Opinion
24A-AD-992
11-15-2024
J.W., Appellant-Respondent v. D.B., Appellee-Petitioner
ATTORNEY FOR APPELLANT Erik H. Carter Noblesville, Indiana ATTORNEY FOR APPELLEE Braden J. Dean Logansport, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Fulton Circuit Court The Honorable A. Christopher Lee, Judge Trial Court Cause No. 25C01-2304-AD-2
ATTORNEY FOR APPELLANT Erik H. Carter Noblesville, Indiana
ATTORNEY FOR APPELLEE Braden J. Dean Logansport, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] D.B. (Stepfather) filed a petition to adopt C.W. (Child), and J.W. (Father) filed a motion to contest the adoption. The trial court denied Father's motion, determining that his consent was not required because he was an unfit parent and adoption was in Child's best interests. Father appeals and asserts the trial court clearly erred when it dispensed with his consent to the adoption.
[¶2] We affirm.
Facts &Procedural History
[¶3] Father and S.B. (Mother) met in 2012, while each of them was an inpatient in substance abuse rehab. Upon release, they began living together, and Child was born in June 2013. He is their only child together. For about the next year and a half, the parties engaged in an on-again off-again relationship. In February 2014, paternity was established by affidavit, and shortly thereafter, the parties reached agreement on parenting time and child support. As for parenting time, for a period of six months, Father would have supervised visits with Child every other week, for certain hours on weekends, to occur in the county where Mother was residing; thereafter, Father would exercise that same schedule but as unsupervised. Father and Mother separated for a final time in early 2015.
[¶4] Mother met Stepfather in June 2015, and they began living together in March 2016, when Child was nearing three years old. Mother and Stepfather have lived together since that time, marrying in 2021. Mother and Stepfather had two children together, and Stepfather's older son also lived with them.
[¶5] In April 2015, Father was charged with Level 5 felony battery resulting in serious bodily injury (F6-71) to Father's best friend. An ensuing intervention and treatment report reflected mental health diagnoses, including bipolar disorder and chronic pain disorder. Father pled guilty in August 2015 and was sentenced to a term of 1,080 days of probation to be served on home detention.
[¶6] In early February 2016, Father was charged with Level 6 felony battery resulting in moderate bodily injury (F6-100), and the State filed a notice of probation violation in F6-71; the victim in F6-100 was Father's father, D.W. (Grandfather), and Child was present during the altercation. A few weeks later, Father admitted to the F6-71 probation violation and pled guilty in F6-100 with judgment being entered as a Class A misdemeanor. In June 2016, the court revoked probation in F6-71 and ordered Father to serve the 1,080 days in the Indiana Department of Correction (DOC) and, in F6-100, the court sentenced Father to twelve months of probation, consecutive to F6-71.
[¶7] In June 2018, Father wrote to the trial court about his October 2018 anticipated release date and expressed that the DOC had "changed" and "corrected" him and he intended to never return there. Exhibits Vol. at 17, 18. In his letter, Father acknowledged that he had lost credit time at the DOC due in part to his "own irresponsible choices" but also because the DOC system "is corrupt" and certain correctional officers and inmates made staying out of trouble "absolutely impossible." Id.
[¶8] After his release, Father exercised monthly or bi-monthly parenting time with Child, which was initially supervised by Father's mother (Grandmother) and transitioned to unsupervised for a short time. In May 2020, Father's girlfriend informed Mother about issues involving Father's current well-being, and Father's visits with Child returned to being supervised. In August 2021, Mother and Father agreed to a parenting time arrangement, with Father receiving phased-in parenting time in accordance with Indiana's Parenting Time Guidelines applicable when distance is a factor, as Mother and Father lived some hours apart. It was to be supervised by Grandmother, who had previously petitioned for and been granted grandparent visitation.
[¶9] About two months later, in October 2021, Father was charged with Class A misdemeanor resisting law enforcement (CM-1069). While that matter was pending and Father was out on bond, he was charged in May 2022 with Level 6 felony domestic battery resulting in moderate bodily injury (F6-366), in which Grandfather was again the victim. Father was held without bond in F6-366.
[¶10] In June 2022, Father pled guilty in CM-1069 and F6-366. The court sentenced him in CM-1069 to 360 days in the Gibson County Jail (Jail), suspended to probation, and to a consecutive 270 days in Jail in F6-366 with eligibility for work release.
[¶11] While on work release, Father was charged on August 3, 2022, with Level 6 felony failure to return to lawful detention (F6-618), and a warrant without bond was issued. Father was picked up the next day. On August 12, Grandmother wrote to the criminal court acknowledging that Father "made the bad choice to flee" from his work site on August 1, but sharing background with the court that on July 30, Father asked her to take him to a mental health hospital, which she was reluctant to do without court permission. Exhibit Vol. at 69. Grandmother stated in the letter that they tried to get Father an appointment with a Nurse Practitioner (NP) at Tulip Tree Health who had been treating him for several years for mental health issues, but Father could not be seen for several weeks.
[¶12] NP Erin Nester from Tulip Tree Health also wrote to the court, advising that Father had been under her care since March 2019 and had been receiving treatment for bipolar disorder, PTSD, panic disorder, and methamphetamine abuse and that she was "very concerned" about his mental health and safety. Id. at 77. She advised that she had been treating Father with several medications, which he was required to cease when he entered work release. NP Nester believed that not being given his medications led him to flee due to increased anxiety and panic attacks and requested that Father be allowed to go for acute inpatient treatment.
[¶13] In October 2022, Father pled guilty in F6-618, and the court sentenced him to 800 days at the DOC, consecutive to F6-366 and CM-1069. The court's sentencing order included a directive that "[a]s the Defendant has raised mental health concerns, the [DOC] is directed to address those concerns with the appropriate treatment." Appendix at 64, 66.
[¶14] On April 20, 2023, Stepfather filed a verified petition for adoption, alleging that Father's consent was not required under Ind. Code § 31-19-9-8 because, among other reasons, Father is unfit to be a parent. Mother consented, while Father filed a motion to contest the adoption. On March 1, 2024, the court held an evidentiary hearing, and Father, who had been released the previous day from the DOC to work release, appeared with counsel, as did Stepfather. Stepfather testified and called Mother as a witness; Father testified and called Grandmother as a witness.
[¶15] Mother explained that she initially sought supervised parenting time because Father sometimes over-used prescription drugs associated with mental health treatment, his behavior was at times "unpredictable," and she saw him possess a baggie of heroin. Transcript at 13. She testified about Father's repeated encounters with the law over the years, which resulted in stints in Jail and the DOC. As to Father's first domestic battery against Grandfather, charged in February 2016, Mother testified that Child was not only present but "participated" in the altercation. Id. at 22. She discussed that, after his first DOC incarceration, Father was exercising some visits with Child from 2018 through 2020, but it became more infrequent with the additional criminal charges and incarcerations, and by May 2022 and thereafter Father was exercising no parenting time. Id. at 19. Based on what Child was expressing to her about Father, Mother placed Child in therapy from early 2021 to late 2023 "to make sure [] he understood the things that he was feeling." Id. at 26.
[¶16] Mother stated that, in total, Father had attended one extracurricular event, a soccer game when Child was around three years old. Mother testified that Father "hasn't been a father" to Child over the years, while Stepfather has, and "at this point [Father] is a stranger" to Child. Id. at 29, 35. Mother testified that Father was unfit due to his criminal activity and believed that if Father were to be "reintroduced" into Child's life, it would have adverse effects on Child's well being. Id. at 28. She opined that it was in Child's best interest for the adoption to proceed without Father's consent.
[¶17] Stepfather testified to being part of Child's day-to-day life and upbringing since 2016 and that he had attended Child's parent/teacher conferences, his sporting events, frequently transported him to and from school, and handled many doctor's appointments. Stepfather described that Father was "in and out of [Child]'s life so much" and was present "less and less" as the years went on, and not only because of being incarcerated. Id. at 53. As for Father's use of drugs, Stepfather said that, sometime after Father was released from incarceration the first time, they learned from Father's girlfriend that he was struggling with "drug use" and that, on one occasion, Father had admitted to Stepfather "to using psychedelic drugs." Id. at 54, 55. Stepfather had concerns about Child's physical health if Father were to resume having contact with Child, because, given the number and type of criminal charges, Father had shown himself to be a violent person. Stepfather testified that, while he and Mother had considered the idea of stepparent adoption for "multiple years," they waited to file because they did not want Child to be upset or angry about it, but Stepfather was now "100 percent sure this is what [Child] wants." Id. at 58.
[¶18] In his testimony, Father maintained that he and Child were bonded and that adoption was not in Child's best interests. He acknowledged the various criminal offenses but attributed some of those to his struggles with mental health, maintaining that he did obtain treatment over the years. Father indicated that his "mental health problems" began when he was "incarcerated the first time" but clarified, "I've always been bipolar, but I don't consider that a mental health problem." Id. at 92. He testified that he was "supposed to" be taking medication for his bipolar disorder but was not because the DOC would not allow the type of prescription medicine that his doctors were recommending. Id. at 76. When he was asked if he was "clean from any substances," Father admitted that he would test positive for marijuana, having consumed it recently while in DOC custody. Id.
[¶19] As to the two battery offenses involving Grandfather, Father pointed to their tumultuous relationship, describing Grandfather as an alcoholic and physically abusive and indicating one battery occurred because he responded when Grandfather shoved him. Father agreed that Child was present for the first altercation with Grandfather but denied that Child was involved or participated. As to the battery of his best friend, Father explained, "I got into it with him and I punched him in the face one time. So I don't know how that was battering him." Id. at 99. Father acknowledged "a lot" of conduct incidents during his first stay in the DOC mostly for fighting with inmates, "many times" to defend himself. Id. at 103-04. As to the resisting law enforcement offense, to which he pled guilty, Father disagreed that he resisted law enforcement as police "didn't have to" remove him from his car but "chose to." Id. at 111. Father said that he was always employed when not incarcerated and was current on his child support obligation.
[¶20] Grandmother, a nurse, testified that Father's mental health issues did not affect his ability to parent Child but agreed that Father needs mental health help, which he had not been receiving in the DOC. Grandmother offered that, if Father were allowed parenting time, she would transport or supervise as needed and opined that adoption was not in Child's best interests.
[¶21] On March 26, 2024, the court entered findings of fact and conclusions of law determining that Father's consent to the adoption was not required. The court found that Stepfather had been an active father figure for more than eight years and that Father had never been involved in Child's schooling, extracurriculars, or medical care. It found that Father exhibited instability with employment and housing. The court also outlined Father's various criminal charges, finding that Father "has been under legal supervision or incarcerated for at least half of [Child]'s life" and that Child "was present and physically involved" in the first battery charge involving Grandfather. Appendix at 12, 17. The court also found and concluded in part:
Findings of Fact
53. [Father] further avoided taking accountability for his criminal actions, drug use, and mental health....
54. [Father] relies on the support of . . .Grandmother, in all aspects of his life....
Conclusions of Law
62. The term "unfit" as used in Indiana Code Section 31-19-9-8(a)(11) is not statutorily defined, but the Appellate Court has defined 'unfit' as "'[u]nsuitable; not adapted or qualified for a particular use or service' or '[m]orally unqualified; incompetent.'" . . .
64. A parent's criminal history is relevant to whether the parent is "unfit" under Indiana Code Section 31-19-9-8(a)(11)....
66. [Father] is an "unfit" parent. 67. [Father] has a substantial history of substance abuse, to wit: ...
b. [Father] testified that he had abused prescription pills, cocaine, methamphetamine, psychedelics, and marijuana.
c. [He] was under the care of a therapist for methamphetamine abuse disorder.
d. [He] attributes the majority of his criminal activity to drugs and mental health problems. ...
g. [He] further testified that he had smoked marijuana while in prison and would be unable to pass a drug screen for marijuana at the hearing on consent.
68. [Father] has a history of mental health issues, to wit:
a. Since March 12, 2019, [he] was under the care of [NP] Erin Nester from Tulip Tree Health for treatment of Bipolar Disorder, Posttraumatic Stress Disorder, Panic Disorder.
b. [Father] was placed under suicide prevention at the Gibson County Jail in October of 2022.
c. At the hearing, [Father] minimized his mental health problems and was not taking any medication. [He] stated that he intends to seek treatment upon his release from work release and to address his diagnosis with proper medication.
69. [Father] has a history of violence against friends [and] family, and the [] Child witnessed the same, to wit:
...
c. While in the [DOC], [Father] regularly fought with the other inmates.
e . In 2022, [Father] was convicted of Domestic Battery Resulting in Moderate Bodily Injury where he again battered . . . [G]randfather.
f. [Father] was again sent to the [DOC] in 2022, where his behavior was so poor he was transferred to a higher security prison.
g. At the hearing, [Father] downplayed his role in these incidents and alleged he was acting in self-defense.
70. [Father] shows a lack of insight, to wit: a. [He] does not take responsibility for his criminal actions ...
b. [He] does not take responsibility for his drug use, denying he has a substance abuse problem . . . while testifying he would be unable to pass a drug screen in court. ...
72. This Court will not wait until [Child] is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship. [Child] deserves permanency, which [Father] cannot provide based on his history as set forth herein. Unfortunately, [Father] is likely to resume the same pattern keeping him from [] parenting [Child] - substance abuse (he is already using marijuana by his admission),
untreated/undertreated mental health issues, and involvement in the criminal justice system.Id. at 17-22. The court concluded that Stepfather had proven by clear and convincing evidence that Father was unfit to be a parent and that the best interests of Child would be served if the court dispensed with Father's consent.
[¶22] Father now appeals. Additional facts will be provided as needed.
Discussion &Decision
[¶23] At the outset, we note that Stepfather did not file an appellee's brief. When an appellee fails to submit a brief, we need not undertake the burden of developing an argument for the appellee. J.H. v. S.S., 93 N.E.3d 1137, 1140 (Ind.Ct.App. 2018). Applying a less stringent standard of review, we may reverse the trial court if the appellant can establish prima facie error. Id. "Prima facie error in this context means 'at first sight, on first appearance, or on the face of it.'" Id. We are obligated, however, to correctly apply the law to the facts in the record in order to determine whether reversal is required. Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014).
[¶24] Father argues that the trial court erred in finding that his consent to the adoption was not required. We generally give considerable deference to the trial court's decision in family law matters, as 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. K.H. v. M.M., 151 N.E.3d 1259, 1265 (Ind.Ct.App. 2020), trans. denied. 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. In re Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quotations omitted). We will not disturb the court's decision unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind.Ct.App. 2012). We do not reweigh the evidence on appeal, but instead examine the evidence most favorable to the trial court's decision together with reasonable inferences drawn therefrom, to determine whether sufficient evidence exists to sustain the decision. Id.
[¶25] Indiana law generally requires natural parents to consent to adoptions. Ind. Code § 31-19-9-1; In re Adoption of K.T., 172 N.E.3d 326, 336 (Ind.Ct.App. 2021), trans. denied. However, a natural parent's consent is not required if the petitioner proves by clear and convincing evidence that, as relevant here, "the parent is unfit to be a parent" and "the best interests of the child . . . would be served if the court dispensed with the parent's consent." I.C. § 31-19-9-8(a)(11).
[¶26] I.C. § 31-19-9-8 does not provide a definition of "unfit." We have recognized that Black's Law Dictionary defines it as "[u]nsuitable; not adapted or qualified for a particular use or service" or "[m]orally unqualified; incompetent." In re M.L., 973 N.E.2d at 1223 (citing BLACK'S LAW DICTIONARY 1564 (8th ed. 2004)). We have also observed that termination of parental rights cases provide useful guidance as to what makes a parent "unfit." J.H., 93 N.E.3d at 1141. In those cases, we consider factors such as a parent's substance abuse, mental health, willingness to follow recommended treatment, lack of insight, and instability in housing and employment. Id. A parent's criminal history is also relevant to whether a parent is unfit. Id.
[¶27] Most, if not all, of these factors are present in this case. The evidence most favorable to the judgment is that Father has a history of both mental health and substance abuse issues. It appears his mental health issues sometimes went untreated and, according to Father, contributed to his criminal offenses. Although Father testified that he was not permitted to take prescribed medications while in DOC custody, there was no testimony about any DOC substance abuse programs he sought out or completed. He also indicated that he did not view his bipolar diagnosis as a mental health issue. By his own admission, Father at times had over-used his prescription medication(s). He acknowledged that, over the years, he engaged in abuse of various drugs - bath salts, methamphetamine, psychedelics, and marijuana - and admitted that he had recently used marijuana while in the DOC. The court found that Father lacked insight into his substance abuse and mental health issues, and the evidence supports that determination.
[¶28] The evidence likewise supports the court's determination that Father failed to take responsibility for his criminal actions. Father was convicted of battering his father twice, once undisputably in Child's presence, with the trial court believing Mother that Child had participated in that incident. Father's explanation as to the first altercation was that Grandfather "came at me first[.]" Transcript at 75. He also battered his best friend, although Father did not perceive punching him in the face as battering. Although he pled guilty to resisting law enforcement, he suggested the police did not have to, but chose to, remove him from his vehicle. He engaged in fights during at least his first DOC incarceration but attributed that to self-defense or a corrupt system. Almost all parenting time that Father did exercise with Child was supervised, and it became less frequent with the recurring detentions and incarcerations, until eventually not occurring at all since May 2022 when he was jailed for the second incident with Grandfather and thereafter fled work release. As we have observed, "It is well-settled that '[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.'" In re Adoption of H.N.P.G., 878 N.E.2d 900, 907 (Ind.Ct.App. 2008) (quoting Castro v. State Ofc. of Fam. &Child., 842 N.E.2d 367, 374 (Ind.Ct.App. 2006), trans. denied), trans. denied.
[¶29] As to employment, Father maintained that he was always employed when not incarcerated. However, Father was incarcerated, jailed, or on home detention or work release for a substantial amount of time, and when he was not, he had eight different jobs. In other words, his employment was unstable. As to housing, Father for a time lived in a relative's rent-to-own residence, but he lost that residence, as well as the funds he had paid, due to incarceration. He lived with Grandmother while on home detention, and she transported him to his work release jobs.
[¶30] Father acknowledges that the court made detailed findings regarding his criminal and incarceration history, drug use, and mental health issues, but suggests that "the court did not tie these specifically to the child who is the focus of the adoption proceedings" and, rather, "seems to have made a [] determination that Father is unfit to parent any child." Appellant's Brief at 19 (italics in original). Therefore, he claims, there is no evidence that Father "is unfit as a parent to this child." Id. This argument is, at best, perplexing. Mother and Father had one child together - Child - and he is identified in the court's order by name and date of birth. Clearly the court's fourteen pages of findings and conclusions, addressing whether consent was required for adoption and concluding that Father was unfit, concerned his fitness as to Child.
[¶31] In the end, Father's arguments challenging the court's fitness determination essentially ask us to reweigh the evidence, which is not our role on appeal. On the record before us, we cannot say that the court's determination that Father was not a fit parent was clearly erroneous. See J.H., 93 N.E.3d at 1141 (finding court's decision that natural mother was unfit and her consent was not required for grandparent adoption was not clearly erroneous where the mother had a history of mental health and substance abuse issues, had not seen child in two years, had not had unsupervised visitation in six years, had several alcohol- related offenses during child's life, had nine probation violations in the last year, and took hydrocodone not prescribed to her days before the hearing).
At one point in his brief, Father suggests that the trial court "made no finding that not requiring Father's consent was in the best interest of the child." Appellant's Brief at 15. However, in Conclusion No. 73, the trial court stated: "The Petitioner has shown by clear and convincing evidence that the statutory requirements of Indiana Code § 31-19-9-8(a)(11)(A) and (B) have been met." Appendix at 22. Subsection (B) pertains to when "the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent." Thus, the trial court did, in fact, make a best interest finding.
[¶32] Judgment affirmed.
Vaidik, J. and Crone, Sr. J., concur.