ATTORNEYS FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Timothy E. Stucky                                    Earl Raskosky
Fort Wayne, Indiana                                  Fort Wayne, Indiana




                                            In the
                        Indiana Supreme Court
                                                                               Mar 11 2014, 12:43 pm
                                    No. 02S03-1308-AD-528


IN RE ADOPTION OF T.L. AND T.L.;

M.G.,
                                                                  Appellant (Respondent below),

                                                    v.

R.J. AND E.J.,
                                                                  Appellees (Petitioners below).


                              Appeal from the Allen Superior Court
                                  Nos. 02D07-1110-AD-155
                                         02D07-1110-AD-156
                              The Honorable Charles F. Pratt, Judge


        On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1208-AD-367



                                         March 11, 2014

Massa, Justice.

        M.G. (“Father”) challenges the trial court’s ruling that his consent to the adoption of his
children by their mother’s new husband was not required pursuant to Indiana Code § 31-19-9-
8(a)(2)(B) (2008). Because we find the evidence in the record sufficient to support the trial
court’s decision, we affirm the order of adoption.




                                     Facts and Procedural History


        Father has two children with R.J. (“Mother”), and she has physical custody of them. In
May 2002, the court ordered Father to pay child support of $30 per week retroactive to
November 28, 2001, the date the support petition was filed. In December 2004, that amount was
increased to $106 per week, retroactive to February 25, 2004, to account for the second child.
The record shows Father paid only $390 total in support: $290 on November 19, 2002 and $100
on May 18, 2005. Father has been incarcerated for most of the past eight years; during a brief
period of freedom, he was unemployed.


        In January 2011, Mother married her long-time boyfriend, E.J. On October 28, they
petitioned for E.J. to adopt the children. Father opposed the adoptions, but after a hearing 1 at
which he appeared with counsel, the trial court granted both petitions. In its orders, which
contained both findings of fact and conclusions of law, the trial court cited a statute that provides
a parent’s consent to an adoption is not required if that 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.” Ind.
Code § 31-19-9-8(a)(2)(B). That judgment was entered on the chronological case summary on
July 13, 2012. The clerk issued notice of the trial court’s order to Father’s attorney on July 17,
2012.    Father’s counsel forwarded the notice to Father along with a letter withdrawing
representation and informing Father he would have to pursue any appeal on his own.




1
  Although the adoption petitions were filed under separate cause numbers, the trial court addressed them
both in a single hearing. (See Tr.) The court disposed of the petitions in two separate orders, which were
filed the same day and contain very similar findings and conclusions. (App. at 1–8.)



                                                    2
       After losing his case and his lawyer, Father was transferred to Westville Correctional
Facility, where he had access to neither a law library nor the forms and instructions required to
perfect an appeal. Instead, he composed a letter entitled “Response to Petition for Adoption” and
mailed it on August 13, 2012—exactly 30 days after the entry of judgment, meaning had it been
a proper Notice of Appeal, it would have been timely filed. Ind. Appellate Rule 9(A)(1). In the
letter, Father set forth his intent to appeal the trial court decision but noted his attorney was no
longer willing to represent him. He requested a new attorney and a thirty-day extension to file a
Notice of Appeal. Although the letter did not contain all the information required by Appellate
Rule 9, the trial court nonetheless treated it as a Notice of Appeal and appointed Father new
counsel.   That counsel filed an Amended Notice of Appeal on August 23, 2012 that was
promptly served on petitioners’ counsel.


       On November 26, Father timely filed his Appellant’s Brief and Appendix. Mother and
E.J. moved to dismiss Father’s appeal as untimely, but they also filed an Appellee’s Brief on the
merits of the case. Our Court of Appeals granted the motion to dismiss in an unpublished
summary order and denied Father’s subsequent petition for rehearing. In re Adoption of T.L.,
No. 02A03-1208-AD-367 (Ind. Ct. App. Jan. 22, 2013) (order granting motion to dismiss); In re
Adoption of T.L., No. 02A03-1208-AD-367 (Ind. Ct. App. Apr. 23, 2013) (order denying
rehearing).


       Father sought transfer, arguing the Court of Appeals should have addressed his appeal on
the merits in spite of its procedural defects because it involves his constitutional right to parent
his children. We granted transfer. 2 In re Adoption of T.L., 992 N.E.2d 207 (Ind. 2013) (table);
Ind. Appellate Rule 58(A).




2
  We have stated “our appellate rules ‘exist to facilitate the orderly presentation and disposition of
appeals.’” Miller v. Dobbs, 991 N.E.2d 562, 565 (Ind. 2013) (quoting Boostrom v. Bach, 622 N.E.2d
175, 176 (Ind. 1993)), and our Court of Appeals has noted “[w]e are mindful that our procedural rules


                                                  3
                                           Standard of Review


        “When reviewing the trial court’s ruling in an adoption proceeding, we will not disturb
that ruling unless the evidence leads to but one conclusion and the trial judge reached an opposite
conclusion.” Rust v. Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999). We presume the trial
court’s decision is correct, and we consider the evidence in the light most favorable to the
decision. Id. at 771–72.


        When, as in this case, the trial court has made findings of fact and conclusions of law, we
apply a two-tiered standard of review: “we must first determine whether the evidence supports
the findings and second, whether the findings support the judgment.” In re Adoption of T.W.,
859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006); see also Ind. Trial Rule 52(A) (providing that
where the trial court has made findings of fact and conclusions of law, “the court on appeal shall
not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.”). Factual findings “are
clearly erroneous if the record lacks any evidence or reasonable inferences to support them [and]
. . . a judgment is clearly erroneous when it is unsupported by the findings of fact and the
conclusions relying on those findings.” T.W., 859 N.E.2d at 1217.




‘are merely means for achieving the ultimate end of orderly and speedy justice.’” State v. Monserrate,
442 N.E.2d 1095, 1097 (Ind. 1982) (quoting Am. States Ins. Co. v. Jennings, 258 Ind. 637, 640, 283 N.E.
2d 529, 531 (1972)). “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). When such substantial rights are at issue before the
Court, we have often preferred to decide cases on their merits rather than dismissing them on procedural
grounds. See In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013) (proceeding to a merits determination
even though the appeal of a trial court’s amended order was not timely filed); In re D.L., 952 N.E.2d 209,
212–14 (Ind. Ct. App. 2011) (proceeding to a merits determination although the notice of appeal only
contained a request that counsel be appointed and did not comply with Appellate Rule 9(F)). Because of
the importance surrounding an individual’s right to parent his children, we deny the Appellees’ Motion to
Dismiss and proceed to the merits of Father’s claim.



                                                    4
                     The Trial Court’s Decision Was Not Clearly Erroneous


        Father argues petitioners failed to prove, by clear and convincing evidence, that he was
able to support his children but failed to do so such that his consent to the adoption was not
required. Indiana law provides a parent’s consent to adoption is not required “if for a period of
at least one (1) year the 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.” Ind. Code § 31-19-9-8(a)(2). The
burden to prove this statutory criterion is satisfied by clear and convincing evidence rests
squarely upon the petitioner seeking to adopt. See In re Adoption of M.A.S., 815 N.E.2d 216,
220 (Ind. Ct. App. 2004). 3


        Here, the trial court found the following facts: although Father has been under a support
order since 2002, and the most recent support order was imposed in December 2004, Father has
made only two payments totaling $390 in that entire time. He made no payments at all after May
18, 2005. Based on that evidence, the trial court found Father “knowingly failed to provide for
the care and support of the child[ren] when able to do so as required by law or judicial decree.”




3
  For many years, precedent from our Court of Appeals required a party to prove the statutory criteria for
dispensing with consent to adoption by “clear, cogent, and indubitable evidence.” In re Bryant, 134 Ind.
App. 480, 493, 189 N.E.2d 593, 600 (1963). However, as the M.A.S. Court noted, the legislature
amended Ind. Code § 31-19-9-8(a) in 2003, namely section 11 which provides that consent to an adoption
will not be required from a parent if “a petitioner for adoption proves by clear and convincing evidence
that the parent is unfit to be a parent.” (emphasis added). If we continue to follow the “clear, cogent, and
indubitable” standard, a petitioner wishing to show a parent has failed to support their child for a period
of one year (under Ind. Code § 31-19-9-8(a)(2)) would have to do so by clear, cogent, and indubitable
evidence, while a petitioner wishing to show a parent is unfit (under Ind. Code § 31-19-9-8(a)(11)) would
have to do so by clear and convincing evidence. As the M.A.S. panel noted, “[t]he legislature could not
have intended such a result.” M.A.S. 815 N.E.2d at 220. Thus, we adopt the view held by the M.A.S.
panel that petitioners for adoption must prove by clear and convincing evidence that a parent’s consent to
adoption is not required under Ind. Code § 31-19-9-8(a)(2).



                                                     5
       Father contends he did not pay because he was incarcerated, but as we have said before,
“we cannot imagine that the legislature intended for incarcerated parents to be granted a full
reprieve from their child support obligations while their children are minors . . . Moreover,
adopting such a position would cut against the established common law tradition that has long
held parents responsible for the support of their offspring.” Lambert v. Lambert, 861 N.E.2d
1176, 1179 (Ind. 2007). Accordingly, we employ the “non-imputation approach” to determine
the child support obligation of incarcerated parents which requires that child support orders
reflect the “real financial capacity of a jailed parent.” Id. at 1181. This approach preserves our
tradition of responsibility by imposing at least a minimal level of support in compliance with
Indiana Child Support Guideline 2 without ignoring the realities of incarceration. Id.


       Father testified he attempted to modify his child support order while in prison; his first
petition for modification was filed in 2005 and the second in 2008. Both petitions were still
pending at the time of the adoption hearing. However, when Father was a free man and not
paying support, he did not seek a modification—likely because, as Father testified, he and
Mother agreed he did not have to pay child support “as long as [he] was in the kids’ life and [he]
was participating within their life.” Tr. at 23. However, “[i]t has long been established by this
Court that ‘[a]ny agreement purporting to contract away these [child support] rights is directly
contrary to this State’s public policy of protecting the welfare of children.’” Perkinson v.
Perkinson, 989 N.E.2d 758, 762 (Ind. 2013) (quoting Straub v. B.M.T., 645 N.E.2d 597, 600
(Ind. 1994)).    Thus, Father was bound by the child support orders despite his purported
agreement with Mother.


       What is more, Father testified he was not incarcerated until November 2004. 4 Thus,
approximately two years elapsed between his first child support payment of $290 on November




4
 Father states he has been “incarcerated from approximately the end of November 2004 through 2008
and then again incarcerated in 2008.” Appellant’s Br. at 5. The length of Father’s period of freedom in
2008 is not in the record.


                                                  6
19, 2002 and his incarceration—two years in which he made no further support payments. His
second and final support payment of $100 was made on May 18, 2005—fifteen months after the
most recent child support modification and while he claims he was in prison. Thus, Father’s own
actions demonstrate (1) he has not been incarcerated during the entire duration of the support
order and (2) even while he was incarcerated, he was able to pay at least some support.


       Based on Father’s history of payment (and non-payment), we cannot say the trial court’s
finding that Father was able to pay at least some support while incarcerated but chose not to do
so was unsupported by the evidence. Therefore, it was not clearly erroneous. That finding
supports the trial court’s judgment that Father’s consent to the adoption was not required under
Indiana law; thus, the judgment is also not clearly erroneous, and we must affirm.




                                            Conclusion


       We therefore deny Appellees’ motion to dismiss this appeal and affirm the trial court’s
order granting the petition for adoption.



Dickson, C.J., and Rucker, David, and Rush, J.J., concur.




                                                7
