MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jul 24 2018, 8:55 am
regarded as precedent or cited before any
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                                   ATTORNEYS FOR APPELLEES
Brian M. Pierce                                          David W. Stone IV
Muncie, Indiana                                          Anderson, Indiana

                                                         Steven J. Bruce
                                                         Muncie, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

R.H.,                                                    July 24, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-AD-174
        v.                                               Appeal from the Delaware Circuit
                                                         Court
L.H. and C.H.,                                           The Honorable John Feick, Judge
Appellees-Petitioners.                                   Trial Court Cause No.
                                                         18C04-1702-AD-12



Altice, Judge




Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018                    Page 1 of 17
                                             Case Summary
[1]   R.H. (Mother) appeals the trial court’s grant of a petition to adopt the minor

      child T.H.H. (Child) filed by L.H. (Stepmother) and C.H. (Father). Mother

      presents the following, restated issues for our review:


              1. Whether the trial court erred in concluding that Mother’s
              consent to the adoption was not required based on Mother’s
              failure to provide support;


              2. Whether the trial court failed to provide Mother with notice of
              the final adoption hearing; and


              3. Whether the trial court’s finding that adoption was in the best
              interests of Child was clearly erroneous.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Mother and Father were married on June 21, 2008. Child was born to Mother

      and Father on October 12, 2010. During the marriage, Mother became

      addicted to opiates. She primarily used opiate-based prescription medication

      and heroin. Mother spent significant portions of 2013 and 2014 incarcerated

      for various crimes related to her drug addiction. During that time, Father cared

      for Child.


[4]   Mother and Father divorced on May 7, 2014. Under the dissolution decree,

      Mother and Father were awarded joint legal custody of Child; Father was

      awarded sole physical custody of Child; and Mother received supervised

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 2 of 17
      parenting time every other weekend, with holidays and special days. Mother

      was directed to pay child support to Father in the amount of $39.00 per week,

      effective March 21, 2014. Mother made no support payments to Father

      between March 21, 2014, and June 20, 2017, but an offset made her current
                         1
      through 2014.


[5]   Mother is a high school graduate, has a degree in Criminal Justice from Ball

      State University, and worked for seven years in the legal department of a

      financial institution as a trust and estate specialist. After her divorce, however,

      and while battling her drug addition, she was employed in minimum wage jobs.

      At various times, Mother lived with her father, her brother, her mother, and her

      boyfriend. Mother used some of her income toward her residential obligations.

      Her boyfriend, who was employed, paid most of the household bills when the

      two lived together. However, no part of Mother’s income from any of her jobs

      was used to pay her court-ordered child support obligation.


[6]   Mother smokes cigarettes daily. Between July 2014 and June 2017, she smoked

      approximately $5.00 worth of cigarettes each day. Between 2015 and June

      2017, she spent approximately $4,500.00 on her smoking habit. Mother

      testified that she personally paid at least a third of that amount toward her




      1
       The dissolution decree directed Father to pay to Mother $2,000.00 to equalize the property distribution.
      Toward the end of 2014, Mother and Father entered into an agreement regarding Father’s equalization
      payment obligation and Mother’s child support obligation. The two agreed that, for the year 2014, their
      obligations would offset each other. Based upon this agreement, the trial court found Mother to be current
      with her support payment through 2014, but not beyond.

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018                    Page 3 of 17
       habit. The balance was paid for by other individuals. Also from 2015 to June

       2017, Mother spent between $6,500.00 and $7,000.00 to support her heroin

       habit. Her eight-month treatment for her addiction, through a methadone

       clinic, cost approximately $3,840.00 and was paid for by her mother and her
                       2
       boyfriend.


[7]    Mother exercised her weekend parenting time with Child. At trial, she testified

       that during the visits, she fed Child; she bought him gifts, clothing, and toys;

       she took him to the zoo and bought him “souvenir[s] wherever we went”; and,

       she “threw birthday parties for [Child].” Transcript at 67, 71.


[8]    Father married Stepmother on April 30, 2016. Child has lived with Father and

       Stepmother since March 2015. In February of 2017, Father and Stepmother

       petitioned for Stepmother to adopt Child. Mother filed an objection.


[9]    Mother made her first child support payment approximately four months after

       the adoption petition was filed and several weeks after she hired an attorney.

       Mother has continued to make support payments since June 20, 2017; however,

       she had accrued an arrearage of more than $5,000.00.


[10]   On September 29, 2017, the trial court held an evidentiary hearing on whether

       Mother’s consent to the adoption was required. On November 3, 2017, the

       court issued “Findings of Fact, Conclusions of Law, and Order,” concluding




       2
           The costs associated with Mother’s current methadone treatment is covered by Medicaid.


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018                 Page 4 of 17
       that Father presented clear and convincing evidence that Mother had

       knowingly failed to provide for the care and support of Child when she was able
                                                                                                    3
       to do so, and that Mother’s consent to the adoption was implied. The court

       also dismissed her objection to the adoption.


[11]   On December 13, 2017, Father filed a motion to set the final adoption for a

       hearing and, that same day, the trial court issued an order setting the final

       adoption for hearing. The hearing was held on December 21, 2017. Mother

       was not present at the hearing. Following the hearing, the trial court issued the

       final adoption decree, finding that Child’s adoption by Stepmother was in

       Child’s best interests. The court terminated Mother’s parental rights and

       granted the adoption of Child by Stepmother. Mother now appeals. Additional

       facts will be provided as necessary.


                                           Discussion & Decision
[12]   When reviewing a 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




       3
         The trial court used the wrong terminology in its November 3, 2017 order when it concluded: “Mother’s
       consent [to the adoption] shall be implied . . . .” Implied consent to an adoption is governed by Ind. Code §
       31-19-9-18, which reads in relevant part: “The consent of a person who is served with notice . . . to adoption
       is irrevocably implied without further court action if the person . . . fails to file a motion to contest the
       adoption . . . not later than thirty (30) days after service of notice . . . .” Mother filed an objection to the
       adoption. Therefore, I.C. § 31-19-9-18 is not applicable. It appears the trial court intended to conclude that
       Mother’s consent to the adoption was not required. See I.C. § 31-19-9-8(a)(2) (a parent’s consent to adoption
       is not required “if for a period of at least one (1) year the parent . . . knowingly fails to provide for the care
       and support of the child when able to do so as required by law or judicial decree”).

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018                          Page 5 of 17
       (Ind. Ct. App. 1999), trans. denied. We will not reweigh the evidence but

       instead 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. The decision of the trial

       court is presumed to be correct, and it is the appellant’s burden to overcome

       that presumption. Id.


[13]   When, as in this case, the trial court has made findings of fact and conclusions

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

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

       support the judgment.” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).

       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.” Id. (internal quotation omitted).


                                         1. Mother’s Consent
[14]   Mother argues that the trial court erred when it concluded that her consent to

       the adoption was not required. Indiana law provides that a parent’s consent to

       adoption is not required “if for a period of at least one (1) year the parent . . .

       knowingly fails to provide for the care and support of the child when able to do

       so as required by law or judicial decree.” I.C. § 31-19-9-8(a)(2)(B). The burden

       to prove these statutory criteria is satisfied by clear and convincing evidence

       and rests squarely upon the petitioner seeking to adopt. In re Adoption of M.A.S.,


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 6 of 17
       815 N.E.2d 216, 220 (Ind. Ct. App. 2004). 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 Augustyniak, 508 N.E.2d 1307, 1308 (Ind.

       Ct. App. 1987), trans. denied. To determine that ability, it is necessary to

       consider the totality of the circumstances. Id.


[15]   Here, there is no question Mother did not make the court-ordered child support

       payments for a period exceeding one year. The record shows that Mother did

       not make payments, at least, between January 2015, and June 20, 2017. Thus,

       the question before us is whether Mother had the ability to provide support of

       the Child. See I.C. § 31-19-9-8(a)(2)(B).


[16]   Mother claims that:


               [H]er circumstances including, but not limited to, her ongoing
               battle with addiction, her good-faith effort at recovery, reliance
               on the belief that Father did not want/need the support, and her
               continued parenting-time with her child, demonstrate that she
               lacked the ability to pay her support obligation, and/or had
               justifiable cause for her failure to pay support.


       Appellant’s Brief at 13. According to Mother:


               The circumstances of [her] failure to pay support, when viewed
               in totality, clearly show a mother: struggling with her addiction
               to opiates; actively involved in addiction treatment; working
               minimum wage jobs even though well educated; willing to allow
               father to maintain physical custody; maintaining joint legal
               custody; and continuing to visit with the child on a consistent
               and regular basis. Moreover, the evidence demonstrates that
               [she] fully relied on [Father’s] statements that he didn’t need
       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 7 of 17
               support, wasn’t worried about support, and could financially
               provide for his child. [Father] took no action to collect the
               support [she] owed.


       Id. at 15. Mother maintains that she “is first, and foremost, an opiate addict

       fighting a continuous battle between active-use and recovery” and that,

       “[b]ecause of her opiate addiction, every area of her life, including her ability to

       support her child, has been affected.” Id. at 13. She admits that most of the

       money she earned from 2014 to 2017 went toward the purchase of illegal drugs

       and treatment for her addiction, court costs and legal fees related to her

       addiction, and/or personal expenses. She claims that “[f]ailure to pay for, and

       attend treatment, would have increased [her] chances of using”; that “[f]ailure

       to pay court costs and fines would have left [her] in jail”; and that “[both of

       these things] would have left her unable to visit her child.” Id. at 14.


[17]   Mother attempts to justify her failure to pay child support on multiple

       conversations she claims to have had with Father about the child support

       obligation. She claims that Father would always respond that he was “‘not

       worried about it.’” Appellant’s Appendix Vol. 2 at 12. At trial, Father denied

       telling Mother not to pay the support but admitted that, on one occasion, he

       told her he was not worried about the child support.


[18]   In its findings of fact and conclusions thereon, the trial court found that Mother

       was able to maintain a number of jobs; and that she admitted she was adept at

       obtaining employment, suffered from no disabilities, and was not physically

       prevented from working. The court further found that instead of paying the

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 8 of 17
       support obligation, Mother “chose to pay for heroin”; she “sold property to pay

       for heroin”; but she “never sold any property to pay her Court-ordered child

       support obligation.” Id. at 11.


[19]   The trial court noted the following:


               22. That in 2015, [Mother] was able to procure a new bedroom
               furniture suite. She states her mother and boyfriend helped her
               purchase this suite. This suite cost approximately $1,500.00.


               23. That in 2017, prior to making her first judicially decreed
               support payment, [Mother] paid an attorney $750.00 for
               representation.


               24. That in 2016, [Mother] managed to pay a traffic ticket in
               Marion County. [Mother] testified her mother helped her pay
               this ticket. This expense was $62.00.


               25. That in 2015, [Mother] paid off a speeding ticket in Hancock
               County. This expense was $130.00.


               26. That after her felony conviction in Delaware County,
               [Mother] made payments towards court ordered responsibilities.


                                                      *****


               28. That [Mother] has been able to keep herself clothed and fed
               since 2014.


               29. That [Mother] has not, as of this time, filed for bankruptcy.


       Id. The court also noted:

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 9 of 17
               36. That [Mother] also claims that she told [Father] that she was
               “trying to put [her] life together” and that [Father] never told her
               they needed her help. [Mother] felt “conned” into not paying the
               court ordered support by [Father] and that he was inducing her
               not to pay child support.


                                                      *****


               38. That [Mother] testified that “I was supporting my son the
               best that I could” and that “[Child] has benefited from my
               emotional and motherly support, versus money, more.”


                                                      *****


               42. That regardless, both parties agree that [Mother] was very
               aware of her obligation and her ongoing failure to comply with
               the judicial decree. [Father] testified that he has asked her many
               times when she’s going to start paying. [Mother] repeatedly
               agreed that not a single cent of earned income from 2015 to June
               2017 was used for support.


       Id. at 12-13.


[20]   The trial court concluded:


               16. Here, [Mother] has offered up a number of alternative basis
               [sic] for her failure to pay support (as an alternative to her
               argument that she has provided care and support, which would
               be based on holdings not applicable where there is a judicial
               decree for [support).] When looking at the totality of the
               circumstances, it is clear that [Mother] had significant third party
               [sic] support; had many jobs with earning[s]; did not even always
               bear a significant, if any, expense of housing, transportation, or
               utilities; was able to sell property and perform services to obtain

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 10 of 17
               drugs; was able to pay for cigarettes; able to feed and clothe
               herself; has no other dependents; is not physically unable to
               work; and was able to afford significant expense in Methadone.
               When aggregated, in addition to her many jobs, [Mother]
               produced no information suggesting she could pay nothing to
               meet her legal obligation. Her position that [Father] was not
               worried about child support and that he somehow “conned” her
               into not paying support is not persuasive in light of her attitude
               towards paying any support; her statements that [Child] is well
               cared for where he lives and doesn’t need her support; and her
               prioritizing her own financial needs and desires over the
               judicially decreed support obligation.


                                                      *****


               18. [Mother] financed heroin consumption from 2015 into early
               2017. [Mother] both earned money and had significant
               assistance from third parties in the same time frame. Her
               priorities did not include providing care and support pursuant to
               the judicial decree entered in 2014.


               19. [Father] has presented clear and convincing evidence that
               [Mother] has knowingly failed to provide for care and support of
               [Child] and that she was able, but chose not, [sic] to do so as she
               is required by judicial decree.


       Id. at 15-16.


[21]   The evidence presented at the consent hearing established that Mother had a

       court-ordered financial obligation, as set forth in the dissolution decree, to pay

       child support to Father in the amount $39.00 per week. She fed Child and,

       apparently, provided Child with token amounts of clothing, toys, souvenirs,

       and gifts during visitations, but Mother made no actual financial support
       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 11 of 17
       payments to Father between January 2015, and June 20, 2017. See, e.g., Irvin v.

       Hood, 712 N.E.2d 1012, 1013 (Ind. Ct. App. 1999) (holding that the father had

       failed to support his child despite fact that he provided six items of clothing for

       the child and some food during child’s visits with paternal grandparents);

       M.A.S., 815 N.E.2d at 220 n.1 (holding that the father’s occasional provision of

       groceries, diapers, formula, clothing, presents, and cash did not qualify as

       support). In fact, Mother did not make her first support payment until four

       months after the petition for adoption was filed and after she had paid $750.00

       to an attorney to represent her in the matter. She testified at trial that she

       thought it was “B.S.” that she had to pay child support when Father was

       making $35.00 per hour. Transcript at 19.


[22]   Mother admitted that she was able to work, and that, between 2014 and 2016,

       she was working and earned money – at times earning between $700.00 and

       $1,000.00 per month. However, Mother used the money to support her daily

       cigarette smoking habit and to purchase illegal drugs. She testified that she was

       able to pay the fines for the traffic and speeding tickets she received, and to

       clothe and feed herself, but she failed to use any of her earnings to make child

       support payments. At various times, Mother lived with her father, her mother,

       and her boyfriend and contributed minimally to household expenses. When

       Mother lived with her boyfriend, he paid most of the household bills. Mother

       had third parties paying for her methadone treatments and purchasing her new

       furniture.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 12 of 17
[23]   Ample evidence was presented to support the trial court’s conclusion that

       Mother failed to provide for Child’s care or support for over one year, and that

       she was able to pay child support but chose not to do so. The trial court’s

       findings regarding such were not clearly erroneous. Mother’s arguments are

       nothing more than an invitation to reweigh the evidence and reassess witness

       credibility, which we will not do. See In re Adoption of O.R., 16 N.E.3d 965, 973

       (Ind. 2014). The trial court did not err in concluding that Mother’s consent to

       the adoption was not required based on Mother’s failure to provide support.


                                    2. Notice of Adoption Hearing
[24]   Mother next contends that she did not receive notice of the final adoption

       hearing. However, the chronological case summary (CCS) shows that notice of

       the trial court’s order setting the final hearing was sent to the attorneys of
                                                                                4
       record, including Mother’s attorney, by “ENotice.” Appellant’s Appendix at 6.

       Notice or information given to an attorney constitutes notice to his client.

       Reynolds v. State, 463 N.E.2d 1087, 1088 (Ind. 1984). It is well-settled that “[a]

       challenge to the mailing of notice is precluded when the docket clearly states

       that notice was mailed.” Minnick v. Minnick, 663 N.E.2d 1226, 1228 (Ind. Ct.

       App. 1996); see also Trojnar v. Trojnar, 698 N.E.2d 301, 304 (Ind. 1998) (in




       4
        Ind. Trial Rule 72(D) provides in relevant part: “It shall be the duty of the attorneys . . . when entering their
       appearance in a case or when filing pleadings or papers therein, to have noted on the Chronological Case
       Summary and on the pleadings or papers so filed, their mailing address, and an electronic mail address.
       Service at either address shall be deemed sufficient.”



       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018                        Page 13 of 17
       context of T.R. 72, a proper clerk’s notation on the CCS will presumptively

       establish the fact that notice was mailed).


[25]   Moreover, Mother did not call the lack of notice of the hearing to the attention

       of the trial court. Rather, she raises the matter for the first time on appeal. As

       such, Mother has waived any allegation of error with respect to whether she

       received notice of the final adoption hearing. See In re K.S., 750 N.E.2d 832,

       834 n.1 (Ind. Ct. App. 2001) (Mother waived issue concerning alleged violation

       of due process rights because issue was raised for the first time on appeal).


[26]   Finally, we note that Mother knew of the adoption proceedings because she

       (among other things) attended the September 29, 2017 consent hearing, where

       she was represented by counsel. Furthermore, she knew that Child’s adoption

       by Stepmother was imminent because she received the trial court’s order that

       concluded her consent to the adoption was not required and her objection to the

       adoption was dismissed. See Appellant’s Appendix at 6.


                                      3. Best Interests of Child
[27]   Mother also challenges the trial court’s determination that adoption was in

       Child’s best interests. The primary concern in every adoption proceeding is the

       best interests of the child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind.

       Ct. App. 2012). Even if a court determines that a natural parent’s consent is not

       required for an adoption, the court must still determine whether adoption is in

       the child’s best interests. See I.C. § 31–19–11–1(a)(1). “When reviewing the

       trial court’s ruling in an adoption proceeding, we will not disturb that ruling

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 14 of 17
       unless the evidence leads to but one conclusion and the trial judge reached an

       opposite conclusion.” T.L., 4 N.E.3d at 662.


[28]   We note that the adoption statute does not provide guidance for which factors

       to consider when determining the best interests of a child in an adoption

       proceeding, but we have noted that there are strong similarities between the

       adoption statute and the termination of parental rights statute in this respect.

       See M.L., 973 N.E.2d at 1223 (holding that the adoption statutes and the

       termination statutes provide similar balances between parental rights and the

       best interests of the children). 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).


[29]   Mother maintains that the final adoption hearing was “merely ceremonial in

       nature,” and that, during the hearing, “no evidence was offered, and no

       determination was made, as to whether the granting of the adoption was in the

       best interests of the child.” Appellant’s Brief at 16-17. Mother also argues that

       she should have been allowed to participate in the hearing and present evidence

       regarding whether the adoption was in Child’s best interests.


[30]   We already have determined that Mother waived any allegation of error

       regarding whether she received notice of the final adoption hearing. As for

       whether the adoption was in the best interests of Child, based upon the totality

       of the evidence presented during the adoption proceedings, we find that it was.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 15 of 17
[31]   Mother attended the September 29, 2017 consent hearing and was represented

       by counsel. The evidence presented at the hearing established that Mother has

       a history of drug abuse and that Child was in the care and physical custody of

       Father since early 2013. Although Mother was employed, earned income, and

       had her housing and household expenses subsidized, she did not make any

       payments toward her court-ordered child support obligation until four months

       after the adoption petition was filed. She, instead, chose to spend the money on

       her cigarette and illegal drug habits, drug treatment, and fines for traffic

       infractions. Mother exercised visitation with Child, when she was not

       incarcerated, and she testified that during the visits, she fed Child, threw

       birthday parties for him, and bought him gifts, clothing, and toys. However,

       other evidence was presented indicating that, during visitation, Mother engaged

       in illicit activities with men for money while Child was in his bedroom in the

       home where Mother resided.


[32]   The trial court held a final adoption hearing, following which the trial court

       determined that Child had resided with Stepmother and Father since March

       2015, and that Stepmother and Father were capable of raising Child and

       furnishing him with suitable support and education. The court concluded that

       Child’s adoption by Stepmother was in Child’s best interests.


[33]   Based upon the totality of the evidence presented during the adoption

       proceedings, we cannot say that the evidence leads only to the opposite

       conclusion of that reached by the trial court. We therefore find that the trial



       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 16 of 17
       court’s conclusion that the adoption of Child by Stepmother was in Child’s best

       interests was not clearly erroneous.


[34]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018   Page 17 of 17
