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 2018, 8:55 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.


ATTORNEY FOR APPELLANT
John Quirk
Muncie, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Je.M., and Jo.M.,                                        July 27, 2018
Appellants-Petitioners,                                  Court of Appeals Case No.
                                                         17A-AD-3042
        v.                                               Appeal from the Delaware Circuit
                                                         Court
D.A.,                                                    The Honorable Marianne Vorhees,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         18C01-1706-AD-53



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018                   Page 1 of 9
[1]   Je.M. (“Paternal Grandfather”) and Jo.M. (“Paternal Grandmother”)

      (collectively, “Paternal Grandparents”) appeal the denial of their petition to

      adopt their grandson, Z.M. (“Child”). Paternal Grandparents argue the trial

      court erred when it determined the consent of D.A. (“Mother”) was required

      for Paternal Grandparents’ adoption of Child. Finding no error, we affirm.



                              Facts and Procedural History                                     1




[2]   Child was born on October 15, 2012, to Mother and B.M. (“Father”). On April

      15, 2016, the Randolph Circuit Court ordered Father to have physical custody

      of Child, and Mother was given supervised visitation (“Randolph County

      Action”). Mother was also ordered to pay Father $40.00 per week in child

      support. On July 13, 2015, Father filed a petition to suspend Mother’s

      visitation. On July 15, 2015, Mother filed a petition for citation related to

      parenting time. The trial court held a hearing on August 18, 2015, and ordered

      Mother to have parenting time as the parties agreed in the future.


[3]   In June 2017, Father moved to Texas. On June 2, 2017, Paternal Grandparents

      filed a petition in Delaware County to adopt Child. With the petition, Paternal

      Grandparents filed Father’s consent to the adoption and the termination of his




      1
        We note Appellants’ Statement of the Case does not comport with Indiana Appellate Rule 46(A)(5), which
      requires the Statement of the Case “briefly discuss the nature of the case, the course of the proceedings
      relevant to the issues presented for review, and the disposition of these issues by the trial court[.] . . . Page
      references to the Record on Appeal or Appendix are required in accordance with Rule 22(C).” (emphasis added)
      The Appellants’ brief contains a list of events relevant to the proceedings, with no indication of how these
      events connect to other events in the proceedings, and there are no page citations.

      Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018                         Page 2 of 9
      parental rights. On June 21, 2017, Mother filed a petition for emergency

      custody as part of the Randolph County Action. Paternal Grandparents filed a

      motion to intervene in the Randolph County Action, and the trial court

      approved that motion. Paternal Grandparents filed a petition to modify

      custody. Mother did not appear at the hearing on her petition for emergency

      custody, and Paternal Grandparents were granted temporary custody of Child. 2


[4]   On June 27, 2017, the trial court held a pre-trial hearing during which Mother

      indicated she intended to hire counsel. Her counsel entered an appearance on

      July 27, 2017. On November 9, 2017, the trial court held a status hearing

      during which Father appeared telephonically and answered questions regarding

      his consent to the adoption and the termination of his parental rights. On

      December 7, 2017, the trial court held a final hearing on Child’s adoption,

      during which Mother testified. On December 18, 2017, the trial court denied

      Paternal Grandparents’ petition for adoption.



                                  Discussion and Decision
[5]   As an initial matter, we note Mother did not file an appellee’s brief. When an

      appellee does not submit a brief, we do not undertake the burden of developing

      arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct.




      2
       At some point in the proceedings, the Randolph County Action was transferred to Delaware County. (See
      App. Vol. II at 66) (“This court now has jurisdiction over a related case, Cause No. 18C01-1711-JP-0266, the
      Paternity Action which started in Randolph Circuit Court under Cause No. 68C01-1408-JP-0136.”).

      Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018                    Page 3 of 9
      App. 2002). Instead, we apply a less stringent standard of review and may

      reverse if the appellant establishes prima facie error. Id. Prima facie error is

      “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

      Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).


[6]   Our standard of review of adoption proceedings is well-settled:


              “When reviewing adoption proceedings, we presume that the
              trial court’s decision is correct, and the appellant bears the
              burden of rebutting this presumption.” We generally give
              considerable deference to the trial court’s decision in family law
              matters, because we recognize that the trial judge is in the best
              position to judge the facts, determine witness credibility, “get a
              feel for the family dynamics,” and “get a sense of the parents and
              their relationship with their children.” We will not disturb the
              trial court’s ruling “unless the evidence leads to but one
              conclusion and the trial judge reached an opposite conclusion.”
              The trial court's findings and judgment will be set aside only if
              they are clearly erroneous. “A judgment is clearly erroneous
              when there is no evidence supporting the findings or the findings
              fail to support the judgment.” “We will neither reweigh the
              evidence nor assess the credibility of witnesses, and we will
              examine only the evidence most favorable to the trial court’s
              decision.”


      In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations omitted).

      Paternal Grandparents do not challenge the findings of the trial court, so we

      must accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

      (“Because Madlem does not challenge the findings of the trial court, they must

      be accepted as correct.”).



      Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018   Page 4 of 9
[7]   Generally, a trial court may grant a petition for adoption only if both the

      mother and father of the child consent. Ind. Code § 31-19-9-1(a)(2). However,

      Ind. Code § 31-19-9-8 provides consent to an adoption is not required from:


              (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.


[8]   In the underlying proceedings, Paternal Grandparents argued Mother’s consent

      was not required because she had not communicated with Child since May

      2016 and she owed Father $4,560.00 in child support arrears. Parental

      Grandparents assert “the Trial Court found that the parents ([Mother and

      Father]) were too young when [Child] was born. Because of this, the Petition

      to Adoption without consent of [Mother] was denied.” (Br. of Appellants at 8.)

      We disagree.


[9]   Regarding Mother’s consent, the trial court found:


              9. First, regarding consent: [Child] lived with [Father] and
              [Father’s] girlfriend, [G.M.,] during the One (1) Year period

      Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018   Page 5 of 9
         prior to the date [Paternal Grandparents] filed the Petition for
         Adoption. [Father] testified he was the primary caregiver for
         [Child] during that time period. [Father] had to get up early for
         work, and so he took [Child] to [Paternal Grandparents’] house
         at night to sleep. [Father] testified he would e-mail [Mother]
         until the Randolph Circuit Court suspended her parenting time. 3


         10. [G.M.] testified that she and [Father] lived together from
         July 2016, until March, 2017, and during that time period,
         [Mother] contacted [G.M.] via Facebook to express concerns
         about [Child].


         11. [Mother] testified the contact with [G.M.] occurred at
         Mother’s Day, 2016, and she told [G.M.] that she wanted to see
         [Child]. [Mother] had one visit with [Child] in May, 2016. She
         tried again to visit [Child] at Christmas, 2016, by contacting
         [G.M.]. She did not receive a visit.


         12. I cannot go so far as to say that [Paternal Grandparents]
         have carried their burden to show by clear and convincing
         evidence that [Mother] has abandoned or deserted [Child], or
         that she failed to communicate significantly with him without
         justifiable cause.


         13. During the time period at issue, June 2016 to June 2017,
         [Father] had primary custody and relied on [Paternal
         Grandparents] for overnight care. [Mother] had an order
         allowing her to have supervised parenting time with [Child], but
         [Father] testified he stopped communicating with [Mother] by e-
         mail. [Mother] did have two visits between May and December,




3
 It is unclear when this suspension occurred, but it seems to have been ordered prior to the adoption
proceedings.

Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018                     Page 6 of 9
               2016. She attempted to contact [Father] through his girlfriend’s
               Facebook page.


               14. Although [Mother] certainly could have made more diligent
               efforts to contact [Father] to obtain parenting time, she did not
               completely abandon her child. She even sought emergency
               custody after she heard that [Father] had moved to Texas.


               15. As for support, [Mother’s] obligation was to pay support to
               [Father] for [Child’s] benefit. She had no support obligation to
               [Parental Grandparents] between June 2016 and June 2017.
               [Father] did not enforce the support order. [Mother] owed no
               duty to pay support to [Parental Grandparents] during the period
               from June 2016 to June 2017. Further, the parties did not present
               any evidence as to [Mother]’s ability to pay support during the
               time period. I do not find this as a basis for terminating
               [Mother’s] parental rights.


                                                     *****


               18. As to [Mother’s] role in [Child’s] life, it seems to me from
               reading the records from both proceedings that [Father and
               Mother] had [Child] at a very young age. But the child is young,
               and [Mother] is young, and so to terminate [Mother’s] rights as
               mother at this time is premature.


       (App. Vol. II at 67-8.)


[10]   Paternal Grandparents mischaracterize the record by suggesting the reason for

       the denial of their petition was the trial court’s conclusion that Mother was

       young when Child was born. Instead, the trial court set forth multiple findings

       to support its conclusion Mother’s consent was required for Child’s adoption.


       Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018   Page 7 of 9
       While it does seem contact between Mother and Child was limited and Mother

       could have put forth more effort to communicate with Child, the Record also

       supports an inference that the lack of contact was not solely Mother’s fault.

       Mother, and Father, and G.M. testified Father did not respond to Mother’s

       emails, Father testified he did not know his own email address. G.M. testified

       Father “did not check his emails at all[,]” (Tr. Vol. II at 52), and Paternal

       Grandmother checked the email address and responded to emails sent to that

       account. Paternal Grandmother admitted she had access to the email account

       in question.


[11]   Father indicated he did not know if Mother had his phone number and he

       admitted Mother did not know where he lived. Mother testified Father had

       blocked her from communicating with him via Facebook and Paternal

       Grandparents had a “no trespassing” order against her. (Id. at 76.) Mother

       testified she attempted to set up supervised visitation with Child through the

       Department of Child Services, but moved and she did not maintain contact to

       make arrangements.


[12]   While we acknowledge the complicated nature of Mother’s relationship with

       Child, we cannot say the trial court erred when it denied Paternal

       Grandparents’ petition to adopt Child, especially in light of testimony

       indicating some parties may have intentionally thwarted Mother’s efforts to

       contact Child. See E.B.F. v. D.F., 93 N.E.3d 759, 767 (Ind. 2018) (trial court’s

       grant of stepmother’s petition to adopt child reversed based, in part, on the fact



       Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018   Page 8 of 9
       father and stepmother intentionally and unintentionally thwarted mother’s

       efforts to communicate with child).



                                               Conclusion
[13]   The trial court did not err when it denied Paternal Grandparents’ petition for

       adoption of Child because Mother’s consent was required for Child’s adoption.

       Accordingly, we affirm.


[14]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018   Page 9 of 9
