D.M., Appellant-Petitioner v. J.F., Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] D.M. (“Stepmother”) appeals the Allen Superior Court's order concluding that J.F.’s (“Father's”) consent to her petition to adopt L.N. (“Child”), Father's biological child, was required. Stepmother presents one issue for our review, namely, whether the trial court erred when it concluded that Father's consent to the adoption was required. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] Child was born out of wedlock to S.N. (“Mother”) in September of 2014, and Father established his paternity of Child. Since her birth, Child has lived with Mother while Father has maintained only the bare minimum of contact with Child. Father has not regularly visited with Child; he has not been involved with Child's school or extracurricular activities; and he has not engaged in Child's therapy.

[3] After Mother and Stepmother married in March 2023, Stepmother filed a petition to adopt Child with Mother's consent.¹ Stepmother alleged four independent bases for dispensing with Father's consent to the adoption: his abandonment of Child during the six months immediately preceding her adoption petition; for a period of at least one year, Father failed without justifiable cause to communicate significantly with Child when able to do so or knowingly failed to provide for the care and support of Child when able to do so; that Father is unfit to be a parent and the best interests of Child would be served if the court dispensed with Father's consent; and that Father has abandoned Child by his mere token efforts to support or to communicate with Child. Father timely filed his motion to contest the adoption. Stepmother moved to consolidate the adoption proceeding with the paternity proceeding, and the trial court granted that motion.²

[4] In January and March 2025, the trial court held a hearing on the issue of whether Father's consent to the adoption was required. Stepmother presented evidence that Father has not exercised parenting time with Child on a meaningful or consistent basis for most of Child's life. Indeed, Mother testified that Father did not exercise any parenting time with Child from February 2019 through the Summer of 2021, and he only visited with Child sporadically in 2022. But Mother acknowledged that Child had a close relationship with her paternal grandparents and that Child would sometimes see Father at their house. Mother testified that, following an argument between Father and Child in July 2023, Mother unilaterally stopped Father's parenting time. Someone reported to DCS that, during a family party on July 4, Father had an erection while Child was sitting on his lap. DCS could not substantiate the reported conduct.

[5] Stepmother also presented testimony by the court-appointed Guardian Ad Litem (“GAL”), Jennifer Young, as well as the GAL's written report, which concluded as follows:

If all other matters are appropriate and in order, it is the undersign[ed]’s recommendation that the adoption of [Child] by step-parent [Stepmother] is in [Child's] best interests. [Child] is bonded with [Stepmother]. [Stepmother] has parented [Child] over two (2) years, daily. [Child] considers [Stepmother] to be her parent and respects her as such. [Stepmother] is very involved in all aspects of [Child's] life. And [Child] thoroughly enjoys her involvement. Everyone who I talked to [who] has witnessed [Stepmother] caring for [Child] believes that [Stepmother] treats [Child] very well and parents her effectively. No one (including [Father]) had any concerns about [Stepmother] or her care of [Child].

The sexual abuse allegations toward [Child] and the recent Court Order finding that [Father] was grooming his step-son are very concerning. [Father] ․ disputes and denies those allegations and we may not know or be able to determine what really occurred.

However, even if the ․ sexual abuse allegations are not true or did not exist, history shows that [Father] does not have much of a relationship with [Child]. Per all reports (including [Father's]), he has not exercised even close to his Court Ordered parenting time with [Child], throughout her life, even before any allegations or reports were made. [Father] has not even made it to Indiana Parenting Time Guidelines, which is the minimum parenting time a noncustodial parent should have. [Father] started his parenting time with supervised visits and worked up (by agreement of the parties) to parenting time every other weekend for a forty-eight (48) hour period. However, due to [Father] moving from Warsaw to Goshen and not wanting to provide the transportation, or for other reasons that are unknown, [Father] stopped exercising his full parenting time. [Father] blames the current stoppage of visitation on [Mother]. However, he does not have any excuse for his lack in visitation prior to July of 2023. While I cannot view the entire paternity matter, I do have access to the Chronological Case Summary through January of 2024. And, from the time the case began in 2014 through January of 2024, [Father] has not filed a single petition for contempt or any other type of letter or motion to enforce his parenting time with [Child].

Prior to July of 2023, [Father] was only visiting with [Child] a few hours a month at his Mother's home. [Father] has not been involved in [Child's] life enough to know what grade she is in school. He reported to me that she is in third grade, when she is in fact in fourth grade. [Father] was unwilling to participate in family therapy with [Child] in order to address any issues that may exist between he and [Child] until March of 2024. It does not make sense that [Father] would not want to engage in therapy with [Child], or at a minimum, speak with [Child's] therapist to see what is going on with her, if [Child] just “freaked out” with him, for no reason, at all, in July of 2023 and then refused to see him again.

It is also significant that [Father] has two other daughters, one older than [Child] and one younger, that he does not have relationships with.

I am sure that [Father] loves [Child]. I do not have any reason to dispute that. However, he seems content only seeing and visiting with [Child] for a few hours a month. And not becoming involved in her day-to-day life or caring about her schoolwork, medical appointments, mental health and therapy.

Ex. Vol. 2, pp. 248-49.

[6] At Stepmother's request, the trial court took judicial notice of the proceeding in a paternity case involving Father's wife, T.F., and the father of her child Z.G. In March 2024, the court in that proceeding granted Z.G.’s father permanent physical and legal custody of Z.G. The court also ordered that T.F.’s visits with Z.G. be supervised due to “allegations of physical abuse of [Z.G.] in [T.F.’s] home, [including] physical bruising. [And t]here are clear grooming behaviors happening of [sic] the minor child, [Z.G.], for sexual abuse by Mother's current husband, [J.F.,] that were occurring in [T.F.’s] home while [T.F.] was present.” In re Paternity of Z.G., Order Granting Petition to Modify Custody and Parenting Time, Case No. 20D06-1608-JP-310, March 1, 2024.

[7] In its June 10 order, the trial court concluded that Father's consent to Stepmother's adoption of Child was required. Specifically, the court found and concluded:

179. The Court finds that although [Father] has been an uninvolved or disengaged parent, he has maintained minimal contacts and parenting time with [Child].

180. The Court cannot find by clear and convincing evidence that [Father] abandoned or deserted [Child] for at least six (6) months immediately preceding the date of the filing of the petition for adoption as they engaged in parenting time both before and after [Stepmother] filed the first two petitions for adoption and he visited in July before the amended petition was filed on September 1, 2023.

181. The Court cannot find by clear and convincing evidence that [Father] failed without justifiable cause to communicate significantly with the child when able to do so for a period of at least one (1) year.

182. The Court cannot find by clear and convincing evidence that [Father] knowingly failed to provide for the care and support of [Child] when able to do so as required by law or judicial decree for a period of at least one (1) year. From the evidence provided, the longest period of time [Father] failed to pay child support was a 10 month period of time.

183. As the Court finds that [Stepmother] did not meet the statutory criteria for dispensing with Father's consent, no discussion regarding the best interests of [Child] is necessary for purposes of the adoption at this juncture.

184. The Court finds the consent of [Father] is necessary for the adoption to proceed.

Appellant's App. Vol. 2, p. 29. The trial court also ordered that Father's parenting time with Child would be supervised based on the following findings:

186. The Court finds the last contact between [Child] and her Father was a blow[-]up argument that ended with the grandparents intervening to help calm [Child] and her Mother and [Stepmother] coming early to retrieve [Child] from the family celebration after receiving a call from [Father's] mother.

187. The Court finds there has been a lengthy interval where no contact has occurred since the dispute between [Child] and her Father.

188. The Court finds concerning the events that [Child] has described regarding sitting on her Father's lap and feeling uncomfortable as she could feel her Father having an erection. Even though this was unsubstantiated by DCS and no further investigation occurred, this situation must be explored more thoroughly before any unsupervised contact should resume.

189. The Court finds the above incident, along with the grooming allegations with [Father's] wife's child that led to his wife ․ only receiving supervised agency visitation, gives grave concern about the safety of [Child] during unsupervised parenting time with her Father ․ The Court is aware that [Father] denies the sexual grooming allegations.

190. Pursuant to I.C. [§] 31-17-4-2, the Court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the Court may not restrict a parent's parenting time rights unless a court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.

191. The Court finds that [Child's] physical health and emotional development would be seriously impaired if [Father] began his unsupervised parenting time at this juncture.

192. The Court orders [Father] to participate in supervised therapeutic parenting time with [Child] with the child's therapist Season Rose or another therapist recommended by Ms. Rose if she has a conflict and cannot provide the therapeutic interactions between [Father] and [Child].

193. The Court finds that it is necessary and orders [Father] to participate in two preparatory counseling sessions with the child's therapist Season Rose prior to beginning therapeutic supervised parenting time with [Child], in addition to any requirements by the agency or therapist.

* * *

195. The Court finds it is not in the best interests of [Child] to have any unsupervised contact with Father ․ until counseling services have begun, progress is made, and the Court determines it is safe, both physically and emotionally, for [Child] to have alternative parenting time with her Father.

Id. at 29-30. This appeal ensued.

Discussion and Decision

[8] Stepmother argues that the trial court erred when it concluded that Father's consent to her adoption petition was required. As our Supreme Court has explained:

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.” E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018) (cleaned up). So, “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.” Id. And we will not disturb that decision “unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). “We will not reweigh evidence or assess the credibility of witnesses.” E.B.F., 93 N.E.3d at 762 (citation omitted). “Rather, we examine the evidence in the light most favorable to the trial court's decision.” Id. (citation omitted).

J.P. v. V.B. (In re Adoption of I.B.), 163 N.E.3d 270, 274 (Ind. 2021).

[9] We note that Father has not filed an appellee's brief. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established to make clear that it is not the burden of the court on appeal to rebut apparently valid arguments advanced for reversing the trial court's judgment. See McGill, 801 N.E.2d at 1251.

[10] Indiana law generally requires natural parents to consent to adoptions. Ind. Code § 31-19-9-1. However, as relevant here, a natural parent's consent to an adoption is not required if the trial court finds by clear and convincing evidence that: (1) the child has been abandoned by his parent for at least six months immediately preceding the date of the filing of the petition for adoption; (2) for a period of at least one year, the parent fails without justifiable cause to communicate significantly with the child when able to do so or knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree; (3) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent and the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent; or (4) 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. I.C. §§ 31-19-9-8(a)(1), (2), (11) and 31-19-9-8(b). Because the statute is written in the disjunctive, any one of the grounds listed therein is alone sufficient to dispense with parental consent. N.R. v. K.G. (In re Adoption of O.R.), 16 N.E.3d 965, 973 (Ind. 2014).

Although Section 31-19-9-8(a)(11) does not define “unfit,” we have held it means “unsuitable.” See In re Adoption of M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012). In addition, we have held 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. K.H. v. M.M., 151 N.E.3d 1259, 1267 (Ind. Ct. App. 2020), trans. denied.

In re Adoption of W.K., 163 N.E.3d 370, 375 (Ind. Ct. App. 2021), trans. denied.

[11] Stepmother contends that the trial court clearly erred when it concluded that the evidence did not support dispensing with Father's consent to the adoption under any of the four alleged factors. Notably, the trial court found that the evidence did not show that Father had abandoned Child during the six months immediately preceding the date the petition was filed or that, for at least one year, Father had failed without justifiable cause to communicate significantly with Child when able to do so or knowingly failed to provide for the care and support of Child. But the court made no findings regarding Stepmother's allegations that (1) Father is unfit to parent Child and that Child's best interests would be served if the court dispensed with Father's consent or (2) Father has abandoned Child because he has made only token efforts to support or to communicate with Child.

[12] Stepmother's arguments on the first two allegations, which were addressed by the trial court, are merely requests that we reweigh the evidence, which we will not do on appeal. However, with regard to Stepmother's allegations that Father is unfit to parent Child and that dispensing with his consent is in Child's best interests, we cannot ignore the evidence considered by the trial court in addressing Father's parenting time with Child. Indeed, in ordering that Father's parenting time with Child be supervised, the trial court expressed its “grave concern” for Child's safety should parenting time be unsupervised. Appellant's App. Vol. 2, p. 29. And the trial court found that Child's physical health and emotional development would be “seriously impaired” if Father had unsupervised parenting time. Id. at 30. The trial court's order also omits any finding regarding Stepmother's allegation that Father's consent is unnecessary because he abandoned Child by his mere token efforts to support or to communicate with her. Stepmother presented evidence to support that allegation, as well. Without any specific findings on these two issues, it is impossible to determine whether, in concluding that Father's consent is required, the trial court considered either (1) Father's fitness to parent Child or (2) whether Father has made only token efforts to support or to communicate with Child to render her abandoned, and we are therefore unable to conduct meaningful appellate review.³ See, e.g., Van-Scyoc v. Mid-State Paving, 787 N.E.2d 499, 508 (Ind. Ct. App. 2003).

[13] Although we affirm the trial court's findings that Father did not abandon Child in the six months immediately preceding the date the petition was filed and that he did not, for at least one year, fail without justifiable cause to communicate significantly with Child when able to do so or knowingly fail to provide for her care and support, we reverse the trial court's conclusion that Father's consent is required for the adoption and remand to the trial court to enter specific findings regarding Stepmother's allegations that (1) Father is unfit and that dispensing with his consent is in Child's best interests and (2) that Father has made only token efforts to support or to communicate with Child rendering her abandoned by him.⁴ See id.

[14] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Stepmother filed a petition on April 18; a second petition on May 1; and an amended petition in September.

2.   The parties were litigating parenting time issues in the paternity action.

3.   The trial court's findings clearly reference the elements found in Indiana Code section 31-19-9-8(a)(1) and (a)(2)(A) and (B). However, the trial court did not enter findings with respect to Stepmother's allegations under Indiana Code section 31-19-9-8(a)(11) and (b), and we remand for findings under those subsections of the statute.

4.   We do not address a second issue raised by Stepmother, namely, that the trial court erred when it did not appoint a temporary custodian pursuant to Indiana Code section 31-17-2-11. Our review of the record shows that Stepmother did not raise that issue to the trial court, and it is waived.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.