Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                    Feb 07 2014, 10:15 am
any 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:

DAVID W. STONE, IV                               ANTHONY C. LAWRENCE
Stone Law Offices                                Anderson, Indiana
Anderson, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE: ADOPTION OF L.A.C. AND S.T.A.,            )
S.C. AND L.A.,                                   )
                                                 )
       Appellants-Respondents,                   )
                                                 )
              vs.                                )       No. 48A02-1305-AD-462
                                                 )
N.C. and K.R.,                                   )
                                                 )
       Appellees-Petitioners.                    )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Dennis Carroll, Special Judge
                             Cause No. 48C01-1111-AD-62




                                      February 7, 2014



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Judge
                                 Case Summary and Issues

       Appellants L.A. (“Father”) and S.C. (“Mother”) appeal the trial court’s decision to

allow the adoption of their minor children, S.A. and L.C., without parental consent.

Appellants raise the following issues for our review: (1) whether certain findings of fact

made by the trial court are not supported by the evidence; (2) whether the conclusion that

Mother and Father are unfit was clearly erroneous; and (3) whether adoption is in the

children’s best interests. Concluding the evidence is sufficient to show Mother and Father

are unfit and that adoption is in the children’s best interests, we affirm.

                                Facts and Procedural History

       This case concerns a petition for adoption of S.A. and L.C. (the “children”) filed by

N.C. and K.R. (“Prospective Adoptive Parents”).            N.C. is the children’s maternal

grandfather. Mother and Father are unmarried but have been a couple since 2007.

       N.C. gained custody of Mother after N.C. and Ni.C. (Mother’s mother) divorced.

Mother had no contact with Ni.C. for a year after the divorce. During high school, Mother

began spending time with Ni.C. and eventually dropped out of school. In February 2007,

Mother and Ni.C. moved together from Indiana to Florida. Over the next two years, the

two moved back and forth between Indiana and Florida, and Mother never enrolled in

school while in Ni.C.’s care.

       Mother met Father while in Florida. At that time, Father had a history of juvenile

offenses and had been incarcerated in a juvenile facility for a period of eight months. In

late 2007, Mother became pregnant with S.A. Mother and Ni.C. moved back and forth

between Indiana and Florida during her pregnancy, due in part to disputes with Father.

                                               2
Mother eventually settled in Florida before the birth of S.A.

        The Prospective Adoptive Parents visited Florida to lend support to Mother during

the birth of S.A in August 2008. During their visit, the Prospective Adoptive Parents

observed behavior that was consistent with drug use and drug trafficking by Mother and

Father. Father always carried pain pills with him, and he would disappear for long periods

of time without explanation. The Prospective Adoptive Parents also observed that there

was constant foot traffic at Mother and Father’s residence, with many different people

constantly coming and going.

        In July 2009, Mother and Father moved to Indiana, along with S.A., Lu.A (Father’s

father), and Father’s school-age brothers, V.A. and E.A. The Prospective Adoptive Parents

learned of a drug-related incident that occurred in Florida in which a person broke into

Mother’s house and held her at gunpoint. The Prospective Adoptive Parents allowed the

group to stay in their home upon arrival in Indiana and immediately observed signs of drug

abuse. After seeing evidence of substance abuse, the Prospective Adoptive Parents

informed Mother and Father that they and the rest of the group could no longer stay in their

home.

        Between July and October 2009, Mother and Father moved several times. They

lived with Ni.C., with other relatives, in a motel, and in three other residences in Anderson,

Indiana.    During this time, the Prospective Adoptive Parents became increasingly

concerned with the drug use and residential instability of Mother and Father and the effect

it was having on S.A.’s safety and welfare. The Prospective Adoptive Parents expressed

these concerns to Mother and Father. They communicated with other family members

                                              3
about the possibility of staging an intervention, but one was never held. Mother and Father

eventually cut off communications with the Prospective Adoptive Parents and would not

permit them to have contact with S.A. Due to growing concern, the Prospective Adoptive

Parents contacted law enforcement and child protective services, and they filed a petition

for guardianship in October 2009. Shortly after, Mother and Father moved to New York

with S.A. and were accompanied by Lu.A., V.A., E.A., and A.T., an elderly neighbor.

       Mother and Father lived in New York for a period of six weeks. Father claimed

they stayed with a friend, but he was unable to provide the friend’s name. During their

time in New York, Father was investigated by New York Child Protective Services. They

returned to Indiana shortly after. Mother and Father continued their drug use and unstable

lifestyle. Their employment was intermittent or nonexistent.

       On May 27, 2010, Anderson police went to Mother and Father’s residence to

investigate a request for a welfare check for an elderly woman. Upon searching the

residence, an officer found sixty-five-year-old A.T., the neighbor who accompanied

Mother and Father to New York. A.T. was locked in a utility closet. The windows in the

closet were boarded shut, and the temperature inside was approximately 105 degrees. A

bowl for water was on the floor, and a bag of feces hung on the door and was A.T.’s only

restroom facility. The only piece of furniture was a urine-soaked mattress. A.T. was

emaciated and had sustained severe injuries. Mother and Father were keeping A.T. locked

in the utility closet in order to steal her social security benefits and prescription

medications. Mother, Father, and Lu.A were immediately arrested. One police officer

noted that the rest of Mother and Father’s residence was unfit for human habitation.

                                            4
       Mother and Father were both charged with criminal confinement, a Class B felony;

battery resulting in serious bodily injury, a Class C felony; exploitation of an adult, a Class

D felony; financial exploitation of an endangered adult, a Class D felony; two counts of

theft, Class D felonies; obtaining a controlled substance by fraud or deceit, a Class D

felony; and two counts of possession of a controlled substance, Class D felonies. A jury

found Father guilty on all counts except for one count of possession of a controlled

substance. He is currently incarcerated in the Indiana Department of Correction and has a

projected release date of July 10, 2032. Mother pled guilty to aiding, inducing, or causing

battery resulting in serious bodily injury, a Class C felony, and two counts of possession

of a controlled substance, Class D felonies.1

       S.A. was placed with the Prospective Adoptive Parents immediately after Mother

and Father were arrested, and S.A. has remained in their care since that time. On May 31,

2010, Mother gave birth to L.C. while incarcerated. L.C. tested positive for opiates, and

Mother admitted to abusing drugs during the time she was pregnant with L.C. L.C. was

placed with the Prospective Adoptive Parents immediately after his birth.

       Father had four or five supervised visits with the children prior to his trial. After

his conviction, he has had one supervised visit with S.A. Mother has had no contact with

L.C. since his birth, and she had only one visit with S.A. while incarcerated, which occurred

against the recommendation of child protective services. A Child in Need of Services

(“CHINS”) case was opened, and case managers worked with the Prospective Adoptive



       1
           Mother’s projected release date was August 24, 2013. Presumably, she is no longer incarcerated.

                                                    5
Parents and visited their home several times. During the CHINS case, the juvenile court

issued a no contact order after it determined contact between the children and Mother or

Father was not appropriate.

       The Prospective Adoptive Parents have maintained custody of the children and are

the only parents known to the children. They have developed a stable and loving bond

with the children. When the Prospective Adoptive Parents first gained custody of S.A., she

was behind on her immunizations and had developmental delays in speech. She has since

been enrolled in speech therapy sessions and in a pre-school with an academic curriculum.

The children have also participated in other activities, including soccer, gymnastics, and

Sunday school. Each of the children have their own furnished bedrooms in the Prospective

Adoptive Parents’ home. Overall, the trial court found the Prospective Adoptive Parents

are “providing a loving, safe, healthy and consistent environment in which the children are

growing socially, physically, spiritually and emotionally.” Appellants’ Appendix at 23.

       During her term of incarceration, Mother obtained a GED and completed a problem

solving class and received a sentence reduction of six months for each. Mother also

participated in a business technology class, a parenting class, and completed a packet on

substance abuse. Mother and Father are engaged and plan to continue their relationship.

At the hearing, Mother claimed that she intended to facilitate as much contact as possible

between Father and the children while Father remains incarcerated. Mother has no

meaningful work experience, and her minimal employment skills are derived from a single

class taken while incarcerated. Mother has not worked since S.A.’s birth.

       Mother intended to live with Ni.C. upon her release from prison. Ni.C.’s husband

                                            6
has a felony conviction for manufacturing methamphetamine, which has been reduced to a

lesser included offense. And a minor child living with Ni.C. is the alleged victim of child

molestation perpetrated by a relative.

       The Prospective Adoptive Parents were awarded guardianship on September 8,

2011, and pending CHINS proceedings were dismissed on September 15, 2011. The

Prospective Adoptive Parents filed their petition for adoption on November 1, 2011.

Mother and Father contested the adoption. An evidentiary hearing was held over three

days in February 2013. The parties submitted proposed findings of fact and conclusions

of law. On April 25, 2013, the trial court issued special findings of fact and conclusions

of law. The trial court granted the Prospective Adoptive Parents’ petition for adoption,

finding Mother and Father were unfit and adoption was in the best interests of the children.

This appeal followed. Additional facts will be supplied as necessary.

                                  Discussion and Decision

                                   I. Standard of Review

       The trial court issued special findings of fact and conclusions of law pursuant to

Indiana Trial Rule 52(A). In this case, we apply a two-tiered standard of review: (1) we

determine whether the evidence supports the findings of fact and (2) 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.



                                               7
                                  II. Challenged Findings of Fact

        First, Appellants challenge a number of the trial court’s findings of fact, arguing

that they are clearly erroneous. We will address each challenged finding separately.

        Finding 14 states that Father “had a substantial juvenile history and was incarcerated

in a juvenile facility for a period of eight (8) months.” Appellants’ App. at 15. Appellants

take issue with the trial court’s description of Father’s history as “substantial.” This is a

somewhat nitpicky criticism, as it is undisputed that Father’s juvenile history includes acts

of battery, domestic battery, resisting law enforcement, aggravated assault, and fraud.

Finding 14 is not clearly erroneous.

        Finding 21 provides that Mother was held at gunpoint during a drug-related

altercation in Florida.2 At the hearing, Mother admitted the perpetrator was associated with

the family through drug transactions but said the incident was not “necessarily” drug-

related. Transcript at 137. The evidence was sufficient to create an inference supporting

the trial court’s finding.

        Finding 27 states that the Prospective Adoptive Parents spoke to family members

about an intervention and eventually held an intervention. To the extent the finding states

that an intervention actually occurred, that statement is not supported by the evidence, and

the finding is clearly erroneous.

        Finding 30 states Mother and Father moved to New York upon receipt of the

Prospective Adoptive Parents’ petition for guardianship. Given the circumstances and


        2
          Appellants also challenge a portion of Finding 21 which states that Appellants hid their car after
the incident and left Florida. This fact is irrelevant to the trial court’s decision.

                                                     8
timing of the move, the Prospective Adoptive Parents argue the trial court could infer the

move to New York was a reaction to the guardianship petition. We agree that the evidence

was sufficient to allow this inference, although we do not believe the parents’ motivation

for the move was a major factor in the trial court’s decision. Rather, the sudden move itself

is more significant in that it is further proof of the instability created by Mother and Father

while they had custody of S.A.

       Appellants also challenge the finding that Mother and Father lived in a van in a

Burger King parking lot during their time in New York. This finding is not supported by

the evidence, where the only mention of this fact was in a question by counsel for the

Prospective Adoptive Parents and was denied by Mother. However, it is clear that the trial

court did not credit Father’s assertion that they lived with a family friend whose name he

could not recall. Thus, it is unclear where Appellants and S.A. lived during their six weeks

in New York.

       Finally, Appellants challenge the statement in Finding 30 that Father was

investigated by New York Child Protective Services during their brief time in New York.

At the hearing, Father admitted that this investigation occurred. Thus the finding is not

clearly erroneous.

       Finding 37 states that a police officer testified Mother “knew exactly what was

going on” with respect to the inhumane treatment of A.T. Appellants’ App. at 18. Indeed,

mere observations that a witness testified to certain facts are “not findings of basic fact in

the spirit of the requirement.” In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App.

2003) (quoting Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981)). That said, the

                                              9
treatment of A.T. occurred inside Mother’s own home over a substantial period of time.

That, combined with the fact Mother pled guilty to criminal charges related to the treatment

of A.T., is sufficient evidence to show Mother knew what was happening.

       Appellants challenge Findings 53 and 56, both of which state that there were

recommendations made against visitation with Mother and Father in the jail setting. In

fact, evidence was presented that the juvenile court issued a no contact order in the CHINS

case that would have included visits to the jail by the children. Thus, these findings are

supported by the evidence.

       Finding 62 states Mother “has had no meaningful work experience and no

employment skills, and less than a high school education. She admits that she did not work

during [S.A.’s] lifetime.” Appellants’ App. at 21. Appellants contend this finding is

clearly erroneous because Mother took a class while incarcerated in which she learned

about various Microsoft Office programs. Appellants argue that class constitutes an

employment skill. In our view, this argument is dangerously close to a request to reweigh

evidence, which we cannot do. At best, Mother’s employment skills are nominal, and it is

undisputed that she has little education, no meaningful work experience, and has not

worked since before S.A.’s birth. Finding 62 is not clearly erroneous.

       Finding 63 states in part that Ni.C. “has a history of marijuana use.” Appellants’

App. at 21. The Prospective Adoptive Parents contend such an inference could be made

because, during a deposition, Ni.C. declined an invitation by counsel to take a voluntary

drug screen. No request for a drug screen was ever submitted through the court, and Ni.C.

had no obligation to submit to a drug test offered by counsel for the Prospective Adoptive

                                            10
Parents. We conclude the portion of Finding 63 regarding Ni.C.’s supposed history of

marijuana use is unsupported by the evidence.

       Finding 66 states that Mother provided an unstable home life while having custody

of S.A. and moved several times and lived in several different places, including “motels.”

Appellants’ App. at 21. Appellants disagree with the trial court’s insinuation that S.A.

lived in multiple motels, and they claim there was evidence of staying in only one motel

for a period of six weeks. Clearly, evidence exists to support a finding that S.A. lived in at

least one motel. Moreover, the crux of the finding—that Mother and Father led an unstable,

transient lifestyle while having custody of S.A.—is supported by the evidence. We

conclude Finding 66 is not clearly erroneous.

       Finally, Appellants challenge Finding 85, which states that the Prospective

Adoptive Parents have many friends and family members who support their efforts to adopt

the children. The Prospective Adoptive Parents accurately point to testimony given by

K.R. that supports the trial court’s finding. Therefore, Finding 85 is not clearly erroneous.

                                        III. Adoption

       Ordinarily, 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,

there are a number of exceptions to the consent requirement. See Ind. Code § 31-19-9-8.

Specific to this case, parental consent to an adoption is excused 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.” Ind. Code § 31-19-9-8(11). The term “unfit” is not

                                             11
statutorily defined. But this court has previously defined “unfit” as “[u]nsuitable; not

adapted or qualified for a particular use or service” or “[m]orally unqualified;

incompetent.” In re Adoption of M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012)

(quoting BLACK’S LAW DICTIONARY 1564 (8th ed. 2004)). We have also noted that

statutes concerning the termination of parental rights and adoption “strike a similar balance

between the parent’s rights and the child’s best interests,” and thus, termination cases

provide guidance in determining whether a parent is “unfit.” Id.

       The trial court found the Prospective Adoptive Parents proved by clear and

convincing evidence that the parents were unfit and adoption was in the children’s best

interests; therefore, parental consent to adoption was not required. 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.

Id. at 1222. We do not reweigh evidence, and we consider the 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.

                                     A. Mother’s Unfitness

       The trial court concluded there was clear and convincing evidence Mother was unfit.

Factors to be considered in making this determination include “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 child’s special needs.” Id. at 1223. The

                                              12
trial court found several of these factors present in this case.

       First, the trial court found Mother had a history of substance abuse. Her drug abuse

was ongoing since S.A.’s birth, and that drug abuse occurred in the home and even in the

presence of S.A. Further, Mother admitted to abusing drugs even during her pregnancy

with L.C., and L.C. tested positive for opiates after he was born during Mother’s

incarceration.

       The parents’ substance abuse and potential trafficking created additional safety

issues for the children. The trial court found that while the parents lived in Florida, a person

broke into their home and held Mother at gunpoint as part of a drug-related altercation.

       The trial court also found there was instability in both housing and employment.

During the one and one-half years of S.A.’s life, the parents moved at least seven times

across three different states. Among their residences were at least one motel and an

unknown location during a seemingly unplanned six-week stay in New York. And one

police officer described their last residence as unfit for human habitation.

       As to employment, Mother did not work during S.A.’s life; she has no meaningful

work experience; and her employment skills are limited to a single class taken while

incarcerated. The trial court also noted that Mother’s employment prospects would only

be further hindered by her felony convictions.

       Furthermore, the trial court noted a lack of insight on Mother’s part. Mother made

no effort to provide a safe and stable environment for the children, despite a readily

available support system from the Prospective Adoptive Parents. Rather, she continued

her detrimental behavior from the time S.A. was born until she was arrested and

                                              13
incarcerated.

       This lack of insight is further evidenced by her commitment to continue a

relationship with Father and facilitate frequent visitations between Father and the children

while he is incarcerated. The trial court also questioned Mother’s willingness to live with

Ni.C. after her release from prison and place the children in an unstable environment in

which an alleged child molestation was recently committed by a relative and Ni.C.’s

husband has a prior conviction for manufacturing methamphetamine.

       Last but not least, Mother willingly committed heinous crimes against an elderly

woman inside Mother’s home and knowingly exposed S.A. to that conduct. Mother and

Father locked A.T. in a utility closet—under deplorable conditions—for the purpose of

stealing her social security benefits and prescription medication. These actions alone

evince a moral compass that is unbecoming of a parent, to say the least.

       Despite the trial court’s findings, Appellants contend the trial court’s conclusion of

unfitness was clearly erroneous, and they advance several arguments in that vein. First,

Appellants note that parental rights should not be terminated “solely because there is a

better home available for the children,” In re K.S., 750 N.E.2d 832, 837 (Ind. Ct. App.

2001), and claim the trial court’s decision was incorrectly made for that reason. We cannot

agree. The facts recounted above are sufficient to support the trial court’s finding of

unfitness, and they are devoid of any reference to the children’s prospective home.

       Appellants compare this case to In re G.Y, in which our supreme court reversed a

trial court’s decision to terminate parental rights. 904 N.E.2d 1257, 1258 (Ind. 2009). In

that case, the parent was incarcerated with a scheduled release date eighteen months after

                                             14
the termination hearing; the parent committed her crimes before the child’s birth; the parent

had bonded with the child through visitation; and the parent had made progress through

drug treatment programs while incarcerated. In re G.Y. is distinguishable from this case.

Mother committed her crimes not only during S.A.’s lifetime but in the presence of S.A.,

and the trial court found Mother did not have a strong bond with S.A. and that she had no

bond whatsoever with L.C.

       Finally, Appellants argue the trial court did not give enough consideration to

Mother’s obtainment of her GED and other classes taken during her term of incarceration.

Our standard of review obligates us to decline Appellants’ request to reweigh the evidence.

Even if Mother’s conduct has arguably improved since her arrest, the evidence favorable

to the judgment reflects her unfitness. The trial court did not believe Mother had made

sufficient improvements to be considered a fit parent nor did it believe such improvement

was likely, noting that adoption should not be denied “on the speculative chance that

[Mother] might someday be a fit parent.” Appellants’ App. at 32-33. This is a judgment

call we are not in a position to question.

                                     B. Father’s Unfitness

       The trial court likewise found there was clear and convincing evidence proving

Father was unfit. Because Mother and Father lived together and shared responsibility for

S.A. from the time she was born until their arrest, many of the facts relied on to find Mother

unfit equally apply to Father. Those circumstances include Father’s unsafe and unstable

living situations, continuous drug abuse, and criminal behavior. Father admitted he had a

substantial drug problem which included the use of cocaine, heroin, crack cocaine,

                                             15
marijuana, prescription pain medication, and alcohol.

        Additional facts support the trial court’s finding that Father is unfit. As noted above,

mental health is another factor that may be considered in determining whether a parent is

unfit. See In re Adoption of M.L., 973 N.E.2d at 1223. Father has been diagnosed with

bipolar disorder and has been previously treated with Zoloft, Prozac, and Seroquel. Father

also admitted to attempting suicide three different times.

        Appellants argue the trial court improperly considered Father’s lengthy term of

incarceration. We disagree. It is true in cases involving the issue of abandonment we have

said “[i]mprisonment standing alone does not . . . allow an adoption to take place without

obtaining the consent of an incarcerated parent.” In re Adoption of Herman, 406 N.E.2d

277, 279 (Ind. Ct. App. 1980). However, the trial court’s order cannot fairly be read as

having been based solely on Father’s incarceration, where his drug abuse, criminal

behavior, mental health, and provision of an unstable environment for S.A. were all

circumstances considered by the trial court. That said, we believe Father’s lengthy

incarceration—which will continue after both children have reached the age of majority—

and consequential inability to support the children, is a factor the trial court may properly

consider in its analysis.3

                                   C. Best Interests of the Children

        Finally, Appellants contest the trial court’s conclusion that adoption by the



        3
         Appellants’ remaining arguments as to Father’s fitness are similar to those made with respect to
Mother, and we are asked to consider alleged improvements made by Father since his incarceration. These
arguments are unavailing because, again, we do not reweigh evidence.

                                                   16
Prospective Adoptive Parents is in the children’s best interests. “[T]he primary concern in

every adoption proceeding is the best interest of the child.” In re Adoption of K.S.P., 804

N.E.2d 1253, 1255 (Ind. Ct. App. 2004) (citation omitted). At the time the hearings were

held by the trial court, the Prospective Adoptive Parents had maintained physical custody

over the children for nearly three years. As the trial court noted, the children consider the

Prospective Adoptive Parents their true parents and have developed a close relationship

with them. The Prospective Adoptive Parents are willing and able to provide a stable

environment for the children and care for them emotionally and financially. Overall, the

evidence supports the trial court’s conclusion that adoption is in the children’s best

interests.

       Arguing adoption is not in the children’s best interest, Appellants state that the

Prospective Adoptive Parents “thwarted” efforts by Mother and Father to have contact with

the children prior to the hearings. Brief of Appellants at 17. Appellants believe this

conduct reflects poorly on the Prospective Adoptive Parents. We do not find this position

persuasive, given that the juvenile court issued a no contact order during CHINS

proceedings because it did not believe contact between the parents and children was

appropriate.

       Finally, Appellants state that the Prospective Adoptive Parents’ ability to provide a

higher standard of living for the children does not mean adoption is in the children’s best

interests. We agree. That said, Appellants seem to concede the children’s standard of

living will be better with the Prospective Adoptive Parents, and Appellants do not explain

how that fact renders the trial court’s judgment clearly erroneous.

                                             17
                                     Conclusion

      Concluding the trial court’s decision to grant the petition for adoption was not

clearly erroneous, we affirm.

      Affirmed.

BARNES, J., and BROWN, J., concur.




                                         18
