      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be
                                                                                  Apr 20 2018, 8:35 am
      regarded as precedent or cited before any
      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.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      J. Clayton Miller                                        Ryan H. Cassman
      Jordan Law, LLC                                          Brandi A. Gibson
      Richmond, Indiana                                        Coots, Henke & Wheeler, P.C.
                                                               Carmel, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In re the Adoption of A.S.C.,                            April 20, 2018

      N.L.,                                                    Court of Appeals Case No.
                                                               68A05-1710-AD-2365
      Appellant-Respondent,
                                                               Appeal from the Randolph Circuit
              v.                                               Court
                                                               The Honorable Jay L. Toney,
      P.F. and S.F.,                                           Judge
                                                               Trial Court Cause No.
      Appellees-Petitioners.
                                                               68C01-1608-AD-164



      Mathias, Judge.

[1]   The Randolph Circuit Court granted P.F. and S.F.’s petition (collectively “the

      Petitioners”) to adopt A.S.C. over the biological mother’s (“N.L.”) objection

      after concluding that her consent to the adoption was not required. N.L.

      Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018                Page 1 of 11
      appeals and argues that the trial court erred in granting the petition in several

      respects. First, she argues that the trial court should not have granted the

      adoption petition because S.F. has a felony conviction for non-support of a

      dependent. N.L. also argues that the trial court erred when it found that her

      consent was not required because she knowingly failed to support A.S.C. for

      more than one year. Finally, N.L. contends that the adoption is not in A.S.C.’s

      best interests.

[2]   We affirm.


                                 Facts and Procedural History
[3]   A.S.C. was born on October 23, 2009, to N.L., her biological mother, and

      K.C., her biological father. P.F., who is married to S.F., is K.C.’s mother and

      A.S.C.’s paternal grandmother. After A.S.C. was named a child in need of

      services (“CHINS”) when she was thirteen months old, P.F. was named

      A.S.C.’s guardian, and the CHINS proceedings were closed. In 2013, N.L. was

      ordered to pay child support for A.S.C. in the amount of $43 per week.


[4]   In order to modify or terminate the guardianship, N.L. was required to

      complete a drug rehabilitation program, abstain from any illegal drug use or

      substance abuse for six months immediately preceding a request for

      modification or termination of the guardianship, maintain stable housing, and

      complete an anger management program. N.L. never made any effort to satisfy

      the requirements for modifying or terminating the guardianship.




      Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 2 of 11
[5]   In June 2012, a protective order was issued in favor of A.S.C. and against N.L.

      N.L.’s parenting time with the child was suspended as a result. The protective

      order expired in 2014, and supervised parenting time of one hour per week

      resumed. N.L. did not always attend her parenting time. N.L.’s employment

      history is sporadic, and she does not have custody of her other three children.

      She also lacked stable housing and has lived with her mother, friends, and

      boyfriends. N.L. has a long history of substance abuse and illegal drug use.

[6]   N.L. has been incarcerated on multiple occasions since A.S.C.’s birth. On July

      13, 2015, N.L. was charged with and later convicted of possession of

      methamphetamine and theft in Wayne County, Indiana. In June 2016, she was

      charged as a fugitive from justice in Darke County, Ohio. In that same month,

      N.L. was charged with battery resulting in bodily injury and interference with

      reporting a crime in Randolph County, Indiana. N.L. was convicted of the

      battery charge. In August 2016, N.L. was charged with tampering with

      evidence in Darke County, Ohio. In November 2016, she was charged with

      telephone harassment and criminal damaging-endangering in Darke County,

      Ohio. She was convicted of criminal damaging-endangering. And most

      recently, she was charged and convicted of criminal damaging-endangering in

      Darke County, Ohio in March 2017.


[7]   N.L. made only six child support payments in 2013 and 2014. Her payments

      coincided with the State seeking to enforce the child support order. N.L.’s last

      child support payment was made on March 10, 2014. The child support order

      remained in effect, but the Petitioners asked the State to cease its attempts to

      Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 3 of 11
       collect support because they did not want N.L. or their son K.C. to be

       incarcerated for failing to pay child support. P.F. told N.L. that the prosecutor’s

       office would no longer attempt to collect unpaid support, but that N.L. was still

       obligated to pay child support. N.L. has not provided any child support for

       A.S.C. since the last payment made in March 2014.


[8]    On August 1, 2016, the Petitioners filed a petition to adopt A.S.C. with K.C.’s

       consent. N.L., who was incarcerated at the time, filed a notice to contest the

       adoption. A home study was completed, and it was recommended that the

       Petitioners be allowed to adopt A.S.C.


[9]    The trial court set a hearing on the petition for December 30, 2016. N.L. was

       shot by her boyfriend the night before the hearing and requested a continuance.

       The trial court granted her request and reset the final hearing for January 31,

       2017. The court reset the final hearing date again because N.L. contacted the

       court to request a court-appointed attorney. N.L. requested three additional

       continuances and the final hearing was rescheduled to May 30, 2017.


[10]   The final hearing was conducted on May 30 and July 5, 2017. The evidence

       established that seven-year-old A.S.C. is a happy child who excels in school and

       has many friends.


[11]   N.L. admitted that she has not paid child support for A.S.C. since 2014, but

       alleged that P.F. told her that she was no longer obligated to do so. N.L. also

       testified that she had recently completed an anger management program. On

       the date of the hearing, N.L. was living with her mother.

       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 4 of 11
[12]   S.F. admitted that he was found in contempt multiple times for failing to

       support his children from a prior marriage. And in 2005, S.F. was convicted of

       felony nonsupport of a dependent child. S.F. acknowledged that his failure to

       pay child support was entirely his fault. S.F. eventually paid the arrearage and

       has maintained his relationship with his children.


[13]   On September 13, 2017, the trial court issued a decree of adoption. The trial

       court found that N.L.’s consent to the adoption was not required because she

       failed to pay child support for at least forty-one months while under a court

       order to do so. The trial court also found that N.L.’s consent to the adoption

       was not required because N.L. is an unfit mother and the adoption was in

       A.S.C.’s best interests. N.L. now appeals.


                                          Standard of Review
[14]   Pursuant to statute, a trial court shall grant a petition for adoption if the

       adoption is in the child’s best interest, the petitioners are sufficiently capable of

       rearing and supporting the child, and proper consent, if required, has been

       given. Ind. Code § 31-19-11-1(a). We will not disturb a trial court’s ruling in an

       adoption proceeding unless the evidence leads only to the conclusion opposite

       that of the trial court. E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014),

       trans. denied. “Appellate deference to the determinations of our trial court

       judges, especially in domestic relations matters, is warranted because of their

       unique, direct interactions with the parties face-to-face, often over an extended

       period of time.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We do not

       reweigh evidence ,and we consider evidence most favorable to the decision
       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 5 of 11
       together with reasonable inferences drawn from that evidence. E.W., 20 N.E.3d

       at 894. Where, as here, an adoption petition is filed without the required

       parental consent, the party seeking to adopt bears the burden to prove the

       statutory criteria for dispensing with consent by “clear and convincing

       evidence.” In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004).


[15]   In this case, the trial court entered written findings of fact and conclusions of

       law pursuant to Indiana Trial Rule 52(A). Therefore, we determine whether the

       evidence supports the findings of fact and second, we determine whether the

       findings support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind.

       Ct. App. 2009). Our court “shall not set aside the findings or judgment unless

       clearly erroneous, and due regard shall be given to the opportunity of the trial

       court to judge the credibility of the witnesses.” T.R. 52(A).


                                      Discussion and Decision
[16]   N.L. argues that the trial court erred when it issued the decree of adoption

       because S.F. has a felony conviction for non-support of a dependent child and

       the evidence does not support the trial court’s findings that she knowingly failed

       to support A.S.C. for at least one year. N.L. also contends that the adoption is

       not in A.S.C.’s best interests.


                                        I. S.F.’s Felony Conviction

[17]   First, we address N.L.’s argument that the trial court erred when it granted the

       petition for adoption because S.F. has a prior felony conviction for nonsupport

       of a dependent. Indiana Code section 31-19-11-1(c) provides in relevant part

       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 6 of 11
       that “a conviction of a misdemeanor related to the health and safety of a child,

       or a conviction of a felony not listed” in the subdivisions of the statute “by a

       petitioner for adoption is a permissible basis for the court to deny the petition

       for adoption.”1 It was therefore within the discretion of the trial court whether

       to deny the petition for adoption after considering the fact that S.F. was

       convicted of felony nonsupport of a dependent child in 2005.


[18]   The trial court considered S.F.’s conviction and the fact that he was held in

       contempt more than once for failing to pay child support for his dependent

       children. Eventually, S.F. paid the child support owed and he expressed regret

       for failing to pay child support. S.F. testified that he did not pay child support

       because he was angry at his former wife and he would not make that mistake

       again. The trial court acted within its discretion when it considered S.F.’s

       conviction and testimony and decided that it would not deny the petition to

       adopt due to S.F.’s prior conviction.


                           II. Was N.L.’s Consent to Adoption Required?

[19]   The adoption of a minor child generally requires, among other things, the

       written consent of the child’s mother, and, if the child is born out of wedlock,

       the consent of the child’s father whose paternity has been established by law. In

       re B.W., 908 N.E.2d 586, 590 (Ind. 2009); Ind. Code § 31-19-9-1. A.S.C.’s




       1
        A person who has been convicted of neglect of a dependent may not adopt a child. See Ind. Code § 31-19-
       11-1(c); see also In re I.B., 32 N.E.3d 1164, 1172 (Ind. 2015). However, nonsupport of a dependent is not listed
       as an offense that operates as a mandatory bar to adoption. See id.

       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018               Page 7 of 11
       biological father consented to the adoption, but N.L. did not. The Petitioners

       argued, and the trial court found, that N.L.’s consent was not required.


[20]   Indiana Code section 31-19-9-8(a) provides that consent to adoption is not

       required by


               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.


                                                       ***

               A parent if . . . a petitioner for adoption proves by clear and
               convincing evidence that the parent is unfit to be a parent; and []
               the best interests of the child sought to be adopted would be
               served if the court dispensed with the parent’s consent.


       It is well established that the provisions of Indiana Code section 31-19-9-8 are

       disjunctive, and “as such, either provides independent grounds for dispensing

       with parental consent.” In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

       App. 2006).


[21]   The trial court found N.L.’s consent to the adoption was not required because

       N.L. knowingly failed to provide support for A.S.C. for at least forty-one

       months and N.L. was an unfit parent. The court also found that granting the

       petition to adopt was in A.S.C.’s best interests.


[22]   N.L. admitted that she failed to pay child support after her last payment in

       March 2014, but she argues that she did not knowingly fail to pay support. She

       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 8 of 11
       testified that she stopped paying support because P.F. told her she no longer

       needed to do so. P.F. testified that she told N.L. that she withdrew her request

       to the prosecutor to pursue the unpaid child support so that N.L. and K.C.

       would not be incarcerated for their failure to pay. But, P.F. told N.L. she was

       still ordered to pay child support due to the order issued in the guardianship

       proceedings.


[23]   The trial court credited P.F.’s testimony and concluded that N.L. failed to pay

       court-ordered child support for at least forty-one months. The trial court also

       found that N.L. had funds available to pay child support but used the money to

       pay fees and fines imposed in her numerous criminal proceedings. And, on

       appeal, N.L. does not claim that she lacked funds to pay child support.

       Moreover, the petition to adopt A.S.C. alleged that N.L.’s consent was not

       required, in part, because she had not contributed to the child’s support for the

       last two years. N.L. did not attempt to contribute to the support of A.S.C. even

       after she was served with the petition to adopt. This evidence supports the trial

       court’s finding that N.L. knowingly failed to provide child support even though

       she had money to do so, and therefore, N.L.’s consent to the adoption was not

       necessary.


                                       III. A.S.C.’s Best Interests

[24]   Finally, N.L. does not challenge the trial court’s finding that she is an unfit

       mother, but she argues that the adoption is not in A.S.C.’s best interests. N.L.

       argues that P.F. is A.S.C.’s guardian which “sufficiently resolves A.S.C.’s

       needs” and that she has a close bond with A.S.C. Appellant’s Br. at 9.
       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 9 of 11
[25]   The primary concern in every adoption proceeding is the best interests of the

       child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind. Ct. App. 2012). Even

       if a court determines that a natural parent’s consent is not required for an

       adoption, the court must still determine whether adoption is in the child’s best

       interests. See I.C. § 31-19-11-1(a)(1). In making this determination, the trial

       court must consider “the totality of the evidence to determine the best interests

       of a child.” In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014).

       “Relevant factors include, among others, a parent’s historical and current

       inability to provide a suitable environment for the child; the recommendations

       of the child’s case worker or guardian ad litem; and the child’s need for

       permanence and stability.” Id. at 1281–82 (internal citations omitted).


[26]   A.S.C. was raised and cared for by the Petitioners for over six years when the

       adoption decree was issued. She is a happy child, does well in school, and has

       many friends. The Petitioners have created a loving and stable home

       environment for A.S.C.


[27]   A.S.C. loves N.L. and N.L. loves her in return, but N.L. is not fit to parent

       A.S.C. N.L.’s history of substance abuse and criminal activity speaks for itself.

       Moreover, N.L.’s lack of commitment to A.S.C. is evident in this case. A.S.C.

       was adjudicated a CHINS when she was thirteen months old and after P.F. was

       named A.S.C.’s guardian, and the CHINS proceedings were closed. In addition

       to failing to pay child support, N.L. never attempted to complete any of the

       requirements that would have allowed her to seek modification or termination

       of the guardianship.

       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 10 of 11
[28]   For all of these reasons, we agree with the trial court that the adoption was in

       A.S.C.’s best interests.


                                                 Conclusion
[29]   The trial court did not err when it determined that N.L.’s consent to A.S.C.’s

       adoption was unnecessary and that adoption was in A.S.C.’s best interests.


[30]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 68A05-1710-AD-2365| April 20, 2018   Page 11 of 11
