In re the Matter of the Adoption of A.N.W. (Minor Child), J.M.W. v. R.R. and L.R. (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                                   FILED
    regarded as precedent or cited before any                                           Dec 29 2020, 8:47 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                             Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                                        and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEES
    Kurt A. Young                                           Shannon L. Robinson
    Nashville, Indiana                                      Shannon Robinson Law
    Bloomington, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Matter of the Adoption                        December 29, 2020
    of A.N.W (Minor Child),                                 Court of Appeals Case No.
    20A-AD-1099
    J.M.W.,
    Appeal from the Brown Circuit
    Appellant-Respondent,                                   Court
    v.                                              The Honorable Mary Wertz, Judge
    Trial Court Cause No.
    R.R. and L.R.,                                          07C01-1902-AD-3
    Appellees-Petitioners,
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020         Page 1 of 17
    Case Summary and Issue
    [1]   J.M.W. (“Mother”) and J.W. (“Father”) are the biological parents of A.N.W.
    (“Child”). Mother lost custody of Child after she and Father dissolved their
    marriage. Subsequently, Mother was incarcerated after pleading guilty to
    possession of child pornography. In March 2016, with Father’s consent, R.R.
    and L.R. (“Petitioners”) became the legal guardians of Child. Father died in
    January 2019. On February 6, 2019, Petitioners filed a verified petition to adopt
    Child. Petitioners alleged that Mother’s consent to the adoption was
    unnecessary. Mother then filed a Motion to Contest Adoption. Following a
    hearing, the trial court denied Mother’s Motion to Contest Adoption finding
    that Mother’s consent to the adoption was unnecessary. Mother now appeals
    raising one issue for our review, which we restate as: whether the trial court
    erred by denying Mother’s Motion to Contest Adoption of Child. Concluding
    the trial court did not clearly err by finding Mother’s consent was unnecessary,
    we affirm.
    Facts and Procedural History
    [2]   Child was born September 16, 2009, to Mother and Father who were married at
    the time. In November 2013, Mother was arrested and charged with child
    exploitation and possession of child pornography. On August 27, 2014, Mother
    and Father’s marriage was dissolved. Father was given full legal and physical
    custody of Child. The dissolution decree provided that due to Mother’s
    unemployment, Mother was not ordered to pay any child support. However,
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 2 of 17
    Mother was “ordered to immediately notify the Court and the father when she
    became employed.” Appealed Order of May 1, 2020 (“Appealed Order”) at 2.
    [3]   In September 2014, Mother pleaded guilty to the possession of child
    pornography charge and was sent to prison.1 Mother was released on April 15,
    2015. After being released Mother stayed with her aunt and uncle. However,
    Mother violated her parole by being in an “unapproved relationship” and was
    sent to jail for thirty days. Transcript of Evidence, Volume 2 at 52. After the
    thirty days Mother returned to living with her aunt and uncle.
    [4]   In September 2015, Child began living with Petitioners.2 In November 2015,
    Mother violated parole again by missing counseling sessions and was sent to
    Indiana Women’s Prison.
    [5]   In March 2016, with Father’s consent, Petitioners became Child’s legal
    guardians. Mother was present for the guardianship proceeding via telephone
    and did not file anything in the proceeding seeking to establish parenting time.
    After Petitioners were awarded guardianship, they did not receive any
    monetary support from Mother or Father although Father still had Child nearly
    every weekend. See id. at 110.
    1
    The child exploitation charge was dismissed. See Transcript of Evidence, Volume 2 at 51.
    2
    Petitioners are R.R., Child’s paternal grandfather, and L.R., R.R.’s wife. L.R. is not Child’s biological
    grandmother.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020                  Page 3 of 17
    [6]   In April 2016, Mother was released from Indiana Women’s Prison. Her parole
    required that she be employed. From June to August, Mother was employed
    part time through an employment agency. Mother stayed with her aunt and
    uncle until her parole ended on September 1. During the time Mother was
    incarcerated or on parole she had no contact with Child because she was not
    allowed to have contact with minors.
    [7]   After Mother’s parole ended, she began living with her parents. Two of her
    brothers, her sister, and her fiancé and their son also lived with them. Mother
    began assisting her father in his landscaping business multiple times a week for
    either ten or twelve dollars an hour. Mother’s parents paid for all her living
    expenses and she was on food stamps. Mother never filed any notice of
    employment with the court in the marriage dissolution case.
    [8]   Mother began having contact with Child again in December 2016 or January
    2017 without the Petitioners’ knowledge.3 This continued until December 2018.
    Father would bring Child to see Mother when he had her on weekends. During
    this “parenting time,” Mother bought Child gifts including clothing and shoes.
    Mother did not ever directly provide Father or Petitioners with money for
    Child’s support.
    3
    The record is unclear about exactly when Mother began having contact with Child again.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020            Page 4 of 17
    [9]    In January 2019, Father died unexpectedly of a blood clot. Subsequently, the
    Petitioners filed a Petition for Adoption. Mother filed a Motion to Contest
    Adoption.
    [10]   On January 31, 2020, the trial court held a hearing on the Petition for Adoption
    and Mother’s Motion to Contest Adoption. The trial court then issued its
    findings of fact and conclusions thereon, denying Mother’s Motion to Contest
    Adoption. In relevant part, the trial court’s order states:
    Findings of Fact
    ***
    34. In regard to mother’s ability to financially support the child,
    the Court finds:
    a. Mother is not disabled. She has the physical and mental ability
    to be employed and earn an income;
    b. Mother has no living expenses. Her family provides for all her
    needs, and those of her young son and fiancé. She receives “food
    stamps”;
    c. Mother was required to work as a condition of parole during
    the summer of 2016. Between June 2016 and August 2016, she
    worked through a temporary employment agency making $9.00
    to $10.00 per hour. She quit working at that temporary
    employment agency as soon as she was released from parole. She
    testified that her conviction for Possession of Child Pornography
    caused her to be denied employment when she sought
    employment on occasions thereafter. She did not provide an
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 5 of 17
    explanation regarding why she could find employment while on
    parole for a felony sex offense, but not thereafter when no longer
    on parole;
    d. Mother testified regarding attempts she made to find
    employment. Her testimony regarding these attempts was not
    credible. Even if her testimony was found to be credible, her
    attempts were not sustained nor substantial. She made no
    appreciable effort to obtain employment since being released
    from parole in September of 2016;
    e. [M]mother’s mother[ ] works five nights per week between the
    hours of 4:00 or 5:00 pm to 10:00 pm or midnight. Mother’s
    father owns and operates his own lawncare business. Mother and
    her mother and sister testified that mother assists in caring for her
    developmentally disabled brother while her mother works and
    provides the family with housekeeping services. While these
    services may assist her family, they do not preclude her from
    obtaining employment during the hours when her parents are not
    working;
    f. Mother also cares for her young son. However, her fiancé, her
    son’s father, also does not have stable employment and would be
    able to care for their son if mother was employed;
    g. Mother testified that her fiancé is disabled, but does not receive
    disability payments. Her fiancé is able to work as evidenced by
    mother’s testimony that he works on occasions for her father and
    in construction doing drywall and painting work;
    h. Mother bought gifts for the child when the child was with her.
    Mother testified that if the child wanted something while at the
    store, she would purchase it for the child. These purchases were
    made in a manner that permitted mother to please the child, not
    to financially support the child;
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 6 of 17
    i. Mother has never provided monetary support to either the
    child’s father or guardians. The gifts and clothing she provided to
    the child were not substantial nor did those items relieve the
    child’s guardians’ financial burdens. [L.R.] testified that the child
    returned from a visit with her father one time in a new outfit and
    the [Petitioners] were informed that the father purchased it for
    her;
    j. Mother was able to buy gifts for the child using money from
    selling her personal belongings, using money given to her by her
    mother, using money she received as a gift from others and using
    money received in payment for working for her father;
    k. Mother and her family bought clothing for the child, but this
    clothing was not provided to the Petitioners;
    l. Mother testified that she had had no earned income from work
    since being released from parole. Her mother and sister directly
    contradicted this testimony. They testified that mother earned
    money working on occasions at her father’s landscaping
    business, including in the office and on job sites. Mother did have
    income from working for her father, yet made no effort to use
    this income to provide monetary support for her child; and
    m. Mother failed to notify the Johnson Superior Court and father
    that she had employment during the summer of 2016 and of her
    income through working for her father.
    ***
    Conclusions of Law
    ***
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 7 of 17
    Care and Support:
    14. “[I]t is well-settled that parents have a common law duty to
    support their children.” Boone v. Boone, 
    924 N.E.2d 649
    , 652 (Ind.
    Ct. App. 2010). The lack of a court order does not relieve a
    parent’s obligation to support her child. See In re Adoption of M.B.,
    
    944 N.E.2d 73
    , 77 (Ind. Ct. App. 2011).
    15. “[T]he relevant time period is any one year in which the
    parent was required and able to pay support and did not do so.”
    R.S.P. v. S.S. (In re J.T.A.), 
    988 N.E.2d 1250
    , 1255 (Ind. Ct. App.
    2013).
    l6. The Petitioner[s] must show that the natural parent was able
    to pay the ordered support and knowingly failed to do so. [Matter
    of Adoption of D.H. III], 
    439 N.E.2d 1376
    , 1378 (Ind. Ct. App.
    1982)[.] Although [Matter of Adoption of D.H. III] involved a child
    support order that was not paid by the parent, the Court finds this
    case applies where, as here, there is a legal duty to support a
    child.
    17. Although mother was not obligated to pay child support at
    the time that the Decree of Dissolution was issued, she was
    “ordered to immediately notify this Court and Father when she
    becomes employed in any fashion.” Decree of Dissolution ¶ 3.
    Mother violated this Order when she failed to notify the Court
    and Father when she was employed at the temporary agency and
    when she was receiving income from her father’s business.
    l8. “A petitioner for adoption must show that the non-custodial
    parent had the ability to make the payments which he failed to
    make. That ability cannot be adequately shown by proof of
    income standing alone. To determine that ability, it is necessary
    to consider the totality of the circumstances. In addition to
    income, it is necessary to consider whether that income is steady
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 8 of 17
    or sporadic and what the non-custodial parent’s necessary and
    reasonable expenses were during the period in question.” In re
    Adoption of Augustyniak, 
    508 N.E.2d 1307
    , 1308 (Ind. Ct. App.
    1987); see also [In re Adoption of K.S.], 
    980 N.E.2d 385
    , 388 (Ind.
    Ct. App. 2012)[.]
    19. The totality of circumstances show that mother has had no
    reasonable and necessary living expenses. All of her living
    expenses were paid by her family at least since September 2016.
    Mother’s family also paid for the living expenses of mother’s
    subsequent child and fiancé.
    20. Mother has had the physical and mental ability to work. She
    is not disabled.
    21. The Court does not find Mother’s testimony that she was
    unable to find employment credible or reliable. The Court
    specifically notes that she provided no explanation regarding why
    she could find work at a temporary agency while on parole for a
    felony sex offense, but not after parole ended. She failed to
    explain why the felony sex offense conviction did not impede
    employment while on parole but did impede employment after
    release from parole. Mother’s testimony regarding her attempts at
    finding employment are not credible and, even if credible, do not
    show a substantial attempt to find employment.
    22. Mother provided no explanation as to why she could not be
    employed at least part-time while her mother and/or father are
    not working.
    23. Mother had income in the summer of 2016 and has since that
    time had some income th[r]ough work at her father’s business.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 9 of 17
    24. Mother failed to advise the Johnson Superior Court II and
    the child’s father of this earned income.
    25. Mother has not financially supported the child since at least
    August of 2014, a duration of over four years preceding the filing
    of the petition for adoption. She was incarcerated from
    September 2014 through April 2015; in June/July 2015; and
    November 2015 through April 2016. She was not able to
    financially support the child while incarcerated.
    26. The Court finds that the totality of circumstances proves by
    clear and convincing evidence that mother was able to provide
    support for the child when not incarcerated and that she failed to
    provide care and support [for] the child for at least a one-year
    time period since her release from incarceration in April 2016.
    While she may have provided the child with token gifts and some
    clothing during her visits with the child in 2017 and 2018, these
    tokens do not constitute care and support.
    27. The Court finds that the mother’s consent to adoption is not
    required because the totality of circumstances proves by clear and
    convincing evidence that mother voluntarily chose not to provide
    care and support for the child when able to do so for at least a
    one-year period of time.
    Appealed Order at 6-12. The trial court subsequently granted the Petitioners’
    petition to adopt Child. Mother now appeals.
    Discussion and Decision
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 10 of 17
    I. Standard of Review
    [11]   When we review a trial court’s ruling in an adoption proceeding, the ruling will
    not be disturbed unless the evidence leads to only one conclusion and the trial
    court reached the opposite conclusion. In re Adoption of M.L., 
    973 N.E.2d 1216
    ,
    1222 (Ind. Ct. App. 2012). We do not reweigh evidence, and we consider the
    evidence most favorable to the decision together with reasonable inferences
    drawn from that evidence. 
    Id.
     Further, we “recognize that the trial judge 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.
    [12]   Here, it appears the trial court issued findings of fact and conclusions sua
    sponte pursuant to Indiana Trial Rule 52(A). When that occurs, we apply a
    two-tiered standard of review: first, we determine whether the evidence
    supports the finding of fact and second, we determine whether the findings
    support the judgment. In re Estate of Powers, 
    849 N.E.2d 1212
    , 1216 (Ind. Ct.
    App. 2006). The trial court’s findings or judgment will be set aside only if they
    are clearly erroneous. 
    Id.
     A finding of fact is clearly erroneous if the record lacks
    evidence or reasonable inferences from the evidence to support it. 
    Id.
     The
    findings control our review and the judgment only as to the issues those specific
    findings cover. Hickey v. Hickey, 
    111 N.E.3d 242
    , 245 (Ind. Ct. App. 2018).
    Where there are no specific findings, a general judgment standard applies, and
    we may affirm on any legal theory supported by the evidence. Steele-Giri v.
    Steele, 
    51 N.E.3d 119
    , 123-24 (Ind. 2016).
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 11 of 17
    II. Parental Consent
    [13]   Mother appeals the trial court’s order denying her motion to contest the
    adoption. See 
    Ind. Code § 31-19-10-1
     (describing procedure for filing a motion
    to contest an adoption). Generally, a petition to adopt a minor child may be
    granted only if written consent to adopt has been provided by the biological
    parents. See 
    Ind. Code § 31-19-9-1
    . However, when appropriate, there are
    exceptions to the consent requirement. See 
    Ind. Code § 31-19-9-8
    .
    [14]   Indiana Code section 31-19-9-8(a) states, in pertinent part:
    Consent to adoption, which may be required under section 1 of
    this chapter, is not required from any of the following:
    (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.
    The provisions of Indiana Code section 31-19-9-8(a) are disjunctive; that is,
    each provision provides independent grounds for dispensing with parental
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 12 of 17
    consent. In re Adoption J.S.S., 
    61 N.E.3d 394
    , 397 (Ind. Ct. App. 2016).
    Recognizing the fundamental importance of the parent-child relationship, we
    strictly construe the adoption statutes to protect and preserve the relationship.
    In re Adoption of N.W., 
    933 N.E.2d 909
    , 913 (Ind. Ct. App. 2010). The petitioner
    for adoption has the burden of proving, by clear and convincing evidence, one
    of the statutory criteria allowing for adoption without consent. 
    Id.
    [15]   Petitioners asserted that Mother’s consent was not required on the grounds of
    three alternative theories: (1) Mother had deserted or abandoned Child; (2)
    Mother had failed to maintain significant contact with Child for a period of one
    year; and/or (3) Mother had failed to provide care or support for Child for a
    period of one year when able to do so as required by law or judicial decree.
    Brief of Appellees at 15; Appellant’s Appendix at 30. The trial court found that
    Mother’s consent was unnecessary only for failure to provide care or support
    and stated the Petitioners failed to prove with clear and convincing evidence
    their other theories. Appealed Order at 9-13. Thus, only Mother’s ability to
    provide care and support will be addressed.
    [16]   Mother contends the trial court erred in concluding she failed to support Child
    for over one year. Indiana Code section 31-19-9-8(a)(2)(B) specifies that consent
    is not required from a parent who, for a period of at least one year, “knowingly
    fails to provide for the care and support of the child when able to do so as required
    by law or judicial decree.” (Emphasis added.) The relevant time period for
    determining whether a non-custodial parent has supported his child “is not
    limited to either the year preceding the hearing or the year preceding the
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 13 of 17
    petition for adoption, but is any year in which the parent had an obligation and
    the ability to provide support, but failed to do so.” In re Adoption of J.T.A., 
    988 N.E.2d 1250
    , 1255 (Ind. Ct. App. 2013), trans. denied. Also, a parent’s
    nonmonetary contribution to a child’s care may be counted as support. In re
    Adoption of M.B., 
    944 N.E.2d 73
    , 77 (Ind. Ct. App. 2011).
    [17]   Prior to the filing of the petition for adoption, no support order was in place
    requiring Mother to pay a fixed amount of child support. A parent nonetheless
    has a common law obligation to support their child even in absence of a court
    order. 
    Id.
     Beginning in April 2016, Mother was no longer incarcerated and
    remained out of prison; however, Mother argues that she was unable to provide
    for Child and was “without means to provide support even to herself.” Brief of
    Appellant at 21.
    [18]   The ability to pay is not shown “by proof of income standing alone.” In re
    Adoption of K.F., 
    935 N.E.2d 282
    , 288 (Ind. Ct. App. 2010) (quotation omitted),
    trans. denied. To determine ability, we must consider the totality of the
    circumstances including “whether that income is steady or sporadic and what
    the non-custodial parent’s necessary and reasonable expenses were during the
    period in question.” 
    Id.
    [19]   Here, Mother had no reasonable and necessary living expenses. Starting in
    September 2016, all of Mother’s living expenses were paid by her family. See
    Tr., Vol. 2 at 6-7. Mother had the physical and mental ability to work. Mother
    argues that she was precluded from finding work because of her criminal
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 14 of 17
    history. See Br. of Appellant at 14. However, Mother worked part time for her
    father and when required to have a job for her parole Mother was able to find
    work. See Tr., Vol. 2 at 6. We decline Mother’s invitation to reweigh evidence
    in order to find that she was precluded from working due to her criminal
    history. We conclude that, under the totality of the circumstances, Petitioners
    proved by clear and convincing evidence that Mother was able to provide
    support for Child.
    [20]   Because we have determined that Mother was able to provide support for Child,
    we must determine whether she failed to do so. Mother contends that she
    provided support to Child in the form of clothing and gifts. “And considering
    [Mother’s] financial situation, the support was more than ‘token[.]’” Br. of
    Appellant at 21. We disagree.
    [21]   Our supreme court has stated that “making a token payment of a nominal sum
    once each year [is] insufficient to provide for maintenance and support.” In re
    Adoption of Infants Reynard, 
    252 Ind. 632
    , 639, 
    251 N.E.2d 413
    , 417 (1969).
    Likewise, this court has found that “construing [Indiana Code section] 31-19-9-
    8 . . . to hold that there must be a complete refusal or failure to pay any sum of
    money for one year before the filing of a petition could lead to absurd
    consequences.” In re Adoption of M.S., 
    10 N.E.3d 1272
    , 1280 (Ind. Ct. App.
    2014) (holding that a one-time payment of $300 in approximately fifteen
    months was insufficient); see also In re Adoption of D.C., 
    928 N.E.2d 602
    , 606-07
    (Ind. Ct. App. 2010) (holding payments consisting of “$279.99 from a Navy
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 15 of 17
    pension and two checks amounting to $220” in twelve months did not
    constitute care and support), trans. denied.
    [22]   In In re Adoption of M.A.S., the father argued that he provided “groceries,
    diapers, formula, clothing, presents, and cash.” 
    815 N.E.2d 216
    , 220 n.1 (Ind.
    Ct. App. 2004). This court stated that the “occasional provision of these items
    are gifts, not child support.” 
    Id.
     Similarly here, Mother provided Child with
    “presents and other items[.]” Br. of Appellant at 21. Mother testified that she
    would purchase clothes and gifts for Child during visits that Father allowed her
    to have; however, she never gave Father or Petitioners any money to help
    provide for Child. See Tr., Vol. 2 at 81. Items provided by Mother to Child were
    gifts and did not constitute care and support.
    [23]   We cannot say that the evidence leads to but one conclusion and the trial court
    reached an opposite conclusion. In re Adoption of M.L., 973 N.E.2d at 1222.
    Clear and convincing evidence supports the trial court’s determination that
    Mother’s consent was not required based on her knowing failure to provide care
    and support for Child despite an ability to do so.
    Conclusion
    [24]   Concluding the trial court did not clearly err by finding Mother’s consent was
    unnecessary, we affirm.
    [25]   Affirmed.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 16 of 17
    Bailey, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 17 of 17