MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 16 2017, 8:39 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                                  ATTORNEY FOR APPELLEE
Jeffery A. Earl                                         Karen Celestino-Horseman
Danville, Indiana                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re Adoption of C.H. and H.H.,                        May 16, 2017

S.S.,                                                   Court of Appeals Case No.
                                                        32A01-1607-AD-1599
Appellant,
                                                        Appeal from the Hendricks
        v.                                              Superior Court
                                                        The Honorable Robert W. Freese,
J.N. and Z.N.,                                          Judge
                                                        Trial Court Cause No.
Appellees-Interveners
                                                        32D01-1512-AD-32



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017     Page 1 of 7
[1]   S.S. (Mother) appeals the trial court’s order finding that her consent to the

      adoption of her children by J.N. and Z.N. (collectively, Adoptive Parents) was

      not required and granting the Adoptive Parents’ petition to adopt the children.

      Mother argues that the evidence is insufficient to make the requisite statutory

      showing that her consent is not required. Finding the evidence sufficient, we

      affirm.


                                                       Facts
[2]   Mother and A.H. (Father) were never married. C.H. was born to the couple on

      November 3, 2005, and H.H. was born to the couple on December 28, 2006. 1

      At some point, Mother and Father became estranged and have lived separate

      lives for years.


[3]   Over the years, Mother and all of her children have been involved with the

      Department of Child Services in Putnam, Monroe, Morgan, Marion, and

      Hendricks Counties. The most recent encounter occurred in 2010, when

      Mother was convicted of neglect of a dependent and the children were placed

      with Father. Since that time, Mother has had only supervised visitation with

      the children and has never sought to have that changed. In addition to ordering

      that the children be placed with Father, the trial court ordered that Mother was




      1
       Mother has two other children by a different father; both of those children have been adopted with Mother’s
      consent.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017              Page 2 of 7
      to pay $77 per week in child support. She has never paid child support

      pursuant to that order.


[4]   Mother states that she suffers from bipolar disorder, anxiety, and depression.

      Her bipolar disorder is untreated because she refuses to take medication;

      instead, she was self-medicating with marijuana. Mother also has a history of

      alcoholism and drug use. She has been required to submit to drug tests as a

      condition of probation for various criminal convictions. 2 In 2013, she failed to

      report twice and tested positive for THC twice; in 2014, she failed to report

      three times, tested positive for THC five times, and tested positive for

      methamphetamine on one occasion; in 2015, she failed to report nine times and

      tested positive for THC three times.


[5]   In January 2014, Father died. The children had lived with Father and his uncle

      since August 2010. Throughout those years, Mother visited the children only

      sporadically. The children maintained a regular relationship with Adoptive

      Parents; J.N. is their godmother. She saw the children regularly, helped them

      with homework, and celebrated holidays and birthdays with them. The

      children also maintained a regular relationship with P.S. (Aunt), Mother’s

      sister. After Father’s death, Aunt and Adoptive Parents filed competing

      motions for third-party custody of the children in the paternity case. The

      paternity court awarded temporary primary custody of the children to Aunt,




      2
          Mother has been convicted of neglect of a dependent, prostitution, and theft.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017   Page 3 of 7
      awarded visitation to Adoptive Parents, and awarded supervised parenting time

      to Mother. Mother has seen the children on a regular basis since they have

      been placed with Aunt. The children are bonded to Aunt and to Adoptive

      Parents.


[6]   Aunt has three children of her own, two of whom have serious medical issues.

      Aunt has been diagnosed with post-traumatic stress disorder and panic disorder

      with agoraphobia. She suffers from regular panic attacks and is not currently

      receiving treatment for her diagnoses.


[7]   In December 2015, Aunt and the Adoptive Parents filed competing petitions to

      adopt the children. The trial court consolidated the two petitions into one

      cause.3 The trial court held an evidentiary hearing from May 16 through May

      20, 2016. On June 16, 2016, the trial court issued a thorough and detailed order

      granting the Adoptive Parents’ petition, denying Aunt’s petition, and finding

      that Mother’s consent to the adoption is not required. Mother now appeals.


                                     Discussion and Decision
[8]   When we review a 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

      court reached an opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216,

      1222 (Ind. Ct. App. 2012). On appeal, we will not reweigh the evidence,




      3
        Other ongoing cases in other counties related to custody and guardianship of the children were also
      transferred to the trial court in the underlying case.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017               Page 4 of 7
      instead focusing on the evidence and inferences most favorable to the trial

      court’s decision. Id. We generally give considerable deference to a trial court’s

      rulings in family law matters, “as we recognize that the trial judge is in the best

      position to judge the facts, determine witness credibility, get a feel for family

      dynamics, and get a sense of the parents and their relationship with their

      children.” Id.


[9]   As a general matter, the parent of a child must consent to the adoption of the

      child by a third party. Ind. Code § 31-19-9-1. Indiana Code section 31-19-9-

      8(a) provides multiple exceptions to the general rule. Relevant to this case are

      the following exceptions:

              Consent to adoption, which may be required under section 1 of
              this chapter, is not required from any of the following:


                                                      ***


              (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.


                                                          ***



      Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017   Page 5 of 7
               (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


                       (B)      the best interests of the child sought to be adopted
                                would be served if the court dispensed with the
                                parent’s consent.


       I.C. § 31-19-9-8. Here, the trial court found Mother’s consent was not required

       for all three reasons: she failed without justifiable cause to communicate with

       the children when able to do so; she knowingly failed to provide for their care

       and support when able to do so as required by judicial degree; and she was unfit

       to be a parent.


[10]   Although Mother focuses primarily on the finding regarding her financial

       support of the children, we elect to turn, instead, to the trial court’s findings

       regarding her fitness as a parent:

               As [Mother] herself has admitted, she is unable to care for or
               provide for her children. Further, she has admitted to years of
               substance abuse, untreated mental health disorders, and, as the
               evidence showed, a history of bad judgment regarding her
               children and instability in housing and employment. The Court
               finds that the [Adoptive Parents] have proven by clear and
               convincing evidence that [Mother’s] consent to the adoption is
               not required pursuant to I.C. 31-19-9-8(a)(11)(A)-(B). The Court
               notes that just two days before this trial began, [Mother’s]
               boyfriend was charged with committing domestic abuse in the
               home they shared and in front of the child which [Mother] was
               babysitting.
       Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017   Page 6 of 7
       Appellant’s App. p. 25. The trial court later found that it is in the children’s

       best interests to be placed with and adopted by the Adoptive Parents. Id. at 27-

       28. We find a wealth of evidence in the record supporting the trial court’s

       conclusion that the Adoptive Parents proved by clear and convincing evidence

       that Mother is unfit and its implicit conclusion4 that it is in the children’s best

       interests for Mother’s consent to be dispensed with so that they can be adopted

       by Adoptive Parents.


[11]   Mother also argues, without elaboration, that because she consented to the

       adoption of the children by Aunt, the trial court should have granted Aunt’s

       petition and denied that of the Adoptive Parents. As already noted, however,

       Mother’s consent was not required. And in any event, Aunt has not appealed

       the denial of her petition to adopt the children, and Mother may not appeal on

       her behalf. Consequently, this argument is unavailing.


[12]   The judgment of the trial court is affirmed.


       Robb, J., and Barnes, J., concur.




       4
         Mother argues that because the trial court did not explicitly state that it was in the children’s best interests
       for her consent to be dispensed with, this finding cannot stand. We disagree. The trial court cited to both
       subsections of the statute, finding that both elements had been proved by clear and convincing evidence.
       Furthermore, by finding that it was in the children’s best interests to be adopted by Adoptive Parents, to
       which Mother did not consent, it implicitly also found that it was in their best interests to dispense with her
       consent.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1607-AD-1599 | May 16, 2017                     Page 7 of 7
