J.W. v. T.M. and C.M. (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                                          Oct 28 2020, 8:18 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 APPELLANT                                   ATTORNEY FOR APPELLEES
Justin R. Wall                                           Mark J. Wiley
Wall Legal Services                                      Bowers, Brewer, Garrett & Wiley,
Huntington, Indiana                                      LLP
                                                         Huntington, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

J.W.,                                                    October 28, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         20A-AD-1011
        v.                                               Appeal from the Huntington
                                                         Circuit Court
T.M. and C.M.,                                           The Honorable Davin G. Smith,
Appellees-Petitioners                                    Judge
                                                         Trial Court Cause No.
                                                         35C01-1902-AD-2



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020                 Page 1 of 9
                                             Case Summary
[1]   J.W. (Father) appeals the trial court’s determination that his consent was not

      required as a prerequisite to the adoption of his son, A.W. (Child), by Child’s

      maternal grandparents, T.M. and C.M. (Grandparents). We affirm.


                                 Facts and Procedural History
[2]   Father and S.M. (Mother) are the biological parents of Child. Since his birth in

      June 2012, Child has resided with Grandparents. Mother and Father never

      were married, and Mother has resided at Grandparents’ home off and on. In

      2013, Mother filed a petition for paternity and child support, which the trial

      court granted, and Father’s paternity was established. In 2014, the IV-D Child

      Support Enforcement Division filed an information for contempt against Father

      for failure to pay child support. A series of status hearings ensued, with Father

      repeatedly being ordered to provide proof of filing five job applications per

      week and/or paying child support. Father’s continued noncompliance resulted

      in more contempt proceedings in 2015, which were continued several times.

      Around that same time, Father twice sought a custody modification, with the

      second petition being based on Mother’s incarceration. The trial court denied

      his petitions for custody but granted him supervised parenting time through the

      Youth Services Bureau. Father had approximately nine supervised visits with

      Child in late 2015 and early 2016. By June 2016, Father had canceled all visits

      indefinitely, citing financial problems. In July 2016, the trial court found him

      to be in contempt for failure to pay child support.



      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 2 of 9
[3]   In the summer and fall of 2016, the State charged Father with criminal offenses

      under three different cause numbers. A jury ultimately found him guilty of

      three counts of child molesting, two as level 1 felonies and one as a level 4

      felony, level 5 felony battery with a deadly weapon, and level 5 felony battery,

      and also found him to be a habitual offender. The trial court vacated the level 5

      felony battery conviction on double jeopardy grounds. The victim of the

      molestations and batteries was Father’s daughter (Child’s half-sibling). Father

      was sentenced to an aggregate, nonsuspendible term of seventy years. His

      convictions were affirmed on appeal, and his earliest possible release date from

      the Indiana Department of Correction (DOC) is March 2069.


[4]   In September 2017, Grandparents petitioned for guardianship of Child, and

      Mother consented. Father did not answer or contest the petition, and the trial

      court granted it. In February 2019, Grandparents filed a petition for adoption

      by involuntary termination of the parent-child relationship. Mother consented

      to the adoption. Father appeared in person and by counsel at a December 2019

      factfinding hearing. The trial court judicially noticed the paternity, criminal,

      and guardianship actions. In April 2020, the trial court issued an order with

      findings of fact and conclusions thereon ruling that Father’s consent to

      adoption was not required and terminating Father’s parental relationship with

      Child. The court simultaneously granted Grandparents’ petition for adoption

      and issued a decree of adoption. Father now appeals. Additional facts will be

      provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 3 of 9
                                        Discussion and Decision
[5]   Father contends that the trial court erred in concluding that his consent to

      Child’s adoption by Grandparents was not required. Recognizing that the trial

      court is in the best position to judge the facts and assess witness credibility, we

      give considerable deference to the court’s ruling. J.H. v. J.L. & C.L., 973 N.E.2d

      1216, 1222 (Ind. Ct. App. 2012). We will not disturb the court’s ruling in an

      adoption proceeding unless the evidence leads to but one conclusion, and the

      trial court reached the opposite conclusion. In re Adoption of D.M., 82 N.E.3d

      354, 358 (Ind. Ct. App. 2017). We will set aside the trial court’s findings and

      judgment only if they are clearly erroneous, which means that there is no

      evidence to support the findings or the findings fail to support the judgment. In

      re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). 1 In conducting our review,

      we neither reweigh evidence nor reassess witness credibility but rather examine

      the evidence and reasonable inferences most favorable to the decision and

      determine whether sufficient probative evidence supports it. D.M., 82 N.E.3d at

      358. The trial court’s decision is presumed to be correct, and the appellant has

      the burden of overcoming the presumption. Id.




      1
        Father criticizes the amended findings because the trial court adopted Grandparents’ proposed findings
      verbatim. A trial court’s verbatim adoption of a party’s proposed findings is not prohibited. Country
      Contractors, Inc. v. A Westside Storage of Indianapolis, Inc., 4 N.E.3d 677, 694 (Ind. Ct. App. 2014). “Although
      we by no means encourage the wholesale adoption of a party’s proposed findings and conclusions, the critical
      inquiry is whether such findings, as adopted by the court, are clearly erroneous.” Id.

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020                    Page 4 of 9
[6]   When the trial court has heard evidence and finds that the adoption requested is

      in the child’s best interest, and proper consent, if necessary, to the adoption has

      been given, the court shall grant the petition and enter an adoption decree. Ind.

      Code § 31-19-11-1(a). If the petition alleges that a parent’s consent is

      unnecessary and the parent files a motion to contest the adoption, the petitioner

      must prove by clear and convincing evidence that the parent’s consent is not

      required. Id. (citing Ind. Code §§ 31-19-10-0.5, 31-19-9-8(a)). Indiana Code

      Section 31-19-9-8 reads, in relevant 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:

              (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

              (B) the best interests of the child sought to be adopted would be
              served if the court dispensed with the parent’s consent.


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 5 of 9
      Ind. Code § 31-19-9-8.2


[7]   To determine what is in the best interests of a child, we must look at the totality

      of the circumstances. In re A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). A

      parent’s criminal offenses are properly considerable by the trial court in

      assessing a parent’s unfitness as a parent under the statute. D.M., 82 N.E.3d at

      360. The trial court concluded that it was in Child’s best interests to dispense

      with Father’s consent based on several grounds: Father’s failure to significantly

      communicate with Child, his failure to support Child, and his unfitness to

      parent based on his criminal history. Because the statute is written in the

      disjunctive, any one of the grounds listed therein is alone sufficient to dispense

      with parental consent. O.R., 16 N.E.3d at 973.


[8]   Here, the trial court found that Father’s efforts at communication and support

      had been spotty at best. Communication efforts are particularly important in

      circumstances such as these, where neither Father nor Mother has ever had

      primary physical custody of Child. The only constant in Child’s life has been

      Grandparents, with whom he has lived since birth. In 2015, when Father

      sought and was awarded supervised visitation, he complied for a few months

      and then canceled visitation indefinitely due to financial concerns. Father has




      2
        We acknowledge Father’s assertion that Grandparents’ adoption petition did not specifically allege the
      statutory basis for their claim that parental consent is not required. However, Father did not raise a due
      process claim or develop any cogent argument in this regard as required by Indiana Appellate Rule 46(A)(8).
      Therefore, he has waived the claim for our consideration. Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App.
      2016).

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020                 Page 6 of 9
      been incarcerated since mid-2016, yet he did not write letters to Child, whose

      mailing address had not changed for more than six years. His claim that

      Grandparents thwarted his efforts at communication is an invitation to reweigh

      evidence and reassess witness credibility, which we may not do. Probative

      evidence supports the trial court’s conclusion that for at least one year, Father

      failed without justification to communicate with Child through the means

      available to him.


[9]   With respect to child support, the record shows that in 2014, the IV-D Child

      Support Enforcement Division filed an information against Father due to

      nonpayment of support. Much of that year and the following year were spent

      in the following cycle: Father being ordered to fill out at least five job

      applications and/or pay child support; Father returning to court having not

      done as ordered; and Father being sent out under the same order only to fail to

      comply yet again. After he entered the DOC in the summer of 2016, his

      support payments were intermittent and small. The payments generally went

      toward other indebtedness, such as bills for paternity testing and DNA

      bloodwork, and did not inure to Child’s benefit. Father’s only payment in the

      final year of the proceedings that did inure to Child’s benefit was $65.21 toward

      his support arrearage. He points out that his support obligation during

      incarceration had dropped to zero and that his wages in the DOC were

      miniscule. However, his child support arrearage, $5543.17 as of July 5, 2016,

      cannot be ignored, as it underscores the fact that he was not paying support as

      ordered even when he was outside the DOC. Appellant’s App. Vol. 2 at 175.


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 7 of 9
       The only sizeable payment throughout the proceedings was a 2016 purge

       payment of $1500.00 made by Father’s ex-wife to satisfy a contempt order.

       Simply put, Father did not provide for Child when he was under a judicial

       order or when he had the resources to do so.


[10]   Most significantly, the trial court concluded that Father’s criminal history and

       the nature of his most recent convictions render him an unfit parent. We agree

       and find his child molesting and battery convictions to be particularly troubling.

       In his most recent consolidated causes, Father was convicted of five felonies,

       including two counts of level 1 felony child molesting, one count of level 4

       felony child molesting, and level 5 felony battery with a deadly weapon. He

       committed these offenses against his daughter, Child’s half-sister, and is under a

       no-contact order with respect to her. It is difficult to imagine a more

       compelling example of unfitness to parent. Moreover, as a practical matter, the

       length of Father’s nonsuspendible sentence must be considered. He is not

       expected to be released from prison until March 2069, when Child is fifty-six

       years old. Yet, by contesting the adoption, he now seeks to prevent Child from

       having the formal, legal, and permanent security of being adopted by the only

       “parents” he has ever known. To allow him to block the adoption by

       withholding his consent would be antithetical to Child’s best interests.


[11]   In sum, Father has failed at parenting in almost every respect. Whether inside

       or outside the DOC, he has failed to demonstrate any sustained, earnest

       attempt at communicating with Child or supporting him financially. His

       criminal acts against Child’s half-sister render him unfit to be around a child, let

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 8 of 9
       alone to parent one, and the length of his sentence makes parenting

       impracticable if not impossible. Meanwhile, Grandparents have stood in the

       gap for the entirety of Child’s life and wish to officially make him their son. It

       is in Child’s best interests to remove the barrier of parental consent. Based on

       the foregoing, we find no error in the trial court’s conclusion that Father’s

       consent to adoption was not required. Consequently, we affirm.


[12]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1011 | October 28, 2020   Page 9 of 9
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