In Re the Adoptions of D.A.M.S. and N.D.S., N.S. and J.H. v. J.S. and L.S. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 08 2017, 9:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES
Nancy A. McCaslin Elizabeth A. Bellin
Elkhart, Indiana Elkhart, Indiana
Heidi J. Cintron
Elkhart, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoptions of November 8, 2017
D.A.M.S. and N.D.S., Court of Appeals Case No.
20A04-1705-AD-1108
N.S. and J.H.,
Appeal from the Elkhart Circuit
Appellants-Respondents, Court
v. The Honorable Michael A.
Christofeno, Judge
J.S. and L.S., The Honorable Deborah A.
Domine, Magistrate
Appellees-Petitioners.
Trial Court Cause No.
20C01-1605-AD-40 & 20C01-1605-
AD-41
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellants-Respondents, N.S. (Father) and J.H. (Mother) (collectively,
Parents), appeal the trial court’s Order on Petitions for Adoption and Parental
Consent, granting the adoption of their two minor children by Appellees-
Petitioners, J.S. (Adoptive Father) and L.S. (Adoptive Mother) (collectively,
Adoptive Parents).
[2] We affirm.
ISSUE
[3] In separate briefs, Father raises two issues on appeal while Mother raises one
issue. We find the following single issue to be dispositive: Whether the trial
court erred in granting Adoptive Parents’ petitions for adoption.
FACTS AND PROCEDURAL HISTORY
[4] In 2006, Parents met, and in 2007, they began cohabiting. They are the
biological parents of N.D.S., born April 23, 2009; and D.S., born August 26,
2010 (collectively, Children). Mother has two additional children from prior
relationships: A.S. and K.H., born in 1998 and 2000, respectively. Parents
maintained an on-again/off-again relationship until 2016.
[5] In April of 2011, an incident of domestic violence between Father, Mother, and
a third party—during which a firearm was discharged—resulted in a criminal
investigation. At the time, the four children were not present, but the police
contacted the Elkhart County Office of Department of Child Services (DCS).
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The children were removed from Parents’ home and placed in the care of their
maternal aunt and her husband—i.e., Adoptive Parents. The children were
subsequently adjudicated as Children in Need of Services (CHINS), and
Parents were court ordered to comply with services as a condition of reunifying
with the children. Over the next two years, Parents engaged in visitation with
the four children and participated in some services as ordered. However,
Father had several run-ins with law enforcement as a result of drugs, and there
were ongoing concerns regarding his domestic abuse of Mother, which Parents
never addressed through therapy. Instead, “[t]here was a lot of deception on
those issues.” (Tr. Vol. II, p. 245). Moreover, despite a no-contact order
between Father and Mother, Mother allowed Father to be present during her
time with the children, which resulted in the children’s removal on two
additional occasions when DCS had attempted trial home visits.
[6] After two years with no progress by Parents in remedying the conditions that
resulted in the children’s removal, DCS had to consider permanent options for
the children’s care. In lieu of having their parental rights terminated, Parents
consented to a guardianship arrangement, whereby they could eventually
petition to have the guardianships terminated and their custodial rights
restored. Accordingly, on July 18, 2013, Adoptive Parents were granted
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guardianship of A.S. and the Children. 1 At that time, DCS closed the CHINS
case and discontinued its involvement with the family.
[7] Subsequent to the guardianship order, Father was in and out of incarceration:
he was found in possession of marijuana, he violated probation with “dirty
drop[s],” and he perpetrated domestic violence against Mother. (Tr. Vol. II, p.
59). Nevertheless, Parents’ relationship persisted. Mother maintained
employment and stable housing, and Father also worked between his stints of
incarceration; however, neither parent paid any support to Adoptive Parents for
the Children’s care during the guardianship. Rather, despite the fact that the
guardianship order granted Adoptive Parents the right to claim the Children as
dependents for tax purposes, in 2013, 2014, and 2015, Father claimed both
Children on his tax returns, and Mother did the same for A.S. and K.H. On
their tax returns, Parents declared that their respective dependents had lived in
their home for the entirety of the years claimed. Parents acknowledge that the
last time they saw or spoke with the Children was July 18, 2013—the date that
the guardianship was granted. Thereafter, Father never made any effort to visit
or otherwise contact the Children, whereas it is unclear to what extent Mother
tried to maintain a relationship with the Children but was prevented from doing
so by Adoptive Parents. It is undisputed that neither Father nor Mother ever
1
Although K.H. lived with Adoptive Parents for a majority of the CHINS case, it was determined that it
would be best for A.S. and K.H. to have separate placements due to their constant conflict. Thus, K.H.’s
paternal aunt became K.H.’s guardian for approximately a year and a half until K.H.’s biological father
moved to terminate the guardianship and obtained custody. Mother has regular contact with K.H.
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petitioned the court for a parenting time order or for termination of the
guardianship.
[8] On May 31, 2016, Adoptive Parents filed petitions to adopt the Children, which
they amended on October 21, 2016. 2 In their petitions, Adoptive Parents
alleged that Parents’ consent to the adoption was not required because Parents
had not provided any support for the Children for more than one year and had
not had any significant communication with the Children for more than one
year. Adoptive Parents also argued that Parents’ consent to the adoption was
unnecessary because they are each “unfit to be a parent and it is in the
[Children’s] best interest for the court to dispense with [their] consent.”
(Appellant-Father’s App. Vol. II, p. 128). Adoptive Parents contended that
they satisfied the statutory criteria for adoption, including by being “fit and
proper persons to care for, maintain, support, and educate” the Children.
(Appellant-Father’s App. Vol. II, p. 35).
[9] On July 1, 2016, Mother filed notice of her intent to contest the adoption, and
on July 12, 2016, Father did the same. On July 26, 2016, Adoptive Parents
filed a home study conducted by Adoption Resource Services, Inc., which
recommended that the adoption be finalized. On December 16, 2016, February
2
On August 28, 2016, Adoptive Parents adopted A.S. with A.S.’s consent (as A.S. had reached the age of
majority and parental consent was not required).
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6, 2017, and April 10, 2017, the trial court conducted a hearing on Adoptive
Parents’ petitions.
[10] On April 17, 2017, the trial court issued its Order on Petitions for Adoption and
Parental Consent. The trial court found that Parents failed to provide support
for the Children throughout the guardianship, but because Parents “seemed
legitimately confused over this issue[,]” the trial court declined to find that
Parents had “knowingly” failed to do so. (Appellant-Father’s App. Vol. II, p.
18). However, the trial court found that Parents had failed to communicate
significantly with the Children for “half or more than half of the [C]hildren’s
lives” with “no excuse for that failing.” (Appellant-Father’s App. Vol. II, p.
21). The trial court also found that Parents are “unfit to parent their
[C]hildren.” (Appellant-Father’s App. Vol. II, p. 24). Based on these findings,
the trial court determined that parental consent for the adoption was not
required, and the trial court further concluded that adoption would serve the
Children’s best interests. On April 28, 2017, the trial court issued a Decree of
Adoption.
[11] Parents now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] When reviewing a trial court’s ruling in an adoption case, “we presume that the
trial court’s decision is correct, and the appellant bears the burden of rebutting
this presumption.” In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). In
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fact, in matters of family law, the trial court is generally entitled to
“considerable deference” owing to the recognition that the trial court “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. at 973 (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938,
940 (Ind. 2005)). Our court will not disturb the ruling of the trial court “unless
the evidence leads to but one conclusion and the trial judge reached an opposite
conclusion.” Id. Thus, we neither reweigh evidence nor assess the credibility of
witnesses, and we consider the evidence most favorable to the trial court’s
decision. Id. Furthermore, the trial court’s findings and judgment will only be
set aside if they are clearly erroneous. Id. “A judgment is clearly erroneous
when there is no evidence supporting the findings or the findings fail to support
the judgment.” Id. (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.
2009)).
II. Consent
[13] Parents challenge the trial court’s judgment granting Adoptive Parents’
petitions to adopt the Children in the absence of parental consent. Indiana
Code section 31-19-9-1(a) provides, in relevant part, that “a petition to adopt a
child who is less than eighteen (18) years of age may be granted only if written
consent to adoption has been executed by . . . [t]he mother of a child born out
of wedlock and the father of a child whose paternity has been established.”
Nevertheless, Indiana’s adoption statute delineates certain exceptions where an
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adoption may proceed without parental consent. Specifically, as relevant to the
case at hand, consent is not required by:
****
(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). “The provisions of this section are disjunctive, and
any one provides independent grounds for dispensing with parental consent.”
In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).
[14] Adoptive Parents had the burden of establishing by clear and convincing
evidence that Parents’ consent was not required. Id. 3 In their petition for
adoption, Adoptive Parents alleged that consent was not required based on all
of the aforementioned statutory bases. The trial court determined that it could
not dispense with parental consent based on a failure to provide for the care and
3
Father contends that Adoptive Parents had to prove that consent was not required “by clear and
indubitable evidence”; however, this standard has long been abrogated. (Appellant-Father’s Br. p. 20); see In
re Adoption of S.W., 979 N.E.2d at 640.
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support of the Children because Parents had not knowingly failed to provide
such. Nonetheless, the trial court found that consent was not required because
Adoptive Parents had sufficiently proven that Parents had, without justifiable
cause, failed to communicate with the Children for at least one year; that
Parents are unfit to parent the Children; and adoption is in the Children’s best
interests.
[15] Parents concede that they did not have significant communication with the
Children for at least one year, but they now claim that this failure was justified
because Adoptive Parents thwarted their attempts to maintain a relationship
with the Children. Although the burden of proof in an adoption proceeding
rests with the prospective adoptive parents, Indiana Code section 31-19-9-
8(a)(2)(A) clearly establishes that the non-custodial parent is responsible for
maintaining a relationship with his or her child in order to exercise the right to
consent to an adoption. Indeed, the purpose of this statutory provision “is to
foster and maintain communication between non-custodial parents and their
children, not to provide a means for parents to maintain just enough contact to
thwart potential adoptive parents’ efforts to provide a settled environment to the
child.” In re Adoption of S.W., 979 N.E.2d at 640 (internal quotation marks
omitted). Efforts of the prospective adoptive parent “to hamper or thwart
communication between a [non-custodial] parent and child are relevant in
determining the ability to communicate” and should be weighed in the non-
custodial parent’s favor. E.W. v. J.W., 20 N.E.3d 889, 896-97 (Ind. Ct. App.
2014), trans. denied.
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[16] According to Mother, Adoptive Parents “cut off communications” after the
guardianship was established. (Appellant-Mother’s Br. p. 19). Prior to the
guardianship, Mother insisted that she had engaged in regular visits with the
Children and had provided the Children with gifts and taken them on outings,
but her post-guardianship requests to see the Children or deliver gifts were
ignored. Mother also contended that she persistently asked her mother (who is
also the mother of Adoptive Mother), to request visits with Adoptive Mother on
Mother’s behalf. Mother claimed that she attempted to contact Adoptive
Mother, in one way or another, “[a]t least” once a month between 2013 and
2015 and did not cease communicating until Adoptive Parents filed their
petitions for adoption. (Tr. Vol. II, p. 172). Mother also now relies on the fact
that she maintained a relationship with K.H. throughout K.H.’s guardianship
and subsequent placement in her biological father’s custody as evidence of the
fact that Mother would have made the same efforts to maintain communication
with the Children.
[17] As to Father, the record is clear that he never made any effort to communicate
with or visit the Children during the guardianship because he “don’t got [sic]
their phone number. And I don’t got [sic] their address. And I’m not friend [sic]
with them on Facebook.” (Tr. Vol. II, p. 73). In fact, it was not until just prior
to the hearing on Adoptive Parents’ adoption petitions that Father sent a letter
to inquire about the Children, but “conduct after the petition to adopt was filed
is wholly irrelevant to the determination of whether the parent failed to
significantly communicate with the child for any one year period.” In re
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Adoption of S.W., 979 N.E.2d at 640 n.3 (internal quotation marks omitted).
Yet, on appeal, he argues that “he was justified in the lack of significant
communication because [Adoptive Parents] had made communication difficult,
if not impossible for [Father].” (Appellant-Father’s Br. p. 24). Father
complains that, unlike during DCS’s involvement in the CHINS case, visitation
during the guardianship was not facilitated. Father also testified that, at the
time the guardianship was established, Adoptive Parents had informed him “he
would not see the [C]hildren again.” (Appellant-Father’s Br. p. 25).
[18] During the hearing, Adoptive Parents conversely testified that they never
prevented Parents from sending or dropping off gifts for the Children, but they
never sent anything—i.e., gifts, birthday or Christmas cards, letters, clothing,
etc. Adoptive Parents denied that they cut off Mother’s communication, and
Adoptive Parents could not recall Mother or Father ever requesting to see the
Children after the guardianship was established. Adoptive Parents also
conceded that they had significant safety concerns about Father and would not
have granted an unsupervised visitation request for Mother in light of the fact
that Father would also have been present. Adoptive Parents indicated that they
wanted Parents to establish stability before having access to the Children.
[19] The trial court “considered the conflicting testimony of family members over
whether or not contact between [Father] and [Mother] and their [C]hildren was
blocked by [Adoptive Parents], or whether [Mother] and [Father] simply did
not call.” (Appellant-Father’s App. Vol. II, p. 20). Rather than making a
credibility determination, the trial court concluded
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that it does not matter which of the family members is telling the
truth. And it does not matter if [Father] did or did not have
[Adoptive Parents’] phone number. It does not matter because
even if [Father’s] lack of communication could be excused by his
not having [Adoptive Parents’] phone number, and even if
[Adoptive Parents] thwarted [Mother’s] attempts to
communicate with her [C]hildren, both [P]arents could have
sought visitation through a court under the [g]uardianship case
that placed the [C]hildren in [Adoptive Parents’] home. Both
[P]arents testified that they did not even attempt to petition a
court for visitation. Both testified that they never attempted to
have the [g]uardianship terminated. Therefore, the [c]ourt finds
that [Father] and [Mother] have failed to communicate
significantly with [the Children] for three and a half years, which
is half or more than half of the [C]hildren’s lives. They have no
excuse for that failing.
(Appellant-Father’s App. Vol. II, pp. 20-21). We agree with the trial court.
[20] Our supreme court has held that in instances of an apparent inability to
communicate with a child, the non-custodial parent has a duty “to investigate
reasonable means of doing so.” In re Adoption of O.R., 16 N.E.3d at 974. The
conduct of the prospective parents in thwarting communication is relevant, but
it is not dispositive; the onus is on the non-custodial parent to attempt
significant communication. Here, Parents have pled ignorance as to their
ability to petition the court for recourse against Adoptive Parents’ purported
thwarting activities, but we are unpersuaded by such a claim. See id. (noting
that the non-custodial father could have initiated contact with petitioners’
counsel or the court to obtain communication with his child and finding no
merit in the father’s claimed unfamiliarity with the court system in light of his
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criminal history). Parents were clearly aware that they maintained certain
parental rights because they consented to a guardianship in lieu of having those
rights terminated. Parents were further aware of their ability to ask the court
that the guardianship be terminated in light of their testimony that K.H.’s
biological father had successfully terminated her guardianship and obtained
custody. With handwritten letters and even in the absence of legal
representation, Parents successfully notified the court that they wished to
contest Adoptive Parents’ adoption petitions, which only serves to dilute their
claim that they did not know they could seek court intervention. It was the
Parents’ duty to investigate the available channels for communication, but the
record is clear that they expended minimal effort in the fight for their Children
and did not avail themselves of the available means. Therefore, the trial court
properly concluded that Parents failed, without justifiable cause, to significantly
communicate with the Children for at least one year such that their consent to
the adoption was not required. 4
III. Best Interests & Suitability of Adoptive Parents
[21] Even where consent is not required, the trial court may only grant a petition for
adoption if the adoption is in the best interest of the child and if the prospective
4
Because we find that Parents’ consent was not required based on their failure to communicate, we need not
address either Parents’ claim that the trial court erroneously found that they were unfit or Adoptive Parents’
claim that the trial court erroneously found that Parents had not knowingly failed to provide support.
Furthermore, we note that Father has claimed that the trial court abused its discretion by admitting evidence
of his criminal history that was irrelevant as to his fitness as a parent. As we have determined that Father’s
consent was not required based on his failure to communicate, we need not address his claim.
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adoptive parents “are of sufficient ability to rear the child and furnish suitable
support and education,” among other factors. I.C. § 31-19-11-1(a)(1)-(2). “The
primary concern in every adoption proceeding is the best interests of the child.”
In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). Although the
“adoption statute does not provide guidance for which factors to consider when
determining the best interests of a child in an adoption proceeding,” our courts
“have noted that there are strong similarities between the adoption statute and
the termination of parental rights statute in this respect.” Id. Thus, the trial
court must consider “the totality of the evidence to determine the best interests
of a child.” Id. “Relevant factors include, among others, a parent’s historical
and current inability to provide a suitable environment for the child; the
recommendations of the child’s case worker or guardian ad litem; and the
child’s need for permanence and stability.” Id. at 1281-82 (internal citations
omitted).
[22] Mother contends that the Children’s best interests require reversal of the
adoption because she “has a clean home and a stable job and can care for all of
her children.” (Appellant-Mother’s Br. p. 24). She also argues that this
“adoption not only severs the parent child relationship between [her] and [the
Children], but it also severs the sibling group” as K.H. is in the custody of her
biological father. (Appellant-Mother’s Br. p. 23). She posits that it is in the
Children’s best interest “to have a relationship and bond with their entire family
unit.” (Appellant-Mother’s Br. p. 24). Similarly, Father asserts that the
adoption should be reversed for the Children’s best interests because he “had
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supported himself earlier and the record does not show he would be unable to
do so when he was no longer incarcerated.” (Appellant-Father’s Br. p. 29).
Furthermore, Father “was taking courses to make him a better person after
incarceration.” (Appellant-Father’s Br. p. 30).
[23] In finding that adoption would serve the Children’s best interests, the trial court
relied, in part, on the opinions of both the DCS caseworker who handled the
family’s CHINS case and the Children’s former court-appointed special
advocate (CASA). The DCS caseworker testified at the adoption hearing that
Parents never addressed the domestic violence issues that resulted in the
Children’s initial removal, and, instead, Parents were deceptive and continued
to maintain an unstable relationship. The DCS caseworker claimed that she
refused to meet with Father alone because of his hostility. The DCS
caseworker also remarked on instances of Father’s inappropriate parenting
style—such as his references to N.D.S. as “Little Sexy” and D.S. as “Little
N*****.” (Tr. Vol. II, p. 243). The CASA testified at the adoption hearing
regarding her disagreement with returning the Children to Parents’ care based
on their lack of progress. Although she did not “observe the kind of—of easy
nurturing and interaction that goes on, usually[,] between parents and children”
in the Children’s interactions with Mother, the CASA stated that, with
Adoptive Parents, “there’s always patience, there’s conversation, there is gentle
discipline when it’s necessary, encouragement, umm, just conversation and
nurturing.” (Tr. Vol. III, p. 37).
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[24] In addition, the trial court cited the opinion of the social worker who completed
the adoption home study. The social worker recommended the adoption would
be in the Children’s best interests as Adoptive Parents “are good, ethical,
nurturing parents.” (Tr. Vol. II, p. 201). References for Adoptive Parents
provided “glowing accounts of how well the [C]hildren were doing and how . . .
happy and content and well-adjusted they were.” (Tr. Vol. II, p. 200). A.S.
also testified during the adoption hearing and opined that the Children would
not be safe if they were returned to Parents’ care.
[25] Our review of the record establishes that the Children have continuously been
in Adoptive Parents’ care since April of 2011, except for two brief trial home
visits. At the time of their removal, N.D.S. was almost two years old, and D.S.
was approximately eight months. Thus, the Children have spent most of their
lives in the care of Adoptive Parents because of Parents’ refusal to put the
Children’s needs ahead of their own. For nearly two years during the CHINS
proceedings, Parents failed to address the issues necessary for reunification, and
during the three years between the establishment of the guardianship and the
filing of adoption petitions, Parents made no effort to safeguard their parental
rights, and they offered no support for the Children. Meanwhile, during that
entire time, Adoptive Parents provided for the financial, emotional, and
physical needs of the Children. Thus, the trial court’s determination regarding
the Children’s best interests is clearly supported by the evidence.
[26] Parents also challenge Adoptive Parents’ ability to rear the Children. Parents
both cite Adoptive Mother’s chronic pancreatitis as an impairment to her ability
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to care for the Children and claim that it is contrary to the Children’s best
interests. At the hearing, Adoptive Mother testified that she has been battling
chronic pancreatitis for more than fifteen years. During that time, she has been
on various pain medications, including morphine, a fentanyl patch, and other
narcotics. She administers her medicine through a feeding tube as she needs it,
and “[s]ometimes, [she] get[s] a little sleepy.” (Tr. Vol. IV, p. 102). She
regularly sees her doctors and has had several operations and procedures over
the years; her need for pain medication varies day by day. Adoptive Mother
admitted that in April of 2016, her feeding tube had fallen out, which caused
her to become dehydrated and experience low levels of potassium. As a result,
while driving to go have her tube changed, she blacked out and was involved in
a minor car accident. The Children were not in the car at the time of the
accident.
[27] The trial court took the evidence concerning Adoptive Mother’s illness into
account but determined that “those concerns [do not] negate the best interest
finding otherwise supported by the evidence.” (Appellant-Father’s App. Vol.
II, p. 26). The trial court noted that Adoptive Mother
explained that her chronic disease impacts how her body
processes food and the car accident was the result of low
potassium levels. She testified that she believes that her disease is
under control and she testified that she has a lot of family support
when needed by her medical condition. And even while
struggling with a serious illness, she described that she has been
able to provide for the needs of [the Children]. There is no
evidence to the contrary.
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(Appellant-Father’s App. Vol. II, p. 26). The evidence clearly establishes that
Adoptive Mother has managed this medical condition for more than fifteen
years, during which time she raised two biological children and has provided
safe and consistent care for the Children at issue. The social worker who
conducted the case study reviewed Mother’s medical history and did not find
that the condition should hinder the adoption. Adoptive Parents share in the
responsibilities of raising children and have demonstrated their ability to rear
the Children notwithstanding Adoptive Mother’s medical condition. We
decline Parents’ obvious request to reweigh the evidence already considered by
the trial court.
CONCLUSION
[28] Based on the foregoing, we conclude that the trial court did not err in granting
Adoptive Parents’ adoption petitions because they established by clear and
convincing evidence that Parents’ consent to the adoption was not required and
because adoption is in the Children’s best interests.
[29] Affirmed.
[30] Robb, J. and Pyle, J. concur
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