MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                FILED
Memorandum Decision shall not be regarded as                          May 16 2017, 9:38 am
precedent or cited before any court except for the purpose
of establishing the defense of res judicata, collateral                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT
Andrew R. Wolf
The Wolf Law Office
Michigan City, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of L.J. and                               May 16, 2017
E.J., minors,                                                Court of Appeals Case No.
                                                             64A03-1608-AD-1886
                                                             Appeal from the Porter Superior
Crystal Satter,                                              Court
Appellant-Respondent,                                        The Hon. William E. Alexa, Judge
                                                             Trial Court Cause No.
        v.                                                   64D02-1508-AD-7208

Jason James and Jennifer James,
Appellees-Petitioners.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017            Page 1 of 12
                                          Case Summary

[1]   On October 15, 2007, a court order declared that Appellee-Petitioner Jason

      James (hereafter “Father”) was the biological father of both L.J. and E.J.

      (collectively, “the Children”). At the time, Appellant-Respondent Crystal

      Satter (“Birth Mother”) was awarded custody of the children, with Father

      holding rights to parenting time and obligations to pay child support. In 2012,

      Father was awarded physical and legal custody of the Children, with Mother

      being granted visitation twice a week at the Family Life facility. Eventually,

      Father married Jennifer James (“Step-Mother”), and Birth Mother became

      pregnant with twins by her boyfriend, Brian Piunti.


[2]   In August of 2014, Birth Mother gave birth to twin girls but refused to allow the

      Children to visit them and her in the Hospital or to take the twins to Family

      Life. Between August of 2014 and August of 2015, Birth Mother saw the

      Children for a total of one hour and did not otherwise communicate with them,

      despite efforts by the Children’s guardian ad litem (“GAL”) to arrange

      supervised visitation. On August 25, 2015, Father and Step-Mother petitioned

      for Step-Mother to adopt the Children. Following a hearing, the adoption court

      ruled that Birth Mother’s consent to adoption of the Children by Step-Mother

      was not required and entered an order of adoption. No criminal history check

      of Step-Mother was performed, however. Birth Mother contends that the

      adoption court abused its discretion in concluding that her consent to the

      adoption was not required and in not ordering a criminal history check be


      Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 2 of 12
      performed on Step-Mother. Because we disagree with the first contention but

      agree with the second, we affirm in part, reverse in part, and remand with

      instructions to order a criminal history check on Step-Mother and for further

      proceedings.



                            Facts and Procedural History

[3]   On October 15, 2007, the paternity court, in cause number 64C01-0706-JP-648,

      found that Father was the biological father of the Children. At the time, Birth

      Mother was awarded physical and legal custody of the children, with Father

      holding rights to parenting time and obligations to pay child support. On

      November 21, 2008, the paternity court appointed Ana Osan to be a GAL

      following Birth Mother’s ultimately unsubstantiated allegations of sexual

      misconduct by Father with the Children. During a court-ordered investigation

      of the sexual misconduct allegations, the Children were evaluated by Dr.

      Tiffany Simpson and have continued to receive regular counseling from her.

      Following motions to modify custody and parenting time by both parties, the

      paternity court appointed a special judge on January 10, 2012, and granted

      physical custody to Father, including sole legal custody. Birth Mother was to

      have parenting time with the Children twice a week at Family House. At one

      of these visits in late 2013 or early 2014, Birth Mother announced to the

      Children that she was pregnant with twins she was having with Piunti. Mother

      had been advised by her counselor to tell the Children first and then speak with



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      Dr. Simpson about the potential effects and/consequences that the news might

      have, advice GAL Osan found to be “flabbergasting[.]” Tr. Vol. II p. 12.


[4]   On July 31, 2014, GAL Osan filed an emergency petition to withhold records

      and suspend contact, which was granted by the paternity court and disallowed

      any further communication between Father and Birth Mother. GAL Osan then

      filed a petition to modify Birth Mother’s parenting time, and the paternity court

      affirmed a suspension of Birth Mother’s parenting time on September 18, 2014.


[5]   On August 25, 2015, Father and Step-Mother filed a petition for adoption of the

      Children by Step-Mother with the adoption court. At the time, a petition to

      modify custody was pending in the paternity court, filed by Birth Mother. The

      paternity court denied Birth Mother’s petition to modify custody on April 28,

      2014, and ordered the suspension of any parenting time until after the petition

      for adoption was ruled on. Birth Mother then filed a timely objection to the

      petition for adoption.


[6]   The adoption court conducted the hearing on the petition for adoption on

      February 5, 2016, and consolidated the paternity action with the adoption case.

      GAL Osan testified during the hearing that the Children were excited about

      Birth Mother’s twins, who were born in August of 2014, and wished to see

      them in the hospital. GAL Osan, mindful that Family House visitation might

      not be feasible following the twins’ birth, attempted to arrange a hospital visit

      for the Children and to maintain parenting time “maybe doing some sort of




      Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 4 of 12
      Skype or FaceTime or telephonic” but received no response from Birth Mother.

      Tr. Vol. II p. 13.


[7]   GAL Osan also testified that the visitation that occurred on December 23,

      2014, coincided with Birth Mother’s separation from Piunti four days

      previously and that “there was a lot of movement being made to schedule

      meetings” while Birth Mother and Piunti were separated. Tr. Vol. II p. 15.

      Birth Mother and Piunti, however, reunited in Early March of 2015, and the

      “picture change[d] dramatically”; other than a meeting between GAL Osan,

      Birth Mother, Birth Mother’s attorney, and Dr. Simpson on April 27, 2015,

      there had been no additional communication with Birth Mother. Tr. Vol. II p.

      15. At the April meeting, requirements for resumption of parenting time with

      the Children were discussed with Birth Mother, including psychological

      evaluations for herself and Piunti, to which Birth Mother agreed but never

      occurred. Birth Mother also did not take advantage of opportunities to have

      visitation supervised by Dr. Simpson.


[8]   GAL Osan observed that Birth Mother had developed a high level of animosity

      toward Dr. Simpson and believed that GAL Osan and Dr. Simpson did not like

      her and “had a vendetta out for her.” Tr. Vol. II p. 20. GAL Osan opined that

      all services that could have been offered, recommended, or ordered to avoid the

      adoption scenario, were, and that the influence of a third party (presumably

      Piunti) is putting Birth Mother “in a very precarious position[.]” Tr. Vol. II p.

      25. GAL Osan testified that it was not in the Children’s best interest to

      continue their current family situation.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 5 of 12
[9]    Birth Mother testified that she had not “substantially” seen the Children since

       June of 2014, with “an hour visit for Christmas on December 23, 2014.” Tr.

       Vol. II p. 55. Birth Mother also testified that Father, GAL Osan, and the

       Children’s counselor used her twins as an excuse to prevent her from seeing the

       Children because Birth Mother would not introduce the twins to them. Mother

       testified that her reluctance to take the twins to visitation with the Children was

       due to concern about the risk of infection at Family House, although she had

       testified in a previous hearing that Piunti had refused to allow her to take them.

       Birth Mother testified that she was aware of attempts to have the Children visit

       her and the twins in the hospital but did not agree to it because she was

       “recovering [and] wouldn’t want them to see me like that.” Tr. Vol. II p. 58.

       Birth Mother indicated her belief that Father, Step-Mother, and Dr. Simpson

       were intentionally acting to prevent her from seeing the Children. At the end of

       the hearing, the adoption court instructed the parties to address whether waiver

       of consent of Birth Mother was required as a matter of law.


[10]   On March 24, 2016, the adoption court, upon receiving the summations from

       both parties, determined that the consent of Birth Mother was not required and

       that the adoption petition should be granted. The adoption court’s order

       provides, in part, as follows:


                      2.     There has been no substantial contact between the
               Respondent and the minor children for at least a one (1) year
               period prior to the filing of the Petition for Adoption by
               Petitioner and after extensive efforts to facilitate Visitation by
               Respondent with the minor children.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 6 of 12
                     3.     The consent of the natural mother of the two (2)
               minor children to this Adoption is not required pursuant to IC
               31-19-9-1 and IC 31-19-9-8(a)(2)(A).
                      4.      The Court finds, by clear and convincing evidence,
               that Respondent is unfit to be a parent of these minor children
               and it is in the best interest of the two (2) minor children that the
               Respondent’s consent to the adoption be dispensed with.
                      5.     The Court further finds that the allegations
               contained in the Petitioner’s Petition of Adoption are true and
               Petitioner has sufficient ability and means to rear the minor
               children and to furnish suitable support and education for the
               children. It [is] absolutely in the best interest of the minor
               children that this Petition for Adoption be granted.
               IT IS, THEREFORE, CONSIDERED, ORDERED,
               ADJUDGED, AND DECREED by the Court that the consent
               to this adoption by the Respondent, Crystal Satter, is not
               required and the parental rights of the Respondent, Crystal
               Samar should be, and they hereby are, terminated.
               IT IS FURTHER ORDERED, ADJUDGIED, AND
               DECREED that it is in the best interest of the minor children,
               Logan Michael James and Evan Levine James that this adoption
               be, and it hereby is, GRANTED.
       Order pp. 2-3. Birth Mother filed a timely motion to correct error that was not

       ruled on within forty-five days. In accordance with Indiana Trial Rule 53.3, the

       motion is deemed denied.


                                 Discussion and Decision

[11]   In the present case, Father has not submitted a Brief of Appellee. As a result,

       “[i]nstead of imposing upon this court the burden of controverting arguments

       advanced for reversal, [we] have long applied a less stringent standard of review

       Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 7 of 12
       with respect to showings of reversible error when the appellee fails to file a

       brief.” Johnson Cty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991

       (Ind. Ct. App. 1985). Birth Mother need only prove prima facie error to win

       reversal. Id. (citing Ind. State Bd. Of Health v. Lakeland Disposal Serv., Inc., 461

       N.E.2d 1145, 1145 n.1 (Ind. Ct. App. 1984)). “In this context, ‘prima facie’

       means at first sight, on first appearance, or on the face of it.” Id. (quoting

       Harrington v. Harrington, 142 Ind. App. 87, 88, 233 N.E.2d 189, 191 (1968)).


               Pursuant to Indiana Code section 31-19-11-1(a), the trial court
               shall grant an adoption petition if, in relevant part, the adoption
               is in the child’s best interest; the petitioner is sufficiently capable
               of rearing and supporting the child; and proper consent, if
               required, has been given. Following the entry of an adoption
               decree, our standard of review on appeal “is to consider the
               evidence most favorable to the petitioner and the reasonable
               inferences which can be drawn therefrom to determine whether
               sufficient evidence exists to sustain the trial court’s decision.” In
               re Adoption of S.O., 56 N.E.3d 77, 80 (Ind. Ct. App. 2016). Our
               court will not overturn the trial court’s decision regarding an
               adoption “unless the evidence at trial led to but one conclusion
               and the trial court reached an opposite conclusion.” Id. We do
               not reweigh evidence, and because we presume that the trial
               court’s decision is correct, the appellant bears the burden of
               overcoming that presumption. In re Adoption of H.N.P.G., 878
               N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied.
       Matter of Adoption of C. J., 71 N.E.3d 436, 442 (Ind. Ct. App. 2017).


         I. Requirement of Birth Mother’s Consent to Adoption
[12]   Birth Mother contends that the adoption court abused its discretion in

       concluding that her consent to the adoption was not required. Indiana Code


       Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 8 of 12
       section 31-19-9-8(a)(2)(A) provides that “[c]onsent 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 … fails without justifiable cause to

       communicate significantly with the child when able to do so[.]” The adoption

       court determined that Birth Mother’s consent to the adoption was not required

       because of her failure to communicate significantly with the Children for the

       statutory period of a year without justification, specifically, the year from

       August 24, 2014, to August 24, 2015.


[13]   We conclude that there is sufficient evidence to support the trial court’s

       conclusion that Birth Mother’s consent to the adoption was not required. The

       record indicates that Birth Mother saw the Children for a total of one hour

       between August 24, 2014, to August 25, 2015, and there is no indication of any

       other communication of any kind during that period. GAL Osan testified that

       numerous attempts to arrange visitation and/or other parenting between Birth

       Mother and the Children were unsuccessful, with many communications to

       Birth Mother going unanswered and unacknowledged. Birth Mother refused to

       undergo a psychological evaluation as a condition precedent for reestablishing

       visitation and did not participate in proposed supervised visitation.


[14]   GAL Osan concluded that Birth Mother’s relationship with Piunti, and his

       influence over her, were obstacles to reestablishing parenting time, and the

       record bears this out. Mother testified in a hearing that Piunti refused to allow

       her to take the twins to visitation with the Children. Over the course of the year

       in question, the only actual visitation—and the only significant steps to arrange

       Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 9 of 12
       more visitation—occurred during a brief period when Birth Mother and Piunti

       were separated. GAL Osan noted that when Birth Mother and Piunti

       reconciled, communication ceased. In short, the record supports a conclusion

       that Birth Mother’s failure to communicate significantly with the Children for

       more than a year was without justification.


[15]   Mother testified to the many reasons that she claims caused her to not

       communicate significantly with the Children and argues that they provide

       justification. Even if we assume that her reasons would justify her failure to

       communicate, the adoption judge was under no obligation to credit Birth

       Mother’s testimony, and likely did not. Birth Mother’s argument is nothing

       more than an invitation to reweigh the evidence, which we will not do. See

       Adoption of C. J., 71 N.E.3d at 442. The adoption court did not abuse its

       discretion in concluding that Birth Mother’s consent to the adoption of the

       Children was not required.


                   II. Criminal History Check on Step-Mother
[16]   Birth Mother notes, correctly, that Indiana Code section 31-19-8-1 requires a

       period of supervision by a licensed child placing agency, which could include

       the Indiana Department of Child Services. The adoption court has the ability

       to waive that requirement where one of the petitioners is a step-parent. See Ind.

       Code § 31-19-8-2(c). However, pursuant to Indiana Code section 31-19-8-5(d),

       if the adoption court waives that period of supervision and the following report,




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       the adoption court “shall require” the licensed child placing agency to conduct

       a criminal history check on the step-parent and report the results.


[17]   Here, the adoption court granted Father and Step-Mother’s motion to waive

       both the period of supervision and home study because of Step-Mother’s status

       as a step-parent of the Children. The adoption court, however, provided no

       subsequent instructions for any relevant agency to conduct a criminal

       background check. This failure to conduct the background check constitutes

       clear error. Indiana Code section 31-19-8-5(d) provides that the adoption court

       “shall” order a criminal background check of the prospective adoptive step-

       parent when the proper conditions are met, and the relevant statutory language

       provides no provision for waiver of this requirement. As such, we remand with

       instructions to order a criminal history check on Step-Mother.



                                              Conclusion
[18]   We affirm the adoption court’s conclusion that Birth Mother’s consent to the

       adoption of the Children by Step-Mother is not required. However, we reverse

       the trial court’s grant of Father and Step-Mother’s petition for Step-Mother to

       adopt the Children because the required criminal history check was not

       performed on Step-Mother. We remand with instructions to order a criminal

       history check on Step-Mother pursuant to Indiana Code section 31-19-8-5(d)

       and for further proceedings following the results of the criminal history check.


[19]   We affirm in part, reverse in part, and remand with instructions.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 11 of 12
Vaidik, C.J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 64A03-1608-AD-1886 | May 16, 2017   Page 12 of 12
