MEMORANDUM DECISION                                                   Mar 31 2015, 10:36 am

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



ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
Latriealle Wheat                                         James C. Yankosky
Angola, Indiana                                          Tourkow, Crell, Rosenblatt
                                                         & Johnston, LLP
                                                         Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of H.J.S.                             March 31, 2015
                                                         Court of Appeals Case No.
J.H.S. and P.L.S.,                                       76A04-1410-AD-502
Appellants-Petitioners,                                  Appeal from the Steuben Superior
                                                         Court.
        v.                                               The Honorable William C. Fee,
                                                         Judge.
                                                         Cause No. 76D01-1312-AD-8
B.M.C. and A.J.S.,
Appellees-Respondents




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015          Page 1 of 13
[1]   J.H.S. (Paternal Grandfather) and P.L.S. (Paternal Grandmother) appeal the

      trial court’s order dismissing their petition to adopt their grandchild, H.J.S.

      (Child). The trial court found that the Paternal Grandparents had thwarted the

      ability of B.C. (Mother) to communicate with Child for the year leading up to

      the filing of the adoption petition and that, consequently, Mother’s consent to

      the adoption was required. The Grandparents argue that some of the trial

      court’s findings are erroneous as a matter of law and that their petition should

      not have been dismissed. Finding that Mother’s consent was not required, we

      reverse and remand for further proceedings.


                                                         Facts
[2]   Child was born on August 31, 2007, to Mother and Father.1 Child has been

      living with Paternal Grandparents since December 31, 2009. On November 9,

      2010, Paternal Grandparents filed a petition for temporary custody of Child so

      that they could enroll him in preschool. After Mother expressed hesitation

      regarding custody, the parties agreed to meet with a mediator.


[3]   Following mediation, Mother and the Paternal Grandparents were able to

      reach an agreement (Mediation Agreement). The Mediation Agreement was

      filed with the trial court on February 8, 2011. In relevant part, the Mediation

      Agreement provides as follows:




      1
       Father had not had contact with Child for at least a year prior to the filing of the adoption petition, so his
      consent to the adoption is not required and he is not participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015                 Page 2 of 13
        2.      All parties agree that it is in [Child’s] best interest that his
                Paternal Grandparents continue to exercise temporary physical
                custody of [Child] and to determine his best interests.
        3.      Furthermore, all parties agree that it is in [Child’s] best interest
                that his Mother be offered an opportunity to normalize her
                parenting relationship with [Child] in the hopes that she may
                take up the duties of his primary care in the future.
        4.      To that end, all parties agree that as a first step . . . , that over
                approximately the next six (6) months . . . , Mother will [abide
                by] the following plan:
                1.       Mother will have predictable and consistent visitation
                         with [Child] on alternate weekends or at such times and
                         places as she and Paternal Grandparents shall agree.
                2.       Mother will provide a stable home for [Child] . . . .
                3.       Mother will provide proof of completing a parenting
                         class . . . .
                4.       Mother will help to facilitate and to support visits
                         between [Child] and his Maternal Grandmother . . . .
                                                ***
        5.      All parties agree that the question of Mother’s reasonable
                fulfillment and completion of the above first step, or any
                subsequent steps outlined below, will be at Paternal
                Grandparents’ discretion, but contestable by Mother if she
                believes they are being unreasonable . . . , first through an
                appeal privately in mediation, but, if needed thereafter, to the
                Court.
                                                ***
        10.     All parties agree that until such time as such a stipulation is
                provided to the Court, Paternal Grandparents will remain the
                temporary custodians of [Child] and will have the duty and
                responsibility to set the pace and exercise the discretion
                required in the above [sic] at each step to advance to the next
                step, with Mother’s right to contest their judgment as outlined
                in paragraph five (5) above.
                                                ***


Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015    Page 3 of 13
                 13.     Finally, all parties agree that, should any future private efforts
                         at conflict resolution not prove successful, they will return to
                         mediation at the unilateral request of either Paternal
                         Grandparents or Mother as their first step towards formal
                         conflict resolution before filing any future petition with the
                         court . . . .
      Tr. Ex. 3. p. 7-12. The Mediation Agreement goes on to outline several more

      steps to work through after completion of the above-described first step. The

      trial court adopted the Mediation Agreement and awarded Paternal

      Grandparents temporary custody of Child on February 8, 2011.


[4]   Mother had not yet completed the first step of the Mediation Agreement as of

      the adoption hearing on August 6, 2014. She had failed to complete a parenting

      class despite having over three years to do so. She had failed to obtain stable

      housing, instead living in multiple states and cities with different boyfriends, at

      times actively concealing her location from Paternal Grandparents.


[5]   Mother did, however, exercise her parenting time rights for over a year. In fact,

      as of March 2012, Mother was taking Child to the home of Maternal

      Grandmother for full weekend visitations. At some point, Paternal

      Grandparents learned that two people living with Maternal Grandmother had

      been recently charged with multiple drug offenses.2 One of the probable cause

      affidavits specified that on April 12, 2012, there was marijuana, drug

      paraphernalia, methamphetamine, and a handgun in Maternal Grandmother’s




      2
          Both individuals ended up pleading guilty to possession of methamphetamine.


      Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015    Page 4 of 13
      home. After learning of the drug issues in Maternal Grandmother’s home,

      Paternal Grandparents no longer permitted Child to spend the night in that

      home because they feared for his safety. They still let Child visit that residence

      because Maternal Grandmother stated that those two individuals had moved

      out. At some point, however, Mother posted a picture on Facebook of one of

      the people convicted of drug offenses sleeping on a couch next to Child at

      Maternal Grandmother’s home.


[6]   After seeing that picture, Paternal Grandparents stated that parenting time

      would have to occur at a public location rather than in Maternal

      Grandmother’s home. Mother selected a McDonald’s for those visits. The first

      McDonald’s visit was uneventful. At some point, Mother failed to show for

      one of the visits. On another occasion, Maternal Grandmother came with

      Mother to the visit and engaged Paternal Grandparents in a verbal altercation

      in front of the Child when they refused her request to have Child spend

      Christmas at her home.


[7]   Paternal Grandparents believed that conflict and verbal altercations were not

      healthy for Child and concluded that it would be best for Child if they were no

      longer present for Mother’s visits. Given the past problems, however, they were

      reluctant to permit the visits to occur in an unsupervised setting. On December

      10, 2012, Paternal Grandparents sent Mother a letter stating that they planned

      to have her visits set up at an agency called Family Ties, which is able to

      supervise parenting time. They provided her with the agency’s phone number

      and the name of the contact person to call to set up the visits. In the letter,

      Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 5 of 13
       Paternal Grandparents also stated that Mother could take Child to her family’s

       Christmas party on Christmas Eve.


[8]    Mother did not call Family Ties. Paternal Grandmother called Family Ties,

       and was mistakenly informed that a court order was needed for parenting time

       to take place at that facility. Neither Mother nor Paternal Grandmother

       followed up. Mother did not take Child to her family’s Christmas party

       because “somethin’ came up.” Tr. p. 95. Mother’s last visit with Child was at

       McDonald’s on December 9, 2012.


[9]    Between December 10, 2012, and December 10, 2013, Mother called or texted

       Paternal Grandparents on two or three occasions. Paternal Grandparents did

       not respond. During that year, Mother never sought mediation pursuant to the

       Mediation Agreement, stopped by Paternal Grandparents’ home, followed up

       with Family Ties, or pursued relief from the trial court.


[10]   On December 10, 2013, Paternal Grandparents filed a petition to adopt Child.

       On August 6, 2014, the trial court held an evidentiary hearing regarding the

       issue of Mother’s consent. At the hearing, the director of Family Ties testified

       that a court order is not required for the facility to supervise parenting time. Tr.

       p. 78. On September 25, 2014, the trial court entered an order dismissing the

       petition because of a lack of consent from Mother. In relevant part, the trial

       court found and concluded as follows:

               3.      [Mother] was granted unsupervised parenting time with the
                       child pursuant to this Court’s Order dated February 8, 2011


       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 6 of 13
                (ratifying [the Mediation Agreement]). The Order has not been
                modified.
                                                ***
        5.      [Mother] communicated significantly in person with [Child]
                after September 4, 2012 through December 9, 2012 both at her
                residence and at McDonald’s . . . .
                                                ***
        8.      The Court’s Order of February 8, 2011, regarding visitation
                does not call for any of Mother’s visitation to be supervised nor
                does it specify that any visitation will be conducted at [Family
                Ties].
                                                ***
        12.     [Mother’s] uncontroverted testimony is she tried contacting the
                [Paternal Grandparents] by cell phone after December 9, 2012
                and into the early part of 2013 to visit with [Child] but her
                phone calls and text messages went unanswered.
                                                ***
        14.     As of December 10, 2012, the [Paternal Grandparents] have
                negated efforts on [Mother’s] behalf to communicate
                significantly/exercise visitation with [Child] by:
                        Refusing to answer or return phone calls from [Mother]
                         regarding visitation;
                        Refusing to meet at a mutually acceptable place for
                         visitations . . . ; and
                        Mandating that any visitation between [Mother] and [Child]
                         after December 9, 2012, be supervised at [Family Ties] despite
                         uncontroverted testimony that this facility required a court order
                         to facilitate such visitation.

                                                ***
        20.     The [Paternal Grandparents], in refusing to answer [Mother’s]
                phone calls and text messages, and in mandating supervised
                visitation when the Court had not required such, have
                hampered and/or thwarted significant communication from
                occurring between [Mother] and [Child].


Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 7 of 13
               21.     Based upon the foregoing, the Court FINDS that the [Paternal
                       Grandparents] have failed to meet their burden of proof, by
                       clear and convincing evidence, that for a period of at least one
                       year since [December] 9, 2012, [Mother] has failed without
                       justifiable cause to communicate significantly with [Child]
                       when able to do so.
       Appellant’s App. p. 7-12. Paternal Grandparents now appeal.


                                    Discussion and Decision
[11]   Our Supreme Court has recently clarified the standard of review to be applied

       to adoption proceedings:

               “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). We presume the
               trial court’s decision is correct, and we consider the evidence in the
               light most favorable to the decision. Id. at 771–72.
               When, as in this case, the trial court has made findings of fact and
               conclusions of law, 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.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 of law, “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.
       In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).




       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 8 of 13
[12]   As a general rule, a petition to adopt a child under the age of eighteen will be

       granted only if written consent to the adoption has been executed by the child’s

       parents. Ind. Code § 31-19-9-1(a). Indiana Code section 31-19-9-8, however,

       sets forth an exception to the general rule:

               (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[.]
       In seeking an adoption without consent from the parents, the petitioner must

       meet the burden of proof by clear and convincing evidence. In re Adoption of

       S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).


[13]   This Court has discussed the evidence that is required to satisfy the above

       statutory exception to the general consent rule:

               Initially, we note that a party petitioning to adopt without parental
               consent has the burden of proving both a lack of communication for
               the statutory period and that the ability to communicate during that
               time period existed. Whether this burden has been met is necessarily
               dependent upon the facts and circumstances of each particular case,
               including, for example, the custodial parent’s willingness to permit
               visitation as well as the natural parent’s financial and physical means
               to accomplish his obligations. Efforts of a custodial parent to hamper or
               thwart communication between parent and child are relevant in determining
               the ability to communicate. However, in order to preserve the consent
               requirement for adoption, the level of communication with the child must be
               significant, and also must be more than “token efforts” on the part of the parent
               to communicate with the child. The reasonable intent of the statute is to
               encourage non-custodial parents to maintain communication with

       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015    Page 9 of 13
               their children and to discourage non-custodial parents from visiting
               their children just often enough to thwart the adoptive parents' efforts
               to provide a settled environment for the children.
       In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal

       citations omitted) (emphasis added).


[14]   In this case, the trial court based its conclusion regarding Mother’s consent on

       three basic findings of fact: (1) that Paternal Grandparents required that

       Mother’s visits be supervised, ostensibly in violation of the Mediation

       Agreement; (2) that Paternal Grandparents required that Mother’s visits take

       place at a facility that ostensibly required a court order to supervise parenting

       time; and (3) that Paternal Grandparents failed to return Mother’s two or three

       phone calls and texts. We will consider each of these in turn.


[15]   First, the trial court found that the Mediation Agreement granted Mother

       unsupervised parenting time. Appellant’s App. p. 7-8. This is incorrect. The

       Mediation Agreement does not specify whether Mother’s parenting time was to

       be supervised or unsupervised. Instead, it says that it was up to Paternal

       Grandparents to determine what was in Child’s best interests and that

       visitation, as well as Mother’s compliance with the terms of the Mediation

       Agreement, was within the discretion of Paternal Grandparents. Tr. Ex. 3 p. 8-

       9. Mother had the right to seek redress from a mediator and/or the trial court if

       she believed that Paternal Grandparents were abusing their discretion.


[16]   Second, the trial court found that the Mediation Agreement does not specify

       that visits were to take place at Family Ties. While this is technically correct, as


       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 10 of 13
       noted above, the agreement does state that visits were within the discretion of

       Paternal Grandparents. The trial court also found that there was

       “uncontroverted testimony that [Family Ties] required a court order to facilitate

       such visitation.” Appellant’s App. p. 9. This is incorrect, inasmuch as the

       director of Family Ties testified at the hearing that a court order is not required

       to facilitate parenting time. Tr. p. 78-79. She testified that it was “possible, but

       unlikely,” that a Family Ties employee had mistakenly informed Maternal

       Grandmother that a court order was required, but it is undisputed that, in fact,

       no court order is required. Id. at 79.


[17]   Third, the trial court found that Paternal Grandparents failed to answer or

       return Mother’s phone calls or texts. This is correct, but must be considered in

       context. Between February 2011 and December 2012, Paternal Grandparents

       made every effort to enable Mother and Child to see each other. They allowed

       overnight visits at Maternal Grandmother’s home, until residents of that home

       were convicted of possessing drugs inside that residence. They still allowed

       Child to visit the home during the day, until they learned that one of the

       convicted drug offenders was still maintaining a presence in that home.

       Paternal Grandparents then asked that Mother’s visits take place at a public

       location, which they let her select. And after Maternal Grandmother initiated a

       verbal altercation at one of those visits, in front of the Child, Paternal

       Grandparents determined that it was in Child’s best interests that they no longer

       be present at the visits. But given the unstable history of those visits and of

       Mother’s living situation, Paternal Grandparents asked that the visits be


       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 11 of 13
       supervised. Of their own initiative, they found an agency that would help, and

       informed Mother of the name, phone number, and contact person for that

       agency. Paternal Grandparents also told Mother that Child could join her for

       her family’s Christmas party.


[18]   Notwithstanding all of these efforts, Mother did not call Family Ties, nor did

       she follow up when Maternal Grandmother reported that a court order was

       required. Mother did not take Child to her family Christmas party. Mother

       called and texted Paternal Grandparents two or three times between December

       2012 and the beginning of 2013, but quickly gave up after she received no

       response.


[19]   Mother had the right, under the Mediation Agreement, to seek mediation on

       the issue of her parenting time. She did not. She also did not seek redress from

       the trial court. Mother worked just blocks from the home of Paternal

       Grandparents and Child, but she never went there in person. Mother had

       previously visited the workplace of Paternal Grandparents, but never once went

       there in person during the year leading up to the filing of the adoption petition.

       Mother never sent cards or letters to Child during that year.


[20]   To determine whether Mother’s consent is required, the trial court need

       examine only the year prior to the filing of the petition. I.C. § 31-19-9-8(a)(2).

       In that year, Mother made two or three phone calls, and made no further efforts

       to see Child. As noted above, more than “token efforts” on the part of the

       parent to communicate with the child are required to retain the right to consent


       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 12 of 13
       to an adoption. C.E.N., 847 N.E.2d at 271-72. Mother’s two or three phone

       calls and text messages, over the course of an entire year, amount to only token

       efforts to communicate with Child. And Paternal Grandparents’ failure to

       return those few calls does not amount to an attempt to thwart that

       communication.


[21]   We find that the evidence in this case leads to but one conclusion—that, in the

       year prior to the filing of the adoption petition, Mother failed without justifiable

       cause to communicate with Child despite having the opportunity to do so.

       Consequently, her consent to the adoption was not required and it was

       erroneous to dismiss the adoption petition.


[22]   The judgment of the trial court is reversed and remanded for further

       proceedings consistent with this opinion.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015   Page 13 of 13
