L.G. and J.G., Appellant-Petitioner v. B.G., Appellee-Respondent (2024)

MEMORANDUM DECISION

Case Summary

[1] L.G. and J.G. (collectively, “Grandparents”) appeal the trial court's denial of their petition to adopt Lo.G. and Bo.G. (collectively, the “Children”). Grandparents raise one issue for our review, namely, whether the trial court clearly erred when it determined that the consent of B.G. (“Mother”) was required. We affirm.

Facts and Procedural History

[2] Mother has two children: Lo.G., born on January 19, 2014, and Bo.G., born on December 12, 2016.¹ Mother has a history of substance abuse, including the use of marijuana and methamphetamines. As a result of Mother's issues with substance abuse, she has a criminal history that dates back to 2018 and includes, among others, an offense in 2018 for domestic battery in the presence of a child and several offenses for possession of methamphetamine. Accordingly, Mother has been in and out of incarceration for several years. At some point, the Indiana Department of Child Services got involved, removed the Children from Mother's care, and ultimately placed them in the custody of Grandparents. On October 20, 2020, the court appointed Grandparents guardians of the Children.

[3] On June 16, 2023, Grandparents filed a petition to adopt the Children. In their petition, Grandparents asserted that the Children had been in their “physical care for the past two (2) years” and that Mother “has not provided any financial support” for the Children. Appellant's App. Vol. 2 at 16. Mother, pro se, filed a motion to contest the adoption and stated that “she has and is doing all that she can to communicate with her children, is a good mom, and adores her children.” Id. at 21.

[4] The trial court held a hearing on Grandparents’ petition on January 25, 2024. During the hearing, Mother acknowledged her criminal history and that, because of her most recent offenses, she had been incarcerated since November of 2021. But she also testified that her expected release date was in nineteen days. She also acknowledged that, as a result of her drug use and incarceration, she had not provided any financial support for the Children. Mother also testified that the last time she spoke with the Children was at Christmas in 2022. She testified that she “call[s] every single day” but that Grandparents “won't answer their phones.” Tr. at 13. And she testified that she sent the Children items, including “little letters,” “colored pictures,” and “handkerchiefs with their name[s] on them.” Id.

[5] L.G., the Children's grandmother, testified that Mother had not provided any financial support, that she had only had one five-minute phone call with the Children in December of 2022, and that she had recently sent Lo.G. a text message on her birthday. However, she admitted that she had received calls from Mother that she “refused” to answer. Id. at 36. She then testified that adoption was in the Children's best interests because Grandparents provided the Children with “anything they want or anything they need.” Id. at 41.

[6] Following a hearing, the court found that Grandparents had “failed to meet their burden of establishing by clear and convincing evidence that Mother is unfit, nor that she has abandoned the children.” Appellant's App. Vol. 2 at 8. In particular, the court found that the “evidence was conflicting on the Mother's attempts to maintain substantial meaningful contact with the children despite struggles with addiction and her resulting incarceration.” Id. at 8-9. The court continued:

While certainly the Court is cognizant of the seriousness of Mother's past usage of drugs and at times, the elevation of that addiction over the needs of the children, such is certainly the nature of addiction. Additionally, by their own admissions, multiple efforts by Mother to communicate with the children were thwarted by [Grandparents]. The [Grandparents] have guardianship of the children and will likely for the foreseeable future. The best interests of the children are presently unaffected by the Court's finding herein. In short, nothing substantial changes for the children at this time.

Id. at 9. As such, the “Court cannot find by clear and convincing evidence that the best interests of the child sought to be adopted would be served if the court dispensed with the Mother's consent” and, in effect, denied Grandparent's petition to adopt the Children. Id. This appeal ensued.

Discussion and Decision

[7] Grandparents appeal the trial court's order concluding that Mother's consent to the adoption was required. Initially, we note that Mother has not filed an appellee's brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations omitted).

[8] Grandparents contend that the trial court clearly erred when it determined that Mother's consent to the adoption was required. “We generally show considerable deference to the trial court's decision in family law matters because 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.” J.B. v. V.B. (In re Adoption of I.B.), 163 N.E.3d 270, 274 (Ind. 2021) (quotation marks omitted). In addition, because Grandparents carried the burden of proof at the adoption hearing, they appeal from a negative judgment. See J.P. v. M.D. (In re Adoption of S.P.), 172 N.E.3d 344, 351 (Ind. Ct. App. 2021). “We will reverse a negative judgment only if the decision of the trial court is contrary to law.” Id. Ordinarily, “[i]n determining whether a negative judgment is contrary to law, we neither reweigh evidence nor judge witness credibility” and “consider only the evidence most favorable to the prevailing party together with all reasonable inferences flowing therefrom.” Id.

[9] Further, our Supreme Court has held that “[a] natural parent enjoys special protection in any adoption proceeding,” and we “strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship.” I.B., 163 N.E.3d at 274. In general, “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 ․” Ind. Code § 31-19-9-1(a)(2). “[U]nder carefully enumerated circumstances,” however, the adoption statutes allow “the trial court to dispense with parental consent and allow adoption of the child.” I.B., 163 N.E.3d at 274.

[10] As relevant here, Indiana Code Section 31-19-9-8 provides:

(a) Consent to adoption, which may be required under section 1 of this chapter, 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.

* * * *

(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.

[11] “If a petition for adoption alleges that a natural parent's consent is unnecessary under these circumstances, and the natural parent contests the adoption, the petitioner carries the burden of proving that the natural parent's consent is unnecessary.” I.B., 163 N.E.3d at 274 (citing I.C. § 31-19-10-1.2(a)). “The party bearing this burden must prove his or her case by clear and convincing evidence.” Id. “Indiana Code section 31-19-9-8(a) is written in the disjunctive, so each of the sub-sections provides an independent ground for dispensing with consent.” Id. at 275.

[12] On appeal, Grandparents contend that the trial court erred when it determined that Mother's consent was required because Mother “clearly abandoned” the Children for more than six months and because Mother “failed to communicate significantly with” the Children. Appellant's Br. at 9. To support their argument, Grandparents rely on the fact that Mother was incarcerated and only had one phone conversation with the Children in December of 2022.

[13] There is no dispute that Mother has been incarcerated for a large part of Children's lives. And our analysis of whether a parent's contacts with their child are significant depends, in part, on whether that parent is incarcerated. See, e.g., D.R. v. M.M. (In re Adoption of K.H.), 151 N.E.3d 1259, 1267 (Ind. Ct. App. 2020). This Court has held that, while confinement alone does not “constitute justifiable reason for failing to maintain significant communication with one's child,” “[i]ncarceration ․ unquestionably alters the means for significant communication.” Id. “What constitutes insignificant communication with a free parent may be significant in relation to an incarcerated parent with limited access to his child.” Id.

[14] Here, Mother testified that she sent Children items, including letters, colored pictures, and personalized handkerchiefs. In addition, Mother testified that she attempted to call the Children “every single day” but that Grandparents would “never answer” their phones. Tr. at 13. Indeed, even L.O. acknowledged that she had received phone calls from Mother but that she “just refused to answer them.” Id. at 36. In other words, the evidence favorable to the trial court's judgment demonstrates that Mother attempted to maintain consistent communication with the Children but was denied that opportunity by Grandparents. Grandparents’ argument on appeal is simply a request that we reweigh the evidence and judge the credibility of witnesses, which we cannot do. Grandparents have not made a prima facie showing that the court erred when it concluded that Mother's consent is required.

[15] We acknowledge that Mother has an issue with substance abuse and that she will need to find housing and employment following her release. But, as the trial court found, Grandparents continue to have guardianship over the Children such that “nothing substantial” will change for the Children as a result of the trial court's order. Appellant's App. Vol. 2 at 9. It is reasonable to anticipate that Grandparents will continue to provide the Children with a stable and loving home while Mother is provided with an opportunity to improve herself following her incarceration.

Conclusion

[16] The trial court did not clearly err when it determined that Mother had not failed to significantly communicate with the Children. We therefore affirm the trial court's order finding that Mother's consent to the adoption is required.

[17] Affirmed.

FOOTNOTES

1.   The Children's father(s) is/are unknown.

Bailey, Judge.

Kenworthy, J., and Felix, J., concur.