MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Feb 28 2019, 9:21 am

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


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
Glen E. Koch II                                          Davina L. Curry
Boren, Oliver & Coffey, LLP                              The Curry Law Firm, LLC
Martinsville, Indiana                                    Greenwood, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of the Adoptions                        February 28, 2019
of E.M.M., III, E.E.M., E.M.M.,                          Court of Appeals Case No.
E.W.M., and E.R.M. (Minor                                18A-AD-1942
Children)                                                Appeal from the Morgan Superior
                                                         Court
                                                         The Honorable Peter R. Foley,
E.A.M. and E.M.M., Jr.,                                  Judge
Appellants-Petitioners,                                  Trial Court Cause Nos.
                                                         55D01-1703-AD-40, -48, -49, -50,
        v.                                               -51

E.M., Sr., and M.M.,
Appellees-Respondents



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019             Page 1 of 14
                                                  Case Summary
[1]   E.A.M. (“Mother”) and E.M.M., Jr. (“Father”) (collectively “Parents”), appeal

      the trial court’s order granting the adoption petitions filed by E.M., Sr.

      (“Grandfather”), and M.M. (collectively “Guardians”) to adopt E.M.M., III,

      E.E.M., E.M.M., E.W.M., and E.R.M. (collectively “the Children”).1 Parents

      sole argument on appeal is that the trial court erred in finding that their consent

      to the adoption was unnecessary on grounds different than those pled by

      Guardians. Finding no error, we affirm.


                                     Facts and Procedural History
[2]   The Children were born to Parents between 2004 and 2011. In May 2011,

      Guardians, who have two children together, filed a petition in Marion Superior

      Court seeking guardianship of the Children, which the court granted. The

      guardianship was established because Parents were struggling, were not

      employed, and did not have a stable residence. Appealed Order at 3. Shortly

      after the guardianship was established, Father moved to Pennsylvania to look

      for work. A couple months later, Mother went to Pennsylvania to be with

      Father and pursue a job opportunity.


[3]   In June 2012, Guardians filed a petition for support and medical insurance

      against the Parents, and the court issued an order requiring Mother to pay

      support. In August 2012, Mother filed a motion to terminate guardianship in



      1
          Grandfather is the Children’s paternal grandfather.

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 2 of 14
      the child support case, which was dismissed because it had been filed in the

      wrong court. Mother understood why her motion was dismissed. In October

      2016, Mother filed a motion to terminate guardianship in the guardianship

      case.


[4]   On April 24, 2017, Guardians filed their petitions in Morgan Superior Court to

      adopt the Children. Guardians alleged that Parents’ consent to adoption was

      not necessary based on Parents’ abandonment of the Children and/or Parents’

      unfitness pursuant to Indiana Code Section 31-19-9-8(a)(1) and -8(a)(11).

      Mother’s motion to terminate guardianship was transferred to and consolidated

      with the adoption action.


[5]   The trial court issued findings of fact and conclusions thereon granting

      Guardians’ adoption petitions. The trial court found that Parents’ consent to

      the adoptions was not required because they failed without justifiable cause to

      communicate significantly with the Children when able to do so for a period

      exceeding one year pursuant to Section 31-19-9-8(a)(2). Id. at 8-10. The trial

      court acknowledged that the adoption petitions had not mentioned Section 31-

      19-9-8(a)(2), but it found that “the evidence presented at trial supports a finding

      under that section of the statute and the evidence was presented at trial without

      objection.” Id. at 8. In addition, the findings of fact and conclusions provide in

      relevant part as follows:


              14. In October 2004 Father was convicted of crimes []
              perpetrated against his young son. Father was convicted in
              Pennsylvania of Endangering the Welfare of a Child and Simple

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 3 of 14
        Assault Against a Child. Father admitted he threw his young son
        on a couch and squeezed the child. Father acknowledged that he
        hurt his son. Father was placed on supervision by the court for a
        period of 23.5 months. Father completed his probation in
        September 2006.


        15. At some point in 2012[,] a CHINS case or cases were opened
        up in Marion County, Indiana concerning one or more of the
        children. From the evidence presented at trial it is not clear as to
        exactly when the CHINS cases were opened and what the
        specific allegations were. [M.M.] testified that the CHINS cases
        were filed due to allegations of inappropriate touching between
        the girls that was reported to a counselor and then to DCS.


        16. The CHINS cases appear to have been opened in
        approximately 2012 and concluded in 2013. … [I]t does not
        appear that there were any allegations of improper conduct by
        [Guardians].


        l7. The Parents participated in the CHINS proceedings and were
        provided public defenders. Father alleges that the judge in the
        CHINS case ordered that he not have any contact with the Minor
        Children. No party presented any evidence of a written court
        order prohibiting contact between Father and the Minor
        Children. It is unclear what was told to Father and the Court
        does not find that there was a court order prohibiting [him] from
        having contact with one or more of the Minor Children.


        18. Even if the Court were to conclude that a court had ordered
        that Father not have contact with the Minor Children, the order
        would have terminated with the conclusion of the CHINS case in
        2013. Yet, Father and Mother still did not see the Minor
        Children and had no appreciable contact with them thereafter.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 4 of 14
        19. The Parents allege that [Guardians] prevented them from
        contacting the Minor Children. The Parents allege that
        [Guardians] moved multiple times without notifying the Parents,
        have blocked the Parents on their Facebook accounts, and have
        returned gifts mailed for the Minor Children.


        ….


        21. [Grandfather] has maintained the same cell phone number
        since the guardianship was established.


        22. The Parents were blocked from [Guardians’] Facebook
        accounts due to vulgar and inappropriate comments or posts.


        23. The Parents sent a box with a “Happy Birthday” card for
        [E.M.M.] and other items to the Minor Children, otherwise, the
        Parents sent no cards or gifts after they left Indiana for
        Pennsylvania. After the adoption petition was filed the Parents
        did leave a box of gifts outside [Guardians’] residence for the
        Minor Children.


        ….


        28. It is clear that the Parents were aware of the Guardianship
        Proceedings, and as demonstrated by Exhibits # 3, 16, and 17,
        Mother possessed the means and knowledge of how to draft and
        file pleadings with the court on her own behalf concerning these
        matters.


        29. The Minor Children are doing well in school, have a strong
        bond with [Guardians and Guardians’] children, have strong ties
        to the community, and by all accounts are well adjusted and
        happy in the care and custody of [Guardians].


Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 5 of 14
        ….


        32. [Guardians] stepped in and raised the Minor Children with
        no support or assistance from the Parents. Even if the Court were
        to give weight to the Parents[’] claims that they were “court
        ordered” to stay away from the children, they failed to take any
        action for the better part of three (3) years to initiate contact with
        the children or seek court intervention. Once the CHINS matters
        were concluded in 2013 or 2014, the Parents did nothing until
        Mother’s motion to terminate the guardianship was filed in
        October 2016. The Court can only conclude that the Parents[’]
        absence from the lives of the Minor Children was voluntary and
        that the [Guardians] did not prevent the Parents from having or
        pursuing meaningful contact with the Minor Children.


        33. During the approximately seven (7) years that the Parents
        were voluntarily absent from their children’s lives, the Minor
        Children formed strong bonds with [Guardians], [Guardians’]
        children, and their extended families and friends. …. The Minor
        Children appear to be well-adjusted children.


        34. Uprooting the Minor Children from the only home and
        “parents” they have known for the last seven (7) years would be
        traumatic and not in the best interests of the children.


        ….


        40. [Guardians] have met their burden of demonstrating by clear
        and convincing evidence that the Parents have failed to
        communicate with their children for a period in excess of one (1)
        year when able to do so. The Parents have failed to provide this
        Court with any credible evidence that would justify their failure
        to remain in contact with their children during the seven (7) years
        from shortly after the establishment of the guardianship until the
        filing of Mother’s motion to terminate the guardianship in

Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 6 of 14
        October 2016. The Court acknowledges the testimony that the
        Court and/or a counselor in the CHINS case ordered that the
        Parents have no contact with the children; however, the Parents
        have failed to provide any written order or other evidence to
        collaborate [sic] their testimony. Even if the time period in
        which the CHINS matters were pending is subtracted from the
        analysis, [Guardians] are still able to meet their legal burden. The
        bottom line is that the Parents always retained the ability to seek
        relief from the guardianship orders but failed to take any action
        in that matter until October of 2016. The Parents acquiesced to
        [Guardians] to raising their children and the legal consequences
        of failing to have any meaningful contact with their children for
        approximately seven (7) years.


        41. There is no credible evidence to support the Parents[’]
        argument that [Guardians] prevented the Parents from having
        contact with the Minor Children. The Parents were involved with
        multiple lawsuits with [Guardians] (guardianship, child support,
        and CHINS cases) and always retained the ability to contact
        [Guardians] or seek intervention of a court through those cases.
        [Grandfather] maintained the same cell phone number during the
        entirety of the guardianship matter. There is no evidence that
        [Guardians] secreted their whereabouts or otherwise [took]
        action specifically to thwart contact from the Parents. The Court
        cannot conclude that blocking the Parents from Facebook
        messaging is sufficient defense for the Parents[’] failure to have
        any appreciable contract [sic] with the Minor Children in this
        case. The Parents were blocked from Facebook contact due to
        their own inappropriate actions. The Parents presented no
        credible evidence of any unsuccessful and/or diligent efforts on
        their part to locate [Guardians]. Again, at all times during the
        Parents’ absence from the Minor Children the Parents were
        aware of the guardianship case and the Parents possessed the
        means and ability to seek relief from that court, but chose not to.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 7 of 14
              42. The Minor Children will benefit from the stable, supportive
              and nurturing homes of [Guardians] and it is in the best interests
              of the children for the adoption to be granted.


              43. The Court concludes that [Guardians] have fulfilled their
              burden of demonstrating by clear and convincing evidence that it
              is in the best interests of the Minor Children that the Parents, and
              each of them, parental rights be terminated and [Guardians’]
              petitions for adoption be granted.


      Id. at 3-10. This appeal ensued.


                                     Discussion and Decision
[6]   Parents ask us to review the propriety of the trial court’s ruling on Guardians’

      adoption petitions. In such cases,


              the appellant bears the burden of overcoming the presumption
              that the trial court’s decision is correct. We will neither reweigh
              the evidence or judge the credibility of witnesses; instead, we will
              consider the evidence most favorable to the trial court’s decision,
              and the reasonable inferences to be drawn therefrom, to
              determine whether sufficient evidence exists to sustain the
              decision. We will not disturb the trial court’s ruling unless the
              evidence leads to only one conclusion and the probate court
              reached an opposite conclusion.


              Where the trial court enters findings of fact and conclusions
              [thereon] pursuant to Indiana Trial Rule 52(A), we employ our
              familiar two-tiered standard of review: we must determine
              whether the evidence supports the findings and whether the
              findings support the judgment. We will not set aside the findings
              or the judgment unless they are clearly erroneous. Findings of
              fact are clearly erroneous if the record is devoid of any evidence
              or reasonable inferences to support them, while a judgment is
      Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 8 of 14
              clearly erroneous when it is unsupported by the findings of fact
              and the conclusions relying on those findings.


      In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citations

      omitted).


[7]   Parents argue that the trial court erred in concluding that their consent to

      adoption is not required on grounds different than those pled by Guardians.

      Indiana Trial Rule 15(B) provides that “[w]hen issues not raised by the

      pleadings are tried by express or implied consent of the parties, they shall be

      treated in all respects as if they had been raised in the pleadings.” In discussing

      how unpleaded issues impact litigation, we have previously stated,


              The function of the issues, whether formed by the pleadings, pre-
              trial orders, or contentions of the parties, is to provide a guide for
              the parties and the court as they proceed through trial. Either
              party may demand strict adherence to the issues raised before
              trial. If the trial court allows introduction of an issue not raised
              before trial, an objecting party may seek a reasonable
              continuance in order to prepare to litigate the new issue.
              However, where the trial ends without objection to the new issue, the
              evidence actually presented at trial controls. Consequently, neither
              pleadings, pre-trial orders, nor theories proposed by the parties
              should frustrate the trier of fact from finding the facts that a
              preponderance of the evidence permits.


              Because fairness compels certain restraints, however, there are
              limits upon the principle of amending pleadings through implied
              consent. For example, a party is entitled to some form of notice
              that an issue that was not pleaded is before the court. Notice can
              be overt, as where the unpleaded issue is expressly raised prior to
              or sometime during the trial but before the close of the evidence,

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 9 of 14
              or implied, as where the evidence presented at trial is such that a
              reasonably competent attorney would have recognized that the unpleaded
              issue was being litigated.


      In re V.C., 867 N.E.2d 167, 177-78 (Ind. Ct. App. 2007) (citations omitted)

      (emphases added).


[8]   Generally, a parent’s consent to adoption of a child under the age of eighteen is

      required. Ind. Code § 31-19-9-1. However, Section 31-19-9-8(a) provides that

      consent to adoption is not required from any of the following:


              (1) A parent or parents if the child is adjudged to have been
              abandoned or deserted for at least six (6) months immediately
              preceding the date of the filing of the petition for adoption.


              (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; or


                       (B) knowingly fails to provide for the care and support of
                       the child when able to do so as required by law or judicial
                       decree.


              ***


              (11) A parent if:


                       (A) a petitioner for adoption proves by clear and
                       convincing evidence that the parent is unfit to be a parent;
                       and

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 10 of 14
                        (B) the best interests of the child sought to be adopted
                        would be served if the court dispensed with the parent’s
                        consent.


       Ind. Code § 31-19-9-8(a). Subsection (b) of this statute provides 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.”


[9]    Here, Guardians pled that Parents’ consent was not required pursuant to

       Indiana Code Section 31-19-9-8(a)(1) and -8(a)(11), but the trial court found

       that their consent was not needed under subsection 8(a)(2). The petitioner is

       required to prove by clear and convincing evidence that a parent’s consent is

       not required for the adoption. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind.

       2014). “The most protected status in any adoption proceeding is that of the

       natural parent. Recognizing the fundamental importance of the parent-child

       relationship, our courts have strictly construed the adoption statute to preserve

       that relationship.” In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App.

       2010) (citation omitted), adopted by 941 N.E.2d 1042 (Ind. 2011).


[10]   Parents contend that they did not impliedly consent to trying the issue governed

       by paragraph 8(a)(2), i.e., failure to communicate significantly for a period

       exceeding one year without justifiable cause when able to do so. Specifically,

       Parents assert that because the issue of communication was relevant to the issue

       of abandonment, they should not have been expected to object to

       communication evidence. They further argue that they were not on notice that

       they needed to present evidence of justifiable cause, and therefore the trial

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 11 of 14
       court’s analysis begs the question of whether Parents did not present evidence

       of justifiable cause because such evidence does not exist or rather because

       Guardians only pled that consent was unnecessary due to abandonment and/or

       unfitness. Guardians assert that the issue was impliedly tried where both

       Guardians’ counsel and Parents’ counsel questioned Parents concerning their

       justification for failing to communicate with the Children for seven years.2 We

       agree with Guardians.


[11]   Our review of the record reveals that Guardians’ counsel directly questioned

       both Father and Mother as to why they had not seen the Children in seven

       years. Tr. Vol. at 61, 65-66. Parents’ counsel did not object even though the

       issue of abandonment applies only to the six months immediately preceding the

       filing of an adoption petition. Also, Guardians’ counsel asked Mother why she

       did not have contact for the three years between when she was in CHINS court

       in 2013 and when she filed the petition to terminate the guardianship in 2016.

       Id. at 66. Again, there was no objection.


[12]   More importantly, Parents’ counsel asked Parents and Guardians a variety of

       questions exploring the reasons for Parents’ lack of contact with the Children

       since 2011 when the guardianship was granted. Parents’ counsel specifically



       2
         Guardians provide a string of thirty-eight citations to the transcript without providing even one example of
       the questions counsel asked and how the witnesses responded. Indiana Appellate Rule 46(A)(8)(a) provides,
       “The argument must contain the contentions of the appellant on the issues presented supported by cogent
       reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or
       parts of the Record on Appeal relied on.” Although Guardians cited to the transcript, the failure to provide
       even some of the substance of these citations violates this rule and hindered our review. However, given our
       preference for deciding issues on their merits, we nevertheless persisted.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019                Page 12 of 14
       asked Father and Mother whether Guardians had denied Parents contact with

       the Children or told Parents that they could not have contact with the Children.

       Id. at 141, 194. Parents’ counsel asked Father why he had stopped calling the

       Children, whether Grandfather informed Father of new addresses, and whether

       Grandfather had kept the same phone number since 2011. Id. at 141, 144-45.

       Parents’ counsel asked Mother whether she believed that she attempted to

       maintain contact with the Children since 2011, and she answered, “Yes, I have.

       I’ve tried.” Id. at 198. Parents’ counsel asked Mother whether cards she sent to

       the Children were returned and whether Mother knew the addresses for

       Guardians after they moved. Id. at 192-93. Parents’ counsel also asked Mother

       whether she tried to reach out to Guardians on Facebook. Id. at 194.


[13]   In response to questioning, Father and Mother testified that the reasons that

       they had not had contact with the Children included that Guardians would not

       allow them to have contact with the Children, the judge in the CHINS case told

       them they could not have contact with the Children, they were told that the

       Children’s counselor said contact was not good for the Children, they did not

       know Guardians’ phone numbers and addresses, and Guardians blocked them

       from Guardians’ Facebook pages. Id. at 65-67, 141, 144-45, 192-94, 204.


[14]   In addition, Parents’ counsel asked Grandfather and M.M. a variety of

       questions related to the lack of contact between Parents and the Children since

       2011. Parents’ counsel asked Grandfather and M.M. if they allowed Parents to

       speak to the Children or ever told Parents not to call and whether they had ever

       asked Parents to stop coming to Guardians’ home. Id. at 83-85, 124. Parents’

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 13 of 14
       counsel asked Grandfather and M.M. about any changes in phone numbers and

       addresses and whether they informed Parents of any such changes. Id. at 77-78,

       83, 116.


[15]   We conclude that the evidence presented at trial is such that a reasonably

       competent attorney would have recognized that the unpleaded issue–Parents’

       failure to significantly communicate with the Children without justifiable cause

       for more than one year–was being litigated. Accordingly, the trial court

       properly found that Parents’ consent to adoption was unnecessary under

       paragraph (8)(a)(2). There being no other challenges to the Appealed Order, we

       affirm.


[16]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-1942 | February 28, 2019   Page 14 of 14
