      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                             May 30 2018, 6:26 am
      this Memorandum Decision shall not be                                   CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             Court of Appeals
      court except for the purpose of establishing                             and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Craig Goedde
      Johnson Carroll Norton Kent & Goedde, P.C.
      Evansville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      In re Adoption of A.R.,                                 May 30, 2018

      S.R.,                                                   Court of Appeals Case No.
                                                              82A01-1710-AD-2426
      Appellant-Respondent,
                                                              Appeal from the Vanderburgh
              v.                                              Superior Court
                                                              The Honorable Brett J. Niemeier,
      J.W.,                                                   Judge
                                                              The Honorable Renee Allen
      Appellee-Petitioner.
                                                              Ferguson, Magistrate
                                                              Trial Court Cause No.
                                                              82D04-1505-AD-48



      Mathias, Judge.

[1]   S.R. appeals the trial court’s decree of adoption allowing M.W. to adopt S.R.’s

      minor child, A.R., after concluding that S.R.’s consent to the adoption was not


      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018         Page 1 of 15
      necessary. S.R. argues that the evidence does not support the trial court’s

      conclusion that his consent was not necessary.


[2]   We affirm.


                                 Facts and Procedural History
[3]   A.R. was born to S.R. and J.W. (“Mother”) in February 2002. S.R.’s and

      Mother’s marriage was dissolved in 2008, and they agreed to share physical and

      joint legal custody of A.R. Because they agreed to share physical custody and

      agreed to equally divide A.R.’s expenses, no child support order was issued.


[4]   S.R. was abusive toward Mother during their marriage, and A.R. was often

      present and witnessed the abuse. In 2008, the same year the marriage was

      dissolved, Mother obtained a protective order against S.R. He violated the

      protective order and was convicted of misdemeanor invasion of privacy.


[5]   There was no change to the parties’ agreement until August 2014 when S.R.’s

      parenting time was limited to supervised parenting time through the Parenting

      Time Center. Prior to this date, S.R. had not exercised regular parenting time,

      in part due to an injury suffered in a work-related accident and out-of-state

      employment. During this time, S.R. sporadically communicated with A.R. via

      telephone calls and text messages.


[6]   S.R. initially refused to participate in supervised parenting time. S.R. also failed

      to respond to Mother’s requests for reimbursement of A.R.’s medical and

      school expenses.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 2 of 15
[7]   In April 2015, S.R. filed a petition to modify visitation and child support. On

      May 13, 2015, A.R.’s stepfather, M.W., filed a petition to adopt her.1 The

      petition alleged that S.R.’s consent to the adoption was not necessary. S.R. filed

      a notice to contest the adoption on June 5, 2015. Mother later filed a motion to

      terminate S.R.’s parenting time in the dissolution proceedings.


[8]   On November 19, 2015, the parties agreed to consolidate the adoption

      proceedings with their dissolution proceedings. The hearings on the adoption

      petition were held on September 26 and 27, 2016, October 3, 2016, and January

      11, 2017. The trial court issued findings of fact and conclusions of law on

      March 20, 2017.2 The trial court found:


                 9. On September 22, 2016, Guardian Ad Litem Amy Brandsasse
                 filed a 14 page report concerning the issues at hand, [3]
                 recommending adoption as in the best interests of the minor
                 child. In her report and testimony at the time of trial, she found
                 that child had signed a consent to her adoption, does not have a
                 bond with Father, never had a healthy bond with Father, is
                 fearful of Father due to her experiences with him, and specifically
                 had an “increase in anxiety, poor sleep and nightmares and
                 worrying thoughts” concerning the possibly of seeing Father after
                 two years of not having contact with him. Child’s memories and
                 reasons given were those of her own, some of which Mother was
                 unaware when questioned by the Guardian Ad Litem.




      1
          Mother and M.W. were married in April 2014.
      2
          The trial court adopted J.W.’s proposed findings of fact and conclusions of law on this date.
      3
        The trial court took judicial notice of the guardian ad litem’s report. The report was not included in the
      record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018                 Page 3 of 15
        10. Brandsasse further testified that she found that Mother was
        not influencing the child concerning what to say or think and had
        not found evidence that Mother kept child away from Father.
        Brandsasse further testified that the child expressed her personal
        refusal to speak to Father on the phone consistently, and child
        gave the reason that Father would get angry and yell on the
        phone at her and/or her Mother to the point that others in the
        room could hear his yelling.


        11. Brandsasse found the child to be intelligent, mature for her
        age and consistent in her accountings over the years of therapy
        and currently. Child recounted events regarding domestic
        violence between Mother and Father, and she reported Father
        being repeatedly intoxicated to the point of being unable to
        respond to her or driving with her while intoxicated. The child’s
        information established that Father was not fit to parent.


        12. Brandsasse spoke to the Maternal Grandmother who
        recounted domestic violence between Father and Mother, that
        Father was not attentive to [A.R.]’s needs and not “fatherly,” and
        she witnessed [A.R]’s refusal to speak with or have interaction
        with her Father. Grandmother further became emotional when
        discussing how step-father was so good, loving and kind with
        [A.R.] and the relationship between him, Mother and [A.R.]. She
        described Step-father and [A.R.’s] relationship as “precious.”


        13. Brandsasse reviewed Father’s hospital records which were
        consistent with the angry persona witnessed by the child wherein
        the records reflected his anger towards his own family members
        such that they left the hospital, reporting to the staff why they
        were leaving.


        14. Brandsasse further reported that Father was not truthful in his
        reporting. He contacted the child’s therapist informing her that
        he needed to set up visits through the therapist as his visits at The

Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 4 of 15
        Parenting Time Center had been discontinued which was not
        true.


        15. Father also reported to Brandsasse that he did not have drug
        and alcohol problems and had never been fired from
        employment. In review of his employment records, she found
        that he had been terminated for testing positive for drugs while
        on the job, had been terminated for failing to show for work and
        that employment records document a history of substance abuse
        inconsistent with Father’s assertions.


        16. Father made these same assertions in his depositions
        submitted by the Mother.


        17. Further, Mother submitted the therapist record that shows
        that Father had called the child’s therapist on November 20,
        2015, indicating that Father did have the contact information
        contrary to his pleading on January 22, 2016.


        18. Kathryn Kornblum from the Parenting Time Center testified
        concerning her personal observations and interaction with the
        child and the parties.


        19. Kornblum testified that she received the August 1, 2014 order
        requiring Father’s parenting time to be exercised through the
        Parenting Time Center. Mother had completed her intake on
        August 12, 2014. Kornblum stated that after she spoke with the
        Father, she submitted a Notice to the Court filed on September
        23, 2014 stating that Father had refused their services. At that
        time, the Parenting Time Center had grant monies which would
        have allowed for services to be provided for little to no cost to
        Father due to the domestic violence that had been involved. She
        did not hear from Father again until approximately one year
        from the order with the first visit occurring September 15, 2015
        that lasted one half hour, with another half hour visit on

Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 5 of 15
        September 22, 2015. On September 29, 2015, the child left the
        visit and requested visits be terminated without the Mother being
        present. Kornblum filed her Notice to the Court that prior to
        resuming visits at The Parenting Time Center, the parties would
        need therapeutic visitation.


        20. Kornblum testified that in her interactions with the child, she
        observed that the child had no bond with Father, and further, she
        did not believe Mother to be influencing the child in such a
        manner to alienate the child. She stopped visits based upon the
        child’s reaction to the Father, her conversations with the child
        and her belief that supervised parenting time with the Father was
        not appropriate at this time.


        21. Neither Kornblum nor Brandsasse believed that therapeutic
        parenting time or visitation would necessarily aid in restoring the
        parent-child relationship between the child and Father nor could
        they state it was in the child’s best interests.


        22. On May 16, 2016, law enforcement was called to Father’s
        residence due to his being intoxicated at his home and having a
        gun in his possession. His current girlfriend had reported the
        incident as it was occurring to the police.


        23. Mother testified that Father had not supported [A.R], and she
        had filed Informations for Contempt and Petitions to Modify in
        order to obtain a valid continuing and regular support order and
        to protect [A.R.] from unsafe conditions while in Father’s care.
        She also submitted her filed pleadings consistent with her
        testimony and the dissolution’s chronological case summary.


        24. She further testified that she had been unaware of Father’s
        whereabouts at various times even though she maintained a good
        relationship with Paternal Grandparents. She was unable to get


Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 6 of 15
               good service on the Father. She had been attempting to receive
               child support for multiple years.


               25. Mother submitted Father’s employment records from Penske,
               Gibco, Thornton’s and C.R. England. The addresses on the
               chronological case summaries are consistent with the addresses
               revealed in Father’s employment records.


               26. Step-father testified that Father had come to their home a
               couple of times to visit but had not had contact for a couple years
               until he started calling again after the adoption petition was filed.
               He testified that he had observed [A.R.’s] reactions to her Father
               which were fearful and anxious. Step-father sought to adopt
               [A.R.] because he had been providing for her care as long as they
               had all resided together. He testified that he loved her and
               supported her in her academic and extracurricular activities, and
               they were a family.


      Appellant’s App. Vol. II, pp. 59–63. The trial court concluded that S.R.’s

      consent to the adoption was not required because he failed to communicate

      with A.R. for more than one year, failed to support A.R. for more than one

      year, and that S.R. is unfit to parent A.R.


[9]   For some unknown reason, the decree of adoption was not issued until August

      8. 2017.4 Thereafter, S.R. filed a motion to correct error, which was denied.

      S.R. now appeals.




      4
        Both Judge Niemeier and Magistrate Ferguson signed the findings of facts and conclusions of law which
      concluded that S.R.’s consent to the adoption was not necessary, but only Magistrate Ferguson signed the
      adoption decree. Magistrates “may not enter a final appealable order unless sitting as a judge pro tempore or
      a special judge.” Ind. Code § 33-23-5-8(2). Judge Niemeier and Magistrate Ferguson have repeatedly been

      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018              Page 7 of 15
                                            Standard of Review
[10]   Initially, we observe that Mother and M.W. did not file an appellee’s brief.

       When an appellee does not submit a brief on appeal, we need not undertake the

       burden of developing an argument on his behalf. Trinity Homes, LLC v. Fang,

       848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse if the appellant’s

       brief establishes a case of prima facie error. Id. Prima facie error in this context is

       error “at first sight, on first appearance, or on the face of it.” Id. If the appellant

       is unable to meet this burden, we will affirm. Id.


[11]   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




       advised of the limits on the power of a magistrate. See e.g. In re Adoption of I.B., 32 N.E.3d 1164, 1173 n.6
       (Ind. 2015); In re D.F., 83 N.E.3d 789, 794-95 (Ind. Ct. App. 2017). Because S.R. has not raised an objection
       to the authority of the magistrate in this case, we address his appeal on its merits.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018               Page 8 of 15
       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).


[12]   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), trans. denied. 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
[13]   Indiana Code section 31-19-9-8 provides that consent to adoption is not

       required from


                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 82A01-1710-AD-2426 | May 30, 2018   Page 9 of 15
       The statute also provides that consent is not required from a parent if the

       petitioner “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.” Id. Finally, the statute

       provides that “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.” Id. The statute is written in the disjunctive, and therefore, proof on any

       one of the statutory grounds for dispensing with consent is sufficient to support

       the granting of an adoption petition. In re Adoption of M.L., 973 N.E.2d 1216,

       1222 (Ind. Ct. App. 2012).


[14]   Ultimately, the primary concern in every adoption proceeding is the best

       interests of the child. Id. at 1224. 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).


[15]   S.R. argues that the trial court erred when it concluded that his consent to the

       adoption was not required. He contends that he never failed to communicate

       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 10 of 15
       with S.R., but that his attempts at communication were thwarted by Mother.

       He claims that he supported A.R. by reimbursing Mother for school, medical

       and extracurricular expenses when he was able to do so. Finally, S.R. argues

       that Mother and M.W. failed to prove that he is an unfit parent and that the

       adoption is in A.R.’s best interests. Although the statute is written in the

       disjunctive, we will address whether sufficient evidence supports the three

       statutory prongs at issue in this appeal.


       A. Communication

[16]   The test for communication is not whether the noncustodial parent had no

       communication with the child, but whether he failed without justifiable cause to

       have significant communication when able to do so. In re Adoption of S.W., 979

       N.E.2d 633, 640 (Ind. Ct. App. 2012). “[T]he purpose of this statutory

       provision is to foster and maintain communication between non-custodial

       parents and their children, not to provide a means for parents to maintain just

       enough contact to thwart potential adoptive parents’ efforts to provide a settled

       environment to the child.” Id.


[17]   In August 2014, the trial court ordered S.R. to exercise his parenting time

       through the Parenting Time Center. S.R. notified the Center that he did not

       intend to use their services. S.R. did not exercise parenting time with A.R. for

       over a year because he refused comply with court-ordered supervised visitation.

       S.R. did not have a justifiable reason for his refusal to exercise parenting time at

       the Parenting Time Center. See Appellant’s App. p. 65.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 11 of 15
[18]   Approximately one year after the court ordered supervised parenting time and

       after M.W. filed a petition to adopt A.R., S.R. agreed to participate in

       supervised parenting time. In September 2015, S.R. and A.R. had three visits at

       the Parenting Time Center. The third visit ended after just five minutes because

       A.R. did not want to visit with S.R. A.R. was anxious and felt sick to her

       stomach, and she asked to leave. S.R. has not seen A.R. since that last brief

       supervised visit.

[19]   S.R. occasionally sent texts and made phone calls to A.R., but S.R. did not

       communicate with A.R. at all during her fifth-grade school year. At some point,

       A.R.’s phone number changed, and S.R. was not provided with A.R.’s phone

       number. S.R. sporadically texted or called Mother when he wanted to speak to

       A.R. A.R. refused to speak with S.R.


[20]   S.R. argues that Mother thwarted his attempts to communicate with A.R. But

       S.R. refused to participate in visitation with A.R. for approximately one year,

       and he did not communicate with A.R. during her fifth-grade school year.

       When S.R. called to speak with A.R., if A.R. was available, she was given the

       option to speak to S.R. but refused. Moreover, S.R.’s attempts to communicate

       with A.R. resumed and were more frequent after M.W. filed his petition to

       adopt A.R. For all of these reasons, we conclude that the trial court’s finding

       that, for at least a period of one year, S.R. failed without justifiable cause to

       communicate significantly with A.R. when he was able to do so, is supported by

       the evidence.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 12 of 15
       B. Support

[21]   Next, we address S.R.’s argument that the evidence was insufficient to establish

       that he supported A.R. Aside from a period of time when S.R. was injured, S.R.

       was employed, and his employment records were admitted into evidence. A

       child support order was never issued in the parties’ dissolution proceedings, but

       the parties agreed to equally share expenses because they had joint custody of

       A.R.


[22]   Indiana law imposes a duty upon a parent to support his child. In re M.A.S., 815

       N.E.2d at 220. “This duty exists apart from any court order or statute.” Id. It is

       well-settled that parents have a common law duty to support their children, and

       the lack of a court order did not relieve S.R. of that obligation. See In re Adoption

       of M.B., 944 N.E.2d 73, 77 (Ind. Ct. App. 2011).


[23]   Mother filed a petition to modify support in 2011 but was unable to serve S.R.

       with the petition, and it was dismissed. In 2014, she filed a second petition to

       modify support. S.R. agreed to pay all of A.R.’s education expenses and $110

       per month for A.R.’s medical expenses.


[24]   Mother requested reimbursement for these expenses, but S.R. did not reimburse

       Mother as agreed. The parties entered into mediation after the adoption petition

       was filed, and S.R. eventually agreed to pay approximately $800 to reimburse

       Mother for educational and medical expenses. S.R. occasionally deposited

       money in A.R.’s lunch account and bought her a few clothing items over the

       years. But generally in the last several years, S.R. has provided minimal


       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 13 of 15
       financial support for A.R. despite his ability to do so, and he failed to support

       A.R. for over a year prior to paying the mediated amount after the adoption

       petition was filed.


       C. Unfit Parent

[25]   Finally, we address S.R.’s fitness to parent A.R. During the marriage, S.R.

       abused Mother in A.R.’s presence, traumatizing A.R. S.R. refuses to

       acknowledge how his actions affected A.R. even though A.R. has been in

       therapy on multiple occasions, in part, to address the issue.


[26]   Also, S.R. was often intoxicated in A.R.’s presence and has driven with A.R. in

       the vehicle after drinking alcohol. Just prior to the adoption hearings, S.R.’s

       girlfriend called 911 because S.R. was drinking alcohol and had a gun he was

       not allowed to possess. S.R. refused to acknowledge any issue with alcohol or

       drugs despite the fact that he was fired from one of his jobs because he failed a

       drug test. S.R. denies any drug use even when faced with evidence that he failed

       a drug test.


[27]   S.R. has anger management issues. Moreover, A.R. fears S.R. because of the

       abuse she witnessed. S.R. often yelled at A.R during their sporadic telephone

       conversations. When A.R. was told that S.R. might attend her eighth-grade

       graduation, she refused to attend. S.R. also did not communicate with A.R.

       either in person or via telephone for significant lengths of time. A.R. does not

       have a bond with S.R.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 14 of 15
[28]   For all of these reasons, we agree with the trial court’s conclusion that S.R. is

       unfit to parent A.R. Moreover, adoption is in A.R.’s best interests. A.R. is not

       bonded with S.R. and fears him. A.R. and her stepfather, M.W., have a loving

       relationship, and M.W. has provided support for A.R. since his marriage to

       Mother.


                                                Conclusion
[29]   M.W. proved that S.R. failed to significantly communicate with A.R. or

       support A.R. for at least one year, and that S.R. is not fit to parent A.R. M.W.

       also proved that adoption was in A.R.’s best interests. We therefore affirm the

       trial court’s finding that S.R.’s consent to the adoption was unnecessary and

       affirm the adoption decree.


[30]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-AD-2426 | May 30, 2018   Page 15 of 15
