# In re: The Adoption of N.T., a minor child, M.T. v. J.T. (mem. dec.)

> Indiana Court of Appeals · April 12, 2018

URL: https://www.frixlaw.com/law-library/cases/4263333

## Case

- **Court:** Indiana Court of Appeals
- **Decided:** April 12, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## How later opinions describe it (automated extraction)

- noting natural father’s purchases of cigarettes and gas did not alone indicate an ability to pay support

## Opinion text

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 12 2018, 6:02 am

this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
George R. Livarchik Rachel E. Doty
Livarchik & Farahmand Braje, Nelson, and Janes LLP
Chesterton, Indiana Michigan City, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re: The Adoption of April 12, 2018
N.T., a minor child, Court of Appeals Case No.
46A03-1709-AD-2133
M.T.,
Appeal from the LaPorte Superior
Appellant-Petitioner, Court
v. The Honorable Richard R.
Stalbrink, Jr., Judge
J.T., Trial Court Cause No.
46D02-1506-JP-134
Appellee-Respondent.

Robb, Judge.

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Case Summary and Issue
[1] J.T. (“Natural Father”) and K.T. (“Mother”) are the parents of N.T. (“Child”),

born October 29, 2005. With Mother’s consent, M.T. (“Stepfather”) filed a

petition to adopt Child on January 25, 2016, alleging Natural Father’s consent

to the adoption was unnecessary. Stepfather now appeals the trial court’s order

finding that Natural Father’s consent is necessary, raising two issues for our

review, which we consolidate and restate as one: whether the trial court’s

conclusion that Natural Father’s consent to Stepfather’s petition for adoption

was necessary is clearly erroneous. Concluding the trial court did not clearly

err in determining Natural Father’s consent to the adoption was required, we

affirm.

Facts and Procedural History
[2] Mother and Natural Father have never been married, nor have they ever

resided together as a couple after Child was born. Natural Father was present

at Child’s birth and executed a paternity affidavit at that time. No child support

order has ever been in effect, and Natural Father has not voluntarily provided

monetary support for Child. He was imprisoned for approximately two and

one-half years between 2005 and 2008. While Natural Father was incarcerated,

his mother (“Paternal Grandmother”) spent time with Child with Mother’s

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permission.1 After Natural Father was released from prison, he visited with

Child when she was with Paternal Grandmother and occasionally, would be

alone with her when Paternal Grandmother had to work. When Natural

Father moved into his own apartment with his girlfriend and their child, Child

sometimes visited with Natural Father there. Nonetheless, Natural Father has

never had his own court-ordered parenting time with Child.

[3] Natural Father suffers from schizoaffective disorder, bipolar disorder, and

chronic depression. He was hospitalized for several days in March 2015 to deal

with these issues. While hospitalized, he was involved in several incidents

where he became combative with hospital staff. Following his release, Natural

Father began outpatient treatment, which he was still participating in at the

time of trial. In April 2015, Mother severed contact between Natural Father

and Child. In June 2015, Natural Father filed a petition to establish his

paternity of Child. In November 2015, Mother and Natural Father entered a

stipulation establishing Natural Father’s paternity. A hearing was held in

February 2016 regarding related matters, including child support and parenting

time. The trial court ordered professionally supervised visitation between

Natural Father and Child due to Natural Father’s mental health and anger

issues. Because Natural Father receives Social Security disability and is not

1
It is unclear whether Paternal Grandmother had court-ordered grandparent visitation, but it does appear
that she exercised regular visitation with Child, including alternating weekends, holidays, and extended time
in the summer.

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employed, the trial court did not order him to pay any child support, although it

did order him to explore whether Child was eligible for any disability benefits.

[4] Mother and Stepfather have lived together since mid-2007, and were married

on August 15, 2015. In January 2016, Stepfather filed his petition to adopt

Child, attaching Mother’s written consent to the adoption and alleging Natural

Father’s consent was unnecessary for the following reasons:

(a) Since October 29, 2005 (the date of the birth of [Child]) said
[Natural] Father has not paid any child support; prior to the date
of filing this Petition for Adoption, for a period of at least one (1)
year, said [Natural] Father has knowingly failed to provide for
the care and support of [Child] (See I.C. § 31-19-9-8(a)(2)(B); and

(b) Since March 2006, [Natural] Father has never communicated
with [Child] and prior to the date of filing this Petition, for a
period of at least one (1) year, said [Natural] Father has failed
without justifiable cause, to communicate significantly with the
child when able to do so. (See I.C. § 31-19-9-8(a)(2)(A).

Appellant’s Appendix, Volume II at 61. Natural Father filed a motion to

contest the adoption, and the adoption proceeding was consolidated with the

existing paternity proceeding.

[5] In November 2016, Natural Father attempted suicide by shooting a crossbow

into his chest and was hospitalized. In January 2017, after Mother and

Stepfather became aware of the incident, Stepfather filed an amended petition

to adopt, adding the following allegation:

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That [Stepfather] believes [Natural Father] is unfit to parent the
child, has a recent history of being harmful to himself and others,
and per I.C. § 31-19-9-8, said consent from the biological father is
not required, which provides in pertinent part:

(11) [Consent to adoption is not required from] [a] parent if:

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

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

Id. at 99.

[6] The trial court held a hearing on Stepfather’s Petition for Adoption and Natural

Father’s Motion to Contest Adoption over several days beginning on March 23,

2017. On August 18, 2017, the trial court issued its findings of fact and

conclusions thereon, granting Natural Father’s Motion to Contest Adoption

and denying Stepfather’s Petition for Adoption. In relevant part, the trial

court’s order states:

II. Findings of Fact
***
B. Fitness of Natural Father
13. Natural Father has a history of mental illness, including
multiple in-patient hospitalizations.
14. Natural Father was hospitalized for an attempted suicide on
November 24, 2016. Natural Father was admitted to [an
inpatient psychiatric] facility in South [B]end thereafter.
15. Natural Father is still pursuing treatment voluntarily.

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16. Natural Father’s therapist testified as to his cooperation and
compliance with treatment.
***
D. Failure to Provide Support for One Year
24. Mother testified that Natural Father has never provided
monetary child support for [Child].
25. Natural Father began receiving Supplemental Security
Income in May of 2015.
26. Mother testified to her lack of judicial intervention for child
support because of her belief of Natural Father’s inability to pay.
27. [The mother of Natural Father’s other child] testified that her
[sic] and Natural Father struggled to pay their financial
obligations during their time together.
28. [Paternal] Grandmother testified that Natural Father has an
inconsistent work history, does not work well with others, and
was often unemployed.
29. Natural Father testified that he obtained seasonal
employment for “like two” years.
30. [Paternal] Grandmother testified that there was never an
instance she could recall when [Natural] Father was financially
able to support [Child] that [Natural] Father refused to make any
financial contribution to Mother for [Child].
31. When Natural Father was unable to provide financial
support for [Child], he would ask [Paternal] Grandmother to
support [Child] on his behalf.
32. [Paternal] Grandmother testified that on behalf of [Natural]
Father, she personally purchased food, diapers, medicines, a car
seat, formula, clothing, and school supplies for [Child].

III. Conclusions of Law
33. The most protected status in any adoption proceeding is that
of the natural parent. M.W. v. A.W., 933 N.E.2d 909, 913 (Ind.
Ct. App. 2010).
***
B. Fitness of Natural Father
36. [Stepfather] must prove by clear and convincing evidence

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that Natural Father is unfit to be [a] parent and that [Child’s] best
interests would be served if this Court dispensed with Natural
Father’s consent.
***
38. This Court is not convinced that Natural Father is unfit as a
parent, either due to his mental illness or by any other means.
The testimony from Natural Father and his current therapist,
coupled with the fact that he is voluntarily seeking treatment,
leads this Court to believe that Natural Father is making a sincere
effort.
39. Further, the only indication of any stress on [Child] is the
altercation that happened between Natural Father and [Paternal]
Grandfather that [Child] witnessed.
40. Therefore, this Court finds that [Stepfather] has not proven
by clear and convincing evidence that Natural Father is unfit as a
parent or that [Child’s] best interests would be served if Natural
Father’s rights were dispensed.
***
D. Failure to Provide Support for One Year
44. [Stepfather] must prove by clear and convincing evidence
that for a period of at least one year Natural Father failed to
provide for the care and support of [Child] when able to do so as
required by law or judicial decree.
45. A parent’s failure to support may have occurred during “any
year in which the parent had an obligation and the ability to
provide support, but failed to do so.”
46. It is well settled that parents have a duty to support their
children regardless of a court mandate to pay.
47. A parent’s child support obligation can be satisfied through
nonmonetary measures such as clothing or gifts.
***
49. Indiana Courts are clear that Supplemental Security Income
is not considered income for purposes of child support.
50. Thus, Natural Father’s nonpayment of child support cannot
be considered from May 2015 to the present because he receives
SSI.
51. Natural Father’s testimony that for the period that Natural

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Father worked full time 70% of the time for “like two” years
prior to May 2015 is not enough to show that he had the ability
to provide support.
52. Keeping with the [In re Adoption of N.W., 933 N.E.2d 909
(Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011)]
holding, this Court cannot draw an inference of an ability to pay
merely from Natural Father’s income given the testimony of
Natural Father’s hardships by [Paternal] Grandmother and [his
ex-girlfriend].
53. Furthermore, it appears Natural Father fulfilled his common
law support obligation through nonmonetary means either to the
best of his ability given the circumstances or through [Paternal]
Grandmother.
54. Consequently, Natural Father’s consent to this adoption is
necessary under I.C. §§ 31-19-9-1 [and] 31-19-9-8(a).

Therefore, it is ordered and adjudged that [Natural Father’s]
Motion to Contest Adoption be, and is hereby, granted; and that
[Stepfather’s] Amended Petition for Adoption be, and is hereby,
denied.

Id. at 12-18. Stepfather now appeals. Additional facts will be provided as

necessary.

Discussion and Decision
I. Standard of Review
[7] When we review a trial court’s ruling in an adoption proceeding, the ruling will

not be disturbed unless the evidence leads to only one conclusion and the trial

court reached the opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216,

1222 (Ind. Ct. App. 2012). We do not reweigh evidence, and we consider the

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evidence most favorable to the decision together with reasonable inferences

drawn from that evidence. Id. Further, 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.” Id.

[8] Here, it appears the trial court sua sponte issued findings of fact and

conclusions thereon pursuant to Indiana Trial Rule 52(A). When that occurs,

we apply a two-tiered standard of review: first, we determine whether the

evidence supports the findings of fact and second, whether the findings support

the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009),

trans. denied. The trial court’s findings or judgment will be set aside only if they

are clearly erroneous. Id. A finding of fact is clearly erroneous if the record

lacks evidence or reasonable inferences from the evidence to support it. Id.

II. Parental Consent
[9] Stepfather appeals the trial court’s order denying his petition to adopt Child

without Natural Father’s consent. “The most protected status in any adoption

proceeding is that of the natural parent.” In re Adoption of N.W., 933 N.E.2d

909, 913 (Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011).

Generally, a petition to adopt a minor child may be granted only if written

consent to adopt has been provided by the biological parents. See Ind. Code §

31-19-9-1. However, when appropriate, there are exceptions to the consent

requirement. See Ind. Code § 31-19-9-8. Specific to this case, Stepfather asserts

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that Natural Father’s consent to his adoption of Child is unnecessary based on

two separate exceptions provided by law: (1) Father has failed to provide for the

care and support of Child for at least one year; and (2) Father is unfit to be a

parent and the best interests of Child would be served if his consent was not

required. See Ind. Code § 31-19-9-8(a)(2)(B), and (11).2 The provisions of

Indiana Code section 31-19-9-8(a) are disjunctive; that is, each provision

provides independent grounds for dispensing with parental consent. In re

Adoption of J.S.S., 61 N.E.3d 394, 397 (Ind. Ct. App. 2016). Recognizing the

fundamental importance of the parent-child relationship, we strictly construe

the adoption statutes to protect and preserve that relationship. N.W., 933

N.E.2d at 913.

[10] Regardless of which ground is relied on to dispense with parental consent, a

petition for adoption can only be granted if it is in the best interests of the child.

In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). A petitioner for adoption

has the burden of proving, by clear and convincing evidence, one of the

statutory criteria allowing for adoption without consent. J.S.S., 61 N.E.3d at

397.

2
Although Stepfather’s petition to adopt also alleged Natural Father failed to significantly communicate with
Child for a period of at least one year when able to do so, Ind. Code § 31-19-9-8(a)(2)(A), the trial court
found Stepfather had failed to provide clear and convincing evidence such was the case, Appealed Order at 6,
and Stepfather does not pursue that exception on appeal.

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A. Failure to Support
[11] Stepfather contends the trial court erred in concluding Natural Father’s consent

to adoption was required where he failed to support Child for over one year.

Indiana Code section 31-19-9-8(a)(2)(B) specifies that consent is not required

from a parent who, for a period of at least one year, “fails to provide for the

care and support of the child when able to do so as required by law or judicial

decree.” (Emphasis added.) The relevant time period for determining whether

a non-custodial parent has supported his child “is not limited to either the year

preceding the hearing or the year preceding the petition for adoption, but is any

year in which the parent had an obligation and the ability to provide support,

but failed to do so.” In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct.

App. 2013), trans. denied.

[12] Prior to the filing of the petition for adoption, no support order was in place

requiring Natural Father to pay a fixed amount of child support. A parent

nonetheless has a common law obligation to support his child even in the

absence of a court order. In re Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct.

App. 2011). This court has recognized that a parent’s nonmonetary

contribution to a child’s care may be counted as support. N.W., 933 N.E.2d at

914. Here, the trial court found that Natural Father’s in-kind contributions

constituted support of Child. Stepfather has not shown that the trial court erred

in reaching that conclusion.

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[13] In N.W., we concluded a stepmother had failed to carry her burden of showing

that the natural mother was able to provide for her child but refused to do so.

933 N.E.2d at 913-14. When mother and father divorced, they agreed father

would have physical custody of the child and mother would have no support

obligation due to her economic condition. Eventually, the parties sought

modification of custody (by mother) and support (by father). In the

modification proceeding, the trial court determined that mother had a negative

child support obligation. While the modification requests were pending, the

stepmother filed a petition to adopt the child, alleging that mother had failed to

support the child and presenting evidence of mother’s regular income. The trial

court granted the adoption petition over mother’s objection. We reversed,

holding that the “mere showing” that mother had a regular income did not

indicate that she had the ability to pay support. Id. at 913. Rather, although

mother “might not have been able to monetarily provide [child] with much,”

she “provided to the best of her ability: while creating a nurturing environment

during parenting time, [m]other supplied [child] with all the necessities of

housing, food, and even . . . outings and gifts.” Id. at 914.

[14] Although the procedural posture of N.W. is opposite to this case, as we were

addressing the trial court’s grant of a petition for adoption rather than the denial

of a petition to adopt, the facts of N.W. are very similar, and the same result

should obtain here. Natural Father acknowledged that he had never paid

regular child support. Mother stated that she had never pursued a court order

for child support because “[h]e never had a job that paid anything, so I figured

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it would do me no good . . . .” Transcript, Volume III at 153. Prior to 2015,

Natural Father’s employment was sporadic, and even if he had a regular

income during his periods of employment, a regular income standing alone is

insufficient to indicate the ability to pay support. N.W., 933 N.E.2d at 914.

During the time he resided with his now-ex-girlfriend and their child, they

struggled to pay their bills even when Natural Father was working. It is true

that Natural Father regularly bought cigarettes and occasionally marijuana.

We do not condone the use of resources—limited or otherwise—on such items,

but those expenditures alone do not demonstrate Natural Father’s ability to

support Child with regular and significant monetary payments. See Matter of

Adoption of D.H. III, 439 N.E.2d 1376, 1377 (Ind. Ct. App. 1982) (noting natural

father’s purchases of cigarettes and gas did not alone indicate an ability to pay

support). Nonetheless, when Natural Father was able, he provided clothes,

shoes, school supplies, gifts, and food for Child, and when he was unable to

provide those things, he asked Paternal Grandmother to provide them on his

behalf and she did. Natural Father testified, “If [Mother] asked if [Child]

needed something, then it was always provided.” Tr., Vol. II at 125.

[15] Under these circumstances, the trial court’s refusal to dispense with Natural

Father’s consent to adopt for failure to support Child is not clearly erroneous.

B. Unfitness
[16] Stepfather also contends Natural Father’s consent to adoption is not required

because Natural Father is unfit to parent and dispensing with his consent would

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be in Child’s best interests. See Ind. Code § 31-19-9-8(a)(11). Although the

statute does not provide a definition of “unfit,” we have observed that it is

defined as “[u]nsuitable; not adapted or qualified for a particular use or service”

or “[m]orally unqualified; incompetent.” M.L., 973 N.E.2d at 1223 (quoting

Black’s Law Dictionary 1564 (8th ed. 2004)). We have also observed that

termination cases can provide useful guidance as to what makes a parent

“unfit” because termination cases also strike a balance between parental rights

and the best interests of the child. Id. In termination cases, we consider 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 special needs child to determine whether

a parent was unfit. Id. A parent’s criminal history may also be relevant to

whether a parent is unfit. In re Adoption of D.M., 82 N.E.3d 354, 359 (Ind. Ct.

App. 2017).

[17] Stepfather alleges Natural Father’s substance abuse, significant mental health

problems, violent and angry outbursts, and failure to disclose his struggles make

him unfit to parent Child. Clearly, however, the trial court thought otherwise.

Natural Father does use marijuana, but there is no evidence he has ever done so

in the presence of Child. The trial court acknowledged Natural Father’s history

of mental illness, but nonetheless concluded his mental illness did not make

him unfit, especially in face of testimony that he was voluntarily seeking

treatment and making a “sincere effort” to address his issues. Appealed Order

at 6. The trial court also noted that there was no evidence that Natural Father’s

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struggles negatively impacted Child. With respect to the other termination

factors, we note that Natural Father was imprisoned for the first two years of

Child’s life, but there was no evidence of criminal activity since. Based on the

record before us, the findings of the trial court, and our deferential standard of

review, we conclude the trial court did not clearly err in determining that

Stepfather failed to prove by clear and convincing evidence that Natural Father

was unfit to parent Child.

Conclusion
[18] We applaud Stepfather for his involvement in Child’s life these past ten years

and his willingness to take on the legal, emotional, and moral obligations of

being her adoptive parent. However, our overriding concern in these matters is

for Child and whether the relationship with her natural parent should be

irrevocably severed. Child was eleven years old at the time of the hearing on

the petition to adopt. Other than the first couple of years of Child’s life when

Natural Father was incarcerated, he has been a regular presence in her life. The

trial court, which is more familiar with this case and these parties, determined

this parent-child relationship should continue. We cannot say the trial court

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clearly erred in that determination. Accordingly, the judgment of the trial court

denying Stepfather’s petition to adopt is affirmed.3

[19] Affirmed.

Crone, J., and Bradford, J., concur.

3
Natural Father has requested an award of attorney fees pursuant to Appellate Rule 66(E) as damages for
Stepfather’s conduct on appeal. We acknowledge certain deficiencies in Stepfather’s brief—for instance, his
“Summary of Argument” is fifteen pages long, and is repeated virtually verbatim in the argument section—
but we do not believe an award of attorney fees is warranted in this case. Although we have affirmed the trial
court’s order, we cannot say that Stepfather’s contentions on appeal are completely devoid of merit or that
his appeal is permeated with bad faith or brought for purposes of harassment. See Matter of Guardianship of
Lamey, 87 N.E.3d 512, 527 (Ind. Ct. App. 2017).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4263333. Public record. Not legal advice.