Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                      Dec 18 2014, 8:41 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

DALE W. ARNETT                                   LINDA STEMMER
Winchester, Indiana                              Union City, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE ADOPTION OF K.M.,                      )
                                                 )
Y.P.,                                            )
                                                 )
        Appellant-Respondent,                    )
                                                 )
               vs.                               )        No. 68A01-1406-AD-256
                                                 )
H.M.,                                            )
                                                 )
        Appellee-Petitioner.                     )


                     APPEAL FROM THE RANDOLPH CIRCUIT COURT
                            The Honorable Jay L. Toney, Judge
                              Cause No. 68C01-1206-AD-82



                                      December 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Y.P. (“Mother”) appeals the trial court’s order granting H.M.’s (“Stepmother”)

petition to adopt K.M. (“Child”). Mother presents a single issue for our review, namely,

whether the trial court abused its discretion when it granted Stepmother’s adoption

petition without Mother’s consent.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      Child was born on June 3, 2001, in Ohio, to Mother and J.M. (“Father”), who were

unmarried. Mother, Father, and Child lived together until August 2004, when Mother

and Father terminated their relationship. Father immediately filed a petition for custody

of Child, which the court awarded to Father in 2005 pursuant to an agreed entry. Mother

exercised parenting time with Child.

      Because Mother struggled with drug abuse, in March 2006, the trial court ordered

that Mother’s visits with Child be supervised. Beginning in May 2006, Mother had

supervised visits with Child. But those visits ceased in January 2007 after Mother was

incarcerated for possession of methamphetamine.       Following Mother’s release from

prison, she attempted supervised visits with Child on five occasions between November

2008 and January 2009, but Child refused to see Mother. Also, Mother “attempted to get

Christmas gifts” to Child in December 2008, but “Father would not accept them.”

Appellant’s App. at 10.

      In September 2009, Mother was held in contempt of court for failure to pay child

support. And in April 2010, Mother was convicted of conspiracy to commit dealing in


                                           2
cocaine and sentenced to twenty years executed. During her incarceration, Mother has

sent letters to Child approximately every five or six months, but Child has expressed to

Mother that she does not want to visit Mother in prison. Mother’s earliest release date is

June 15, 2018. Child will be seventeen years old at that time.

       Father and Stepmother were married in September 2007, and on June 15, 2012,

Stepmother petitioned to adopt Child. Father consented to the adoption, but Mother did

not. Mother requested court-appointed counsel, but the trial court denied that request.

Following a hearing in January 2013, the trial court granted Stepmother’s adoption

petition.   But on February 19, 2013, an attorney, acting pro bono, filed both an

appearance with the trial court on Mother’s behalf and a motion to correct error. In

particular, Mother alleged that the trial court had erred when it terminated Mother’s

parental rights without first appointing counsel to represent her. The trial court granted

the motion to correct error and vacated the adoption decree.

       Following a second hearing on Stepmother’s adoption petition, this time with

Mother represented by counsel, the trial court entered a second adoption decree on June

10, 2014. The trial court entered findings and conclusions in relevant part as follows:

       16.   [Mother] did not see the minor child with Father’s knowledge
       between 2007 and April 2010, when she was sentenced to prison.

       17.     From Christmas of 2008 until April 2010, [Mother] saw the minor
       child on a few occasions at paternal grandmother’s home or business, each
       visit lasting only a short time.

       18.     [Mother] sent several letters to the minor child while [Mother] was
       in prison in Indiana.

       19.    [Mother] was found in contempt of Court for failure to pay support
       by an order issued in September 2009.
                                             3
20.     Despite the fact that [Mother] was called to Court in the fall of 2009
for failure to pay child support, she did not file any reciprocal contempt
action against Father for any interference with visitation.

21.    [Mother] made no filings attempting to enforce her visitation rights
from late 2009, until December 2010.

22.    [Mother] continued to use controlled substances between the time of
her release from Marysville [prison] in the spring of 2007, and the time she
was sent to prison from Randolph County in April of 2010.

23.    There was no evidence of any contact between [Mother] and [Child]
from March of 2009 through the time of [Mother]’s incarceration on April
10, 2009.

24.    A review of the support records reveals the following:

       A. From September 20, 2008, through December 3, 2009,
       [Mother] made one payment of $135.63 which payment was
       actually made on August 6, 2009.

       B. From January 1, 2008, through [the] final hearing,
       [Mother] had paid less than $676 in support, which is less
       than $100 per year.

       C. The last payment recorded in the support records was
       made on January 22, 2010, in the amount of $45.21.
       [Mother] has not contributed to the minor child’s support
       since that time.

       D. The evidence further indicated that [Mother] worked at
       Eddie’s Bar and Save-A-Lot and cleaned houses during this
       period of time.

       E. [Mother] was found in contempt of Court for failing to
       pay child support on September 4, 2009.

25.    Minor child has lived with [Stepmother] and [Father] since she was
three (3) years old.

                                    ***




                                      4
       3.     For a period of more than one year, from March 2009, until April
       2010, [Mother] failed without justifiable cause to communicate
       significantly with the minor child when able to do so.

       4.    For a period of more than one year, since January 2008, [Mother]
       has knowingly failed to provide for the care and support of the minor child
       when able to do so as required by law or judicial decree.

                                            ***

       6.     Based upon [Mother]’s history of drug abuse, failure to
       communicate with and support the minor child, as well as her continued
       incarceration, [Mother] continues to be an unfit parent.

       7.      Based upon 1) stability of Father’s home, which includes the
       contributions of [Stepmother], 2) [Stepmother’s] relationship with the
       minor child, and 3) [Stepmother’s] ability to care for and support the minor
       child, the Court finds that it is in the best interest of the minor child for the
       adoption to be granted.

Appellant’s App. at 10-12. This appeal ensued.

                             DISCUSSION AND DECISION

       When we review a trial court’s ruling in an adoption proceeding, the ruling will

not be disturbed unless the evidence leads to only one conclusion and the trial court

reached the opposite conclusion. J.H. v. J.L. (In re M.L.), 973 N.E.2d 1216, 1222 (Ind.

Ct. App. 2012). We do not reweigh evidence, and we consider the evidence most

favorable to the decision together with reasonable inferences drawn from that evidence.

Id. Further, we “recognize that the trial judge 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.

       Here, the trial court sua sponte issued findings of fact and conclusions thereon

pursuant to Indiana Trial Rule 52(A). When that occurs, we apply a two-tiered standard


                                              5
of review: (1) we determine whether the evidence supports the findings of fact and (2)

whether the findings support the judgment. In re A.S., 912 N.E.2d 840, 851 (Ind. Ct.

App. 2009), trans. denied. The trial court’s findings or judgment 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.

       Generally, a petition to adopt a minor child may be granted only if written consent

to adopt has been provided by the biological parents. See Ind. Code § 31-19-9-1 (Supp.

2014). However, there are a number of exceptions to the consent requirement. See I.C. §

31-19-9-8 (2008). In particular, consent to adoption 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:

              (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.

Id. The provisions of Indiana Code Section 31-19-9-8 are written in the disjunctive;

therefore, each of the criteria provides an independent ground for dispensing with

parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006).
                                             6
A petitioner for adoption without parental consent has the burden of proving, “by clear

and indubitable evidence,” one of the statutory criteria allowing for adoption without

consent. R.S.P. v. S.S. (In re J.T.A.), 988 N.E.2d 1250, 1252 (Ind. Ct. App. 2013), trans.

denied.

       Mother challenges each of the trial court’s conclusions on appeal. But because the

statute is written in the disjunctive, we need only address whether the trial court abused

its discretion when it concluded that Mother is an unfit parent and Child’s best interests

would be served by dispensing with Mother’s consent. In In re M.L., 973 N.E.2d at

1223, we observed that there is no statutory definition of “unfit” and looked to parental

rights termination cases for guidance. In particular, we stated as follows:

       In [parental rights termination] cases, we have considered factors such as a
       parent’s substance abuse, mental health, willingness to follow
       recommended treatment, lack of insight, instability in housing and
       employment, and ability to care for a child’s special needs. See In re J.S.,
       906 N.E.2d 226, 235 (Ind. Ct. App. 2009) (affirming termination of
       parental rights based on parents’ drug use and inability to maintain stable
       housing and employment); C.T. v. Marion Cnty. Dep’t of Child Servs., 896
       N.E.2d 571, 582 (Ind. Ct. App. 2008) (affirming termination of parental
       rights based on mother’s pattern of failing to address mental health
       deficiencies, long-standing addiction to drugs, and past and present
       inability to provide safe, stable, and nurturing home), trans. denied (2009);
       Dawn B. v. Dep’t of Child Servs. (In re A.B.), 887 N.E.2d 158, 169-70
       (Ind. Ct. App. 2008) (affirming termination of parental rights based on
       mother’s instability, lack of participation in counseling, and inability to
       provide permanency for special needs child); Peterson v. Marion Cnty.
       Office of Family and Children (In re D.D.), 804 N.E.2d 258 (Ind. Ct. App.
       2004) (affirming termination of parental rights where mother failed to
       follow through with treatment for mental health issues and substance
       abuse), trans. denied; In re J.T., 742 N.E.2d 509, 512-13 (Ind. Ct. App.
       2001) (affirming termination of parental rights based on mother’s lack of
       progress and insight), trans. denied.

Id.


                                             7
      Here, Mother’s history of substance abuse dates back to at least January 2007,

when she was convicted for possession of methamphetamine. And, in 2010, Mother was

convicted of conspiracy to commit dealing in cocaine. Mother does not direct us to any

evidence that she has ever sought treatment for her substance abuse. Instead, on appeal,

Mother states that “she has now been in prison for over 4 years so she is obviously not

doing drugs now[.]” Appellant’s Br. at 12. Mother’s argument is not well taken.

      Mother has been incarcerated twice since January 2007, and she began a twenty-

year sentence in 2010. Given her criminal history, Mother has not been able to maintain

stable employment or housing during the past several years. Mother’s earliest release

date is June 15, 2018, when Child will be seventeen years old.

      Finally, we agree with the trial court that Mother’s failure to have significant

contact with Child bears on her fitness to be a parent. After Mother’s release from prison

in 2007, and before her 2010 incarceration, Mother saw Child on a few occasions when

Child was visiting her paternal grandmother. The evidence shows that Mother’s contacts

with Child have been sporadic, at best. And the evidence shows that Child does not feel

bonded with Mother. Child wrote to Mother to say that she does not want to visit Mother

in prison. And in a letter to Mother dated October 2013, Child said, “I can’t really say I

love you or call you mom because you left when I was little.” Respondent’s Ex. A.

      The evidence supports the trial court’s conclusion that Mother is an unfit parent.

Mother’s contentions on appeal amount to a request that we reweigh the evidence, which

we will not do. Mother makes no contention that the adoption is not in Child’s best

interests. Notwithstanding Mother’s waiver of that issue, we hold that the evidence


                                            8
supports the trial court’s conclusion that the adoption is in Child’s best interests. I.C. §

31-19-9-8(a)(11)(B).    The trial court did not abuse its discretion when it granted

Stepmother’s adoption petition without Mother’s consent.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




                                             9
