MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 12 2018, 6:02 am

this Memorandum Decision shall not be                                    CLERK
                                                                     Indiana Supreme Court
regarded as precedent or cited before any                               Court of Appeals
                                                                          and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
George R. Livarchik                                      Rachel E. Doty
Livarchik & Farahmand                                    Braje, Nelson, and Janes LLP
Chesterton, Indiana                                      Michigan City, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: The Adoption of                                   April 12, 2018
N.T., a minor child,                                     Court of Appeals Case No.
                                                         46A03-1709-AD-2133
M.T.,
                                                         Appeal from the LaPorte Superior
Appellant-Petitioner,                                    Court
        v.                                               The Honorable Richard R.
                                                         Stalbrink, Jr., Judge
J.T.,                                                    Trial Court Cause No.
                                                         46D02-1506-JP-134
Appellee-Respondent.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018         Page 1 of 16
                                Case Summary and Issue
[1]   J.T. (“Natural Father”) and K.T. (“Mother”) are the parents of N.T. (“Child”),

      born October 29, 2005. With Mother’s consent, M.T. (“Stepfather”) filed a

      petition to adopt Child on January 25, 2016, alleging Natural Father’s consent

      to the adoption was unnecessary. Stepfather now appeals the trial court’s order

      finding that Natural Father’s consent is necessary, raising two issues for our

      review, which we consolidate and restate as one: whether the trial court’s

      conclusion that Natural Father’s consent to Stepfather’s petition for adoption

      was necessary is clearly erroneous. Concluding the trial court did not clearly

      err in determining Natural Father’s consent to the adoption was required, we

      affirm.



                            Facts and Procedural History
[2]   Mother and Natural Father have never been married, nor have they ever

      resided together as a couple after Child was born. Natural Father was present

      at Child’s birth and executed a paternity affidavit at that time. No child support

      order has ever been in effect, and Natural Father has not voluntarily provided

      monetary support for Child. He was imprisoned for approximately two and

      one-half years between 2005 and 2008. While Natural Father was incarcerated,

      his mother (“Paternal Grandmother”) spent time with Child with Mother’s




      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 2 of 16
      permission.1 After Natural Father was released from prison, he visited with

      Child when she was with Paternal Grandmother and occasionally, would be

      alone with her when Paternal Grandmother had to work. When Natural

      Father moved into his own apartment with his girlfriend and their child, Child

      sometimes visited with Natural Father there. Nonetheless, Natural Father has

      never had his own court-ordered parenting time with Child.


[3]   Natural Father suffers from schizoaffective disorder, bipolar disorder, and

      chronic depression. He was hospitalized for several days in March 2015 to deal

      with these issues. While hospitalized, he was involved in several incidents

      where he became combative with hospital staff. Following his release, Natural

      Father began outpatient treatment, which he was still participating in at the

      time of trial. In April 2015, Mother severed contact between Natural Father

      and Child. In June 2015, Natural Father filed a petition to establish his

      paternity of Child. In November 2015, Mother and Natural Father entered a

      stipulation establishing Natural Father’s paternity. A hearing was held in

      February 2016 regarding related matters, including child support and parenting

      time. The trial court ordered professionally supervised visitation between

      Natural Father and Child due to Natural Father’s mental health and anger

      issues. Because Natural Father receives Social Security disability and is not




      1
        It is unclear whether Paternal Grandmother had court-ordered grandparent visitation, but it does appear
      that she exercised regular visitation with Child, including alternating weekends, holidays, and extended time
      in the summer.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018             Page 3 of 16
      employed, the trial court did not order him to pay any child support, although it

      did order him to explore whether Child was eligible for any disability benefits.


[4]   Mother and Stepfather have lived together since mid-2007, and were married

      on August 15, 2015. In January 2016, Stepfather filed his petition to adopt

      Child, attaching Mother’s written consent to the adoption and alleging Natural

      Father’s consent was unnecessary for the following reasons:


              (a) Since October 29, 2005 (the date of the birth of [Child]) said
              [Natural] Father has not paid any child support; prior to the date
              of filing this Petition for Adoption, for a period of at least one (1)
              year, said [Natural] Father has knowingly failed to provide for
              the care and support of [Child] (See I.C. § 31-19-9-8(a)(2)(B); and


              (b) Since March 2006, [Natural] Father has never communicated
              with [Child] and prior to the date of filing this Petition, for a
              period of at least one (1) year, said [Natural] Father has failed
              without justifiable cause, to communicate significantly with the
              child when able to do so. (See I.C. § 31-19-9-8(a)(2)(A).


      Appellant’s Appendix, Volume II at 61. Natural Father filed a motion to

      contest the adoption, and the adoption proceeding was consolidated with the

      existing paternity proceeding.


[5]   In November 2016, Natural Father attempted suicide by shooting a crossbow

      into his chest and was hospitalized. In January 2017, after Mother and

      Stepfather became aware of the incident, Stepfather filed an amended petition

      to adopt, adding the following allegation:




      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 4 of 16
              That [Stepfather] believes [Natural Father] is unfit to parent the
              child, has a recent history of being harmful to himself and others,
              and per I.C. § 31-19-9-8, said consent from the biological father is
              not required, which provides in pertinent part:


              (11) [Consent to adoption is not required from] [a] parent if:


                       (A) a petition for adoption proves by clear and convincing
                       evidence that the parent is unfit to be a parent; . . .


                       (B) the best interests of the child sought to be adopted
                       would be served if the court dispensed with the parent’s
                       consent.


      Id. at 99.


[6]   The trial court held a hearing on Stepfather’s Petition for Adoption and Natural

      Father’s Motion to Contest Adoption over several days beginning on March 23,

      2017. On August 18, 2017, the trial court issued its findings of fact and

      conclusions thereon, granting Natural Father’s Motion to Contest Adoption

      and denying Stepfather’s Petition for Adoption. In relevant part, the trial

      court’s order states:


              II. Findings of Fact
              ***
              B. Fitness of Natural Father
              13. Natural Father has a history of mental illness, including
              multiple in-patient hospitalizations.
              14. Natural Father was hospitalized for an attempted suicide on
              November 24, 2016. Natural Father was admitted to [an
              inpatient psychiatric] facility in South [B]end thereafter.
              15. Natural Father is still pursuing treatment voluntarily.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 5 of 16
        16. Natural Father’s therapist testified as to his cooperation and
        compliance with treatment.
        ***
        D. Failure to Provide Support for One Year
        24. Mother testified that Natural Father has never provided
        monetary child support for [Child].
        25. Natural Father began receiving Supplemental Security
        Income in May of 2015.
        26. Mother testified to her lack of judicial intervention for child
        support because of her belief of Natural Father’s inability to pay.
        27. [The mother of Natural Father’s other child] testified that her
        [sic] and Natural Father struggled to pay their financial
        obligations during their time together.
        28. [Paternal] Grandmother testified that Natural Father has an
        inconsistent work history, does not work well with others, and
        was often unemployed.
        29. Natural Father testified that he obtained seasonal
        employment for “like two” years.
        30. [Paternal] Grandmother testified that there was never an
        instance she could recall when [Natural] Father was financially
        able to support [Child] that [Natural] Father refused to make any
        financial contribution to Mother for [Child].
        31. When Natural Father was unable to provide financial
        support for [Child], he would ask [Paternal] Grandmother to
        support [Child] on his behalf.
        32. [Paternal] Grandmother testified that on behalf of [Natural]
        Father, she personally purchased food, diapers, medicines, a car
        seat, formula, clothing, and school supplies for [Child].


        III. Conclusions of Law
        33. The most protected status in any adoption proceeding is that
        of the natural parent. M.W. v. A.W., 933 N.E.2d 909, 913 (Ind.
        Ct. App. 2010).
        ***
        B. Fitness of Natural Father
        36. [Stepfather] must prove by clear and convincing evidence

Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 6 of 16
        that Natural Father is unfit to be [a] parent and that [Child’s] best
        interests would be served if this Court dispensed with Natural
        Father’s consent.
        ***
        38. This Court is not convinced that Natural Father is unfit as a
        parent, either due to his mental illness or by any other means.
        The testimony from Natural Father and his current therapist,
        coupled with the fact that he is voluntarily seeking treatment,
        leads this Court to believe that Natural Father is making a sincere
        effort.
        39. Further, the only indication of any stress on [Child] is the
        altercation that happened between Natural Father and [Paternal]
        Grandfather that [Child] witnessed.
        40. Therefore, this Court finds that [Stepfather] has not proven
        by clear and convincing evidence that Natural Father is unfit as a
        parent or that [Child’s] best interests would be served if Natural
        Father’s rights were dispensed.
        ***
        D. Failure to Provide Support for One Year
        44. [Stepfather] must prove by clear and convincing evidence
        that for a period of at least one year Natural Father failed to
        provide for the care and support of [Child] when able to do so as
        required by law or judicial decree.
        45. A parent’s failure to support may have occurred during “any
        year in which the parent had an obligation and the ability to
        provide support, but failed to do so.”
        46. It is well settled that parents have a duty to support their
        children regardless of a court mandate to pay.
        47. A parent’s child support obligation can be satisfied through
        nonmonetary measures such as clothing or gifts.
        ***
        49. Indiana Courts are clear that Supplemental Security Income
        is not considered income for purposes of child support.
        50. Thus, Natural Father’s nonpayment of child support cannot
        be considered from May 2015 to the present because he receives
        SSI.
        51. Natural Father’s testimony that for the period that Natural

Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 7 of 16
              Father worked full time 70% of the time for “like two” years
              prior to May 2015 is not enough to show that he had the ability
              to provide support.
              52. Keeping with the [In re Adoption of N.W., 933 N.E.2d 909
              (Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011)]
              holding, this Court cannot draw an inference of an ability to pay
              merely from Natural Father’s income given the testimony of
              Natural Father’s hardships by [Paternal] Grandmother and [his
              ex-girlfriend].
              53. Furthermore, it appears Natural Father fulfilled his common
              law support obligation through nonmonetary means either to the
              best of his ability given the circumstances or through [Paternal]
              Grandmother.
              54. Consequently, Natural Father’s consent to this adoption is
              necessary under I.C. §§ 31-19-9-1 [and] 31-19-9-8(a).


              Therefore, it is ordered and adjudged that [Natural Father’s]
              Motion to Contest Adoption be, and is hereby, granted; and that
              [Stepfather’s] Amended Petition for Adoption be, and is hereby,
              denied.


      Id. at 12-18. Stepfather now appeals. Additional facts will be provided as

      necessary.



                                 Discussion and Decision
                                     I. Standard of Review
[7]   When we review a trial court’s ruling in an adoption proceeding, the ruling will

      not be disturbed unless the evidence leads to only one conclusion and the trial

      court reached the opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216,

      1222 (Ind. Ct. App. 2012). We do not reweigh evidence, and we consider the

      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 8 of 16
      evidence most favorable to the decision together with reasonable inferences

      drawn from that evidence. Id. Further, 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.” Id.


[8]   Here, it appears the trial court sua sponte issued findings of fact and

      conclusions thereon pursuant to Indiana Trial Rule 52(A). When that occurs,

      we apply a two-tiered standard of review: first, we determine whether the

      evidence supports the findings of fact and second, whether the findings support

      the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009),

      trans. denied. The trial court’s findings or judgment will be set aside only if they

      are clearly erroneous. Id. A finding of fact is clearly erroneous if the record

      lacks evidence or reasonable inferences from the evidence to support it. Id.


                                       II. Parental Consent
[9]   Stepfather appeals the trial court’s order denying his petition to adopt Child

      without Natural Father’s consent. “The most protected status in any adoption

      proceeding is that of the natural parent.” In re Adoption of N.W., 933 N.E.2d

      909, 913 (Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011).

      Generally, a petition to adopt a minor child may be granted only if written

      consent to adopt has been provided by the biological parents. See Ind. Code §

      31-19-9-1. However, when appropriate, there are exceptions to the consent

      requirement. See Ind. Code § 31-19-9-8. Specific to this case, Stepfather asserts


      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 9 of 16
       that Natural Father’s consent to his adoption of Child is unnecessary based on

       two separate exceptions provided by law: (1) Father has failed to provide for the

       care and support of Child for at least one year; and (2) Father is unfit to be a

       parent and the best interests of Child would be served if his consent was not

       required. See Ind. Code § 31-19-9-8(a)(2)(B), and (11).2 The provisions of

       Indiana Code section 31-19-9-8(a) are disjunctive; that is, each provision

       provides independent grounds for dispensing with parental consent. In re

       Adoption of J.S.S., 61 N.E.3d 394, 397 (Ind. Ct. App. 2016). Recognizing the

       fundamental importance of the parent-child relationship, we strictly construe

       the adoption statutes to protect and preserve that relationship. N.W., 933

       N.E.2d at 913.


[10]   Regardless of which ground is relied on to dispense with parental consent, a

       petition for adoption can only be granted if it is in the best interests of the child.

       In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). A petitioner for adoption

       has the burden of proving, by clear and convincing evidence, one of the

       statutory criteria allowing for adoption without consent. J.S.S., 61 N.E.3d at

       397.




       2
         Although Stepfather’s petition to adopt also alleged Natural Father failed to significantly communicate with
       Child for a period of at least one year when able to do so, Ind. Code § 31-19-9-8(a)(2)(A), the trial court
       found Stepfather had failed to provide clear and convincing evidence such was the case, Appealed Order at 6,
       and Stepfather does not pursue that exception on appeal.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018            Page 10 of 16
                                        A. Failure to Support
[11]   Stepfather contends the trial court erred in concluding Natural Father’s consent

       to adoption was required where he failed to support Child for over one year.

       Indiana Code section 31-19-9-8(a)(2)(B) specifies that consent is not required

       from a parent who, for a period of at least one year, “fails to provide for the

       care and support of the child when able to do so as required by law or judicial

       decree.” (Emphasis added.) The relevant time period for determining whether

       a non-custodial parent has supported his child “is not limited to either the year

       preceding the hearing or the year preceding the petition for adoption, but is any

       year in which the parent had an obligation and the ability to provide support,

       but failed to do so.” In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct.

       App. 2013), trans. denied.


[12]   Prior to the filing of the petition for adoption, no support order was in place

       requiring Natural Father to pay a fixed amount of child support. A parent

       nonetheless has a common law obligation to support his child even in the

       absence of a court order. In re Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct.

       App. 2011). This court has recognized that a parent’s nonmonetary

       contribution to a child’s care may be counted as support. N.W., 933 N.E.2d at

       914. Here, the trial court found that Natural Father’s in-kind contributions

       constituted support of Child. Stepfather has not shown that the trial court erred

       in reaching that conclusion.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 11 of 16
[13]   In N.W., we concluded a stepmother had failed to carry her burden of showing

       that the natural mother was able to provide for her child but refused to do so.

       933 N.E.2d at 913-14. When mother and father divorced, they agreed father

       would have physical custody of the child and mother would have no support

       obligation due to her economic condition. Eventually, the parties sought

       modification of custody (by mother) and support (by father). In the

       modification proceeding, the trial court determined that mother had a negative

       child support obligation. While the modification requests were pending, the

       stepmother filed a petition to adopt the child, alleging that mother had failed to

       support the child and presenting evidence of mother’s regular income. The trial

       court granted the adoption petition over mother’s objection. We reversed,

       holding that the “mere showing” that mother had a regular income did not

       indicate that she had the ability to pay support. Id. at 913. Rather, although

       mother “might not have been able to monetarily provide [child] with much,”

       she “provided to the best of her ability: while creating a nurturing environment

       during parenting time, [m]other supplied [child] with all the necessities of

       housing, food, and even . . . outings and gifts.” Id. at 914.


[14]   Although the procedural posture of N.W. is opposite to this case, as we were

       addressing the trial court’s grant of a petition for adoption rather than the denial

       of a petition to adopt, the facts of N.W. are very similar, and the same result

       should obtain here. Natural Father acknowledged that he had never paid

       regular child support. Mother stated that she had never pursued a court order

       for child support because “[h]e never had a job that paid anything, so I figured


       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 12 of 16
       it would do me no good . . . .” Transcript, Volume III at 153. Prior to 2015,

       Natural Father’s employment was sporadic, and even if he had a regular

       income during his periods of employment, a regular income standing alone is

       insufficient to indicate the ability to pay support. N.W., 933 N.E.2d at 914.

       During the time he resided with his now-ex-girlfriend and their child, they

       struggled to pay their bills even when Natural Father was working. It is true

       that Natural Father regularly bought cigarettes and occasionally marijuana.

       We do not condone the use of resources—limited or otherwise—on such items,

       but those expenditures alone do not demonstrate Natural Father’s ability to

       support Child with regular and significant monetary payments. See Matter of

       Adoption of D.H. III, 439 N.E.2d 1376, 1377 (Ind. Ct. App. 1982) (noting natural

       father’s purchases of cigarettes and gas did not alone indicate an ability to pay

       support). Nonetheless, when Natural Father was able, he provided clothes,

       shoes, school supplies, gifts, and food for Child, and when he was unable to

       provide those things, he asked Paternal Grandmother to provide them on his

       behalf and she did. Natural Father testified, “If [Mother] asked if [Child]

       needed something, then it was always provided.” Tr., Vol. II at 125.


[15]   Under these circumstances, the trial court’s refusal to dispense with Natural

       Father’s consent to adopt for failure to support Child is not clearly erroneous.


                                                B. Unfitness
[16]   Stepfather also contends Natural Father’s consent to adoption is not required

       because Natural Father is unfit to parent and dispensing with his consent would


       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 13 of 16
       be in Child’s best interests. See Ind. Code § 31-19-9-8(a)(11). Although the

       statute does not provide a definition of “unfit,” we have observed that it is

       defined as “[u]nsuitable; not adapted or qualified for a particular use or service”

       or “[m]orally unqualified; incompetent.” M.L., 973 N.E.2d at 1223 (quoting

       Black’s Law Dictionary 1564 (8th ed. 2004)). We have also observed that

       termination cases can provide useful guidance as to what makes a parent

       “unfit” because termination cases also strike a balance between parental rights

       and the best interests of the child. Id. In termination cases, we consider factors

       such as a parent’s substance abuse, mental health, willingness to follow

       recommended treatment, lack of insight, instability in housing and

       employment, and ability to care for a special needs child to determine whether

       a parent was unfit. Id. A parent’s criminal history may also be relevant to

       whether a parent is unfit. In re Adoption of D.M., 82 N.E.3d 354, 359 (Ind. Ct.

       App. 2017).


[17]   Stepfather alleges Natural Father’s substance abuse, significant mental health

       problems, violent and angry outbursts, and failure to disclose his struggles make

       him unfit to parent Child. Clearly, however, the trial court thought otherwise.

       Natural Father does use marijuana, but there is no evidence he has ever done so

       in the presence of Child. The trial court acknowledged Natural Father’s history

       of mental illness, but nonetheless concluded his mental illness did not make

       him unfit, especially in face of testimony that he was voluntarily seeking

       treatment and making a “sincere effort” to address his issues. Appealed Order

       at 6. The trial court also noted that there was no evidence that Natural Father’s


       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 14 of 16
       struggles negatively impacted Child. With respect to the other termination

       factors, we note that Natural Father was imprisoned for the first two years of

       Child’s life, but there was no evidence of criminal activity since. Based on the

       record before us, the findings of the trial court, and our deferential standard of

       review, we conclude the trial court did not clearly err in determining that

       Stepfather failed to prove by clear and convincing evidence that Natural Father

       was unfit to parent Child.



                                               Conclusion
[18]   We applaud Stepfather for his involvement in Child’s life these past ten years

       and his willingness to take on the legal, emotional, and moral obligations of

       being her adoptive parent. However, our overriding concern in these matters is

       for Child and whether the relationship with her natural parent should be

       irrevocably severed. Child was eleven years old at the time of the hearing on

       the petition to adopt. Other than the first couple of years of Child’s life when

       Natural Father was incarcerated, he has been a regular presence in her life. The

       trial court, which is more familiar with this case and these parties, determined

       this parent-child relationship should continue. We cannot say the trial court




       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-AD-2133| April 12, 2018   Page 15 of 16
       clearly erred in that determination. Accordingly, the judgment of the trial court

       denying Stepfather’s petition to adopt is affirmed.3


[19]   Affirmed.


       Crone, J., and Bradford, J., concur.




       3
        Natural Father has requested an award of attorney fees pursuant to Appellate Rule 66(E) as damages for
       Stepfather’s conduct on appeal. We acknowledge certain deficiencies in Stepfather’s brief—for instance, his
       “Summary of Argument” is fifteen pages long, and is repeated virtually verbatim in the argument section—
       but we do not believe an award of attorney fees is warranted in this case. Although we have affirmed the trial
       court’s order, we cannot say that Stepfather’s contentions on appeal are completely devoid of merit or that
       his appeal is permeated with bad faith or brought for purposes of harassment. See Matter of Guardianship of
       Lamey, 87 N.E.3d 512, 527 (Ind. Ct. App. 2017).

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