Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Adoption of D.M.

Court of Appeals of Indiana

August 30, 2017

In re Adoption of D.M.
v.
Brent L. Weaver, Appellee. Michael Mendez, Appellant,

         Appeal from the Cass Circuit Court The Honorable Leo T. Burns, Judge Trial Court Cause No. 09C01-1604-AD-6

          ATTORNEY FOR APPELLANT Kevin C. Tankersley Winamac, Indiana.

          ATTORNEY FOR APPELLEE T. Andrew Perkins Peterson Waggoner & Perkins, LLP Rochester, Indiana.

          BROWN, JUDGE.

         [¶1] Michael Mendez ("Mendez"), the natural father of D.M., appeals from the trial court's decree of adoption. Mendez raises one issue which we revise and restate as whether the court erred in finding that his consent to the adoption was not required. We affirm.

         Facts and Procedural History

         [¶2] D.M. was born to Mendez and Leilani Mendez ("Leilani") in June 2010. For nearly the first two years of D.M.'s life, Mendez lived with Leilani and D.M. and was a stay-at-home father. C.L., Leilani's child from a previous relationship, also lived part-time with Mendez and Leilani. In May 2012, Mendez was arrested for molesting C.L. and later pled guilty to child molesting as a class C felony.[1] He was sentenced to sixteen years with eight years suspended, and a 2012 no contact order provided that he have no contact with Leilani, C.L., or D.M.[2] A decree of dissolution was issued in October 2012 dissolving the marriage of Mendez and Leilani.[3] Mendez was released from the Department of Correction (the "DOC") to Cass County Community Corrections on August 18, 2015, obtained a job in September 2015, and was released from the community corrections facility on November 9, 2015. Meanwhile, Leilani began dating Brent Weaver in the fall of 2012, they moved in together in the spring of 2013, and they were married on March 5, 2016.

         [¶3] On March 31, 2016, Weaver filed a Petition for Step-Father's Adoption of Minor requesting to adopt D.M. On May 23, 2016, Mendez filed a motion to contest the adoption. On August 22, 2016, the trial court held a hearing at which it heard testimony from Leilani, Weaver, and Mendez and admitted into evidence the July 2015 no contact order and the October 2012 decree of dissolution. Leilani testified that C.L. lived with her and Mendez part-time, and when asked "when the molestation happened, was [D.M.] on the premises at all, " Leilani responded affirmatively. Transcript at 6. When asked "[w]as [D.M.] in the same room when it happened, " Leilani stated "[s]he was." Id. When asked "when this happened, " Leilani replied "[s]he was 7 she was almost 8." Id. Leilani testified that the last time Mendez saw D.M. was May of 2012, that Mendez had not made contact with her through an attorney to reestablish any contact with D.M., and that Mendez has not provided any financial support. She testified:

[D.M.] has no recollection of [Mendez] in her life. She was not quite 2 when he was arrested . . . she's 6 now, she's happy, she's healthy, she's very well rounded and I think that if [Mendez] were to come back into her life it would be very disruptive, to be honest, I don't trust him. I don't think it would be healthy, and [C.L.] is 12 years old. She just started 7th grade, she is in cheer and volleyball and she' [sic] active and she's not going to counseling anymore and she's not afraid to go to sleep in her own bed anymore and she's living a normal teenage life . . . .

Id. at 11-12. When asked "[s]o, she was in counseling or sometime, " Leilani replied "[y]es, absolutely, and when asked if C.L. had memories of what happened, Leilani testified "[a]bsolutely. And she the little mom, she's just like me and she's so protective of [D.M.] and if she knows that [D.M.] has to see [Mendez], it's going to put her in a tail-spin." Id. at 12. She testified Weaver had been a father figure for D.M. When asked "what would you think the affect would be on [D.M.] if she were told or have someone else replace her current father figure in her life, " Leilani testified "I think it would turn her world upside down and my kids have had that happen already once." Id. at 13.

         [¶4] On cross-examination, when asked if Mendez "admitted what he did to [C.L.], " Leilani replied "[a]nd [G.], yes." Id. at 15. When asked "[s]o, the facts at least in the criminal case was that he admitted to those 2, to molestation on [C.L.] and the other girl that was there that was a family friend or . . ., " Leilani replied "[c]orrect." Id. at 15. When asked if Mendez attempted to contact her and D.M. when he was in jail awaiting trial, Leilani testified "he called his parents, his parents were down and he tried to talk to them through them, talk to her through the parents, but no, that was the only time, " and she indicated that she reported Mendez to the prosecutor. Id. at 19. She also indicated that Mendez never bonded out after he went to jail and was incarcerated from 2012 to 2015. Weaver testified he functioned and served as the father figure for D.M. for the previous four years and provided for D.M. financially and emotionally.

         [¶5] Mendez testified that he was "basically a stay at home dad" and raised D.M. prior to May 2012. Id. at 33. He testified he took a substance abuse class and received a six-month time cut, and that his understanding was he would have the opportunity to petition the court to see D.M. after he completed counseling and his probation officer approved it. When asked if he was afforded any counseling for sexual offenders while incarcerated, he replied that he completed a three-month sex offender monitoring and management program ("INSOMM") while in the DOC. He indicated that, since his release, he made contact with probation, his probation officer set him up with a counselor, and he was currently seeing the counselor and had been doing so since his release in November. When asked how long he "expects the treatment to go, " he answered "[f]rom my understanding, it could last as long as my entire probation." Id. at 42. When asked if he was prepared to petition the court to modify support, Mendez replied affirmatively, and stated he wished to have an opportunity to have a relationship with D.M. in the future and was prepared to pay for any counseling that might be required to overcome over any hurdles.

         [¶6] On cross-examination, Mendez indicated he was required to participate in the INSOMM as a part of his sentence and it was not voluntary, he was initially charged with class A felonies, he had been working since September 2015, and he had not filed a petition with the court regarding the no contact issue or financial support. He indicated he had been able to financially support his daughter since September 2015 when he became employed. Mendez stated that, according to his terms, he must obtain approval of his probation officer prior to contacting his daughter and that he did not have that approval. When asked "you have not successfully completed a court approved sex offender treatment program . . . [o]ther than your [INSOMM], " he answered "[i]t is not completed, no, " and when asked "[w]as [INSOMM] supposed to count for this, " he replied "[n]o." Id. at 48. Mendez also acknowledged he had a conviction for battery prior to D.M.'s birth.

         [¶7] On October 14, 2016, the court entered an Amended Decree of Adoption granting Weaver's petition to adopt D.M.[4] In its decree, the court found in part that, as a result of a no contact order that was entered in the criminal proceeding and the suspended parenting time order in the dissolution decree, Mendez has had no contact with D.M. since the time of his arrest, that from his employment through the work release center in August 2015 through the hearing in August 2016 he has made no effort to pay support for D.M. in any manner, and that it recognizes that Mendez's ability to contact D.M. directly is prohibited by the no contact order. The court also found that the dissolution decree provided that Mendez was required to request parenting time with D.M. upon his release from incarceration and there is no evidence he has done so, that D.M. has no recollection of her relationship with Mendez, and that Weaver began living with Leilani, D.M., and C.L in 2013 and married Leilani in 2016. The decree concludes:

21. Insofar as Michael Mendez is the natural parent of the child to be adopted, the findings and legal conclusions of this Court are controlled by Ind. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.