In Re: The Matter of the Adoption of: E.M.L., (Minor) S.L. v. K.G. ( 2018 )

FILED
May 25 2018, 11:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Karen Celestino-Horseman Alan D. Wilson
Indianapolis, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Matter of the May 25, 2018
Adoption of: Court of Appeals Case No.
29A05-1710-AD-2250
E.M.L., (Minor) Appeal from the Hamilton
Superior Court
S.L., The Honorable Steven R. Nation,
Appellant-Petitioner, Judge
The Honorable William P.
v. Greenaway, Magistrate
Trial Court Cause No.
K.G., 29D01-1608-AD-997
Appellee-Respondent.
Barnes, Judge.
Case Summary
[1] S.L. (“Father”) appeals the granting of the adoption petition filed by K.G.
(“Stepfather”) for Father’s biological child, E.M.L. (“Child”). We reverse.
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Issue
[2] Father essentially raises two issues. We need only address the dispositive issue
of whether the trial court properly concluded that Father’s consent to Child’s
adoption by Stepfather was unnecessary.
Facts
[3] Child was born in 2009 to T.G. (“Mother”). Father, Mother, and Child lived
together for about a year before Mother and Child moved out. Father
established paternity in December 2011 and was ordered to pay child support.
Mother and Father were granted joint physical and legal custody of Child.
From the time of Child’s birth, he spent approximately every other weekend
with his paternal grandparents in Brown County. Father often visited with
Child when he was at the grandparents’ house. Mother and Stepfather married
in 2012.
[4] Between December 2011 and December 2012, Father paid about $620 of the
$3,380 he would have owed in child support. There is scant evidence in the
record as to Father’s employment situation during that time frame; evidently,
Father was employed as a machinist when his child support obligation was
calculated but lost that job sometime thereafter, according to Mother.
[5] In March 2012, Father was arrested for dealing in methamphetamine. On July
1, 2013, Mother filed a motion to modify custody. On October 9, 2013, the
trial court granted Mother sole legal and primary physical custody of Child.
This order contained no requirement that Child’s visitation with Father be
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supervised or otherwise placed any limitations on his visitation or contact with
Child.
[6] Father was convicted of dealing in methamphetamine in March 2013 and was
incarcerated through July 2014. Father sought and was granted a complete
abatement of his child support obligation to $0 while he was incarcerated. 1
Father frequently telephoned and spoke with Child when Child was visiting
Father’s parents.
[7] After being released from incarceration, Father resumed frequent visitation with
Child through Child’s weekend visits with Father’s parents. However, on June
9, 2015, Father filed a pro se “request” regarding parenting time and custody,
alleging that Mother improperly refused to allow Child to continue visiting
Father in Father’s own home and refused to allow Father any unsupervised
visitation with Child. App. Vol. II p. 113. A hearing on the matter originally
was scheduled for August 6, 2015, but was continued to November, and then
December, and finally to February 10, 2016.
[8] Before a hearing was held, Father was arrested in November 2015 on a
domestic battery charge for slapping a girlfriend in front of two children. He
remained in jail until he pled guilty in February 2016, at which time he was
1
The State, in a Title IV-D action, had first sought a total abatement of Father’s support obligation while he
was incarcerated. This request was dismissed when Father failed to appear telephonically at a hearing while
incarcerated. Father subsequently filed his own motion seeking a child support abatement, which was
granted.
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released on probation. He moved in with his parents thereafter. Meanwhile,
Father’s June 2015 petition regarding parenting time was dismissed after he
failed to appear at the February 2016 hearing on the matter, apparently held
while he was still incarcerated. However, the trial court ordered an abatement
of Father’s support obligation while he was incarcerated.
[9] Mother and paternal grandmother (“Grandmother”) frequently communicated
by text message regarding Child and Father, Child’s visitation with paternal
grandparents, and Child’s sports activities in Noblesville that Mother invited
paternal grandparents but not Father to attend.2 After Mother learned of
Father’s domestic violence arrest in November 2015, she texted Grandmother,
“I don’t trust [Father’s] judgement [sic] with his girlfriends that he affiliates
himself with, which is why I never thought it was a good idea for [Child] to be
around [Father] and his girlfriend.” Ex. 8, p. 42. 3 On November 27, 2015,
Mother texted Grandmother,
I wanted to let you know that [Child] knows that [Father] is in
jail. Unfortunately with what I’ve learned about [Father’s]
behavior in the last year, that until [Father] and I talk to each
other and get things resolved in court, that it’s in [Child’s] best
interest for [Father] to not talk with [Child] over the phone. I
know this is tough for you, but I’m trusting you to be sure that
2
Mother does not dispute the accuracy or veracity of these text messages as introduced into evidence. Also,
Father never had a cell phone with which he could have texted Mother.
3
The page numbers with respect to the exhibits refers to the page of the entire exhibit volume, not the
individual exhibit.
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there’s no communication going on between [Child] and
[Father].
Id. at 44. Grandmother responded to this text,
I will respect your wishes, but I don’t know what you mean
about his behavior in the last year? The issues he had was
between him and that girl. Nothing to do with [Child] at all. He
has not been on any drugs and was doing good, until the
incidents with her. I think it would hurt [Child] more by not
being able to talk to his Dad. . . . Please answer the phone when
[Father] tries to call you . . . .
Id.
[10] On November 29, 2015, Grandmother texted Mother,
I told [Child] last night when [Father] called, that he couldn’t talk
to him, he buried his head in the couch with tears and asked
why? I broke down and let him talk to him for a minute. I know
I told you I wouldn’t but he broke my heart when I seen him. I
am sorry. I told [Child] when he asked why, he would need to
talk to you. Please don’t be to [sic] upset with me. . . .
Id. at 45. Mother responded, “I’m not upset with you, I’m just really
disappointed with [Father].” Id.
[11] On Christmas Day 2015, Grandmother texted Mother, “[Paternal grandfather]
will be picking up [Child] today. Can you please find it in your heart to let
[Child] talk to his Daddy today?” Id. at 48. Mother responded,
[Child] can not [sic] talk to [Father]. I’m raising [Child] to be
responsible for his own actions and respectful of women and
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[Father] is supposed to be a positive role model with this for
[Child] and doesn’t demonstrate that for him, therefore [Father]
doesn’t need to be talking with [Child] until [Father] gets the help
that he needs. We know that this is not a one time incident and
that this has been a reoccurring pattern for a while with [Father].
Id.
[12] On Child’s birthday, January 17, 2016, Grandmother texted Mother asking if
Father could call and wish Child a happy birthday. Mother responded that he
could do so. Grandmother then texted, “I just talked to him before you texted
back. He said he tried calling several times today. I hope he tries again . . . .”
Id. at 50. Fifteen minutes later Mother texted, “We just got off the phone with
him.” Id. At trial, Mother initially testified that Father did not call Child on his
birthday in 2016, but admitted after seeing these text messages that Father must
have done so.
[13] On February 12, 2016, Grandmother texted Mother that Father had just been
released from jail and was living with paternal grandparents. Mother replied,
I know that [Father] has been released and in order for me to
ensure [Child’s] safety and stability, [Child] will not be able to
visit with you guys down there for a while. You and [paternal
grandfather] are more than welcome to visit [Child] up here [in
Noblesville]. I’m sure you’re aware of [Father] requesting an
appearance in court with us over parenting time which we
appeared for so he doesn’t have any rights to parenting time for
[Child]. Please understand that this isn’t a grandparent issue, but
a [Father] issue.
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Id. at 52. Despite what Mother stated in this text, there never was a court order
entered restricting Father’s parenting time.
[14] On March 4, 2016, Grandmother texted Mother,
I wish you would reconsider and let him [Child] come home with
us. His second family misses him terribly. I know that you and
[Father] are having trouble communicating, and he hangs up,
[Father] and I have talked about this extensively. His feelings are
you can not [sic] talk to him without talking down to him in a
demeaning manner. . . . Not sure if you know this, [Father] will
be having surgery on the 14th for a double hernia. He has been
suffering through this for many months. He will be glad to get it
taken care of so he can get back to work.
Id. at 55. Mother responded, “I need you to understand that at this point I’m
not okay with [Father] talking to or seeing [Child], however I’m fine with you
talking to him and visiting him in Noblesville.” Id.
[15] On March 14, 2016, Grandmother texted Mother, “Would you let [Child] call
[Father] tonight? He is in recovery after a pretty painful surgery.” Id. at 57.
Mother responded,
[Child] has never asked me if he can call [Father], so there’s
absolutely no reason for [Child] to call him. Please stop asking
me if [Child] can talk to [Father], I have been very direct with
you about why [Child] is not to have any contact with [Father]
and I’m going to tell you for the last time. [Father] is NOT a
good role model for [Child] and that [Father] has a lot of areas in
his life that he needs to improve on before being coming in
contact with children. If you want to talk to [Child], feel free to
call him while [Father] is not around.
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Id. at 57-58.
[16] On March 29, 2016, Grandmother texted Mother that Father had moved into
his own place and asked if Child could visit and stating that Father “won’t see
or talk to him per your request.” Id. at 58. Still, Child did not resume visitation
with paternal grandparents, although they continued attending sports activities
in Noblesville; Father never attended these events. On June 28, 2016, Mother
explicitly informed Grandmother, “I don’t think it’s a good idea for [Child] to
visit you guys down there . . . .” Id. at 63.
[17] On August 18, 2016, Stepfather filed a petition to adopt Child, which Father
contested. During the year prior to the filing of the adoption petition, Father
paid $3,189.74 in child support toward his total obligation of $3,380. All but
$222.00 of that amount was from tax intercepts. In the year prior to that, from
August 2014 to August 2015, Father regularly paid weekly child support. As
mentioned in one of Grandmother’s texts above, he had a severe hernia in the
summer of 2015 but was unable to have it operated on until March 2016 due to
lack of insurance and he had an extended recovery period thereafter; Mother
does not dispute that Father had a hernia and surgery to repair it. Father
claimed his hernia and post-surgery recovery impacted his ability to work. In
June 2016, Father began working steadily as a cook and began having child
support regularly withdrawn from his paycheck beginning in August 2016.
[18] The trial court held a hearing on July 26, 2017 to address whether Father’s
consent to the adoption was required, at which Father appeared and
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participated. On August 18, 2017, the trial court entered an order with findings
and conclusions stating that Father’s consent to the adoption was not required.
The court found that Father had failed to support Child during three separate
periods: from December 2011 to December 2012, during his incarceration from
January 2013 to August 2014, and from August 2015 to August 2016. The
court also found that Father had failed to significantly communicate with Child
in the year preceding the filing of the adoption petition.
[19] On September 6, 2017, the trial court held a final hearing to address whether
Child’s adoption by Stepfather would be in Child’s best interests. Father and
his attorney appeared at the hearing. At the outset, counsel for Stepfather
moved to exclude Father from the courtroom. Father’s attorney objected. The
trial court overruled the objection, based on its order of August 18, 2017, and
ordered Father and his attorney to leave the courtroom. After hearing
testimony from Stepfather and Mother, the trial court granted the adoption
petition. Father now appeals.
Analysis
[20] Father contends there was insufficient evidence to support the trial court’s
conclusion that his consent to Child’s adoption by Stepfather was not required.
The granting of an adoption petition over a natural parent’s objection results in
termination of parental rights and implicates the traditional right of parents
under the Fourteenth Amendment to the United States Constitution to establish
a home and raise their children. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind.
2014). “A parent’s interest in the care, custody, and control of his or her
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children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.
(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000)).
[21] We will reverse a trial court’s decision in an adoption proceeding only if the
evidence leads to one conclusion and the trial court reached the opposite
conclusion. E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans.
denied. “We do not reweigh evidence, and we consider the evidence most
favorable to the decision together with reasonable inferences drawn from that
evidence.” Id. We also recognize that trial courts are in the best position to
judge facts, determine witness credibility, ascertain family dynamics, and
evaluate the parents and their relationship with their child or children. Id.
[22] The trial court here entered findings of fact and conclusions thereon sua sponte.
In such a case, we apply a two-tiered standard of review, determining: (1)
whether the evidence supports the findings of fact and (2) whether the findings
support the judgment. Id. We will set aside the trial court’s findings or
judgment 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. When findings are entered sua sponte, they control
only as to the issues upon which the court has found, but they do not otherwise
affect our general judgment standard of review, and we may look both to other
findings and beyond the findings to the evidence of record to determine if the
result is against the facts and circumstances before the court. C.B. v. B.W., 985
N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied.
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[23] Indiana Code Section 31-19-9-8(a)(2) provides that a biological parent’s consent
to adoption is not required if, among other possibilities:
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.
Because the statute is written in the disjunctive, the existence of any of the listed
circumstances would provide sufficient reason to dispense with consent. In re
O.R., 16 N.E.3d at 973. A party seeking to adopt bears the burden of proving
by clear and convincing evidence that a noncustodial parent’s consent is not
required. In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).
A. Support
[24] We first address the trial court’s finding that there were three separate year-
long-plus periods, totaling forty-two months, in which Father failed to provide
for Child’s care and support. Stepfather had the burden of proving that Father
had the ability to make child support payments but that Father knowingly failed
to do so. See In re Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010),
trans. denied.
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“[The ability to pay] 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
or sporadic and what the non-custodial parent’s necessary and
reasonable expenses were during the period in question.”
Id. (quoting In re Adoption of Augustyniak, 508 N.E.2d 1307, 1308 (Ind. Ct. App.
1987), trans. denied).
[25] The first period of nonsupport found by the trial court was from December 2011
to December 2012. During that time frame, Father paid $620 in support toward
a total annual obligation of $3,380. Even if this constituted a gross
underpayment of support, there is no evidence whatsoever in the record of the
totality of the circumstances regarding that year of underpayment. All that is
known is that the original child support calculation was based on Father’s job
as a machinist but that he lost that job sometime thereafter for unknown
reasons. Stepfather’s attorney did not question Father about this time period,
though he did about the other two periods in question. It was not Father’s
burden to present evidence explaining why he did not pay the full amount of
support; it was Stepfather’s burden to prove that Father was able to pay it.
Thus, although the trial court found that Father was able to pay the full amount
of support for that year, there is a lack of evidence to support that finding, and it
is clearly erroneous. Cf. In re M.S., 10 N.E.3d at 1272 (holding there was
sufficient evidence biological mother had ability to pay support, despite claims
of high medical expenses and loss of business, where there was evidence mother
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still maintained gainful employment, lived in and paid to redecorate house
purchased by grandmother, and had multiple pets).
[26] The second period of nonpayment was during Father’s incarceration from
March 2013 through July 2014. Although Father’s child support obligation was
reduced to $0 during his incarceration, the trial court concluded nonetheless
that Father had a duty to continue paying some support, based on approximate
monthly income of $30 from a prison job. We conclude that the trial court’s
decision to essentially penalize Father for not paying any child support while
incarcerated, despite having had his support obligation reduced to $0, is
contrary to the policies underlying our supreme court’s decision in Clark v.
Clark, 902 N.E.2d 813 (Ind. 2009). In that case, the court held that
incarceration may be considered a substantial change in circumstances
justifying modification of a child support order. Clark, 902 N.E.2d at 817. The
court stated:
Proscribing the consideration of incarceration as a substantial
change in circumstances justifying the modification of a child
support order is not in the best interest of children. When
released, most obligated parents face the twin barriers of large
arrearages and difficulty finding employment. Such a situation
makes it more likely that the newly-released obligated parent will
face jail time as a result of non-payment of child support or
participate in the underground economy—once again straining
family relationships, if not jeopardizing public safety.
Id. Here, the trial court’s decision to effectively impose a retroactive child
support obligation upon Father while incarcerated put the ultimate strain upon
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a family relationship, as it was used as partial justification to terminate his
parental rights. Its finding that Father’s nonpayment of support while
incarcerated obviated the need for his consent to Child’s adoption is clearly
erroneous, as there is insufficient evidence he had the ability to pay during that
time.
[27] Finally, the trial court found Father knowingly failed to pay support when able
to do so between August 2015 and August 2016. During that time, Father paid
$3,189.74 in child support toward his total obligation of $3,380.00, and all but
$222.00 of that amount was from tax intercepts. Although the total amount of
these payments nearly equaled Father’s total obligation for the year, Mother
and the trial court discount the amount that resulted from tax intercepts because
they were not, strictly speaking, “voluntary” payments. Father notes that he
was again incarcerated for a part of that time period, and argues that he had a
hernia and resulting surgery and recovery that prevented him from working for
much of the rest of the time period.
[28] Those arguments aside, the fact that much of the support paid in that time
period came from tax intercepts does not mean that it should have been
disregarded by the trial court. Such intercepts would constitute support for
purposes of any criminal action for nonsupport of a dependent. See Long v.
State, 716 N.E.2d 51, 54 (Ind. Ct. App. 1999). Additionally, if the tax intercepts
had caused more to be paid in child support than Father owed for the one-year
period, he may have been entitled to reimbursement of that amount as an
involuntary overpayment of child support. See Matson v. Matson, 569 N.E.2d
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732, 734 (Ind. Ct. App. 1991). Regardless of the form in which support was
paid from August 2015 to August 2016, it was paid and the fact that most of it
came from tax intercepts should not have been held against Father when
considering whether his consent to Child’s adoption was required. The trial
court’s finding that Father knowingly failed to provide for Child’s support
during this time period is clearly erroneous.
B. Communication
[29] We now turn to whether there is sufficient evidence that Father failed to
communicate significantly with Child, when able to do so and without
justifiable cause, for the year preceding the filing of the adoption petition. It is
well-settled that, “‘Efforts of a custodial parent to hamper or thwart
communication between a parent and child are relevant in determining the
ability to communicate.’” E.W., 20 N.E.3d at 896-97 (quoting In re Adoption of
A.K.S., 713 N.E.2d 896, 899 (Ind. Ct. App. 1999), trans. denied). Also, “It has
been held that visitation by paternal family members may constitute indirect
communication by a non-custodial father.” In re Adoption of S.W., 979 N.E.2d
633, 641 (Ind. Ct. App. 2012).
[30] The evidence is clear and undisputed that Mother made efforts to curtail, and
then completely terminate, Father’s ability to communicate with Child in the
year preceding the filing of the adoption petition. At trial, Mother did not deny
what is reflected in the text messages between her and Grandmother: that she
wanted Father to have no communication with Child beginning with his
November 2015 incarceration, and no contact at all with Child when he was
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released from incarceration in February 2016.4 It required begging on
Grandmother’s part for Mother to allow Father to make a brief phone call to
Child on his birthday in January 2016. After Father’s release from
incarceration, Mother terminated the previous arrangement—in place since
Child’s infancy—whereby Child frequently spent weekends with Grandmother,
which facilitated visitation between Father and Child even when Mother
refused to allow Child to spend time alone with Father at his own residence.
On occasion, Father did phone Mother to attempt to arrange some
communication or visitation with Child. Unfortunately, these phone calls
would disintegrate into arguments when Mother insisted that Father had to, for
example, undergo counseling before he could see or talk to Child.
[31] Mother and the trial court discounted her clear efforts to hamper
communication between Child and Father by essentially claiming that he
should have expended more effort to force such communication, through legal
channels or by simply, for example, showing up at Child’s sporting events in
Noblesville unannounced and without Mother’s invitation and in contravention
of Mother’s clearly-expressed desire that Father have no contact with Child.
We conclude, however, that Father’s failure to fight Mother more aggressively
with respect to communicating with Child does not mean he lacked justifiable
4
Because the statutory period of required noncommunication is at least one year, we need not examine the
three-to-four-month time period between August and November 2015.
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cause for failing to communicate or that he was practically able to
communicate.
[32] Father’s parenting time rights were never curtailed by any court order. We do
not wish to be overly critical of Mother’s natural desire to protect Child, and
there is no question that Father has been far from an ideal parent. However,
there are established legal procedures to follow if a custodial parent believes
restriction or complete cessation of a noncustodial parent’s parenting time is
warranted. See I.C. § 31-14-14-1(a) (applying to paternity cases and stating, “A
noncustodial parent is entitled to reasonable parenting time rights unless the
court finds, after a hearing, that parenting time might: (1) endanger the child’s
physical health and well-being; or (2) significantly impair the child’s emotional
development”).5 Those procedures were not followed here. A custodial parent
should not be able to unilaterally limit, place conditions on, or completely
terminate a noncustodial parent’s parenting time, and then successfully assert in
an adoption proceeding that the noncustodial parent was able to communicate
with the child but failed to do so without justifiable cause. In sum, we conclude
the trial court clearly erred in finding that Father failed to significantly
communicate with Child, when able to do so and without justifiable cause, in
the year preceding the filing of the adoption petition.
5
A noncustodial parent’s conviction for child molesting or child exploitation creates a rebuttable
presumption that parenting time may be curtailed or, if granted, supervised. I.C. § 31-14-14-1(c) & (d).
Father has not been convicted of either offense.
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Conclusion
[33] The trial court’s findings that Father failed to support Child for at least a year
when able to do so, and that he failed without justifiable cause to communicate
significantly with Child for at least a year when able to do so, are clearly
erroneous. Thus, it erred in ultimately concluding that Father’s consent to
Child’s adoption by Stepfather was not required.6 We reverse the granting of
Stepfather’s adoption petition.
[34] Reversed.
Vaidik, C.J., and Pyle, J., concur.
6
Given our resolution of this issue, we need not address Father’s alternative argument that he was denied
due process when the trial court precluded him and his attorney from attending or participating in the hearing
that addressed whether adoption was in Child’s best interests.
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