In re the Matter of the Adoption of A.N.W. (Minor Child), J.M.W. v. R.R. and L.R. (mem. dec.)

I
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 29 2020, 8:47 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
Kurt A. Young                                           Shannon L. Robinson
Nashville, Indiana                                      Shannon Robinson Law
                                                        Bloomington, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of the Adoption                        December 29, 2020
of A.N.W (Minor Child),                                 Court of Appeals Case No.
                                                        20A-AD-1099
J.M.W.,
                                                        Appeal from the Brown Circuit
Appellant-Respondent,                                   Court
        v.                                              The Honorable Mary Wertz, Judge
                                                        Trial Court Cause No.
R.R. and L.R.,                                          07C01-1902-AD-3
Appellees-Petitioners,



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020         Page 1 of 17
                               Case Summary and Issue
[1]   J.M.W. (“Mother”) and J.W. (“Father”) are the biological parents of A.N.W.

      (“Child”). Mother lost custody of Child after she and Father dissolved their

      marriage. Subsequently, Mother was incarcerated after pleading guilty to

      possession of child pornography. In March 2016, with Father’s consent, R.R.

      and L.R. (“Petitioners”) became the legal guardians of Child. Father died in

      January 2019. On February 6, 2019, Petitioners filed a verified petition to adopt

      Child. Petitioners alleged that Mother’s consent to the adoption was

      unnecessary. Mother then filed a Motion to Contest Adoption. Following a

      hearing, the trial court denied Mother’s Motion to Contest Adoption finding

      that Mother’s consent to the adoption was unnecessary. Mother now appeals

      raising one issue for our review, which we restate as: whether the trial court

      erred by denying Mother’s Motion to Contest Adoption of Child. Concluding

      the trial court did not clearly err by finding Mother’s consent was unnecessary,

      we affirm.



                            Facts and Procedural History
[2]   Child was born September 16, 2009, to Mother and Father who were married at

      the time. In November 2013, Mother was arrested and charged with child

      exploitation and possession of child pornography. On August 27, 2014, Mother

      and Father’s marriage was dissolved. Father was given full legal and physical

      custody of Child. The dissolution decree provided that due to Mother’s

      unemployment, Mother was not ordered to pay any child support. However,

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 2 of 17
      Mother was “ordered to immediately notify the Court and the father when she

      became employed.” Appealed Order of May 1, 2020 (“Appealed Order”) at 2.


[3]   In September 2014, Mother pleaded guilty to the possession of child

      pornography charge and was sent to prison.1 Mother was released on April 15,

      2015. After being released Mother stayed with her aunt and uncle. However,

      Mother violated her parole by being in an “unapproved relationship” and was

      sent to jail for thirty days. Transcript of Evidence, Volume 2 at 52. After the

      thirty days Mother returned to living with her aunt and uncle.


[4]   In September 2015, Child began living with Petitioners.2 In November 2015,

      Mother violated parole again by missing counseling sessions and was sent to

      Indiana Women’s Prison.


[5]   In March 2016, with Father’s consent, Petitioners became Child’s legal

      guardians. Mother was present for the guardianship proceeding via telephone

      and did not file anything in the proceeding seeking to establish parenting time.

      After Petitioners were awarded guardianship, they did not receive any

      monetary support from Mother or Father although Father still had Child nearly

      every weekend. See

id. at 110. 1

          The child exploitation charge was dismissed. See Transcript of Evidence, Volume 2 at 51.
      2
       Petitioners are R.R., Child’s paternal grandfather, and L.R., R.R.’s wife. L.R. is not Child’s biological
      grandmother.

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020                  Page 3 of 17
[6]   In April 2016, Mother was released from Indiana Women’s Prison. Her parole

      required that she be employed. From June to August, Mother was employed

      part time through an employment agency. Mother stayed with her aunt and

      uncle until her parole ended on September 1. During the time Mother was

      incarcerated or on parole she had no contact with Child because she was not

      allowed to have contact with minors.


[7]   After Mother’s parole ended, she began living with her parents. Two of her

      brothers, her sister, and her fiancé and their son also lived with them. Mother

      began assisting her father in his landscaping business multiple times a week for

      either ten or twelve dollars an hour. Mother’s parents paid for all her living

      expenses and she was on food stamps. Mother never filed any notice of

      employment with the court in the marriage dissolution case.


[8]   Mother began having contact with Child again in December 2016 or January

      2017 without the Petitioners’ knowledge.3 This continued until December 2018.

      Father would bring Child to see Mother when he had her on weekends. During

      this “parenting time,” Mother bought Child gifts including clothing and shoes.

      Mother did not ever directly provide Father or Petitioners with money for

      Child’s support.




      3
          The record is unclear about exactly when Mother began having contact with Child again.


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020            Page 4 of 17
[9]    In January 2019, Father died unexpectedly of a blood clot. Subsequently, the

       Petitioners filed a Petition for Adoption. Mother filed a Motion to Contest

       Adoption.


[10]   On January 31, 2020, the trial court held a hearing on the Petition for Adoption

       and Mother’s Motion to Contest Adoption. The trial court then issued its

       findings of fact and conclusions thereon, denying Mother’s Motion to Contest

       Adoption. In relevant part, the trial court’s order states:


               Findings of Fact


               ***


               34. In regard to mother’s ability to financially support the child,
               the Court finds:


               a. Mother is not disabled. She has the physical and mental ability
               to be employed and earn an income;


               b. Mother has no living expenses. Her family provides for all her
               needs, and those of her young son and fiancé. She receives “food
               stamps”;


               c. Mother was required to work as a condition of parole during
               the summer of 2016. Between June 2016 and August 2016, she
               worked through a temporary employment agency making $9.00
               to $10.00 per hour. She quit working at that temporary
               employment agency as soon as she was released from parole. She
               testified that her conviction for Possession of Child Pornography
               caused her to be denied employment when she sought
               employment on occasions thereafter. She did not provide an

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 5 of 17
        explanation regarding why she could find employment while on
        parole for a felony sex offense, but not thereafter when no longer
        on parole;


        d. Mother testified regarding attempts she made to find
        employment. Her testimony regarding these attempts was not
        credible. Even if her testimony was found to be credible, her
        attempts were not sustained nor substantial. She made no
        appreciable effort to obtain employment since being released
        from parole in September of 2016;


        e. [M]mother’s mother[ ] works five nights per week between the
        hours of 4:00 or 5:00 pm to 10:00 pm or midnight. Mother’s
        father owns and operates his own lawncare business. Mother and
        her mother and sister testified that mother assists in caring for her
        developmentally disabled brother while her mother works and
        provides the family with housekeeping services. While these
        services may assist her family, they do not preclude her from
        obtaining employment during the hours when her parents are not
        working;


        f. Mother also cares for her young son. However, her fiancé, her
        son’s father, also does not have stable employment and would be
        able to care for their son if mother was employed;


        g. Mother testified that her fiancé is disabled, but does not receive
        disability payments. Her fiancé is able to work as evidenced by
        mother’s testimony that he works on occasions for her father and
        in construction doing drywall and painting work;


        h. Mother bought gifts for the child when the child was with her.
        Mother testified that if the child wanted something while at the
        store, she would purchase it for the child. These purchases were
        made in a manner that permitted mother to please the child, not
        to financially support the child;

Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 6 of 17
        i. Mother has never provided monetary support to either the
        child’s father or guardians. The gifts and clothing she provided to
        the child were not substantial nor did those items relieve the
        child’s guardians’ financial burdens. [L.R.] testified that the child
        returned from a visit with her father one time in a new outfit and
        the [Petitioners] were informed that the father purchased it for
        her;


        j. Mother was able to buy gifts for the child using money from
        selling her personal belongings, using money given to her by her
        mother, using money she received as a gift from others and using
        money received in payment for working for her father;


        k. Mother and her family bought clothing for the child, but this
        clothing was not provided to the Petitioners;


        l. Mother testified that she had had no earned income from work
        since being released from parole. Her mother and sister directly
        contradicted this testimony. They testified that mother earned
        money working on occasions at her father’s landscaping
        business, including in the office and on job sites. Mother did have
        income from working for her father, yet made no effort to use
        this income to provide monetary support for her child; and


        m. Mother failed to notify the Johnson Superior Court and father
        that she had employment during the summer of 2016 and of her
        income through working for her father.


        ***


        Conclusions of Law


        ***


Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 7 of 17
        Care and Support:


        14. “[I]t is well-settled that parents have a common law duty to
        support their children.” Boone v. Boone, 

924 N.E.2d 649

, 652 (Ind.
        Ct. App. 2010). The lack of a court order does not relieve a
        parent’s obligation to support her child. See In re Adoption of M.B.,
        

944 N.E.2d 73

, 77 (Ind. Ct. App. 2011).


        15. “[T]he relevant time period is any one year in which the
        parent was required and able to pay support and did not do so.”
        R.S.P. v. S.S. (In re J.T.A.), 

988 N.E.2d 1250

, 1255 (Ind. Ct. App.
        2013).


        l6. The Petitioner[s] must show that the natural parent was able
        to pay the ordered support and knowingly failed to do so. [Matter
        of Adoption of D.H. III], 

439 N.E.2d 1376

, 1378 (Ind. Ct. App.
        1982)[.] Although [Matter of Adoption of D.H. III] involved a child
        support order that was not paid by the parent, the Court finds this
        case applies where, as here, there is a legal duty to support a
        child.


        17. Although mother was not obligated to pay child support at
        the time that the Decree of Dissolution was issued, she was
        “ordered to immediately notify this Court and Father when she
        becomes employed in any fashion.” Decree of Dissolution ¶ 3.
        Mother violated this Order when she failed to notify the Court
        and Father when she was employed at the temporary agency and
        when she was receiving income from her father’s business.


        l8. “A petitioner for adoption must show that the non-custodial
        parent had the ability to make the payments which he failed to
        make. That ability cannot be adequately shown by proof of
        income standing alone. To determine that ability, it is necessary
        to consider the totality of the circumstances. In addition to
        income, it is necessary to consider whether that income is steady
Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 8 of 17
        or sporadic and what the non-custodial parent’s necessary and
        reasonable expenses were during the period in question.” In re
        Adoption of Augustyniak, 

508 N.E.2d 1307

, 1308 (Ind. Ct. App.
        1987); see also [In re Adoption of K.S.], 

980 N.E.2d 385

, 388 (Ind.
        Ct. App. 2012)[.]


        19. The totality of circumstances show that mother has had no
        reasonable and necessary living expenses. All of her living
        expenses were paid by her family at least since September 2016.
        Mother’s family also paid for the living expenses of mother’s
        subsequent child and fiancé.


        20. Mother has had the physical and mental ability to work. She
        is not disabled.


        21. The Court does not find Mother’s testimony that she was
        unable to find employment credible or reliable. The Court
        specifically notes that she provided no explanation regarding why
        she could find work at a temporary agency while on parole for a
        felony sex offense, but not after parole ended. She failed to
        explain why the felony sex offense conviction did not impede
        employment while on parole but did impede employment after
        release from parole. Mother’s testimony regarding her attempts at
        finding employment are not credible and, even if credible, do not
        show a substantial attempt to find employment.


        22. Mother provided no explanation as to why she could not be
        employed at least part-time while her mother and/or father are
        not working.


        23. Mother had income in the summer of 2016 and has since that
        time had some income th[r]ough work at her father’s business.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 9 of 17
        24. Mother failed to advise the Johnson Superior Court II and
        the child’s father of this earned income.


        25. Mother has not financially supported the child since at least
        August of 2014, a duration of over four years preceding the filing
        of the petition for adoption. She was incarcerated from
        September 2014 through April 2015; in June/July 2015; and
        November 2015 through April 2016. She was not able to
        financially support the child while incarcerated.


        26. The Court finds that the totality of circumstances proves by
        clear and convincing evidence that mother was able to provide
        support for the child when not incarcerated and that she failed to
        provide care and support [for] the child for at least a one-year
        time period since her release from incarceration in April 2016.
        While she may have provided the child with token gifts and some
        clothing during her visits with the child in 2017 and 2018, these
        tokens do not constitute care and support.


        27. The Court finds that the mother’s consent to adoption is not
        required because the totality of circumstances proves by clear and
        convincing evidence that mother voluntarily chose not to provide
        care and support for the child when able to do so for at least a
        one-year period of time.


Appealed Order at 6-12. The trial court subsequently granted the Petitioners’

petition to adopt Child. Mother now appeals.



                          Discussion and Decision




Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 10 of 17
                                     I. Standard of Review
[11]   When we review a trial court’s ruling in an adoption proceeding, the ruling will

       not be disturbed unless the evidence leads to only one conclusion and the trial

       court reached the opposite conclusion. In re Adoption of M.L., 

973 N.E.2d 1216

,

       1222 (Ind. Ct. App. 2012). We do not reweigh evidence, and we consider the

       evidence most favorable to the decision together with reasonable inferences

       drawn from that evidence.

Id. Further, 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.”

Id. [12]

  Here, it appears the trial court issued findings of fact and conclusions sua

       sponte pursuant to Indiana Trial Rule 52(A). When that occurs, we apply a

       two-tiered standard of review: first, we determine whether the evidence

       supports the finding of fact and second, we determine whether the findings

       support the judgment. In re Estate of Powers, 

849 N.E.2d 1212

, 1216 (Ind. Ct.

       App. 2006). The trial court’s findings or judgment will be set aside only if they

       are clearly erroneous.

Id. A finding of

fact is clearly erroneous if the record lacks

       evidence or reasonable inferences from the evidence to support it.

Id. The findings control

our review and the judgment only as to the issues those specific

       findings cover. Hickey v. Hickey, 

111 N.E.3d 242

, 245 (Ind. Ct. App. 2018).

       Where there are no specific findings, a general judgment standard applies, and

       we may affirm on any legal theory supported by the evidence. Steele-Giri v.

       Steele, 

51 N.E.3d 119

, 123-24 (Ind. 2016).

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 11 of 17
                                       II. Parental Consent
[13]   Mother appeals the trial court’s order denying her motion to contest the

       adoption. See Ind. Code § 31-19-10-1 (describing procedure for filing a motion

       to contest an adoption). Generally, a petition to adopt a minor child may be

       granted only if written consent to adopt has been provided by the biological

       parents. See Ind. Code § 31-19-9-1. However, when appropriate, there are

       exceptions to the consent requirement. See Ind. Code § 31-19-9-8.


[14]   Indiana Code section 31-19-9-8(a) states, in pertinent part:


               Consent to adoption, which may be required under section 1 of
               this chapter, 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.


       The provisions of Indiana Code section 31-19-9-8(a) are disjunctive; that is,

       each provision provides independent grounds for dispensing with parental

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 12 of 17
       consent. In re Adoption J.S.S., 

61 N.E.3d 394

, 397 (Ind. Ct. App. 2016).

       Recognizing the fundamental importance of the parent-child relationship, we

       strictly construe the adoption statutes to protect and preserve the relationship.

       In re Adoption of N.W., 

933 N.E.2d 909

, 913 (Ind. Ct. App. 2010). The petitioner

       for adoption has the burden of proving, by clear and convincing evidence, one

       of the statutory criteria allowing for adoption without consent.

Id. [15]

  Petitioners asserted that Mother’s consent was not required on the grounds of

       three alternative theories: (1) Mother had deserted or abandoned Child; (2)

       Mother had failed to maintain significant contact with Child for a period of one

       year; and/or (3) Mother had failed to provide care or support for Child for a

       period of one year when able to do so as required by law or judicial decree.

       Brief of Appellees at 15; Appellant’s Appendix at 30. The trial court found that

       Mother’s consent was unnecessary only for failure to provide care or support

       and stated the Petitioners failed to prove with clear and convincing evidence

       their other theories. Appealed Order at 9-13. Thus, only Mother’s ability to

       provide care and support will be addressed.


[16]   Mother contends the trial court erred in concluding she failed to support Child

       for over one year. Indiana Code section 31-19-9-8(a)(2)(B) specifies that consent

       is not required from a parent who, for a period of at least one year, “knowingly

       fails to provide for the care and support of the child when able to do so as required

       by law or judicial decree.” (Emphasis added.) The relevant time period for

       determining whether a non-custodial parent has supported his child “is not

       limited to either the year preceding the hearing or the year preceding the

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 13 of 17
       petition for adoption, but is any year in which the parent had an obligation and

       the ability to provide support, but failed to do so.” In re Adoption of J.T.A., 

988 N.E.2d 1250

, 1255 (Ind. Ct. App. 2013), trans. denied. Also, a parent’s

       nonmonetary contribution to a child’s care may be counted as support. In re

       Adoption of M.B., 

944 N.E.2d 73

, 77 (Ind. Ct. App. 2011).


[17]   Prior to the filing of the petition for adoption, no support order was in place

       requiring Mother to pay a fixed amount of child support. A parent nonetheless

       has a common law obligation to support their child even in absence of a court

       order.

Id. Beginning in April

2016, Mother was no longer incarcerated and

       remained out of prison; however, Mother argues that she was unable to provide

       for Child and was “without means to provide support even to herself.” Brief of

       Appellant at 21.


[18]   The ability to pay is not shown “by proof of income standing alone.” In re

       Adoption of K.F., 

935 N.E.2d 282

, 288 (Ind. Ct. App. 2010) (quotation omitted),

       trans. denied. To determine ability, we must consider the totality of the

       circumstances including “whether that income is steady or sporadic and what

       the non-custodial parent’s necessary and reasonable expenses were during the

       period in question.”

Id. [19]

  Here, Mother had no reasonable and necessary living expenses. Starting in

       September 2016, all of Mother’s living expenses were paid by her family. See

       Tr., Vol. 2 at 6-7. Mother had the physical and mental ability to work. Mother

       argues that she was precluded from finding work because of her criminal


       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 14 of 17
       history. See Br. of Appellant at 14. However, Mother worked part time for her

       father and when required to have a job for her parole Mother was able to find

       work. See Tr., Vol. 2 at 6. We decline Mother’s invitation to reweigh evidence

       in order to find that she was precluded from working due to her criminal

       history. We conclude that, under the totality of the circumstances, Petitioners

       proved by clear and convincing evidence that Mother was able to provide

       support for Child.


[20]   Because we have determined that Mother was able to provide support for Child,

       we must determine whether she failed to do so. Mother contends that she

       provided support to Child in the form of clothing and gifts. “And considering

       [Mother’s] financial situation, the support was more than ‘token[.]’” Br. of

       Appellant at 21. We disagree.


[21]   Our supreme court has stated that “making a token payment of a nominal sum

       once each year [is] insufficient to provide for maintenance and support.” In re

       Adoption of Infants Reynard, 

252 Ind. 632

, 639, 

251 N.E.2d 413

, 417 (1969).

       Likewise, this court has found that “construing [Indiana Code section] 31-19-9-

       8 . . . to hold that there must be a complete refusal or failure to pay any sum of

       money for one year before the filing of a petition could lead to absurd

       consequences.” In re Adoption of M.S., 

10 N.E.3d 1272

, 1280 (Ind. Ct. App.

       2014) (holding that a one-time payment of $300 in approximately fifteen

       months was insufficient); see also In re Adoption of D.C., 

928 N.E.2d 602

, 606-07

       (Ind. Ct. App. 2010) (holding payments consisting of “$279.99 from a Navy



       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 15 of 17
       pension and two checks amounting to $220” in twelve months did not

       constitute care and support), trans. denied.


[22]   In In re Adoption of M.A.S., the father argued that he provided “groceries,

       diapers, formula, clothing, presents, and cash.” 

815 N.E.2d 216

, 220 n.1 (Ind.

       Ct. App. 2004). This court stated that the “occasional provision of these items

       are gifts, not child support.”

Id. Similarly here, Mother

provided Child with

       “presents and other items[.]” Br. of Appellant at 21. Mother testified that she

       would purchase clothes and gifts for Child during visits that Father allowed her

       to have; however, she never gave Father or Petitioners any money to help

       provide for Child. See Tr., Vol. 2 at 81. Items provided by Mother to Child were

       gifts and did not constitute care and support.


[23]   We cannot say that the evidence leads to but one conclusion and the trial court

       reached an opposite conclusion. In re Adoption of 

M.L., 973 N.E.2d at 1222

.

       Clear and convincing evidence supports the trial court’s determination that

       Mother’s consent was not required based on her knowing failure to provide care

       and support for Child despite an ability to do so.



                                              Conclusion
[24]   Concluding the trial court did not clearly err by finding Mother’s consent was

       unnecessary, we affirm.


[25]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 16 of 17
Bailey, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-1099 | December 29, 2020   Page 17 of 17

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