In re the Adoption of: E.L.I. (Minor Child), N.I. and R.I. v. P.R.H. (Natural Mother) and R.L.I. (Natural Father) (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 17 2017, 5:37 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
Matthew J. McGovern Larry O. Wilder
Anderson, Indiana Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Adoption of: October 17, 2017
E.L.I. (Minor Child), Court of Appeals Case No.
10A01-1702-AD-262
N.I. and R.I. Appeal from the Clark Circuit
Court
Appellants-Petitioners,
The Honorable Andrew Adams,
v. Judge
Trial Court Cause No.
P.R.H. (Natural Mother) and 10C01-1603-AD-12
R.L.I. (Natural Father),
Appellees-Respondents.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 1 of 12
Case Summary and Issue
[1] N.I. and R.I. (“Grandparents”) appeal the trial court’s order denying their
petition for adoption of E.L.I., the daughter of their son, R.L.I. Grandparents
raise one issue for our review, which we restate as: whether the trial court erred
in denying their petition for adoption by failing to make the required findings to
support that result. Concluding the trial court’s findings of fact are insufficient,
we remand for findings that address the proper statutory considerations.
Facts and Procedural History
[2] E.L.I. was born on November 22, 2002, to P.R.H. (“Mother”) and R.L.I.
(“Father”). In November 2004, Father filed a petition to establish paternity of
E.L.I. The parties stipulated that Father was the natural father of E.L.I. and
the paternity court preliminarily ordered that Mother and Father share joint
legal custody with Mother maintaining primary physical custody and Father
having extended parenting time. The paternity court also appointed a special
advocate to provide a recommendation for custody and parenting time. In her
report filed with the court, the special advocate explained that “[m]ost troubling
is [Mother’s] involvement with drug dealers and drug users, which would
include her live-in boyfriend.” Appellant’s Appendix, Volume III at 50. The
special advocate concluded that although “[n]either parent is a great candidate
for [E.L.I.’s] care[,]” Father should be awarded primary physical custody
because he lived with his parents and thus had “a bit more stability.” Id. The
trial court also appointed a guardian ad litem who recommended that the
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 2 of 12
parties have joint legal custody, with Mother to retain primary physical custody
and Father to have parenting time according to the Guidelines.
[3] On July 14, 2005, Grandparents appeared in the action and filed a petition for
custody of E.L.I. Grandparents alleged they had been the de facto custodians
of E.L.I. since her birth and that neither Father nor Mother were fit to care for
E.L.I. Mother filed a motion to dismiss Grandparents’ petition, and the
guardian ad litem recommended to the court that Mother retain primary
physical custody because E.L.I had not been physically harmed while in
Mother’s custody. Grandparents and Mother reached an agreement on
November 1, 2005, wherein Mother and Grandparents would “share joint
custody” of E.L.I. Id. at 129. The agreement acknowledged that Father was
incarcerated and incapable of exercising visitation with the child. Id. The
Court approved the agreement and ordered Father to have no contact with
E.L.I. Id.
[4] On July 11, 2011, Mother and Grandmother were involved in an altercation at
Mother’s home. Police discovered methamphetamine and drug paraphernalia
in the home and Mother admitted she was addicted to methamphetamine. The
Clark County Department of Child Services investigated and obtained an
emergency custody order over E.L.I., thereafter placing E.L.I. with
Grandparents. On August 5, 2011, Grandparents filed a petition to modify
custody. The paternity court awarded sole physical and legal custody of E.L.I.
to Grandparents. The paternity court ordered Mother’s parenting time be
supervised by Grandparents and later granted Father supervised visitation.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 3 of 12
[5] Mother was incarcerated between 2012 and 2014 on drug related charges. On
June 15, 2015, Mother filed a petition to modify custody alleging that she was
“drug free and employed.” Appellant’s App., Vol. III at 149. In her petition,
Mother requested incremental visitation and the paternity court appointed a
guardian ad litem.
[6] On March 4, 2016, Grandparents filed a petition to adopt E.L.I. and provided
notice to Father and Mother. The petition alleged Father had consented to the
adoption and further alleged Mother’s consent was not required because she
had failed for a period of at least one year to communicate with and provide
care and support for E.L.I. During a hearing on April 20, 2016, the parties
agreed the adoption court has exclusive jurisdiction and the paternity case was
transferred to that court and consolidated with the adoption case.1 A day later,
the guardian ad litem appointed in the paternity case filed her report
recommending Grandparents remain permanent custodians of E.L.I. The
guardian ad litem also recommended that Grandparents investigate the
financial benefits of adoption for E.L.I.
[7] On November 14, 2016, Mother requested the trial court make findings of fact
and conclusions of law. After a hearing on November 18, 2016, the trial court
1
Indiana Code section 31-19-2-14(a) provides, “If a petition for adoption and a paternity action are pending
at the same time for a child sought to be adopted, the court in which the petition for adoption has been filed
has exclusive jurisdiction over the child, and the paternity proceeding must be consolidated with the adoption
proceeding.”
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 4 of 12
made eleven findings of fact and denied Grandparents’ petition for adoption.
The court’s findings were:
1. That the adoption terminates the parental rights of the
biological parent(s); without a separate post adoption visitation
agreement.
2. That [Grandparents] have been the de facto custodians of
[E.L.I.] through [the paternity case] since approximately August
2011 by agreed order.
3. That [Mother] was incarcerated from December 2012 to
September 2014.
4. That during her incarceration, [Mother] made attempts to
contact [E.L.I] and sent letters.
5. That upon her release, [Mother] had contact with [E.L.I.]
routinely by phone and sought additional contact and visitation.
6. That [Mother] was advised that [E.L.I.] was choosing not to
communicate with her mother and did not wish to have
visitation.
7. That [Father] consents to the adoption but continues to have
regular contact with [E.L.I.] at the [Grandparents’] residence.
8. That through [the paternity case] the Court appointed [a]
Guardian Ad Litem . . . and her recommendations were that
[Mother] begin visitation with [E.L.I.] beginning with therapeutic
sessions.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 5 of 12
9. That [Mother] has continued in this pursuit to have a parental
relationship with [E.L.I.] even if small.
10. The parties have agreed not to pursue or force the issue of
visitation out of concerns for [E.L.I.’s] emotional and mental
stability.
11. The [Grandparents] believe it is in [E.L.I.’s] best interest that
the adoption be granted, they believe that any contact between
[E.L.I.] and [Mother] would be a harm to the child, and that
[E.L.I.] may benefit from the [Grandparents’] social security
benefits in the amount of approximately one thousand eight
hundred dollars ($1,800.00) per month.
The Court hereby DENIES the [Grandparents’] Petition for
Adoption and identifies a parent’s parental rights and pursuit of a
relationship over the financial interest or benefit [E.L.I.] or the
[Grandparents] may receive.
Appellant’s App., Vol. II at 86-87. This appeal ensued.
Discussion and Decision
I. Standard of Review
[8] We will not disturb a trial court’s ruling in an adoption proceeding unless the
evidence leads only to the conclusion opposite that of the trial court. E.W. v.
J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans. denied. “Appellate
deference to the determinations of our trial court judges, especially in domestic
relations matters, is warranted because of their unique, direct interactions with
the parties face-to-face, often over an extended period of time.” Best v. Best, 941
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 6 of 12
N.E.2d 499, 502 (Ind. 2011). We do not reweigh evidence and we consider
evidence most favorable to the decision together with reasonable inferences
drawn from that evidence. E.W., 20 N.E.3d at 894. Where, as here, an
adoption petition is filed without the required parental consent, the party
seeking to adopt bears the burden to prove the statutory criteria for dispensing
with consent by “clear and convincing evidence.” In re Adoption of M.A.S., 815
N.E.2d 216, 220 (Ind. Ct. App. 2004).
[9] We also note that the trial court entered written findings of fact and conclusions
of law on Mother’s request pursuant to Indiana Trial Rule 52(A). Upon such a
motion, the trial court “shall find the facts specially and state its conclusions
thereon.” Ind. Trial Rule 52(A) (emphasis added). We apply a two-tiered
standard of review to such cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964
N.E.2d 213, 216 (Ind. 2012). First, we determine whether the evidence
supports the findings of fact and second, we determine whether the findings
support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App.
2009). Indiana’s appellate courts “shall not set aside the findings or judgment
unless clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.” T.R. 52(A).
II. Applicable Law
[10] “Generally, a trial court may only grant a petition to adopt a child born out of
wedlock who is less than eighteen years of age if both ‘[t]he mother of [the]
child’ and ‘the father of [the] child whose paternity has been established’
consent to the adoption.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014)
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 7 of 12
(quoting Ind. Code § 31-19-9-1(a)(2)). However, Indiana law allows a child to
be adopted without a parent’s consent in certain, statutorily defined
circumstances. E.W., 20 N.E.3d at 894. 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:
***
(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.
Ind. Code § 31-19-9-8(a).
III. Findings of Fact
[11] Grandparents allege the trial court failed to make specific findings regarding the
only contested issues: whether Mother’s consent to the adoption was required
and whether adoption was in E.L.I.’s best interest.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 8 of 12
A. Consent to Adoption
[12] Grandparents argue that the trial court failed to make a finding of fact
concerning whether Mother’s consent to the adoption was necessary.
Specifically, Grandparents contend that although the trial court “devoted
Finding Nos. 4-6 and 9 to whether or not [Mother] failed to communicate
significantly with E.L.I. . . . there are no findings regarding whether [Mother]
failed to provide for the care and support of E.L.I.” Brief of Appellants at 29-30
(citation omitted). Indeed, none of the trial court’s eleven factual findings
address the issue.
[13] The trial court made a factual finding that E.L.I. had been in the care of
Grandparents for longer than the one-year period required by Indiana Code
section 31-19-9-8(a)(2). See Appellant’s App., Vol. II at 86 ¶ 2. Thus, the trial
court found the prerequisite to consider whether Mother failed to communicate
with E.L.I. or whether Mother failed to provide for E.L.I.’s care and support
during that period. Ind. Code § 31-19-9-8(a)(2)(A)-(B).
[14] The trial court devoted four of its eleven factual findings to the issue of
communication. See Appellant’s App., Vol. II at 86-87 ¶¶ 4-6, 9. The court
found that Mother attempted to contact E.L.I while she was incarcerated and,
since her release, routinely contacted E.L.I. by phone and has “sought
additional contact and visitation.” Id. at 86 ¶¶ 4-5. Our review of the record
reveals sufficient evidence to support those findings. However, the trial court
made no finding regarding whether Mother failed to provide for E.L.I.’s care
and support. The provisions of Indiana Code section 31-19-9-8(a) are written in
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 9 of 12
the disjunctive, meaning any one provides independent grounds for dispensing
with parental consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.
App. 2006), trans. denied. Therefore, whether Mother failed to provide for
E.L.I.’s care and support was an issue requiring a finding by the trial court to
either grant or deny the petition for adoption. We are “not at liberty to scour
the record to find evidence to support the judgment.” Parks v. Delaware Cnty.
Dep’t of Child Servs., 862 N.E.2d 1275, 1280-81 (Ind. Ct. App. 2007).
Accordingly, we must remand for the trial court to make the appropriate
findings on this issue.
B. Best Interest of the Child
[15] Grandparents also argue that the trial court failed to make a factual finding
regarding the best interest of the child. Grandparents allege that the trial court
was required to make findings about the best interest of the child pursuant to
Indiana Code section 31-19-11-1:
(a) Whenever the court has heard the evidence and finds that:
(1) the adoption requested is in the best interest of the
child; [and]
***
(7) proper consent, if consent is necessary, to the adoption
has been given;
***
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 10 of 12
the court shall grant the petition for adoption and enter an
adoption decree.
This statute lists nine requirements that, if applicable, the trial court must find
before granting a petition for adoption. Any one of the requirements is
potentially dispositive, meaning if the trial court finds one lacking, it need look
no further.
[16] After reviewing the trial court’s findings, we are unable to discern the basis for
the trial court’s dismissal of Grandparents’ petition. On one hand, because the
court found that Mother had communicated with the child but made no specific
finding regarding the best interest of the child, it appears that the court found
Mother’s consent was necessary and thus did not consider the best interest of
the child. On the other hand, the trial court concluded that it “identifies a
parent’s parental rights and pursuit of a relationship over the financial interest
or benefit the child or the [Grandparents] may receive.” Appellant’s App., Vol.
II at 87. This reads as though the trial court concluded Mother’s consent was
not required and considered the best interest of the child. In that event, the trial
court failed to make a factual finding regarding the best interest of the child as
required by Indiana Code section 31-19-11-1(a)(1).
[17] Regardless of which path the trial court chose, due to the court’s failure to make
complete findings regarding whether Mother’s consent to the adoption was
required and whether adoption was in the best interest of the child, we are
unable to discern whether the trial court dismissed Grandparents’ petition on
proper statutory considerations. Cf. In re Involuntary Termination of Parent-Child
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 11 of 12
Relationship of N.G., 61 N.E.3d 1263, 1266 (Ind. Ct. App. 2016) (remanding for
proper findings that supported the trial court’s judgment terminating parental
rights).
[18] Grandparents urge us to reverse with instructions that their adoption petition be
granted. We decline to do so as we are not convinced the evidence leads only
to that conclusion. See E.W., 20 N.E.3d at 894. We choose instead to remand
for findings that address the proper statutory considerations. On remand, the
court need not conduct another hearing but it must, however, reconsider its
findings based on evidence already in the record in light of this opinion. If the
court finds Mother’s consent is required, then it need not make findings
regarding the best interest of the child. Alternatively, if the court finds Mother’s
consent is not required, then the court must make factual findings regarding the
best interest of the child.
Conclusion
[19] For the reasons discussed above, we remand with instructions for the trial court
to enter proper findings of fact and conclusions of law regarding Grandparents’
petition for adoption.
[20] Remanded.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 10A01-1702-AD-262 | October 17, 2017 Page 12 of 12