MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                          Aug 23 2016, 6:57 am
this Memorandum Decision shall not be
                                                                     CLERK
regarded as precedent or cited before any                        Indiana Supreme Court
                                                                    Court of Appeals
court except for the purpose of establishing                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Michael P. Quirk                                         Danyel Struble
Muncie, Indiana                                          Muncie, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

K.S.,                                                    August 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1602-AD-317
        v.                                               Appeal from the Delaware Circuit
                                                         Court
D.S.,                                                    The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         Trial Court Cause No.
                                                         18C02-1511-AD-2



Altice, Judge.




                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016    Page 1 of 18
[1]   K.S. (Birth Mother) appeals from the trial court’s order granting the petition of

      D.S. (Adoptive Mother) to adopt J.S. (Child), which included findings that

      Birth Mother’s consent to the adoption was both irrevocably implied due to her

      failure to appear at the hearing to contest the adoption and not required due to

      her abandonment of Child. On appeal, Birth Mother argues that the trial court

      erred in denying her request for a continuance. Adoptive Mother cross-appeals

      and requests appellate attorney fees pursuant to Appellate Rule 66(E).


[2]   We affirm and remand with instructions.


                                       Facts & Procedural History


[3]   Birth Mother and C.S. (Father) were married in 2009, and Birth Mother gave

      birth to Child in 2011. Birth Mother and Father’s divorce was finalized in

      November 2014, at which time Father was awarded sole legal and physical

      custody of Child. When custody was transferred from Birth Mother to Father

      upon the entry of the custody order, Child’s weight was below what it should

      have been for his age and he was not verbal. Father and Adoptive Mother lived

      together at that time, and they married approximately one month later.

      Adoptive Mother took an active role in caring for Child and getting him the

      services he needed, including counseling, speech therapy, medical care, and

      preschool. While in the care of Father and Adoptive Mother, Child has made

      significant progress in his speech, weight, and social skills. Additionally, Child

      has formed a close bond with Adoptive Mother’s biological daughter.




      Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 2 of 18
[4]   After Father took custody of Child, Birth Mother exercised visitation for a few

      months before she stopped showing up. Despite being given multiple

      opportunities to visit with Child, Birth Mother has not seen him since March

      2015. Birth Mother has also failed to pay child support. In September 2015,

      the dissolution court suspended Birth Mother’s visitation and ordered her to

      complete drug treatment and submit to a hair follicle test before visitation

      would be reinstated. Birth Mother has failed to complete these requirements.


[5]   On November 18, 2015, Adoptive Mother filed a petition to adopt Child, to

      which she attached Father’s written consent. In the petition, Adoptive Mother

      alleged that Birth Mother had abandoned Child for a period of at least six

      months prior to the filing of the petition and that Birth Mother had not

      consistently paid child support. Birth Mother filed a response and objection to

      the petition on November 25, 2015, and the trial court scheduled a hearing for

      January 8, 2016.


[6]   Birth Mother filed a request for a continuance on December 17, 2015. In the

      motion, Birth Mother’s counsel represented that Birth Mother had entered an

      inpatient drug treatment facility in California on December 1, 2015, and that

      she would be there for at least ninety days. In response to this motion, the trial

      court converted the hearing scheduled for January 8, 2016 to a status hearing

      and indicated that the motion for continuance would be addressed at that time.

      The court instructed counsel to bring proof of Birth Mother’s enrollment in

      treatment to the status hearing. On January 5, Birth Mother’s counsel filed a

      Notice to the Court stating that Birth Mother had been in inpatient drug

      Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 3 of 18
      treatment since December 1, 2015. Attached to the notice was a letter (“the

      Nationwide Recovery Letter”) dated November 29, 2015, purporting to be from

      the owner of “Nationwide Recovery” in California, stating that Birth Mother

      “w[ould] be attending” drug treatment beginning December 1, 2015, and that

      treatment would last between forty-five and ninety days. Appellant’s Appendix at

      29.


[7]   Birth Mother did not appear at the January 8 status hearing, but counsel

      appeared on her behalf. At the hearing, Birth Mother’s counsel indicated that

      he had lost contact with Birth Mother. Counsel stated that he had spoken to

      her during a conference call on another matter shortly before Christmas, and

      she claimed at that time to be in treatment but she believed she would be getting

      out early. Counsel had not heard from Birth Mother since, and he did not

      know her whereabouts at the time of the hearing or whether she had left

      treatment early. The trial court agreed to reschedule the adoption hearing, and

      Birth Mother’s counsel requested the hearing be set “sooner than later[.]”

      Transcript at 12. The trial court suggested January 13, 2016, and Birth Mother’s

      counsel said that date was “fine.” Id.


[8]   Birth Mother failed to appear again at the January 13 hearing, and her counsel

      requested another continuance because he had been unable to locate her and he

      wanted to confirm whether she was in treatment. Birth Mother’s counsel stated

      that he had called the telephone number listed on the Nationwide Recovery

      Letter and got what he believed to be a cell phone message indicating that the

      voicemail inbox was full. Birth Mother’s counsel tried another telephone

      Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 4 of 18
       number for Nationwide Recovery that he looked up online, but all he got was a

       busy signal. Adoptive Mother’s counsel objected to the motion for continuance

       and voiced concerns about the authenticity of the Nationwide Recovery Letter.

       Specifically, Adoptive Mother’s counsel stated that the address listed on the

       letter did not match the address on the facility’s website, and she noted that part

       of the letter was whited out. Adoptive Mother’s counsel noted further that

       Nationwide Recovery Letter did not confirm that Birth Mother had ever

       actually entered treatment. Instead, it stated that Birth Mother would be

       entering treatment on December 1, 2015.


[9]    The trial court denied the motion for continuance and the matter proceeded to a

       hearing. At the conclusion of the evidence, the trial court ruled that Birth

       Mother’s consent to the adoption was implied pursuant to Ind. Code § 31-19-9-

       18 due to her failure to appear to contest the petition. The trial court concluded

       further that Birth Mother’s consent was not required because she had

       abandoned Child for at least six months prior to the filing of the petition. See

       I.C. § 31-19-9-8. The trial court found that the adoption was in Child’s best

       interest and therefore granted the petition. Birth Mother now appeals.


                                            Mother’s Arguments


[10]   On appeal, Birth Mother frames the issue as whether the trial court erred in

       denying her motion for a continuance. However, Birth Mother has failed to

       cite the applicable standard of review or any authority whatsoever in support of

       her argument in this regard. “A party waives any issue for which it fails to


       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 5 of 18
       develop a cogent argument or support with adequate citation to authority.”

       Zoller v. Zoller, 858 N.E.2d 124, 127 (Ind. Ct. App. 2006) (quoting Steiner v. Bank

       One Ind., N.A., 805 N.E.2d 421, 429 n.6 (Ind. Ct. App. 2004)). Accordingly,

       Birth Mother’s argument that the trial court erred in denying her motion for

       continuance is waived.


[11]   Waiver notwithstanding, we note that Birth Mother was well aware of the

       adoption proceedings, as counsel had filed an appearance and objection on her

       behalf. Nevertheless, Birth Mother failed to appear for two scheduled hearings

       or maintain contact with her attorney. By the time of the adoption hearing,

       Birth Mother’s attorney did not know where Birth Mother was or how to reach

       her. When he attempted to contact her using the contact information listed in

       the Nationwide Recovery Letter and additional information he had researched

       online, he could not reach anyone. Indeed, at the January 8 status hearing,

       Birth Mother’s counsel stated that he had been informed that Birth Mother was

       “on the run.”1 Transcript at 6. Given Birth Mother’s undisputed knowledge of

       the adoption case and her utter failure to keep the court or her attorney apprised

       of her whereabouts, we cannot conclude that Birth Mother has established good

       cause for a continuance.2 See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct.




       1
           We note that Birth Mother was represented by the same counsel at trial and on appeal.
       2
        Birth Mother also seems to suggest that she should have been sent notice of the adoption hearing at the
       address listed in the Nationwide Recovery Letter. Again, Birth Mother fails to cite any legal authority in
       support of her argument. It is undisputed that Birth Mother’s counsel had notice of all hearings, and notice
       given to an attorney constitutes notice to his client. See Washmuth v. Wiles, 12 N.E.3d 938, 941 (Ind. Ct. App.
       2014). Moreover, Birth Mother’s counsel stated that he had made every effort to contact Birth Mother using

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016             Page 6 of 18
       App. 2012) (noting that a trial court abuses its discretion in denying a

       continuance when the moving party has shown good cause for granting the

       motion).


                                                        Consent


[12]   Although Birth Mother identifies the denial of her motion to continue the

       adoption hearing as the sole issue on appeal, she also appears to challenge the

       trial court’s findings that her consent to the adoption was both irrevocably

       implied and not required. Birth Mother again fails to cite the applicable

       standard of review, and although she does cite to two statutes, she has clearly

       conflated and misunderstood them. First, Birth Mother cites I.C. § 31-19-9-

       18(b) and, without quoting or paraphrasing the statute, claims that it “should

       not apply” because Father prevented Birth Mother from contacting Child—

       thus, it appears that she is challenging the trial court’s finding that she

       abandoned Child. Appellant’s Brief at 10. But I.C. § 31-19-9-18 has nothing to

       do with abandonment; instead, it addresses the circumstances under which a

       party who fails to appear or to prosecute a motion to contest an adoption will

       be deemed to have consented thereto.


[13]   Birth Mother also cites I.C. § 31-19-10-1.2(a)(1) and, again without quoting or

       paraphrasing the statute, argues that it does not apply in this case because that




       the contact information she provided, but was unsuccessful. It is therefore unlikely that the trial court would
       have had better luck had it attempted to send notice of the hearing directly to Birth Mother.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016              Page 7 of 18
       statute addresses “a biological parent who actually knows about a hearing and

       can attend, but chooses not to attend and in essence does not object to the

       adoption.” Appellant’s Brief at 10. But I.C. § 31-19-10-1.2(a)(1) has nothing to

       do with a biological parent’s failure to appear to contest an adoption. Instead,

       it discusses the applicable burden of proof when a petition for adoption alleges

       that a parent’s consent is unnecessary pursuant to I.C. § 31-19-9-8 and the

       parent files a motion to contest the adoption. Specifically, the burden is on the

       petitioner to establish that the parent’s consent is not required for one of the

       reasons set forth in I.C. § 31-19-9-8—in this case, because the parent is adjudged

       to have abandoned the child for at least six months immediately preceding the

       filing of the adoption petition. Birth Mother makes no argument that this

       burden was allocated improperly.


[14]   For all of these reasons, to the extent Birth Mother challenges the trial court’s

       findings that her consent to the adoption was both irrevocably implied and not

       required, her argument is waived for lack of cogency. Nevertheless, in the

       interest of justice, we will attempt to address Birth Mother’s arguments to the

       extent her deficient briefing allows. Our standard of review in adoption cases is

       well-settled. In re Adoption of M.B., 944 N.E.2d 73, 76 (Ind. Ct. App. 2011). We

       will not disturb a trial court’s ruling on an adoption petition unless the evidence

       leads to but one conclusion and the trial court reached the opposite conclusion.

       Id. We will not reweigh the evidence, and we will look to the evidence most

       favorable to the trial court’s decision and the reasonable inferences drawn

       therefrom to determine whether sufficient evidence exists to sustain the


       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 8 of 18
       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. (quoting M.A.S. v.

       Murray, 815 N.E.2d 216, 219 (Ind. Ct. App. 2004)).


[15]   The trial court found two alternative bases for dispensing with Birth Mother’s

       consent, both of which were amply supported by the evidence. First, the trial

       court found that Birth Mother’s consent was irrevocably implied pursuant to

       I.C. § 31-19-9-8 due to her failure to appear for the contested hearing. This

       statute provides that the consent of a person served with notice of an adoption

       petition is irrevocably implied if the person files a motion to contest the

       adoption, but then fails to appear at the hearing to contest the adoption and

       fails to prosecute the motion without unreasonable delay.


[16]   Birth Mother argues (without citation to authority) that I.C. § 31-19-9-18

       applies only to a person who has been personally notified of a hearing and

       chooses not to attend. Birth Mother argues that her failure to appear and to

       prosecute her motion to contest the adoption should be excused because,

       according to her, she did not receive actual notice of the hearing due to her

       participation in a drug treatment program in California. We are unpersuaded.

       Birth Mother’s counsel made every effort to personally notify Birth Mother of

       the hearings and to have her attend, but Birth Mother’s disappearance made it

       impossible for him to do so. Birth Mother could not short-circuit the adoption

       proceedings simply by vanishing. Moreover, the trial court was in no way

       obligated to accept Birth Mother’s claim that she was in drug treatment as true,

       particularly in light of her disappearance and counsel’s inability to reach her or

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 9 of 18
       anyone else at the facility where she claimed to be enrolled. Indeed, the trial

       court made a specific finding that Birth Mother had not completed drug

       treatment. In any event, even if Birth Mother was in treatment, that would not

       excuse her complete failure to maintain contact with the court or, at the very

       least, her own attorney and to remain apprised of the status of the adoption

       proceedings, of which she was undisputedly aware. Accordingly, the trial

       court’s finding that Birth Mother’s consent to the adoption was irrevocably

       implied due to her failure to appear and prosecute her motion to contest the

       adoption is clearly supported by the evidence.


[17]   The trial court also found that Birth Mother’s consent was not required because

       she had abandoned Child for at least six months immediately preceding the

       date the adoption petition was filed as set forth in I.C. § 31-19-9-8(a)(1). Birth

       Mother argues that the trial court’s finding in this regard is erroneous because

       Father thwarted her efforts to maintain contact with Child, but she does not

       provide adequate citation to the record in support this claim. Instead of citing

       to specific sections of the transcript or appendix, Birth Mother provides the

       following citation: “(Appellant’s Appendix, pg. ).” Appellant’s Brief at 10.


[18]   It is undisputed that Birth Mother has not visited Child since March 2015.

       According to Father, Birth Mother simply stopped showing up for visits and

       when he would call or text her to see if she was coming, he would get no

       response. After that, Birth Mother never asked for visitation again, and the

       dissolution court suspended her visitation in September 2015. Father testified

       that Birth Mother texted him in November 2015 asking to talk to Child on the

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 10 of 18
       phone, but he did not allow it because he believed the court order prohibited

       Birth Mother from having contact with Child. This was the only time Mother

       ever attempted to speak to Child on the phone after she stopped visiting.


[19]   Additionally, Adoptive Mother testified that Birth Mother had sent Child a

       single card in December 2015, but there is no support in the record for Birth

       Mother’s assertion that Father and Adoptive Mother prevented Child from

       receiving it. In any event, Birth Mother’s meager and belated efforts to contact

       Child do not undermine the trial court’s finding that Birth Mother abandoned

       Child for the purposes of the adoption statutes. See I.C. § 31-19-9-8 (providing

       that “[i]f a parent has made only token efforts to support or to communicate

       with the child the court may declare the child abandoned by the parent”). For

       all of these reasons, the trial court’s finding that that Birth Mother abandoned

       Child is clearly supported by the evidence.


                                  Request for Appellate Attorney Fees


[20]   On cross-appeal, Adoptive Mother requests an award of appellate attorney fees

       pursuant to Ind. Appellate Rule 66(E), which provides this court with discretion

       to assess damages, including attorney fees, when an appeal is frivolous or in bad

       faith.

                We will award appellate attorney fees only if an appeal is
                permeated with meritlessness, bad faith, frivolity, harassment,
                vexatiousness, or purpose of delay. We use extreme restraint in
                deciding whether to award appellate attorney fees because of the
                potential chilling effect upon the exercise of the right to appeal.
                Bad faith in an appeal may be either substantive or procedural.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 11 of 18
               Substantive bad faith occurs if an appellant’s contentions and
               arguments are utterly devoid of all plausibility. Procedural bad
               faith occurs if a party flagrantly disregards the requirements of
               the rules of appellate procedure, omits or misstates relevant facts,
               or files a brief calculated to require the maximum expenditure of
               time by both the opposing party and this court.


       Blackman v. Gholson, 46 N.E.3d 975, 981 (Ind. Ct. App. 2015) (internal citations

       and quotation marks omitted). “Even if the appellant’s conduct falls short of

       that which is ‘deliberate or by design,’ procedural bad faith can still be found.”

       Memory Gardens Mgmt. Corp. v. Liberty Equity Partners, LLC, 43 N.E.3d 609, 619

       (Ind. Ct. App. 2015) (quoting Thacker v. Wentzel, 797 N.E.2d 342, 347 (Ind. Ct.

       App. 2003)), trans. denied. Nevertheless, we require a strong showing to justify

       an award of appellate damages under App. R. 66(E), and such sanctions are

       “not imposed to punish mere lack of merit but something more egregious.” Id.


[21]   Adoptive Mother’s arguments generally focus on allegations of procedural bad

       faith. Specifically, Adoptive Mother argues that Birth Mother’s brief contains a

       number of “factual misrepresentations, blatant false statements[,] and irrelevant

       arguments.” Appellee’s Brief at 15. Adoptive Mother also notes that Birth

       Mother’s appellate brief contains numerous defects, which have caused

       Adoptive Mother’s counsel to expend “an extraordinary amount of time and

       effort trying to distinguish what potions of [Birth Mother’s] brief are relevant,

       what portions are complete misrepresentations of the record[,] and what exactly

       is being appealed at what standard of review.” Id. at 17.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 12 of 18
[22]   There are numerous violations of the appellate rules in Birth Mother’s

       Appellant’s Brief. First, the Table of Authorities contains a single case citation:

       “988 N.E.2d 1250 (Ind. Ct. App.) 996 N.E.2d 1278 (Ind. 2013).)”3 Appellant’s Brief at

       ii. See Ind. Appellate Rule 22(a) (providing that “[a]ll Indiana cases shall be

       cited by giving the title of the case followed by the volume and page of the

       regional and official reporter (where both exist), the court of disposition, and

       the year of the opinion”). Birth Mother has also failed to include references to

       the pages on which the case is cited. See App. R. 46(A)(2) (providing that “[t]he

       table of authorities shall list each case, statute, rule, and other authority cited in

       the brief, with references to each page on which it is cited”). This is perhaps

       because Birth Mother fails to cite this case, or any case for that matter,

       anywhere in her Appellant’s Brief. Birth Mother has also listed two statutes in

       her table of authorities, and although she does actually cite them in her brief,

       she has again failed to provide page numbers.


[23]   Birth Mother’s Statement of Case is essentially a description of every page

       appearing in the Appellant’s Appendix, many of which are irrelevant to the

       issues presented. See App. R. 46(A)(5) (providing that the Statement of Case

       “shall briefly describe the nature of the case, the course of the proceedings

       relevant to the issues presented for review, and the disposition of these issues”

       (emphasis supplied)). Additionally, Birth Mother’s Summary of Argument is a




       3
        It appears that Birth Mother was attempting to cite In re Adoption of J.T.A., 988 N.E.2d 1250 (Ind. Ct. App.
       2013, trans. denied, as well as our Supreme Court’s order denying transfer in that case.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016            Page 13 of 18
       one-sentence restatement of the issue presented for review. See App. R.

       46(A)(7) (providing that the Summary of Argument “should contain a succinct,

       clear, and accurate statement of the arguments made in the body of the brief”

       and “should not be a mere repetition of the argument headings”).


[24]   The most egregious of Birth Mother’s violations of the appellate rules, however,

       appear in the Statement of Facts and Argument sections of her Appellant’s

       Brief. App. R. 46(A)(6) provides that the Statement of Facts shall describe the

       facts relevant to the issues presented, supported by citation to the record or

       appendix, and that the facts shall be stated in accordance with the standard of

       review appropriate to the judgment or order being appealed. Furthermore, as

       this court has noted, the statement of facts should be devoid of argument.

       Minix v. Canarecci, 956 N.E.2d 62, 66 n.2 (Ind. Ct. App. 2011), trans. denied.

       Birth Mother’s Statement of Facts contains numerous assertions that are

       unsupported by citation to the record. Birth Mother also cites facts unfavorable

       to the trial court’s judgment and therefore not in accordance with the applicable

       standard of review. Specifically, Birth Mother insists that she was unable to

       attend the hearings because she was in inpatient drug treatment in California,

       but as we explained above, the evidence presented to support this assertion was

       suspect at best, and the trial court apparently did not find it credible. Moreover,

       Birth Mother’s Statement of Facts contains a number of argumentative

       statements. For example, Birth Mother argues that a statement made by

       Adoptive Mother’s counsel at the adoption hearing was “simply not true[,]”and

       that the trial court “could have easily waited until the rehab was over and while


       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 14 of 18
       there is a possibility the outcome would have been the [same] but at least [Birth

       Mother] could have testified on her own behalf.” Appellant’s Brief at 5-6.

       Commentary such as this has no place in a Statement of Facts.


[25]   The Argument section of Mother’s brief is the most problematic. App. R.

       46(A)(8) provides that the Argument shall contain “the contentions of the

       appellant on the issues presented, supported by cogent reasoning” and that

       “[e]ach contention must be supported by citations to the authorities, statutes,

       and the Appendix or parts of the Record on Appeal relied on[.]” Furthermore,

       the Argument section “must include for each issue a concise statement of the

       applicable standard of review” and “[e]ach argument shall have an argument

       heading.” Id.


[26]   The Argument section of Birth Mother’s brief spans a total of three and a half

       pages, in which she has failed to provide separate headings for her arguments or

       to cite the applicable standards of review. Indeed, Birth Mother has failed to

       cite any authority whatsoever in support of her argument that the trial court

       erred in denying her motion for a continuance. This failing made it impossible

       for this court or opposing counsel to discern the basis of Birth Mother’s

       argument in this regard with any degree of certainty. Indeed, Adoptive

       Mother’s counsel was forced to guess at the basis of Mother’s argument and

       spent additional time and effort addressing two possible interpretations thereof.

       Additionally, although Birth Mother cites two statutes in support of her

       argument that the trial court erred in concluding that her consent to the

       adoption was both irrevocably implied and not required, she clearly conflated

       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 15 of 18
       and misunderstood them. These are the only citations to legal authority

       appearing anywhere in Birth Mother’s Appellant’s Brief, and Birth Mother has

       provided no cogent analysis whatsoever.


[27]   Moreover, many of the assertions in the Argument section are not supported by

       citation to the record, and some are premised on misrepresentations and

       mischaracterizations of the record. For example, the Argument section

       contains the following passage:

               On December 7, 2015, after counsel for [Birth Mother] informed
               both the Court and opposing counsel that [Birth Mother] was
               entering drug rehabilitation beginning December 1, 2015, a court
               date was set in blatant disregard of this fact. . . . The adoption
               was filed and apparently the plan was to schedule the adoption
               hearing at a time when [Birth Mother] was in California and in
               rehab. This schedule made it impossible for [Birth Mother] to
               attend the hearing. On December 17, 2015, counsel for [Birth
               Mother] filed a continuance and attaching [sic] a letter from
               Nationwide Recovery verifying [Birth Mother’s] attendance at a
               drug rehabilitation facility. Apparently, the Trial Judge either
               did not read this document or did not care because the adoption
               hearing took place anyway instead of simply waiting a few more
               weeks for [Birth Mother] to return to Indiana.


       Appellant’s Brief at 9-10 (record citations omitted).


[28]   The record establishes that on December 7, 2015, the trial court entered an

       order scheduling this matter for hearing on January 8, 2016. Contrary to Birth

       Mother’s assertion on appeal, it was not until December 17, 2015, ten days after

       the January 8, 2016 hearing was scheduled, that Birth Mother filed her motion


       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 16 of 18
       for continuance informing the trial court that she was in drug treatment. Also

       contrary to Birth Mother’s suggestion that “the plan” was to hold the adoption

       hearing in her absence, the record reflects that upon receipt of the motion for

       continuance, the trial court converted the January 8, 2015 hearing into a status

       hearing and gave Birth Mother the opportunity to provide proof that she was in

       treatment. At the January 8, 2015 hearing, Birth Mother’s counsel requested

       that adoption hearing be set “sooner than later” and expressly agreed to the

       January 13, 2016 hearing date. Transcript at 12. Furthermore, Birth Mother’s

       disparaging claim that the trial court “either did not read [the Nationwide

       Recovery Letter] or did not care” is specious. Appellant’s Appendix at 9. The

       trial court was well aware of the letter, as its contents and dubious authenticity

       were discussed at length at the hearing. It was within the trial court’s discretion

       to find the Nationwide Recovery Letter unworthy of credit.


[29]   Birth Mother also claims that she “tried to call [Child] and send cards, but

       [Father] would not allow this contact.” Id. at 10. This is a gross overstatement

       of the evidence in the record, which establishes that after having no contact

       with Child since March 2015, Mother attempted to call Child one time in

       November 2015 and sent him one card in December 2015. Although Father

       denied Mother’s request to speak to Child on the phone, he did so because there

       was a court order in place that he believed prohibited such contact. There is no

       support in the record for Mother’s claim that Father and Adoptive Mother

       intercepted the card.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 17 of 18
[30]   It is incumbent on appellate counsel to accurately represent the record and to

       provide cogent argument supported with adequate citation to authority. “A

       brief should not only present the issues to be decided on appeal, but it should be

       of material assistance to the court in deciding those issues.” Young v. Butts, 685

       N.E.2d 147, 151 (Ind. Ct. App. 1997). Birth Mother’s counsel has tendered a

       brief that falls well below these minimum standards of competent appellate

       advocacy. As a result, opposing counsel has been forced to devote inordinate

       time and effort in an attempt to understand and respond to Birth Mother’s

       arguments, as has this court. We therefore exercise our discretion to award

       Adoptive Mother appellate attorney fees and remand for a determination of

       reasonable appellate attorney fees. Cf. id. (awarding appellate attorney fees

       where appellant’s counsel misrepresented the record and tendered a deficient

       brief).


[31]   Judgment affirmed and remanded with instructions.


[32]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1602-AD-317 | August 23, 2016   Page 18 of 18
