MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 25 2019, 9:17 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                                   APPELLEES PRO SE
Dale W. Arnett                                           B.K.
Winchester, Indiana                                      Br.K.
                                                         Union City, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of:                        October 25, 2019

J.K. (Minor Child),                                      Court of Appeals Case No.
                                                         19A-AD-911
                                                         Appeal from the Randolph Circuit
T.L.,                                                    Court
Appellant-Respondent,                                    The Honorable Jay L. Toney,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         68C01-1808-AD-138
B.K. and Br.K.,
Appellees-Petitioners.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019               Page 1 of 13
                                Case Summary and Issue
[1]   B.K. (“Father”) and T.L. (“Mother”) are the biological parents of J.K. but have

      never been married to each other. In 2019, the trial court granted a petition by

      Father’s wife, Br.K., to adopt J.K., finding that Mother’s consent to the

      adoption was not required. Mother challenges the trial court’s ruling, raising

      one issue for our review: whether the trial court erred in concluding her

      consent to the adoption was not necessary. Concluding Br.K. proved by clear

      and convincing evidence that Mother’s consent was not required and further

      proved that the adoption is in J.K.’s best interests, we affirm the trial court’s

      order granting the adoption.



                            Facts and Procedural History
[2]   Father filed a paternity affidavit when J.K. was born on June 14, 2013. Mother

      originally had custody of J.K., but in September 2015, Father was granted

      custody of J.K. because of Mother’s drug use. Mother was ordered to pay child

      support of $44.00 per week and was granted reasonable parenting time to begin

      after she completed a rehabilitation program. Mother signed herself out before

      she had completed the program, however.


[3]   Sometime prior to January 2017, Mother was arrested on drug charges in Ohio.

      Because of this, her parenting time was modified in January 2017 to supervised

      parenting time. Br.K. supervised the visits and kept a log of each visit

      scheduled in 2018. In June 2018, Mother was in a rehabilitation facility as


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 2 of 13
      required by her Ohio case and missed several visits. In July 2018, Mother was

      still in the rehabilitation facility but was able to attend visits that month

      accompanied by an employee of the facility. At the July 11 visit, Mother

      admitted that a few days earlier, she had used drugs and therefore “had to start

      the rehab process all over again.” Exhibit Index, Volume 3 at 38. At the July

      21 visit, Mother confronted Br.K. about Br.K. possibly wanting to adopt J.K.

      and said she would stab somebody if that happened. J.K. was present during

      this conversation, and Mother therefore spelled “stab” rather than saying the

      word. At the July 25 visit, Mother “mentioned she had 5 days left in phase 1

      and then would be put into phase 2 in rehab again.” Id. at 40. On July 31,

      Father and Br.K. learned that Mother had been arrested for a probation

      violation and was in jail in Ohio. The probation violation was filed as a result

      of Mother’s failure to successfully complete the rehabilitation program. In

      August, Mother was ordered to participate in a secure residential treatment

      program (the “MonDay program”), where she remained at the time of the

      hearing in this case. July 25, 2018, was therefore the last time Mother

      participated in a visit with J.K. prior to the adoption hearing. Of the

      approximately forty-six visits scheduled in 2018 up to and including July 25,

      Mother participated in a full visit only eight times. She either arrived late, left

      early, or failed to attend the remaining visits.


[4]   When custody of J.K. was changed from Mother to Father, Mother was

      ordered to pay weekly child support beginning on September 4, 2015. Mother

      did not make her first child support payment until December 1, 2016. She


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 3 of 13
      made several payments between April and August 2017, and then did not make

      any further payments until October of 2018. From September 2015 to the date

      of the hearing in this case, Mother made ten child support payments totaling

      $534.00. She was found in contempt on several occasions for willfully failing to

      pay child support.


[5]   Father has been married to Br.K. since October 2015 and they have a child

      together. Br.K. also has two children from a prior relationship; Father adopted

      those children in 2017. In August 2018, Br.K., with Father’s consent, filed a

      petition to adopt J.K. Mother objected. Following a hearing on the petition on

      January 7, 2019, which Father and Br.K. attended in person and Mother

      attended telephonically from the MonDay facility, the trial court entered the

      following order:


              It is therefore ordered, adjudged and decreed by the court that
              . . . the Petition for Adoption is approved and granted[;] that
              [Father and Br.K.] have proven by clear and convincing evidence
              that [Mother] has failed to pay child support for more than (1)
              year when ordered to do [so;] that [Father and Br.K.] have
              proven by clear and convincing evidence that [Mother] is an unfit
              mother, and it is in [J.K.’s] best interest that [he] be adopted by
              [Br.K.; and] that [Mother’s ] consent of [sic] the adoption is
              unnecessary.


      Appealed Order at 8-9. Mother now appeals.



                                Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 4 of 13
                                     I. Standard of Review
[6]   “When reviewing the trial court’s ruling in an adoption proceeding, we will not

      disturb that ruling unless the evidence leads to but one conclusion and the trial

      judge reached an opposite conclusion.” Rust v. Lawson, 714 N.E.2d 769, 771

      (Ind. Ct. App. 1999), trans. denied. We presume the trial court’s decision is

      correct, and the appellant bears the burden of rebutting this presumption.

      E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018).


[7]   Where, as here, the trial court has made findings of fact and conclusions

      thereon, we apply a two-tiered standard of review: we first determine whether

      the evidence supports the findings and second, whether the findings support the

      judgment. In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006);

      see also Ind. Trial Rule 52(A) (providing that where the trial court has made

      findings of fact and conclusions thereon, “the court on appeal 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.”).

      Factual findings “are clearly erroneous if the record lacks any evidence or

      reasonable inferences to support them [and] . . . [a] judgment is clearly

      erroneous when it is unsupported by the findings of fact and the conclusions

      relying on those findings.” T.W., 859 N.E.2d at 1217.


                          II. Necessity of Mother’s Consent
[8]   Indiana Code section 31-19-9-1 states generally that a petition to adopt a child

      who is less than eighteen years of age may be granted only if written consent to

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 5 of 13
      the adoption has been executed by certain persons, including, as relevant to this

      case, the mother of a child born out of wedlock. Ind. Code § 31-19-9-1(a)(2).

      However, Indiana Code section 31-19-9-8(a) provides that consent to adoption

      which may otherwise be required 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: . . .
                      (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.


      Br.K., as the party seeking to adopt and therefore bearing the burden of proof,

      must prove Mother’s consent is unnecessary by clear and convincing evidence.

      Ind. Code § 31-19-10-0.5; In re Adoption of J.S.S., 61 N.E.3d 394, 397 (Ind. Ct.

      App. 2016).


[9]   The trial court found that Mother’s consent to the adoption was not required

      because she had failed to pay child support for at least one year when ordered

      to do so, specifically finding that Mother was ordered to pay $44.00 per week in

      child support beginning September 4, 2015, but did not make her first payment

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 6 of 13
       until December 1, 2016; made seven payments totaling $494.00 from December

       1, 2016 to August 18, 2017; made no payments from August 18, 2017 until

       October 4, 2018; and then made three payments totaling $40.00 from October

       4, 2018 to December 7, 2018. The trial court also found that Mother’s consent

       to the adoption was not required because Mother was an unfit parent and that it

       was in J.K.’s best interests to be adopted by Br.K. The trial court specifically

       found that Mother used drugs, including at least once before a visit with J.K.

       and also while staying at a rehabilitation center; that Mother was inconsistent

       in exercising her parenting time with J.K.; that in the presence of J.K., Mother

       threatened to “stab” anyone who tried to adopt J.K.; and that Mother has been

       incarcerated several times.


[10]   Mother contends the trial court erred in finding that her consent was

       unnecessary due to her failure to pay child support because there was no

       showing that she was able to pay child support. She also contends the trial court

       erred in finding her consent was unnecessary because she is an unfit parent,

       challenging several of the trial court’s factual findings and arguing the trial

       court failed to consider evidence of changed conditions since the petition was

       filed.


                         A. Failure to Provide Care and Support
[11]   When considering whether a parent has knowingly failed to support a child for

       a period of at least one year, “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
       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 7 of 13
       support, but failed to do so.” In re Adoption of J.T.A., 988 N.E.2d 1250, 1255

       (Ind. Ct. App. 2013), trans. denied. There is no question there are at least two

       such periods during which Mother did not provide support for J.K. (September

       4, 2015 to December 1, 2016 and August 18, 2017 to October 4, 2018). Mother

       conceded as much at the hearing. See Transcript, Volume 2 at 52-53.


[12]   In addition to showing the failure to support, however, the petitioner for

       adoption must show “that the non-custodial parent had the ability to make the

       payments which [s]he failed to make.” In re Adoption of M.S., 10 N.E.3d 1272,

       1280 (Ind. Ct. App. 2014). To determine that ability, it is necessary to consider

       the totality of the circumstances. Id.


[13]   Mother claims there is no evidence of her ability to pay the court-ordered child

       support. Indeed, there was no specific testimony about Mother’s employment

       or resources and the trial court made no findings regarding her ability to pay.

       However, there was testimony that in a child support case between Father and

       Mother, Mother was held in contempt for failure to pay child support, a fact

       that Mother does not dispute. See Tr., Vol. 2 at 54 (Mother testifying that some

       of her incarcerations were due to non-payment of child support). The trial

       court also took judicial notice of the record of the child support proceedings at

       Father’s request. See id. at 11-12. That record contains orders finding Mother

       in contempt for “willfully failing to pay child support as ordered.” Appellee(s)’

       Appendix, Volume 2 at 12; see also id. at 3, 5, 6, and 10 (orders finding Mother

       remained in contempt for willfully failing to pay child support after the original

       finding). Such a finding required proof that Mother had the ability to pay or

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 8 of 13
       gain employment but failed to do so. See Woodward v. Norton, 939 N.E.2d 657,

       662 (Ind. Ct. App. 2010) (“To find a party in contempt for failure to pay child

       support or child support-related obligations, the trial court must find that the

       party had the ability to pay child support and that the failure to do so was

       willful.”).1


[14]   Accordingly, Br.K. proved by clear and convincing evidence that for a period of

       at least one year, Mother knowingly failed to provide for the care and support

       of J.K. as ordered by the court when she was able to do so. The trial court’s

       decision that Mother’s consent to the adoption was not necessary is therefore

       not clearly erroneous.


                                          B. Parental Unfitness
[15]   Because we have concluded that the trial court properly relied on the failure to

       support subsection to dispense with Mother’s consent, we need not address the

       other ground found by the trial court. See In re Adoption of O.R., 16 N.E.3d 965,

       973 (Ind. 2014) (explaining that because Indiana Code section 31-19-9-8(a) is




       1
         Although not evidence, the proposed findings Mother submitted to the trial court include a discussion of the
       requirements of the failure to support exception and state:

                In 2016, [Mother] was charged with civil contempt for not paying child support. . . . [O]n
                February 6, 2017, [the] court did sentence [Mother] to jail for ‘continued contempt of
                court.’ In order to find [Mother] in contempt, the court had to find that she had the
                ability to pay or gain employment and failed to do so. Therefore, [Br.K.] has proven that
                this adoption does meet that standard by virtue of the Court’s finding of contempt.


       Appellant’s Appendix, Volume 2 at 49 (internal citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019                   Page 9 of 13
       written in the disjunctive, “the existence of any one of the circumstances

       provides sufficient ground to dispense with consent” and we need address only

       one of the subsections relied upon by the trial court if it was sufficient to

       conclude that consent was not required). Nonetheless, in the interest of

       completeness and in recognition of the serious consequences for Mother if her

       consent is dispensed with, we briefly address the second ground on which the

       trial court based its decision: parental unfitness.


[16]   Although the statute does not provide a definition of “unfit,” we have observed

       that it is defined as “[u]nsuitable; not adapted or qualified for a particular use or

       service” or “[m]orally unqualified; incompetent.” In re Adoption of M.L., 973

       N.E.2d 1216, 1223 (Ind. Ct. App. 2012) (quoting Black’s Law Dictionary 1564

       (8th ed. 2004)). We have also observed that termination cases can provide

       useful guidance as to what makes a parent “unfit” because termination cases

       also strike a balance between parental rights and the best interests of the child.

       Id. In termination cases, we consider 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 special needs

       child to determine whether a parent was unfit. Id. A parent’s criminal history

       may also be relevant to whether a parent is unfit. In re Adoption of D.M., 82

       N.E.3d 354, 359 (Ind. Ct. App. 2017).


[17]   Mother contends that several of the trial court’s findings regarding her unfitness

       are erroneous. For instance, she claims the trial court’s finding 77, that “[o]ut

       of the eighty (80) scheduled visits since January, 2018, [Mother] has failed to

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 10 of 13
       attend, arrived late or left early for 90% of her visits[,]” Appealed Order at 7, is

       “skewed” because it does not acknowledge that many of those missed visits

       were because she was in rehab or jail, Appellant’s Brief at 9. Mother may have

       been unable to attend those visits, but the fact remains that she missed

       scheduled visits and was in rehab or jail because she chose drugs over her child.

       Even if we do not consider any of the findings Mother challenges as incorrect, 2

       there are still ample findings on the record to support the trial court’s

       conclusion that Mother is unfit and adoption is in J.K.’s best interest.


[18]   Mother also contends that the trial court failed to credit her for the “substantial

       progress” she has made, pointing to the fact that she was “working on rehab”

       since at least June 6, 2018, and that “she was in the MonDay program.” Id. at

       9-10. It is less than clear from the record, but it appears that Mother was in a

       rehabilitation program in 2018 as a condition of probation in her drug case and

       that she was ordered to participate in the MonDay program – a residential

       facility which she is not allowed to leave voluntarily – as a consequence of

       violating her probation. See Tr., Vol. 2 at 54-55 (Mother testifying that she

       violated her probation by not successfully completing the rehabilitation

       program and was currently sentenced to the MonDay program for that

       probation violation). Thus, Mother is not entitled to “credit” for seeking

       treatment when it appears it was imposed upon her. Moreover, Mother

       admitted she historically “put drugs before [her] son,” id. at 59, and the



       2
           Mother also specifically challenges findings 66, 68, and 72.


       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 11 of 13
       parenting and substance abuse classes and employment training she has taken

       during the MonDay program have yet to prove they will bear fruit, as she was

       still in the program at the time of the hearing and would be for at least another

       month. And after leaving the MonDay program, she was going to a residential

       treatment facility for three months.


[19]   For over three years, Mother only minimally supported her son, was

       inconsistent in visiting him, and repeatedly made choices that did not put her

       son’s interests first, as reflected by her criminal history. Based on the record

       before us, the trial court’s determination that Mother’s consent was not

       necessary because she is an unfit parent is not clearly erroneous.


                                            C. Best Interests
[20]   Although Mother does not specifically challenge the trial court’s conclusion

       that adoption is in J.K.’s best interests, a petition for adoption can only be

       granted if it is in the best interests of the child. In re Adoption of O.R., 16 N.E.3d

       at 974. Here the trial court concluded that adoption is in J.K.’s best interests

       because J.K. has been cared for virtually his entire life by Father and Br.K.,

       Father provides financial support and Br.K. provides care for J.K. and the

       household, Mother has not had the day-to-day care of J.K. since 2015 and

       Mother and J.K.’s contact has been minimal and inconsistent since then, J.K.

       exhibits negative and regressive behavior after visits with Mother, and Br.K. has

       the ability to help Father raise J.K. and to furnish suitable support and

       education for him. The record supports the trial court’s conclusion that Br.K.’s

       adoption of J.K. is in the child’s best interests.
       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 12 of 13
                                               Conclusion
[21]   The trial court did not err in determining that Mother’s consent to J.K.’s

       adoption by Br.K. was not required or in determining that the adoption was in

       J.K.’s best interests. Accordingly, the judgment of the trial court granting the

       adoption is affirmed.


[22]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-911 | October 25, 2019   Page 13 of 13
