R.S., Appellant-Respondent v. A.O., et al., Appellees-Petitioners (2025)

MEMORANDUM DECISION

[1] R.S. appeals the Lake Superior Court's order granting the petitions of J.O. and A.O. (“the Adoptive Parents”) to adopt his minor children. R.S. raises four issues, which we restate as the following three:

1. Whether the trial court's conclusion that R.S.’s consent to the petitions to adopt the children was not required is supported by clear and convincing evidence;

2. Whether the trial court erred when it failed to give preference for the children's placement to maternal grandmother; and,

3. Whether the adoption decree is voidable because R.S. did not receive notice of the final adoption hearing.

[2] We affirm.

Facts and Procedural History

[3] R.S. appeals the Lake Superior Court's order granting Adoptive Parents’ petitions to adopt his children: K.S., born on August 19, 2016, and G.T., born on May 15, 2019. The children were placed in Adoptive Parents’ care during Child in Need of Services proceedings (“CHINS”) that the Department of Child Services (“DCS”) had initiated in October 2020.

[4] Specifically, when DCS filed petitions alleging the children were CHINS, the children were removed from the care of R.S. and their biological mother.¹ The children were in poor physical health, and four-year-old K.S. was nonverbal. R.S. had substance abuse issues, unstable housing and employment, and had been arrested on a warrant. R.S. participated in services, including substance abuse counseling, therapy, and supervised visitation with the children. However, his employment and housing continued to lack stability. He was also ordered to submit to random drug screening, but R.S. rarely underwent drug screening. And two of the screens he completed were positive for cocaine and THC.

[5] The children's first foster placement ended because of K.S.’s disruptive behaviors. To keep the children in the same home, both children were placed in foster care with Adoptive Parents in May 2022. DCS referred K.S. to individual therapy, and Adoptive Parents placed K.S. in speech therapy. K.S.’s behavior and speech improved significantly after she was placed with Adoptive Parents.

[6] Shortly after the children were placed with Adoptive Parents, R.S. began to make threats against service providers and the family case manager. His supervised visitation with the children also became inconsistent. K.S. reported that she felt unsafe during the visits with R.S. and asked for visitation to stop. The visitation supervisor expressed that R.S. demonstrated “poor insight into the Children's needs and development, limited engagement and bonding, and an absence of structure and implementation of parenting skills.” Appellant's App. Vol. 3, p. 161. Service providers expressed concern about R.S.’s inability to regulate his emotions and his poor anger control.

[7] DCS filed a petition to terminate R.S.’s parental rights to the children in September 2022. The trial court suspended R.S.’s visitation with K.S. on April 20, 2023, as recommended by K.S.’s therapist because of the “impairment of her mental/emotional health.” Id. R.S. participated in court-ordered individual therapy but he failed to “utilize therapeutic skills, techniques, and/or coping mechanisms, which prohibited [R.S.] from understanding his role in previous traumas experienced by the Children.” Id. Also, R.S.’s supervised visitation with G.T. continued to be inconsistent, which frustrated and confused G.T.

[8] The consistency of R.S.’s visits with G.T. improved after the court ordered R.S. to participate in therapeutic, supervised visitation. R.S.’s interaction with G.T. “did not raise any significant concerns,” but G.T.’s behavior both before and after the visitations noticeably changed. Id. at 162. G.T. cried before the visits and had to be persuaded to attend the visits with R.S. After the visitations, G.T. isolated himself. G.T.’s behaviors intensified to the point where G.T. would run from the therapist, scream in fear, and physically prevent persons from directing him to the vehicle transporting him to visitations. Id. G.T. began to “adamantly” state that he did not want to visit with R.S. Id. Eventually, five-year-old G.T. refused to visit with R.S., and visitation between them ceased. Id. R.S.’s therapist recommended discontinuing therapy because R.S. was unable to understand the children's trauma experiences and “implement therapeutic considerations to prevent further exacerbation of their mental health.” Id. at 163.

[9] After Adoptive Parents expressed their willingness to adopt the children, DCS informed them that it would consent to the adoption. Adoptive Parents filed their petitions to adopt the children on January 15, 2024. R.S. never filed a written objection to the petitions for adoption. Therefore, Adoptive Parents argued to the trial court that R.S.’s consent to the adoption was irrevocably implied. Despite the clear language of the applicable statute, the trial court disagreed because of R.S.’s active participation in the CHINS and termination of parental rights proceedings.

[10] The court then held a hearing to determine whether R.S.’s consent to the adoption was required. On November 20, the court concluded that R.S. “is unfit to continue in his role as a parent to the Children” and “it is in the best interests of both Children to dispense with the necessity of [R.S.’s] consent to the petitions for adoption.” Id. at 166. Concerning the “best interests” of the children, the court found and concluded that:

The Children have been residing in the [Adoptive Parents’] home for approximately two and a half years. During that time, the Children have come to develop significant relationships with the members of the household. The quality of care and the level of affection demonstrated by the [Adoptive Parents] has led the Children to identify them as their “parents.” Moreover, the Children have openly and consistently reported a desire to be adopted by the [Adoptive Parents], thereby becoming members of the family. Beyond the subjective nature of the Children's desires, there is substantial objective evidence that the Children will continue to thrive and develop with continued care and support from the [Adoptive Parents]. Specifically, the Children have overcome diagnosed developmental delays, drastically improving speech and communication skills, exceeding educational milestones and/or benchmarks, and utilizing therapeutic modalities to better process and manage their trauma experiences. It is undisputed that the [Adoptive Parents] have both sufficient means and access to resources which will foster further development within the Children. To the contrary, the Children do not have a substantive bond with [R.S.] and the quality of the parent-child relationship has deteriorated as the CHINS case progressed. Also, [R.S.] remains unable to establish a stable home environment and/or maintain sufficient resources in order to discharge his parental obligations and provide necessary care and treatment for the Children.

Id.

[11] The final adoption hearing was held on January 7, 2025. R.S. did not appear at the hearing, but his counsel appeared on his behalf. Thereafter, the trial court issued its order granting the Adoptive Parents’ petitions to adopt the children. R.S. now appeals.

R.S.’s Failure to File a Written Objection to the Adoption Petitions.

[12] R.S. appeared and participated in the CHINS and termination of parental rights proceedings that led to the children's placement in Adoptive Parents’ home. However, R.S. failed to file a motion to contest the adoption petitions as allowed by Indiana Code section 31-19-9-18. A person's consent to the adoption petition is irrevocably implied when the person fails to file a motion to contest the adoption. I.C. § 31-19-9-18(b). And “[a] person whose consent to adoption is irrevocably implied under section 18 ․ may not contest the adoption or the validity of the person's implied consent to the adoption.” I.C. § 31-19-9-19.

[13] The Adoptive Parents raised this issue to the trial court and argued that R.S.’s consent to the adoption was irrevocably implied. They directed the trial court's attention to In Re K.M., 31 N.E.3d 533 (Ind. Ct. App. 2015). In that case, the biological mother failed to file a motion contesting the stepmother's petition for adoption within thirty days of being served with notice of the petition. Therefore, the trial court concluded that her consent to the adoption was irrevocably implied and she could not contest the adoption petition. Id. at 535-36. Mother appealed, and our court held that, because Indiana Code section 31-19-9-19 is a nonclaim statute,² the biological mother was “not entitled to equitable deviation from the thirty-day time limit and courts are not permitted to utilize equity to rectify an injustice even if warranted by the situation.” Id. at 538-39.

[14] Here, the trial court considered Adoptive Parents’ argument but informed the parties that the court did not want to effectively terminate R.S.’s parental rights on a technicality because, “from an equitable standpoint, this Court know[s] what his position is and he's been participating and making himself available with whatever services [DCS] was trying to offer him ․” Tr. Vol. 2, pp. 5-6. In their brief, Adoptive Parents only raise this argument in response to R.S.’s claim that the adoption decree is voidable because he did not receive adequate notice of the final hearing. Therefore, we address the merits of R.S.’s challenge to the trial court's finding that he was unfit to parent the children, and that his consent to the adoption was not required.

R.S.’s Consent to the Adoption Was Not Required.

[15] R.S. contends that the trial court erred when it concluded that his consent to the adoption was not required. As our Supreme Court has stated:

In family law matters, we generally give considerable deference to the trial court's decision 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. Accordingly, 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.

The trial court's findings and judgment will be set aside only if they are clearly erroneous. A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. We will not reweigh evidence or assess the credibility of witnesses. Rather, we examine the evidence in the light most favorable to the trial court's decision.

J.W. v. D.F. (In re Adoption of E.B.F.), 93 N.E.3d 759, 762 (Ind. 2018) (quotation marks and citations omitted).

[16] Indiana law generally requires natural parents to consent to adoptions. Ind. Code § 31-19-9-1. However, a natural parent's consent to an adoption is not required if the trial court finds by clear and convincing evidence that “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). As we have explained:

While the term “unfit” as used in Ind. Code § 31-19-9-8(a)(11) is not statutorily defined, this court has defined “unfit” as “[u]nsuitable; not adapted or qualified for a particular use or service” or “[m]orally unqualified; incompetent.” We have also noted that statutes concerning the termination of parental rights and adoption “strike a similar balance between the parent's rights and the child's best interests” and thus termination cases provide useful guidance in determining whether a parent is unfit. Termination cases have considered factors such as a parent's substance abuse, mental health, willingness to follow recommended treatment, lack of insight, instability in housing and employment, and ability to care for a child's special needs. Also, this Court has consistently held in the termination context that it need not wait until children are irreversibly harmed such that their physical, mental, and social development are permanently impaired before terminating the parent-child relationship. It is well-settled that individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.

Mendez v. Weaver (In re Adoption of D.M.), 82 N.E.3d 354, 358-59 (Ind. Ct. App. 2017) (citations omitted).

[17] In support of his argument that the trial court erred when it concluded that he is unfit to parent the children, R.S. relies on the evidence that he has housing, is employed, and participated in court-ordered services during the CHINS and termination proceedings, including substance abuse assessments, therapy, and supervised visitation with the children. Appellant's Br. at 16. However, the trial court found that R.S. did not benefit from those services, and, as a result, his relationship with the children deteriorated as the CHINS and termination proceedings progressed.

[18] Specifically, the court acknowledged R.S.’s participation in services but concluded that R.S. had “made little to no progress remedying the issues which led to the Children's removal from his care.” Appellant's App. Vol. 3, p. 164.

[S]everal child welfare issues ․ were identified at the inception of the CHINS, including substance abuse, unstable housing and employment, and general neglectful care of the Children. The Children were initially observed to be in poor physical health/condition, and [K.S.] was observed to have significant developmental delays, which did not appear to be related to any underlying diagnosis. Despite [R.S.] ‘taking up residence’ in a number of different locations, he has been unable to secure and maintain a stable home setting wherein the Children could [be] returned to his care. Currently, [R.S.] claims to have a rental home in East Chicago, Indiana; however, his testimony only served to create uncertainty as to where he truly resides. [R.S.] reports being a resident of Illinois, despite the currently suspended driver's license which was issued by the State of Indiana․ Additionally, the current DCS family case manager has reported that, notwithstanding [R.S.] renting a property in East Chicago (IN), he is not actively staying at that location․ Continuing with concerns related to [R.S.’s] instability, is the history of inconsistent employment. During his testimony, [R.S.] was able to offer little to no information and/or detail about his various positions of employment, including reasons for leaving or discharge. It was not until early in 2024 that [R.S.] secured employment which he was able to maintain for more than a nominal period of time. However, there was also no information provided to establish either the work hours or salary which [R.S.] receives via his current employer․ The issue of [R.S.’s] instability remains unresolved, as there has been no evidence to support any likelihood of securing and maintaining the necessary resources to resume his role as the primary caregiver for the Children.

Id. at 164-65. The court also found that R.S. had not complied with court-ordered weekly random drug screens. R.S. was not able “to establish himself as a sober caregiver,” which casts “further doubt upon his ability to correct the circumstances that led to the Children's removal.” Id. at 165.

[19] Finally, the court issued extensive findings and conclusions concerning the trauma the children experienced before they were removed from R.S.’s care, how that trauma impacted their mental and emotional health, and R.S.’s lack of insight into the children's trauma. Even though he participated in individual therapy and therapeutic visitation, R.S. did not benefit from those services, and his bond with the children deteriorated to the point that visitation with both children was suspended. Id. at 165-66. Ultimately, the court concluded that “contact with [R.S.] has directly impaired the mental and emotional health of the Children. Throughout the four years of DCS services, [R.S.] has demonstrated a lack of insight into the Children's needs and development and an inability to implement/utilize recommended therapeutic tools into his visits with the Children.” Id. at 166.

[20] The court's conclusion that R.S. is unfit to parent the children is supported by clear and convincing evidence. And R.S.’s argument is merely a request to reweigh the evidence and the credibility of the witnesses,³ which our court will not do.

R.S. Cannot Appeal the CHINS Court's Refusal to Place the Children with a Relative.

[21] R.S. claims that the trial court was required to “prioritize placement with relatives before recommending foster or adoptive placement with non-relatives.” Appellant's Br. at 18. R.S. observes that the children's maternal grandmother requested placement of the children during the CHINS proceedings.

[22] To the extent that R.S.’s argument is supported by citation to authority,⁴ the argument should have been raised in the CHINS case. The children's foster care placement cannot be challenged in these adoption proceedings. R.S. cannot establish that he is entitled to any relief on this issue.

R.S. Received Adequate Notice.

[23] Finally, R.S. claims that the final adoption decree is voidable because he did not receive proper notice of the final adoption hearing. In support of this argument, R.S. claims that Adoptive Parents did not provide him with adequate notice under Indiana Code section 31-19-2.5-3(b), Indiana Trial Rule 5, and the state and federal due process clauses.

[24] R.S. had notice of the petitions to adopt the children and participated in the adoption proceedings. R.S. appeared and testified at the hearing to determine whether his consent to the adoption was required.⁵ On November 20, 2024, the trial court determined that R.S.’s consent to the adoption was not required under Indiana Code section 31-19-9-8(a)(11). Thereafter, the trial court set a final adoption hearing for December 17, which was subsequently rescheduled for January 7, 2025.

[25] R.S.’s attorney appeared at the January 7 hearing. The attorney had communication with R.S. after the court issued the order declaring R.S. unfit but stated that she had not been able to communicate with R.S. in the week leading up to the final adoption hearing. The court determined that “[t]here is no indication that [R.S.] did not receive notice of” the order setting the matter for a final adoption hearing.⁶ Tr. Vol. 2, p. 188.

[26] The sole issue that the trial court considered and heard evidence on at the January 7 hearing was whether it was in the children's best interests to grant the adoption petitions. The court had already determined that R.S.’s consent to the adoption was not required. R.S. was represented by counsel, and the court concluded that R.S. had actual notice of the final hearing. For all of these reasons, R.S. has not persuaded us that the adoption decree is voidable or that he is entitled to any relief.

Conclusion

[27] The trial court's determination that R.S. is unfit to parent the children is supported by clear and convincing evidence, and, therefore, R.S.’s consent to the adoption was not required. We affirm the trial court's order granting Adoptive Parents’ petitions to adopt the children.

[28] Affirmed.

FOOTNOTES

1.   Biological mother did not participate in the adoption proceedings, and the court concluded that her consent to the adoption was not required.

2.   “[A] statute is a nonclaim statute when ‘there is clearly evidenced a legislative intent in [the] statute to not merely withhold the remedy, but to take away the right of recovery where a claimant fails to present his claim as provided in the statute.’ ” In re Paternity of M.G.S., 756 N.E.2d 990, 997 (Ind. Ct. App. 2001) (quoting Rising Sun State Bank v. Fessler, 400 N.E.2d 1164, 1166 (Ind. Ct. App. 1980)), trans. denied. “While equitable principles may extend the time for commencing an action under statutes of limitations, nonclaim statutes impose a condition precedent to the enforcement of a right of action and are not subject to equitable exceptions.” Id.

3.   R.S. also argues that the “trial court failed to give appropriate weight to [his] participation in therapy and visitation services and failed to account for provider limitations and inconsistencies.” Appellant's Br. at 17. We do not address this argument separately because it is another improper request to reweigh the evidence and credibility of the witnesses.

4.   R.S. cites to Indiana Code section 31-34-20-1 (2024), but this statute does not require the CHINS court to give a preference for relative placement. But see Ind. Code § 31-34-6-2.

5.   R.S.’s claim that he was deprived of a “meaningful opportunity to oppose adoption” is wholly unsupported by the record. See Appellant's Br. at 19.

6.   R.S. observes that the order setting the final adoption hearing for January 7 does not show service on him. Because R.S.’s attorney was served and appeared at the hearing, we presume that the trial court determined that R.S. had actual notice of the hearing via counsel.

Mathias, Judge.

Judges May and Bradford concur. May, J., and Bradford, J., concur.