Je.M., and Jo.M. v. D.A. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 27 2018, 8:55 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
John Quirk
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Je.M., and Jo.M., July 27, 2018
Appellants-Petitioners, Court of Appeals Case No.
17A-AD-3042
v. Appeal from the Delaware Circuit
Court
D.A., The Honorable Marianne Vorhees,
Appellee-Respondent Judge
Trial Court Cause No.
18C01-1706-AD-53
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-AD-3042 | July 27, 2018 Page 1 of 9
[1] Je.M. (“Paternal Grandfather”) and Jo.M. (“Paternal Grandmother”)
(collectively, “Paternal Grandparents”) appeal the denial of their petition to
adopt their grandson, Z.M. (“Child”). Paternal Grandparents argue the trial
court erred when it determined the consent of D.A. (“Mother”) was required
for Paternal Grandparents’ adoption of Child. Finding no error, we affirm.
Facts and Procedural History 1
[2] Child was born on October 15, 2012, to Mother and B.M. (“Father”). On April
15, 2016, the Randolph Circuit Court ordered Father to have physical custody
of Child, and Mother was given supervised visitation (“Randolph County
Action”). Mother was also ordered to pay Father $40.00 per week in child
support. On July 13, 2015, Father filed a petition to suspend Mother’s
visitation. On July 15, 2015, Mother filed a petition for citation related to
parenting time. The trial court held a hearing on August 18, 2015, and ordered
Mother to have parenting time as the parties agreed in the future.
[3] In June 2017, Father moved to Texas. On June 2, 2017, Paternal Grandparents
filed a petition in Delaware County to adopt Child. With the petition, Paternal
Grandparents filed Father’s consent to the adoption and the termination of his
1
We note Appellants’ Statement of the Case does not comport with Indiana Appellate Rule 46(A)(5), which
requires the Statement of the Case “briefly discuss the nature of the case, the course of the proceedings
relevant to the issues presented for review, and the disposition of these issues by the trial court[.] . . . Page
references to the Record on Appeal or Appendix are required in accordance with Rule 22(C).” (emphasis added)
The Appellants’ brief contains a list of events relevant to the proceedings, with no indication of how these
events connect to other events in the proceedings, and there are no page citations.
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parental rights. On June 21, 2017, Mother filed a petition for emergency
custody as part of the Randolph County Action. Paternal Grandparents filed a
motion to intervene in the Randolph County Action, and the trial court
approved that motion. Paternal Grandparents filed a petition to modify
custody. Mother did not appear at the hearing on her petition for emergency
custody, and Paternal Grandparents were granted temporary custody of Child. 2
[4] On June 27, 2017, the trial court held a pre-trial hearing during which Mother
indicated she intended to hire counsel. Her counsel entered an appearance on
July 27, 2017. On November 9, 2017, the trial court held a status hearing
during which Father appeared telephonically and answered questions regarding
his consent to the adoption and the termination of his parental rights. On
December 7, 2017, the trial court held a final hearing on Child’s adoption,
during which Mother testified. On December 18, 2017, the trial court denied
Paternal Grandparents’ petition for adoption.
Discussion and Decision
[5] As an initial matter, we note Mother did not file an appellee’s brief. When an
appellee does not submit a brief, we do not undertake the burden of developing
arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct.
2
At some point in the proceedings, the Randolph County Action was transferred to Delaware County. (See
App. Vol. II at 66) (“This court now has jurisdiction over a related case, Cause No. 18C01-1711-JP-0266, the
Paternity Action which started in Randolph Circuit Court under Cause No. 68C01-1408-JP-0136.”).
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App. 2002). Instead, we apply a less stringent standard of review and may
reverse if the appellant establishes prima facie error. Id. Prima facie error is
“error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van
Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
[6] Our standard of review of adoption proceedings is well-settled:
“When reviewing adoption proceedings, we presume that the
trial court’s decision is correct, and the appellant bears the
burden of rebutting this presumption.” We generally give
considerable deference to the trial court’s decision in family law
matters, because we recognize that the trial judge is in the best
position to judge the facts, determine witness credibility, “get a
feel for the family dynamics,” and “get a sense of the parents and
their relationship with their children.” We will not disturb the
trial court’s ruling “unless the evidence leads to but one
conclusion and the trial judge reached an opposite conclusion.”
The trial court's findings and judgment will be set aside only if
they are clearly erroneous. “A judgment is clearly erroneous
when there is no evidence supporting the findings or the findings
fail to support the judgment.” “We will neither reweigh the
evidence nor assess the credibility of witnesses, and we will
examine only the evidence most favorable to the trial court’s
decision.”
In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations omitted).
Paternal Grandparents do not challenge the findings of the trial court, so we
must accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)
(“Because Madlem does not challenge the findings of the trial court, they must
be accepted as correct.”).
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[7] Generally, a trial court may grant a petition for adoption only if both the
mother and father of the child consent. Ind. Code § 31-19-9-1(a)(2). However,
Ind. Code § 31-19-9-8 provides consent to an adoption is not required from:
(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.
[8] In the underlying proceedings, Paternal Grandparents argued Mother’s consent
was not required because she had not communicated with Child since May
2016 and she owed Father $4,560.00 in child support arrears. Parental
Grandparents assert “the Trial Court found that the parents ([Mother and
Father]) were too young when [Child] was born. Because of this, the Petition
to Adoption without consent of [Mother] was denied.” (Br. of Appellants at 8.)
We disagree.
[9] Regarding Mother’s consent, the trial court found:
9. First, regarding consent: [Child] lived with [Father] and
[Father’s] girlfriend, [G.M.,] during the One (1) Year period
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prior to the date [Paternal Grandparents] filed the Petition for
Adoption. [Father] testified he was the primary caregiver for
[Child] during that time period. [Father] had to get up early for
work, and so he took [Child] to [Paternal Grandparents’] house
at night to sleep. [Father] testified he would e-mail [Mother]
until the Randolph Circuit Court suspended her parenting time. 3
10. [G.M.] testified that she and [Father] lived together from
July 2016, until March, 2017, and during that time period,
[Mother] contacted [G.M.] via Facebook to express concerns
about [Child].
11. [Mother] testified the contact with [G.M.] occurred at
Mother’s Day, 2016, and she told [G.M.] that she wanted to see
[Child]. [Mother] had one visit with [Child] in May, 2016. She
tried again to visit [Child] at Christmas, 2016, by contacting
[G.M.]. She did not receive a visit.
12. I cannot go so far as to say that [Paternal Grandparents]
have carried their burden to show by clear and convincing
evidence that [Mother] has abandoned or deserted [Child], or
that she failed to communicate significantly with him without
justifiable cause.
13. During the time period at issue, June 2016 to June 2017,
[Father] had primary custody and relied on [Paternal
Grandparents] for overnight care. [Mother] had an order
allowing her to have supervised parenting time with [Child], but
[Father] testified he stopped communicating with [Mother] by e-
mail. [Mother] did have two visits between May and December,
3
It is unclear when this suspension occurred, but it seems to have been ordered prior to the adoption
proceedings.
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2016. She attempted to contact [Father] through his girlfriend’s
Facebook page.
14. Although [Mother] certainly could have made more diligent
efforts to contact [Father] to obtain parenting time, she did not
completely abandon her child. She even sought emergency
custody after she heard that [Father] had moved to Texas.
15. As for support, [Mother’s] obligation was to pay support to
[Father] for [Child’s] benefit. She had no support obligation to
[Parental Grandparents] between June 2016 and June 2017.
[Father] did not enforce the support order. [Mother] owed no
duty to pay support to [Parental Grandparents] during the period
from June 2016 to June 2017. Further, the parties did not present
any evidence as to [Mother]’s ability to pay support during the
time period. I do not find this as a basis for terminating
[Mother’s] parental rights.
*****
18. As to [Mother’s] role in [Child’s] life, it seems to me from
reading the records from both proceedings that [Father and
Mother] had [Child] at a very young age. But the child is young,
and [Mother] is young, and so to terminate [Mother’s] rights as
mother at this time is premature.
(App. Vol. II at 67-8.)
[10] Paternal Grandparents mischaracterize the record by suggesting the reason for
the denial of their petition was the trial court’s conclusion that Mother was
young when Child was born. Instead, the trial court set forth multiple findings
to support its conclusion Mother’s consent was required for Child’s adoption.
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While it does seem contact between Mother and Child was limited and Mother
could have put forth more effort to communicate with Child, the Record also
supports an inference that the lack of contact was not solely Mother’s fault.
Mother, and Father, and G.M. testified Father did not respond to Mother’s
emails, Father testified he did not know his own email address. G.M. testified
Father “did not check his emails at all[,]” (Tr. Vol. II at 52), and Paternal
Grandmother checked the email address and responded to emails sent to that
account. Paternal Grandmother admitted she had access to the email account
in question.
[11] Father indicated he did not know if Mother had his phone number and he
admitted Mother did not know where he lived. Mother testified Father had
blocked her from communicating with him via Facebook and Paternal
Grandparents had a “no trespassing” order against her. (Id. at 76.) Mother
testified she attempted to set up supervised visitation with Child through the
Department of Child Services, but moved and she did not maintain contact to
make arrangements.
[12] While we acknowledge the complicated nature of Mother’s relationship with
Child, we cannot say the trial court erred when it denied Paternal
Grandparents’ petition to adopt Child, especially in light of testimony
indicating some parties may have intentionally thwarted Mother’s efforts to
contact Child. See E.B.F. v. D.F., 93 N.E.3d 759, 767 (Ind. 2018) (trial court’s
grant of stepmother’s petition to adopt child reversed based, in part, on the fact
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father and stepmother intentionally and unintentionally thwarted mother’s
efforts to communicate with child).
Conclusion
[13] The trial court did not err when it denied Paternal Grandparents’ petition for
adoption of Child because Mother’s consent was required for Child’s adoption.
Accordingly, we affirm.
[14] Affirmed.
Riley, J., and Mathias, J., concur.
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