      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  FILED
      regarded as precedent or cited before any                         Jul 13 2017, 5:57 am
      court except for the purpose of establishing
                                                                             CLERK
      the defense of res judicata, collateral                            Indiana Supreme Court
                                                                            Court of Appeals
      estoppel, or the law of the case.                                       and Tax Court




      ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Glen E. Koch II                                          Jamie E. Harrell
      Boren, Oliver & Coffey, LLP                              Helfrich & Harrell Law
      Martinsville, Indiana                                    Avon, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      T.H. and R.H.,                                           July 13, 2017
      Appellants-Petitioners,                                  Court of Appeals Case No.
                                                               32A01-1611-AD-2712
              v.                                               Appeal from the Hendricks
                                                               Superior Court
      C.J.,                                                    The Honorable Robert W. Freese,
      Appellee-Intervenor.                                     Judge
                                                               Trial Court Cause No.
                                                               32D01-1605-AD-29



      Najam, Judge.


                                       Statement of the Case
[1]   T.H. and R.H. (“Guardians”) appeal from the trial court’s denial of their

      petition to adopt minor child J.M.L. (“Child”) following an evidentiary


      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017       Page 1 of 9
      hearing. Guardians raise a single issue for our review, which we restate as

      whether the trial court’s judgment that the consent of Child’s biological father,

      C.J. (“Father”), was necessary to the adoption petition is contrary to law. We

      affirm.


                                 Facts and Procedural History
[2]   Child was born in December of 2010. Shortly after his birth, his mother died.

      Father and Mother were dating and living together at the time but not married.

      Father petitioned to be named Child’s guardian, which the trial court granted.

      But Father did not establish his paternity at that time.


[3]   Father, who is trained as an automobile mechanic, was unemployed at the time

      of Child’s birth. However, due to the death of Child’s mother, Father began

      receiving Social Security benefits on Child’s behalf. And, around April of 2011,

      Father obtained part-time employment. He and Child also began to live with

      Father’s biological mother and Father’s step-father, the Guardians.


[4]   In January of 2012, Father moved to Nevada and asked his mother and step-

      father to care for Child. In February of 2012, Guardians petitioned to be

      appointed as the Child’s successor guardians, in that Child continued to live

      with them while Father was in Nevada, they began to receive the Social

      Security benefits on Child’s behalf, and they otherwise provided necessary care

      for Child. The court granted Guardians’ request.


[5]   In March, Father returned to Indiana. Over approximately the next year and

      one-half, Father’s employment and living situation were unstable. In
      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 2 of 9
      September or October of 2013, Father moved back into Guardians’ home with

      Child. He paid $50 per week to Guardians as rent and obtained regular

      employment at a nearby grocery store. Father also contributed groceries to the

      household, provided car maintenance, and would occasionally purchase gifts

      for Child. Later, Father obtained employment at Goodyear, and from that

      position he contributed more than $1,000 from his income to repair the

      transmission on one of Guardians’ vehicles.


[6]   In 2014, Father married F.J. Father and F.J. moved into their own residence

      and they had a child together. Thereafter, Father obtained employment at Big

      O’ Tires, and his 2015 joint tax return showed a household income of $59,358.

      Father increased his overnights with Child and, in May of 2016, filed his

      petition to establish paternity and custody. Later that month, Guardians filed a

      petition to adopt and asserted that Father’s consent to the adoption was not

      necessary because Father “has abandoned his son, does not support his son, . . .

      has not had any contact with him for several months, and has not had a

      meaningful relationship with him since birth.” Appellants’ App. Vol. 2 at 9.


[7]   Father intervened in Guardians’ adoption request. After an evidentiary

      hearing, the court entered the following findings of fact and conclusions

      thereon:


              1.     Intervenor . . . is the father of [Child] . . . pursuant to
              Agreements and Orders of the Court entered in the related
              [paternity] action . . . .



      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 3 of 9
        2.     Father’s consent to a petition to adopt is required pursuant
        to Indiana Code § 31-19-9-1(a)(1).


        3.     Father’s consent may not be waived pursuant to I.C. § 31-
        19-[9]-8(a)(2)(A), as Father has communicated significantly with
        [C]hild throughout . . . his lifetime.


        4.      For [Guardians] to proceed . . . without Father’s
        consent . . . [they] must show by “clear and convincing evidence”
        that Father’s consent was not required because he . . . knowingly
        failed to provide for the care and support of the child when able
        to do so as required by law or judicial decree.


        5.     A parent’s ability to provide for the care and support of
        [his] child depends on more than proof of income, standing
        alone. It is determined by an examination of the totality of the
        circumstances.


        6.   Father was [C]hild’s guardian until February[] 2012, when
        [Guardians] were appointed as Successor Guardians.


        7.    Father’s housing and employment were unstable during
        2012-2013 and he did not have the ability to support [C]hild.


        8.     Father lived with [Guardians] between 2013 and 2014[]
        and regularly provided both care for [C]hild[] as well as some
        financial support in the form of rent paid to [Guardians],
        providing groceries, and other various contributions. During this
        time, Father was earning minimum wage working at a local
        grocery store and he testified that he did not have a bank
        account.


        9.    During 2015 and 2016, Father exercised regular parenting
        time with [C]hild and not only provided care . . . but paid

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 4 of 9
        transferred expenses, including the cost of food and
        transportation, and duplicated expenses, including the cost of
        providing shelter.


        10. [Guardians] offered little to no evidence as to the amount
        of income Father earned during 2015 and 2016, or his ability to
        pay regular support payments during that time.


        11. [Guardians] offered no evidence showing that [C]hild’s
        needs were unmet at any time relevant to these proceedings[.]


        12. Father has been employed during 2015 and 2016 at Big O’
        Tires and now earns $11.00 per hour. His average gross weekly
        income for 2016 is currently $710.46.


        13. Since their appointment as Successor Guardians,
        [Guardians] have received [C]hild’s Social Security survivor
        benefits in the amount of $766.00 per month . . . . These are
        benefits that would have been received by Father had [C]hild
        been in his care and custody after February 2012. Those benefits
        were diverted from Father to [Guardians] to assist with [C]hild’s
        financial support.


        14. [Guardians] offered no evidence of the amount that was
        necessary on a monthly or weekly basis for the support of [C]hild
        after February 2012, and the Court cannot determine whether
        [C]hild’s support was fully covered by the [S]ocial [S]ecurity
        benefits . . . .


        15. [Guardians] have not met their burden to show by clear
        and convincing evidence that Father knowingly failed to provide
        for the care and support of [C]hild when able to do so as required
        by law or judicial decree.



Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 5 of 9
              16. For the foregoing reasons, the Court finds that Father’s
              consent to the Petition for Adoption is required . . . .


              17.      [Guardians] Petition for Adoption is dismissed.


      Id. at 15-17 (citations and footnotes omitted). This appeal ensued.


                                     Discussion and Decision
[8]   Guardians appeal the trial court’s dismissal of the petition for adoption. The

      trial court’s judgment against Guardians followed an evidentiary hearing at

      which, as the trial court stated, Guardians bore the burden of proof by clear and

      convincing evidence. M.W. v. A.W. (In re N.W.), 933 N.E.2d 909, 913 (Ind. Ct.

      App. 2010), adopted, 941 N.E.2d 1042 (Ind. 2011). Specifically, to show that

      Father’s consent to the adoption was not necessary, Guardians were required to

      clear two hurdles: they were required to show that Father “knowingly fail[ed]

      to provide for the care and support of the child when able to do so as required

      by law or judicial decree,” and they were also required to show that “the

      adoption requested is in the best interests of the child.” Ind. Code §§ 31-19-9-

      8(a)(2)(B); -11-1(a)(1) (2016). However, the parties agreed to bifurcate the

      issues before the trial court such that the court would first consider only

      whether Father knowingly failed to provide for Child’s care and support when

      he was able to provide that support before it considered Child’s best interests.

      And because the court concluded that Father did not knowingly fail to provide

      Child’s care and support when able, the court dismissed Guardians’ petition in

      its judgment.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 6 of 9
[9]    The trial court expressly concluded that Guardians “have not met their burden

       to show by clear and convincing evidence that Father knowingly failed to

       provide for the care and support of the child when able to do so as required by

       law or judicial decree.” Appellants’ App. Vol. 2 at 17. Having failed to meet

       their burden of proof in the trial court, Guardians appeal from a negative

       judgment. A negative judgment is one entered against a party who bore the

       burden of proof. Serenity Springs v. LaPorte Cty. Convention & Visitors Bureau, 986

       N.E.2d 314, 319 (Ind. Ct. App. 2013). On appeal, we will reverse a negative

       judgment only where the trial court’s decision is contrary to law. Kotsopoulos v.

       Peters Broad. Eng’g, Inc., 962 N.E.2d 97, 105 (Ind. Ct. App. 2011). A trial court’s

       judgment is contrary to law if the undisputed evidence and all reasonable

       inferences to be drawn from that evidence lead to but one conclusion, and the

       trial court reached a different conclusion. Id. Additionally, a judgment is

       contrary to law if the trial court applied the wrong legal standard. Town of

       Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198

       (Ind. 2016).


[10]   On appeal, Guardians assert that the trial court’s judgment is contrary to law

       because Father “never paid child support” between January 2012 and

       September 2013 or between February 2014 and May 2016. Appellants’ Br. at 7.

       In particular, Guardians assert that the court erred in three of its findings,

       namely, (1) when it found that Father was unable to financially support Child

       in 2012 and 2013; (2) when it found that Father did provide some support in




       Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 7 of 9
       2015 and 2016; and (3) when it found that “insufficient evidence had been

       entered of Father’s 2015 income.” Id. at 8. We cannot agree.


[11]   There is more in the record than the Guardians acknowledge on appeal, and

       each of the trial court’s three challenged findings are supported by the totality of

       the evidence before the court. First, Father testified that he was transient and

       not stably employed between January of 2012 and September or October of

       2013. Those facts support the trial court’s finding that Father was unable to

       support Child financially during that time.


[12]   Second, Father testified that he regularly exercised—when Guardians allowed

       it—parenting time with Child in 2015 and 2016, and that he provided Child

       with clothing, holiday gifts, and Child’s own room at Father’s house. Father

       also noted the positive relationship Child had developed with Father’s wife,

       F.J., and their child when he introduced photographs of the four to the court.

       Contrary to Guardians’ supposition on appeal, support need not be exclusively

       financial. Je. B. v. Ja. B. (In re M.B.), 944 N.E.2d 73, 77 (Ind. Ct. App. 2011)

       (“A parent’s nonmonetary contribution to a child’s care may be counted as

       support.”). The trial court’s finding that Father supported Child in 2015 and

       2016 is demonstrated in the record.


[13]   Third, the trial court’s assessment that Guardians had produced “little to no

       evidence” of Father’s ability to pay regular support payments in 2015 and 2016

       is correct. Appellants’ App. Vol. 2 at 16-17. The evidence demonstrates

       Father’s joint gross income in 2015, but there is no evidence regarding Father’s


       Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 8 of 9
       expenses, what a reasonable amount of support for Child would have been, or,

       significantly, that Child’s Social Security benefits did not provide a reasonable

       amount of support already. Moreover, Father’s testimony that he thought he

       earned about $70,000 in 2015 was in conflict with his 2015 joint tax return, and

       it was the trial court’s prerogative to rely on the tax return in its judgment.


[14]   Guardians’ arguments on appeal select evidence from the record and ask this

       court to rely on that evidence to the exclusion of the evidence most favorable to

       the trial court’s judgment, which we will not do. Likewise, the case law

       primarily relied on by Guardians discusses evidence relied on by our trial courts

       in finding parental consent not to be necessary. See, e.g., C.L.S. v. A.L.S. (In re

       M.S.), 10 N.E.3d 1272, 1280-82 (Ind. Ct. App. 2014). Here, on the other hand,

       the trial court found that Father’s consent to the adoption was necessary.

       Accordingly, the cases relied on by Guardians are inapposite to this appeal.


[15]   In sum, we cannot say that the evidence before the trial court leads unerringly

       to one conclusion and that the trial court reached a different conclusion. The

       trial court’s judgment is not contrary to law, and, as such, we affirm.


[16]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1611-AD-2712 | July 13, 2017   Page 9 of 9
