MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                    Dec 10 2019, 8:32 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 APPELLANT                                  ATTORNEY FOR APPELLEES
Jennifer A. Joas                                        R. Patrick Magrath
Madison, Indiana                                        Madison, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                        December 10, 2019
A.D.B. (Minor Child):                                   Court of Appeals Case No.
                                                        19A-AD-1219
                                                        Appeal from the Dearborn Circuit
B.B.,                                                   Court
Appellant-Respondent,                                   The Honorable James D. Humphrey,
                                                        Judge
        v.
                                                        Trial Court Cause No.
                                                        15C01-1802-AD-1
J.J. and S.J.,
Appellees-Petitioners.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019               Page 1 of 14
                                              Case Summary
[1]   B.B. (“Mother”) challenges the trial court order granting J.J.’s and S.J.’s

      (“Adoptive Parents”) petition to adopt Mother’s child A.D.B. (“Child”)

      without Mother’s consent.


[2]   We affirm.



                                                        Issues
[3]   Mother raises two issues on appeal which we restate as follows:


                1.        Whether Mother was properly served with the Notice of
                          Adoption under Indiana Trial Rule 4.1(B) such that her
                          consent to adoption was irrevocably implied under
                          Indiana Code Section 31-19-9-18 when she failed to file a
                          motion to contest the adoption by July 20, 2018.


                2.        Whether Mother’s consent to adoption was not required
                          under Indiana Code Section 31-19-9-8 because she
                          abandoned Child.


                               Facts and Procedural History
[4]   Mother and D.H. (“Father”)1 are the biological parents of Child, who was born

      on September 7, 2009. On Easter Sunday in 2014, when Child was four years

      old, Mother left her with Child’s maternal grandmother. After receiving reports




      1
          Father consented to the adoption and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 2 of 14
      regarding Child, the Lawrenceburg Police Department (“LPD”) went to

      maternal grandmother’s apartment complex and found Child in the parking lot,

      wearing only her underwear and covered in dirt and feces. LPD and the

      Department of Child Services (“DCS”) called S.J., Child’s maternal cousin, to

      inform her of Child’s condition and whereabouts. Adoptive Parents, who are

      married, then went to the maternal grandmother’s apartment complex and,

      with permission from DCS, took Child home with them. At that time, Child

      had scraped knees, feces caked in her underwear, sticks and leaves matted in

      her hair, and bleeding feet. J.J. described her as “feral” at that time, and noted

      that she was emotionally vulnerable, prone to fits of violence and hysterics, and

      frequently attempted to engage in self-harm. Tr. Vol. II at 36. Child urinated

      and defecated on Adoptive Parents’ floors, leading J.J. to believe Child did not

      “understand how to use indoor plumbing.” Id. at 37. J.J. believed that Child

      had been physically and sexually abused while in Mother’s care, based on

      Child’s statements to Adoptive Parents and her knowledge of “the male

      anatomy” at such a young age. Id. at 38.


[5]   In June of 2014, S.J. became Child’s permanent guardian. Soon thereafter,

      Adoptive Parents obtained therapeutic services for Child. Those services

      included parent-child interactive therapy, individual counseling, and

      medication therapy. Initially, Child was diagnosed with reactive attachment

      disorder, but she was later diagnosed with post-traumatic stress disorder and

      attention deficit hyperactive disorder. Adoptive Parents wished to enroll Child

      in a recommended behavioral occupational therapy program with psychology


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 3 of 14
      specialists at Cincinnati Children’s medical center but could not get those

      services covered by J.J.’s insurance until adoption was final.


[6]   Adoptive Parents arranged for Mother to see Child on Mother’s Day in 2014.

      Mother said she was taking Child out for ice cream. Six hours later, Child was

      returned to Adoptive Parents by strangers who reported Mother had

      disappeared at a casino, leaving the Child behind. Shortly thereafter, Mother

      was charged, convicted and incarcerated for theft. The theft conviction was

      Mother’s seventh criminal conviction and her second felony conviction.


[7]   When Mother was released from incarceration in March of 2015, Adoptive

      Parents provided her with a path to reunification with Child by arranging for

      her to work with Child’s therapists. Mother attended two appointments with

      Child’s therapist and then refused to follow through with additional

      appointments or recommendations. In July of 2015, Mother filed a motion to

      modify the guardianship orders. Adoptive Parents submitted into evidence at

      the guardianship proceedings a report from Child’s psychiatrist stating:


              [Child] is a 6-year-old biracial youngster whose behavior gives
              ample evidence of significant maternal neglect. There is
              substantial and ample indication that the biological mother never
              made any emotional attachment to [Child]. [Mother’s] behavior
              clearly indicates that she has a serious personality disorder that is
              not likely to change.


              My professional opinion is that [Child] should not have any form
              of contact with biological mother till she is at least 18 years of
              age and is able to make a mature decision about initiating any
              contact. Contact with her biological mother serves no purpose

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 4 of 14
               other than dredging up old painful memories and more acting out
               behavior.


      Ex. at 36.2 On January 28, 2016, based in part on the psychiatrist’s report, the

      guardianship court denied Mother’s request to modify the guardianship. The

      court ordered contact between Mother and Child “at the sole discretion” of S.J.

      Id. at 35.


[8]   Following the guardianship court’s decision, Mother made no effort to contact

      Child or Adoptive Parents again. Since Mother’s Day of 2014, Mother has had

      no contact with Child. Since January of 2016, Mother has not tried to contact

      Child. Mother admitted that Adoptive Parents never told her she could not

      have contact with them or Child. Mother knew Adoptive Parents’ address,

      which has not changed since Child began living with Adoptive Parents, and

      Mother owned a car, so she had transportation available.


[9]   During the period between April of 2014 and February of 2018, Mother was

      employed at various places, including McDonalds, Burger King, Dunkin

      Donuts, a garden center, Chipotle, Little Caesars, and two factories. Between

      April of 2014 and March of 2019, Mother also continued to receive child

      support from Father which totaled approximately $3,000.00. However, Mother




      2
         A copy of the report was also submitted into evidence, without objection, as Exhibit 5 at the April 2, 2019,
      final hearing on adoption. Tr. at 84

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019                  Page 5 of 14
       has not provided money, clothing, food, or other support for Child since Child

       began living with Adoptive Parents.


[10]   Adoptive Parents enrolled Child in a private school, and paid for the same, in

       order to give Child the attention she needs as recommended by her counselor.

       Neither Adoptive Parent has a criminal history. Adoptive Parents have a home

       for Child, medical insurance for Child, and income to support Child. A Home

       Study completed by Protect Our Children, Inc. was submitted to the court and

       recommended approval of the adoption.


[11]   On February 27, 2018, Adoptive Parents filed a petition to adopt Child. The

       petition alleged that Mother’s consent to the adoption was not required under

       Indiana Code Section 31-19-9-8(a). On June 18, 2018, after several failed

       attempts to serve Mother, Adoptive Parents served Mother with the Notice of

       Adoption and Petition for Adoption by the Sheriff’s department leaving a copy

       of the same at 7399 U.S. Highway 50, Lot 20, Aurora, Indiana. That address

       had been provided to S.J. by a family member, and it was the same address

       listed on a traffic ticket issued to and paid by Mother in May of 2018.


[12]   On September 7, 2018, Adoptive Parents filed Father’s consent to the adoption.

       On December 5, 2018, Adoptive Parents filed a request for a final hearing in

       which they noted that Mother had been served by Sheriff on June 20 but failed

       to file a motion to contest the adoption, making her consent irrevocably implied

       under state law. Adoptive Parents’ request and the order setting the final




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 6 of 14
       hearing date for January 17, 2019, were mailed to Mother at the same Aurora,

       Indiana address.


[13]   On January 14, Mother filed a letter requesting a continuance of the final

       hearing and an opportunity to contest the adoption. The letter referred to the

       December 5 request for final hearing and stated that Mother “had absolutely no

       knowledge of this adoption until [she] just read [the request for hearing] late last

       week.” App. Vol. II at 48. Mother denied that she was ever served on June 20,

       2018.


[14]   On January 16, Adoptive Parents filed, by counsel, an objection to Mother’s

       motion for a continuance. The objection stated that, in addition to service by

       Sheriff on June 20, 2018: “Pursuant to Rule 4.1(B) of the Indiana Rules of Trial

       Procedure, counsel for the Petitioners mailed a copy of the Verified Petition and

       the Notice of the Adoption to [B.B.] at 7399 U.S. Highway 50, Lot 20, Aurora,

       Indiana 47001 on the 26th day of June, 2018.” Id. at 51. The objection was not

       in the form of an affidavit, nor was it otherwise verified. On January 17,

       Adoptive Parents and their counsel appeared but Mother did not. Counsel for

       Adoptive Parents noted the service by Sheriff on June 20 and stated to the court

       that he “personally sent a mailed copy of the notice of adoption as well as the

       verified petition” to the same Aurora, Indiana address on June 26, 2018, and

       that those documents were not returned to him as undeliverable. Tr. at 5. The

       trial court did not take evidence at that time; rather, it granted Mother’s request

       for a continuance and set the matter for a pretrial hearing on January 25, and a

       final hearing on March 1.

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 7 of 14
[15]   Mother filed a request to continue the January 25 pretrial hearing and the court

       denied that request. On January 25, the court held the pretrial hearing and

       Mother failed to appear. On January 30, on its own motion, the trial court

       appointed counsel for Mother and “direct[ed]” Mother to contact her counsel at

       the provided telephone number within five business days. App. Vol. II at 62.

       The trial court granted Mother’s additional request for a continuance of the

       final hearing and rescheduled the same for March 15. On March 14, Mother’s

       counsel filed another request for a continuance of the final hearing because she

       had “just met with her client on March 13.” Id. at 65.


[16]   On March 15, the court held a hearing on all pending motions. All parties and

       their counsel were at the hearing. The court denied Mother’s request for a

       continuance and proceeded to the final hearing at which J.J. testified. The

       hearing was continued to April 2, 2019, and all parties appeared with counsel at

       that hearing. S.J. testified and Mother testified. At the recommenced hearing

       on April 4, Mother’s counsel appeared but Mother did not. Adoptive Parents

       testified again. In an order dated April 4, the trial court held that Mother’s

       consent was irrevocably implied under Indiana Code Section 31-19-9-18(b)(1)

       and, in the alternative, not required under Indiana Code Section 31-19-9-8 for

       several reasons, including Mother’s abandonment of Child. In an order dated

       April 12, the court held that Mother’s motion to contest the adoption was

       denied. On April 29, the court completed the final hearing on the adoption

       petition and issued the Decree of Adoption.


[17]   Mother now appeals.

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 8 of 14
                                 Discussion and Decision
                                        Standard of Review
[18]   Our standard of review of a trial court’s ruling in an adoption proceeding is

       well-settled.


               [W]e will not disturb that ruling unless the evidence leads to only
               one conclusion and the trial court reached the opposite
               conclusion. In re Adoption of H.N.P.G., 878 N.E.2d 900 (Ind. Ct.
               App. 2008), trans. denied. We will not reweigh the evidence, but
               rather, we will examine the evidence most favorable to the trial
               court’s decision together with all reasonable inferences to be
               drawn therefrom. Id. We will affirm if sufficient evidence exists
               to sustain the decision. In re Adoption of M.A.S., 815 N.E.2d 216
               (Ind. Ct. App. 2004). The trial court’s decision is presumed to be
               correct and it is the appellant’s burden to overcome that
               presumption. Id.


       B.M. v. J.R. and M.R. (“In re Adoption of K.M.”), 31 N.E.3d 533, 536 (Ind. Ct.

       App. 2015).


                                           Implied Consent
[19]   Mother challenges the trial court’s conclusion that her consent to the adoption

       was implied under state law. Generally, a petition to adoption a child may only

       be granted if the living biological parents have executed their written consent to

       the adoption. Ind. Code § 31-19-9-1(a). However, there are several statutory

       exceptions to the written consent requirement. One such exception is where the

       parent’s consent is irrevocably implied. Under Indiana Code Section 31-19-9-

       18(b), a parent’s consent to adoption is “irrevocably implied” when the parent

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 9 of 14
       “fails to file a motion to contest the adoption … not later than thirty (30) days

       after service of notice” of the adoption. Under those circumstances, the parent

       loses “the right of action and the adoption may not be challenged.” In re

       Adoption of K.M., 31 N.E.3d at 538.


[20]   The thirty-day time limit to contest adoption is triggered by service of the

       adoption notice. Service of process is governed by the Indiana Trial Rules.

       Pursuant to Trial Rules 4.1(A)(3) and 4.12(A), one of the ways to make service

       on an individual is by having the sheriff “leav[e] a copy of the summons and

       complaint at [the] dwelling house or usual place of abode” of the person to be

       served. Proof of such service must be made by return delivered to the trial court

       clerk. Ind. Trial Rule 4.15(A). When service is made in that manner, “the

       person making the service also shall send by first class mail a copy of the

       summons and the complaint to the last known address of the person being

       served, and this fact shall be shown upon the return.” T.R. 4.15(B).

       Technically insufficient service under Trial Rule 4.1(B) may nevertheless be

       sufficient under Trial Rule 4.15(F) if the service is “reasonably calculated to

       inform the person to be served that an action has been instituted against him.”

       See also, LePore v. Norwest Bank Ind., N.A., 860 N.E.2d 632, 636 (Ind. Ct. App.

       2007) (holding, when there is not “a complete lack of compliance with T.R.

       4.1(B)” and there is proof of “substantial compliance,” service may be sufficient

       pursuant to Rule 4.15(F)); Joslyn v. State, 942 N.E.2d 809, 812 (Ind. 2011)

       (holding failure to prove service by mail under Trial Rule 4.1(B) did not render




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 10 of 14
       service insufficient where the person to be served admitted he had received

       actual notice by service delivered by a state agent to his home).


[21]   Here, unlike the situations in the above-cited cases, Mother contends that she

       did not receive notice of the adoption action until sometime in January of 2018.

       She denies that she received the June 20 service by sheriff and that she received

       service purportedly mailed by Adoptive Parents’ counsel on June 26. She notes

       that Adoptive Parents failed to comply with Rule 4.1(B) because they allege

       that mailed service was done by their attorney, not the sheriff who left the

       documents at her dwelling, as the Rule requires.3 However, we could overlook

       that technical defect in service if there was any evidence that the Adoptive

       Parents’ attorney had served Mother by mail – i.e., if there was evidence of

       “substantial compliance” with Trial Rule 4.1(B). See LePore. 860 N.E.2d at 636.

       However, unlike the situation in LePore, there is no such evidence in this case.

       The record does not contain a filed return of service or even a certificate of

       service done by the attorney. There is no affidavit or other verified document

       under which anyone swears to the truth of facts showing service by mail. The

       unverified contention in the Adoptive Parents’ January 16 objection to the

       continuance and their attorney’s unsworn statement to the court at the January

       17 hearing are not “evidence.” See Gajdos v. State, 462 N.E.2d 1017, 1021 (Ind.

       1984); see also Indiana Rule of Evidence 603 (“Before testifying, a witness must




       3
         Mom also notes the sheriff’s return did not state that the sheriff had made service by first class mail, as
       required by the rule. T.R. 4.1(B).

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019                   Page 11 of 14
       give an oath or affirmation to testify truthfully. It must be in a form designed to

       impress that duty on the witness’s conscience.”). And, unlike the case in Joslyn,

       Mother does not admit that she received actual service by sheriff.


[22]   There is no evidence to sustain the trial court’s finding that, after the service by

       sheriff, “the attorney for the Petitioners mailed a copy of the Notice of

       Adoption and the Verified Petition for Adoption to the same address via U.S.

       Mail as required by Trial Rule 4.1(B).” App. Vol. II at 85. Thus, there was

       insufficient evidence to support the trial court’s conclusion that Mother’s

       consent was irrevocably implied when she failed to file a motion to contest the

       adoption by July 20, 2018, i.e., thirty days after service by sheriff. However, as

       we discuss below, we affirm the trial court judgment because the trial court

       correctly held, in the alternative, that Mother’s consent was not required under

       Indiana law.


                                      Consent Not Required
[23]   Indiana Code Section 31-19-9-8(a) contains additional exceptions to the

       requirement that a biological parent provide written consent to an adoption.

       Under that statute, consent to adoption is not required from parents in any one

       of the circumstances listed in subsections (1) through (12). Here, the trial court

       concluded that Mother’s consent to the adoption was not required under several

       of the listed circumstances. However, because the statute is written in the

       disjunctive, “each of the subsections provides an independent ground for

       dispensing with consent.” R.S.P. v. S.S. (“In re Adoption of J.T.A.”), 988 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 12 of 14
       1250, 1254 (Ind. Ct. App. 2013), trans. denied. Although we agree with the trial

       court that there may have been sufficient evidence to conclude that Mother’s

       consent was not required under subsections (a)(2)(A) (failure to communicate

       for at least one year), (a)(2)(B) (failure to provide support for at least one year),

       and (a)(11) (parent unfit and dispensing with consent in child’s best interests),

       we decide only that Mother’s consent was not required because she abandoned

       Child under subsection (a)(1).


[24]   Consent of a parent is not required if she has abandoned or deserted the child

       for at least six months immediately preceding the date of the filing of the

       petition for adoption. I.C. § 31-19-9-8(a)(1). “If 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.” I.C. § 31-19-9-8(b). Abandonment is defined

       as “any conduct by the parent which evinces an intent or settled purpose to

       forgo all parental duties and to relinquish all parental claims to the child.” In re

       Adoption of J.T.A., 988 N.E.2d at 1254 (citation and quotation omitted). Thus,

       in Williams v. Townsend, for example, we held that an occasional letter or card

       sent to a child from an incarcerated parent together with one telephone

       conversation with the child was “token communication” that the trial court

       properly disregarded when it determined the parent had abandoned child. 629

       N.E.2d 252, 254 (Ind. Ct. App. 1994).


[25]   Here, Mother did not even engage in token communication with Child in the

       four years before the Adoptive Parents filed their petition in February of 2018.

       Mother had no contact whatsoever with Child since she left the Child to the

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 13 of 14
       care of strangers on Mother’s Day of 2014. And, even if we conclude that

       Mother’s January 2016 motion to modify the guardianship evinced an intent to

       assert her parental claims to Child, Mother made no attempt to contact Child in

       the over two years since her motion was denied. There is no evidence that

       Mother was prevented by either the courts or Adoptive Parents from having

       contact or communication with Child, and Mother admitted as much. Further,

       the evidence established that Mother, who had a car for transportation, knew

       where Child was living such that she could have gone to that address or at least

       sent some type of correspondence to that address. She did neither. There was

       sufficient evidence to sustain the trial court’s decision that Mother’s consent to

       the adoption was not required because she abandoned Child for at least the six

       months prior to the adoption petition.



                                              Conclusion
[26]   There was insufficient evidence to support the trial court’s conclusion that

       Mother’s consent was irrevocably implied under Indiana Code Section 31-19-9-

       18. However, there was sufficient evidence to support the trial court’s

       alternative holding that, even if Mother’s consent was not implied, her consent

       was not necessary because she abandoned Child for at least six months prior to

       the filing of the adoption petition. I.C. § 31-19-9-8(a)(1). Therefore, we affirm.


[27]   Affirmed.


       Kirsch, J., and Mathias, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1219 | December 10, 2019   Page 14 of 14
