In Re of the Adoption of Z.F. (Minor Child), K.F. v. A.F. (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                                   FILED
    regarded as precedent or cited before any                                           Sep 11 2020, 8:28 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 APPELLEE
    Yvette M. LaPlante                                      Jeff Shoulders
    LaPlante LLP                                            Bob Zoss Law Office
    Evansville, Indiana                                     Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In Re of the Adoption of Z.F.                           September 11, 2020
    (Minor Child),                                          Court of Appeals Case No.
    20A-AD-362
    K.F.,
    Appeal from the Vanderburgh
    Appellant,                                              Superior Court
    v.                                              The Honorable Brett J. Niemeier,
    Judge
    A.F.,                                                   Trial Court Cause No.
    82D04-1907-AD-72
    Appellee.
    Brown, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020                Page 1 of 18
    [1]   K.F. appeals from the trial court’s decree of adoption. We affirm in part,
    reverse in part, and remand.
    Facts and Procedural History
    [2]   Z.F. was born to K.F. and L.F. (“Father”) in April 2007. In December 2007,
    the trial court issued an order establishing paternity which awarded K.F.
    custody and ordered Father to pay $111 per week in child support. On June 20,
    2013, the court issued an order granting a petition to modify custody filed by
    Father. The order provided that Father have primary physical custody of Z.F.,
    K.F. have parenting time pursuant to the Indiana Parenting Time Guidelines,
    and that K.F. pay $51 dollars per week in child support. 1 K.F. made payments
    of $153 in March 2014, $100 in August 2014, and $100 in September 2014.
    [3]   On June 20, 2017, the court issued an order stating that it was in Z.F.’s best
    interest that K.F.’s parenting time be modified and exercised at Father’s
    discretion. The order also stated the court found K.F. in contempt for continual
    nonpayment of child support. A court entry dated February 1, 2018, stated that
    K.F. shall exercise one midweek supervised visit and a supervised visit every
    other Saturday, that K.F. had a child support arrearage of $9,149.67 and an
    arrearage for her portion of non-covered medical expenses of $1,792.49, and
    1
    The child support obligation worksheet attached to the court’s order included a weekly gross income for
    K.F. of $290, and the order stated she had the capacity to work full time at minimum wage. According to
    counsel for A.F., Father’s spouse, “payments were to begin in 2014 after the credit.” Transcript Volume II at
    14. When asked, “[a]t about 54.2 weeks, approximately, that credit for the approximately $2,700.00 that
    [Father] owed you was, for lack of a better term, eaten up or used up and then you were supposed to start
    paying your support,” K.F. answered affirmatively. Id. at 14-15.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020                Page 2 of 18
    that she was ordered to pay $1,000 in attorney fees.2 An entry dated June 6,
    2018, stated in part that, “[b]ecause [K.F.] has missed parenting time and, on
    occasion, has failed to communicate with Father about her missed parenting
    time, the Court will impose the requirement that [K.F.] will confirm with
    Father 48 hours in advance of any scheduled parenting time that she will be
    exercising the parenting time.” Petitioner’s Exhibit F at 2. The entry further
    stated K.F.’s child support arrearage had increased to $10,067.67, she still had
    an arrearage for her portion of non-covered medical expenses of $1,792.49, and
    she had not paid the attorney fees as previously ordered. It stated that the court
    entered judgment against K.F. in favor of Father and that he would have a lien
    against K.F.’s back disability payments received from her disability claim.
    [4]   On July 18, 2019, A.F. filed a Petition for Step-Parent Adoption stating she was
    married to Father and was petitioning to adopt Z.F. On the same day, Father
    filed a consent to the adoption. On August 16, 2019, K.F. filed a motion to
    contest the adoption, and on November 4, 2019, she made a child support
    payment of $60.
    [5]   On November 20, 2019, the trial court held a hearing at which it stated “we’re
    here for a consent hearing.” Transcript Volume II at 5. The juvenile child
    support clerk testified that K.F. made no child support payments for the period
    2
    The entry stated: “The Court acknowledges that [K.F.] is in contempt, but does not enter an Order
    indicating the same. However, the Court orders [K.F.] to pay $1,000 of the Father’s attorney fees . . . within
    six (6) months of this order.” Petitioner’s Exhibit D at 3.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020                 Page 3 of 18
    of five years and two months between September of 2014 and November 2019.
    K.F. testified that she was working at McDonald’s in 2013 and 2014, earning
    $7.35 per hour, and her rent was $525. She testified she had custody of a child
    who was seventeen years old, and the child’s father was $25,000 behind in child
    support.     She testified Z.F. was born after the wreck and she had been advised
    not to have him. She testified that, in 2015, she slipped on ice and injured
    herself. She stated: “I was advised to reapply for social security because I
    already had done it twice before. But it was denied. I missed an appointment
    the first time it was denied and the second time it was denied is when I was
    working at McDonald’s and my income was too high. Well, I didn’t make too
    much money, there was an incident at work and I got a lawyer and the matter’s
    been resolved and dismissed and McDonald’s had to give me money.” Id. at
    18. She indicated she received a settlement from McDonald’s of $10,000, and
    when asked how much of the payment she applied toward child support for
    Z.F., she testified: “None. I bought a vehicle and then it died. I fixed it and
    that’s where that money went. The entire check went to getting a vehicle.” Id.
    [6]   K.F. testified she currently worked at Arby’s, had worked there since July, and
    earned $8.50 per hour. She indicated she worked at Long John Silver’s in
    November 2018 and quit after a month, she started at Cracker Barrel in
    February 2019 but received only eleven hours a week, and in July she quit and
    started working at Arby’s. She indicated she worked forty hours a week when
    she worked at McDonald’s. She also indicated she smoked about half a pack of
    cigarettes a day and had done so for a number of years. When asked how she
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 4 of 18
    supported half a pack a day, she answered “I can support myself now and I’m
    also on the nicotine patch now,” “before I would do side work or my Mom
    would buy them,” and “[w]hen you don’t have a job you’re not supporting
    nothing.” Id. at 24. She indicated she paid thirty-five dollars a month for her
    cell phone.
    [7]   K.F. testified she and her daughter lived in a house with her brother and his
    girlfriend, she did not pay him rent, she sometimes paid the utility bills, and she
    had given her brother about eighty-five dollars. She indicated she was not
    working in February, May, or June of 2018. She also testified that she
    previously lived with her mother and her boyfriend. When asked how many
    years she had not had a housing expense, K.F. testified “it’s been six years.” Id.
    at 53.
    [8]   On cross-examination, K.F. Testified she had paid $1,000 for Zo.F., her
    seventeen-year-old daughter, to take a trip when her daughter was a freshman,
    and on redirect acknowledged that during this time she was paying no support
    for Z.F.
    [9]   K.F.’s counsel addressed the court: “My next questions go to best interest. Has
    the Court previously ruled that I cannot introduce any best interest evidence?”
    Id. at 63-64. The court replied: “Correct. We’ll show that over your objection.”
    Id. at 64. K.F.’s counsel then stated: “Then the remainder of my questions will
    be concluded.” Id.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 5 of 18
    [10]   Zo.F. testified that K.F. attempted to support and provide care for Z.F. and that
    “we go over there and usually we play games because he enjoys that,”
    “sometimes [K.F.] goes and gets new cards or something,” “she knows what
    kind of drinks he likes so she brings drinks over there for him when we come
    and visit,” and “she buys him clothes and if he happens to want something, like
    a new game or really anything, food, whatever, she makes sure to try her best to
    give that to him.” Id. at 37-38. She indicated K.F. brought snacks when she
    visited Z.F. and that she visited him regularly each month. She stated K.F.
    bought an Xbox in 2016 for Z.F. to use when he visited and that he had not
    visited in over two years.
    [11]   On December 4, 2019, the court entered an order finding that K.F.’s consent to
    the adoption was not necessary. The court found:
    4. Petitioner [A.F.] claims the mother’s consent is unnecessary as she
    has failed to financially support her son for a period of at least one year
    even though she had the means to assist in support.
    5. The mother [K.F.] failed to pay any child support for her son after 9-
    2-14 through the time that the Petition to Adopt was filed on 7-18-19.
    6. After the Petition was filed the mother has made one token payment
    of $60.00.
    7. The mother admitted that in 2015, she received a $10,000 award for
    being injured at McDonalds, but failed to pay any support to her child
    with this money; instead she purchased a car.
    8. The mother admits she smokes cigarettes, which by the Court’s
    calculations amounts to over $50 a month.
    9. The mother admits that she rarely pays rent or utilities as she has
    been living for an extended period of time with other family members.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 6 of 18
    10. The mother admits to sending her other daughter to New York for a
    performance, during this time period of nonsupport, which cost
    approximately $1000.
    11. The mother admits at various times over the last five years she
    worked, including full time, but she “had to make a choice” and choose
    not to pay support due to her needs.
    12. On 6-20-17, the mother was found in contempt for failing to pay
    child support, but continued to fail to pay support.
    13. On 2-1-18, the mother was found by a Court to owe over $9000 in
    back child support and $1792 in medical expenses, but continued to fail
    to pay support.
    14. On 6-6-18, the mother was found by a Court to owe over $10,000 in
    back child support and $1792 in non-covered medical expenses, but
    continued to fail to pay support for the next year.
    15. The Court acknowledges that the mother is due a tremendous
    amount of back support from her other child’s father, but one parent’s
    failure to pay doesn’t excuse another parent’s failure to pay when they
    still have the means to do so. Zero payments for years, even after a
    court order, without any attempt to even pay small amounts which were
    owed, is clearly a failure to support a child.
    16. Indiana law in accordance with IC 31-19-9-8 requires a parent to
    support their child . . . .
    17. The Court finds the mother did not support her child for over one
    year, when she had the means to do so, thus her consent to adopt is
    unnecessary and the stepmother can continue to proceed in this matter.
    Appellant’s Appendix Volume II at 11-12.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 7 of 18
    [12]   On January 27, 2020, K.F. filed a Motion for Evidentiary Hearing on Best
    Interests. On January 30, 2020, the court held a hearing. 3 Near the beginning
    of the hearing, K.F.’s counsel stated that a “Petition for Hearing on the issue of
    best interest” had been previously filed and that she had been “informed by the
    Court that the Court does not feel that is necessary at this time, given the
    Court’s earlier ruling in this matter,” and the court replied “Correct.”
    Transcript Volume II at 75. K.F.’s counsel stated that, as an offer to prove,
    K.F. would have testified, if she were allowed to have a hearing, that she has
    had continuing visits with Z.F., she is financially unable to pay support, she has
    a bond with Z.F., there is no danger to him, and she feels it is in his best interest
    that the bond not be cut by way of adoption. The court stated:
    Well and the statute calls basically if the Court finds that consent is
    not necessary then we go forward with the adoption. Of [sic] consent
    is necessary then we go to a best interest as to whether the child
    should be adopted or not. So that is the reason we are not holding a
    best interest hearing, is because the Court has already decided
    [K.F.’s] consent is unnecessary. And so that is the reason for that.
    The Court has appointed the Public Defender[’s] Office to represent
    [K.F.] for the purposes of appealing this adoption.
    Id. at 76.
    3
    The transcript of the January 30, 2020 hearing is less than five pages, and the transcript of A.F.’s testimony
    is less than two pages.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020                   Page 8 of 18
    [13]   Upon questioning by her counsel, A.F. testified that she lived with Father, her
    daughter, and Z.F., she was employed as a registered nurse, Father was
    employed as an occupational therapy assistant, and she had a comfortable
    home and adequate accommodations to care for Z.F. When asked if she
    believed it was in Z.F.’s best interest that the adoption take place, she
    responded affirmatively. The court stated that the petition for adoption was
    granted. It entered a decree of adoption which stated a Motion to Waive Home
    Study had been granted, the court heard evidence in support of the petition for
    adoption, Father had signed and filed a consent to the adoption, the allegations
    contained in the petition for adoption were true, and the petition should be
    granted.
    Discussion
    [14]   K.F. claims that the evidence did not establish she had the ability to pay
    support and that the decree of adoption did not satisfy statutory requirements.
    In family law matters, we generally give considerable deference to the trial
    court’s decision because we recognize that the trial judge is in the best position
    to judge the facts, determine witness credibility, and obtain a feel for the family
    dynamics and a sense of the parents and their relationship with their children.
    E.B.F. v. D.F., 
    93 N.E.3d 759
    , 762 (Ind. 2018). Accordingly, 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.
    [15]   When reviewing the trial court’s ruling in an adoption proceeding, we will not
    disturb that ruling unless the evidence leads to but one conclusion and the trial
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 9 of 18
    judge reached an opposite conclusion. In re Adoption of T.L., 
    4 N.E.3d 658
    , 662
    (Ind. 2014). The trial court’s findings and judgment will be set aside only if
    they are clearly erroneous. E.B.F., 93 N.E.3d at 762. A judgment is clearly
    erroneous when there is no evidence supporting the findings or the findings fail
    to support the judgment. Id. We will not reweigh evidence or assess the
    credibility of witnesses. Id. Rather, we examine the evidence in the light most
    favorable to the trial court’s decision. Id.
    A. Ability to Pay
    [16]   K.F. argues the trial court’s findings did not address her ability to pay, the court
    addressed her expenses but not her income, her child support obligation was
    based on imputed income, and her ability to pay should be based on her actual
    income, and that, when she was making money, she made very little. She
    argues she brought snacks to her visitations with Z.F., supported a seventeen-
    year-old, purchased old vehicles, and obtained food from a food bank. She
    argues she received her settlement money before she had a significant arrearage,
    the purchase of a vehicle using the settlement money in her situation was not a
    frivolous or unnecessary expenditure, and the facts she smokes cigarettes and
    does not pay rent do not mean she had the ability to pay. A.F. responds that
    K.F. made no child support payments for over five years and during that time
    received a settlement, held employment, and had no housing expenses. She
    asserts K.F. asks this Court to reweigh the evidence.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 10 of 18
    [17]   
    Ind. Code § 31-19-11-1
     provides in part that the trial court shall grant a petition
    for adoption if it hears evidence and finds in part that the adoption requested is
    in the best interest of the child and “proper consent, if consent is necessary, to
    the adoption has been given.” A petition to adopt a child may be granted only
    if written consent to adoption has been executed by the mother. See 
    Ind. Code § 31-19-9-1
    . However, 
    Ind. Code § 31-19-9-8
    (a) provides that consent to
    adoption is not required from:
    (2) A parent of a child in the custody of another person if for a
    period of at least one (1) year the parent:
    *****
    (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.
    If a petition for adoption alleges that a parent’s consent to adoption is
    unnecessary under 
    Ind. Code § 31-19-9-8
    (a)(2) and the parent files a motion to
    contest the adoption, the petitioner for adoption has the burden of proving that
    the parent’s consent to the adoption is unnecessary under 
    Ind. Code § 31-19-9
    -
    8. 
    Ind. Code § 31-19-10-1
    .2(a). 
    Ind. Code § 31-19-10-0
    .5 provides: “The party
    bearing the burden of proof in a proceeding under this chapter must prove the
    party’s case by clear and convincing evidence.”
    [18]   The clear and convincing evidence standard is an intermediate standard of
    proof greater than a preponderance of the evidence and less than proof beyond
    a reasonable doubt. See T.D. v. Eskenazi Health Midtown Cmty. Mental Health Ctr.,
    
    40 N.E.3d 507
    , 510 (Ind. Ct. App. 2015). In order to be clear and convincing,
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 11 of 18
    the existence of a fact must be highly probable. 
    Id.
     “The clear and convincing
    standard is employed in cases where the wisdom of experience has
    demonstrated the need for greater certainty, and where this high standard is
    required to sustain claims which have serious social consequences or harsh or
    far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans
    Affairs, 
    27 N.E.3d 271
    , 276 (Ind. 2015) (citation and quotations omitted).
    [19]   The trial court found that K.F. did not support Z.F. for over one year when she
    had the means to do so. A petitioner for adoption must show that the parent
    had the ability to make the payments which she failed to make. In re Adoption of
    K.S., 
    980 N.E.2d 385
    , 388 (Ind. Ct. App. 2012). The mere showing that a
    parent had a regular income, standing alone, is not sufficient to indicate the
    parent’s ability to provide support. 
    Id.
     Rather, we have held: “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 or
    sporadic and what the non-custodial parent’s necessary and reasonable
    expenses were during the period in question.” 
    Id.
     (quoting In re Adoption of
    K.F., 
    935 N.E.2d 282
    , 288 (Ind. Ct. App. 2010), trans. denied).
    [20]   The record reveals that, in 2013, K.F. was ordered to pay child support of $51
    per week. The payment history admitted into evidence shows that she made
    payments of $153 in March 2014, $100 in August 2014, and $100 in September
    2014. After the petition for adoption was filed on July 18, 2019, and prior to
    the November 20, 2019 hearing, K.F. made one support payment of $60 on
    November 4, 2019. The record supports the trial court’s finding that K.F. failed
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 12 of 18
    to pay any child support after September 2014 through the date of the petition
    for adoption and that, after the petition was filed, she made one token payment.
    The record further reveals an order was issued on June 20, 2017, finding K.F. in
    contempt for nonpayment of child support; an entry was made on February 1,
    2018, stating her child support arrearage was $9,149.67 and her medical
    expense arrearage was $1,792.49 and ordering her to pay attorney fees; and an
    entry on June 6, 2018, stated her child support arrearage had increased to
    $10,067.67. While K.F. was not always employed and had minimal hours and
    earnings at times, the record supports the conclusion that she was able to
    provide some level of support and knowingly failed to do so. She was
    employed on full-time and part-time bases for various periods, received a
    settlement, and had minimal housing expenses for an extended period.
    [21]   The trial court was in the best position to judge the facts, and we will not
    reweigh evidence or assess the credibility of the witnesses. Based upon the
    record, we do not disturb the trial court’s determination that K.F.’s consent to
    the adoption is not required. See In re Adoption of K.F., 
    935 N.E.2d at 288
    (affirming the trial court’s finding the mother had the ability to pay but failed to
    pay child support for at least one year and observing that, while the mother
    struggled to maintain employment and was mostly unemployed, she was held
    in contempt three times for failure to pay child support, the record did not show
    she ever petitioned to modify her support obligation, and she had a significant
    arrearage of over $14,000 where her support obligation was $47 per week).
    B. Best Interest and Decree of Adoption
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 13 of 18
    [22]   K.F. also maintains the decree of adoption does not satisfy the requirements of
    
    Ind. Code § 31-19-11-1
    . 
    Ind. Code § 31-19-11-1
    (a) provides:
    Whenever the court has heard the evidence and finds that:
    (1) the adoption requested is in the best interest of the child;
    (2) the petitioner or petitioners for adoption are of sufficient
    ability to rear the child and furnish suitable support and
    education;
    (3) the report of the investigation and recommendation under IC
    31-19-8-5 has been filed;
    (4) the attorney or agency arranging an adoption has filed with
    the court an affidavit prepared by the state department of health
    under IC 31-19-5-16 indicating whether a man is entitled to notice
    of the adoption because the man has registered with the putative
    father registry in accordance with IC 31-19-5;
    (5) proper notice arising under subdivision (4), if notice is
    necessary, of the adoption has been given;
    (6) the attorney or agency has filed with the court an affidavit
    prepared by the state department of health under:
    (A) IC 31-19-6 indicating whether a record of a paternity
    determination; or
    (B) IC 16-37-2-2(g) indicating whether a paternity affidavit
    executed under IC 16-37-2-2.1;
    has been filed in relation to the child;
    (7) proper consent, if consent is necessary, to the adoption has
    been given;
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 14 of 18
    (8) the petitioner for adoption is not prohibited from adopting the
    child as the result of an inappropriate criminal history described
    in subsection (c) or (d); and
    (9) the person, licensed child placing agency, or local office that
    has placed the child for adoption has provided the documents and
    other information required under IC 31-19-17 to the prospective
    adoptive parents;
    the court shall grant the petition for adoption and enter an adoption
    decree.
    [23]   K.F. argues that the trial court made no findings and heard no evidence with
    respect to subsections (1) and (2) of 
    Ind. Code § 31-19-11-1
    (a) and that it did not
    make findings, although evidence exists in the record, with respect to
    subsections (3), (4), (6), (7), (8), and (9) of the statute. She argues, “[m]ore
    disturbingly, evidence regarding the child’s best interest and [A.F.’s] ability to
    provide is completely absent from the record.” Appellant’s Brief at 19. A.F.
    responds that her January 30, 2020 testimony was sufficient and that K.F.
    admits evidence in the record satisfied the requirements of subsections (3)
    through (9) of the statute.
    [24]   The Indiana Supreme Court has held that, even if a court determines that a
    natural parent’s consent is not required for an adoption, the court must still
    determine whether adoption is in the child’s best interests. In re Adoption of
    O.R., 
    16 N.E.3d 965
    , 974 (Ind. 2014).
    [25]   In In re Adoption of K.S., this Court concluded that the mother’s consent to the
    adoption of her child by the stepmother was not required on the basis that she
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 15 of 18
    had the ability to financially support the child and willfully failed to do so. 980
    N.E.2d at 388-390. We then turned to the adoption statutes and observed:
    Nevertheless, we are mindful that a petition for adoption is not
    automatically granted following a showing that a natural parent
    failed to provide support when able to do so. Once the statutory
    requirements are met, the court may then look to the arrangement
    which will be in the best interest of the child. The purpose of
    Indiana’s adoption statutes is to protect and promote the welfare of
    children by providing them with stable family units. On occasion we
    have observed that the relationship between parent and child is a
    bundle of human rights of such fundamental importance that
    adoption statutes, being in derogation of the common law, should be
    strictly construed in favor of a worthy parent and the preservation of
    such relationship. However, in evaluating the parent-child
    relationship, 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. at 389 (citations omitted).
    [26]   This Court in In re Adoption of K.S. then reviewed the record and held:
    During the instant proceedings, the parties and the trial court focused
    on the statutory requirements to waive [the mother’s] consent to the
    adoption of [the child] by [the stepmother]. Specifically, the trial
    court noted on the record “the only issue today is consent. [] so,
    we’ll solve that today and then decide where we go from there.” The
    parties did not present any evidence with regard to the impact of the
    adoption on [the child’s] life and whether the severance of her ties
    with [the mother] would be in [the child’s] best interest. Therefore,
    we remand to the trial court to determine whether the adoption will
    be in [the child’s] best interest. See I.C. § 31-19-11-1(a).
    *****
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 16 of 18
    Based on the foregoing, we conclude that [the mother’s] consent to
    the adoption of her minor child by [the stepmother] was not required.
    However, we remand for further proceedings to determine whether
    the adoption is in [the child’s] best interest.
    Id. at 389-390 (some citations omitted).
    [27]   Here, we cannot conclude that the trial court considered or permitted the
    parties to present evidence regarding the impact of the adoption on Z.F.’s life
    and whether the severance of his ties with K.F. would be in his best interest, nor
    can we say it considered whether A.F. is of sufficient ability to rear Z.F. and
    furnish suitable support and education. See 
    Ind. Code § 31-19-11-1
    (a)(1) and
    (2). While A.F. indicated that she and Father were employed and had a home,
    the trial court expressly stated that it did not believe a hearing on the issue of
    best interest was necessary given its previous ruling that K.F.’s consent was not
    required. The court stated, “the reason we are not holding a best interest
    hearing, is because the Court has already decided [K.F.’s] consent is
    unnecessary.” Id. at 76. The court did not hear evidence from K.F., and K.F.’s
    counsel stated that, if K.F. were allowed to testify, she would have testified that
    she had continuing visits and a bond with Z.F. and that it was in Z.F.’s best
    interest that the bond not be severed.
    [28]   Remand is necessary to determine whether the adoption of Z.F. by A.F. is in
    Z.F.’s best interest and whether A.F. is of sufficient ability to rear Z.F. and
    furnish suitable support and education. See 
    Ind. Code § 31-19-11-1
    (a); In re
    Adoption of K.S., 980 N.E.2d at 389-390. If the court determines on remand that
    the adoption is in Z.F.’s best interest and A.F. is of sufficient ability to rear Z.F.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 17 of 18
    and furnish suitable support and education, it should also determine whether
    each of the other requirements of 
    Ind. Code § 31-19-11-1
     is satisfied.
    Conclusion
    [29]   Based on the foregoing, we affirm the trial court’s determination that K.F.’s
    consent to the adoption of Z.F. was not required. However, we remand for
    further proceedings to determine whether the adoption by A.F. is in Z.F.’s best
    interest and for other findings consistent with this opinion.
    [30]   Affirmed in part, reversed in part, and remanded for further proceedings.
    Robb, J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 20A-AD-362 | September 11, 2020   Page 18 of 18
    

Document Info

Docket Number: 20A-AD-362

Filed Date: 9/11/2020

Precedential Status: Precedential

Modified Date: 4/17/2021