K.W. v. M.N. (In re T.K.)

1

In the Matter of the Adoption of T.K.;

K.W., Appellant-Respondent, v. M.N., Appellee-Petitioner.

No. 22A-AD-1421

Court of Appeals of Indiana

January 30, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Dubois Circuit Court The Honorable Nathan A Verkamp, Judge Trial Court Cause No. 19C01-2010-AD-21

Attorney for Appellant Bernadette A. Kovacs Rahman Law Office Ferdinand, Indiana

Chief Judge Altice and Judge Brown concur.

MEMORANDUM DECISION

TAVITAS, JUDGE

Case Summary

[¶1] The trial court granted a petition filed by M.N ("Stepmother") to adopt T.K. ("Child"), the minor daughter of Stepmother's husband, K.K. ("Father"). Child's biological mother, K.W. ("Mother") appeals and claims that: (1) the trial court clearly erred in determining that Mother's consent to the adoption was not required, and (2) the trial court failed to comply with the statutory requirement that a criminal history check be performed on the person seeking adoption.^[1] We conclude the trial court's finding that Mother's consent was not required due to her lack of communication with Child was supported by sufficient evidence. We do, however, agree with Mother that the trial court failed to comply with the statutory requirement that Stepmother undergo a criminal background check. We, therefore, affirm in part, reverse in part, and remand with instructions that the trial court comply with this requirement.

Issues

[¶2] Mother presents three issues, which we consolidate, reorder, and restate as:

I. Whether the trial court's finding that Mother's consent was not required due to Mother's lack of communication with Child was supported by sufficient evidence.

II. Whether the trial court erred by failing to require Stepmother to undergo a criminal history check as required by Indiana Code Section 31-19-8-5.

Facts

[¶3] Child was born in June 2016. On March 9, 2017, Father was awarded primary physical custody of Child in a paternity action.^[2] Pursuant to the custody order, Father and Mother shared joint legal custody, and Mother was granted parenting time pursuant to the Indiana Parenting Time Guidelines, but without overnight visitation. Mother was not ordered to pay child support.

[4] Mother exercised parenting time for only three months and stopped regularly seeing Child after Child was approximately eight months old. Father offered Mother parenting time; however, due to Father's busy work schedule, Mother was unable to exercise her parenting time on several occasions. Mother has not visited or had any contact with Child since August 2018. Mother claims that this was due to her dealing with a child-in-need-of services ("CHINS") case involving her two other children. Mother also claims that Father denied her parenting time, but she admitted that the last time this occurred was in 2017. Despite Mother's claims to the contrary, Stepmother testified that no one was stopping Mother from seeing Child. Nor did Mother file any action to enforce her visitation rights in the paternity action. Mother provided no financial support to Child and did not provide her with any gifts or presents until after Stepmother filed the petition to adopt Child. Mother claimed that she did not contact Child because she wanted to avoid conflict with Father.

[¶5] Father began to date Stepmother in 2018, and the couple began cohabiting when Child was approximately two and one-half years old. Father and Stepmother were married on February 20, 2021. After Father began his relationship with Stepmother, Father blocked Mother on Facebook, but Mother was still able to contact Father on his cell phone. Stepmother became a mother figure to Child, and Child refers to Stepmother as "mommy." Tr. Vol. II p. 24. Child is not bonded to Mother, and, during a text conversation with Stepmother, Mother admitted that Child would not even recognize her.^[3]

[6] On October 5, 2020, Stepmother filed a verified petition to adopt Child along with a motion to waive the supervision period and written adoption report. The trial court initially set a hearing on the matter for November 13, 2020, but due to issues with service, reset the matter for a hearing on December 18, 2020. On November 13, 2020, the trial court issued an order to appear, which was served on Mother. Mother appeared at the December 18, 2020 hearing and, when asked by the trial court if she was contesting the adoption, replied, "Yes." Supp. Tr. p. 4. The trial court then appointed counsel for Mother and reset the hearing for a later date. After numerous continuances, the trial court held an evidentiary hearing on the adoption petition on May 16, 2022. On May 23, 2022, the trial court granted the petition and entered an order and decree of adoption. Mother now appeals.

Discussion and Decision

Standard of Review

[¶7] Our Supreme Court has explained that appellate courts should "generally show '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.'" In re Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quoting E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018)). "So, 'when reviewing an adoption case, we presume that the trial court's decision is correct, and the appellant bears the burden of rebutting this presumption.'" Id. (quoting E.B.F., 93 N.E.3d at 762). "[W]e will not disturb that decision 'unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.'" Id. (quoting In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014)). On appeal, we will neither reweigh evidence nor assess the credibility of witnesses; instead, we consider the evidence in the light most favorable to the trial court's decision. Id. (citing T.L., 4 N.E.3d at 662).

[¶8] Here, our standard of review is somewhat altered by the fact that Stepmother has not filed an appellee's brief. Where the appellee does not submit a brief on appeal, we need not develop an argument for the appellee but instead will reverse the trial court's judgment if the appellant's brief presents a case of "prima facie error." Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (citing Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). "Prima facie error in this context means 'at first sight, on first appearance, or on the face of it.'" Id. (quoting Front Row Motors, 5 N.E.3d at 758). "This less stringent standard of review 'relieves [us] of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee.'" In re Adoption of E.B., 163 N.E.3d 931, 935 (Ind.Ct.App. 2021) (quoting Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014)). Still, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Id. (citing Jenkins, 17 N.E.3d at 352).

I. Mother's Consent was Not Required

[¶9] Mother claims the trial court erred by concluding that Mother's consent to the adoption was not required pursuant to Indiana Code Section 31-19-9-8 as a result of Mother's failure to communicate with Child. Our Supreme Court has held that "[a] natural parent enjoys special protection in any adoption proceeding," and we "strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship." I.B., 163 N.E.3d at 274. In general, "a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by . . . [t]he mother of a child born out of wedlock and the father of a child whose paternity has been established . . . ." Ind. Code § 31-19-9-1(a)(2). "[U]nder carefully enumerated circumstances," however, the adoption statutes allow "the trial court to dispense with parental consent and allow adoption of the child." I.B., 163 N.E.3d at 274 (citing Ind. Code ch. 31-19-9). Indiana Code Section 31-19-9-8 provides 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:

(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.

(b)If a parent has made only token efforts to support or to communicate with the child the court may declare the child abandoned by the parent.

(emphasis added). As set forth in Indiana Code Section 31-19-10-1.4(b):

If a petition for adoption alleges that a parent's consent is unnecessary under Indiana Code 31-19-9-8, and that parent files a motion to contest the adoption, the court may consider:

(1)the parent's substance abuse;

(2)the parent's voluntary unemployment; or

(3)instability of the parent's household caused by a family or household member of the parent;

as justifiable cause for the parent's abandonment or desertion of the child as described in IC 31-19-9-8(a)(1) failure to communicate significantly with the child as described in IC 31-19-9-8(a)(2)(A), or failure to provide for the care and

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