In Re the Adoption of H.J.S., J.H.S. and P.L.S. v. B.M.C. and A.J.S. (mem. dec.) ( 2015 )

MEMORANDUM DECISION Mar 31 2015, 10:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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 APPELLANTS ATTORNEY FOR APPELLEES
Latriealle Wheat James C. Yankosky
Angola, Indiana Tourkow, Crell, Rosenblatt
& Johnston, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of H.J.S. March 31, 2015
Court of Appeals Case No.
J.H.S. and P.L.S., 76A04-1410-AD-502
Appellants-Petitioners, Appeal from the Steuben Superior
Court.
v. The Honorable William C. Fee,
Judge.
Cause No. 76D01-1312-AD-8
B.M.C. and A.J.S.,
Appellees-Respondents
Baker, Judge.
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[1] J.H.S. (Paternal Grandfather) and P.L.S. (Paternal Grandmother) appeal the
trial court’s order dismissing their petition to adopt their grandchild, H.J.S.
(Child). The trial court found that the Paternal Grandparents had thwarted the
ability of B.C. (Mother) to communicate with Child for the year leading up to
the filing of the adoption petition and that, consequently, Mother’s consent to
the adoption was required. The Grandparents argue that some of the trial
court’s findings are erroneous as a matter of law and that their petition should
not have been dismissed. Finding that Mother’s consent was not required, we
reverse and remand for further proceedings.
Facts
[2] Child was born on August 31, 2007, to Mother and Father.1 Child has been
living with Paternal Grandparents since December 31, 2009. On November 9,
2010, Paternal Grandparents filed a petition for temporary custody of Child so
that they could enroll him in preschool. After Mother expressed hesitation
regarding custody, the parties agreed to meet with a mediator.
[3] Following mediation, Mother and the Paternal Grandparents were able to
reach an agreement (Mediation Agreement). The Mediation Agreement was
filed with the trial court on February 8, 2011. In relevant part, the Mediation
Agreement provides as follows:
1
Father had not had contact with Child for at least a year prior to the filing of the adoption petition, so his
consent to the adoption is not required and he is not participating in this appeal.
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2. All parties agree that it is in [Child’s] best interest that his
Paternal Grandparents continue to exercise temporary physical
custody of [Child] and to determine his best interests.
3. Furthermore, all parties agree that it is in [Child’s] best interest
that his Mother be offered an opportunity to normalize her
parenting relationship with [Child] in the hopes that she may
take up the duties of his primary care in the future.
4. To that end, all parties agree that as a first step . . . , that over
approximately the next six (6) months . . . , Mother will [abide
by] the following plan:
1. Mother will have predictable and consistent visitation
with [Child] on alternate weekends or at such times and
places as she and Paternal Grandparents shall agree.
2. Mother will provide a stable home for [Child] . . . .
3. Mother will provide proof of completing a parenting
class . . . .
4. Mother will help to facilitate and to support visits
between [Child] and his Maternal Grandmother . . . .
***
5. All parties agree that the question of Mother’s reasonable
fulfillment and completion of the above first step, or any
subsequent steps outlined below, will be at Paternal
Grandparents’ discretion, but contestable by Mother if she
believes they are being unreasonable . . . , first through an
appeal privately in mediation, but, if needed thereafter, to the
Court.
***
10. All parties agree that until such time as such a stipulation is
provided to the Court, Paternal Grandparents will remain the
temporary custodians of [Child] and will have the duty and
responsibility to set the pace and exercise the discretion
required in the above [sic] at each step to advance to the next
step, with Mother’s right to contest their judgment as outlined
in paragraph five (5) above.
***
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13. Finally, all parties agree that, should any future private efforts
at conflict resolution not prove successful, they will return to
mediation at the unilateral request of either Paternal
Grandparents or Mother as their first step towards formal
conflict resolution before filing any future petition with the
court . . . .
Tr. Ex. 3. p. 7-12. The Mediation Agreement goes on to outline several more
steps to work through after completion of the above-described first step. The
trial court adopted the Mediation Agreement and awarded Paternal
Grandparents temporary custody of Child on February 8, 2011.
[4] Mother had not yet completed the first step of the Mediation Agreement as of
the adoption hearing on August 6, 2014. She had failed to complete a parenting
class despite having over three years to do so. She had failed to obtain stable
housing, instead living in multiple states and cities with different boyfriends, at
times actively concealing her location from Paternal Grandparents.
[5] Mother did, however, exercise her parenting time rights for over a year. In fact,
as of March 2012, Mother was taking Child to the home of Maternal
Grandmother for full weekend visitations. At some point, Paternal
Grandparents learned that two people living with Maternal Grandmother had
been recently charged with multiple drug offenses.2 One of the probable cause
affidavits specified that on April 12, 2012, there was marijuana, drug
paraphernalia, methamphetamine, and a handgun in Maternal Grandmother’s
2
Both individuals ended up pleading guilty to possession of methamphetamine.
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home. After learning of the drug issues in Maternal Grandmother’s home,
Paternal Grandparents no longer permitted Child to spend the night in that
home because they feared for his safety. They still let Child visit that residence
because Maternal Grandmother stated that those two individuals had moved
out. At some point, however, Mother posted a picture on Facebook of one of
the people convicted of drug offenses sleeping on a couch next to Child at
Maternal Grandmother’s home.
[6] After seeing that picture, Paternal Grandparents stated that parenting time
would have to occur at a public location rather than in Maternal
Grandmother’s home. Mother selected a McDonald’s for those visits. The first
McDonald’s visit was uneventful. At some point, Mother failed to show for
one of the visits. On another occasion, Maternal Grandmother came with
Mother to the visit and engaged Paternal Grandparents in a verbal altercation
in front of the Child when they refused her request to have Child spend
Christmas at her home.
[7] Paternal Grandparents believed that conflict and verbal altercations were not
healthy for Child and concluded that it would be best for Child if they were no
longer present for Mother’s visits. Given the past problems, however, they were
reluctant to permit the visits to occur in an unsupervised setting. On December
10, 2012, Paternal Grandparents sent Mother a letter stating that they planned
to have her visits set up at an agency called Family Ties, which is able to
supervise parenting time. They provided her with the agency’s phone number
and the name of the contact person to call to set up the visits. In the letter,
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Paternal Grandparents also stated that Mother could take Child to her family’s
Christmas party on Christmas Eve.
[8] Mother did not call Family Ties. Paternal Grandmother called Family Ties,
and was mistakenly informed that a court order was needed for parenting time
to take place at that facility. Neither Mother nor Paternal Grandmother
followed up. Mother did not take Child to her family’s Christmas party
because “somethin’ came up.” Tr. p. 95. Mother’s last visit with Child was at
McDonald’s on December 9, 2012.
[9] Between December 10, 2012, and December 10, 2013, Mother called or texted
Paternal Grandparents on two or three occasions. Paternal Grandparents did
not respond. During that year, Mother never sought mediation pursuant to the
Mediation Agreement, stopped by Paternal Grandparents’ home, followed up
with Family Ties, or pursued relief from the trial court.
[10] On December 10, 2013, Paternal Grandparents filed a petition to adopt Child.
On August 6, 2014, the trial court held an evidentiary hearing regarding the
issue of Mother’s consent. At the hearing, the director of Family Ties testified
that a court order is not required for the facility to supervise parenting time. Tr.
p. 78. On September 25, 2014, the trial court entered an order dismissing the
petition because of a lack of consent from Mother. In relevant part, the trial
court found and concluded as follows:
3. [Mother] was granted unsupervised parenting time with the
child pursuant to this Court’s Order dated February 8, 2011
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(ratifying [the Mediation Agreement]). The Order has not been
modified.
***
5. [Mother] communicated significantly in person with [Child]
after September 4, 2012 through December 9, 2012 both at her
residence and at McDonald’s . . . .
***
8. The Court’s Order of February 8, 2011, regarding visitation
does not call for any of Mother’s visitation to be supervised nor
does it specify that any visitation will be conducted at [Family
Ties].
***
12. [Mother’s] uncontroverted testimony is she tried contacting the
[Paternal Grandparents] by cell phone after December 9, 2012
and into the early part of 2013 to visit with [Child] but her
phone calls and text messages went unanswered.
***
14. As of December 10, 2012, the [Paternal Grandparents] have
negated efforts on [Mother’s] behalf to communicate
significantly/exercise visitation with [Child] by:
 Refusing to answer or return phone calls from [Mother]
regarding visitation;
 Refusing to meet at a mutually acceptable place for
visitations . . . ; and
 Mandating that any visitation between [Mother] and [Child]
after December 9, 2012, be supervised at [Family Ties] despite
uncontroverted testimony that this facility required a court order
to facilitate such visitation.
***
20. The [Paternal Grandparents], in refusing to answer [Mother’s]
phone calls and text messages, and in mandating supervised
visitation when the Court had not required such, have
hampered and/or thwarted significant communication from
occurring between [Mother] and [Child].
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21. Based upon the foregoing, the Court FINDS that the [Paternal
Grandparents] have failed to meet their burden of proof, by
clear and convincing evidence, that for a period of at least one
year since [December] 9, 2012, [Mother] has failed without
justifiable cause to communicate significantly with [Child]
when able to do so.
Appellant’s App. p. 7-12. Paternal Grandparents now appeal.
Discussion and Decision
[11] Our Supreme Court has recently clarified the standard of review to be applied
to adoption proceedings:
“When reviewing the trial court’s ruling in an adoption proceeding, we
will not disturb that ruling unless the evidence leads to but one
conclusion and the trial judge reached an opposite conclusion.” Rust v.
Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999). We presume the
trial court’s decision is correct, and we consider the evidence in the
light most favorable to the decision. Id. at 771–72.
When, as in this case, the trial court has made findings of fact and
conclusions of law, we apply a two-tiered standard of review: “we
must first determine whether the evidence supports the findings and
second, whether the findings support the judgment.” In re Adoption of
T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006); see also Ind. Trial
Rule 52(A) (providing that where the trial court has made findings of
fact and conclusions of law, “the court on appeal shall not set aside the
findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.”). Factual findings “are clearly erroneous if the record lacks
any evidence or reasonable inferences to support them [and] . . . a
judgment is clearly erroneous when it is unsupported by the findings of
fact and the conclusions relying on those findings.” T.W., 859 N.E.2d
at 1217.
In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).
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[12] As a general rule, a petition to adopt a child under the age of eighteen will be
granted only if written consent to the adoption has been executed by the child’s
parents. Ind. Code § 31-19-9-1(a). Indiana Code section 31-19-9-8, however,
sets forth an exception to the general rule:
(a) Consent to adoption, which may be required under section 1 of
this chapter, is not required from any of the following:
***
(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[.]
In seeking an adoption without consent from the parents, the petitioner must
meet the burden of proof by clear and convincing evidence. In re Adoption of
S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).
[13] This Court has discussed the evidence that is required to satisfy the above
statutory exception to the general consent rule:
Initially, we note that a party petitioning to adopt without parental
consent has the burden of proving both a lack of communication for
the statutory period and that the ability to communicate during that
time period existed. Whether this burden has been met is necessarily
dependent upon the facts and circumstances of each particular case,
including, for example, the custodial parent’s willingness to permit
visitation as well as the natural parent’s financial and physical means
to accomplish his obligations. Efforts of a custodial parent to hamper or
thwart communication between parent and child are relevant in determining
the ability to communicate. However, in order to preserve the consent
requirement for adoption, the level of communication with the child must be
significant, and also must be more than “token efforts” on the part of the parent
to communicate with the child. The reasonable intent of the statute is to
encourage non-custodial parents to maintain communication with
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their children and to discourage non-custodial parents from visiting
their children just often enough to thwart the adoptive parents' efforts
to provide a settled environment for the children.
In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal
citations omitted) (emphasis added).
[14] In this case, the trial court based its conclusion regarding Mother’s consent on
three basic findings of fact: (1) that Paternal Grandparents required that
Mother’s visits be supervised, ostensibly in violation of the Mediation
Agreement; (2) that Paternal Grandparents required that Mother’s visits take
place at a facility that ostensibly required a court order to supervise parenting
time; and (3) that Paternal Grandparents failed to return Mother’s two or three
phone calls and texts. We will consider each of these in turn.
[15] First, the trial court found that the Mediation Agreement granted Mother
unsupervised parenting time. Appellant’s App. p. 7-8. This is incorrect. The
Mediation Agreement does not specify whether Mother’s parenting time was to
be supervised or unsupervised. Instead, it says that it was up to Paternal
Grandparents to determine what was in Child’s best interests and that
visitation, as well as Mother’s compliance with the terms of the Mediation
Agreement, was within the discretion of Paternal Grandparents. Tr. Ex. 3 p. 8-
9. Mother had the right to seek redress from a mediator and/or the trial court if
she believed that Paternal Grandparents were abusing their discretion.
[16] Second, the trial court found that the Mediation Agreement does not specify
that visits were to take place at Family Ties. While this is technically correct, as
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noted above, the agreement does state that visits were within the discretion of
Paternal Grandparents. The trial court also found that there was
“uncontroverted testimony that [Family Ties] required a court order to facilitate
such visitation.” Appellant’s App. p. 9. This is incorrect, inasmuch as the
director of Family Ties testified at the hearing that a court order is not required
to facilitate parenting time. Tr. p. 78-79. She testified that it was “possible, but
unlikely,” that a Family Ties employee had mistakenly informed Maternal
Grandmother that a court order was required, but it is undisputed that, in fact,
no court order is required. Id. at 79.
[17] Third, the trial court found that Paternal Grandparents failed to answer or
return Mother’s phone calls or texts. This is correct, but must be considered in
context. Between February 2011 and December 2012, Paternal Grandparents
made every effort to enable Mother and Child to see each other. They allowed
overnight visits at Maternal Grandmother’s home, until residents of that home
were convicted of possessing drugs inside that residence. They still allowed
Child to visit the home during the day, until they learned that one of the
convicted drug offenders was still maintaining a presence in that home.
Paternal Grandparents then asked that Mother’s visits take place at a public
location, which they let her select. And after Maternal Grandmother initiated a
verbal altercation at one of those visits, in front of the Child, Paternal
Grandparents determined that it was in Child’s best interests that they no longer
be present at the visits. But given the unstable history of those visits and of
Mother’s living situation, Paternal Grandparents asked that the visits be
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supervised. Of their own initiative, they found an agency that would help, and
informed Mother of the name, phone number, and contact person for that
agency. Paternal Grandparents also told Mother that Child could join her for
her family’s Christmas party.
[18] Notwithstanding all of these efforts, Mother did not call Family Ties, nor did
she follow up when Maternal Grandmother reported that a court order was
required. Mother did not take Child to her family Christmas party. Mother
called and texted Paternal Grandparents two or three times between December
2012 and the beginning of 2013, but quickly gave up after she received no
response.
[19] Mother had the right, under the Mediation Agreement, to seek mediation on
the issue of her parenting time. She did not. She also did not seek redress from
the trial court. Mother worked just blocks from the home of Paternal
Grandparents and Child, but she never went there in person. Mother had
previously visited the workplace of Paternal Grandparents, but never once went
there in person during the year leading up to the filing of the adoption petition.
Mother never sent cards or letters to Child during that year.
[20] To determine whether Mother’s consent is required, the trial court need
examine only the year prior to the filing of the petition. I.C. § 31-19-9-8(a)(2).
In that year, Mother made two or three phone calls, and made no further efforts
to see Child. As noted above, more than “token efforts” on the part of the
parent to communicate with the child are required to retain the right to consent
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to an adoption. C.E.N., 847 N.E.2d at 271-72. Mother’s two or three phone
calls and text messages, over the course of an entire year, amount to only token
efforts to communicate with Child. And Paternal Grandparents’ failure to
return those few calls does not amount to an attempt to thwart that
communication.
[21] We find that the evidence in this case leads to but one conclusion—that, in the
year prior to the filing of the adoption petition, Mother failed without justifiable
cause to communicate with Child despite having the opportunity to do so.
Consequently, her consent to the adoption was not required and it was
erroneous to dismiss the adoption petition.
[22] The judgment of the trial court is reversed and remanded for further
proceedings consistent with this opinion.
Najam, J., and Friedlander, J., concur.
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