                                                                        FILED
                                                                   Aug 30 2017, 5:49 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Kevin C. Tankersley                                       T. Andrew Perkins
Winamac, Indiana                                          Peterson Waggoner & Perkins,
                                                          LLP
                                                          Rochester, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re Adoption of D.M.                                    August 30, 2017

Michael Mendez,                                           Court of Appeals Case No.
                                                          09A02-1612-AD-2844
Appellant,
                                                          Appeal from the Cass Circuit
        v.                                                Court
                                                          The Honorable Leo T. Burns,
Brent L. Weaver,                                          Judge
                                                          Trial Court Cause No.
Appellee.
                                                          09C01-1604-AD-6



Brown, Judge.




Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017                  Page 1 of 15
[1]   Michael Mendez (“Mendez”), the natural father of D.M., appeals from the trial

      court’s decree of adoption. Mendez raises one issue which we revise and

      restate as whether the court erred in finding that his consent to the adoption

      was not required. We affirm.


                                         Facts and Procedural History

[2]   D.M. was born to Mendez and Leilani Mendez (“Leilani”) in June 2010. For

      nearly the first two years of D.M.’s life, Mendez lived with Leilani and D.M.

      and was a stay-at-home father. C.L., Leilani’s child from a previous

      relationship, also lived part-time with Mendez and Leilani. In May 2012,

      Mendez was arrested for molesting C.L. and later pled guilty to child molesting

      as a class C felony.1 He was sentenced to sixteen years with eight years

      suspended, and a 2012 no contact order provided that he have no contact with

      Leilani, C.L., or D.M.2 A decree of dissolution was issued in October 2012

      dissolving the marriage of Mendez and Leilani.3 Mendez was released from the

      Department of Correction (the “DOC”) to Cass County Community




      1
       At the August 22, 2016 hearing, Leilani testified that, as of the date of the hearing, C.L. was twelve years
      old and D.M. was six years old.
      2
       Mendez’s 2012 no contact order provided that, as a condition of probation, Mendez was ordered to have no
      contact with Leilani, C.L., or D.M. and, under paragraph 16, stated: “You shall have no contact with your
      victim or victim’s family unless approved in advance by your probation officer and treatment provider for the
      benefit of the victim.” Respondent’s Exhibit A.
      3
        Paragraph 6 of the dissolution decree provided “no child support is ordered to be paid by [Mendez] at this
      time due to the fact that he is currently incarcerated and has no source of income.” Respondent’s Exhibit B.
      Paragraph 7 provided “[Mendez] is not requesting parenting time currently, and his parenting time is hereby
      suspended based on a finding that a no contact order has been entered . . . prohibiting [Mendez] from any
      contact with [D.M.]” and “[Mendez] shall appear before this Court to request parenting time with the minor
      child upon his release from incarceration, and the Court will schedule a hearing upon a written motion.” Id.

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017                         Page 2 of 15
      Corrections on August 18, 2015, obtained a job in September 2015, and was

      released from the community corrections facility on November 9, 2015.

      Meanwhile, Leilani began dating Brent Weaver in the fall of 2012, they moved

      in together in the spring of 2013, and they were married on March 5, 2016.


[3]   On March 31, 2016, Weaver filed a Petition for Step-Father’s Adoption of

      Minor requesting to adopt D.M. On May 23, 2016, Mendez filed a motion to

      contest the adoption. On August 22, 2016, the trial court held a hearing at

      which it heard testimony from Leilani, Weaver, and Mendez and admitted into

      evidence the July 2015 no contact order and the October 2012 decree of

      dissolution. Leilani testified that C.L. lived with her and Mendez part-time,

      and when asked “when the molestation happened, was [D.M.] on the premises

      at all,” Leilani responded affirmatively. Transcript at 6. When asked “[w]as

      [D.M.] in the same room when it happened,” Leilani stated “[s]he was.” Id.

      When asked “when this happened,” Leilani replied “[s]he was 7 she was almost

      8.” Id. Leilani testified that the last time Mendez saw D.M. was May of 2012,

      that Mendez had not made contact with her through an attorney to reestablish

      any contact with D.M., and that Mendez has not provided any financial

      support. She testified:

              [D.M.] has no recollection of [Mendez] in her life. She was not
              quite 2 when he was arrested . . . she’s 6 now, she’s happy, she’s
              healthy, she’s very well rounded and I think that if [Mendez]
              were to come back into her life it would be very disruptive, to be
              honest, I don’t trust him. I don’t think it would be healthy, and
              [C.L.] is 12 years old. She just started 7th grade, she is in cheer
              and volleyball and she’ [sic] active and she’s not going to

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017    Page 3 of 15
              counseling anymore and she’s not afraid to go to sleep in her
              own bed anymore and she’s living a normal teenage life . . . .


      Id. at 11-12. When asked “[s]o, she was in counseling or sometime,” Leilani

      replied “[y]es, absolutely, and when asked if C.L. had memories of what

      happened, Leilani testified “[a]bsolutely. And she the little mom, she’s just like

      me and she’s so protective of [D.M.] and if she knows that [D.M.] has to see

      [Mendez], it’s going to put her in a tail-spin.” Id. at 12. She testified Weaver

      had been a father figure for D.M. When asked “what would you think the

      affect would be on [D.M.] if she were told or have someone else replace her

      current father figure in her life,” Leilani testified “I think it would turn her

      world upside down and my kids have had that happen already once.” Id. at 13.


[4]   On cross-examination, when asked if Mendez “admitted what he did to

      [C.L.],” Leilani replied “[a]nd [G.], yes.” Id. at 15. When asked “[s]o, the facts

      at least in the criminal case was that he admitted to those 2, to molestation on

      [C.L.] and the other girl that was there that was a family friend or . . . ,” Leilani

      replied “[c]orrect.” Id. at 15. When asked if Mendez attempted to contact her

      and D.M. when he was in jail awaiting trial, Leilani testified “he called his

      parents, his parents were down and he tried to talk to them through them, talk

      to her through the parents, but no, that was the only time,” and she indicated

      that she reported Mendez to the prosecutor. Id. at 19. She also indicated that

      Mendez never bonded out after he went to jail and was incarcerated from 2012

      to 2015. Weaver testified he functioned and served as the father figure for



      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 4 of 15
      D.M. for the previous four years and provided for D.M. financially and

      emotionally.


[5]   Mendez testified that he was “basically a stay at home dad” and raised D.M.

      prior to May 2012. Id. at 33. He testified he took a substance abuse class and

      received a six-month time cut, and that his understanding was he would have

      the opportunity to petition the court to see D.M. after he completed counseling

      and his probation officer approved it. When asked if he was afforded any

      counseling for sexual offenders while incarcerated, he replied that he completed

      a three-month sex offender monitoring and management program

      (“INSOMM”) while in the DOC. He indicated that, since his release, he made

      contact with probation, his probation officer set him up with a counselor, and

      he was currently seeing the counselor and had been doing so since his release in

      November. When asked how long he “expects the treatment to go,” he

      answered “[f]rom my understanding, it could last as long as my entire

      probation.” Id. at 42. When asked if he was prepared to petition the court to

      modify support, Mendez replied affirmatively, and stated he wished to have an

      opportunity to have a relationship with D.M. in the future and was prepared to

      pay for any counseling that might be required to overcome over any hurdles.


[6]   On cross-examination, Mendez indicated he was required to participate in the

      INSOMM as a part of his sentence and it was not voluntary, he was initially

      charged with class A felonies, he had been working since September 2015, and

      he had not filed a petition with the court regarding the no contact issue or

      financial support. He indicated he had been able to financially support his

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 5 of 15
      daughter since September 2015 when he became employed. Mendez stated

      that, according to his terms, he must obtain approval of his probation officer

      prior to contacting his daughter and that he did not have that approval. When

      asked “you have not successfully completed a court approved sex offender

      treatment program . . . [o]ther than your [INSOMM],” he answered “[i]t is not

      completed, no,” and when asked “[w]as [INSOMM] supposed to count for

      this,” he replied “[n]o.” Id. at 48. Mendez also acknowledged he had a

      conviction for battery prior to D.M.’s birth.


[7]   On October 14, 2016, the court entered an Amended Decree of Adoption

      granting Weaver’s petition to adopt D.M.4 In its decree, the court found in part

      that, as a result of a no contact order that was entered in the criminal

      proceeding and the suspended parenting time order in the dissolution decree,

      Mendez has had no contact with D.M. since the time of his arrest, that from his

      employment through the work release center in August 2015 through the

      hearing in August 2016 he has made no effort to pay support for D.M. in any

      manner, and that it recognizes that Mendez’s ability to contact D.M. directly is

      prohibited by the no contact order. The court also found that the dissolution

      decree provided that Mendez was required to request parenting time with D.M.

      upon his release from incarceration and there is no evidence he has done so,

      that D.M. has no recollection of her relationship with Mendez, and that




      4
       Entries in the chronological case summary indicate the court entered a “Decree of Adoption” and then an
      “Amended Decree of Adoption,” the entries state both orders were signed on October 14, 2016, and
      Mendez’s brief states that the amended decree was issued to correct a spelling error.

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017                    Page 6 of 15
      Weaver began living with Leilani, D.M., and C.L in 2013 and married Leilani

      in 2016. The decree concludes:


              21. Insofar as Michael Mendez is the natural parent of the child
              to be adopted, the findings and legal conclusions of this Court are
              controlled by Ind. Code 31-19-9-8[(a)]11(A) and (B).

              22. The consent of Michael Mendez to this petition for adoption
              is not required because there is clear and convincing evidence
              that he is unfit to be a parent due to the fact that his conviction of
              child molesting, a Class C Felony, against the child’s sibling,
              while not a disqualifying conviction because the conviction was
              not for a Class A or Class B felony, renders him unfit because the
              crime was committed in the child’s home, the parent, Michael
              Mendez, was in a position of trust with respect to the child
              [D.M.] and her victim sibling at a time when Michael Mendez
              had a parental and moral duty to provide care, nurture and
              protection to both the child, [D.M.], and her sibling.

              23. The best interest of the child will be served by this Court’s
              finding that her natural father’s consent is not required because,
              as previously stated, [D.M.] has no recollection of her natural
              father, the child is happy and well-rounded and has a sibling
              relationship with her 12 year old sister, [C.L.], and has a long-
              standing three year relationship with [Weaver].


      Appellant’s Appendix Volume 2 at 7. Mendez filed a motion to correct error,

      which the court denied.


                                                   Discussion

[8]   The issue is whether the trial court erred in finding that Mendez’s consent to the

      adoption of D.M. by Weaver was not required. When reviewing the trial

      court’s ruling in an adoption proceeding, we will not disturb that ruling unless

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 7 of 15
      the evidence leads to but one conclusion, and the trial court reached the

      opposite conclusion. In re Adoption of K.S., 980 N.E.2d 385, 387 (Ind. Ct. App.

      2012) (citing In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App.

      2004)). We will not reweigh the evidence, but instead will examine the

      evidence most favorable to the trial court’s decision together with reasonable

      inferences drawn therefrom, to determine whether sufficient evidence exists to

      sustain the decision. Id. The decision of the trial court is presumed to be

      correct, and it is the appellant’s burden to overcome that presumption. Id.

      Recognizing the fundamental importance of the parent-child relationship, our

      courts have strictly construed the statute to preserve that relationship. Id.

      However, even the status of natural parent, though a material consideration, is

      not one which will void all others, and under carefully enumerated

      circumstances, the statute allows the trial court to dispense with parental

      consent and allow adoption of the child. Id.


[9]   Ind. Code § 31-19-11-1 provides that the trial court “shall grant the petition for

      adoption and enter an adoption decree” if the trial court hears evidence and

      finds, in part, that “the adoption requested is in the best interest of the child”

      and “proper consent, if consent is necessary, to the adoption has been given.”

      Ind. Code § 31-19-9-8 provides:


              (a) Consent to adoption, which may be required under section 1
              of this chapter, is not required from any of the following:

                                                    *****

                       (11) A parent if:

      Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 8 of 15
                                 (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.


       The party bearing the burden of proof in a proceeding under this chapter must

       prove the party’s case by clear and convincing evidence, Ind. Code § 31-19-10-

       0.5, and if a petition alleges a parent’s consent to adoption is unnecessary under

       Ind. Code § 31-19-9-8(a)(11) and the parent files a motion to contest the

       adoption, the petitioner has the burden of proving that the requirements of Ind.

       Code § 31-19-9-8(a)(11) are satisfied and that the best interests of the child are

       served if the court dispenses with the parent’s consent to adoption. Ind. Code §

       31-19-10-1.2. The provisions of Ind. Code § 31-19-9-8 are written in the

       disjunctive and thus each provide independent grounds for dispensing with

       parental consent. In re Adoption of K.S., 980 N.E.2d at 388. Regardless of which

       provision is relied upon, adoption is granted only if it is in the best interests of

       the child. Id. (citing Ind. Code § 31-19-11-1(a)).


[10]   While the term “unfit” as used in Ind. Code § 31-19-9-8(a)(11) is not statutorily

       defined, this court has 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

       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017       Page 9 of 15
balance between the parent’s rights and the child’s best interests” and thus

termination cases provide useful guidance in determining whether a parent is

unfit. Id. Termination cases have considered factors such as a parent’s

substance abuse, mental health, willingness to follow recommended treatment,

lack of insight, instability in housing and employment, and ability to care for a

child’s special needs. Id. Also, this Court has consistently held in the

termination context that it need not wait until children are irreversibly harmed

such that their physical, mental, and social development are permanently

impaired before terminating the parent-child relationship. See In re A.P., 981

N.E.2d 75, 83 (Ind. Ct. App. 2012). It is well-settled that individuals who

pursue criminal activity run the risk of being denied the opportunity to develop

positive and meaningful relationships with their children. In re Adoption of

H.N.P.G., 878 N.E.2d 900, 907 (Ind. Ct. App. 2008), trans. denied, cert. denied,

129 S. Ct. 619 (2008). Evidence is relevant if it has any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Ind.

Evidence Rule 401. A parent’s criminal history is relevant to whether the

parent is unfit to be a parent under Ind. Code § 31-19-9-8(a)(11). See In re T.W.,

859 N.E.2d 1215, 1218-1219 (Ind. Ct. App. 2006) (discussing evidence of the

father’s criminal history in reviewing the trial court’s finding of parental

unfitness).




Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 10 of 15
[11]   Mendez argues that the trial court specifically relied on his conviction for child

       molesting as a class C felony, cites to Ind. Code § 31-19-9-10,5 and argues that

       the statute “considers the very factors relied upon by the court to dispense with

       [his] consent, but the statute still requires a conviction for a Class A or B felony

       molestation,” “[t]he legislature would have provided that a class C felony can

       be considered an automatic waiver of consent if the victim was a half-blood

       sibling if it intended to authorize the courts to rely on this fact situation,” and

       that “reliance on this statute also fails because the statute requires that [he be ]

       incarcerated at the time of the filing of the petition for adoption.” Appellant’s

       Brief at 16. He further argues he has taken responsibility for his crime by

       pleading guilty, served his sentence and was released six months early,

       completed substance abuse treatment and the State’s sex offender management

       and monitoring program while in custody, has been doing follow-up treatment

       with his therapist, and is compliant with probation in every aspect.




       5
           Ind. Code § 31-19-9-10 provides in part:

                  A court shall determine that consent to adoption is not required from a parent if:
                           (1) the parent is convicted of and incarcerated at the time of the filing of a
                           petition for adoption for:
                                                              *****
                                    (F) child molesting . . . as a: . . . Class A or Class B felony, for a crime
                                    committed before July 1, 2014;
                                                              *****
                           (2) the child or the child’s sibling, half-blood sibling, or step-sibling of the
                           parent’s current marriage is the victim of the offense; and
                           (3) after notice to the parent and a hearing, the court determines that dispensing
                           with the parent’s consent to adoption is in the child’s best interests.

       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017                              Page 11 of 15
[12]   Weaver maintains the evidence supports the court’s finding Mendez is unfit and

       points to the facts that Mendez committed child molesting against D.M.’s half-

       sister C.L. at a time when he was living with D.M. and Leilani, C.L. had to go

       through counseling, Mendez also molested another girl who was a family friend

       who was staying at their home, and the molestation of C.L. occurred while

       D.M. was in the same room. He argues that, besides the molestation, Mendez

       did not petition the court for visitation upon his release from incarceration

       despite being authorized to do so in the dissolution decree, made no attempt to

       provide financial support for D.M. even though he was employed and was able

       to offer financial support since September 2015, violated the no contact order,

       and admitted to a previous unrelated battery conviction. Weaver further

       contends the evidence supports the court’s bests interests determination, D.M.

       simply does not know Mendez, a visitation arrangement with Mendez would

       “‘turn [D.M.’s] world upside down,’” and Weaver’s involvement as a father

       figure in D.M.’s life has been consistent. Appellee’s Brief at 9-10 (citing

       Transcript at 13).


[13]   To the extent Mendez challenges the trial court’s consideration of his class C

       felony child molesting conviction in determining that he is unfit to be a parent

       under Ind. Code § 31-19-9-8(a)(11), the primary goal in interpreting a statute is

       to fulfill the legislature’s intent and, if that language is clear and unambiguous,

       we simply apply its plain and ordinary meaning, heeding both what it does say

       and what it does not say. State v. Brown, 70 N.E.3d 331, 334 (Ind. 2017) (citing

       State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)). We presume the legislature


       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 12 of 15
       intended logical application of the language used in the statute so as to avoid

       unjust or absurd results. Cook v. Atlanta, Ind. Town Council, 956 N.E.2d 1176,

       1178 (Ind. Ct. App. 2011), reh’g denied, trans. denied. Ind. Code § 31-19-9-

       8(a)(11) does not expressly prohibit the trial court from considering a parent’s

       criminal history, including a conviction for child molesting as a class C felony,

       in determining whether the parent is unfit to be a parent. Further, although

       Ind. Code § 31-19-9-10 provides that consent to adoption is not required from a

       parent who is convicted of child molesting as a class A or B felony under

       certain circumstances, the statute does not provide that a parent’s conviction for

       child molesting as a class C felony—or for that matter the parent’s conviction

       for another crime or another offense—may not be considered by the trial court

       in determining whether the parent is unfit to be a parent under Ind. Code § 31-

       19-9-8(a)(11). The plain and ordinary meaning of the statutory language does

       not preclude a trial court from considering the circumstances of a parent’s

       criminal activity in determining whether the parent is unfit to be a parent.


[14]   The trial court found that Mendez is unfit to be a parent under Ind. Code § 31-

       19-9-8(a)(11) due to the fact his crime of child molesting as a class C felony was

       committed in D.M.’s home and that Mendez was in a position of trust with

       respect to D.M. and C.L. at a time when he had a parental and moral duty to

       provide care, nurture, and protection to D.M. and C.L. The court also found

       that Mendez has made no effort to pay support for D.M. in any manner or that

       he has pursued parenting time. Evidence was presented which supports the

       trial court’s findings. Mendez’s sexual misconduct and convictions are relevant


       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 13 of 15
       to whether he is unfit to be a parent under the statute. Additionally, Mendez

       did not pay child support for D.M. although he was employed beginning in

       September 2015 and acknowledged that he was able to offer financial support.

       See In re Adoption of M.A.S., 815 N.E.2d at 220 (noting Indiana law imposes a

       duty upon a parent to support his children and that this duty exists apart from

       any court order or statute). Following his release, Mendez did not file a

       petition for visitation although directed to do so by the dissolution decree. See

       Respondent’s Exhibit B (decree of dissolution states Mendez “shall appear

       before this Court to request parenting time with the minor child upon his

       release from incarceration”).


[15]   The trial court also found that the best interests of D.M. are served by its

       finding that Mendez’s consent is not required and noted evidence that D.M. has

       no recollection of Mendez, is happy and well-rounded, has a sibling

       relationship with her twelve-year-old sister C.L., and has a long-standing three-

       year relationship with Weaver. The evidence presented at the hearing supports

       these findings as well.


[16]   The evidence most favorable to the trial court’s decision supports its conclusion

       that Mendez’s consent to the adoption is not required pursuant to Ind. Code §

       31-19-9-8(a)(11). Based upon the record, we cannot say that the evidence leads

       to but one conclusion and the trial court reached an opposite conclusion.


                                                    Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s decree of adoption.


       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 14 of 15
[18]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017   Page 15 of 15
