S.F., Appellant-Respondent v. E.T., Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] E.T. (Stepmother) filed a petition to adopt M.T. (Child), and S.F. (Mother) filed a motion to contest the adoption. The trial court denied Mother's motion, determining that her consent was not required. Mother appeals and asserts that the trial court's decision to dispense with her consent to the adoption was clearly erroneous.

[2] We affirm.

Facts & Procedural History

[3] Child was born on March 29, 2008, and T.T.’s (Father) paternity was judicially established under Cause No. 02D07-0812-JP-953. Mother was awarded sole legal and physical custody of Child and Father exercised parenting time in accordance with the parenting time guidelines. There were times, however, when Mother and Father lived together up until August 2015.

[4] On June 10, 2016, Father married Stepmother. Around this same time, Father sought modification of the custody arrangement for Child due to conflict with Mother. On July 11, 2016, following a contested hearing, the paternity court granted primary physical and sole legal custody to Father. Mother was granted parenting time pursuant to a customized schedule. Over the next four years, Mother's parenting time was reduced on several occasions due to, for example, Mother's boyfriend overdosing and dying in Mother's home and Mother's convictions for two misdemeanors, including public intoxication.

[5] On February 5, 2020, Father filed an emergency petition to terminate and/or restrict Mother's parenting time after Mother physically assaulted Father in front of Child. Mother pled guilty to domestic battery charges stemming from the incident and as a condition of her sentence/probation, the criminal court entered a no contact order prohibiting Mother from having any contact with Father. The no contact order did not “provide any exceptions that would allow the parties to communicate or have contact for purpose [sic] of coordinating or carrying out parenting time.” Exhibits at 41. The paternity court took judicial notice of the criminal proceedings and ordered that Mother's parenting time be temporarily suspended/abated while the no contact order was in effect. The court further ordered that “[e]ither party may petition the Court for review of this Order upon relevant modification or expiration of the No Contact Order.” Id. at 42.

[6] While the no contact order was pending, Mother reached out to Stepmother on one occasion but did not request to see Child. Stepmother did not respond to Mother's communication. The no contact order in the criminal case terminated on May 9, 2022. On May 12, 2022, Mother texted Father: “Good afternoon. Please tell [Child] I hope she has a great day at school and I love her.” Id. at 47. Father responded by texting Mother: “Until you file paperwork with the court there really isn't a reason to be communicating so please stop contacting me and my family.” Id. The following day, Mother again texted Father: “Good morning. Tell [Child] I love her. Have a good day.” Id. Father again asked her to leave him and his family alone. Mother then asked for Child's phone number, and Father refused to provide it. A few days later, Mother again texted Father: “Please tell [Child] her brothers n sister love her.” Id. at 48. Father responded: “Go down and file and maybe they can tell her.” Id. Mother then asked for Father's address but received no response.

[7] After the no contact order was terminated, Mother stated that she could not seek relief from the paternity court or pursue a contempt action against Father because she did not have Father's address. Mother has had no contact or communication of any kind with Child since February 2020, despite the fact that she would see Child at high school football games and at school.¹

[8] On May 9, 2023, Stepmother filed her petition to adopt Child, wherein she alleged that Mother's consent to the adoption was not needed because Mother: (1) had abandoned Child; (2) had failed to communicate significantly with Child; (3) had failed to provide for the care and support of Child when able to do so; and (4) was unfit. Both Father and Child consented to the adoption. On May 22, 2023, Mother filed a pro se motion contesting the adoption. The court found that Mother qualified for appointment of pauper counsel and counsel was appointed to represent her. On February 16, 2024, the court held a contested adoption hearing. On May 15, 2024, the court entered an order finding that Mother had abandoned Child and failed to communicate with Child and thus, her consent to the adoption was not required. On November 20, 2024, the court held a final hearing on Child's adoption and entered a Decree of Adoption of Child by Stepmother the same day.

[9] Mother now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[10] We begin by noting that Stepmother 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).

[11] Indiana law generally requires natural parents to consent to adoptions. In re Adoption of K.T., 172 N.E.3d 326, 336 (Ind. Ct. App. 2021), trans. denied; Ind. Code § 31-19-9-1. However, under certain circumstances enumerated in the adoption statutes, the trial court may dispense with parental consent and allow adoption of the child. In re Adoption of W.K., 163 N.E.3d 370, 374 (Ind. Ct. App. 2021), trans. denied; Ind.Code § 31-19-9-8. Two of those circumstances are implicated in this case, namely, (1) where the parent is adjudged to have abandoned or deserted the child for at least six months immediately preceding the date of the filing of the petition for adoption, and (2) where the parent has failed without justifiable cause to communicate significantly with the child when able to do so for a period of at least one year. I.C. § 31-19-9-8(a)(1), (2). The petitioner for adoption has the burden of proving by clear and convincing evidence that the parent's consent is not required. I.C. § 31-19-10-1.2(a); I.C. § 31-19-10-0.5; In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).

[12] Mother challenges the evidence supporting the trial court's determination that her consent to Child's adoption was not required. She challenges both the trial court's findings that she abandoned Child and that she failed to communicate significantly with Child. Because the circumstances under which a parent's consent may be dispensed with are written in the disjunctive, each one provides independent grounds for dispensing with parental consent. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012). We therefore need only find that the trial court properly determined that one of the two circumstances for dispensing with Mother's consent is supported by clear and convincing evidence. Here, we focus on the court's determination that Mother failed without justifiable cause to communicate significantly with Child when able to do so for a period of at least one year.

[13] 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 the opposite conclusion. M.L., 973 N.E.2d at 1222. 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.

[14] In challenging the court's failure to communicate determination, Mother asserts that Father interfered with her ability to communicate with Child. It is true that “[a] custodial parent's efforts to thwart communication between the noncustodial parent and her child are relevant to determining the non-custodial parent's ability to communicate and should be weighted in the non-custodial parent's favor.” E.W. v. J.W., 20 N.E.3d 889, 896-97 (Ind. Ct. App. 2014). In weighing such evidence, the court should consider the facts and circumstances of each case. See id.

[15] Here, Mother points to Father's responses to her May 2022 text messages without reference to the circumstances. Mother had no contact of any kind with Child since Mother's February 2020, assault on Father, which Child witnessed. As a result of the assault, Mother was prohibited from contacting Father, which in turn lead to a parenting time abatement order from the paternity court. Notably, Mother was not prohibited from contacting Child. However, between February 2020 and May 2022, Mother made no effort to communicate with Child in any fashion. Mother also did not seek modification of the no contact order or relief from the order suspending her parenting time with Child.

[16] After the no contact order was terminated, Mother texted Father on two separate days asking Father to share a message with Child. Mother did not request to speak with Child or visit Child. Father did, however, refuse to provide Mother with Child's phone number. In each of his responses, Father directed Mother to file something with the court, as the court's parenting time abatement order was still in effect. Aside from these brief communications with Father, Mother made no other attempt to communicate with Child, who was fourteen years old at the time.

[17] Mother claims that she did not take any legal steps toward reestablishing visitation or communication with Child because she did not have Father's address and Father refused to provide it to her. But the trial court found Mother not credible in this regard, noting that Father had lived in the same place for seven years and that his address was readily available in court documents that were part of the paternity proceedings. Further, the court noted that Mother had previously demonstrated her ability to pursue legal matters with the court, even without Father's address.

[18] Mother also notes our preference for parents handling matters in the best interests of children without court intervention and asserts that this is what she was attempting to do. Mother asserts that her text messages “can only be viewed as an attempt to make peace and work together for the betterment of their child.” Appellant's Brief at 17. The record, however, convinces us that this is not possible between Mother and Father. For years, their relationship has been defined by conflict, and court intervention proved necessary to settle disputes regarding all matters concerning Child. To think that after more than two years of no communication, which was occasioned by Mother's assault on Father in front of Child, the parties could amicably parent Child is assuming a bit too much. Indeed, even the paternity court in its order suspending Mother's parenting time invited the parties to petition the court for modification of its order. Mother did not pursue this avenue as she had done numerous times before when there was conflict between her and Father regarding Child.

[19] We also note that on several occasions, Mother was at Child's school and saw Child but made no attempt to speak with Child. Mother testified that she did not communicate with Child because she feared it would cause an incident or not be taken well by Father. The court, however, viewed Mother's failure to approach Child in these instances as further evidence of Mother's failure to communicate with Child; not as evidence of Father's efforts to thwart communication as urged by Mother. We will not second guess the court's finding in this regard.

[20] Finally, Mother also excuses her lack of communication with Child on her failing health, noting that at one point she was told she would not survive much longer. Mother testified that she was in and out of the hospital in 2020 and 2021 and eventually had a liver transplant in June of 2023. Again, the court found Mother's excuse not credible. It noted Facebook posts by Mother during this timeframe showing her at a splashpad with her other children and posts regarding her long work shifts as well as Mother's own testimony about working two jobs during 2022 and her plans to open a new business in 2023. In short, the court found Mother's many excuses for not communicating with Child in any significant way for the better part of three years to not be credible.

[21] Based on the foregoing, we hold that the trial court's order dispensing with Mother's consent for adoption of Child by Stepmother was not clearly erroneous.

[22] Affirmed.

FOOTNOTES

1.   Some of Mother's other children attend the same school as Child.

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.