In the Matter of the Adoption of B.R. (Minor Child) R.R. v. D.S. and V.S. (mem. dec.)

MEMORANDUM DECISION
Mar 16 2015, 10:02 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 APPELLANT ATTORNEY FOR APPELLEE
Joshua D. Hershberger R. Patrick Magrath
Hershberger Law Office Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the March 16, 2015
Adoption of B.R. (Minor Child) Court of Appeals Case No.
72A04-1408-AD-372
R.R. (Father), Appeal from the Scott Circuit Court
The Honorable Roger L. Duvall,
Appellant-Respondent, Judge
Case No. 72C01-1010-AD-30
v.
D.S. and V.S.,
Appellees-Petitioners
Crone, Judge.
Case Summary
[1] R.R. (“Father”) appeals the trial court’s order granting the petition filed by V.S.
(“Grandmother”) to adopt B.R., a quadriplegic fourteen-year-old for whom
Grandmother had been guardian for most of his life. Father contends that the
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trial court erred in concluding that his consent to the adoption is not required
and that the adoption is in B.R.’s best interest. Finding no error, we affirm.
Facts and Procedural History1
[2] Grandmother and her sister, D.S., filed a petition to adopt B.R. in October
2010. The trial court held a hearing on the petition in February and April 2014.
In an order dated June 30, 2014, the trial court made the following relevant
findings of fact and conclusions thereon:2
1. B.R. was born on February 1, 2000 one of three children to the
marriage of the Father and the Mother, T.R. (Mother).
2. The Court takes notice of the fact that the siblings of B.R. are wards
of the Court in child in need of services cases pending since 2009 and
are not parties to this case.
3. The Mother has consented to this adoption.
4. In April, 2001, Mother and B.R. were in an automobile accident
that left B.R. a quadriplegic. The accident resulted in [] 7 weeks of
hospitalization of B.R. followed by 4 ½ months at St. Vincent Rehab.
The child returned to the home of his parents on September 22, 2001.
5. The Indiana Department of Child Services (DCS) removed B.R. in
February 2003 from the home of his parents for failure to thrive.
6. The Father and Mother eventually separated in August 2004, and
dissolution was granted on May 17, 2005 in Johnson County, Indiana.
1
We remind Father that an appellant’s statement of facts “shall be stated in accordance with the standard of
review appropriate to the judgment or order being appealed.” Ind. Appellate Rule 46(A)(6)(b). Also,
Indiana Appellate Rule 43(C) states that an appellate brief “may be copied by any copying process that
produces a distinct black image on white paper.” The text in Father’s brief is indistinct and difficult to read.
2
We replace family members’ names with initials or descriptors where appropriate.
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7. The Father was granted the custody of B.R. and his two siblings.
In 2005 the Father was incarcerated on charges of criminal
confinement and domestic battery. B.R. was placed by DCS with
Grandmother, a great grandmother, who has had physical custody
since April 2005.
8. [Grandmother filed a petition for guardianship of B.R. in
September, 2005.] A temporary order on the guardianship was
entered September 7, 2005 and the guardianship order was entered on
May 11, 2006. The Father was awarded parenting time as a part of the
guardianship order.
9. The next three years of the guardianship would be marked by
continued litigation. During that time period the Court appointed,
Mary Fondrisi, as guardian ad litem. This ongoing litigation
culminated with a petition by GAL Fondrisi to suspend parenting time
filed on April 3, 2009 with a hearing conducted on May 21, 2009 ….
10. This Court granted the petition to suspend parenting time not[]ing
extensively the reasons in the order of May 22, 2009 including Father’s
arrest for possession of a controlled substance; ten residences since
December 2007, and limited and inappropriate interaction by Father in
B.R.’s long term medical needs.
11. While the order allowed supervised parenting time there is no
record of any contact or parenting time between the Father or B.R.
between the order of May 22, 2009 and the filing of the petition for
adoption on October 25, 2010, a period of seventeen (17) months.
12. There were also no proceedings in the guardianship case whereby
Father requested the resumption of his parenting time. The next filing
by the Father was a letter of November 8, 2010 requesting records,
copies of the petition and a continuance of any hearings as Father was
then incarcerated in the Jackson County Jail.
13. The Court acknowledges considerable delay in bringing this
petition for adoption to final hearing. Much of the delay is attributable
to Father’s efforts to secure counsel (Court eventually appointed
counsel) and continued instability in Father’s life.
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14. B.R. appeared at the hearing on April 14, 2014 and being fourteen
years of age expressed his desire that the adoption be granted.
15. The Father has demonstrated continuous and significant
instability in his life. That history is extensively set out in the
guardianship and has continued since documented by the Court in the
May 22, 2009 guardianship order. It is during this time that B.R.’s
siblings were found to be children in need of services. During this time
Father has had additional arrests and periods of incarceration.
16. Father has not executed consent to the proposed adoption.
17. The issue before the Court is whether there is sufficient evidence
to find that the Father’s consent is not required.
18. I.C. 31-19-9-8(a) provides in part that consent to an adoption is
not required when:
A. Parent of a child in custody of another person if for a period
of at least (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.
19. Payment or non-payment of support is a separate basis for
termination of parental rights and is irrelevant to the issue of
communication.
20. For the entire history of the guardianship and adoption
proceedings, the Father paid no child support. There had also been no
meaningful contact with B.R. after May, 2009.
21. The Father was under no child support order although a parent
continues to have a legal duty to support children. However this factor
is not the essential factor upon which the question of dispensing with
Father’s consent rests.
22. The issue before the Court is whether Father failed, without
justifiable cause for a period of one year to communicate significantly
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with [h]is child when able to do so.
23. There is no question of reluctance by the co-petitioners to allow
visits or communication by the Father with B.R. existed.
24. This reluctance did not translate into an outright denial by co-
petitioners. There were genuine safety concerns given the events
leading up to May 2009 which safety concerns have continued to the
present date.
25. Father took no steps in this seventeen (17) month period before
the petition to adoption to pursue and enforce his supervised parenting
time rights.
26. Father provided no gifts or cards to B.R.
27. By clear and convincing evidence, Father did no[t] significantly
communicate with B.R. from May, 2009 up to the filing of this
proceeding in October, 2010. Further there has been no significant
communication since that time.
28. The second part of that test is did Father have the ability to
communicate with B.R. and this translates to the fundamental
question of whether co-petitioners thwarted that ability such that no
action taken by Father could have prevailed to allow his
communication.
29. While there has been conflict between D.S. and Father, there is no
significant or credible evidence of that conflict between Father and
Grandmother.
30. Grandmother has not prevented communication between Father
and B.R.
31. The Court finds by clear and convincing evidence that the actions
by co-petitioner were not such as to prevent Father from having the
ability to communicate.
32. Again, there is no evidence that Father ever sent birthday or
Christmas cards or presents. These simple measures to maintain a line
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of communication the Court finds to be significant.
33. Father undertook no steps to enforce his parenting time rights.
34. It is true that co-petitioners were not cooperative in facilitating the
Father-Child relationship. There were many uncertainties and
concerns given Father’s substance abuse and criminal issues and B.R.’s
health issues which explain that reluctance. However the Court does
not find this constituted a block to Father’s assertion of his rights.
35. There has been no significant communication, and in reality there
has been almost no communication between Father and B.R. Co-
Petitione[rs’] resistance to parenting time and communication were
not such as to preclude the Father from communicating with the child.
36. The Court would comment on B.R.’s health needs. As stated he is
quadriplegic and in need of constant care. Grandmother has dedicated
her life to the care of this child and the care she has provided to B.R.
has been exemplary. She is motivated only by her love for B.R.
37. The only concern that has been able to be expressed regarding
Grandmother, has been her family and the ability to keep bad
influences away from B.R. Unfortunately the compassion
demonstrated by Grandmother has on occasion extended to other less
than deserving family members. The Court finds that there is no
evidence Grandmother has ever allowed this to affect or in any way
diminish the quality of care provided to B.R.
38. The Court does have concerns about whether it is in B.R.’s best
interest to grant the adoption as to D.S. The Court has significant
concern about her ability to prevent and control less than desirable
influences in the family on B.R. and his care. The Court understands
and acknowledges that co-petitioner D.S. has been appropriate in her
care to B.R. and has been of great assistance to co-petitioner
Grandmother. However for the concerns expressed herein the Court
finds that the co-petition for adoption as to D.S. fails and therefore the
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Court denies the petition for adoption as to D.S. alone.[3]
39. There is ample evidence before the Court that B.R. would be well
served by the granting of the petition for adoption by Grandmother,
that is not the critical issue before the Court. The home study
indicates that the adoption would be beneficial to B.R. and he is in a
loving and caring home and that B.R. wants the adoption. His
extensive medical needs are being met. The GAL recommends the
adoption.
40. Co-Petitioner Grandmother has met her burden. The Court finds
that the consent of the Father to the adoption of B.R. is not required as
Father for at least one year has failed without justifiable cause to
communicate significantly with the child when able to do so.
Appellant’s App. at 8-14 (citations omitted). Father now appeals.
Discussion and Decision
Section 1 – The trial court did not clearly err in concluding
that Father’s consent to the adoption is not required.
[3] Father first contends that the trial court erred in concluding that his consent to
the adoption is not required. When reviewing an adoption order, “we presume
that the trial court’s decision is correct, and the appellant bears the burden of
rebutting this presumption.” In re Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind.
Ct. App. 2014), trans. denied. We will not disturb the trial court’s ruling unless
the evidence leads to but one conclusion and the trial court reached an opposite
conclusion. Id. Where, as here, the trial court has made findings of fact and
3
D.S. has not appealed this ruling.
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conclusions thereon, we apply a two-tiered standard of review: we first
determine whether the evidence supports the findings and then whether the
findings support the judgment. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind.
2014). Factual findings are clearly erroneous where the record lacks any
evidence or reasonable inferences to support them, and a judgment is clearly
erroneous where it is unsupported by the findings and the conclusions based on
those findings. Id.
[4] In an adoption proceeding, the petitioner must prove by clear and convincing
evidence that a noncustodial parent’s consent is not required for the adoption.
In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).
In reviewing a judgment requiring proof by clear and convincing
evidence, we may not impose our view as to whether the evidence is
clear and convincing but must determine, by considering only the
probative evidence and reasonable inferences supporting the judgment,
whether a reasonable trier of fact could conclude that the judgment
was established by clear and convincing evidence. Further, we may
not reweigh evidence or assess witness credibility.
Id. (citation omitted).
[5] Indiana Code Section 31-19-9-8 reads, in pertinent part,
(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:
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(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.
[6] To the extent that Father challenges the trial court’s findings regarding his
nonpayment of support, we first note that paragraph (a)(2) of the statute is
disjunctive, and thus either subparagraph provides grounds for dispensing with
parental consent. In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App.
2007). We also note that the trial court took into account that Father was not
under a child support order; made a general observation that parents
nonetheless have a legal duty to support children; and emphasized that Father’s
nonpayment of support “is not the essential factor upon which the question
dispensing with Father’s consent rests.” Appellant’s App. at 11.
[7] The trial court’s decision rested on Father’s lack of significant communication
with B.R. for at least one year. The test for communication is not whether the
noncustodial parent had no communication with the child, but whether he
failed without justifiable cause to have significant communication when able to
do so. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012). “[T]he
purpose of this statutory provision is to foster and maintain communication
between non-custodial parents and their children, not to provide a means for
parents to maintain just enough contact to thwart potential adoptive parents’
efforts to provide a settled environment to the child.” Id. (citation and
quotation marks omitted). “[A] parent’s conduct after the petition to adopt was
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filed is wholly irrelevant to the determination of whether the parent failed to
significantly communicate with the child for any one year period.” Id. at n.3
(citation and quotation marks omitted).4
[8] As mentioned above, the trial court found that there was “no record of any
contact or parenting time between the Father or B.R. between … May 22, 2009
and the filing of the petition for adoption on October 25, 2010, a period of
seventeen (17) months.” Appellant’s App. at 10. Although it is true, as Father
asserts, that Grandmother and D.S. “never clearly stated in their testimony”
that he failed to contact B.R. from May 2009 until October 2010, Appellant’s
Br. at 13, the evidence and inferences favorable to the trial court’s decision
clearly and convincingly establish this. Grandmother notes that Father’s visits
“after May of 2009 would have had to be at [her] residence supervised by [her]”
and asserts that “[e]ven if any visits occurred after May of 2009 it is reasonable
to infer from the record that they were short, sporadic and without
significance.” Appellee’s Br. at 24. We agree. B.R.’s nurse, who has cared for
him ten hours a day four days a week since 2008, testified that she saw “a
couple of visits” between Father and B.R. in 2008 but did not “remember [B.R.]
telling [her] really anything about visiting with his father” after “sometime in
2009.” Tr. at 136. Father complains that she did not “state a particular date.”
Appellant’s Br. at 13. Given that Father’s parenting time was suspended in
4
Consequently, we do not address the parties’ arguments regarding events that occurred after Grandmother
filed the adoption petition in October 2010, such as Father’s attempts to reestablish parenting time with B.R.
and the parties’ encounter at a basketball game in 2012.
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May 2009, it is reasonable to infer that his communication with B.R. decreased
significantly at that point and remained minimal at best until the adoption
petition was filed over one year later in October 2010.
[9] Father claims that he “never stopped trying to contact” B.R. and “regularly
attempted to send cards or packages” to him, Appellant’s Br. at 14, but the trial
court was entitled to disbelieve this self-serving testimony. The court was also
entitled to weigh and credit the conflicting testimony regarding whether and to
what extent Grandmother and/or D.S. might have thwarted Father’s ability to
communicate with B.R.; we may not second-guess its determination in this
regard.5 Father’s arguments are merely invitations to reweigh evidence and
assess witness credibility, which we may not do. Based on the evidence and
inferences favorable to the trial court’s decision, we hold that the court did not
clearly err in concluding that Father failed without justifiable cause to
communicate significantly with B.R. when able to do so for a period of at least
one year and therefore his consent to the adoption is not required.
5
Father cites no authority for his argument that Grandmother’s and D.S.’s actions “should be measured
against the provisions of the Indiana Parenting Time Guidelines.” Appellant’s Br. at 16. Therefore, this
argument is waived. See Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 995 (Ind. 2014) (finding
argument waived because of failure to cite authority).
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Section 2 – The trial court did not clearly err in concluding
that the adoption is in B.R.’s best interest.
[10] “Even if a court determines that a natural parent’s consent is not required for an
adoption, the court must still determine whether adoption is in the child’s best
interests.” M.S., 10 N.E.3d at 1281 (citing Ind. Code § 31-19-11-1(a)(1)).
The adoption statute does not provide guidance for which factors to
consider when determining the best interests of a child in an adoption
proceeding, but we have noted that there are strong similarities
between the adoption statute and the termination of parental rights
statute in this respect. In termination cases, we have held that the trial
court is required to look to the totality of the evidence to determine the
best interests of a child. Relevant factors include, among others, a
parent’s historical and current inability to provide a suitable
environment for the child; the recommendations of the child’s case
worker or guardian ad litem; and the child’s need for permanence and
stability.
Id. (citations omitted).
[11] Father does not challenge the trial court’s findings regarding his substance
abuse, history of arrests and incarceration, “limited and inappropriate
interaction” in B.R.’s “long term medical needs,” and “continuous and
significant instability in his life.” Appellant’s App. at 10. Nor does he
challenge the findings regarding B.R.’s “desire that the adoption be granted,”
his “extensive medical needs,” and the “exemplary” care that Grandmother has
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provided. Appellant’s App. at 10, 13.6 Instead, he cites evidence regarding
Grandmother and D.S. and their home environment that was either disputed by
various witnesses or discounted by the trial court as being stale or having no
detrimental effect on the “quality of care provided to B.R.” Id. at 13. Once
again, we must decline Father’s request to reweigh evidence and assess witness
credibility in his favor. The totality of the evidence favorable to the trial court’s
decision supports the court’s conclusion that the adoption is in B.R.’s best
interest, and therefore we hold that this conclusion was not clearly erroneous.
Consequently, we affirm the trial court’s granting of Grandmother’s petition to
adopt B.R.
[12] Affirmed.
Friedlander, J., and Kirsch, J., concur.
6
The trial court found that the guardian ad litem recommended the adoption. Lisa Garcia Reger was
appointed as GAL for the adoption proceeding, and Father asserts that she did not recommend the adoption.
When asked whether she recommended that Grandmother “continue to serve as guardian rather than
adoptive mother,” Reger replied, “Well, that’s, it’s not necessarily my recommendation[.]” Tr. at 112. Reger
explained that she “kind of wanted to leave it up to the Judge” because “there’s a legal issue […] on whether
or not [Father’s] consent’s even required[.]” Id. She further stated,
[I]f there’s financial concerns one way for the court to monitor this situation would be if the
guardianship continued at least somebody could be monitoring this whole money situation.
And maybe, maybe somebody could be appointed to make sure that there is some estate
planning done and to make sure that this trust fund is being managed appropriately.
Id. To the extent that Reger’s recommendation was equivocal, we note that “[s]pecial findings, even if
erroneous, do not warrant reversal if they amount to mere surplusage and add nothing to the trial court’s
decision.” City of Gary v. Conat, 810 N.E.2d 1112, 1115 (Ind. Ct. App. 2004). Such was the case here.
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