T.R., et al., Appellants-Petitioners v. B.N., Appellee-Respondent. (2025)

MEMORANDUM DECISION

Case Summary

[1] In this consolidated appeal, T.R. (Guardian) and her husband, T.L., (collectively, Petitioners) appeal the trial court's Ind. Trial Rule 41(B) dismissal of their petition to adopt P.J.P. and L.M.R. (collectively, the Children) based on its determination that Petitioners did not present clear and convincing evidence that B.N.’s (Mother) consent to the adoption was not required. Petitioners present two issues for our review, which we consolidate and restate as: Did the trial court clearly err in concluding that Mother's consent to the adoption was required.

[2] We affirm.

Facts & Procedural History

[3] P.J.P. was born December 23, 2014, and L.M.R. was born March 9, 2016. The Children have different fathers, both of whom are now deceased, leaving Mother as the only surviving natural parent. In 2017, the Department of Child Services (DCS) became involved with Mother and the Children, and the Children were found to be children in need of services (CHINS). The Children were placed with Guardian, with formal guardianships established in 2018.¹

[4] The Children remained under the care of Guardian until September 22, 2021, when the guardianships were terminated by an agreed order and the Children were returned to Mother's care. The agreed order provided Guardian with visitation rights. While in Mother's care, Guardian became concerned about the Children's welfare because when they visited her, they cried and asked not to be returned to Mother. Mother's behavior also began to cause concern. In October 2022, Guardian sought emergency guardianship over the Children, which was granted. The Children were removed from Mother's care.

[5] In the guardianship order, Mother was awarded weekly supervised visits with the Children at Harmony House. In August 2023, Cheryl Highsmith, Director of Harmony House, received a referral to provide supervised visits for Mother and the Children. During the weekly visits, Highsmith had no safety concerns for the Children. She noted that Mother would bring dinner for the Children and heat it up so they could share a meal together. During visits, Mother was “[v]ery playful” and “peer-like” and would have to be asked to quiet down. Transcript Vol. 3 at 217. When Highsmith suggested that the weekly visits be changed to only one child at a time because of conflict that would arise between the Children during the visits, Mother became upset because she did not want to miss out on any time with either child.

[6] During the initial guardianship period, P.J.P. began receiving approximately $1,400 in monthly Social Security survivor benefits based on her late father's earnings. In December 2018, these payments were redirected to Guardian. Subsequently, L.M.R. also became eligible for Social Security survivor benefits of $1,700 per month based on his late father's earnings. While the Children resided with Mother, she received their Social Security benefits. When the Children returned to Guardian's care under the second guardianship, Guardian resumed receiving the Children's Social Security benefits.

[7] In addition to Social Security benefits, L.M.R. also became entitled to receive a Veteran's Administration (VA) benefit payment on behalf of his father of approximately $400 per month. In 2022, Guardian sought to be appointed as fiduciary of these benefits, but for unexplained reasons, she was not appointed as the fiduciary until November 2024. In the interim, the VA benefit payment was being deposited into an account with an unidentified owner at Centier Bank.² Guardian did not receive the VA benefits to which L.M.R. was entitled until she was appointed the fiduciary of such benefits.

[8] Attorney Rebecca Billick was appointed as a Guardian ad Litem (GAL) during the first guardianship and remained in that role through the second guardianship action. Billick testified that she was aware of Mother's struggles to earn a consistent income over the past five years and that at one point, Mother was evicted from her apartment and was forced to move back in with her parents. Regarding Mother's parenting ability, Billick testified about her general concerns over a five-year period, including instability and integrity as it relates to maintaining a sober lifestyle.

[9] Guardian never received any monetary payments directly from Mother, though she never requested financial assistance, either informally or formally through a child support order in the guardianship action. In November/December 2024, however, Mother provided Guardian with insurance cards covering the Children, thereby removing them from Medicaid coverage.

[10] On September 12, 2024, Guardian filed a petition to adopt the Children under a separate cause number for each child. The adoption petitions were amended on November 11, 2024, to add T.L. In the amended petitions, Petitioners alleged that Mother's consent to adoption was not required because she had not supported the Children and because she was unfit. Mother filed an objection to the amended petitions. The court held a consolidated hearing on the issue of whether to dispense with Mother's consent to the adoption of Children over the course of three days—January 30, 2025, and April 2 and 3, 2025. At the conclusion of Petitioners’ presentation of evidence, Mother moved for involuntary dismissal of the amended adoption petitions under Ind. Trial Rule 41(B). The trial court took the matter under advisement.

[11] On May 7, 2025, the court entered an order under both adoption causes granting Mother's motion for involuntary dismissal and finding that Mother's consent to adoption of the Children should be required. Petitioners now appeal. Additional facts will be provided as necessary.

Discussion & Decision

[12] Ind. Trial Rule 41(B) states:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief.

When reviewing the grant of a T.R. 41(B) motion, we consider whether the trial court's decision was clearly erroneous. 5200 Keystone Ltd. Realty, LLC v. Filmcraft Laboratories, Inc., 30 N.E.3d 5, 13 (Ind. Ct. App. 2015). In this review, we will not reweigh the evidence or judge the credibility of witnesses. Id. We will reverse the trial court's decision only if the evidence does not conflict and points to a conclusion different than that of the trial court. Id.

[13] Further, 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, and get a feel for the family dynamics and a sense of the parents and their relationship with their children. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012). 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.” In re I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quoting E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018)). 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).

[14] “A natural parent enjoys special protection in any adoption proceeding, and courts strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship.” I.B., 163 N.E.3d at 274 (citing In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010)). Ind. Code § 31-19-9-8(a)(2)(B) provides limited grounds for dispensing with a natural parent's consent to adoption. As pertinent here, I.C. § 31-19-9-8(a)(2)(B) provides that consent to adoption is not required from a parent if:

A parent of a child in the custody of another person if for a period of at least one (1) year the parent ․ knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

Consent is also not required if:

(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and

(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent.

I.C. § 31-19-9-8(a)(11). Petitioners had the burden of proving by clear and convincing evidence that Mother's consent to the adoption was not required. See J.H. v. S.S., 93 N.E.3d 1137, 1140 (Ind. Ct. App. 2018).

[15] We first address whether Mother knowingly failed to provide for the care and support of the Children for at least one year when able to do so as required by law or judicial decree. It is well settled that parents have a common law duty to support their children, and this duty exists independently of any court order or statute. In re Adoption of E.B., 163 N.E.3d 931, 936-37 (Ind. Ct. App. 2021) (quotation marks and citation omitted). The relevant period “ ‘is any year in which the parent had an obligation and the ability to provide support, but failed to do so.’ ” Id. at 936 (quoting In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014)). “A petitioner for adoption must show that the noncustodial parent had the ability to make the payments that she failed to make.” I.B., 163 N.E.3d at 274. “A court must look at the totality of the circumstances to determine the parent's ability to pay, not just his or her income (or lack of income).” Id.

[16] Here, the trial court acknowledged that “there was evidence that Mother did not pay support,” but found that “the evidence was insufficient or nonexistent that [Mother] had the ability to pay.” Appellant's Appendix Vol. 2 at 21. Petitioners argue that the court's determination as to the latter is clearly erroneous.

[17] Although Petitioners presented some evidence of Mother's employment and housing history, their evidence was extremely limited in terms of establishing Mother's ability to pay. This evidence included only paystubs from an employer over a period of two months in 2023, general testimony about various jobs Mother may have had over the years or possible employment opportunities in 2018, 2019, and 2020, a yoga teaching certification from 2020, and a bank statement showing modest deposits into Mother's banking account over a five-month period in 2020. The trial court could reasonably conclude that such evidence did not adequately establish Mother's ability to provide support for the Children when the Children were under Guardian's care. This is especially so given the dearth of evidence about Mother's living expenses. In this vein, Petitioners point to evidence of Mother's housing in 2018 and 2019, but this is tempered by evidence that at some point Mother was evicted and forced to move back in with her parents. There was also testimony from the GAL that Mother's ability to have a consistent income during the five years leading up to the hearing had been a struggle. Evidence also showed that Mother made payments to service providers, but that there were also lapses in her payment history, resulting in her owing large sums to service providers.

[18] Aside from the piecemeal evidence of Mother's employment history, residential history, and banking history, Petitioners assert that they presented evidence that Mother received and retained for her own benefit the Social Security benefits to which the Children were entitled as well as the VA benefits L.M.R. was entitled to receive. As to the Social Security benefits, Guardian testified that she began receiving the benefits to which P.J.P. was entitled by December of the year in which the first guardianship was established. The record does not disclose, however, when those benefits started and whether Mother received any of those benefits prior to Guardian's receipt of such. With regard to the timeframe of the second guardianship, Guardian testified that she started receiving the social security benefits for the Children as soon as they were returned to her care in October 2022. Petitioners did not establish that Mother received and retained the social security benefits to which the Children were entitled.

[19] Regarding the VA benefits, the evidence simply does not unerringly point to the conclusion that Mother received and retained them for her own benefit. There was evidence from which it could be inferred that the VA benefits were being deposited into Mother's banking account from some time in 2022 until such time as Guardian was appointed the fiduciary of those benefits in 2024. There was no evidence introduced, however, showing that those benefits were not used in some manner for the care and support of L.M.R. Indeed, we note that Mother provided meals during her weekly visits with the L.M.R. and made periodic payments to service providers. Considering the totality of the circumstances and giving due deference to the trial court's assessment of the evidence and credibility determinations, we cannot say the trial court clearly erred in concluding that the evidence did not support a finding that Mother had the ability to contribute to the care of the Children and knowingly failed to do so.

[20] We next consider the trial court's determination that Petitioners did not prove by clear and convincing evidence that Mother is unfit. Although I.C. § 31-19-9-8(a)(11) does not define “unfit,” we have held it means “unsuitable.” See M.L., 973 N.E.2d at 1223. 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. 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. Id.

[21] In concluding that there was no evidence that Mother was unfit so as to dispense with her consent to adoption, the trial court noted that Mother “is essentially maintaining regular and consistent contact” with the Children. Appellant's Appendix Vol. 2 at 22, 25. The court further stated that “[w]hile Mother is not perfect, she is a part of the [Childrens’ lives].” Id. at 22, 25. In reaching this conclusion, the trial court found that the evidence submitted by Petitioners did not rise to the level required to terminate parental rights and thus, the evidence did not establish by clear and convincing evidence that Mother is unfit. In their appellant's brief, Petitioners baldly assert that the trial court's findings are clearly erroneous “because [the court] addresses abandonment, not unfitness.” Appellant's Brief at 16. We disagree. The trial court's challenged finding equally pertains to the court's conclusion that Petitioners had not proven that Mother was unfit.

[22] Although there was evidence that Mother struggled with substance abuse, there was also evidence that Mother consistently participated in supervised visits, during which the supervisor observed no concerns, and weekly Zoom calls with the Children. The record also shows that there is a bond between Mother and the Children and that Children often express their desire for more time with Mother. And, although there is evidence of employment and housing instability, the evidence is spotty and does not provide a full or accurate picture of the circumstances. On this record, we will not second-guess the trial court's determination that the evidence did not clearly and convincingly establish that Mother was unfit.

[23] In sum, Petitioners have not demonstrated that the trial court clearly erred in granting Mother's T.R. 41(B) motion.

[24] Judgment affirmed.

FOOTNOTES

1.   After the Children were placed with Guardian but prior to the guardianship being established, Mother lived with Guardian for approximately four months. During that time, Mother was frequently absent, failed multiple drug tests, tested positive for cocaine, and brought unapproved guests into the home. This resulted in a court order in the CHINS action that Mother was not permitted to live with Guardian and the Children.

2.   Guardian introduced evidence of the last four digits of the account number with Centier Bank into which the VA benefit payment was deposited and a billing statement from a Guardian ad Litem showing that Mother made payments for those services from a bank account with the same last four digits.

Altice, Chief Judge.

May, J. and Foley, J., concur.