In the Matter of the Adoption of G.B.A., L.C. v. B.D. (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 Aug 04 2020, 8:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Mark E. Small
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of August 4, 2020
G.B.A., Court of Appeals Case No.
20A-AD-744
L.C.,
Appeal from the
Appellant-Respondent, Greene Circuit Court
v. The Honorable
Erik C. Allen, Judge
The Honorable
B.D., Lucas M. Rudisill, Magistrate
Appellee-Petitioner. Trial Court Cause No.
28C01-1907-AD-5
Kirsch, Judge.
[1] L.C. (“Father”) appeals the trial court’s decree of adoption, which granted the
petition to adopt minor child, G.B.A. (“the Child”) that was filed by B.D.
(“Stepfather”). Father raises two issues, which we consolidate and restate as:
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Whether the trial court erred in finding that Father’s
consent to Stepfather’s petition to adopt the Child was
unnecessary because Father failed to appear at the
contested hearing for which he had received notice and
because Father had failed to communicate with or had
otherwise abandoned the Child.
[2] We affirm.
Facts and Procedural History
[3] Father and T.D. (“Mother”) are the biological parents of the Child, who was
born on December 17, 2010. Appellant’s App. Vol. 2 at 9; Tr. Vol. 2 at 9. In 2012,
just before the Child turned two years old, Mother and Stepfather began dating
and moved in together soon after the Child’s second birthday. Tr. Vol. 2 at 11.
The Child began referring to Stepfather as “Dad” when she was three years old
Id. at 11, 28. Mother and Stepfather married in 2014. Id. at 11.
[4] On July 11, 2019, Stepfather filed a petition to adopt the Child, who was eight
years old at the time. Appellant’s App. Vol. 2 at 6-7. In the petition, Stepfather
stated that he did not know if Father would consent to the adoption but
contended that Father’s consent was unnecessary because:
[P]ursuant to Ind. Code [section] 31-19-9-8, consent is not
required from [Father]. [Father] has failed, without justifiable
cause, to communicate significantly with [the Child] for a year or
more and has knowingly failed to provide for the care and
support of [the Child] when able to do so. Furthermore, [Father]
Father has abandoned [the Child].
Id. at 7.
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[5] On August 2, 2019, Father wrote a letter to the trial court, stating that he would
not consent to the adoption:
I’m wrighting [sic] you because i was served papers from my
daughters [sic] mother where they are wanting to adopt [the
Child]. I will be comeing [sic] to court & will not sign my right’s
[sic] over. I was tould [sic] I needed to wright [sic] a letter
explaining or just letting you no [sic] what I was going to do in
this matter . . . .
Id. at 8. The trial court set the matter for a contested hearing for October 2,
2019. Id. at 4. Father did not appear at the October 2 hearing, but the trial
court noted that the CCS did not indicate that Father had received notice of the
hearing, so the trial court rescheduled the contested hearing to November 4,
2019. Tr. Vol. 2 at 4-6; Appellant’s App. Vol. 2 at 4. Father was provided notice
of the November 4 hearing. Appellant’s App. Vol. 2 at 4.
[6] Father did not appear at the November 4 hearing. Id.; Tr. Vol. 2 at 6.
Stepfather’s counsel, pursuant to Indiana Code section 31-19-9-18(c), moved to
dismiss with prejudice Father’s objection to the adoption because Father’s
consent was irrevocably implied as he had failed to appear at the hearing to
contest the adoption and prosecute the motion without unreasonable delay. Tr.
Vol. 2 at 7.
[7] The hearing then proceeded to the evidentiary phase. Mother testified that
Father had not paid child support since June 2017. Id. at 9-10; Pet’r’s Ex. 1. She
also testified that Father had not visited the Child since December 2016 and
had made almost no effort to contact Mother about arranging a visit for him
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with the Child. Tr. Vol. 2 at 9. Mother said Father made no attempt to visit the
Child because he was frequently incarcerated for drug related crimes, theft and
failure to pay child support. Id. at 12. Mother also testified that even when
Father was not incarcerated, he made no attempt to visit the Child because of
his chronic drug use, which most often involved intravenous use of heroin. Id.
The trial court asked Mother if she had rejected any of Father’s attempts to visit
Child. Id. Mother answered: “Not really, pretty much any time that he has
tried to come back in her life I have offered to slowly let him work his way back
into her life, but he always ends up kind of falling off the wagon and losing
touch.” Id. Mother also testified that she wanted the trial court to find that
Father’s consent to the adoption was not necessary because of his failure to pay
child support. Id. at 10. Mother said she consented to Stepfather’s adoption of
the Child. Id. at 12.
[8] Stepfather testified that he wanted to adopt the Child because he has acted as
her father since she was two years old, having taken “care of everything for
her.” Id. at 13. He also testified that the Child has always considered him to be
her father. Id. He stated that the Child needs stability in her life, which he said
he could provide, and that allowing Father to step in and out of her life would
“break[ ] her heart.” Id. Stepfather stated that he has worked at Sunrise Coal
for two years and makes a good income. Id. at 14. Stepfather said that he
believed it was in Child’s best interest for him to adopt her. Id. at 15.
[9] At the end of the November 4 hearing, the trial court ruled that under Indiana
Code section 31-19-9-8(a)(1), (2), and (11), Father’s consent was not necessary
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because 1) Father had abandoned the Child for at least six months immediately
preceding the date the petition for adoption was filed; 2) the Child was in the
custody of Stepfather for at least one year, and during that time, Father failed to
communicate significantly with the Child or knowingly failed to provide for the
care and support of the Child as required by law or judicial decree; and 3)
Stepfather proved by clear and convincing evidence that Father was unfit to be
a parent, and the Child’s best interests would be served by dispensing with
Father’s consent. Tr. Vol. 2 at 16. Finally, because Father did not appear at the
hearing and had failed to prosecute his objection to the adoption without
unreasonable delay, pursuant to Indiana Code section 31-19-9-18(c), the trial
court dismissed Father’s objection to the adoption with prejudice. Id.
[10] At end of the November 4 hearing, the trial court set a “ceremonial hearing” to
“finalize things” for December 5, 2019. Id. at 16-17. Also on November 4, the
trial court issued its decree of adoption, which found that Father’s consent was
not necessary for the same reasons that the trial court had recited when it
announced its ruling from the bench. Appellant’s App. Vol. 2 at 11. In addition,
the trial court found, pursuant to Indiana Code section 31-19-9-18(b)(2), that
Father’s consent was irrevocably implied because while he did file an objection
to the adoption, he failed to 1) appear at the November 4, 2019 hearing to
contest the adoption and 2) prosecute his motion to contest the adoption
without unreasonable delay. Id. Thus, the trial court granted Stepfather’s
petition for adoption. Id.
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[11] On December 5, 2019, the trial court held the hearing to finalize the adoption.
As the hearing commenced, the trial court observed that Father was present and
swore him in. Tr. Vol. 2 at 18. The trial court first advised Father about what
had occurred at the November 4 hearing. Id. at 19. The trial court then asked
Father why he had failed to appear for the hearing; Father acknowledged that
he had received notice for the hearing but explained, “I actually had a case
going on in Monroe [County] and got my court dates mixed up.” Id. at 19, 25.
Father said he was also confused about the dates because his attorney had died.
Id. at 20. However, the trial court reminded Father that his attorney had
represented Father in a child support case, not the instant adoption case. Id. at
20-21. Father told the trial court that he still objected to the adoption and asked
the trial court to appoint an attorney for him. Id. at 19, 21. Upon the trial
court’s request, Father left the courtroom. Id. at 26. Father and Mother offered
brief testimony, as did the Child, who stated that she felt “good” about the
adoption and wanted the trial court to approve the adoption. Id. at 30. The
trial court then reiterated its November 4 findings and conclusions by finding
that it was in the Child’s best interest to be adopted by Stepfather and,
therefore, approved the adoption. Id. Father now appeals.
Discussion and Decision
[12] “[A] parent’s interest in the care, custody, and control of his child is “perhaps
the oldest of the fundamental liberty interests.” In re Adoption of C.A.H., 136
N.E.3d 1126, 1129 (Ind. 2020) (quoting In re C.G., 954 N.E.2d 910, 923 (Ind.
2011)). However, a parent’s non-participation in adoption proceedings “may
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still result in the involuntary termination of parental rights.” C.A.H., 136 at
1129.
[13] We will not disturb an adoption ruling unless the evidence leads to but one
conclusion, and the trial judge reached an opposite conclusion. Id. at 1128. We
presume the trial court’s decision is correct. In re Adoption of T.L., 4 N.E.3d 658,
662 (Ind. 2014). To determine whether sufficient evidence exists to sustain the
decision, we will not reweigh the evidence but will examine the evidence most
favorable to the trial court’s decision and the reasonable inferences drawn
therefrom. In re Adoption of K.S., 980 N.E.2d 385, 387 (Ind. Ct. App. 2012).
[14] When the trial court has made findings of fact and conclusions based on those
findings, we normally apply a two-tiered standard of review: first, we
determine whether the evidence supports the findings and, second, we
determine whether the findings support the judgment. In re Adoption of M.H., 15
N.E.3d 612, 625 (Ind. Ct. App. 2014), trans. denied; see also Ind. Trial Rule
52(A). 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. M.H., 15 N.E.3d at 625.
[15] When an appellee fails to submit a brief, as here, our standard of review is
relaxed because we will not assume the responsibility of developing arguments
for the appellee. McElvain v. Hite, 800 N.E.2d 947, 948-49 (Ind. Ct. App. 2003).
Instead, we review the trial court’s decision for prima facie error, which means
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error at first glance or on the face of it. Id. Consequently, we review for prima
facie error the trial court’s determination that Father’s consent to the adoption
was not required. See id.
[16] As relevant to this appeal, a parent’s consent to adoption is not required under
the following circumstances:
(a) Consent to adoption . . . 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.
....
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
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(B) the best interests of the child sought to be adopted would be
served if the court dispensed with the parent’s consent.
Ind. Code § 31-19-9-8.
[17] Father first argues that the fact that he missed one hearing – the November 4
final hearing – was not sufficient grounds for the trial court to find that his
consent to the adoption was irrevocably implied. Father relies on C.A.H., 136
N.E.3d at 1129, where the biological father missed the final hearing. The
Supreme Court held: “Father’s failure to attend the final hearing . . . is
insufficient to overcome the important liberty interests at stake by finding him
in default. Father’s failure to appear at a single hearing also is insufficient to
support a finding of implied consent . . . .” Id. Here, we agree with Father;
even though Father received notice of the November 4 hearing, the trial court
erred when it concluded that Father’s consent to the adoption was irrevocably
implied because Father had failed to appear at the November 4 hearing.
[18] However, the trial court found that Father’s consent was unnecessary for other
reasons: 1) Father had abandoned the Child for at least six months
immediately preceding the date the petition for adoption was filed; 2) the Child
was in the custody of Stepfather for at least one year, and during that time,
Father failed to communicate significantly with the Child or knowingly failed
to provide for the care and support of the Child as required by law or judicial
decree; and 3) Stepfather proved by clear and convincing evidence that Father
was unfit to be a parent, and the Child’s best interests would be served by
dispensing with Father’s consent. Tr. Vol. 2 at 16. Father challenges only two
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of these three conclusions1 - the determinations that 1) Father had abandoned
the Child for at least six months immediately preceding the date the petition for
adoption was filed; and 2) the Child was in the custody of Stepfather for at least
one year, and, during that time, Father failed to communicate significantly with
the Child.2 He claims that Stepfather failed to prove these factors by clear and
convincing evidence, and, therefore, the trial court erred in making these
determinations.
[19] Father’s argument on these issues is both underdeveloped and unclear. He
appears to argue that the reason he abandoned the Child and failed to
communicate with her is because Mother thwarted his efforts to communicate
with the Child. Father does not identify what those efforts were. In so arguing,
Father appears to be relying on Mother’s testimony at the November 4 hearing
where, in response to the trial court’s question about whether she rejected any
of Father’s attempts to visit the Child, she stated: “Not really, pretty much any
time that he has tried to come back in her life I have offered to slowly let him
work his way back into her life, but he always ends up kind of falling off the
wagon and losing touch.” Tr. Vol. 2 at 12. Father seems to argue that this
statement shows that Mother was thwarting his efforts to communicate with
1
Father does not even allege that trial court erred in finding that Father was unfit to be a parent, and the
Child’s best interests would be served by dispensing with Father’s consent. Thus, Father has failed to
demonstrate prima facie error.
2
In challenging this determination, Father challenges only part of the trial court’s conclusion. Father does
not demonstrate, or even allege, that the trial court erred in finding that Father had failed to provide for the
care and support of the Child as required by law or judicial decree. See Tr. Vol. 2 at 16. Once again, Father
has failed to demonstrate prima facie error.
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Child. In support, he relies on E.W. v. J.W., 20 N.E.3d 889, 897 (Ind. Ct. App.
2014), trans. denied, where we held that the father’s efforts to thwart the
mother’s efforts to communicate with the child weighed in the mother’s favor in
determining whether she failed to make efforts to communicate with the child.
Father also relies on E.B.F. v. D.F., 93 N.E.3d 759, 763 (Ind. 2018), where the
Indiana Supreme Court ruled that the father and stepmother’s efforts to stymie
the mother’s attempts to communicate with the child meant that the mother’s
consent to the adoption was necessary and thus reversed the trial court’s
granting of the petition for adoption.
[20] These cases are readily distinguishable. In E.W., 20 N.E.3d at 896-97, the
father prohibited communication between the mother and child for over a year
until the date of the contested hearing. In E.B.F., 93 N.E.3d at 766, the father
and stepmother refused to return the mother’s repeated phone calls to arrange
visitation with the child. Also, the stepmother admitted that the father refused
to let the mother see the child and also conceded that if the child did not want
to see the mother, the stepmother would not let the child visit the mother. Id. at
767. In addition, in a case that Father does not cite, this court held that the trial
court erred in concluding that the out-of-state father’s consent was not required
where the father had sent letters to the child and attempted to arrange visits
with child, but the mother returned the letters unread and blocked the father’s
efforts to visit. In re Adoption of A.K.S., 713 N.E.2d 896, 899 (Ind. Ct. App.
1999), trans. denied.
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[21] Here, Mother and Stepfather engaged in no such efforts to thwart Father’s
purported efforts to communicate with the Child. Mother’s testimony that
when Father tried to come back into the Child’s life, she “offered to slowly let
him work his way back into her life” did not establish that Mother was
thwarting Father’s efforts to communicate with the Child. Taken in the light
most favorable to the trial court’s decision, Mother was simply proceeding
cautiously regarding Father’s requests to visit and communicate with the Child,
not blocking his efforts to communicate with the Child.
[22] The evidence clearly established that Father had, in fact, abandoned the Child
and failed to communicate with the Child. Mother testified at the November 4,
2019 hearing that Father had not visited the Child since December of 2016 and
had made almost no effort to contact Mother about arranging a visit for him
with the Child. Tr. Vol. 2 at 9. See In re Adoption of E.A., 43 N.E.3d 592, 597-98
(Ind. Ct. App. 2015) (evidence supported finding that biological father, for a
period of at least one year, failed without justifiable cause to communicate
significantly with child although he was able to do so, and thus biological
father’s consent to mother’s husband’s petition to adopt child was not required),
trans. denied. Accordingly, we conclude that Father has failed to establish a
prima facie case that the trial court erred in concluding that his consent to the
adoption was unnecessary.
[23] Affirmed.
Pyle, J., and Tavitas, J., concur.
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