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In re Adoption of D. H.

Court of Appeals of Indiana

October 17, 2019

In Re: The Adoption of D. H., K.W., Appellant-Respondent,
B.H., Appellee-Petitioner.

          Appeal from the Greene Circuit Court The Honorable Erik Allen, Judge Trial Court Cause No. 28C01-1804-AD-9

          ATTORNEY FOR APPELLANT Amy Karozos Greenwood, Indiana

          ATTORNEY FOR APPELLEE Karen R. Swopes Terre Haute, Indiana

          TAVITAS, JUDGE.

         Case Summary

         [¶1] K.W. appeals the entry of a decree of adoption in favor of B.H. ("Stepmother"), upon a finding that K.W.'s consent was not required for Stepmother's petition to adopt K.W.'s minor child, D.H. (the "Child). We reverse and remand.


         [¶2] K.W. raises three issues on appeal; however, we address only the following dispositive question: whether the trial court's finding that K.W.'s consent was not required for Stepmother's adoption of the Child is clearly erroneous.


         [¶3] K.W. and J.H. ("Father") are the biological parents of the Child, who was born in April 2015.[1] K.W. and Father never married, but they lived together for over one year in Greene County, Indiana. At birth, the Child's meconium tested positive for hydrocodone, and K.W. tested positive for opiates and benzodiazepines. On May 7, 2015, the Greene County Office of the Department of Family and Children ("DCS") entered an informal adjustment[2]and assessed K.W. for substance abuse.[3] On July 22, 2015, DCS filed a petition alleging that the Child was a child in need of services ("CHINS") due to K.W.'s noncompliance with the informal adjustment. During the pendency of the CHINS action, K.W. tested "positive for various substances, including THC, Tramadol, and Hydrocodone." Appellant's App. Vol. I p. 16.

         [¶4] K.W. and Father lived together until September 2015, when K.W. moved out and left the Child with Father following a domestic violence incident. On two occasions in October 2015, K.W. asked Father to bring the Child to visit K.W. at work and at her sister's home, and Father obliged. In the parties' ensuing paternity action, "the parties were granted joint legal custody and the father was awarded primary physical custody, and [K.W.] had parenting time pursuant to the guidelines with the requirement that her parenting time be supervised [by the Child's maternal grandfather]." Id. at 17.

         [¶5] Father and Stepmother began dating in November 2015.[4] On December 16, 2015, the trial court approved Father's and K.W.'s joint stipulated order ("Agreement") regarding custody and parenting time, [5] which provided:

[K.W.] would pick up the child to begin her parenting time and the father would pick up the child at the end of [K.W.]'s parenting time, that a review hearing would be conducted to address child support, and whether any adjustment was appropriate to [K.W.]'s parenting time.

Id. K.W.'s visits were ordered supervised by maternal grandfather; however, paternal grandmother began supervising the visits due to concerns about maternal grandfather's alcohol consumption. The issue of child support was to be addressed during a subsequent review hearing, but K.W. did not appear; accordingly, no child support order was entered.

         [¶6] In December 2015, K.W. moved approximately ninety miles away to Johnson County, Indiana. After K.W. moved, her contact with the Child was sporadic and inconsistent.[6] K.W. participated in a supervised visit with the Child on September 11, 2016, and did not again visit with the Child until February 3, 2018. During this period, K.W. appears to have worked to achieve sobriety. The record reveals that K.W. passed drug screens to secure employment; maintained gainful employment; secured stable housing; and obtained means of transportation. Thereafter, K.W. resumed her requests to schedule supervised visits with the Child. See footnote 6.

         [¶7] On April 2, 2018, Stepmother filed a petition to adopt the Child and alleged that K.W.'s consent to the adoption was not required: (1) "pursuant to IC 31-19-9-8(a)(2) because [K.W. had] not financially supported the child in any way since . . . [K.W.] separated from [Father]"; (2) pursuant to IC 31-19-9-8(a)(2) because [K.W.] [ ] had only one contact with the child since September 11, 2016"; and (3) "pursuant to IC 31-19-9-8(a)(1) and IC 31-19-9-8(b) because [K.W.] [ ] abandoned or deserted the child for at least six (6) months immediately preceding the date of the filing of [the adoption] petition." Id. at. 29. Stepmother further alleged that K.W. was "unfit" to parent the Child and that "the best interest of the child would be served if the Court dispensed with [K.W.]'s consent[.]" Id.

         [¶8] On April 12, 2018, K.W. filed an objection to the petition for adoption wherein she alleged that her efforts to achieve sobriety provided justifiable cause for her failure to maintain significant contact with the Child. Id. at. 34. The trial court conducted a hearing on the issue of the necessity of K.W.'s consent on September 10 and October 17, 2018.

         [¶9] At the hearing, K.W. testified to the foregoing facts. Father testified that "[K.W.] has never ever called my phone ever, the only thing [he] ever received from [K.W.] is text messages telling [him] to tell [the Child] that [K.W.] loved [the Child] . . . ." Tr. Vol. II p. 85. Father testified further that K.W. has "[n]ever" telephoned the Child. Id. Father and Stepmother testified that the Child is closely-bonded with Stepmother, regards Stepmother as her "mom," and lacks a comparable bond with K.W. Id. at 59. Father also testified that he denied K.W. parenting time after the April 2018 filing of the adoption petition.

         [¶10] The trial court issued findings of fact and conclusions of law on February 1, 2019, and found that K.W.: (1) provided no meaningful support for the child from 2016 through the filing of the petition for adoption on April 2, 2018; (2) "abandoned or deserted" the Child; and (3) lacked justifiable cause for her lack of communication with the Child. Id. at 20-21. The trial court, thus, concluded that K.W.'s consent was not required for Stepmother's adoption of the Child. The decree of adoption was entered on March 12, 2019. K.W. now appeals.


         [¶11] K.W. challenges the trial court's finding that her consent was not required for Stepmother's adoption of the Child. In her brief, K.W. argues:

[K.W.] agreed to relinquish physical custody. . . at a time when [K.W.] was addicted to opiates. The agreement [provided] that K.W. would not pay support and included [ ] supervised visitation. K.W. struggled and succeeded in getting her life back together, and when she had been drug free for two years, and had a full-time job, she asked for regular visits. It was only at this point, that Father and [Stepmother] filed a Petition for Adoption alleging K.W. had abandoned the[ ] child and that her consent was not needed for the adoption.

K.W.'s Br. p. 16.

         [¶12] 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 and quotations omitted). When the trial court makes findings of fact and conclusions of law, we apply a two-tiered standard of review: "we [ ] first determine whether the evidence supports the findings and second, whether the findings support the judgment." In re T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual findings "are clearly erroneous if the record lacks any evidence or reasonable inferences to support them [and] . . . a judgment is clearly erroneous when it is unsupported by the findings of fact and the conclusions relying on those findings." Id. (internal quotation omitted).

         [¶13] The purpose of our adoption statutes is to protect and promote the welfare of children by providing them with stable family units. In re Adoption of K.F., 935 N.E.2d 282, 289 (Ind.Ct.App. 2010), trans denied. The relationship between parent and child is of such fundamental importance that adoption statutes, being in derogation of the common law, are "strictly construed in favor of a worthy parent and the preservation of such relationship." Id. In evaluating the parent-child relationship, however, the best interest of the child is paramount, and "our main concern should lie with the effect of the adoption on the reality of the minor child's life." Id.

         [¶14] As to biological parents, we have opined that "[t]he most protected status in any adoption proceeding is that of the natural parent. Recognizing the fundamental importance of the parent-child relationship, our courts have strictly construed the adoption statute to preserve that relationship." In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind.Ct.App. 2010) (citation omitted), adopted by 941 N.E.2d 1042 (Ind. 2011).

         [¶15] Generally, a parent's consent to adoption of a child under the age of eighteen is required. Ind. Code § 31-19-9-1. Indiana Code Section 31-19-9-8 enumerates circumstances under which a trial court may dispense with the consent of an absent parent in order to grant a potential adoptive parent's petition to adopt. Our Supreme Court has stated that "the statute's design tries to limit an absent parent's ability to thwart potential adoptive parents' efforts to provide a settled environment[, ]" where that absent parent has previously "purposefully sought to abandon her child." In re Adoption of E.B.F. v. D.F., 93 N.E.3d 759, 767 (Ind. 2018).

         [¶16] Pursuant to Indiana Code Section 31-19-9-8(a), consent to adoption is not required, inter alia, 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 ...

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