MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 17 2017, 5:37 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
Matthew J. McGovern                                      Larry O. Wilder
Anderson, Indiana                                        Jeffersonville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of:                                   October 17, 2017
E.L.I. (Minor Child),                                    Court of Appeals Case No.
                                                         10A01-1702-AD-262
N.I. and R.I.                                            Appeal from the Clark Circuit
                                                         Court
Appellants-Petitioners,
                                                         The Honorable Andrew Adams,
        v.                                               Judge
                                                         Trial Court Cause No.
P.R.H. (Natural Mother) and                              10C01-1603-AD-12
R.L.I. (Natural Father),
Appellees-Respondents.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017        Page 1 of 12
                                Case Summary and Issue
[1]   N.I. and R.I. (“Grandparents”) appeal the trial court’s order denying their

      petition for adoption of E.L.I., the daughter of their son, R.L.I. Grandparents

      raise one issue for our review, which we restate as: whether the trial court erred

      in denying their petition for adoption by failing to make the required findings to

      support that result. Concluding the trial court’s findings of fact are insufficient,

      we remand for findings that address the proper statutory considerations.


                            Facts and Procedural History
[2]   E.L.I. was born on November 22, 2002, to P.R.H. (“Mother”) and R.L.I.

      (“Father”). In November 2004, Father filed a petition to establish paternity of

      E.L.I. The parties stipulated that Father was the natural father of E.L.I. and

      the paternity court preliminarily ordered that Mother and Father share joint

      legal custody with Mother maintaining primary physical custody and Father

      having extended parenting time. The paternity court also appointed a special

      advocate to provide a recommendation for custody and parenting time. In her

      report filed with the court, the special advocate explained that “[m]ost troubling

      is [Mother’s] involvement with drug dealers and drug users, which would

      include her live-in boyfriend.” Appellant’s Appendix, Volume III at 50. The

      special advocate concluded that although “[n]either parent is a great candidate

      for [E.L.I.’s] care[,]” Father should be awarded primary physical custody

      because he lived with his parents and thus had “a bit more stability.” Id. The

      trial court also appointed a guardian ad litem who recommended that the


      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 2 of 12
      parties have joint legal custody, with Mother to retain primary physical custody

      and Father to have parenting time according to the Guidelines.


[3]   On July 14, 2005, Grandparents appeared in the action and filed a petition for

      custody of E.L.I. Grandparents alleged they had been the de facto custodians

      of E.L.I. since her birth and that neither Father nor Mother were fit to care for

      E.L.I. Mother filed a motion to dismiss Grandparents’ petition, and the

      guardian ad litem recommended to the court that Mother retain primary

      physical custody because E.L.I had not been physically harmed while in

      Mother’s custody. Grandparents and Mother reached an agreement on

      November 1, 2005, wherein Mother and Grandparents would “share joint

      custody” of E.L.I. Id. at 129. The agreement acknowledged that Father was

      incarcerated and incapable of exercising visitation with the child. Id. The

      Court approved the agreement and ordered Father to have no contact with

      E.L.I. Id.


[4]   On July 11, 2011, Mother and Grandmother were involved in an altercation at

      Mother’s home. Police discovered methamphetamine and drug paraphernalia

      in the home and Mother admitted she was addicted to methamphetamine. The

      Clark County Department of Child Services investigated and obtained an

      emergency custody order over E.L.I., thereafter placing E.L.I. with

      Grandparents. On August 5, 2011, Grandparents filed a petition to modify

      custody. The paternity court awarded sole physical and legal custody of E.L.I.

      to Grandparents. The paternity court ordered Mother’s parenting time be

      supervised by Grandparents and later granted Father supervised visitation.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 3 of 12
[5]   Mother was incarcerated between 2012 and 2014 on drug related charges. On

      June 15, 2015, Mother filed a petition to modify custody alleging that she was

      “drug free and employed.” Appellant’s App., Vol. III at 149. In her petition,

      Mother requested incremental visitation and the paternity court appointed a

      guardian ad litem.


[6]   On March 4, 2016, Grandparents filed a petition to adopt E.L.I. and provided

      notice to Father and Mother. The petition alleged Father had consented to the

      adoption and further alleged Mother’s consent was not required because she

      had failed for a period of at least one year to communicate with and provide

      care and support for E.L.I. During a hearing on April 20, 2016, the parties

      agreed the adoption court has exclusive jurisdiction and the paternity case was

      transferred to that court and consolidated with the adoption case.1 A day later,

      the guardian ad litem appointed in the paternity case filed her report

      recommending Grandparents remain permanent custodians of E.L.I. The

      guardian ad litem also recommended that Grandparents investigate the

      financial benefits of adoption for E.L.I.


[7]   On November 14, 2016, Mother requested the trial court make findings of fact

      and conclusions of law. After a hearing on November 18, 2016, the trial court




      1
       Indiana Code section 31-19-2-14(a) provides, “If a petition for adoption and a paternity action are pending
      at the same time for a child sought to be adopted, the court in which the petition for adoption has been filed
      has exclusive jurisdiction over the child, and the paternity proceeding must be consolidated with the adoption
      proceeding.”

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017           Page 4 of 12
made eleven findings of fact and denied Grandparents’ petition for adoption.

The court’s findings were:


        1. That the adoption terminates the parental rights of the
        biological parent(s); without a separate post adoption visitation
        agreement.


        2. That [Grandparents] have been the de facto custodians of
        [E.L.I.] through [the paternity case] since approximately August
        2011 by agreed order.


        3. That [Mother] was incarcerated from December 2012 to
        September 2014.


        4. That during her incarceration, [Mother] made attempts to
        contact [E.L.I] and sent letters.


        5. That upon her release, [Mother] had contact with [E.L.I.]
        routinely by phone and sought additional contact and visitation.


        6. That [Mother] was advised that [E.L.I.] was choosing not to
        communicate with her mother and did not wish to have
        visitation.


        7. That [Father] consents to the adoption but continues to have
        regular contact with [E.L.I.] at the [Grandparents’] residence.


        8. That through [the paternity case] the Court appointed [a]
        Guardian Ad Litem . . . and her recommendations were that
        [Mother] begin visitation with [E.L.I.] beginning with therapeutic
        sessions.




Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 5 of 12
              9. That [Mother] has continued in this pursuit to have a parental
              relationship with [E.L.I.] even if small.


              10. The parties have agreed not to pursue or force the issue of
              visitation out of concerns for [E.L.I.’s] emotional and mental
              stability.


              11. The [Grandparents] believe it is in [E.L.I.’s] best interest that
              the adoption be granted, they believe that any contact between
              [E.L.I.] and [Mother] would be a harm to the child, and that
              [E.L.I.] may benefit from the [Grandparents’] social security
              benefits in the amount of approximately one thousand eight
              hundred dollars ($1,800.00) per month.


              The Court hereby DENIES the [Grandparents’] Petition for
              Adoption and identifies a parent’s parental rights and pursuit of a
              relationship over the financial interest or benefit [E.L.I.] or the
              [Grandparents] may receive.


      Appellant’s App., Vol. II at 86-87. This appeal ensued.



                                 Discussion and Decision
                                      I. Standard of Review
[8]   We will not disturb a trial court’s ruling in an adoption proceeding unless the

      evidence leads only to the conclusion opposite that of the trial court. E.W. v.

      J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans. denied. “Appellate

      deference to the determinations of our trial court judges, especially in domestic

      relations matters, is warranted because of their unique, direct interactions with

      the parties face-to-face, often over an extended period of time.” Best v. Best, 941

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 6 of 12
       N.E.2d 499, 502 (Ind. 2011). We do not reweigh evidence and we consider

       evidence most favorable to the decision together with reasonable inferences

       drawn from that evidence. E.W., 20 N.E.3d at 894. Where, as here, an

       adoption petition is filed without the required parental consent, the party

       seeking to adopt bears the burden to prove the statutory criteria for dispensing

       with consent by “clear and convincing evidence.” In re Adoption of M.A.S., 815

       N.E.2d 216, 220 (Ind. Ct. App. 2004).


[9]    We also note that the trial court entered written findings of fact and conclusions

       of law on Mother’s request pursuant to Indiana Trial Rule 52(A). Upon such a

       motion, the trial court “shall find the facts specially and state its conclusions

       thereon.” Ind. Trial Rule 52(A) (emphasis added). We apply a two-tiered

       standard of review to such cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964

       N.E.2d 213, 216 (Ind. 2012). First, we determine whether the evidence

       supports the findings of fact and second, we determine whether the findings

       support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App.

       2009). Indiana’s appellate courts “shall not set aside the findings or judgment

       unless clearly erroneous, and due regard shall be given to the opportunity of the

       trial court to judge the credibility of the witnesses.” T.R. 52(A).

                                         II. Applicable Law
[10]   “Generally, a trial court may only grant a petition to adopt a child born out of

       wedlock who is less than eighteen years of age if both ‘[t]he mother of [the]

       child’ and ‘the father of [the] child whose paternity has been established’

       consent to the adoption.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014)
       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 7 of 12
       (quoting Ind. Code § 31-19-9-1(a)(2)). However, Indiana law allows a child to

       be adopted without a parent’s consent in certain, statutorily defined

       circumstances. E.W., 20 N.E.3d at 894. Indiana Code section 31-19-9-8

       provides, in relevant part,


               (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.


       Ind. Code § 31-19-9-8(a).


                                        III. Findings of Fact
[11]   Grandparents allege the trial court failed to make specific findings regarding the

       only contested issues: whether Mother’s consent to the adoption was required

       and whether adoption was in E.L.I.’s best interest.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 8 of 12
                                      A. Consent to Adoption
[12]   Grandparents argue that the trial court failed to make a finding of fact

       concerning whether Mother’s consent to the adoption was necessary.

       Specifically, Grandparents contend that although the trial court “devoted

       Finding Nos. 4-6 and 9 to whether or not [Mother] failed to communicate

       significantly with E.L.I. . . . there are no findings regarding whether [Mother]

       failed to provide for the care and support of E.L.I.” Brief of Appellants at 29-30

       (citation omitted). Indeed, none of the trial court’s eleven factual findings

       address the issue.


[13]   The trial court made a factual finding that E.L.I. had been in the care of

       Grandparents for longer than the one-year period required by Indiana Code

       section 31-19-9-8(a)(2). See Appellant’s App., Vol. II at 86 ¶ 2. Thus, the trial

       court found the prerequisite to consider whether Mother failed to communicate

       with E.L.I. or whether Mother failed to provide for E.L.I.’s care and support

       during that period. Ind. Code § 31-19-9-8(a)(2)(A)-(B).


[14]   The trial court devoted four of its eleven factual findings to the issue of

       communication. See Appellant’s App., Vol. II at 86-87 ¶¶ 4-6, 9. The court

       found that Mother attempted to contact E.L.I while she was incarcerated and,

       since her release, routinely contacted E.L.I. by phone and has “sought

       additional contact and visitation.” Id. at 86 ¶¶ 4-5. Our review of the record

       reveals sufficient evidence to support those findings. However, the trial court

       made no finding regarding whether Mother failed to provide for E.L.I.’s care

       and support. The provisions of Indiana Code section 31-19-9-8(a) are written in
       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 9 of 12
       the disjunctive, meaning any one provides independent grounds for dispensing

       with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

       App. 2006), trans. denied. Therefore, whether Mother failed to provide for

       E.L.I.’s care and support was an issue requiring a finding by the trial court to

       either grant or deny the petition for adoption. We are “not at liberty to scour

       the record to find evidence to support the judgment.” Parks v. Delaware Cnty.

       Dep’t of Child Servs., 862 N.E.2d 1275, 1280-81 (Ind. Ct. App. 2007).

       Accordingly, we must remand for the trial court to make the appropriate

       findings on this issue.


                                   B. Best Interest of the Child
[15]   Grandparents also argue that the trial court failed to make a factual finding

       regarding the best interest of the child. Grandparents allege that the trial court

       was required to make findings about the best interest of the child pursuant to

       Indiana Code section 31-19-11-1:


               (a) Whenever the court has heard the evidence and finds that:


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


                       ***


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


                       ***

       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 10 of 12
                       the court shall grant the petition for adoption and enter an
                       adoption decree.


       This statute lists nine requirements that, if applicable, the trial court must find

       before granting a petition for adoption. Any one of the requirements is

       potentially dispositive, meaning if the trial court finds one lacking, it need look

       no further.


[16]   After reviewing the trial court’s findings, we are unable to discern the basis for

       the trial court’s dismissal of Grandparents’ petition. On one hand, because the

       court found that Mother had communicated with the child but made no specific

       finding regarding the best interest of the child, it appears that the court found

       Mother’s consent was necessary and thus did not consider the best interest of

       the child. On the other hand, the trial court concluded that it “identifies a

       parent’s parental rights and pursuit of a relationship over the financial interest

       or benefit the child or the [Grandparents] may receive.” Appellant’s App., Vol.

       II at 87. This reads as though the trial court concluded Mother’s consent was

       not required and considered the best interest of the child. In that event, the trial

       court failed to make a factual finding regarding the best interest of the child as

       required by Indiana Code section 31-19-11-1(a)(1).


[17]   Regardless of which path the trial court chose, due to the court’s failure to make

       complete findings regarding whether Mother’s consent to the adoption was

       required and whether adoption was in the best interest of the child, we are

       unable to discern whether the trial court dismissed Grandparents’ petition on

       proper statutory considerations. Cf. In re Involuntary Termination of Parent-Child
       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 11 of 12
       Relationship of N.G., 61 N.E.3d 1263, 1266 (Ind. Ct. App. 2016) (remanding for

       proper findings that supported the trial court’s judgment terminating parental

       rights).


[18]   Grandparents urge us to reverse with instructions that their adoption petition be

       granted. We decline to do so as we are not convinced the evidence leads only

       to that conclusion. See E.W., 20 N.E.3d at 894. We choose instead to remand

       for findings that address the proper statutory considerations. On remand, the

       court need not conduct another hearing but it must, however, reconsider its

       findings based on evidence already in the record in light of this opinion. If the

       court finds Mother’s consent is required, then it need not make findings

       regarding the best interest of the child. Alternatively, if the court finds Mother’s

       consent is not required, then the court must make factual findings regarding the

       best interest of the child.


                                               Conclusion
[19]   For the reasons discussed above, we remand with instructions for the trial court

       to enter proper findings of fact and conclusions of law regarding Grandparents’

       petition for adoption.


[20]   Remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017   Page 12 of 12
