Pursuant to Ind.Appellate Rule 65(D),

                                                            FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
                                                          Feb 22 2012, 9:43 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.                                                     CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

JOHN P. BULLMAN                                  CHRISTOPHER M. FORREST
Bullman Law Office                               Forrest Legal, LLC
Fort Wayne, Indiana                              Fort Wayne, Indiana


                                 IN THE
                       COURT OF APPEALS OF INDIANA

THE MATTER OF THE ADOPTION OF                    )
M.S.T., a minor,                                 )
                                                 )
R.P.M.T.,                                        )
                                                 )
        Appellant-Respondent,                    )
                                                 )
                 vs.                             )    No. 02A03-1106-AD-258
                                                 )
C.K. and J.P.,                                   )
                                                 )
        Appellees-Petitioners.                   )


                        APPEAL FROM THE ALLEN SUPERIOR COURT
                             The Honorable Charles F. Pratt, Judge
                                Cause No. 02D07-1003-AD-55


                                      February 22, 2012

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       R.P.M.T. (“Father”) appeals the trial court’s granting a petition to adopt his son,

M.S.T., filed by C.K. and J.P. (collectively “the Petitioners”). We affirm.

                                            Issues

       Father raises four issues, which we consolidate and restate as whether the trial

court properly concluded that his consent to the adoption was not required because he

knowingly failed to provide for the care and support of M.S.T.

                                            Facts

       M.S.T. was born on December 1, 2000, in Illinois. At that time, Father was

married to M.S.T.’s mother, T.T. (“Mother”).1 In November 2002, because of concerns

about M.S.T.’s delayed speech, Father and Mother agreed that M.S.T. would live in Fort

Wayne with C.K., Father’s maternal aunt, and her partner J.P., a clinical specialist in

speech language pathology. The parties agreed that the Petitioners would care for M.S.T.

until he was school-aged.

       In December 2002 and May 2003, Father and Mother executed “child care

authorization letters” drawn up by the Petitioners’ attorney. Ex. 3, 4. The December

letter granted C.K. the authority to temporarily care for M.S.T., and the May letter

granted C.K. and J.P. the authority to temporarily care for M.S.T. The letters were

“[e]ffective until terminated by the parent.” Id.




1
  Mother has not had any significant communication with M.S.T. since 2002, and is not a party on
appeal.
                                               2
        In the fall of 2003, Father and Mother got divorced, and Father asked C.K. to keep

M.S.T. more permanently. On December 19, 2003, during divorce proceedings, an

Illinois court issued an order acknowledging M.S.T. had been placed with C.K. by the

agreement of Father and Mother, awarding Father custody of M.S.T., and permitting

Father to place M.S.T. with C.K. for guardianship purposes.           However, no legal

guardianship was ever established.

        M.S.T. remained with C.K., whom he referred to as his aunt, and J.P., whom he

referred to as his mom. Father and Father’s mother, M.T., who is C.K.’s sister, would

visit M.S.T. in Fort Wayne, and the Petitioners would take M.S.T. to Illinois to visit

Father and M.T.

        In early 2010, Father requested that M.S.T. be returned to him. On March 26,

2010, the Petitioners filed a petition to adopt M.S.T. Father contested the adoption. On

April 21, 2011, after a hearing, the trial court concluded that Father’s consent to the

adoption was not required and granted the adoption petition. The trial court found in

part:

              17.    The father is vision impaired and is unable to operate a
              motor vehicle. He therefore relies on others, primarily
              [M.T.], to [sic] his transportation to and from work. He also
              suffers from other physical challenges. He is hydrocephalic
              and suffers from seizures that are largely controlled with
              medication. Possible owing to these circumstances, the
              father’s personality and behavior is rather isolated. The
              father’s conversation and engagement with others is limited
              during visits with [M.S.T.] and other family members.

              18.    Notwithstanding the above recited circumstances, the
              father is in good athletic condition and is employed through
              Goodwill Industries at the Great Lakes Naval Center. He has

                                            3
been employed through-out the time that [M.S.T.] has lived
with Petitioners.      He currently earns approximately
$30,000.00 per year[.]

19.    The father’s income is managed by his mother. From
his earnings, [M.T.] pays the father’s bills, purchases his
groceries, and places a portion in a joint savings account.

20.    The Father resides in a two bedroom duplex owned by
him and his mother for which he pays her rent. The other
side of the duplex is leased by a tenant.

21.    The father engages in few activities and there are
limited demands on his income. He describes a daily routine
of going to work, followed by a nap. His day also includes
weight lifting and a physical workout on a treadmill.

22.   The father has not provided for [M.S.T.’s] care and
support since the child’s placement with Petitioners. He
acknowledges that he has a duty to provide for the child.

23.    [M.T.] testified that support was offered to the
Petitioners but declined on two occasions in the eight and
one-half years [M.S.T.] has been in their care. Her testimony
is disputed by the Petitioners.

24.     The first of the two offers to provide support, as
asserted by [M.T.], was made to [C.K.] in a telephone call
during a recess from the December 19, 2003, Illinois court
hearing. [C.K.] denies receiving any call from [M.T.] and the
resulting order makes no reference to support. The second
offer, according to [M.T.], was made in March or April 2006
while visiting [C.K.] in Indiana. [M.T.] testified that in a
private conversation an offer to pay support in the sum of
$200.00 per month was made. The offer was reportedly
declined by [C.K.] who explained that they were receiving
TANF benefits for [M.S.T.]. [C.K.] denies that any such
conversation occurred.

25.    There is no evidence that the offers for support were
made at the direction, request and/or authorization of the
father or the mother.


                             4
             26.    There is no evidence that the father or the mother ever
             personally offered or tendered any money for the provision of
             [M.S.T.’s] care and support in the eight and one-half years he
             has lived with the Petitioners.

             27.     Petitioners have claimed [M.S.T.] as a dependent for
             federal and state tax purposes and have been qualified for the
             earned income tax credits and TANF benefits. However, no
             entitlement dollars have been received by the Petitioners that
             are attributable to the earnings and/or any benefit status of the
             father or mother.

App. pp. 12-13. The trial court concluded in part:

             9.      Although his mother may have made overtures to
             provide for the child’s care and support, the father, who bears
             the duty for the child’s care, has never made any such
             communication or offer. The Court concludes that any offer
             by a third party to contribute to the child’s care cannot be in
             substitution to the father’s obligation under the law. The
             rights of a parent to his or her child are specific to the
             individual as are the parent’s obligations and duties. A parent
             cannot avoid the consequences of his or her failure to provide
             for a child’s care, as contemplated under I.C. 31-19-9-8, by
             relying on the gratuitous and nonspecific offers made by a
             third party that were not originated and / or known by the
             parent.

             10.    . . . . Now consent is not dispensed with in all cases
             where the father failed to pay support; it is only dispensed
             with when, for a period of at least a year, he “knowingly fails
             to provide for the care and support of the child when able to
             do so as required by law or judicial decree.” . . . . In this case
             the father is gainfully employed, owns real estate, has
             minimal expenses, and engages in few activities that would
             bring stressors on his financial circumstances.

             11.    In addition to the lack of fiscal support for the child,
             the father is not engaged in any of the child’s activities or
             education. He has had only nominal involvement with the
             child’s education and has not demonstrated any understanding
             or support for the child’s needs as a gifted and talented
             student. Although he has expressed an interest in the return

                                             5
             of the child to his care, he has yet to modify his home to
             accommodate the child’s sleeping arrangements and has
             proposed a plan that would require another third party to
             assume the primary and daily responsibilities for the child
             care.

             12. Based on the foregoing the Court finds and concludes
             that the Petitioners have established by the clear and
             convincing evidence that the father has knowingly failed to
             provide for the child’s care and support when able to do so as
             required by law for a period of over one year prior to the
             filing of the petition for adoption. Accordingly, his consent
             to the adoption is not required.

Id. at 17-18. Father filed a motion to correct error, which was denied. Father now

appeals.

                                        Analysis

      The Petitioners requested findings of fact and conclusions thereon. Accordingly,

we apply the following two-tiered standard of review: we determine whether the evidence

supports the findings and whether the findings support the judgment. Devlin v. Peyton,

946 N.E.2d 605, 607 (Ind. Ct. App. 2011). “The trial court’s findings of fact and

conclusions thereon will be set aside only if they are clearly erroneous, that is, if the

record contains no facts or inferences supporting them.” Id. “A judgment is clearly

erroneous when a review of the record leaves us with a firm conviction that a mistake has

been made.” Id. We neither reweigh the evidence nor assess the credibility of witnesses

and consider only the evidence most favorable to the judgment. Id.

      At issue here is whether Father’s consent to the adoption was required. Pursuant

to Indiana Code Section 31-19-9-8,



                                           6
              (a) 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

                            (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. . . .

Because the trial court specifically concluded that Indiana Code Section 31-19-9-

8(a)(2)(A) was not a basis to dispense with Father’s consent, our review is limited only to

whether, for at least one year, Father knowingly failed to provide for the care and support

of M.S.T. when able to do so as required by law or judicial decree.             Under these

circumstances, the Petitioners had burden of proving Father’s consent was unnecessary

by clear and convincing evidence. See In re Adoption of M.B., 944 N.E.2d 73, 77 (Ind.

Ct. App. 2011); Ind. Code § 31-19-10-1.2(a).

                                   I. Findings of Fact

       Father argues that the trial court’s finding number 25 was clearly erroneous. This

finding provides, “There is no evidence that the offers for support were made at the

direction, request and/or authorization of the father or the mother.” App. p. 13. Father

argues that M.T. “had both the express and implied authority to offer child support on

behalf of her son as she handled his financial affairs, his bank account and payment of his

bills, and made all visitation arrangements.” Appellant’s Br. p. 20.

                                             7
       The trial court acknowledged that the evidence of the offers of support by M.T.

was disputed by the Petitioners. Even assuming these offers were made, there is no

evidence that they were made in M.T.’s capacity as Father’s agent.

       Regarding an agent’s authority we have explained:

              Actual authority is created by written or spoken words or
              other conduct of the principal which, reasonably interpreted,
              causes the agent to believe that the principal desires him so to
              act on the principal’s account. The focus of actual authority
              is the belief of the agent. Actual authority may be express or
              implied and may be created by acquiescence.

Fidelity Nat. Title Ins. Co. v. Mussman, 930 N.E.2d 1160, 1165 (Ind. Ct. App. 2010)

(citations omitted), trans. denied.

       Father argues, “Given the fact that father was virtually handicapped and his

mother handled his financial and visitation arrangements, the most logical inference is

that his mother offered support on his behalf.” Appellant’s Reply Br. p. 7 (citations

omitted). At the hearing, Father explained that he handed his financial affairs over to

M.T. after his “finances were messed up by [his] ex-wife” and that there was no

particular reason for letting the arrangement continue. Tr. p. 449. He testified, “I could

do it myself. . . . I just choose to leave it the way it is. Like I said, it’s not broken, so I

just don’t try to fix it.” Id. at 450. Although Father directs us to his testimony that he has

“some vision problems” and cannot drive, id. at 365, this evidence does not support

Father’s assertion that he was “virtually handicapped” so as to prevent him from handling

his own financial affairs, and there is no evidence Father has been declared incompetent

to handle such.


                                              8
       Further, Father does not direct us to any evidence that M.T. made the offers of

support based on his words or conduct that reasonably caused her to believe that he

desired her to do so—either expressly or impliedly. Because the record does not reveal

that M.T. made the offers at Father’s direction, request, or authorization, Father has not

established that this finding was not supported by the evidence.

       Father also argues that the trial court’s finding number 26 is not supported by the

evidence. That finding provides, “There is no evidence that the father or the mother ever

personally offered or tendered any money for the provision of [M.S.T.’s] care and

support in the eight and one-half years he has lived with the Petitioners.” App. p. 13.

Father claims that, in addition to M.T.’s offers of support for which he was present, he

asked the petitioners if they needed money and they said no.

       The testimony to which Father’s refers in support of this argument is vague.

Specifically, Father testified, “Well, you know, asked [the Petitioners] if they needed

money and they said no.”2           Tr. p. 529.       Moreover, Father answered “No.” when

questioned, “But you never asked . . . if they needed money. Right?” Id. at 529-30.

Father also answered “No.” when asked, “have you ever offered any financial assistance

to [the Petitioners]?” Id. at 470. Accordingly, Father has not established that this finding

is not supported by the evidence.

             II. Conclusion that Father Knowingly Failed to Provide Support




2
 No words are missing from this quote. Father did not testify who asked the Petitioners if they needed
money.
                                                  9
        Father argues that the trial court erroneously concluded that his consent to the

adoption was not required because he knowingly failed to provide for M.S.T.’s care and

support.3    To the extent Father points out there was no court-ordered child support

obligation, Indiana law imposes a duty upon a parents to support their children. In re

M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004). “This duty exists apart from any

court order or statute.” Id. It is well-settled that parents have a common law duty to

support their children, and the lack of a court order did not relieve Father of that

obligation. See M.B., 944 N.E.2d at 77. Father even recognized this obligation when he

testified that, as M.S.T.’s father, he has always had a duty to “financially take care of”

M.S.T. Tr. p. 529. The lack of a court-ordered child support obligation is not a basis for

reversal.

        Father also asserts that the trial court’s conclusion is incorrect because he did not

knowingly “refuse” to pay support. Appellant’s Br. p. 20. The statute, however, requires

only that a parent “knowingly fails to provide for the care and support of the child when

able to do so as required by law or judicial decree.” I.C. § 31-19-9-8-(a)(2)(B) (emphasis

added). In the absence of authority supporting this assertion, Father has not established

that the evidence must show that he knowingly “refused” pay for M.S.T.’s care and

support.

        In support of his argument that he did not knowingly fail to provide for the care

and support of M.S.T., Father contends that the childcare authorization letters drafted by


3
  Father does not argue on appeal that he was unable to support M.S.T or that he did provide for the care
and support of M.S.T. after 2002.
                                                   10
the Petitioners did not require Father to pay support, that the Petitioners never requested

support from him, that the Petitioners did not want support, that the Petitioners did not

need support, and that the Petitioners received TANF benefits instead of seeking child

support from him and could not have received both. Father also suggests that the

Petitioners did not want to return M.S.T. to him and did not want to “rock the boat” by

asking for support. On all of these points, Father is asking us to reweigh the evidence,

which we cannot do. Appellant’s Br. p. 17.

        Father also argues that his regular visitation and communication with M.S.T. and

his good income are evidence that he did not intend to relinquish his parental rights.

Although the trial court concluded that Father did not abandon M.S.T. and did not fail to

communicate with him for a year, the trial court described Father’s contact with M.S.T.

as “infrequent and often with limited interaction[.]” App. p. 16. Father’s argument on

this point is another request to reweigh the evidence, which we must decline.

        The trial court found that Father acknowledged his duty of support, that he had not

provided for M.S.T.’s care and support since M.S.T. was placed with the Petitioners, that

M.T.’s two4 offers of support were disputed by C.K., that there was no evidence Father


4
   In its findings, the trial court acknowledged M.T.’s testimony regarding her two offers of support.
Father points out that his grandmother, who is M.T.’s and C.K.’s mother, provided video-taped testimony
regarding a third offer and that this testimony was not mentioned in the trial court’s findings and
conclusions. Father argues that it “makes one wonder if the trial court even watched the video of C.K.’s
own mother.” Appellant’s Reply Br. p. 10. Although Father’s grandmother’s testimony is inconsistent
with M.T.’s own testimony describing the only two offers she made, Father contends that, because his
grandmother was M.T.’s and C.K.’s mother, her testimony “should have been given substantial weight.”
Id. Without more, Father has not established that the trial court overlooked his grandmother’s testimony
and, to the extent it is inconsistent with M.T.’s testimony, we may not reweigh the evidence. Regardless,
Father’s grandmother’s testimony that M.T. made a third offer of support to C.K. does not change the
outcome.


                                                   11
directed, requested, or authorized M.T. to make the purported offers of support, and that

Father never personally offered or tendered any money for M.S.T.’s care and support.

These findings support that trial court’s conclusion that Father knowingly failed to

provide for the care and support of M.S.T. as required by Indiana Code Section 31-19-9-

8(a)(2)(B).

                                            III. Estoppel

       Father argues that the Petitioners should be estopped from claiming that his

consent was not required because they refused the offers of support, inducing him to stop

making offers.5 Estoppel is “a concept by which one’s own acts or conduct prevents the

claiming of a right to the detriment of another party who was entitled to and did rely on

the conduct.” Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001).

       Presuming the doctrine of estoppel applies in this context, Father’s claim is

unavailing. First, the evidence of any offers of support was disputed by the Petitioners.

Both C.K. and J.P. testified that neither M.T. nor Father offered any financial assistance

and that, accordingly, they never refused an offer of support. Further, the trial court

found that there was no evidence that the purported offers were made at the direction,

request, or authorization of Father. The trial court concluded that, although M.T. may

have made “overtures” to provide support, those offers were “gratuitous and

nonspecific.” App. p. 17.




5
   Father specifically frames this argument as one of estoppel and not waiver. See Appellant’s Reply Br.
p. 4.
                                                  12
       Even assuming M.T. made the two offers of support during the eight years M.S.T.

was in the Petitioners’ custody and the Petitioners rejected those offers, we cannot

conclude that the Petitioners’ rejection of M.T.’s occasional offers induced Father to act

in a particular manner. Because Father never instigated the offers of support, he cannot

now claim that he was entitled to and did rely on the Petitioners rejection of M.T.’s

offers. Likewise, we are not convinced that Father was entitled to and did rely on the

Petitioners’ failure to seek child support and decision to pursue TANF benefits so as to

bar them claiming that Father’s consent to the adoption was not required.

       Accordingly, this case is distinguishable from In re Adoption of Bryant, 134 Ind.

App. 480, 189 N.E.2d 593 (1963), in which there was uncontradicted evidence that the

father made an offer of support, which was rejected by the mother. In analyzing a prior

version of the consent statute, we observed that the lack of support payments did not

constitute a failure within the meaning of the statute. Bryant, 134 Ind. App. at 492, 189

N.E.2d at 599. We concluded, “To hold otherwise would put the parental rights of every

father that has been deprived of custody of his children at the mercy of the children’s

custodian to extinguish such rights almost at will, by simply refusing his support.” Id.,

189 N.E.2d at 599. Here, because the disputed evidence shows that M.T. made the offers

of support, not Father, Bryant does not support Father’s estoppel argument. Father has

not established that the Petitioners should be estopped from asserting that his consent to

the adoption is not required.




                                           13
                                       Conclusion

      The evidence supports the findings and the findings support the trial court’s

conclusion that Father’s consent to the adoption was not required because he knowingly

failed to provide for the care and support of M.S.T., and the Petitioners are not estopped

from asserting that Father’s consent to the adoption is not required. We affirm.

      Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




                                            14
