MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Feb 03 2016, 8:10 am
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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Jaimie L. Cairns                                         Polli A. Pollem
Cairns & Rabiola, LLP                                    Jamie Devine
Indianapolis, Indiana                                    Crystal Francis
                                                         Indiana Legal Services, Inc.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of S.Z.,                              February 3, 2016
                                                         Court of Appeals Cause No.
R.W.                                                     49A05-1504-AD-163
Appellant-Petitioner,                                    Appeal from the Marion Superior
                                                         Court
        v.                                               The Honorable Steven R.
                                                         Eichholtz, Judge
C.G.,                                                    Trial Court Cause No.
Appellee-Respondent.                                     49D08-1311-AD-40201




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016            Page 1 of 9
                                             Case Summary
[1]   R.W. (“Uncle”) appeals the trial court’s denial of his petition to adopt S.Z. We

      reverse and remand.


                                                     Issue
[2]   Uncle raises one issue, which we restate as whether the trial court properly

      found that the consent of S.Z.’s mother to the adoption was required.


                                                     Facts
[3]   S.Z. was born in October 2009 to C.G. (“Mother”) and her husband, D.O.

      (“Father”). Prior to S.Z.’s birth, Mother and Father moved in with Uncle and

      lived there until June 2010. At that time, Mother and Father moved to

      Lafayette and left S.Z. in Uncle’s care. Ultimately, Mother and Father

      consented to Uncle having guardianship of S.Z., which was formally

      established in November 2010. S.Z. has been in Uncle’s care since that time.

      S.Z. is deaf in her right ear, and Uncle has facilitated various medical

      treatments and therapies to assist her.


[4]   Mother and Father later separated and divorced. Mother applied for service-

      related disability with the Department of Veteran Affairs, and in mid-2012, she

      was awarded sixty percent service-connected disability compensation of $1,200

      per month. Mother remarried in August 2013, and Mother and her husband

      live in a rented three-bedroom home in Lafayette.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 2 of 9
[5]   On November 1, 2013, Uncle filed a petition to adopt S.Z. Mother filed an

      objection and a motion to terminate the guardianship. On February 23, 2015,

      the trial court held an evidentiary hearing regarding whether Mother’s consent

      to the adoption was required. Uncle argued that Mother abandoned S.Z., that

      Mother failed to communicate significantly with S.Z., and that Mother failed to

      support S.Z. when able to do so. The trial court denied Uncle’s petition to

      adopt S.Z. after finding that Mother’s consent was required and had not been

      obtained. Specifically, the trial court found that Mother had not abandoned

      S.Z., that mother “has had regular though infrequent contacts, phone calls and

      visits with S.Z.,” and that “the evidence offered does not show Mother had the

      ability to pay support.” Appellant’s App. p. 14. Uncle now appeals.


                                                  Analysis
[6]   Uncle argues that the trial court erred when it concluded that Mother’s consent

      to the adoption was necessary. 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 court reached an opposite conclusion. In re

      Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). 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. at 218-

      19. The decision of the trial court is presumed to be correct, and it is the

      appellant’s burden to overcome that presumption. Id. at 219.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 3 of 9
[7]   When, as in this case, the trial court has made findings of fact and conclusions

      thereon at the request of the parties, 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.


[8]   Uncle only appeals the trial court’s finding that he failed to prove Mother did

      not provide support for S.Z. when able to do so. Generally, a trial court may

      only grant a petition to adopt a child born in wedlock who is less than eighteen

      years of age if “each living parent” consents to the adoption. Ind. Code § 31-

      19-9-1. Indiana Code Section 31-19-9-8(a)(2)(B) provides that consent to

      adoption is not required from: “A parent of a child in the custody of another

      person 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.”


[9]   Indiana law imposes a duty upon a parent to support his or her children.

      M.A.S., 815 N.E.2d at 220. This duty exists apart from any court order or

      statute. Id. Consequently, even though Mother was not court-ordered to pay

      child support, she still had a duty to support S.Z. A petitioner for adoption

      must also show that the noncustodial parent had the ability to make the

      payments that he or she failed to make. Id. That ability cannot be adequately

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 4 of 9
       shown by proof of income standing alone. Id. To determine that ability, it is

       necessary to consider the totality of the circumstances. Id.


[10]   Uncle first argues that several of the trial court’s findings of fact were erroneous

       and that the trial court’s ultimate conclusion that Mother’s consent was

       required is clearly erroneous. The trial court found that Mother provided “little

       if any financial support” and that Mother “did not pay regular child support.”

       Appellant’s App. pp. 12, 14. According to Uncle, the evidence shows that

       Mother made no financial contributions whatsoever to support S.Z. We note

       that the trial court also made findings that “Mother has not provided financial

       support from the time she left Uncle’s home in June of 2010.” Id. at 12. Some

       of the trial court’s findings are confusing as to whether Mother provided any

       financial support, but it is clear from the evidence and the totality of the trial

       court’s findings that Mother, in fact, provided no financial support after leaving

       S.Z. with Uncle. She apparently did provide S.Z. with token amounts of

       clothing and toys on two or three occasions, but never provided any actual

       financial support. 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 the fact that

       he provided six items of clothing for the child and some food during the child's

       visits with the 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). To the extent that the trial

       court’s findings indicate that S.Z. provided any financial support, they are

       clearly erroneous.


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[11]   Next, Uncle argues that the trial court’s findings regarding Mother’s income

       were erroneous. The trial court found that “Mother did not have income from

       June 2010, when she left S.Z. in Uncle’s care to early 2012, when she started

       receiving VA disability benefits.” Id. at 14. According to Uncle, the evidence

       indicates that Mother was receiving unemployment benefits until sometime in

       2011. Mother concedes that she did receive unemployment benefits during this

       time period. Whether from her military service or some other job, it is clear

       that she received unemployment benefits. Thus, the trial court’s finding is

       clearly erroneous.


[12]   Finally, Uncle argues that the trial court’s findings regarding Mother’s

       marijuana usage were erroneous. The trial court found that “[t]he frequency of

       [Mother’s] marijuana usage was not clear, though Uncle detailed a couple of

       times when he was concerned by it.” Appellant’s App. p. 12. At the February

       2015 evidentiary hearing, Mother testified that she had stopped smoking

       marijuana “over a year” before the hearing and that, prior to that time, she

       smoked it once or twice a day. Tr. pp 28-29. Mother testified that she

       purchased the marijuana from a friend. Uncle is correct that Mother’s

       testimony regarding the frequency of her marijuana usage was clear, and the

       trial court’s finding is clearly erroneous.


[13]   Uncle also challenges the trial court’s conclusion that he failed to show Mother

       had the ability to pay support. The trial court concluded: “The fact that Mother

       received disability income does not establish a willful failure to pay support[.]

       [T]he court finds that the evidence offered does not show Mother had the ability

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 6 of 9
       to pay support.” Appellant’s App. p. 14. Uncle correctly points out that the

       trial court used the wrong standard. The statute does not require a “willful

       failure” to pay support. Id. Rather, the statute requires a showing that Mother

       “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) (emphasis added). Earlier in its

       order, the trial court properly quoted the “knowingly” standard rather than the

       erroneous “willful” standard. Appellant’s App. p. 13, 14. However, in making

       its conclusions, the trial court seems to have applied the stricter “willful”

       standard, which required Uncle to meet an enhanced burden.


[14]   As for whether Mother had the ability to pay support, Mother argues that Uncle

       failed to meet his burden because he did not present evidence of Mother’s

       income compared to her expenses and failed to demonstrate that she was able

       to pay. Uncle counters that a “dollar-for-dollar accounting of Mother’s

       expenses” is not required. Appellant’s Reply Br. p. 6.


[15]   We addressed a similar situation in In re Adoption of J.L.J., 4 N.E.3d 1189 (Ind.

       Ct. App. 2014), trans. denied. There, the biological father of twins was found to

       have failed to provide support for the twins for at least a year despite his ability

       to do so. The father had never been employed and his only source of income

       had been Social Security disability payments. Evidence was presented that the

       father was able to afford his own residence in Benton Harbor, Michigan, he had

       funds to purchase cigarettes, and he was able to travel back and forth between

       Benton Harbor and South Bend. We noted that, “[w]hile it is true that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 7 of 9
       Guardian did not offer documentation of Father's financial resources, we must

       consider the totality of the circumstances in determining the ability of a parent

       to support his child.” J.L.J., 4 N.E.3d at 1195. Although the guardian may not

       have documented the father's actual income, we concluded there was sufficient

       evidence that the father, “although apparently capable of financing his own

       independent living,” failed to provide for the twins to the best of his ability. Id.

       at 1197.


[16]   We reached a similar result in In re Adoption of M.S., 10 N.E.3d 1272 (Ind. Ct.

       App. 2014). There, the mother contended that she was unable to pay support

       due to the loss of her pet grooming and boarding business and her medical

       issues. We noted that, despite the mother’s illness, she was able to work, she

       lived in a house purchased by her mother, she redecorated the house, and she

       was able to support multiple pets. We concluded that the trial court properly

       found the mother had the ability to pay support and that her consent to the

       adoption was unnecessary.


[17]   Here, Uncle presented evidence that Mother was receiving $1,200 per month in

       disability benefits, that Mother’s husband was employed at a liquor store, that

       their rent was $450 per month, and that they also had expenses for electricity,

       heat, cable, cell phones, and vehicle insurance. Although Mother’s disability

       rating was sixty percent, she does not work. Uncle points out that Mother had

       funds to purchase marijuana but did not pay any support for her daughter.

       Given the trial court’s erroneous findings and application of the incorrect

       standard, we conclude that its conclusion regarding Mother’s ability to pay

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 8 of 9
       support is clearly erroneous. Uncle presented clear and convincing evidence

       that Mother had the ability to pay at least some minimal support for S.Z.


[18]   It was undisputed that Mother failed to provide for S.Z.’s care or support for

       over one year. We conclude that the trial court’s conclusion regarding

       Mother’s ability to pay is clearly erroneous. Consequently, Mother’s consent to

       Uncle’s adoption of S.Z. was unnecessary. Because the trial court found that

       Mother’s consent was required, it did not reach a determination as to whether

       the adoption is in S.Z.’s best interest. See Ind. Code § 31-19-11-1 (noting that

       the probate court “shall grant the petition for adoption and enter an adoption

       decree” if the court hears evidence and finds, in part, that “the adoption

       requested is in the best interest of the child” and “proper consent, if consent is

       necessary, to the adoption has been given”). We remand for proceedings to

       determine whether the adoption is in S.Z.’s best interest.


                                                 Conclusion
[19]   The trial court’s finding that Mother’s consent to Uncle’s petition to adopt S.Z.

       was required is clearly erroneous. We reverse and remand for further

       proceedings consistent with this opinion.


[20]   Reversed and remanded.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-AD-163 | February 3, 2016   Page 9 of 9
