Opinion
Court of Appeals Case No. 20A-AD-2156
05-20-2021
IN RE: The ADOPTION OF J.A.: T.M. Appellant-Respondent, v. A.J. and J.J., Appellees-Petitioners.
Attorney for Appellant: Roberta L. Renbarger, Fort Wayne, Indiana Attorney for Appellees: Thomas C. Allen, Fort Wayne, Indiana
Attorney for Appellant: Roberta L. Renbarger, Fort Wayne, Indiana
Attorney for Appellees: Thomas C. Allen, Fort Wayne, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
[1] J.A. ("Child") was born prematurely to T.M. ("Mother") on January 18, 2016. Due to a criminal neglect case involving one of Mother's other children, Child was determined to be a CHINS and was placed with A.J. and J.J. (collectively, "Adoptive Parents") upon release from the hospital following his birth. Child has lived with Adoptive Parents his entire life. On March 5, 2018, Adoptive Parents initiated adoption proceedings. The juvenile court granted Adoptive Parents’ adoption petition, determining that Mother's consent to the adoption was not required pursuant to Indiana Code section 31-19-9-10 and that adoption was in Child's best interests. Mother challenges these determinations on appeal. We affirm.
Mother was not married at the time of Child's birth. Paternity was subsequently established in Ji.A., who does not participate in this appeal.
Facts and Procedural History
[2] While Mother was pregnant with Child, the Department of Child Services ("DCS") became involved with Mother and her two children, Ja.M. and J.M., when J.M., who was born premature with special medical needs, was rushed to the hospital "because he was unresponsive[,] he had had a seizure[, and] his glucose level was at zero." Tr. Vol. II p. 37. Prior to J.M.’s hospitalization, Mother had failed to follow up with doctors to discuss and treat J.M.’s medical needs. J.M. was very ill at the time but survived. DCS initiated proceedings alleging that due to Mother's medical neglect of J.M., Ja.M. and J.M. were children in need of services ("CHINS").
At some point, the CHINS allegation was amended to include Child, and all three of the children were subsequently determined to be CHINS.
[3] Child was born prematurely on January 18, 2016. Born at approximately twenty-six weeks gestation, Child was considered to be a "severely premature baby" or "micro preemie." Tr. Vol. II p. 42. As a result of his premature birth, Child suffered from various medical ailments, including lung, breathing, swallowing, reflux, and regurgitation issues, some of which required corrective surgery. Child's condition eventually progressed to the point that he was released from the hospital. He was thereafter placed with Adoptive Parents.
[4] As a result of her failure to provide J.M. with the necessary medical care, on October 10, 2017, Mother was charged with Level 3 felony neglect of a dependent resulting in serious bodily injury. Mother pled guilty to this charge in February of 2018, and was sentenced to a nine-year sentence, with four years executed and five years suspended. On March 5, 2018, Adoptive Parents filed a petition to adopt Child. Mother was released from incarceration and placed on community release in a halfway house on June 17, 2019, but was reincarcerated at the end of January 2020, following a probation violation. Mother objected to the adoption petition on June 3, 2020.
[5] The juvenile court conducted an evidentiary hearing on August 7, 2020, during which it heard evidence relating to whether Mother's consent to the adoption was required and whether adoption was in Child's best interests. During this hearing, Adoptive Mother testified that Child continued to suffer from "chronic lung disease so from his prematurity his lungs will always be – have extra needs of um he also has a hard time with emotion regulation and he's doing occupational therapy to help with that and he's also in speech both of those are weekly." Tr. Vol. II p. 88. Adoptive Mother further testified that Child has "approximately 3 to 4 hours a week" of therapy or doctors’ appointments. Tr. Vol. II p. 88. Adoptive Mother, who does not work outside the family's home but has a background in elementary education and nursing, indicated that she believed adoption was in Child's best interests because
[Child] has only lived with us his entire life[,] he knows us as mom and dad ... we've been through a lot of his medical needs and we've all built a great attachment and bond with him and I think that's very important especially with his medical needs and from an emotionally [sic] and physical standpoints.
Tr. Vol. II p. 89. Likewise, Adoptive Father testified that
we are what [Child] knows[,] he loves us [and] we love him[,] he loves our biological children [and] our biological children love him[,] our family loves him ... he has become a part of our family um he has bonded with everyone in our family ... we've created that bond and you know he—he is our son[.]
Tr. Vol. II p. 93.
[6] Also during the evidentiary hearing, Child's counselor Abbie Grandlienard, Court Appointed Special Advocate ("CASA") Dr. Heloise Naconochie, and Guardian Ad Litem ("GAL") Beth Weber testified that adoption was in Child's best interests. Specifically, Grandlienard testified that Child suffered severe behavioral issues that became worse following visitations with Mother. Grandlienard opined that adoption was in Child's best interests because a continued relationship with Mother would cause him physical and mental strain that would further disrupt his development "in ways that are not beneficial to him." Tr. Vol. II p. 15.
[7] Dr. Naconochie testified that she had observed that Child had formed a strong attachment with Adoptive Parents and becomes "distressed when they're not with him." Tr. Vol. II p. 25. Dr. Naconochie also expressed concerns about whether Mother would be capable of providing Child with necessary care and medical treatment. In explaining why she believed adoption was in Child's best interests, Dr. Naconochie explained
I feel that it would be detrimental to [Child's] ah social emotional well-being to be placed with his mother[.] I feel that there is potential for further physical neglect and medical neglect if he would be to--if he was going to be placed with his mother[,] he has formed a very strong attachment to his foster parents ah he's been with them since when he was very young they're all he knows [and] he's striving under their care[,] he's doing well at school and I believe he would [be] best placed and adopted by the--the family[.]
Tr. Vol. II pp. 27–28.
[8] Like Dr. Naconochie, Weber testified that while she had no concerns about Adoptive Parents, she had concerns regarding whether Mother would provide Child with appropriate care and medical treatment. Weber explained that she believed adoption was in Child's best interests because
[Adoptive Parents] have been the parents to this child this child's entire life[,] he knows no one else in that role[,] he wasn't taken care of by anyone else in that role[,] they have provided for him nurtured him and are bonded with him and to disrupt that after it's even been more than three and a half years of them providing that care um and all of the medical treatments and taking care of him and the fact that with him being a preemie and being medically fragile the bond and the attachment is even stronger um it—it because of everything that this child needed being extreme and so to take that away would be terribly detrimental to this child and could set him up to put him at risk for many other kinds of risky things for his life including substance abuse and delinquency and all of those things that disrupted attachment shows[.]
Tr. Vol. II p. 46. At the end of the evidentiary hearing, the juvenile court took the matter under advisement and, on October 27, 2020, the juvenile court issued an order granting the adoption petition.
Discussion and Decision
[9] Mother contends that the juvenile court erred in finding that her consent to the adoption was not required and that the adoption was in Child's best interests.
Upon review [of] a trial court's ruling in an adoption case, 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 of law 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 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) (internal citations omitted).
A. Consent
[10] Generally speaking, "a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by ... [t]he mother of a child born out of wedlock and the father of a child whose paternity has been established" by a paternity affidavit or court proceedings. Ind. Code § 31-19-9-1(a)(2). However, the General Assembly has codified several exceptions to the consent requirement. In finding that Mother's consent to the adoption was not required, the juvenile court found that one of these statutory exceptions to the consent requirement applied.
[11] On appeal, Mother argues that the trial court erred in finding that her consent was not required pursuant to Indiana Code section 31-19-9-8. The juvenile court, however, did not make any findings in relation to Indiana Code section 31-19-9-8, but rather found that Mother's consent was not required pursuant to Indiana Code section 31-19-9-10, which provides, in relevant part, as follows:
Indiana Code section 31-19-9-8 provides as follows:
(a) Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
A court shall determine that consent to adoption is not required from a parent if:
(1) the parent is convicted of and incarcerated at the time of the filing of a petition for adoption for:
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(H) neglect of a dependent ( IC 35-46-1-4 ) as a:
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(ii) Level 1 or Level 3 felony, for a crime committed after June 30, 2014;
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(2) the child or the child's sibling, half-blood sibling, or step-sibling of the parent's current marriage is the victim of the offense; and
(3) after notice to the parent and a hearing, the court determines that dispensing with the parent's consent to adoption is in the child's best interests.
[12] Mother does not make any argument regarding the propriety of the juvenile court's determination that her consent was not required pursuant to Indiana Code section 31-19-9-10. " ‘[A]ny argument an appellant fails to raise in [her] initial brief is waived for appeal.’ " Briesacher v. Specialized Restoration & Const., Inc. , 888 N.E.2d 188, 196 (Ind. Ct. App. 2008) (quoting Kelly v. Levandoski , 825 N.E.2d 850, 858 n.2 (Ind. Ct. App. 2005) ). Thus, because Mother failed to make any argument in her appellate brief relating to whether the juvenile court correctly determined that her consent was not required pursuant to Indiana Code section 31-19-9-10, any challenge to the juvenile court's determination is waived.
B. Child's Best Interests
[13] [T]he primary concern in every adoption proceeding is the best interest of the child. The State has a strong interest in providing stable homes for children. To this end, early, permanent placement of children with adoptive families furthers the interests of both the child and the State. An adoption enables a child to be raised in a stable, supportive, and nurturing environment and precludes the possibility of state wardship.
In re Adoption of J.B.S. , 843 N.E.2d 975, 977 (Ind. Ct. App. 2006) (internal citations omitted).
[14] With regard to Child's best interests, the juvenile court found as follows:
8. The Court finds that Mother was convicted of Neglect of a Dependent pursuant to I.C. 35-46-1-4(a)(3) /F3: Neglect of a Dependent Resulting in Serious Injury but resulting in serious bodily injury. She was sentenced on February 16, 2018[,] to nine (9) years of incarceration with four years executed and five (5) years suspended with five (5) years of probation. The victim of this offense is [J.M.], the sibling of [Child.]
9. The Court finds through Mother's testimony that she was released from incarceration on June 17, 2019[,] but was later incarcerated again in February 2020 through May 2020 for a probation violation.
10. The Court having taken judicial notice of the juvenile Child in Need of Services proceedings in cause numbers 02D08-1612-JC-626/627/652 finds that [Child] and his siblings, [Ja.M.] and [J.M.] were adjudicated children in need of services on March 10, 2017[,] at which time a Dispositional Decree was issued continuing all three (3) children in licensed foster care. On this date, Mother was also placed under a plan for services.
11. The Court finds that [Child] has been placed in licensed foster care with [Adoptive Parents] since March 4, 2017. [Child] is currently three (3) years of age and in regular counseling related to behavioral and emotional issues.
12. The Court finds that [Child] has been provided a [CASA] and [a GAL] in the underlying juvenile proceedings who both [testified] that adoption is in the best interests of the child.
13. Mother acknowledges that after she was released in June 2017, she was reincarcerated in February 2020 through May 2020 for a probation violation as she did not comply with the terms of her release. Specially, Mother's violation was due to her having contact with children under the age of fourteen which was in violation of the terms of her probation. At the time of these proceedings, Mother was residing at a half-way house called the Redemption House after a prior eviction.
14. Owing to Mother's incarceration and compliance she has sporadically exercised supervised visitation with [Child] resulting in her visitation services being placed on hold at times due to noncompliance. The Court also finds that [Child] would regress at times in his behaviors after having contact with his Mother. Mother is currently on probation which prevents her from having unsupervised contact with any child under the age of fourteen (14).
15. During the course of the proceedings, Mother acknowledged that she is not currently able to provide care and supervision for [Child]. Mother further acknowledged that [Adoptive Parents] are capable and loving parents to [Child] and that she appreciates what they have done.
16. The Court finds that [Adoptive Parents] attend to [Child's] special needs that include ensuring th[at] he receives occupational and speech therapy. [Adoptive Parents] also ensure [Child] receives his medications and therapy. [Child's] special needs require that he has strict routine and stability in order for him to be able to regulate his emotions and behaviors. The Court also finds that although [Child's] siblings are placed in a separate home, [Adoptive Parents] ensure that the siblings have regular contact once per week.
Appellant's App. Vol. II pp. 9–10. Mother does not challenge any of these findings. "We accept unchallenged findings as true." Henderson v. Henderson , 139 N.E.3d 227, 232 (Ind. Ct. App. 2019).
[15] It is undisputed that Adoptive Parents have provided Child with a stable, nurturing environment. It is also undisputed that Child has a strong bond with Adoptive Parents and their three biological children. Adoptive Parents are able to provide for all of Child's needs, including his special medical and developmental needs. Child's counselor, CASA, and GAL all testified that adoption was in Child's best interests. We conclude that this evidence supports the juvenile court's conclusion that adoption is in Child's best interests. Mother's argument to the contrary effectively requests that we reweigh the evidence, which we will not do. See In re Adoption of S.W. , 979 N.E.2d at 639.
[16] The judgment of the juvenile court is affirmed.
Vaidik, J., and Brown, J., concur.
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(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.
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(b) If 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.