In Re the Adoption of L.J. and E.J., minors, Crystal Satter v. Jason James and Jennifer James (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as May 16 2017, 9:38 am
precedent or cited before any court except for the purpose
of establishing the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Andrew R. Wolf
The Wolf Law Office
Michigan City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of L.J. and May 16, 2017
E.J., minors, Court of Appeals Case No.
64A03-1608-AD-1886
Appeal from the Porter Superior
Crystal Satter, Court
Appellant-Respondent, The Hon. William E. Alexa, Judge
Trial Court Cause No.
v. 64D02-1508-AD-7208
Jason James and Jennifer James,
Appellees-Petitioners.
Bradford, Judge.
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Case Summary
[1] On October 15, 2007, a court order declared that Appellee-Petitioner Jason
James (hereafter “Father”) was the biological father of both L.J. and E.J.
(collectively, “the Children”). At the time, Appellant-Respondent Crystal
Satter (“Birth Mother”) was awarded custody of the children, with Father
holding rights to parenting time and obligations to pay child support. In 2012,
Father was awarded physical and legal custody of the Children, with Mother
being granted visitation twice a week at the Family Life facility. Eventually,
Father married Jennifer James (“Step-Mother”), and Birth Mother became
pregnant with twins by her boyfriend, Brian Piunti.
[2] In August of 2014, Birth Mother gave birth to twin girls but refused to allow the
Children to visit them and her in the Hospital or to take the twins to Family
Life. Between August of 2014 and August of 2015, Birth Mother saw the
Children for a total of one hour and did not otherwise communicate with them,
despite efforts by the Children’s guardian ad litem (“GAL”) to arrange
supervised visitation. On August 25, 2015, Father and Step-Mother petitioned
for Step-Mother to adopt the Children. Following a hearing, the adoption court
ruled that Birth Mother’s consent to adoption of the Children by Step-Mother
was not required and entered an order of adoption. No criminal history check
of Step-Mother was performed, however. Birth Mother contends that the
adoption court abused its discretion in concluding that her consent to the
adoption was not required and in not ordering a criminal history check be
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performed on Step-Mother. Because we disagree with the first contention but
agree with the second, we affirm in part, reverse in part, and remand with
instructions to order a criminal history check on Step-Mother and for further
proceedings.
Facts and Procedural History
[3] On October 15, 2007, the paternity court, in cause number 64C01-0706-JP-648,
found that Father was the biological father of the Children. At the time, Birth
Mother was awarded physical and legal custody of the children, with Father
holding rights to parenting time and obligations to pay child support. On
November 21, 2008, the paternity court appointed Ana Osan to be a GAL
following Birth Mother’s ultimately unsubstantiated allegations of sexual
misconduct by Father with the Children. During a court-ordered investigation
of the sexual misconduct allegations, the Children were evaluated by Dr.
Tiffany Simpson and have continued to receive regular counseling from her.
Following motions to modify custody and parenting time by both parties, the
paternity court appointed a special judge on January 10, 2012, and granted
physical custody to Father, including sole legal custody. Birth Mother was to
have parenting time with the Children twice a week at Family House. At one
of these visits in late 2013 or early 2014, Birth Mother announced to the
Children that she was pregnant with twins she was having with Piunti. Mother
had been advised by her counselor to tell the Children first and then speak with
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Dr. Simpson about the potential effects and/consequences that the news might
have, advice GAL Osan found to be “flabbergasting[.]” Tr. Vol. II p. 12.
[4] On July 31, 2014, GAL Osan filed an emergency petition to withhold records
and suspend contact, which was granted by the paternity court and disallowed
any further communication between Father and Birth Mother. GAL Osan then
filed a petition to modify Birth Mother’s parenting time, and the paternity court
affirmed a suspension of Birth Mother’s parenting time on September 18, 2014.
[5] On August 25, 2015, Father and Step-Mother filed a petition for adoption of the
Children by Step-Mother with the adoption court. At the time, a petition to
modify custody was pending in the paternity court, filed by Birth Mother. The
paternity court denied Birth Mother’s petition to modify custody on April 28,
2014, and ordered the suspension of any parenting time until after the petition
for adoption was ruled on. Birth Mother then filed a timely objection to the
petition for adoption.
[6] The adoption court conducted the hearing on the petition for adoption on
February 5, 2016, and consolidated the paternity action with the adoption case.
GAL Osan testified during the hearing that the Children were excited about
Birth Mother’s twins, who were born in August of 2014, and wished to see
them in the hospital. GAL Osan, mindful that Family House visitation might
not be feasible following the twins’ birth, attempted to arrange a hospital visit
for the Children and to maintain parenting time “maybe doing some sort of
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Skype or FaceTime or telephonic” but received no response from Birth Mother.
Tr. Vol. II p. 13.
[7] GAL Osan also testified that the visitation that occurred on December 23,
2014, coincided with Birth Mother’s separation from Piunti four days
previously and that “there was a lot of movement being made to schedule
meetings” while Birth Mother and Piunti were separated. Tr. Vol. II p. 15.
Birth Mother and Piunti, however, reunited in Early March of 2015, and the
“picture change[d] dramatically”; other than a meeting between GAL Osan,
Birth Mother, Birth Mother’s attorney, and Dr. Simpson on April 27, 2015,
there had been no additional communication with Birth Mother. Tr. Vol. II p.
15. At the April meeting, requirements for resumption of parenting time with
the Children were discussed with Birth Mother, including psychological
evaluations for herself and Piunti, to which Birth Mother agreed but never
occurred. Birth Mother also did not take advantage of opportunities to have
visitation supervised by Dr. Simpson.
[8] GAL Osan observed that Birth Mother had developed a high level of animosity
toward Dr. Simpson and believed that GAL Osan and Dr. Simpson did not like
her and “had a vendetta out for her.” Tr. Vol. II p. 20. GAL Osan opined that
all services that could have been offered, recommended, or ordered to avoid the
adoption scenario, were, and that the influence of a third party (presumably
Piunti) is putting Birth Mother “in a very precarious position[.]” Tr. Vol. II p.
25. GAL Osan testified that it was not in the Children’s best interest to
continue their current family situation.
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[9] Birth Mother testified that she had not “substantially” seen the Children since
June of 2014, with “an hour visit for Christmas on December 23, 2014.” Tr.
Vol. II p. 55. Birth Mother also testified that Father, GAL Osan, and the
Children’s counselor used her twins as an excuse to prevent her from seeing the
Children because Birth Mother would not introduce the twins to them. Mother
testified that her reluctance to take the twins to visitation with the Children was
due to concern about the risk of infection at Family House, although she had
testified in a previous hearing that Piunti had refused to allow her to take them.
Birth Mother testified that she was aware of attempts to have the Children visit
her and the twins in the hospital but did not agree to it because she was
“recovering [and] wouldn’t want them to see me like that.” Tr. Vol. II p. 58.
Birth Mother indicated her belief that Father, Step-Mother, and Dr. Simpson
were intentionally acting to prevent her from seeing the Children. At the end of
the hearing, the adoption court instructed the parties to address whether waiver
of consent of Birth Mother was required as a matter of law.
[10] On March 24, 2016, the adoption court, upon receiving the summations from
both parties, determined that the consent of Birth Mother was not required and
that the adoption petition should be granted. The adoption court’s order
provides, in part, as follows:
2. There has been no substantial contact between the
Respondent and the minor children for at least a one (1) year
period prior to the filing of the Petition for Adoption by
Petitioner and after extensive efforts to facilitate Visitation by
Respondent with the minor children.
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3. The consent of the natural mother of the two (2)
minor children to this Adoption is not required pursuant to IC
31-19-9-1 and IC 31-19-9-8(a)(2)(A).
4. The Court finds, by clear and convincing evidence,
that Respondent is unfit to be a parent of these minor children
and it is in the best interest of the two (2) minor children that the
Respondent’s consent to the adoption be dispensed with.
5. The Court further finds that the allegations
contained in the Petitioner’s Petition of Adoption are true and
Petitioner has sufficient ability and means to rear the minor
children and to furnish suitable support and education for the
children. It [is] absolutely in the best interest of the minor
children that this Petition for Adoption be granted.
IT IS, THEREFORE, CONSIDERED, ORDERED,
ADJUDGED, AND DECREED by the Court that the consent
to this adoption by the Respondent, Crystal Satter, is not
required and the parental rights of the Respondent, Crystal
Samar should be, and they hereby are, terminated.
IT IS FURTHER ORDERED, ADJUDGIED, AND
DECREED that it is in the best interest of the minor children,
Logan Michael James and Evan Levine James that this adoption
be, and it hereby is, GRANTED.
Order pp. 2-3. Birth Mother filed a timely motion to correct error that was not
ruled on within forty-five days. In accordance with Indiana Trial Rule 53.3, the
motion is deemed denied.
Discussion and Decision
[11] In the present case, Father has not submitted a Brief of Appellee. As a result,
“[i]nstead of imposing upon this court the burden of controverting arguments
advanced for reversal, [we] have long applied a less stringent standard of review
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with respect to showings of reversible error when the appellee fails to file a
brief.” Johnson Cty. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991
(Ind. Ct. App. 1985). Birth Mother need only prove prima facie error to win
reversal. Id. (citing Ind. State Bd. Of Health v. Lakeland Disposal Serv., Inc., 461
N.E.2d 1145, 1145 n.1 (Ind. Ct. App. 1984)). “In this context, ‘prima facie’
means at first sight, on first appearance, or on the face of it.” Id. (quoting
Harrington v. Harrington, 142 Ind. App. 87, 88, 233 N.E.2d 189, 191 (1968)).
Pursuant to Indiana Code section 31-19-11-1(a), the trial court
shall grant an adoption petition if, in relevant part, the adoption
is in the child’s best interest; the petitioner is sufficiently capable
of rearing and supporting the child; and proper consent, if
required, has been given. Following the entry of an adoption
decree, our standard of review on appeal “is to consider the
evidence most favorable to the petitioner and the reasonable
inferences which can be drawn therefrom to determine whether
sufficient evidence exists to sustain the trial court’s decision.” In
re Adoption of S.O., 56 N.E.3d 77, 80 (Ind. Ct. App. 2016). Our
court will not overturn the trial court’s decision regarding an
adoption “unless the evidence at trial led to but one conclusion
and the trial court reached an opposite conclusion.” Id. We do
not reweigh evidence, and because we presume that the trial
court’s decision is correct, the appellant bears the burden of
overcoming that presumption. In re Adoption of H.N.P.G., 878
N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied.
Matter of Adoption of C. J., 71 N.E.3d 436, 442 (Ind. Ct. App. 2017).
I. Requirement of Birth Mother’s Consent to Adoption
[12] Birth Mother contends that the adoption court abused its discretion in
concluding that her consent to the adoption was not required. Indiana Code
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section 31-19-9-8(a)(2)(A) provides that “[c]onsent to adoption … is not
required from [a] parent of a child in the custody of another person if for a
period of at least one (1) year the parent … fails without justifiable cause to
communicate significantly with the child when able to do so[.]” The adoption
court determined that Birth Mother’s consent to the adoption was not required
because of her failure to communicate significantly with the Children for the
statutory period of a year without justification, specifically, the year from
August 24, 2014, to August 24, 2015.
[13] We conclude that there is sufficient evidence to support the trial court’s
conclusion that Birth Mother’s consent to the adoption was not required. The
record indicates that Birth Mother saw the Children for a total of one hour
between August 24, 2014, to August 25, 2015, and there is no indication of any
other communication of any kind during that period. GAL Osan testified that
numerous attempts to arrange visitation and/or other parenting between Birth
Mother and the Children were unsuccessful, with many communications to
Birth Mother going unanswered and unacknowledged. Birth Mother refused to
undergo a psychological evaluation as a condition precedent for reestablishing
visitation and did not participate in proposed supervised visitation.
[14] GAL Osan concluded that Birth Mother’s relationship with Piunti, and his
influence over her, were obstacles to reestablishing parenting time, and the
record bears this out. Mother testified in a hearing that Piunti refused to allow
her to take the twins to visitation with the Children. Over the course of the year
in question, the only actual visitation—and the only significant steps to arrange
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more visitation—occurred during a brief period when Birth Mother and Piunti
were separated. GAL Osan noted that when Birth Mother and Piunti
reconciled, communication ceased. In short, the record supports a conclusion
that Birth Mother’s failure to communicate significantly with the Children for
more than a year was without justification.
[15] Mother testified to the many reasons that she claims caused her to not
communicate significantly with the Children and argues that they provide
justification. Even if we assume that her reasons would justify her failure to
communicate, the adoption judge was under no obligation to credit Birth
Mother’s testimony, and likely did not. Birth Mother’s argument is nothing
more than an invitation to reweigh the evidence, which we will not do. See
Adoption of C. J., 71 N.E.3d at 442. The adoption court did not abuse its
discretion in concluding that Birth Mother’s consent to the adoption of the
Children was not required.
II. Criminal History Check on Step-Mother
[16] Birth Mother notes, correctly, that Indiana Code section 31-19-8-1 requires a
period of supervision by a licensed child placing agency, which could include
the Indiana Department of Child Services. The adoption court has the ability
to waive that requirement where one of the petitioners is a step-parent. See Ind.
Code § 31-19-8-2(c). However, pursuant to Indiana Code section 31-19-8-5(d),
if the adoption court waives that period of supervision and the following report,
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the adoption court “shall require” the licensed child placing agency to conduct
a criminal history check on the step-parent and report the results.
[17] Here, the adoption court granted Father and Step-Mother’s motion to waive
both the period of supervision and home study because of Step-Mother’s status
as a step-parent of the Children. The adoption court, however, provided no
subsequent instructions for any relevant agency to conduct a criminal
background check. This failure to conduct the background check constitutes
clear error. Indiana Code section 31-19-8-5(d) provides that the adoption court
“shall” order a criminal background check of the prospective adoptive step-
parent when the proper conditions are met, and the relevant statutory language
provides no provision for waiver of this requirement. As such, we remand with
instructions to order a criminal history check on Step-Mother.
Conclusion
[18] We affirm the adoption court’s conclusion that Birth Mother’s consent to the
adoption of the Children by Step-Mother is not required. However, we reverse
the trial court’s grant of Father and Step-Mother’s petition for Step-Mother to
adopt the Children because the required criminal history check was not
performed on Step-Mother. We remand with instructions to order a criminal
history check on Step-Mother pursuant to Indiana Code section 31-19-8-5(d)
and for further proceedings following the results of the criminal history check.
[19] We affirm in part, reverse in part, and remand with instructions.
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Vaidik, C.J., and Brown, J., concur.
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