In Re the Adoption of S.Z., R.W. v. C.G. (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 03 2016, 8:10 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jaimie L. Cairns Polli A. Pollem
Cairns & Rabiola, LLP Jamie Devine
Indianapolis, Indiana Crystal Francis
Indiana Legal Services, Inc.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of S.Z., February 3, 2016
Court of Appeals Cause No.
R.W. 49A05-1504-AD-163
Appellant-Petitioner, Appeal from the Marion Superior
Court
v. The Honorable Steven R.
Eichholtz, Judge
C.G., Trial Court Cause No.
Appellee-Respondent. 49D08-1311-AD-40201
Barnes, Judge.
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Case Summary
[1] R.W. (“Uncle”) appeals the trial court’s denial of his petition to adopt S.Z. We
reverse and remand.
Issue
[2] Uncle raises one issue, which we restate as whether the trial court properly
found that the consent of S.Z.’s mother to the adoption was required.
Facts
[3] S.Z. was born in October 2009 to C.G. (“Mother”) and her husband, D.O.
(“Father”). Prior to S.Z.’s birth, Mother and Father moved in with Uncle and
lived there until June 2010. At that time, Mother and Father moved to
Lafayette and left S.Z. in Uncle’s care. Ultimately, Mother and Father
consented to Uncle having guardianship of S.Z., which was formally
established in November 2010. S.Z. has been in Uncle’s care since that time.
S.Z. is deaf in her right ear, and Uncle has facilitated various medical
treatments and therapies to assist her.
[4] Mother and Father later separated and divorced. Mother applied for service-
related disability with the Department of Veteran Affairs, and in mid-2012, she
was awarded sixty percent service-connected disability compensation of $1,200
per month. Mother remarried in August 2013, and Mother and her husband
live in a rented three-bedroom home in Lafayette.
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[5] On November 1, 2013, Uncle filed a petition to adopt S.Z. Mother filed an
objection and a motion to terminate the guardianship. On February 23, 2015,
the trial court held an evidentiary hearing regarding whether Mother’s consent
to the adoption was required. Uncle argued that Mother abandoned S.Z., that
Mother failed to communicate significantly with S.Z., and that Mother failed to
support S.Z. when able to do so. The trial court denied Uncle’s petition to
adopt S.Z. after finding that Mother’s consent was required and had not been
obtained. Specifically, the trial court found that Mother had not abandoned
S.Z., that mother “has had regular though infrequent contacts, phone calls and
visits with S.Z.,” and that “the evidence offered does not show Mother had the
ability to pay support.” Appellant’s App. p. 14. Uncle now appeals.
Analysis
[6] Uncle argues that the trial court erred when it concluded that Mother’s consent
to the adoption was necessary. When reviewing a 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 court reached an opposite conclusion. 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. at 218-
19. The decision of the trial court is presumed to be correct, and it is the
appellant’s burden to overcome that presumption. Id. at 219.
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[7] When, as in this case, the trial court has made findings of fact and conclusions
thereon at the request of the parties, 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.L., 4
N.E.3d 658, 662 (Ind. 2014). 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.” Id.[8] Uncle only appeals the trial court’s finding that he failed to prove Mother did
not provide support for S.Z. when able to do so. Generally, a trial court may
only grant a petition to adopt a child born in wedlock who is less than eighteen
years of age if “each living parent” consents to the adoption. Ind. Code § 31-
19-9-1. Indiana Code Section 31-19-9-8(a)(2)(B) provides that consent to
adoption is not required from: “A parent of a child in the custody of another
person 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.”
[9] Indiana law imposes a duty upon a parent to support his or her children.
M.A.S., 815 N.E.2d at 220. This duty exists apart from any court order or
statute. Id. Consequently, even though Mother was not court-ordered to pay
child support, she still had a duty to support S.Z. A petitioner for adoption
must also show that the noncustodial parent had the ability to make the
payments that he or she failed to make. Id. That ability cannot be adequately
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shown by proof of income standing alone. Id. To determine that ability, it is
necessary to consider the totality of the circumstances. Id.[10] Uncle first argues that several of the trial court’s findings of fact were erroneous
and that the trial court’s ultimate conclusion that Mother’s consent was
required is clearly erroneous. The trial court found that Mother provided “little
if any financial support” and that Mother “did not pay regular child support.”
Appellant’s App. pp. 12, 14. According to Uncle, the evidence shows that
Mother made no financial contributions whatsoever to support S.Z. We note
that the trial court also made findings that “Mother has not provided financial
support from the time she left Uncle’s home in June of 2010.” Id. at 12. Some
of the trial court’s findings are confusing as to whether Mother provided any
financial support, but it is clear from the evidence and the totality of the trial
court’s findings that Mother, in fact, provided no financial support after leaving
S.Z. with Uncle. She apparently did provide S.Z. with token amounts of
clothing and toys on two or three occasions, but never provided any actual
financial support. See, e.g., Irvin v. Hood, 712 N.E.2d 1012, 1013 (Ind. Ct. App.
1999) (holding that the father had failed to support his child despite the fact that
he provided six items of clothing for the child and some food during the child's
visits with the paternal grandparents); M.A.S., 815 N.E.2d at 220 n.1 (holding
that the father’s occasional provision of groceries, diapers, formula, clothing,
presents, and cash did not qualify as support). To the extent that the trial
court’s findings indicate that S.Z. provided any financial support, they are
clearly erroneous.
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[11] Next, Uncle argues that the trial court’s findings regarding Mother’s income
were erroneous. The trial court found that “Mother did not have income from
June 2010, when she left S.Z. in Uncle’s care to early 2012, when she started
receiving VA disability benefits.” Id. at 14. According to Uncle, the evidence
indicates that Mother was receiving unemployment benefits until sometime in
2011. Mother concedes that she did receive unemployment benefits during this
time period. Whether from her military service or some other job, it is clear
that she received unemployment benefits. Thus, the trial court’s finding is
clearly erroneous.
[12] Finally, Uncle argues that the trial court’s findings regarding Mother’s
marijuana usage were erroneous. The trial court found that “[t]he frequency of
[Mother’s] marijuana usage was not clear, though Uncle detailed a couple of
times when he was concerned by it.” Appellant’s App. p. 12. At the February
2015 evidentiary hearing, Mother testified that she had stopped smoking
marijuana “over a year” before the hearing and that, prior to that time, she
smoked it once or twice a day. Tr. pp 28-29. Mother testified that she
purchased the marijuana from a friend. Uncle is correct that Mother’s
testimony regarding the frequency of her marijuana usage was clear, and the
trial court’s finding is clearly erroneous.
[13] Uncle also challenges the trial court’s conclusion that he failed to show Mother
had the ability to pay support. The trial court concluded: “The fact that Mother
received disability income does not establish a willful failure to pay support[.]
[T]he court finds that the evidence offered does not show Mother had the ability
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to pay support.” Appellant’s App. p. 14. Uncle correctly points out that the
trial court used the wrong standard. The statute does not require a “willful
failure” to pay support. Id. Rather, the statute requires a showing that Mother
“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.” I.C. § 31-19-9-8(a)(2)(B) (emphasis added). Earlier in its
order, the trial court properly quoted the “knowingly” standard rather than the
erroneous “willful” standard. Appellant’s App. p. 13, 14. However, in making
its conclusions, the trial court seems to have applied the stricter “willful”
standard, which required Uncle to meet an enhanced burden.
[14] As for whether Mother had the ability to pay support, Mother argues that Uncle
failed to meet his burden because he did not present evidence of Mother’s
income compared to her expenses and failed to demonstrate that she was able
to pay. Uncle counters that a “dollar-for-dollar accounting of Mother’s
expenses” is not required. Appellant’s Reply Br. p. 6.
[15] We addressed a similar situation in In re Adoption of J.L.J., 4 N.E.3d 1189 (Ind.
Ct. App. 2014), trans. denied. There, the biological father of twins was found to
have failed to provide support for the twins for at least a year despite his ability
to do so. The father had never been employed and his only source of income
had been Social Security disability payments. Evidence was presented that the
father was able to afford his own residence in Benton Harbor, Michigan, he had
funds to purchase cigarettes, and he was able to travel back and forth between
Benton Harbor and South Bend. We noted that, “[w]hile it is true that
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Guardian did not offer documentation of Father's financial resources, we must
consider the totality of the circumstances in determining the ability of a parent
to support his child.” J.L.J., 4 N.E.3d at 1195. Although the guardian may not
have documented the father's actual income, we concluded there was sufficient
evidence that the father, “although apparently capable of financing his own
independent living,” failed to provide for the twins to the best of his ability. Id.
at 1197.
[16] We reached a similar result in In re Adoption of M.S., 10 N.E.3d 1272 (Ind. Ct.
App. 2014). There, the mother contended that she was unable to pay support
due to the loss of her pet grooming and boarding business and her medical
issues. We noted that, despite the mother’s illness, she was able to work, she
lived in a house purchased by her mother, she redecorated the house, and she
was able to support multiple pets. We concluded that the trial court properly
found the mother had the ability to pay support and that her consent to the
adoption was unnecessary.
[17] Here, Uncle presented evidence that Mother was receiving $1,200 per month in
disability benefits, that Mother’s husband was employed at a liquor store, that
their rent was $450 per month, and that they also had expenses for electricity,
heat, cable, cell phones, and vehicle insurance. Although Mother’s disability
rating was sixty percent, she does not work. Uncle points out that Mother had
funds to purchase marijuana but did not pay any support for her daughter.
Given the trial court’s erroneous findings and application of the incorrect
standard, we conclude that its conclusion regarding Mother’s ability to pay
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support is clearly erroneous. Uncle presented clear and convincing evidence
that Mother had the ability to pay at least some minimal support for S.Z.
[18] It was undisputed that Mother failed to provide for S.Z.’s care or support for
over one year. We conclude that the trial court’s conclusion regarding
Mother’s ability to pay is clearly erroneous. Consequently, Mother’s consent to
Uncle’s adoption of S.Z. was unnecessary. Because the trial court found that
Mother’s consent was required, it did not reach a determination as to whether
the adoption is in S.Z.’s best interest. See Ind. Code § 31-19-11-1 (noting that
the probate court “shall grant the petition for adoption and enter an adoption
decree” if the 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”). We remand for proceedings to
determine whether the adoption is in S.Z.’s best interest.
Conclusion
[19] The trial court’s finding that Mother’s consent to Uncle’s petition to adopt S.Z.
was required is clearly erroneous. We reverse and remand for further
proceedings consistent with this opinion.
[20] Reversed and remanded.
Robb, J., and Altice, J., concur.
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