                                                                            FILED
                                                                       Sep 23 2016, 9:32 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Thomas C. Allen                                           Timothy E. Stucky
Fort Wayne, Indiana                                       Stucky, Lauer & Young, LLP
                                                          Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Adoption of:                                   September 23, 2016
J.S.S. and K.N.S.,                                        Court of Appeals Case No.
                                                          02A04-1603-AD-545
Rayburn and Beth Robinson,
                                                          Appeal from the Allen Superior
Appellants,                                               Court
        v.                                                The Honorable Charles F. Pratt,
                                                          Judge
M.R.S.,                                                   Trial Court Cause No.
                                                          02D08-1406-AD-86 and 87
Appellee.




Bailey, Judge.




Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016                    Page 1 of 10
                                             Case Summary
[1]   B.R. and R.R. (“Foster Parents”) petitioned to adopt J.S.S. and K.N.S.

      (“Children”) without the consent of M.S. (“Father”). 1 The trial court found

      Foster Parents had not established the clear and convincing evidence necessary

      to dispense with parental consent and Foster Parents filed a motion to correct

      error, which was substantively denied. Appealing a negative judgment, Foster

      Parents present a sole issue: whether the trial court’s decision is contrary to

      law. We affirm.



                               Facts and Procedural History
[2]   K.N.S. was born in 2006 and J.S.S. was born in 2008. Father and Mother

      separated in 2008 but were not divorced until several years later. Mother

      moved away without informing Father of Children’s location, and apparently

      led Children to believe that her boyfriend was their biological father.


[3]   In 2009, Mother was incarcerated, but Father was not informed as to where

      Children were living. In 2010, Father was incarcerated. After his release from

      incarceration, he became aware that Mother and Children were residing in Fort

      Wayne, Indiana, but he did not have an address. Father moved to North

      Vernon, Indiana.




      1
          K.S. (“Mother”) consented to adoption by Foster Parents.


      Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 2 of 10
[4]   In mid-November of 2012, an Allen County Department of Child Services

      (“DCS”) caseworker informed Father that Children were in DCS custody.

      Father appeared for an initial Child in Need of Services (“CHINS”) hearing on

      November 26, 2012. The CHINS court found that Father was paying child

      support but had not seen Children since 2009. The court entered an order

      regarding visitation:


              Visitation with the parents shall occur only upon the
              recommendation of the children’s therapist, Dr. Mihlbauer, the
              Department of Child Services and the Guardian Ad Litem.
              Upon recommendation visitation shall be supervised therapeutic
              visitation until further order of the Court.


      (App. at 24.)


[5]   On January 22, 2013, the CHINS court entered an order providing in relevant

      part: “The Court now orders that [Father] shall have no visitation with

      [Children] as visitation would be contrary to the best interests of the children.”

      (App. at 29.) On August 12, 2013, the CHINS court ordered that Father was to

      have supervised visitation “as recommended by the children’s

      psychologist/therapist.” (App. at 56-57.)


[6]   On September 30, 2013, the CHINS court entered a permanency plan order

      contemplating a return of custody to Father and providing in part:

              The modification of custody is subject to the development of a
              relationship with his children; meeting the children’s therapist;
              and the father securing safe, sustainable and independent
              housing.

      Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 3 of 10
      (App. at 60.)


[7]   On March 24, 2014, the CHINS court conducted a review hearing and entered

      an order stating in part:


              The court reminds the parties of this Court’s Order of September
              30, 2013, in which the father was ordered to meet with the
              children’s therapist. To date that has not been done. As reported
              by the guardian ad litem the children do not yet know the
              Respondent. He has not had contact with them for over four
              years. Thus, the children, having experienced trauma, must be
              given therapeutic introduction to the children [sic] before any
              further modification of placement can occur.


      (App. at 66.)


[8]   Father contacted Dr. Mihlbauer in April of 2014. A supervised visit was

      scheduled for June 26, 2014. However, on June 25, 2014, a permanency

      hearing was conducted at which Dr. Mihlbauer provided a recommendation of

      no visitation. At the conclusion of the hearing, the court ordered that Father

      have no visitation. The permanency plan changed from reunification to

      termination of parental rights and DCS was authorized to petition for such.


[9]   On June 25, 2014, during the pendency of the CHINS proceedings, Foster

      Parents petitioned to adopt Children and Mother consented to the adoption.

      On September 30, 2014, Father filed his objections to the adoptions. After a

      contested hearing, the trial court determined that Foster Parents had failed to

      establish by clear and convincing evidence that Father’s consent was

      unnecessary. The petitions for adoption were dismissed. Foster Parents filed a

      Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 4 of 10
       motion to correct error. After a hearing, the trial court corrected scrivener’s

       error but denied the motion to correct error in substance. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[10]   Indiana Code Section 31-19-9-8(a)(2) obviates the necessity of consent to

       adoption by a parent who, for at least one year, has failed to communicate

       significantly with his or her child, when able to do so. Foster Parents were

       required to prove by clear and convincing evidence that Father’ consent was not

       required. In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006).

       Where a party has the burden of proof and an adverse judgment is entered, if

       the party pursues an appeal, he or she does so from a negative judgment. J.W.

       v. Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 481 (Ind. Ct. App.

       1998). A party appealing from a negative judgment must show that the

       evidence points unerringly to a conclusion different from that reached by the

       trier of fact. Id. at 481-82. We will reverse a negative judgment only if the

       decision of the trial court is contrary to law. Id. at 482. In determining whether

       a negative judgment is contrary to law, we do not reweigh the evidence but will

       examine the evidence most favorable to the prevailing party together with

       reasonable inferences drawn therefrom. Id.


[11]   Similarly, in decisions relating to adoption, we will presume the trial court’s

       decision is correct. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). In


       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 5 of 10
       other words, we will not disturb the court’s ruling unless the evidence leads to

       but one conclusion and the trial judge reached the opposite conclusion. Id.


                                                    Analysis
[12]   Indiana Code Section 31-19-9-8(a) provides that consent to adoption is not

       required from:


               (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.

       Because Father contested the adoptions, Foster Parents as the petitioners were

       required to prove by clear and convincing evidence that Father’s consent was

       not required. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010),

       trans. denied; In re Adoption of M.A.S., 815 N.E.2d 216, 219 (Ind. Ct. App. 2004).

       The provisions of Indiana Code Section 31-19-9-8(a) are disjunctive; as such,

       either provides independent grounds for dispensing with parental consent. In re

       Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Regardless of which provision

       is relied upon, adoption is to be granted only if it is in the best interests of the

       child. Id. at 974. Here, Father regularly paid child support for Children.

       Accordingly, Foster Parents alleged that consent was not required solely on

       grounds of failure to communicate significantly when able to do so.




       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 6 of 10
[13]   Foster Parents acknowledge that Children did not know Father and that Father

       could not communicate with Children while court orders prohibited the

       contact. However, Foster Parents insist that Father could have had visitation

       had he acted more promptly to contact Children’s therapist. They direct our

       attention to In re O.R., where our Indiana Supreme Court affirmed an order

       dispensing with a father’s consent to adoption. The father, incarcerated on a

       domestic battery conviction, claimed that he had justifiable cause when he

       failed to communicate with his child because the foster parents did not honor

       his request to bring the child to the prison for visitation. 16 N.E.3d at 974. At

       the time visitation was denied, the protective order was in effect. After its

       expiration, the father did not pursue mail communication with O.R. through

       the court or through petitioners’ counsel. Id. On appeal, the Court reviewed

       the evidence and concluded: “These facts do not demonstrate that Father was

       unable to communicate with O.R., but only that he chose not to investigate

       reasonable means of doing so.” Id.


[14]   According to Foster Parents:


               In O.R. the Petitioners were relieved of their obligation to show
               that the father was able to communicate with the child because
               he made no attempts to even try to communicate with the child.
               That is exactly what happened in the case at bar. The father’s
               one and only means of maintaining significant contact was to
               contact the therapist to begin introductory therapy with the
               children.




       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 7 of 10
       Appellants’ Br. at 14. We do not read the O.R. decision so broadly. The

       petitioners were not relieved of a burden of proof. Rather, the Court found that

       they had presented sufficient evidence:

               Based on the record before us there was clear and convincing
               evidence before the trial court that while O.R. was “in the
               custody of another person [and] for a period of at least one (1)
               year [Father] … fail[ed] without justifiable cause to communicate
               significantly with [O.R.] when able to do so.”


       In re O.R., 16 N.E.3d at 974. Here, by contrast, the trial court found that Foster

       Parents had not met their burden of proof. We will not disturb the ruling unless

       all the evidence leads to a contrary conclusion.


[15]   The evidence most favorable to the trial court’s determination is that Father

       never gained the ability to contact Children. He did not know where Children

       were living until a DCS caseworker contacted him. Although Father appeared

       at hearings in the CHINS matter, he was not provided access to Children. He

       was afforded a potential route to visitation, but no onus was upon the therapist

       to authorize visitation even after contact. Indeed, after contact was made, the

       therapist did not recommend visitation.


[16]   DCS caseworker Dwila Lewis-Hess testified:


               Question: And what was the Court’s orders as far as visitation?


               Lewis-Hess: The initial order, the Department recommended
               supervised visitation with [Father.]


       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 8 of 10
               Question: And through what department was that supervised
               visitation?


               Lewis-Hess: I can’t remember, to be honest with you. I don’t
               think – a referral was actually never made for visitation.


       (Tr. at 34.)


[17]   Based upon their assumption that Father delayed for one and one-half years,2

       Foster Parents argue that Father should be held accountable for a lack of

       diligence. However, our review is not one of whether a parent acted promptly

       or reasonably. Foster Parents were required to show, by clear and convincing

       evidence, Father failed to communicate “when able to do so.” I.C. § 31-19-9-8.

       Our review is limited to whether there was any evidence of record to support

       the trial court’s determination that Foster Parents failed to establish that Father

       had such ability. J.W., 697 N.E.2d at 481. CHINS orders and caseworker

       testimony support the trial court’s order.




       2
        This assumption highlights caseworker testimony most favorable to Foster Parents, asserting that Father
       delayed from November 2012 to April 2014. However, the time lapse between the September 30, 2013 order
       and the April 2014 contact is less than seven months.

       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016                 Page 9 of 10
                                                Conclusion
[18]   The trial court did not clearly err in determining that Foster Parents failed to

       meet their burden of proof to obviate the necessity of Father’s consent to the

       proposed adoptions.


[19]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 02A04-1603-AD-545 | September 23, 2016   Page 10 of 10
