11
      dangerous levels of lead. Parents’ efforts to remediate the problem were

      unsuccessful, and the Health Department deemed the dwelling to be “unfit for

      habitation for children under seven.” (Appellees’ Exh. 1, p. 5). They

      eventually moved in with other family members until they could afford to finish

      remediation. Concerns had also been reported regarding Parents’ inability to

      maintain working utilities in the home. Furthermore, the Department of Child

      Services intervened with the family and offered counseling services after it was

      discovered that Parents’ oldest child, A.R., had been molested by a maternal

      grandfather with a known history of molestation. Parents did not follow

      through with counseling recommendations. Similarly, S.R.’s teacher notified

      Parents about a display of sexualized behaviors, but Parents did not follow up

      with the teacher. Parents had also reportedly allowed another relative to stay in

      their home, and this relative had physically abused the Children. In addition,

      the Children had medical, mental/emotional, and dental conditions that were

      not being properly treated.


[6]   Accordingly, because of the “long history of abuse and neglect,” on January 22,

      2015, Adoptive Parents obtained a temporary guardianship over the Children.

      (Appellees’ Exh. 1, p. 1). Adoptive Mother is Mother’s maternal aunt and, as

      such, is biologically related to the Children. The trial court ordered Parents and

      Adoptive Parents to submit to urine screens and directed Adoptive Parents to

      permit Parents “to visit with the [C]hildren and keep them informed of all

      medical appointments for the [C]hildren and results thereof as well as their




      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 3 of 11
      progress in school or any other activities of the [C]hildren.” (Appellees’ App.

      Vol. II, p. 5).


[7]   After obtaining the guardianship, Adoptive Parents enrolled the Children in

      counseling and ensured that the Children received treatment for their varying

      medical conditions. Initially, Parents regularly visited with all four Children;

      however, Adoptive Parents and the Children’s counselors noted that the

      Children were experiencing negative reactions surrounding the visits. On

      March 12, 2015, the trial court denied Adoptive Parents’ petition to suspend

      Parents’ visitation and ordered that “supervised visitation take place at Families

      First or Lifeline for a period of two (2) hours per week as set up and paid for by

      the [P]arents.” (Appellees’ App. Vol. II, p. 6). The trial court directed Parents

      to “submit to a psychological evaluation as agreed upon” and to “submit to

      drug testing within [forty-eight hours] at the South Bend Medical Foundation.”

      (Appellees’ App. Vol. II, p. 6). At some point, supervised visits were

      discontinued at the advice of the Children’s counselors. Phone calls were

      permitted, but whenever Parents attempted to call, Adoptive Parents would

      inform Parents that the Children had no desire to talk. Adoptive Parents

      indicated that they were following the advice of the counselors by giving the

      Children the option of whether to speak to Parents. Parents have not seen the

      Children since March of 2015.


[8]   In July of 2015, Dr. Anthony Berardi (Dr. Berardi) completed a report,

      detailing the results of Parents’ psychological parenting evaluations. Dr.

      Berardi concluded that Mother needed to comply with random drug screens,

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 4 of 11
      participate in individual psychotherapy, attend supervised visits, work with

      doctors and therapists in furtherance of the Children’s treatment, and

      participate in family therapy. As to Father, Dr. Berardi recommended that he

      complete a formal substance abuse assessment, participate in intensive

      outpatient treatment, attend individual and family therapy, and engage in

      supervised visitation with the Children. Dr. Berardi “strongly believe[d] that

      the [P]arents need to follow the steps outlined in his recommendations before

      any sort of reunification process should even be considered.” (Appellees’ Exh.

      1, p. 6). With the exception of attempting to participate in visits, Parents

      admittedly did not follow through with any of Dr. Berardi’s recommendations

      based on the fact that they were not specifically court-ordered.


[9]   On August 14, 2015, the trial court appointed Adoptive Parents as permanent

      guardians for the Children. On August 17, 2015, Adoptive Parents filed a

      petition seeking child support from Parents. However, because the

      Chronological Case Summary (CCS) for events occurring prior to the filing of

      an adoption petition has not been submitted to this court, there is no indication

      as to whether the trial court ordered Parents to pay child support other than the

      testimony of Adoptive Mother that “[s]upport was established through the

      court.” (Tr. Vol. II, p. 48). While there is no dispute that Parents never

      provided any monetary support on behalf of the Children, Parents claimed to

      have provided clothing and school supplies to the Children’s maternal

      grandmother, who maintained regular contact with the Children, to deliver to

      Adoptive Parents for the Children. Parents further indicated that Adoptive


      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 5 of 11
       Parents refused to accept any items/gifts for the Children. In turn, Adoptive

       Parents stated that they never received anything from Parents, directly or

       indirectly, for the Children.


[10]   On March 31, 2016, Adoptive Parents filed a Petition for Adoption of the four

       Children. In their petition, Adoptive Parents argued that parental consent to

       the adoption was not required because Parents had failed to provide support

       and failed to communicate significantly with the Children for at least one year.

       Adoptive Parents stated that they are “able to care for, support[,] and educate

       the [Children].” (Appellants’ App. Vol. II, p. 6). On May 10, 2016, Parents

       filed a Response to Petition for Adoption, in which they alleged that Adoptive

       Parents had thwarted their efforts to visit and speak with the Children. Parents

       further charged that Adoptive Parents were abusive to the Children, and it

       would therefore be contrary to the Children’s best interests to continue residing

       with Adoptive Parents.


[11]   On June 5, 2017, the trial court held a hearing on the adoption petition. On

       September 8, 2017, the trial court issued an Order Approving Adoption. In

       pertinent part, the trial court determined that neither Father nor Mother had

       paid child support for the Children for a period of over one year despite an

       ability to do so; therefore, the adoption could proceed without parental consent.

       The trial court found that the evidence established that it would serve the best

       interests of the Children to be adopted by Adoptive Parents. The CCS does not

       indicate when the trial court issued a final decree of adoption.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 6 of 11
[12]   Parents now appeal. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[13]   When reviewing a trial court’s ruling in 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 (Ind. 2014). In

       fact, in matters of family law, the trial court is generally entitled to

       “considerable deference” owing to the recognition that the trial court “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.’” Id. at 973 (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938,

       940 (Ind. 2005)). Our court will not disturb the ruling of the trial court “unless

       the evidence leads to but one conclusion and the trial judge reached an opposite

       conclusion.” Id. We neither reweigh the evidence nor assess the credibility of

       witnesses, and we consider the evidence most favorable to the trial court’s

       decision. Id. Furthermore, the trial court’s findings and judgment will only be

       set aside if they are clearly erroneous. Id. “A judgment is clearly erroneous

       when there is no evidence supporting the findings or the findings fail to support

       the judgment.” Id. (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.

       2009)).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 7 of 11
                                                       II. Consent

[14]   Parents challenge the trial court’s Order Approving Adoption based on the

       absence of parental consent. A petition for adoption of a minor child may only

       be granted if written consent has been executed by, in relevant part, “[t]he

       mother of a child born out of wedlock and the father of a child whose paternity

       has been established by” either a court proceeding or paternity affidavit. Ind.

       Code § 31-19-9-1(a)(2). 1 However, Indiana’s adoption statute includes certain

       exceptions, pursuant to which an adoption may proceed without parental

       consent. Specifically, as relevant in the present case, consent 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:
                   (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.


       I.C. § 31-19-9-8(a)(2).


[15]   Adoptive Parents bore the burden of establishing by clear and convincing

       evidence that Parents’ consent was not required. Id. 2 In their petition for

       adoption, Adoptive Parents alleged that consent was not required because of




       1
         Thus, Father’s consent to the adoption of S.R. and C.R. was not required based on the fact that he never
       established his paternity.
       2
          Parents indicate that Adoptive Parents had to prove that consent was not required “by clear, cogent and
       indubitable evidence”; however, this standard has been abrogated. (Appellants’ Br., p. 10); see In re Adoption
       of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012). In addition to citing an outdated standard, Parents have
       also improperly cited to at least one unpublished decision. See Ind. Appellate Rule 65(D).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018              Page 8 of 11
       Parents’ failure to communicate significantly and to provide support for a

       period of at least one year. The trial court dispensed with parental consent

       based solely on Parents’ failure to provide support despite an ability to do so.

       “[I]t is well-settled that parents have a common law duty to support their

       children” even in the absence of a court order mandating child support. In re

       Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct. App. 2011). “A parent’s

       nonmonetary contribution to a child’s care may be counted as support.” Id.


[16]   Here, Parents concede that they clearly “had the financial ability to support the

       [C]hildren.” (Appellants’ Br. p. 11). Thus, they insist that “[t]he problem is

       that their effmis [sic] to do so were thwarted by [Adoptive Parents].”

       (Appellants’ Br. p. 11). Parents specify that


               not only did [Adoptive Parents] not ask for suppmi [sic] but they
               refused any help. The efforts of [Parents] to support the
               [C]hildren were thwmied [sic], forcing them to provide support
               through a third party, the [maternal] grandmother. They
               supplied clothes and school supplies through her. They bought
               the [C]hildren Christmas presents but were told not to deliver
               them. The grandmother was reluctant to testify for fear of being
               denied contact with the [C]hildren.


       (Appellants’ Br. p. 11) (internal citations omitted). We find that Parents’

       argument is purely a request that we reweigh evidence, which we will not do.


[17]   The trial court heard the evidence presented by Parents that their efforts to

       directly provide materials, specifically clothing and school supplies, for the

       Children were rebuffed by Adoptive Parents. As to why no documentation was


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 9 of 11
       admitted regarding their purported efforts to support the Children, Mother

       testified that she had “a whole box of receipts” at her home, and Father stated

       that he had attached all of his receipts to the items he purchased “because it was

       clothing and sizes do change.” (Tr. Vol. II, pp. 24, 31). Although Parents did

       not specify as to how frequently they purchased items for the Children, they

       maintained that everything was provided to the Children using the maternal

       grandmother as an intermediary. The only indication that the maternal

       grandmother was reluctant to testify was based on Mother’s assertion that she

       did not ask the maternal grandmother to testify because “[i]f [the maternal

       grandmother] doesn’t do what [Adoptive Parents] say, she doesn’t get to see the

       [Children].” (Tr. Vol. II, p. 65).


[18]   On the other hand, the trial court’s file included an August 2015 filing by

       Adoptive Parents seeking an order for child support from Parents.

       Furthermore, Adoptive Parents testified that they never received any support—

       monetary or otherwise—from Parents during the entirety of the guardianship.

       Adoptive Mother specified that “[n]othing was received from” the maternal

       grandmother (i.e., Adoptive Mother’s half-sister) for the Children. (Tr. Vol. II,

       p. 42). Because it was the trial court’s prerogative to find the evidence

       presented by Adoptive Parents to be more credible and weigh it accordingly, we




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018   Page 10 of 11
       affirm its determination that Parents’ consent to the adoption was not required

       based on their failure to provide support for the Children for at least one year. 3


                                                CONCLUSION
[19]   Based on the foregoing, we conclude that Parents’ consent to the adoption of

       the Children by Adoptive Parents was not required based on a failure to provide

       support, despite an ability to do so, for a period of at least one year.


[20]   Affirmed.


[21]   May, J. and Mathias, J. concur




       3
          At the end of their brief, Parents also vaguely challenge several of the trial court’s findings as being
       unsupported by the evidence, including: Parents’ ability to appreciate the severity of the Children’s medical
       issues; the legitimacy of a letter written by A.R., detailing the abuse in Parents’ home; and the efforts made
       by Parents to reunify with the Children. These findings are not relevant to the issue of parental consent to the
       adoption. Nevertheless, even where consent is not required, the trial court may only grant a petition for
       adoption if the adoption is in the best interests of the child and if the prospective adoptive parents “are of
       sufficient ability to rear the child and furnish suitable support and education,” among other factors. I.C. § 31-
       19-11-1(a)(1)-(2). To the extent that Parents now challenge the validity of these other findings as failing to
       support the trial court’s determination that adoption is in the Children’s best interests, we find any such
       argument to be waived pursuant to Indiana Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-AD-2359 | April 19, 2018              Page 11 of 11
