MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jul 14 2017, 8:54 am
court except for the purpose of establishing                                        CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Eric D. Orr                                              Joseph M. Johnson, II
Eric D. Orr, Attorney                                    Joseph M. Johnson, P.C.
Berne, Indiana                                           Decatur, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

IN RE: The Adoption of                                   July 14, 2017
N.D.K., and A.A.K.,                                      Court of Appeals Case No.
                                                         01A02-1612-AD-2788
D.R.K.,                                                  Appeal from the Adams Circuit
Appellant-Respondent,                                    Court
                                                         The Honorable Chad E. Kukelhan,
        v.                                               Judge
                                                         Trial Court Cause No.
A.S.K.,                                                  01C01-1604-AD-5
Appellee-Petitioner.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017             Page 1 of 12
                                             Case Summary
[1]   D.R.K. (“Birth Mother”) appeals the trial court’s order granting the petition of

      A.S.K. (“Adoptive Mother”) to adopt Birth Mother’s children, N.D.K. and

      A.A.K. We affirm.


                                                     Issues
[2]   The issues before us are:


              I.       whether the trial court properly admitted
                       neuropsychological records regarding A.A.K. into
                       evidence; and


              II.      whether there is sufficient evidence to support the trial
                       court’s conclusion that Birth Mother’s consent to the
                       adoption was unnecessary.


                                                     Facts
[3]   N.D.K. was born in 2000 and A.A.K. was born in 2003. Birth Mother was

      married to J.N.K. (“Father”) when they were born. Birth Mother and Father

      subsequently divorced. Father began living with Adoptive Mother in 2007, and

      they married in 2014. Adoptive Mother has no criminal history, and both she

      and Father have a steady employment and residential history.


[4]   Shortly after Birth Mother and Father’s divorce, in January 2008, the children

      were found to be children in need of services. On February 9, 2009, Father was

      granted custody of the children after he and Birth Mother stipulated to it and

      the local office of the Department of Child Services consented to it. The order

      Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 2 of 12
      from that date relates in part, “[Birth Mother] consents to the grant of custody

      and believes it is in the best interests of the minor children that [Father] be

      granted sole legal and physical custody of the minor children.” Appellant’s

      App. Vol. II p. 50. The order also stated, “[Birth Mother] is entitled to

      supervised parenting time only as agreed by the parties or at a minimum one

      time per week as supervised by an independent agency paid for by [Birth

      Mother].” Id. at 49. As to child support, the order stated that Birth Mother was

      “required” to pay it but did not set a dollar amount. Id.


[5]   Between the date of this order and December 2012, Mother exercised no

      visitation with the children at all, nor did she ever ask for any visitation. Birth

      Mother was incarcerated from May to July 2009 after her participation in a

      drug court program was revoked. In November 2010, she was arrested and

      jailed on a charge of Class C felony forgery and was eventually convicted of

      that offense. She was released from prison in November 2011.


[6]   In August 2012, Birth Mother wrote a letter to the trial court, asking it “to step

      in to help grant me visitation rights with my 2 oldest [N.D.K. and A.A.K.].”

      Id. at 51. The February 2009 order regarding visitation was still in effect at that

      time. Regardless, the trial court held a hearing on the matter. It issued the

      following order on November 30, 2012:


              Parties appear for hearing on visitation issues. By agreement of
              parties the Court orders that the Respondent/Mother shall have
              supervised visitation with the children through SCAN in Allen
              County, IN, and to the extent affordable that counseling
              involving the children and the mother occur.

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              The parties shall cooperate with one another in communicating
              and working out a schedule in accordance with dates available
              on SCAN’s calendar for the visitations.


      Id. at 53.


[7]   Between December 14, 2012 and April 5, 2013, Birth Mother had

      approximately sixteen one-hour supervised visits with the children. The

      visitations stopped because Birth Mother had admitted violating probation for

      her forgery conviction by taking methadone. She was ordered to serve three

      years of her previously-suspended sentence, which resulted in Birth Mother

      being incarcerated until March 2015. On April 15, 2015, Birth Mother was

      convicted of driving while suspended and received a 180-day suspended

      sentence. On June 30, 2015, Birth Mother admitted to violating her probation

      by using morphine and methamphetamine, and she was ordered to serve her

      suspended sentence. Also, on June 28, 2015, Mother was convicted of theft.


[8]   On December 5, 2015, Birth Mother was released from jail on her most recent

      sentences. Afterwards, Birth Mother began communicating surreptitiously with

      A.A.K. by text and email. These communications led to two or three overnight

      visits with Birth Mother and A.A.K. at the house of one of A.A.K’s friends

      between December 2015 and February 2016. Father was unaware of these

      communications and visits until N.D.K. saw a message on A.A.K.’s tablet and

      reported it to Father. A.A.K.’s behavior changed during this three-month

      period for the worse; such behavior included lying, stealing, lashing out, and

      inappropriate internet chatting with men. Father and Adoptive Mother barred

      Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 4 of 12
       A.A.K. from visiting her friend after learning about her secret visits with Birth

       Mother.


[9]    On February 19, 2016, another probation violation petition was filed against

       Birth Mother for using methadone, to which Birth Mother admitted. She then

       was placed on home detention, and on April 19, 2016, she was alleged to have

       violated the terms of that placement by using methadone and amphetamines.

       Birth Mother admitted to those violations and then was put into another drug

       court program.


[10]   On April 6, 2016, Adoptive Mother filed a petition to adopt N.D.K. and

       A.A.K., with Father’s consent. The petition alleged Birth Mother’s consent

       was not required because she had abandoned the children or otherwise met

       statutory requirements for her consent being unnecessary. During the hearing,

       Birth Mother acknowledged that her visitation with the children had been

       sparse because she thought it was harmful to them, emotionally, to see her

       doing better but then learn she had been arrested again and was doing drugs.

       Birth Mother also claimed she had attempted to give money to Father on a few

       occasions but that he rebuffed her offers; Father and Adoptive Mother testified

       that Birth Mother had never offered any financial support for the children. The

       sole exception to this was Birth Mother sending fifty dollars to N.D.K. for his

       birthday in 2014; Father returned this money to her because he believed she

       should have spent it on having supervised visitation with N.D.K. Except for

       Christmas in 2012 and 2015, Birth Mother never gave any gifts to the children.



       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 5 of 12
[11]   With respect to communicating with the children, Birth Mother claimed she

       “faithfully” wrote letters to them once a month during her periods of

       incarceration between 2009 and 2012; Father and Adoptive Mother, however,

       only recalled the children receiving letters once or twice a year, at most. Tr. p.

       81. Since 2014, Birth Mother sent at most two letters to the children. N.D.K.

       also testified in favor of the adoption, stating that he was “use to the hurt

       [caused by Birth Mother]. Just let it go.” Id. at 76. During the hearing, Father

       presented evidence of A.A.K.’s emotional/behavioral difficulties and learning

       disabilities. As part of this evidence, the trial court permitted Father to

       introduce, over Birth Mother’s objection, two reports prepared by a

       neuropsychologist who examined A.A.K. in 2009 and again in 2016. The

       neuropsychologist did not testify.


[12]   On November 9, 2016, the trial court entered an order granting Adoptive

       Mother’s adoption petition. The order, which included findings of fact and

       conclusions thereon at Birth Mother’s request, found that Birth Mother’s

       consent to the adoption was not necessary. Birth Mother now appeals.


                                                   Analysis
                            I. Introduction of Neuropsychological Reports

[13]   The first issue we address is whether the trial court erred in allowing Father to

       introduce the neuropsychological reports concerning A.A.K. into evidence.

       Rulings on the admissibility of evidence fall within the sound discretion of our

       trial courts. State Farm Mut. Ins. Co. v. Earl, 33 N.E.3d 337, 340 (Ind. 2015). An


       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 6 of 12
       abuse of discretion occurs if a trial court’s ruling is clearly against the logic and

       effect of the facts and circumstances before it or if the trial court erred on a

       matter of law. Santelli v. Rahmatullah, 993 N.E.2d 167, 175 (Ind. 2013). Even if

       evidence is improperly admitted, we will not reverse a judgment unless that

       error was clearly prejudicial. Id. As Indiana Appellate Rule 66(A) states:


               No error or defect in any ruling or order or in anything done or
               omitted by the trial court or by any of the parties is ground for
               granting relief or reversal on appeal where its probable impact, in
               light of all the evidence in the case, is sufficiently minor so as not
               to affect the substantial rights of the parties.


[14]   Birth Mother contends the reports were inadmissible hearsay. We find it

       unnecessary to address the merits of that claim, as any error in the introduction

       of the reports would have been harmless. The best indicator of harmlessness

       here is that the trial court nowhere mentions the reports in its thirty-three-page

       order granting the adoption. The order contains detailed findings and

       conclusions, per Birth Mother’s request. Thus, it is apparent that the trial court

       placed little to no weight upon the reports. Moreover, the question of A.A.K.’s

       mental and emotional health is secondary to the central issue in this case:

       whether Birth Mother’s actions (or lack thereof) negated the necessity of

       obtaining her consent to the adoption. There is considerable evidence on that

       point, entirely aside from anything contained in the reports. Birth Mother

       cannot claim reversible error based on the introduction of the reports.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 7 of 12
                                 II. Necessity of Birth Mother’s Consent

[15]   Next, we address whether the trial court correctly found that Birth Mother’s

       consent to the adoption was unnecessary. When reviewing a trial court’s

       decision in an adoption case, we will not reweigh the evidence or judge witness

       credibility. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012).

       We will consider only the evidence most favorable to the trial court’s decision

       and the reasonable inferences therefrom in determining whether there is

       sufficient evidence to sustain the decision. Id. We will not disturb the trial

       court’s decision unless the evidence leads to only one conclusion and the trial

       court reached an opposite conclusion. Id.


[16]   Additionally, the trial court entered findings of fact and conclusions thereon at

       Birth Mother’s request pursuant to Indiana Trial Rule 52(A). Thus, we must

       determine whether the evidence supports the findings and whether the findings

       support the judgment. Id. “We will not set aside the findings or the judgment

       unless they are clearly erroneous.” Id. Findings are clearly erroneously only if

       the record lacks any evidence or reasonable inferences therefrom to support

       them, and a judgment is clearly erroneous only if it is unsupported by the

       findings and the conclusions relying on those findings. Id.


[17]   A biological parent’s consent to his or her child’s adoption normally is required

       under Indiana Code Section 31-19-9-1. However, there are a number of

       situations in which a trial court may find that a biological parent’s consent is

       not needed. Adoptive Mother’s petition alleged, and the trial court’s order


       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 8 of 12
found, that Birth Mother’s consent was not required under the following

statutory provisions defining persons who consent to adoption is not required:


        (1) A parent or parents if the child is adjudged to have been
        abandoned or deserted for at least six (6) months immediately
        preceding the date of the filing of the petition for adoption.


        (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.


                                              *****


        (11) A parent if:


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


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


Ind. Code § 31-19-9-8(a). An adoption petitioner has the burden of proving by

clear and convincing evidence that a biological parent’s consent to the adoption

was not required. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 9 of 12
       2012). Proof on any one of the statutory grounds for dispensing with consent is

       sufficient to support the granting of an adoption petition. Id.


[18]   We conclude there are sufficient findings and evidence to support the

       conclusion that Birth Mother was unfit and that adoption was in the best

       interests of N.D.K. and A.A.K.; we need not address the other possible reasons

       for dispensing with Birth Mother’s consent. The factors courts should consider

       when deciding whether a parent is unfit in an adoption case are essentially

       identical to those considered in a termination of parental rights case. Id. at

       1223. Those factors 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.

       Other relevant factors bearing on fitness include a parent’s criminal history and

       failure to provide support. S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,

       1123 (Ind. Ct. App. 2013).


[19]   Here, Birth Mother has been in and out of prison or jail for the last ten years,

       while N.D.K. and A.A.K. have been living a stable life with Father and

       Adoptive Mother for most of that time. Birth Mother’s serious criminal history

       began in 2002 and now includes four felony convictions and five misdemeanor

       convictions, as well as numerous revocations of probation. Many of her

       offenses and probation revocations have been directly related to her illegal drug

       usage. Despite repeated opportunities to address that problem, it has not been

       solved, or never has been solved for any substantial period of time. In that

       same time period, Birth Mother only visited with the children regularly between

       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 10 of 12
       December 14, 2012 and April 5, 2013. Her attempts to visit with A.A.K. in late

       2015 and early 2016 were in violation of the supervised visitation order; Birth

       Mother had agreed to supervised visitation in both 2009 and 2012 and never

       moved to change that arrangement. Birth Mother’s communication with the

       children outside of visitation was sporadic at best. She never provided any

       financial support for their care, even when she was not incarcerated and was

       employed or when she was on work release. All in all, there is clear and

       convincing evidence that, unfortunately, Birth Mother is unfit, in light of her

       criminal history, substance abuse, lack of visitation and communication with

       the children, and failure to provide any support.


[20]   We now address whether dispensing with Birth Mother’s consent to the

       adoption is in the children’s best interests. The best interests of the child or

       children is the primary concern in every adoption proceeding. M.L., 973

       N.E.2d at 1224. The permanent placement of children in stable homes serves

       the interests of both the children and the State. In re Adoption of J.B.S., 843

       N.E.2d 975, 977 (Ind. Ct. App. 2006). “An adoption enables a child to be

       raised in a stable, supportive, and nurturing environment and precludes the

       possibility of state wardship.” Id. It also allows the child to access the adoptive

       parent’s insurance, housing, inheritance, and governmental benefits. Id.


[21]   Birth Mother conceded during the adoption hearing that her repeated drug

       relapses and numerous forays in and out of the criminal justice system have

       placed a great emotional strain on the children. By contrast, the evidence

       indicates that Adoptive Mother has been a stable, nurturing, and supportive

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       presence in the lives of the children for nearly a decade now. N.D.K., who was

       sixteen at the time of the hearing, testified unequivocally in support of the

       adoption as being in his and A.A.K’s best interests. He also discussed the

       negative impact of Birth Mother’s drug use and criminal behavior on he and

       A.A.K. There also was evidence of a dramatic increase in negative behavior by

       A.A.K. during the period in late 2015 and 2016 when she was secretly

       communicating and visiting with Birth Mother. A.A.K. has special emotional

       and educational needs that clearly can be best addressed in a stable

       environment such as that provided by Adoptive Mother and Father. In sum,

       there is clear and convincing evidence that it is in the best interests of the

       children to allow their adoption by Adoptive Mother to go forward without

       obtaining Birth Mother’s consent. This, in conjunction with the evidence and

       findings that Birth Mother is unfit, dispenses with the necessity of obtaining her

       consent to the adoption.


                                                 Conclusion
[22]   Any possible error in the introduction of the neuropsychological reports for

       A.A.K. was harmless. The evidence and findings clearly and convincingly

       support the conclusion that Birth Mother is unfit and that the children’s

       adoption by Adoptive Mother is in their best interests. We affirm the granting

       of the adoption petition without Birth Mother’s consent.


[23]   Affirmed.


       Baker, J., and Crone, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 01A02-1612-AD-2788 | July 14, 2017   Page 12 of 12
