MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                    FILED
regarded as precedent or cited before any                                           Aug 14 2020, 8:15 am

court except for the purpose of establishing                                             CLERK
the defense of res judicata, collateral                                              Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Casandra L. Ringlespaugh                                 Charles P. Rice
Emswiller, Williams, Noland &                            Murphy Rice, LLP
Clarke, LLC                                              South Bend, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Adoption of S.M.:                                 August 14, 2020

S.D.,                                                    Court of Appeals Case No.
                                                         20A-AD-249
Appellant-Respondent,
                                                         Appeal from the Hamilton
        v.                                               Superior Court
                                                         The Honorable Michael A. Casati,
K.W. and S.W.,                                           Judge
                                                         Trial Court Cause No.
Appellees-Petitioners
                                                         29D01-1804-AD-539



Baker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020         Page 1 of 15
[1]   S.D. (Mother) appeals the trial court’s order granting K.W. and S.W.’s

      (Adoptive Parents) petition to adopt S.M. (Child). Mother argues that the trial

      court erred by finding that (1) her consent to the adoption was not required,

      (2) consent of the Department of Child Services (DCS) to the adoption was not

      required, and (3) granting the adoption petition was in Child’s best interests.

      Finding no error, we affirm.


                                                         Facts
[2]   Child was born in February 2016.1 When Child was four months old, he was

      found to be a child in need of services (CHINS) because of, among other things,

      Mother’s substance abuse. That CHINS case was still open and ongoing at the

      time of the adoption proceedings over three years later. The Adoptive Parents

      are Child’s foster parents in the CHINS case, and he has been placed with them

      since May 2017, when he was removed from Mother’s care and custody

      because of her continuing substance abuse, among other things.


[3]   Mother claims that after Child was removed in May 2017, she had some visits

      with him.2 The trial court, however, found that testimony to be not credible

      given her heavy drug use and the absence of any corroborating testimony or

      evidence. Mother admitted that she was high on methamphetamine during that

      time. Therefore, the trial court found that even if the visits did occur, they did



      1
       Child’s biological father also filed a motion to contest the adoption, but his motion was dismissed with
      prejudice and he is not a party to this appeal.
      2
          She also testified, however, that she “hadn’t seen him” between May and October 2017. Tr. Vol. II p. 167.


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020                    Page 2 of 15
      not qualify as “sufficient communication” pursuant to the relevant statute.

      Appealed Order p. 3.


[4]   From May 2017 through November 2017, Mother used methamphetamine on a

      daily basis. In October 2017, Mother was jailed briefly in Warren County for

      charges of possession of methamphetamine, marijuana, and drug

      paraphernalia, and operating a vehicle while intoxicated, endangering a person;

      she later pleaded guilty as charged. In November 2017, Mother was arrested

      again, this time in Montgomery County, for charges of driving while

      suspended; possession of methamphetamine, marijuana, and drug

      paraphernalia; and two counts of possession of a controlled substance. She

      remained incarcerated for four months and ultimately pleaded guilty to

      possession of marijuana and two counts of possession of a controlled substance.


[5]   After Mother’s incarceration in November 2017, the CHINS court suspended

      Mother’s visits because of her drug use, incarceration, and failure to comply

      with the directives of the CHINS case. Consequently, Mother had no visits

      with Child while she was incarcerated (from November 2017 to March 2018) or

      from the time of her release from jail (March 2018) until February 2019.


[6]   When Child was first placed with Adoptive Parents in May 2017, he was non-

      verbal and withdrawn. Since that time, however, he has thrived and is now a

      confident and adventurous child. He is strongly bonded to Adoptive Parents

      and their two daughters, who are near Child’s age.




      Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 3 of 15
[7]   On April 17, 2018, Adoptive Parents filed a petition to adopt Child, later

      amending the petition to allege that the consent of Child’s biological parents

      was not required because they had failed to communicate significantly with or

      support Child. Mother filed a motion to contest the adoption in February 2019.

      DCS has never appeared in the adoption proceedings, did not file a motion to

      contest the adoption, and took a neutral position in the case. DCS did,

      however, indicate that if the trial court determined that Mother’s consent was

      not required, DCS would agree that remaining with Adoptive Parents would be

      in Child’s best interests.


[8]   On December 10, 2019, the trial court held an evidentiary hearing on the

      adoption petition. On January 6, 2020, the trial court entered an order finding

      that Mother’s consent to the adoption was not required and granting the

      adoption petition. In pertinent part, the order states as follows:


              36.     There was no reliable evidence of any communication or
                      attempted communication between [Mother] and [Child]
                      from May 18, 2017 through March, 2018, aside from
                      [Mother’s] uncorroborated self-serving testimony of having
                      supervised visits (which were undocumented). Even
                      [Mother] did not claim that she called, face-timed or wrote
                      letters to [Child] during the period from May of 2017
                      through October 2018.


              37.     There was no evidence that [Adoptive Parents] have ever
                      made any efforts to thwart communication by [Mother]
                      with [Child].


                                                      ***

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 4 of 15
        39.     The only person who impeded [Mother’s] ability to
                communicate with [Child] was [Mother] herself by her
                repeated actions and repeated noncompliance (even after
                her release from incarceration when she represented that
                she wanted visitation but continued to be non-compliant)
                with the directives of DCS and the CHINS court.


        40.     [Mother] has asserted that her inability to visit with [Child]
                was due to the rulings in the CHINS Court, and not due to
                her own election. [Mother] fails to understand and take
                responsibility for the fact that the rulings in the CHINS
                Court were due to [Mother’s] own actions and decisions.


                                                ***


        53.     The best interests of [Child] would be served if the Court
                dispensed with [Mother’s] consent.


                                                ***


        71.     [Mother] accepted the time [Child] was placed with the
                [Adoptive Parents] as a holiday from parental
                responsibilities. She would like to be excused from
                parental duties, yet retain the rights and benefits of
                parenthood. . . .


                                                ***


        73.     [Adoptive Parents] have proven by clear and convincing
                evidence that [Mother] has failed to significantly
                communicate and failed to support [Child] for a period of
                at least one year. The evidence establishes that [Mother’s]
                communications with [Child] fall[] short of “significant’
                and instead amount[] to mere “token efforts.” The

Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 5 of 15
                      evidence also establishes that [Mother] knowingly failed to
                      provide support for [Child] when able to do so when
                      required by law. Accordingly . . . , [Mother’s] consent is
                      not required.


              74.     [Adoptive Parents] have also proven by clear and
                      convincing evidence that granting the adoption is in
                      [Child’s] best interest.


              75.     The Court dispenses with DCS’s written consent to the
                      Adoption as it is clear (1) that DCS does not contest the
                      adoption and (2) in light of DCS’s position that, in the
                      event that the consent of [Mother] was not required, then
                      DCS would agree that the adoption was in the best
                      interests of [Child], then the Court concludes that,
                      pursuant to IC 31-19-9-8(a)(10) DCS has failed to consent
                      to the adoption for reasons found by the court not to be in
                      the best interests of the child.


      Appealed Order p. 6-12. Mother now appeals.


                                   Discussion and Decision
[9]   Mother makes the following arguments on appeal: (1) the trial court erred by

      finding that Adoptive Parents proved by clear and convincing evidence that her

      consent was not required because she had failed without justifiable cause to

      communicate with Child when able to do so for at least one year; (2) the trial




      Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 6 of 15
       court erred by dispensing with DCS’s consent; and (3) the trial court erred by

       finding that adoption is in Child’s best interests. 3


[10]   Our standard of review in adoption proceedings is well established:


                In family law matters, we generally give considerable deference
                to the trial court’s decision 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.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind.
                2005). Accordingly, when reviewing an adoption case, we
                presume that the trial court’s decision is correct, and the
                appellant bears the burden of rebutting this presumption. In re
                Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014).


                The trial court’s findings and judgment will be set aside only if
                they are clearly erroneous. In re Paternity of K.I., 903 N.E.2d
                453, 457 (Ind. 2009). “A judgment is clearly erroneous when
                there is no evidence supporting the findings or the findings fail to
                support the judgment.” Id. We will not reweigh evidence or
                assess the credibility of witnesses. In re Adoption of O.R., 16
                N.E.3d at 973. Rather, we examine the evidence in the light
                most favorable to the trial court’s decision. Id.




       3
         Mother also argues that the trial court erred by admitting Exhibit 5 into evidence, which is DCS’s case file
       on Child’s CHINS case. We find that even if there was error with respect to this exhibit, the error was
       harmless because the relevant evidence in the file is cumulative of other evidence in the record. Specifically,
       the transcript is replete with evidence of Mother’s drug use (including her own admissions of the same) and
       noncompliance with the CHINS case directives. Furthermore, Mother makes no argument that the
       admission of Exhibit 5 in any way affected her substantial rights. See Sibbing v. Cave, 922 N.E.2d 594, 598
       (Ind. 2010) (holding that any errors in the admission of evidence are harmless “unless they affect the
       substantial rights of a party”) (internal quotation marks removed). We see no evidence that the trial court
       relied in significant part on this exhibit, nor did we in reaching our decision herein. Consequently, we
       decline to reverse on this basis.

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020                     Page 7 of 15
       In re Adoption of E.B.F., 93 N.E.3d 759, 762 (Ind. 2018).


                                        I. Mother’s Consent
[11]   As a general matter, an adoption petition may only be granted if (among other

       things) written consent to the adoption has been executed by the child’s mother

       and each agency having lawful custody of the child. Ind. Code § 31-19-9-1(a).

       There are exceptions to the consent requirement, however. Relevant to this

       case is a provision stating 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[.]” I.C. § 31-19-9-8(a)(2)(A). Additionally,

       consent is not required from a legal guardian or lawful custodian (such as DCS)

       “who has failed to consent to the adoption for reasons found by the court not to

       be in the best interests of the child.” Id. at -8(a)(10).


[12]   First, the trial court found that Mother had failed, without justifiable cause, to

       communicate significantly with Child when able to do so for a period of at least

       one year. “[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.’” In re

       Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012) (quoting In re

       Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999)).




       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 8 of 15
[13]   There is some dispute about the period between May and November 2017.

       Mother claims that she had some visits with Child during those months (though

       she also testified that she did not see him during that time). But there is no

       credible corroborating evidence of these claims—which is especially telling

       given that Mother’s visits were supervised—and the trial court found her

       testimony regarding these visits to be not credible. We will not second-guess

       the trial court in this regard.


[14]   In any event, the evidence in the record unquestionably shows that Mother had

       no visits with Child from November 2017 through early 2019—a period totaling

       approximately fifteen months. Tr. Vol. II p. 35 (Family Case Manager

       testifying that from November 2017 through some point in 2019 there was no

       visitation), 66-67 (Mother testifying that she had no visits with Child while she

       was incarcerated beginning in November 2017), 145 (Mother testifying that she

       did not start visiting with Child again after her release from incarceration until

       February 2019). Moreover, there is no evidence in the record that Mother had

       any other significant communication with Child during this period of time

       (such as phone calls, video calls, or cards or letters). This evidence establishes

       that Mother failed to communicate with child for at least one year.


[15]   Mother argues, however, that she was not able to communicate with Child

       during that time because the CHINS court had suspended her visits. As the

       trial court noted, however, it was Mother’s own choices and behavior that

       caused her visits to be suspended. Specifically, her visits were suspended

       “because of her drug use, subsequent incarceration and subsequent repeated

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 9 of 15
       failures to comply with the directives of DCS and the CHINS court.” Appealed

       Order p. 4. As the trial court observed, “[t]he only person who impeded

       [Mother’s] ability to communicate with [Child] was [Mother] herself[.]” Id. at

       7.


[16]   Therefore, although strictly speaking, Mother was not able to visit4 with Child

       while her visits were suspended, it was her own choices and behavior that led to

       that suspension. In other words, she was in control. Had she made different

       choices, she would have been able to continue to visit with Child. Therefore,

       we find that the trial court did not err by finding that Mother failed to

       communicate significantly with Child when able to do so for at least one year.5


[17]   As to whether Mother had justifiable cause for the lack of communication, she

       directs our attention to E.B.F., 93 N.E.3d 759. The trial court found E.B.F. to

       be distinguishable from this case, and we agree. In E.B.F., the child’s mother

       was struggling with a serious substance abuse disorder. “Hoping to spare her

       son the impact of her unfortunate circumstances,” she voluntarily relinquished

       primary physical custody. Id. at 760. She retained legal custody with some

       parenting time, but during a period of more than one year, she failed to




       4
         While Mother’s visits were suspended, nothing in the CHINS Court’s order prevented her from
       communicating with Child. Notwithstanding that ability, there is no evidence in the record that Mother, in
       fact, had any significant communication with Child for at least fifteen months.
       5
        Mother’s arguments to the contrary, including her assertion that DCS thwarted her ability to communicate
       with Child, amount to requests that we reweigh evidence and re-assess witness credibility, which we may not
       and will not do.

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020                  Page 10 of 15
       communicate significantly with her son. After the child’s stepmother’s petition

       to adopt was granted without the mother’s consent, she appealed. Our

       Supreme Court reversed, finding, among other things, that the mother’s

       “willingness to shield her son from the adverse effects of her addiction, coupled

       with her good-faith attempt at recovery and noticeable progress, constitute

       justifiable cause for her failure to communicate.” Id. at 763.


[18]   The E.B.F. Court examined the totality of the circumstances in that case in

       considering the justifiable cause question. It emphasized “that Mother chose to

       relinquish custody on her own free will, in good-faith, and without

       representation of counsel.” Id. at 765. Moreover, it noted the evidence in the

       case “that Mother made a good-faith effort at recovery during the period that

       she failed to communicate with Child,” including participating in drug

       treatment, ending an abusive relationship, and obtaining stable employment

       and housing. Id. Additionally, our Supreme Court observed that the child’s

       father and stepmother thwarted the mother’s ability to communicate with her

       son. In the end, our Supreme Court was convinced that the mother’s consent

       should be required because “[s]he maintained primary custody of her child for

       nearly all of his life—ten years—when she realized that her life had taken a turn

       for the worst and recognized that continued custody would be detrimental to

       the child’s well-being. . . . She made a tough choice; one that was made

       voluntarily, with the best interest of the child in mind, and with no intent to

       abandon Child.” Id. at 767.




       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 11 of 15
[19]   In the case before us, in contrast, Mother did not make the “tough choice” to

       extricate herself from Child’s life while she worked on her problems. Instead,

       DCS, the CHINS Court, and the criminal justice system made that choice for

       her. It may well be that Mother began to make progress on her substance abuse

       issues in the months leading up to the adoption hearing, but for much of the

       CHINS case, she continued to use drugs and commit drug-related crimes,

       ending up incarcerated for months and having her visits suspended as a result.

       Therefore, under the totality of circumstances presented in this case—as

       opposed to those presented in E.B.F.—we find that Mother did not have

       justifiable cause for the lack of communication with Child. Consequently, the

       trial court did not err by finding that Mother’s consent to the adoption was not

       required.6


                                            II. DCS’s Consent
[20]   Next, we turn to the trial court’s decision to dispense with DCS’s consent to the

       adoption. As noted above, because DCS had wardship of Child at the time of

       the adoption proceeding, its consent to the adoption was required unless its

       failure to consent to the adoption is “found by the court not to be in the best




       6
         The elements of the statute related to lack of communication and lack of support are phrased in the
       disjunctive, meaning that the petitioners need to meet their burden under only one. Because we have found
       that the trial court did not err by concluding that the Adoptive Parents proved by clear and convincing
       evidence that Mother failed to communicate significantly with Child when able to do so, without justifiable
       cause, for at least one year, we need not and will not consider the trial court’s conclusion that Mother also
       failed to provide for the care and support of Child for at least one year.

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020                   Page 12 of 15
       interests of the child.” I.C. § 31-19-9-8(a)(10). Here, the trial court made such a

       finding.


[21]   DCS was aware of the ongoing adoption proceedings and did not file a motion

       to contest the adoption. It indicated at the adoption hearing that it was “staying

       neutral” with respect to the adoption petition. Tr. Vol. II p. 57-58. The Family

       Case Manager explained that while DCS was remaining neutral, if the trial

       court were to dispense with Mother’s consent and consider Child’s best

       interests, “I don’t believe [DCS has] any objection to [Child] staying where he’s

       at and continuing living where he’s living.” Id. at 58.


[22]   Under these admittedly opaque circumstances—where DCS did not consent,

       but also did not object, to the adoption and believed that it was in Child’s best

       interest to remain with the Adoptive Parents—we find that the trial court did

       not err by dispensing with the requirement that DCS consent to the adoption.

       If DCS believed that it was in Child’s best interest to remain with Adoptive

       Parents, the trial court reasonably concluded that DCS’s failure to consent to

       the adoption was not in Child’s best interests. Therefore, we decline to reverse

       on this basis.


                                          III. Best Interests
[23]   Finally, Mother argues that the trial court erred by finding that granting the

       adoption petition is in Child’s best interests. The purpose of Indiana’s

       adoptions statutes “is to protect and promote the welfare of children by

       providing them with stable family units,” and a court’s “main concern should

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 13 of 15
       lie with the effect of the adoption on the reality of the minor child’s life.” In re

       Adoption of K.F., 935 N.E.2d 282, 289 (Ind. Ct. App. 2010). Furthermore, the

       responsibility to determine whether adoption is in the best interests of the child

       rests solely with the trial court. In re Adoption of Subzda, 562 N.E.2d 745, 750

       (Ind. Ct. App. 1990).


[24]   At the young age of four months, Child was found to be a CHINS because (in

       relevant part) of Mother’s substance abuse. While he remained in her care and

       custody for a brief period, he was ultimately removed because of continuing

       substance abuse concerns, and he has not been returned to her care for over

       three years. Child is now over four years old and has been in the continuous

       care of Adoptive Parents for over three years. When he was first placed with

       Adoptive Parents, Child was non-verbal and withdrawn. Since that time, he

       has thrived, and is now a confident and adventurous child. Child is strongly

       bonded to Adoptive Parents, whom he calls mommy and daddy, and to their

       daughters, whom he calls his sisters.


[25]   The trial court gave “great weight” to the opinions of the DCS family case

       manager and court appointed special advocate, both of whom opined that the

       adoption is in Child’s best interests; the trial court explicitly found both

       witnesses to be “very credible.” Appealed Order p. 9. The trial court also gave

       weight to the testimony of the Adoptive Parents, who testified that they have

       provided, and will continue to provide, Child with a stable and loving home.

       Finally, the trial court concluded that Mother had neglected her parental

       obligations: “[Mother] accepted the time [Child] was placed with the [Adoptive

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 14 of 15
       Parents] as a holiday from parental responsibilities. She would like to be

       excused from parental duties, yet retain the rights and benefits of parenthood.”

       Id. at 11.


[26]   Given the trial court’s responsibility to weigh evidence and assess witness

       credibility, which we may not curtail, we see nothing in this record indicating

       that the trial court erred in finding that granting the adoption petition is in

       Child’s best interests.


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


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-AD-249 | August 14, 2020   Page 15 of 15
