MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Jul 27 2017, 9:51 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Elizabeth Eichholtz Walker                               Ryan P. Dillon
Casandra Ringlespaugh                                    Maritza K. Webb
Cohen & Malad, LLP                                       Dillon Legal Group, P.C.
Indianapolis, Indiana                                    Franklin, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of Adoption of                          July 27, 2017
A.R.;                                                    Court of Appeals Case No.
                                                         55A01-1702-AD-267
L.R. and P.R.,
                                                         Appeal from the Morgan Circuit
Appellants-Petitioners,                                  Court
        v.                                               The Honorable Matthew G.
                                                         Hanson, Judge
D.K.B.,                                                  Trial Court Cause Nos.
                                                         55C01-1610-AD-109
Appellee-Respondent.                                     55C01-0702-JP-64




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017         Page 1 of 10
                                Case Summary and Issue
[1]   D.B. (“Father”) and P.R. (“Mother”) are the parents of a single child, A.R. For

      a period exceeding one year, during a majority of which Father was voluntarily

      admitted to inpatient treatment for drug addiction, Father failed to pay child

      support. P.R.’s spouse, L.R. (“Stepmother”), filed a verified petition seeking to

      adopt A.R. The petition alleged Father’s consent to the adoption is not

      required because he failed to pay child support for a period of at least one year.

      Following a hearing, the trial court determined Father’s consent is required

      because he was not able to pay child support while in treatment. Mother and

      Stepmother now appeal, raising two issues for our review, which we

      consolidate and restate as whether the trial court erred in concluding Father’s

      consent to the adoption of A.R. is required. Concluding Father’s consent to the

      adoption is not required, we reverse and remand for further proceedings.



                            Facts and Procedural History
[2]   A.R. was born in 2006. For most of A.R.’s life, Father has struggled with drug

      addiction and has failed to remain sober or consistently pay his child support.

      Eventually, Father stopped exercising unsupervised parenting time because his

      substance abuse began to interfere with his ability to safely care for A.R.

      Father’s drug addiction eventually led the trial court to suspend his parenting

      time until he sought help. Meanwhile, Mother raised and cared for A.R. on her

      own. When A.R. was approximately five years old, Mother began a



      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017   Page 2 of 10
      relationship with Stepmother. Mother and Stepmother married in 2016 and

      Stepmother provides A.R. with stability, love, and financial support.


[3]   Since 2013, Father has owed $52.00 per week in child support payments. In

      2015, Father earned approximately $300.00 to $600.00 per week working for

      Johnson’s Floor Covering, and worked there until about October of 2015. After

      July of 2015, Father stopped making child support payments. On November

      16, 2015, Father voluntarily admitted himself into treatment at the Indiana

      Dream Team (“IDT”).


[4]   IDT is a residential drug and alcohol rehabilitation center located in Spencer,

      Indiana. IDT has strict policies on who is admitted into its program.

      Treatment at IDT can last up to several years. IDT’s program is free to

      individuals, but participants are required to work on and off the grounds to earn

      money and supplies for IDT to pay for their room, board, necessities, and

      therapy. In late 2015, IDT began doing more work off the premises to earn

      funds to assist participants with child support obligations and reentry into

      society. Although work is sometimes sporadic, IDT participants are permitted

      to receive up to twenty percent of what they earn for IDT. This money is

      placed into a joint bank account under IDT control with expenditures approved

      by IDT.


[5]   Father began working “forty [or] fifty hour [weeks]” immediately upon his

      admission to IDT, although he did not immediately begin receiving a paycheck.

      Tr. at 77. In addition, shortly after entering IDT, Father petitioned the trial


      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017   Page 3 of 10
      court to suspend his child support while in the program and reinstate his

      supervised parenting time. The trial court denied Father’s request to suspend

      his child support payments. In June of 2016, IDT opened a joint bank account

      for Father and deposited $100.00. Father made his first child support payment

      of 2016 on August 10.


[6]   On October 19, 2016, Stepmother filed her verified petition to adopt A.R.

      Stepmother’s petition alleged Father’s consent to the adoption was not required

      because Father had abandoned A.R. and had failed to provide child support

      while able to do so for a period exceeding one year. On January 10, 2017, the

      trial court held an evidentiary hearing on the issue of whether Father’s consent

      to A.R.’s adoption was required. Shortly thereafter, the trial court issued its

      order finding Father’s consent to the adoption is required. The trial court

      found, in relevant part:


              5.       Initially, there has been a valid support order in place for
                       some time in this case and there is no dispute that a legal
                       obligation by decree does exist.

              6.       Second, there is no doubt that for a period of one (1) year
                       [Father] did not pay support.

              ***

              8.       The question at hand, however, is whether or not he was
                       “able to do so.”

              ***

              10.      [A]lthough [Father] held some jobs and paid some support
                       over the years, he admitted when questioned that a lot of
                       his money went to pay for drugs.

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        11.      That [Father’s] lifestyle also has caused him to have some
                 criminal trouble.

        12.      That on November 16, 2015, [Father] self-admitted
                 himself into [IDT] which is a residential drug and alcohol
                 treatment program located in Spencer, Indiana.

        ***

        22.      That near the end of 2015 and then more into the year
                 IDT began to assist the men in earning some funds to go to
                 child support, bills owed or even as a nest egg for the men
                 when they were released into the community.

        ***

        28.      That starting around June of 2016, [Father] was provided
                 a small account, has been receiving a small percentage of
                 money from the work he has done, and has been paying
                 some support.

        29.      Still, as stated above, these payments were beyond the year
                 where no payments were made.

        30.      However, the timeline that is involved herein that
                 [Mother] is relying upon encompasses a large portion of
                 the past year and a half that [Father] has been at IDT.

        ***

        32.      On the one hand, [Father] did not pay support for a period
                 of one year when he was technically “able to do so.”

        33.      However, on the other hand, [Father] has taken it upon
                 himself to not only lock himself down at a facility to
                 rehabilitate himself, but he has clearly been successful in
                 striving to change his life for he [sic] and his child.

        ***



Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017   Page 5 of 10
              35.      That while the law is clear on the one (1) year of non-
                       payment, it is also clear that there must be a determination
                       that [Father] had the ability to pay.

              ***

              41.      Yes, he technically is able to “pay”, however, it is only a
                       slight amount based upon guidelines and policies that were
                       only established in mid-late 2016 at IDT.

              42.      That [Father’s] steps to better himself, clean himself up,
                       and make it possible to not only be a better person for
                       himself, but also his child, is not something that can be
                       overlooked here.

              43.      As such, the court is going to find that [Father] was not
                       able to work in the classic sense as he was rehabilitating
                       himself after years of substance abuse.

              ***

              45.      Therefore, [Mother’s] request to waive [Father’s] ability to
                       object to the adoption is denied.


      Appendix to Appellant’s Brief, Volume II at 13-16. Mother and Stepmother

      now appeal.



                                 Discussion and Decision
[7]   Mother and Stepmother contend that the trial court erred in concluding that

      Father’s consent to the adoption of A.R. is required pursuant to Indiana Code

      section 31-19-9-8.


[8]   “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


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       judge reached an opposite conclusion.” Rust v. Lawson, 714 N.E.2d 769, 771

       (Ind. Ct. App. 1999), trans. denied. 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.


[9]    Moreover, where, as here, the trial court has made findings of fact and

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

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

       findings support the judgment.” In re Adoption of T.W., 859 N.E.2d 1215, 1217

       (Ind. Ct. App. 2006). 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.


[10]   Indiana law provides a parent’s consent to adoption is not required “if for a

       period of at least one (1) year the parent . . . knowingly fails to provide for the

       care and support of the child when able to do so as required by law or judicial

       decree.” Ind. Code § 31-19-9-8(a)(2)(B). The burden to prove this statutory

       criteria is satisfied by clear and convincing evidence and rests squarely upon the

       petitioner seeking to adopt. In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind.

       Ct. App. 2004). The “petitioner for adoption must show that the non-custodial

       parent had the ability to make the payments which he failed to make.” In re

       Adoption of Augustyniak, 508 N.E.2d 1307, 1308 (Ind. Ct. App. 1987), trans.

       denied. To determine that ability, it is necessary to consider the totality of the



       Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017   Page 7 of 10
       circumstances. In re Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010),

       trans. denied.


[11]   As noted in the trial court’s findings, there is no question Father did not make

       child support payments for a period exceeding one year; the question is whether

       Father had the ability to do so. See Ind. Code § 31-19-9-8(a)(2)(B). Mother and

       Stepmother argue the trial court’s judgment is clearly erroneous because it is not

       supported by the findings of fact. We agree.


[12]   Here, the one year period in which Father failed to pay child support is July 31,

       2015 to August 10, 2016. The record reflects that, in 2015, Father was

       employed by Johnson’s Floor Covering where he worked to install carpets and

       earned around $300.00 to $600.00 per week. Father stopped working for

       Johnson’s Floor Covering approximately “six weeks” before entering rehab on

       November 16, 2015. Tr. at 16. Therefore, regardless of his time spent at IDT,

       Father failed to pay child support for at least two of those twelve months while

       still employed and able to do so.


[13]   Moreover, in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), our supreme

       court held “incarceration does not relieve parents of their child support

       obligations.” Id. at 1177. And unlike the father in Lambert, Father was not

       incarcerated or serving a sentence, but voluntarily entered rehab to rid himself

       of his drug addiction. Father’s lack of payment while able to do so and the

       necessity of rehabilitation are the result of his own poor choices and judgment.

       While we commend Father for his efforts to turn his life around, he was still


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       obligated to pay child support and was able to do so as evidenced by the fact he

       worked “forty [or] fifty hour [weeks]” while at IDT.1


[14]   The trial court’s findings of fact reflect these evidentiary observations. In its

       order denying Mother’s and Stepmother’s request to waive Father’s consent to

       the adoption of A.R., the trial court twice states Father was “technically . . .

       able to [pay child support.]” App. to Appellants’ Br., Vol. II at 15, 16. These

       findings of fact are supported by the evidence and Indiana law is clear that

       consent to an adoption is not required from a parent who “knowingly fails to

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

       law or judicial decree[]” for a period of at least one year. Ind. Code § 31-19-9-

       8(a)(2)(B). Therefore, the trial court’s judgment that Father’s consent to A.R.’s

       adoption is required is not supported by its findings of fact and is clearly

       erroneous.


[15]   Nevertheless, a petition for adoption is not automatically granted upon a

       showing that a natural parent failed to provide support when able to do so. In

       re Adoption of N.W., 933 N.E.2d 909, 914 (Ind. Ct. App. 2010), adopted by In re

       Adoption of N.W., 941 N.E.2d 1042 (Ind. 2011). Once the statutory

       requirements are met, the court may then look to the arrangement which will be

       in the best interest of the child. Id; see also Ind. Code § 31-19-11-1(a). The

       evidentiary hearing held in this case only addressed the issue of whether



       1
        We note the trial court denied Father’s motion seeking a suspension or modification of child support
       payments while at IDT.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1702-AD-267| July 27, 2017              Page 9 of 10
       Father’s consent was required and neither party presented evidence regarding

       A.R.’s best interest. Therefore, we remand to the trial court to determine

       whether adoption will be in A.R.’s best interest. See Ind. Code § 31-19-11-1(a).



                                               Conclusion
[16]   We conclude the trial court’s judgment that Father’s consent to A.R.’s adoption

       is required is clearly erroneous. Accordingly, we reverse the trial court’s

       determination that Father’s consent is required and remand for further

       proceedings to determine whether adoption is in A.R.’s best interest.


[17]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




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