FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

DONALD W. FRANCIS, JR.                         JOHN T. CASEY
MICHELLE B. DOMER                              Rensselear, Indiana
Heartland Adoption Agency
Bloomington, Indiana
                                                                     Jun 10 2013, 8:40 am


                                IN THE
                      COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE                           )
ADOPTION OF J.TA.,                             )
                                               )
R.S.P.,                                        )
                                               )
          Appellant-Petitioner-,               )
                                               )
                vs.                            )      No. 37A03-1212-AD-525
                                               )
S.S.,                                          )
                                               )
          Appellee-Respondent.                 )


                        APPEAL FROM THE JASPER CIRCUIT COURT
                             The Honorable John D. Potter, Judge
                               Cause No. 37C01-1009-AD-15




                                      June 10, 2013


                               OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                  Case Summary and Issues

       R.S.P. (“Fiancée”) appeals from the trial court’s denial of her petition to adopt J.T.A.

(the “Child”). Fiancée raises two restated issues on appeal: 1) whether the trial court erred

in concluding that the parental rights of the Child’s biological father, J.M.A. (“Father”),

would have been terminated if the petition had been granted; and 2) whether there was

sufficient evidence to support the trial court’s denial of the petition. Concluding that the trial

court was mistaken regarding termination of Father’s rights, but that there was nonetheless

sufficient evidence to support the denial of the petition, we affirm.

                                 Facts and Procedural History

       The Child was born in 2000, and it appears that he initially lived with his biological

mother, S.S. (“Mother”), and was also cared for by his maternal grandmother. At some point

in 2003 or 2004, the Child went to live with Father and Fiancée, and Father filed for custody

of the Child. Father was awarded custody in 2004, and Mother was ordered to pay child

support. It appears that the change in living situation and custody was precipitated by

Mother’s drug use.

       Fiancée and Father have been together for approximately ten years, and were engaged

to be married at the time of the hearing underlying this case. Fiancée and Father also have

two children together, aged four and five years old at the time of the hearing, who are the

Child’s half-siblings. The record indicates that all three children live together with Fiancée

and Father as a family, that the Child refers to Fiancée as “mom,” and that Fiancée is the




                                                2
Child’s primary caregiver. All parties appear to agree that Fiancée and Father provide the

Child with a loving and appropriate home.

       The record indicates that Mother never paid any child support until the adoption

petition was filed, and that Mother never affirmatively requested visitation with the Child

prior to the adoption petition—although Father and Fiancée were aware that Mother would

see the Child when the Child visited his maternal grandmother. In 2008, Mother was arrested

on drug charges. She completed a rehabilitation program while on pre-trial release, and then

spent seventeen months in prison. She was released to a group home just prior to the hearing

on the adoption petition.

       In September 2010, Fiancée filed a petition to adopt the Child. Fiancée was

concerned that, because she had no legal connection to the Child, if anything were to happen

to Father, she would lose the Child and the Child’s life would be upturned. Father signed a

consent to the adoption. Mother was served with the petition in September 2010, and her

attorney entered an appearance in the case less than two weeks later. In December 2010,

Mother filed a request for visitation. At a conference in February 2011, the court granted

Mother visitation prior to her incarceration, and the court also ordered that a home study be

prepared. In December 2011, Fiancée petitioned the court for a hearing date on the adoption

petition. After several continuances, the hearing was held in August 2012. After taking the

matter under advisement, the trial court issued findings of fact and conclusions of law, and

denied Fiancée’s petition to adopt the Child. This appeal followed. Additional facts will be

provided as necessary.


                                             3
                                  Discussion and Decision

                                   I. Standard of Review

       We will not disturb the trial court’s decision in an adoption proceeding unless the

evidence leads only to a conclusion opposite that reached by the trial court. In re Adoption of

Childers, 441 N.E.2d 976, 978 (Ind. Ct. App. 1982). We will not reweigh the evidence.

Rather, we will examine the evidence most favorable to the trial court’s decision, together

with reasonable inferences drawn therefrom, to determine whether sufficient evidence exists

to sustain the decision. Id. A petitioner for adoption without parental consent has the burden

of proof to establish, by clear and indubitable evidence, one of the statutory criteria for

dispensing with consent. Id.

              II. Termination of Parental Rights in an Intra-Family Adoption

       Fiancée first argues that the trial court was mistaken in its construction of current

Indiana law regarding termination of parental rights in intra-family adoptions. We agree.

The trial court determined that, because Father and Fiancée were not married at the time of

the hearing, if the adoption were granted then not only would Mother’s parental rights be

severed, but Father’s rights would be severed as well.           The trial court based this

determination on a reading of Indiana Code sections 31-19-15-1 and -2. Section 31-19-15-1

provides, in relevant part:

       (a) Except as provided in section 2 of this chapter or IC 31-19-16, if the
       biological parents of an adopted person are alive, the biological parents are:
              (1) relieved of all legal duties and obligations to the adopted child; and
              (2) divested of all rights with respect to the child;
       and the parent-child relationship is terminated after the adoption . . . .


                                              4
And section 31-19-15-2 provides, in relevant part, an exception such that “(a) If the adoptive

parent of a child is married to a biological parent of the child, the parent-child relationship of

the biological parent is not affected by the adoption.” However, in determining that Father’s

parental rights would be terminated under this statute because he was not married to Fiancée,

the court overlooked relevant case law.

       In In re Adoption of K.S.P., we analyzed the above statutes and held that the

biological mother’s two children could be adopted by her same-sex partner without divesting

the biological mother of her parental rights. 804 N.E.2d 1253, 1260 (Ind. Ct. App. 2004).

We examined the policy behind the adoption statutes and determined that the overriding

concern was the best interest of the child, and that for the divesting statute in particular, the

purpose “is to shield the adoptive family from unnecessary instability and uncertainty arising

from unwanted intrusions by the child’s biological family.” Id. at 1257. We noted that

       [t]his objective, however, is not advanced by application of the divesting
       statute in situations involving stepparent adoptions or second-parent adoptions,
       where the biological parent and proposed adoptive parent are both integral
       members of the proposed adoptive family. In such instances, it would be
       absurd to fear that the biological parent, here Mother, could “intrude” into her
       own family. As an oft cited trial court in New York has emphasized regarding
       this issue, termination of parental rights in the circumstances of this case
       “would be an absurd outcome which would nullify the advantage sought by the
       proposed adoption: the creation of a legal family unit identical to the actual
       family setup.” Adoption of Evan, 153 Misc.2d 844, 583 N.Y.S.2d 997, 1000
       (Sur. Ct. 1992). It is clear that the divesting statute, designed as a shield to
       protect new adoptive families, was never intended as a sword to prohibit
       otherwise beneficial intrafamily adoptions by second parents.




                                                5
Id. at 1258. And we concluded that where “the prospective adoptive parent and the

biological parent are both in fact acting as parents, Indiana law does not require a destructive

choice between the two parents.” Id. at 1260.

        Here, it is clear that both Father and Fiancée were acting as parents to the Child, that

this was an intra-family adoption, and that neither Fiancée nor Father wished to have Father’s

parental rights terminated by the adoption.1 Mother argues that K.S.P. is not on point

because unlike in that case, here Father and Fiancée could have legally married but had

simply not yet done so. We disagree, and believe that this is too narrow a reading of our

opinion. It is clear from the policy underlying the divesting statute, and the overarching

concern for the best interest of the child, that it would be absurd and contrary to the intent of

the legislature to divest Father of his parental rights where he would continue to live in a

family unit with the Child and parent the Child. Father’s parental rights would not have been

terminated had the adoption been granted.2

                                III. Mother’s Consent to the Adoption

                           A. Whether Mother’s Consent was Necessary

        The next issue is whether Mother’s consent was required for the adoption. There are

several grounds for concluding that consent to adoption is not required. See Ind. Code § 31-


        1
          It appears that, once the trial court informed Father of its belief that his parental rights would be
terminated by the adoption, Father and Fiancée decided to move forward with the adoption. Father
planned then to petition to adopt the Child himself once he and Fiancée were married. This is an
unnecessarily circuitous route to have the Child legally parented by both Fiancée and Father.
        2
           It seems that Father and Fiancée may have been married after the proceedings below took place,
or at any rate may be married by the time a second petition to adopt is filed, if they chose to re-file the
petition. In that case, this issue will then be moot.

                                                       6
19-9-8. Fiancée argued below that Mother’s consent was not necessary because either

Mother had abandoned the Child, under sub-section (a)(1) of the above statute, or Mother

had failed to support the Child, under sub-section (a)(2)(B).

       Abandonment is defined as “any conduct by the parent which evinces an intent or

settled purpose to forgo all parental duties and to relinquish all parental claims to the child.”

Childers, 441 N.E.2d at 979. The relevant time period is “at least six (6) months immediately

preceding the date of the filing of the petition for adoption.” Ind. Code § 31-19-9-8(a)(1).

Since determination of abandonment, as an ultimate fact, is in the province of the trial court,

we will affirm that determination if the evidence most favorable to the determination clearly

supports the decision. Childers, 441 N.E.2d at 979. Here, the trial court, in a conclusory

sentence and without analysis of this relevant section of the statute, determined that Mother

had not abandoned the Child. However, the evidence supports this determination, as the

record indicates that Mother had regular contact with the Child in the six months prior to the

filing of the adoption petition—during which Mother was living with her mother and saw the

Child when he visited his grandmother—and the record does not indicate that Mother

otherwise evinced an intent to relinquish all parental claims.

       However, the statute is written in the disjunctive, and thus each of the sub-sections

provides an independent ground for dispensing with consent. In re Adoption of T.W., 859

N.E.2d 1215, 1218 (Ind. Ct. App. 2006). The section regarding failure to support states that

consent is not required from a parent where their child is “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


                                                7
and support of the child when able to do so as required by law or judicial decree.”3 Ind. Code

§ 31-19-9-8(a)(2). The trial court’s findings of fact and conclusions of law indicate that the

court mistakenly believed that the timeline relevant to a determination of a failure to support

is the year preceding the hearing on the petition. While the abandonment ground requires

that the abandonment have occurred in the time immediately preceding the filing of the

petition for adoption, there is no such requirement for the failure to support ground.

       In fact, the plain language of the statute indicates that the relevant time period is any

one year period in which the parent was required and able to support the child but failed to do

so. See Ind. Dep’t of Human Servs. v. Firth, 590 N.E.2d 154, 157 (Ind. Ct. App. 1992) (“We

presume words appearing in the statute were intended to have meaning and we endeavor to

give those words their plain and ordinary meaning absent a clearly manifested purpose to do

otherwise.”) (citation omitted), trans. denied. While sub-section (a)(1) of the statute

references the six months “immediately preceding the date of the filing of the petition,” sub-

section (a)(2) only references “a period of at least one (1) year.” Ind. Code § 31-19-9-8.

Clearly, the legislature knows how to apply the requirements to only a limited time period,

but chose not to do so for the failure to support ground. See In re Adoption of Augustyniak,

508 N.E.2d 1307, 1308-09 (Ind. Ct. App. 1987) (referencing a 1969 version of the statute in

which the wording of the support ground was broader than the current version in that it did

not require a knowing failure to pay or an ability to pay, but was limited to “a period of one

(1) year immediately prior to the filing of adoption proceedings”), trans. denied; In re


       3
           Mother does not argue that the Child was not in the custody of another person. See Ind. Code §

                                                    8
Adoption of Ryan L., 435 N.E.2d 624, 626 (Ind. Ct. App. 1982) (referencing an older version

of the statute in which the current sub-sections (a)(2)(A) and (a)(2)(B) were combined, with

language otherwise tracking that of our current version, and noting that “[i]t is not necessary

that the period of non-communication be the year immediately prior to the filing of an

adoption-termination petition”). Therefore, 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.

        Here, Mother was ordered to pay support following determination of custody in 2004,

and Mother failed to pay any support until after the petition for adoption was filed. There

were therefore six years during which Mother was required to provide support and failed to

do so. The record, however, is silent as to Mother’s ability to provide support during those

years. While we agree with the trial court that it is likely that Mother was unable to provide

support while she was incarcerated, see Matter of Snyder, 418 N.E.2d 1171, 1182 (Ind. Ct.

App. 1981) (“[S]he was unable to support her children because she was either incarcerated or

unemployed.”), that sheds no light on Mother’s ability to pay during the six years prior to the

filing of the adoption petition, during which Mother was not incarcerated and was working

for at least some of those years. The burden, however, was on Fiancée to prove that the

failure to support ground was met such that Mother’s consent was not required. Childers,

441 N.E.2d at 978. That necessitated proof that Mother was required to support, able to

support, and failed to support the Child for any one year period. The record does not indicate


31-9-2-31 (defining “custodian”).

                                              9
that Mother’s ability to pay was ever investigated, much less determined, and consequently

Fiancée failed to carry her burden of proof. We therefore conclude that Mother’s consent

was required in order for the trial court to grant Fiancée’s petition to adopt the Child.

                           B. Whether Mother’s Consent was Implied

        Fiancée next argues that, even if Mother’s consent was required, it was implied

because she failed to contest the adoption within thirty days after she was notified of the

adoption. However, it appears that Mother was never given the entirety of the notification as

required by statute, and therefore her consent was not implied. We note at the outset that the

adoption statute is a bit of a puzzle, particularly when applying it to the case at hand.

Because the statute seems to have been written under the assumption that a mother would be

giving her child up for adoption, and thus that notice would be given to the father, much of

the statute is not gender-neutral and thus on the face of it appears not to apply to Mother.4

However, we do not believe that it could be the intent of the legislature to have numerous and

detailed requirements for notice to fathers and putative fathers but few or no notice

requirements for mothers.

        General notice requirements dictate that notice be given to a person whose consent is

required, but do not detail what the notice must include.5 Ind. Code § 31-19-2.5-3.


        4
           This is an area of the Indiana Code that would benefit from some re-wording by our legislature,
so that relevant sections apply explicitly to both mothers and fathers.
        5
          Where consent is not required, Indiana Code section 31-19-2.5-2 governs, and provides that
where consent of a parent has not been obtained and is unnecessary, notice must be given under Indiana
Code chapter 31-19-4.5. However, chapter 31-19-4.5 by its terms applies only to fathers. Ind. Code § 31-
19-4.5-1. It appears that the wording of this applicability section is an oversight on the part of the
legislature, and that if Mother’s consent had not been required, she would nonetheless have been entitled

                                                    10
However, Indiana Code chapter 31-19-4 specifies the notice of adoption that is to be given

after the birth of the child. While nothing in this chapter appears to directly apply to mothers,

we believe it is unlikely that the legislature intended to provide boilerplate forms detailing

the notice to be given to fathers while omitting any such guidance regarding notice to

mothers; it is much more likely that the legislature intended this chapter to apply to parents in

general—mothers and fathers—where appropriate.6 Several example forms are provided in

this and other chapters regarding the content of the notice; the section that appears to most

closely be related to the situation at hand is Indiana Code section 31-19-4-5, which provides

the form of notice to be given to a named father. While there is no one form of notice that

appears to apply, on its face, to Mother, and there is scant case law regarding the form of

notice, all of the forms provided as examples have several things in common, regardless of

their intended audience. Each requires notification regarding, among other things, that an

adoption petition has been filed, and where it was filed or who filed it; that the recipient has a

right to contest the adoption within thirty days after service of the notice; and that failure to

so contest the adoption will result in the recipient’s consent being irrevocably implied. See,




to notice under chapter 31-19-4.5.
        6
           We have stated before that because statutes governing adoption are in derogation of the common
law, they should be strictly construed. In re Gray, 425 N.E.2d 728, 730 (Ind. Ct. App. 1981). However,
we have also stated that adoption statutes should not be so strictly construed as to defeat their purpose. In
re Paternity of Baby Girl, 661 N.E.2d 873, 877 (Ind. Ct. App. 1996). Here, the purpose of the notice
requirement is to advise the biological parent of his or her rights so that they may be protected. Hunter v.
Bradshaw, 209 Ind. 71, 73 (1935). We do not believe the legislature intended to deny this notice to a
mother where she was not inherently notified by the nature of the proceedings (e.g., where she was giving
the child up for adoption).

                                                     11
e.g., Ind. Code § 31-19-4-5. It appears then that notice to Mother should have included at

least these elements.

       We have acknowledged that substantial compliance with the notice provision “will be

sufficient if the party receives notice which achieves that purpose for which the statute was

intended.” Baby Girl, 661 N.E.2d at 877. However, while the record shows that Mother was

served with notice that, and by whom, petition for adoption had been filed, and may have

also been informed that it was alleged that her consent was not required, there is no

indication that Mother was ever notified that she needed to contest the adoption within thirty

days of the notification or her consent would be implied. Therefore, without proper or

complete notice, the clock never began ticking on any requirement for Mother to contest the

adoption, and her consent was never implied.

                                         Conclusion

       Because Mother’s consent was required but never affirmatively given nor implied, the

trial court could not grant the petition. We therefore affirm the trial court’s denial of

Fiancée’s petition to adopt the Child, but note that nothing in this decision prevents Fiancée

from filing another petition to adopt the Child in the future.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




                                             12
