MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              May 21 2019, 10:24 am

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                                  ATTORNEY FOR APPELLEES
Deidre L. Monroe                                        Julie R. Glade
Public Defender’s Office                                Law Office of Julie R. Glade, RN,
Crown Point, Indiana                                    JD
                                                        Merrillville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

R.S.,                                                   May 21, 2019
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-AD-2812
           v.                                           Appeal from the Lake Superior
                                                        Court
J.S.S. and K.S.,                                        The Honorable Alexis Vazquez
Appellees-Petitioners                                   Dedelow, Referee
                                                        Trial Court Cause No.
                                                        45D06-1708-AD-139



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019                    Page 1 of 12
[1]   R.S. (“Father”) appeals the trial court’s grant of a petition to adopt R.D.S. 1

      (“Child”) filed by J.S.S. (“Stepfather”). Father argues Stepfather did not

      provide sufficient evidence from which the trial court could make findings and

      conclusions that: (1) Father had failed to significantly communicate with Child

      for at least a year; (2) Father had failed to provide for the care of Child for at

      least a year; and (3) adoption was in Child’s best interests. We affirm.



                               Facts and Procedural History
[2]   K.S. (“Mother”) gave birth to Child on June 25, 2011. On March 12, 2014,

      Father established paternity, was granted parenting time pursuant to the

      Indiana Parenting Time Guidelines, and was ordered to pay $50.00 per week in

      child support. Mother married Stepfather in July 2017, though Stepfather has

      been a presence in Child’s life since approximately 2012.


[3]   On August 23, 2017, Stepfather filed a verified petition for adoption, which

      alleged Father’s consent to the adoption was not required per statute. Father

      appeared at the initial adoption hearing on January 29, 2018, and orally

      objected to Child’s adoption. The trial court appointed counsel for Father. On

      March 5 and April 16, 2018, the trial court held hearings regarding Child’s

      adoption, specifically regarding whether Father’s consent was required for the

      adoption and whether adoption was in Child’s best interests. On October 2,




      1
          As part of the adoption order, Child’s name was changed to D.A.D.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 2 of 12
      2018, the trial court entered its order on adoption, outlining numerous findings

      to support its decision to grant Stepfather’s petition to adopt Child. On October

      22, 2018, the trial court issued an order and decree of adoption granting

      Stepfather’s petition to adopt Child.



                                Discussion and Decision
[4]   We will not disturb a decision in an adoption proceeding unless the evidence

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

      In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). We will not

      reweigh the evidence or judge the credibility of witnesses. Id. Instead we

      examine the evidence most favorable to the decision together with reasonable

      inferences drawn therefrom to determine whether there is sufficient evidence to

      sustain the decision. Id. The decision of the trial court is presumed correct, and

      it is the appellant’s burden to overcome that presumption. Id.


[5]   When, as here, the trial court sua sponte enters findings of fact and conclusions

      of law pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of

      review. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans.

      denied. First, we determine whether the evidence supports the findings and

      second, whether the findings support the trial court’s conclusions. Id. The trial

      court’s findings or conclusions will be set aside only if they are clearly

      erroneous. Id. A finding of fact is clearly erroneous if the record lacks evidence

      or reasonable inferences from the evidence to support it. Id. Issues on which

      the trial court makes no findings will be reviewed as a general judgment. C.B. v.

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 3 of 12
      B.W., 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. A “general

      judgment will be affirmed if it can be sustained upon any legal theory by the

      evidence introduced at trial.” Id.


                                          Consent Not Required

[6]   Generally, courts may not grant a petition for adoption without the consent of

      the child’s biological parents. Ind. Code § 31-19-9-1(a). There are, however,

      exceptions to that general rule. The exception at issue herein provides:


              (a) Consent to adoption, which may be required under section 1
              of this chapter, is not required from any of the following:


                                                   *****


                      (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:




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 4 of 12
                               (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.


      Ind. Code § 31-19-9-8(a)(2)(B) (2016). When considering whether a parent has

      knowingly failed to support a child for one year, we note “the relevant time

      period is not limited to either the year preceding the hearing or the year

      preceding the petition for adoption, but is any year in which the parent had an

      obligation and the ability to provide support, but failed to do so.” In re Adoption

      of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013), reh’g denied, trans. denied.


[7]   Father argues Stepfather did not adequately demonstrate his consent was not

      required due to failure, for a period of one year, to communicate significantly

      with Child or to provide for Child’s care. Because Indiana Code section 31-19-

      9-8 is written in the disjunctive, we need only to decide if Stepfather provided

      sufficient evidence for one of these factors. See Matter of Adoption of E.M.L., 103

      N.E.3d 1110, 1116 (Ind. Ct. App. 2018) (statute written in disjunctive therefore

      petitioner required to prove one factor), trans. denied. We conclude Stepfather

      presented sufficient evidence to support the findings and conclusion that

      Father’s consent was not required because Father had failed to provide for

      Child’s care and support for at least a year.


[8]   Regarding this issue, the trial court found:

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019    Page 5 of 12
        9. Pursuant to the Judgement on Paternity, Child Support and
        Parenting Time entered on March 12, 2014, Father was awarded
        parenting time with Minor Child on alternating weekends from
        Friday at 4:30 p.m. to Sunday at 6:00 p.m. and holidays pursuant
        to the Indiana Parenting Time Guidelines and Father’s weekly
        child support obligation was ordered at $50.00 per week in
        support.


                                             *****


        24. Per Court Orders of October 15, 2013, and March 12, 2014,
        Father was ordered to pay child support for Minor Child in the
        amount of $50.00 per week retroactive to October 15, 2013.
        Father was employed at a gas station at the time. Father worked
        odd jobs between 2014 and 2017; including, but not limited to
        working at Trinity Hospital, Wendy’s, Strack’s, his uncle’s
        company and IHOP.


        25. Between 2012 and 2014, Father paid a total of $900.00
        directly to Mother toward child support payments; and, an
        additional $200.00 in 2013.


        26. In the summer of 2014, Father contacted Mother asking her
        to meet him in Whiting, Indiana, so that he could pay her
        $150.00 toward child support. At said meeting, Father asked
        Mother for a kiss, then became angry and belligerent. Father
        appeared to be intoxicated and was unstable on his bicycle.
        Mother was concerned for her safety and Father did not give
        Mother the child support he had promised.


        27. Paternal grandmother opened a savings account for all of her
        grandchildren, including Minor Child. Father has not
        contributed toward this savings account. Father has not paid
        child support since 2014.


Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 6 of 12
      (Appellant’s App. at 8, 10) (errors in original). Father argues he was consistent

      with child support when given parenting time, he wanted to pay his child

      support and would do so starting immediately, and he “has tried [the] best he

      could to meet his obligations” despite his “incarceration, lack of driver license,

      and lack of steady employment[.]” (Br. of Appellant at 13.)


[9]   However, Father testified at the hearing that he could have paid child support

      and there was “no good reason” that he had not. (Tr. Vol. II at 144.) He also

      testified he was not “denying child support” but had money to buy “weed and

      cocaine[.]” (Id. at 165.) He indicated he did not think it was “right” for him to

      “just giv[e] [Mother] the money and [he’s] not seeing [his] kid.” (Id. at 125.)

      Father’s testimony at the hearing also supports the trial court’s findings that he

      was employed multiple times through the years and did not pay child support

      though able to do so. Father’s arguments are invitations for us to reweigh the

      evidence and judge the credibility of witnesses, which we cannot do. See In re

      Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot reweigh evidence

      or judge the credibility of witnesses). The evidence supports the trial court’s

      findings, and those findings support the court’s conclusion that Father had

      failed to provide for Child’s care and support for one year. See, e.g., Matter of

      Adoption of A.M.K., 698 N.E.2d 845, 847 (Ind. Ct. App. 1998) (affirming trial

      court’s decision that father’s consent to child’s adoption was not required

      because father did not support child for one year, during which he was

      voluntarily unemployed), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 7 of 12
                                            Child’s Best Interests

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

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

       if the trial court determines a parent’s consent is not required for adoption, the

       court still must decide if adoption is in the child’s best interests. Id. While the

       adoption statutes do not provide guidance regarding the factors a court is to

       consider when determining the best interests of the child,


               we have noted that there are strong similarities between the
               adoption statute and the termination of parental rights statute in
               this respect. See In re Adoption of M.L., 973 N.E.2d 1216, 1224
               (Ind. Ct. App. 2012) (holding that the adoption statutes and the
               termination statutes provide similar balances between parental
               rights and the best interests of the children; also holding that
               termination cases provide “useful guidance as to what makes a
               parent ‘unfit’”). In termination cases, we have held that the trial
               court is required to look to the totality of the evidence to
               determine the best interests of a child. In re I.A., 903 N.E.2d 146,
               155 (Ind. Ct. App. 2009). Relevant factors include, among
               others, a parent’s historical and current inability to provide a
               suitable environment for the child, In re J.C., 994 N.E.2d 278, 290
               (Ind. Ct. App. 2013) [,reh’g denied]; the recommendations of the
               child’s case worker or guardian ad litem; and the child’s need for
               permanence and stability, see A.J. v. Marion Cnty. Office of Family
               and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008) [, trans.
               denied].


       Id. at 1281-2. Father argues Stepfather did not provide sufficient evidence from

       which the trial court could make findings and conclude adoption was in Child’s

       best interests. We disagree.


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 8 of 12
[11]   Regarding factors relevant to Child’s best interests, the trial court found:


               10. . . . Mother discovered that Father was dropping off Minor
               Child at an undisclosed location with an unknown person. On
               several occasions, Mother requested that Father inform her of the
               name, phone number and location of the person to whom Father
               was taking their son during his parenting time. Despite repeated
               requests, Father refused to provide Mother with the requested
               information. Mother was concerned for the safety of Minor
               Child, who was a young toddler at the time, so Mother declined
               Father’s parenting time until he provided Mother with the
               information as to where and with whom Father was leaving
               Minor Child. At no time, did Father provide Mother with said
               information; instead Father advised Mother not to worry about it
               and that he was taking Minor Child to someone’s home close to
               Maternal Grandfather’s home.


                                                    *****


               16. Mother has had the same telephone number since Minor
               Child was born and has resided in the same home since 2012.
               Father has failed to provide Mother with his updated location
               and phone number(s) over time. Father admitted that he did not
               expect Mother to be able to reach him based on his changes in
               contact information, and that he had not reached out to Mother
               for parenting time as much as he could have.


               17. Over the years, Father has suffered from alcohol and drug
               addiction which have led to legal consequences for excessive use
               of alcohol, such as charges of public intoxication, disorderly
               conduct and driving under the influence . . . Furthermore, Father
               has also been charged with possession of marijuana and cocaine.
               Father has not had a driver’s license since he was 19 years old.


                                                    *****

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 9 of 12
        19. Father’s criminal arrest history includes operating a vehicle
        while intoxicated in 2012 and again in 2013; felony battery
        conviction as a plea agreement from charges of rape, criminal
        confinement, strangulation, interference with reporting a crime
        and battery causing moderate bodily injury in 2016; public
        intoxication, disorderly conduct, resisting law enforcement and
        driving while suspended in 2017. Father’s criminal behavior has
        contributed to his failure to contact his son.


                                             *****


        29. By all accounts, Minor Child is currently thriving under the
        care of Mother and Step-Father. He is happy, empathetic, bright,
        engaging and outgoing. Step-Father and Mother ensure that
        Minor Child is engaged with outside activities, and that he
        participates in a close relationship with all members of his
        extended family.


        30. Step-Father has known Mother since 2008 or 2009. During
        Mother’s pregnancy with Minor Child, Step-Father, Mother and
        Father all resided together.


        31. Step-Father has known Minor Child since birth, and became
        more actively involved in Minor Child’s life since June 2012,
        when Minor Child was only one (1) year old. Step-Father
        became more regularly involved on a daily basis and actively
        participated in Minor Child’s life and case since Minor Child was
        three or four years old.


                                             *****


        33. Minor Child considers Step-Father to be his dad and Step-
        Father considers Minor Child to be his son. The relationship
        between them consists of a close, stable father-son relationship.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 10 of 12
                  34. Step-Father is able to financially support Minor Child, and
                  provides Minor Child with everything he needs. Step-Father
                  assists Mother with providing Minor Child with health care, and
                  to provide Minor Child with support to receive the education he
                  needs.


       (Appellant’s App. Vol. II at 8-10) (errors in original).


[12]   Despite these findings, which Father does not challenge, 2 Father contends

       adoption is not in Child’s best interest because Mother “purposely refused” to

       allow Child to visit with Father. (Br. of Appellant at 15.) Father acknowledges

       he does not have a relationship with his son, and Father asks for additional time

       to develop that relationship. Father’s arguments are invitations for us to

       reweigh the evidence and judge the credibility of witnesses, which we cannot

       do. See In re Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot

       reweigh evidence or judge the credibility of witnesses). Because the trial court’s

       unchallenged findings support the trial court’s conclusion that adoption is in

       Child’s best interest, Father has not demonstrated clear error in the court’s

       reaching this conclusion. See, e.g., In re Adoption of M.L., 973 N.E.2d 1216, 1223

       (Ind. Ct. App. 2012) (concluding father unfit as parent due to continued

       substance abuse and instability; and concluding adoption was in child’s best

       interests because she was thriving in adoptive parents’ care).




       2
           Unchallenged findings “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019                    Page 11 of 12
                                              Conclusion
[13]   Stepfather presented sufficient evidence to support the trial court’s findings,

       which support the trial court’s conclusions that Father’s consent was not

       required for Stepfather’s adoption of Child and that adoption was in Child’s

       best interest. Accordingly, we affirm.


[14]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019   Page 12 of 12
