MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        Dec 07 2015, 8:58 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Jordan L. Tandy                                         Kristina L. Lynn
Mark A. Frantz                                          Lynn and Stein, P.C.
Tiede Metz Downs Tandy                                  Wabash, Indiana
& Petruniw, P.C.
Wabash, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of:                                  December 7, 2015
B.B. (Minor Child),                                     Court of Appeals Case No.
                                                        85A02-1505-AD-426
K.B.
                                                        Appeal from the Wabash Circuit
Appellant-Respondent,                                   Court
        v.                                              The Honorable Robert R.
                                                        McCallen, III, Judge
J.K.,                                                   Trial Court Cause No.
                                                        85C01-1501-AD-1
Appellee-Petitioner




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015         Page 1 of 8
[1]   K.B. (Mother) appeals the trial court’s order that her consent is not required for

      her cousin, J.K. (Guardian), to adopt Mother’s child, B.B. (Child). The trial

      court found that Guardian established, by clear and convincing evidence, that

      Mother is an unfit parent and that adoption of Child by Guardian would be in

      Child’s best interests. Finding sufficient evidence to support the trial court’s

      judgment, we affirm.


                                                    Facts
[2]   In 2008, Mother’s father and stepmother were appointed guardians of her oldest

      child, who has been in their care since that time. In June 2013, when Mother

      became pregnant with Child, there was an open Child in Need of Services

      (CHINS) case regarding her two other children. Mother’s participation in

      CHINS services was unsuccessful, and her parental rights were terminated with

      respect to those two children in October 2013.


[3]   During Mother’s pregnancy with Child, she used methadone, hydrocodone,

      and oxycodone. She did not have a prescription for the latter two drugs, and

      while she did have a prescription for methadone, she abused the medication

      and did not take it as prescribed. In November 2013, while six months

      pregnant, Mother overdosed on methadone.


[4]   Child was born on February 10, 2014, and suffered from narcotic withdrawals

      as a result of Mother’s drug use during the pregnancy. Child remained in the

      hospital for a week and needed careful medical care for the first two months of

      her life as she weaned off of the narcotics.

      Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 2 of 8
[5]   On February 17, 2014, Mother was arrested on charges of forgery and theft.

      On May 19, 2014, Mother pleaded guilty to one count of class C felony forgery

      and received a five-year sentence, with two years suspended to probation.

      Mother was released from incarceration on January 12, 2015.


[6]   The same day that Mother was arrested, Child was released from the hospital

      and into Guardian’s care. She has remained in his care since that time. On

      January 26, 2015, Guardian filed a petition to adopt Child, contending that

      Mother’s consent was not required. On February 9, 2015, in a separate

      proceeding, Guardian was named Child’s temporary guardian.


[7]   On March 25 and April 24, 2015, the trial court held an evidentiary hearing

      regarding Mother’s consent to the adoption. On March 25, 2015, Mother was

      employed and had her own apartment. By April 24, she had lost her job and

      her apartment and had moved in with her parents. Since being released from

      incarceration, Mother had scheduled appointments for a substance abuse

      evaluation as required by the terms of her probation, but she missed or canceled

      most of those appointments. As of April 24, Mother had not completed any

      substance abuse treatment since her release. Between March 25 and April 24,

      Mother admittedly used methadone once and heroin twice. Between those

      dates, Mother attended some, but not all, scheduled visits with Child, and

      ended other scheduled visits early.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 3 of 8
[8]   On April 27, 2015, the trial court issued an order determining that Mother’s

      consent to the adoption was not required. In pertinent part, the trial court

      found and concluded as follows:


              In prior CHINS termination proceedings of [Mother’s] rights to
              other children, the Court made the following findings:


                                                      ***


                      The DCS made significant efforts to facilitate
                      reunification. Services were offered, time and again.
                      Despite those efforts . . . [Mother’s] efforts fell short, far
                      short. At no time during the pendency of this action has
                      reunification been considered. Reunification was the goal,
                      and it was pursued, to no avail.


              Sadly, nothing has changed. [Mother] continues to associate
              with persons of poor character. She continues to have problems
              with drugs. She has no ability to care for herself, let alone
              another child. She is unemployed. She has no transportation.
              She has not re-engaged in services. She misses parenting time
              opportunities.


              . . . She is unfit to parent [Child].


              [Guardian] has proven, by clear and convincing evidence, that
              [Mother’s] consent is not required . . . and it is in [Child’s] best
              interests to be adopted by [Guardian], who has been [Child’s]
              sole source of support since birth.


      Appellant’s App. p. 5-6. Mother now appeals.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 4 of 8
                                    Discussion and Decision
[9]    Mother argues that the trial court erred by concluding that her consent to

       Child’s adoption is not required. 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, 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.


[10]   Indiana Code section 31-19-9-8(a) provides, in pertinent part, as follows:


               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




       Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 5 of 8
                       (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.


                                                       ***


               (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.


       Mother makes arguments regarding both subsection (2) and subsection (11). It

       is well established that the provisions of Indiana Code section 31-19-9-8 are

       disjunctive, and “as such, either provides independent grounds for dispensing

       with parental consent.” In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

       App. 2006). Because we find below that the trial court did not err by finding

       that Mother’s consent was not required pursuant to subsection (11), we need

       not, and will not, address her arguments with respect to subsection (2).


[11]   Subsection (11) requires that the petitioner prove by clear and convincing

       evidence that the parent is unfit and that adoption is in the child’s best interest.

       This Court has determined that “termination [of parental rights] cases provide

       useful guidance as to what makes a parent ‘unfit.’ In these cases, we have

       considered factors such as a parent’s substance abuse, . . . willingness to follow

       Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 6 of 8
       recommended treatment, lack of insight, [and] instability in housing and

       employment . . . .” M.L., 973 N.E.2d at 1223.


[12]   In this case, the evidence most favorable to the trial court’s judgment reveals

       that Mother has been struggling with substance abuse issues for years. She has

       had multiple opportunities to address these issues by participating in services,

       but has failed to do so. She has had her parental rights involuntarily terminated

       with two of her children, and a third is cared for by guardians. Not only did

       Mother use illicit substances while pregnant with Child, causing Child to have

       significant medical issues at birth, but she admittedly used methadone and

       heroin in between hearing dates in this very case. Mother was also unable to

       maintain employment or housing while these matters were pending.

       Additionally, she was incarcerated for nearly all of Child’s first year of life, and

       it is well settled that “‘[i]ndividuals who pursue criminal activity run the risk of

       being denied the opportunity to develop positive and meaningful relationships

       with their children.’” In re Adoption of H.N.P.G., 878 N.E.2d 900, 907 (Ind. Ct.

       App. 2008) (quoting Castro v. State Office of Family and Children, 842 N.E.2d 367,

       374 (Ind. Ct. App. 2006)).


[13]   Mother directs our attention to the strides she has made. We do not discount

       her seemingly genuine desire to better herself, nor do we discount the attempts

       that she has made to do so. But this argument amounts to a request that we

       reweigh the evidence, which we may not, and will not, do. The evidence in the

       record supports the trial court’s conclusion that Guardian established by clear

       and convincing evidence that Mother is an unfit parent and that it is in Child’s

       Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 7 of 8
       best interests to be adopted by Guardian. See In re Adoption of J.M., 10 N.E.3d

       16, 21 (Ind. Ct. App. 2014) (holding that parents’ consent to adoption not

       required given their historical difficulty with substance abuse and their inability

       to rectify the situation, notwithstanding genuine attempts to do so, by the time

       of the consent hearing).


[14]   Additionally, it is undisputed that Guardian has provided Child with a stable,

       nurturing environment. It is also undisputed that Child has a strong bond with

       Guardian—a stronger bond than she has with Mother. Guardian is able to

       provide for all of Child’s needs. This evidence supports the trial court’s

       conclusion that adoption is in Child’s best interests.


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


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1505-AD-426 | December 7, 2015   Page 8 of 8
