In Re the Adoption of R.D: B.L.D. and K.D. v. B.D. and C.P. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 28 2020, 9:46 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 APPELLANTS
Erik H. Carter
Carter Legal Services LLC
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of R.D: July 28, 2020
B.L.D. and K.D., Court of Appeals Case No.
20A-AD-364
Appellants-Petitioners,
Appeal from the Cass Circuit
v. Court
The Honorable Stephen Roger
B.D. and C.P., Kitts, II, Judge
Trial Court Cause No.
Appellees-Respondents
09C01-1901-AD-1
Baker, Judge.
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[1] B.L.D. and K.D. (collectively, the Adoptive Parents) appeal the trial court’s
order denying their petition for adoption, arguing that the trial court erred (1)
by finding that Adoptive Parents had not proved by clear and convincing
evidence that they could adopt R.D. (Child) without B.D.’s (Mother’s) and
C.P.’s (Father’s) consent due to a lack of significant communication; and (2) by
finding that Adoptive Parents had not proved by clear and convincing evidence
that consent was not required because Mother and Father were not fit to be
Child’s guardians and because adoption was in Child’s best interests. Finding
no error on either front, we affirm.
Facts
[2] Child was born on January 24, 2017. At the time of birth, Father did not sign
Child’s birth certificate and did not submit a paternity affidavit. Two days later,
on January 26, 2017, Mother went with Child to the home of Adoptive Parents
to discuss childcare. Due to Mother’s preexisting relationship with B.L.D.,
Mother asked if Adoptive Parents would temporarily look after Child during
Mother’s pending incarceration. Adoptive Parents agreed, and on October 4,
2017, all three signed a Temporary Custody Agreement, pursuant to which
Adoptive Parents were to have temporary guardianship of and “special power
of attorney” for Child. Tr. Vol. II p. 54.
[3] From the time of Child’s birth until Mother’s first release from incarceration,
Father made little effort to reach out to Child or provide any financial support.
While incarcerated, Mother permitted Adoptive Parents to file her federal
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income tax return and then to subsequently use the $3,264 tax refund to support
Child and the household. Mother was eventually released from incarceration on
April 24, 2018. Upon release, Mother went to live with Child and Adoptive
Parents in their home. During this time, Mother “[bought] things for [Child]
while [she] [was] in the home,” and attempted to establish a relationship with
Child. Id. at 159-60. After approximately two months, Adoptive Parents kicked
Mother out for personal reasons. Thereafter, Mother’s visits with Child were
sporadic, and Father’s visits were very infrequent.
[4] Sometime in July 2018, Mother filed a petition to establish Father’s paternity
and child support. A DNA test proved that Father was, in fact, the biological
father of Child. But before the trial court could conduct a hearing on Mother’s
petition, Mother became incarcerated again on December 25, 2018. Because
Mother could not appear for the hearing and did not notify the trial court of her
absence, the petition was dismissed, and “no order establishing either paternity
or child support was issued by the court.” Appealed Order p. 2.
[5] During her second period of incarceration, Mother did not visit with Child, but
did attempt to call Adoptive Parents “at [their] expense.” Tr. Vol. II p. 56.
There is disputed evidence that Father communicated with or visited Child at
Adoptive Parents’ home and that Father contributed financially to Child’s
upbringing. However, it is undisputed that between the years 2017-19, Adoptive
Parents moved approximately six times.
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[6] On January 14, 2019, Adoptive Parents filed a petition for adoption of Child,
claiming abandonment by Mother and Father and, consequently, arguing that
neither party’s consent was necessary for the adoption to proceed. Adoptive
Parents attempted to serve Father with their petition, but service to Father was
returned not served, “having been sent to an incorrect address.” Appealed
Order p. 3. On January 24, 2019, Mother, from the Howard County Jail,
objected to the adoption. On February 21, 2019, Mother was granted leave to
appear at an initial hearing. On March 21, 2019, Father appeared with counsel
and stated his intent to proceed with separate paternity proceedings. On August
2, 2019, the trial court held another hearing, at which time the trial court
“issued a temporary order for custody and parenting time, as well as appointing
a Guardian ad Litem and Court Appointed Special Advocate to the case.” Id.
Mother and Father were both granted supervised parenting time.
[7] At the conclusion of the December 3, 2019, adoption hearing, the trial court
took the matter under advisement. On December 6, 2019, the trial court issued
an order denying the Adoptive Parents’ petition for adoption, awarding
physical custody of Child to Father, and granting Mother supervised parenting
time. In pertinent part, the order reads as follows:
Much additional testimony was given with respect to the fitness of
all four parties as parents. The record of the hearing indicates
much additional information about their personal, family, and
criminal histories. The court concedes that it considered the record
in its entirety; it merely declines to offer further findings of fact or
opinions of the characters of the parties at this time. The court
does not find that [Mother] and [Father] abandoned [Child], or
that either of them willfully or negligently failed to communicate
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with [Child], or provide care for [Child] when able to do so or
required by law. Rather, the court finds that both parents were
faced with obstruction from [Adoptive Parents] when they made
any efforts for [Child’s] benefit. The court can find no case on
point in which parties were attempting to adopt a child over the
objection of a parent based on abandonment after having
guaranteed the abandonment through their own willful actions. . .
The court considers the three above stated points to be sufficient
for its analysis that the evidence that consent is not required per
statute is not clear and convincing.
Id. at 6. Adoptive Parents now appeal.
Discussion and Decision
[8] Initially, we note that both Mother and Father have failed to file appellate
briefs. “When the appellee does not file a brief, we apply a less stringent
standard of review and may reverse the trial court when the appellant
establishes prima facie error.” Geller v. Kinney, 980 N.E.2d 390, 398 (Ind. Ct.
App. 2012). “‘Prima facie’ is defined as ‘at first sight, on first appearance, or on
the face of it.” Id. (citing Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind.
Ct. App. 2003)). “If the appellant is unable to meet the burden of prima facie
error, however, we will affirm.” Geller, 980 N.E.2d at 398.
I. Lack of Communication
[9] First, Adoptive Parents argue that the trial court erred when it found that they
had not proved by clear and convincing evidence that they could adopt Child
without both Father’s and Mother’s consent due to a lack of significant
communication.
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[10] Our standard of review for these types of cases is well established:
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. In
re Adoption of Subzda, 562 N.E.2d 745, 747 (Ind. Ct. App. 1990).
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. Matter of Adoption
of Marcum, 436 N.E.2d 102, 103 (Ind. Ct. App. 1982). We note
that a petitioner for adoption without parental consent bears the
burden of proving the statutory criteria for dispensing with such
consent in Ind. Code § 31-19-9-8(a)(2) by clear, cogent and
indubitable evidence. In re Adoption of Augustyniak, 505 N.E.2d
868, 870 (Ind. Ct. App. 1987); Matter of Adoption of Ryan L., 435
N.E.2d 624, 625 (Ind. Ct. App. 1982). If the evidence most
favorable to the judgment clearly, cogently, and indubitably
establishes one of the criteria for granting adoption without
parental consent and, thereby, for the termination of parental
rights without consent, we will affirm the judgment. In re Adoption
of Childers, 441 N.E.2d 976, 978 (Ind. Ct. App. 1982). Finally, the
decision of the trial court is presumed to be correct, and it is the
appellant’s burden to overcome that presumption. Id.
Rust v. Lawson, 714 N.E.2d 769, 771-72 (Ind. Ct. App. 1999).
[11] Indiana Code section 31-19-9-8(a)(2) states that:
(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; or
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(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.
[12] Here, the trial court found that both Mother and Father faced significant
obstruction by Adoptive Parents when attempting to communicate with Child.
Adoptive Parents disagree, arguing that both Mother and Father failed to
communicate significantly with Child at any time since Child’s birth.
[13] Adoptive Parents filed their petition for adoption on January 14, 2019. Thus,
Adoptive Parents had to prove by clear and convincing evidence that both
Mother and Father failed without justifiable cause to communicate significantly
with Child when able to do so between January 14, 2018, and January 14,
2019. And based on the record, we find that the trial court did not err by
concluding that Adoptive Parents did not clear this threshold.
[14] To start, during Mother’s first incarceration, she coordinated with the Adoptive
Parents to sign a Temporary Custody Agreement, pursuant to which the
Adoptive Parents would care for Child in Mother’s absence. The Adoptive
Parents argue that though “there was conflicting testimony over the scope and
intention of this handwritten agreement, there is no testimony that Mother at
any time requested to take [Child] into her possession and custody.”
Appellant’s Br. p. 20. This logic is, for lack of a better term, baffling to us. The
Temporary Custody Agreement contains a clause that explicitly states that the
guardianship will expire on “3/17/2018 or my release date from prison,
whichever is earlier[.]” Appealed Order p. 4. Thus, Mother did not abandon
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Child by signing the Agreement—indeed, she was trying to ensure that Child
was cared for while Mother was unable to do so herself. We would be remiss to
punish Mother for entrusting Child to responsible guardians on a temporary
basis. The fact that the Adoptive Parents seek to use the Temporary Custody
Agreement as evidence against Mother seems duplicitous and, quite frankly,
perfidious.
[15] Between Mother’s release on April 24, 2018, and January 14, 2019, there were
periods during which Mother communicated with and financially provided for
Child. After her initial release from incarceration, Mother went to live with
Adoptive Parents at their request. It is undisputed that Mother bought things for
Child, attempted to establish a relationship with him, and even allowed
Adoptive Parents to use her tax refund to provide for Child. In July 2018,
Mother instituted paternity and child support proceedings against Father so that
she would have more money for Child’s support. Further, after Mother was
reincarcerated on December 25, 2018, she frequently called Adoptive Parents to
communicate with Child.
[16] Those concerted efforts, in effect, interrupted the one-year lull of significant
communication that the Adoptive Parents had to prove to adopt Child without
Mother’s consent. Our Supreme Court has held that “a single significant
communication within one year is sufficient to preserve a non-custodial parent’s
right to consent to the adoption.” E.B.F. v. D.F., 93 N.E.3d 759, 763 (Ind.
2018). And here, no matter how sporadic her communications were, Mother
did enough to require Adoptive Parents to obtain her consent before adopting.
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In other words, the trial court did not err in its assessment by denying Adoptive
Parents’ petition for adoption on this basis.
II. Fitness of Parents
[17] Next, Adoptive Parents argue that the trial court erred by finding that Adoptive
Parents had not proved by clear and convincing evidence that consent was not
required because Mother and Father were not fit to be Child’s guardians and
because adoption was in Child’s best interests. Once again, “we will not disturb
the trial court’s decision in an adoption proceeding unless the evidence leads
only to a conclusion opposite that reached by the trial court.” In re Adoption of
J.T.A., 988 N.E.2d 1250, 1252 (Ind. Ct. App. 2013). It is our job to reexamine
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.
[18] Indiana Code section 31-19-9-8(a)(11) states that:
(a) Consent to adoption, which may be required under section 1 of
this chapter, is not required from any of the following:
***
(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 interest of the child sought to be adopted
would be served if the court dispensed with the
parent’s consent.
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[19] Here, while the trial court did not make an explicit finding as to Mother and/or
Father’s fitness or to Child’s best interests, we give considerable deference to
trial courts for family law matters because they are in the best position to
analyze facts, determine witness credibility, and “‘get a feel for the family
dynamics[.]’” E.B.F., 93 N.E.3d at 762 (quoting MacLafferty v. MacLafferty, 829
N.E.2d 938, 940 (Ind. 2005)). And here, the trial court clearly believed that
neither Mother nor Father were unfit and that it was not in Child’s best interests
to be adopted without their consent.
[20] Specifically, the trial court faults Adoptive Parents for “obstruct[ing]” both
biological parents in their attempts to communicate with Child. Appealed
Order p. 6. And the record shows that it was not erroneous for the trial court to
reach that decision. Not only did Adoptive Parents agree to temporarily care for
Child while Mother was incarcerated—only to later use that as evidence that
Mother purportedly abandoned Child—but Adoptive Parents also moved
roughly six times over a three-year span, making it extremely challenging for
Mother and Father to locate them and Child. The trial court took note of this
when admonishing Adoptive Parents for failing to have a constant address that
Father could contact during the adoption proceedings.
[21] Further, the trial court established supervised parenting time for both Mother
and Father and appointed a Guardian ad Litem and a CASA. It is apparent that
despite the paucity of early intervention and communication by Father, the trial
court thought it fit to grant Father parenting time under the court’s watch and to
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award him physical custody. Once again, we find nothing errant or incorrect
about the trial court’s decisions.
[22] At the crux of the trial court’s conclusion is the fact that Mother and Father did
not abandon Child. While the trial court “merely decline[d] to offer further
findings of fact or opinions of the characters of the parties at this time,” id., it is
unambiguous that the trial court saw both Mother and Father as fit to care for
Child. Though the record is comprised of significant evidence demonstrating
that Adoptive Parents would be suitable guardians, that is not the question
before us. Rather, we are tasked with determining whether the trial court erred
when it ruled against Adoptive Parents on their claim that the biological parents
were unfit. And quite honestly, Adoptive Parents proffer no significant evidence
proving that it would not be in Child’s best interests for his biological parents to
remain as primary caregivers rather than for Child to be adopted without
Mother and Father’s consent.
[23] We reiterate that these are fact-sensitive matters that require diligence and an
eye towards the best interests of the Child. Here, we find that the trial court did
not err by finding that Adoptive Parents did not prove by clear and convincing
evidence that Mother and Father were not fit to be Child’s guardians and that
adoption was in Child’s best interests. There is no doubt that Adoptive Parents
love and wish to care for Child on a permanent basis. Yet, Indiana law requires
the biological parents’ consent or some alternative showing that consent was
not necessary. And here, neither is present.
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[24] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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