In re the Matter of the Adoptions of E.M.M., III, E.E.M., E.M.M., E.W.M., and E.R.M. (Minor Children), E.A.M. and E.M.M., Jr. v. E.M., Sr., and M.M. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2019, 9:21 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Glen E. Koch II Davina L. Curry
Boren, Oliver & Coffey, LLP The Curry Law Firm, LLC
Martinsville, Indiana Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of the Adoptions February 28, 2019
of E.M.M., III, E.E.M., E.M.M., Court of Appeals Case No.
E.W.M., and E.R.M. (Minor 18A-AD-1942
Children) Appeal from the Morgan Superior
Court
The Honorable Peter R. Foley,
E.A.M. and E.M.M., Jr., Judge
Appellants-Petitioners, Trial Court Cause Nos.
55D01-1703-AD-40, -48, -49, -50,
v. -51
E.M., Sr., and M.M.,
Appellees-Respondents
Crone, Judge.
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Case Summary
[1] E.A.M. (“Mother”) and E.M.M., Jr. (“Father”) (collectively “Parents”), appeal
the trial court’s order granting the adoption petitions filed by E.M., Sr.
(“Grandfather”), and M.M. (collectively “Guardians”) to adopt E.M.M., III,
E.E.M., E.M.M., E.W.M., and E.R.M. (collectively “the Children”).1 Parents
sole argument on appeal is that the trial court erred in finding that their consent
to the adoption was unnecessary on grounds different than those pled by
Guardians. Finding no error, we affirm.
Facts and Procedural History
[2] The Children were born to Parents between 2004 and 2011. In May 2011,
Guardians, who have two children together, filed a petition in Marion Superior
Court seeking guardianship of the Children, which the court granted. The
guardianship was established because Parents were struggling, were not
employed, and did not have a stable residence. Appealed Order at 3. Shortly
after the guardianship was established, Father moved to Pennsylvania to look
for work. A couple months later, Mother went to Pennsylvania to be with
Father and pursue a job opportunity.
[3] In June 2012, Guardians filed a petition for support and medical insurance
against the Parents, and the court issued an order requiring Mother to pay
support. In August 2012, Mother filed a motion to terminate guardianship in
1
Grandfather is the Children’s paternal grandfather.
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the child support case, which was dismissed because it had been filed in the
wrong court. Mother understood why her motion was dismissed. In October
2016, Mother filed a motion to terminate guardianship in the guardianship
case.
[4] On April 24, 2017, Guardians filed their petitions in Morgan Superior Court to
adopt the Children. Guardians alleged that Parents’ consent to adoption was
not necessary based on Parents’ abandonment of the Children and/or Parents’
unfitness pursuant to Indiana Code Section 31-19-9-8(a)(1) and -8(a)(11).
Mother’s motion to terminate guardianship was transferred to and consolidated
with the adoption action.
[5] The trial court issued findings of fact and conclusions thereon granting
Guardians’ adoption petitions. The trial court found that Parents’ consent to
the adoptions was not required because they failed without justifiable cause to
communicate significantly with the Children when able to do so for a period
exceeding one year pursuant to Section 31-19-9-8(a)(2). Id. at 8-10. The trial
court acknowledged that the adoption petitions had not mentioned Section 31-
19-9-8(a)(2), but it found that “the evidence presented at trial supports a finding
under that section of the statute and the evidence was presented at trial without
objection.” Id. at 8. In addition, the findings of fact and conclusions provide in
relevant part as follows:
14. In October 2004 Father was convicted of crimes []
perpetrated against his young son. Father was convicted in
Pennsylvania of Endangering the Welfare of a Child and Simple
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Assault Against a Child. Father admitted he threw his young son
on a couch and squeezed the child. Father acknowledged that he
hurt his son. Father was placed on supervision by the court for a
period of 23.5 months. Father completed his probation in
September 2006.
15. At some point in 2012[,] a CHINS case or cases were opened
up in Marion County, Indiana concerning one or more of the
children. From the evidence presented at trial it is not clear as to
exactly when the CHINS cases were opened and what the
specific allegations were. [M.M.] testified that the CHINS cases
were filed due to allegations of inappropriate touching between
the girls that was reported to a counselor and then to DCS.
16. The CHINS cases appear to have been opened in
approximately 2012 and concluded in 2013. … [I]t does not
appear that there were any allegations of improper conduct by
[Guardians].
l7. The Parents participated in the CHINS proceedings and were
provided public defenders. Father alleges that the judge in the
CHINS case ordered that he not have any contact with the Minor
Children. No party presented any evidence of a written court
order prohibiting contact between Father and the Minor
Children. It is unclear what was told to Father and the Court
does not find that there was a court order prohibiting [him] from
having contact with one or more of the Minor Children.
18. Even if the Court were to conclude that a court had ordered
that Father not have contact with the Minor Children, the order
would have terminated with the conclusion of the CHINS case in
2013. Yet, Father and Mother still did not see the Minor
Children and had no appreciable contact with them thereafter.
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19. The Parents allege that [Guardians] prevented them from
contacting the Minor Children. The Parents allege that
[Guardians] moved multiple times without notifying the Parents,
have blocked the Parents on their Facebook accounts, and have
returned gifts mailed for the Minor Children.
….
21. [Grandfather] has maintained the same cell phone number
since the guardianship was established.
22. The Parents were blocked from [Guardians’] Facebook
accounts due to vulgar and inappropriate comments or posts.
23. The Parents sent a box with a “Happy Birthday” card for
[E.M.M.] and other items to the Minor Children, otherwise, the
Parents sent no cards or gifts after they left Indiana for
Pennsylvania. After the adoption petition was filed the Parents
did leave a box of gifts outside [Guardians’] residence for the
Minor Children.
….
28. It is clear that the Parents were aware of the Guardianship
Proceedings, and as demonstrated by Exhibits # 3, 16, and 17,
Mother possessed the means and knowledge of how to draft and
file pleadings with the court on her own behalf concerning these
matters.
29. The Minor Children are doing well in school, have a strong
bond with [Guardians and Guardians’] children, have strong ties
to the community, and by all accounts are well adjusted and
happy in the care and custody of [Guardians].
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….
32. [Guardians] stepped in and raised the Minor Children with
no support or assistance from the Parents. Even if the Court were
to give weight to the Parents[’] claims that they were “court
ordered” to stay away from the children, they failed to take any
action for the better part of three (3) years to initiate contact with
the children or seek court intervention. Once the CHINS matters
were concluded in 2013 or 2014, the Parents did nothing until
Mother’s motion to terminate the guardianship was filed in
October 2016. The Court can only conclude that the Parents[’]
absence from the lives of the Minor Children was voluntary and
that the [Guardians] did not prevent the Parents from having or
pursuing meaningful contact with the Minor Children.
33. During the approximately seven (7) years that the Parents
were voluntarily absent from their children’s lives, the Minor
Children formed strong bonds with [Guardians], [Guardians’]
children, and their extended families and friends. …. The Minor
Children appear to be well-adjusted children.
34. Uprooting the Minor Children from the only home and
“parents” they have known for the last seven (7) years would be
traumatic and not in the best interests of the children.
….
40. [Guardians] have met their burden of demonstrating by clear
and convincing evidence that the Parents have failed to
communicate with their children for a period in excess of one (1)
year when able to do so. The Parents have failed to provide this
Court with any credible evidence that would justify their failure
to remain in contact with their children during the seven (7) years
from shortly after the establishment of the guardianship until the
filing of Mother’s motion to terminate the guardianship in
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October 2016. The Court acknowledges the testimony that the
Court and/or a counselor in the CHINS case ordered that the
Parents have no contact with the children; however, the Parents
have failed to provide any written order or other evidence to
collaborate [sic] their testimony. Even if the time period in
which the CHINS matters were pending is subtracted from the
analysis, [Guardians] are still able to meet their legal burden. The
bottom line is that the Parents always retained the ability to seek
relief from the guardianship orders but failed to take any action
in that matter until October of 2016. The Parents acquiesced to
[Guardians] to raising their children and the legal consequences
of failing to have any meaningful contact with their children for
approximately seven (7) years.
41. There is no credible evidence to support the Parents[’]
argument that [Guardians] prevented the Parents from having
contact with the Minor Children. The Parents were involved with
multiple lawsuits with [Guardians] (guardianship, child support,
and CHINS cases) and always retained the ability to contact
[Guardians] or seek intervention of a court through those cases.
[Grandfather] maintained the same cell phone number during the
entirety of the guardianship matter. There is no evidence that
[Guardians] secreted their whereabouts or otherwise [took]
action specifically to thwart contact from the Parents. The Court
cannot conclude that blocking the Parents from Facebook
messaging is sufficient defense for the Parents[’] failure to have
any appreciable contract [sic] with the Minor Children in this
case. The Parents were blocked from Facebook contact due to
their own inappropriate actions. The Parents presented no
credible evidence of any unsuccessful and/or diligent efforts on
their part to locate [Guardians]. Again, at all times during the
Parents’ absence from the Minor Children the Parents were
aware of the guardianship case and the Parents possessed the
means and ability to seek relief from that court, but chose not to.
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42. The Minor Children will benefit from the stable, supportive
and nurturing homes of [Guardians] and it is in the best interests
of the children for the adoption to be granted.
43. The Court concludes that [Guardians] have fulfilled their
burden of demonstrating by clear and convincing evidence that it
is in the best interests of the Minor Children that the Parents, and
each of them, parental rights be terminated and [Guardians’]
petitions for adoption be granted.
Id. at 3-10. This appeal ensued.
Discussion and Decision
[6] Parents ask us to review the propriety of the trial court’s ruling on Guardians’
adoption petitions. In such cases,
the appellant bears the burden of overcoming the presumption
that the trial court’s decision is correct. We will neither reweigh
the evidence or judge the credibility of witnesses; instead, we will
consider the evidence most favorable to the trial court’s decision,
and the reasonable inferences to be drawn therefrom, to
determine whether sufficient evidence exists to sustain the
decision. We will not disturb the trial court’s ruling unless the
evidence leads to only one conclusion and the probate court
reached an opposite conclusion.
Where the trial court enters findings of fact and conclusions
[thereon] pursuant to Indiana Trial Rule 52(A), we employ our
familiar two-tiered standard of review: we must determine
whether the evidence supports the findings and whether the
findings support the judgment. We will not set aside the findings
or the judgment unless they are clearly erroneous. Findings of
fact are clearly erroneous if the record is devoid of any evidence
or reasonable inferences to support them, while a judgment is
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clearly erroneous when it is unsupported by the findings of fact
and the conclusions relying on those findings.
In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citations
omitted).
[7] Parents argue that the trial court erred in concluding that their consent to
adoption is not required on grounds different than those pled by Guardians.
Indiana Trial Rule 15(B) provides that “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.” In discussing
how unpleaded issues impact litigation, we have previously stated,
The function of the issues, whether formed by the pleadings, pre-
trial orders, or contentions of the parties, is to provide a guide for
the parties and the court as they proceed through trial. Either
party may demand strict adherence to the issues raised before
trial. If the trial court allows introduction of an issue not raised
before trial, an objecting party may seek a reasonable
continuance in order to prepare to litigate the new issue.
However, where the trial ends without objection to the new issue, the
evidence actually presented at trial controls. Consequently, neither
pleadings, pre-trial orders, nor theories proposed by the parties
should frustrate the trier of fact from finding the facts that a
preponderance of the evidence permits.
Because fairness compels certain restraints, however, there are
limits upon the principle of amending pleadings through implied
consent. For example, a party is entitled to some form of notice
that an issue that was not pleaded is before the court. Notice can
be overt, as where the unpleaded issue is expressly raised prior to
or sometime during the trial but before the close of the evidence,
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or implied, as where the evidence presented at trial is such that a
reasonably competent attorney would have recognized that the unpleaded
issue was being litigated.
In re V.C., 867 N.E.2d 167, 177-78 (Ind. Ct. App. 2007) (citations omitted)
(emphases added).
[8] Generally, a parent’s consent to adoption of a child under the age of eighteen is
required. Ind. Code § 31-19-9-1. However, Section 31-19-9-8(a) provides that
consent to adoption 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.
***
(11) A parent if:
(A) a petitioner for adoption proves by clear and
convincing evidence that the parent is unfit to be a parent;
and
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(B) the best interests of the child sought to be adopted
would be served if the court dispensed with the parent’s
consent.
Ind. Code § 31-19-9-8(a). Subsection (b) of this statute provides that “[i]f 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.”
[9] Here, Guardians pled that Parents’ consent was not required pursuant to
Indiana Code Section 31-19-9-8(a)(1) and -8(a)(11), but the trial court found
that their consent was not needed under subsection 8(a)(2). The petitioner is
required to prove by clear and convincing evidence that a parent’s consent is
not required for the adoption. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind.
2014). “The 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).
[10] Parents contend that they did not impliedly consent to trying the issue governed
by paragraph 8(a)(2), i.e., failure to communicate significantly for a period
exceeding one year without justifiable cause when able to do so. Specifically,
Parents assert that because the issue of communication was relevant to the issue
of abandonment, they should not have been expected to object to
communication evidence. They further argue that they were not on notice that
they needed to present evidence of justifiable cause, and therefore the trial
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court’s analysis begs the question of whether Parents did not present evidence
of justifiable cause because such evidence does not exist or rather because
Guardians only pled that consent was unnecessary due to abandonment and/or
unfitness. Guardians assert that the issue was impliedly tried where both
Guardians’ counsel and Parents’ counsel questioned Parents concerning their
justification for failing to communicate with the Children for seven years.2 We
agree with Guardians.
[11] Our review of the record reveals that Guardians’ counsel directly questioned
both Father and Mother as to why they had not seen the Children in seven
years. Tr. Vol. at 61, 65-66. Parents’ counsel did not object even though the
issue of abandonment applies only to the six months immediately preceding the
filing of an adoption petition. Also, Guardians’ counsel asked Mother why she
did not have contact for the three years between when she was in CHINS court
in 2013 and when she filed the petition to terminate the guardianship in 2016.
Id. at 66. Again, there was no objection.
[12] More importantly, Parents’ counsel asked Parents and Guardians a variety of
questions exploring the reasons for Parents’ lack of contact with the Children
since 2011 when the guardianship was granted. Parents’ counsel specifically
2
Guardians provide a string of thirty-eight citations to the transcript without providing even one example of
the questions counsel asked and how the witnesses responded. Indiana Appellate Rule 46(A)(8)(a) provides,
“The argument must contain the contentions of the appellant on the issues presented supported by cogent
reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or
parts of the Record on Appeal relied on.” Although Guardians cited to the transcript, the failure to provide
even some of the substance of these citations violates this rule and hindered our review. However, given our
preference for deciding issues on their merits, we nevertheless persisted.
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asked Father and Mother whether Guardians had denied Parents contact with
the Children or told Parents that they could not have contact with the Children.
Id. at 141, 194. Parents’ counsel asked Father why he had stopped calling the
Children, whether Grandfather informed Father of new addresses, and whether
Grandfather had kept the same phone number since 2011. Id. at 141, 144-45.
Parents’ counsel asked Mother whether she believed that she attempted to
maintain contact with the Children since 2011, and she answered, “Yes, I have.
I’ve tried.” Id. at 198. Parents’ counsel asked Mother whether cards she sent to
the Children were returned and whether Mother knew the addresses for
Guardians after they moved. Id. at 192-93. Parents’ counsel also asked Mother
whether she tried to reach out to Guardians on Facebook. Id. at 194.
[13] In response to questioning, Father and Mother testified that the reasons that
they had not had contact with the Children included that Guardians would not
allow them to have contact with the Children, the judge in the CHINS case told
them they could not have contact with the Children, they were told that the
Children’s counselor said contact was not good for the Children, they did not
know Guardians’ phone numbers and addresses, and Guardians blocked them
from Guardians’ Facebook pages. Id. at 65-67, 141, 144-45, 192-94, 204.
[14] In addition, Parents’ counsel asked Grandfather and M.M. a variety of
questions related to the lack of contact between Parents and the Children since
2011. Parents’ counsel asked Grandfather and M.M. if they allowed Parents to
speak to the Children or ever told Parents not to call and whether they had ever
asked Parents to stop coming to Guardians’ home. Id. at 83-85, 124. Parents’
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counsel asked Grandfather and M.M. about any changes in phone numbers and
addresses and whether they informed Parents of any such changes. Id. at 77-78,
83, 116.
[15] We conclude that the evidence presented at trial is such that a reasonably
competent attorney would have recognized that the unpleaded issue–Parents’
failure to significantly communicate with the Children without justifiable cause
for more than one year–was being litigated. Accordingly, the trial court
properly found that Parents’ consent to adoption was unnecessary under
paragraph (8)(a)(2). There being no other challenges to the Appealed Order, we
affirm.
[16] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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