Court of Appeals of Indiana | Memorandum Decision 19A-AD-1905 | February 21, 2020 Page 1 of 19

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Katharine Vanost Jones

Evansville, Indiana

ATTORNEY FOR APPELLEE

Patrick A. Duff

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of 

M.J.F, A.S.F., J.M.F. II, and 

A.M.W.F

R.S.F. (Natural Mother), 

Appellant-Respondent, 

v. 

B.F. (Adoptive Mother), 

Appellee-Petitioner.

February 21, 2020

Court of Appeals Case No.

19A-AD-1905 

Appeal from the Vanderburgh 

Superior Court

The Honorable Brett J. Niemeier, 

Judge

The Honorable Renee Allen

Ferguson, Magistrate

Trial Court Cause Nos. 

82D04-1807-AD-141, 82D04-1807-

AD-142, 82D04-1807-AD-144 & 

82D04-1807-AD-145

Riley, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1905 | February 21, 2020 Page 2 of 19

STATEMENT OF THE CASE

[1] Appellant-Respondent, R.S.F. (Mother), appeals the trial court’s Order granting 

the petition for adoption of her children M.J.F., A.S.F., J.M.F. II, and 

A.W.M.F (collectively, the Children), by Appellee-Petitioner, B.F. 

(Stepmother).

[2] We affirm.

ISSUE

[3] Mother presents this court with one issue, which we restate as: Whether the 

trial court’s Order dispensing with Mother’s consent to the adoption of the 

Children was clearly erroneous. 

FACTS AND PROCEDURAL HISTORY

[4] Mother and J.F. (Father) divorced in 2007. Mother received custody of their 

two children, M.J.F., born in 2001, and J.M.F. II, born in 2003. Mother and 

Father eventually reconciled and had two additional children, A.M.W.F., born 

in 2010, and A.S.F., born in 2011. In 2008, Father was awarded custody of the 

two older children, and the two younger children have been in his custody since 

2012. Mother was ordered by the divorce court to pay $86 per month in child 

support, which was deducted from her paycheck. Father married Stepmother 

in 2014. In 2016, the divorce court restricted Mother’s parenting time with the 

Children to two, one-hour supervised parenting time sessions per month at a 

community facility. 
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[5] In September 2016, Mother, who has Bipolar Disorder, was awarded Social 

Security Income (SSI) disability benefits of $750 per month. Mother’s courtordered support obligation for the Children was reduced to nothing after she

began receiving this benefit. Mother provided no money or in-kind support to 

Father and Stepmother for the Children’s care after September 2016. Mother 

worked for five weeks in 2017, the only employment she had after receiving her 

disability benefits. 

[6] On February 27, 2017, Mother was charged with three Counts of invasion of 

privacy, one of which stemmed from an incident where she was arrested on the 

lawn of the Children’s school. In March 2018, Mother left a rambling, 

profanity-laced message on Father’s voicemail in which she told Father, among 

many other things, to “[c]ome on down here to the Casino big boy and let’s 

duke it out.” (Transcript p. 109). On March 16, 2018, Mother was charged 

with resisting law enforcement and false informing as a result of going to a fastfood restaurant and untruthfully reporting a disturbance at Stepmother and 

Father’s home so that law enforcement would be summoned. As part of the 

resolution of those criminal cases, in March 2018, Mother was referred to 

mental health court. On September 27, 2018, Mother declined further 

participation in mental health court, citing as her reason that her mother, who 

lived in Tennessee, was terminally ill which required Mother to travel 

frequently. Mother also felt that she “spent six months in Mental Health Court 
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and [she] decided [she] was done.” (Tr. p. 77). Mother subsequently pleaded 

guilty to invasion of privacy, resisting law enforcement, and false reporting. 

[7] On July 13, 2018, Stepmother filed petitions to adopt the Children. On August 

3, 2018, Mother filed her objection to the adoption petitions. On May 8, 2019, 

the trial court held a hearing on whether Mother’s consent was required for the 

adoptions. Parenting time records admitted into evidence at the consent 

hearing showed that Mother routinely provided soft drinks, candy, donuts, and 

small monetary gifts to the Children during her parenting time sessions until she 

was told by Father to stop. Mother’s gifts of money were never large enough 

for the Children to buy shoes, clothing, or anything of substance for their care. 

Mother testified at the consent hearing that Stepmother and Father “supply 

everything that my children need and I like to supply some things that they 

want.” (Tr. p. 75). 

[8] Mother testified about her frequent contact with eldest child M.J.F. outside of 

supervised parenting time. Mother went to M.J.F.’s place of employment and 

school to give her money. Mother would also contact M.J.F.’s school and 

leave a message about a key, which was a pre-arranged signal to M.J.F. that 

Mother had left something at an agreed-upon location for the child to retrieve. 

Mother also contacted the Children through a social media platform. Mother 

maintained that she was under a doctor’s care for her mental health issues and 

had started counseling. 
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[9] Stepmother testified regarding her life with the Children. In 2015 and 2016, 

Stepmother routinely picked up Mother and took her and the Children places so 

that they could spend time together. This ended when Mother and M.J.F. got 

into a heated argument at a restaurant which scared the other children and 

made them all cry. Stepmother attended to the Children’s daily needs, helped

them with their homework, and took them to appointments. Stepmother had a 

good relationship with the Children. The two older children executed consents 

to their adoption by Stepmother. 

[10] The guardian ad litem (GAL) appointed in the adoption proceedings had also 

been the Children’s GAL during Mother and Father’s divorce and custody case. 

The GAL reported at the consent hearing that during the divorce proceedings, 

Mother fled with the Children on two occasions and had told the Children that 

she would kill Stepmother and Father. This caused the Children to be afraid of 

Mother. Mother had repeatedly violated the divorce court’s orders by 

contacting the Children outside of court-ordered parenting time. Mother had 

not cooperated with the GAL’s requests to meet with her during the adoption 

proceedings. The GAL was concerned for Mother’s mental health because 

there was no evidence that Mother had done anything to change her behavior. 

The GAL opined that Mother was not a fit parent for the Children and that it 

was in the Children’s best interests that the adoption be granted over Mother’s 

objection. 
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[11] At the conclusion of the consent hearing, the trial court ruled that Mother’s 

consent was not necessary because she had failed to provide the Children with 

care and support for at least one year despite her ability to do so. The trial court 

also found that Mother was unfit and that it was in the Children’s best interests 

to dispense with Mother’s consent to the adoption. On July 11, 2019, the trial 

court held a hearing on Stepmother’s adoption petition, which it granted. 

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

DISCUSSION AND DECISION

[13] Mother challenges the evidence supporting the trial court’s determination that 

her consent to the adoptions was not required. Upon reviewing a trial court’s 

ruling in an adoption proceeding, “we presume that the trial court’s decision is 

correct, and the appellant bears the burden of rebutting this presumption.” In re 

Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014), trans. denied. We 

will not disturb an adoption ruling unless the evidence leads to but one 

conclusion and the trial court reached an opposite conclusion. Matter of 

Adoption of C.A.H., 136 N.E.3d 1126, 1128 (Ind. 2020). We refrain from 

reweighing the evidence, instead examining the evidence most favorable to the 

trial court’s ruling, together with the reasonable inferences to be drawn from 

that evidence, to determine whether sufficient evidence exists to sustain the 

decision. In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012). 

“Moreover, we generally give considerable deference to the trial court’s 
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decision in family law matters, as we recognize that the trial court 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. 

[14] In addition, where, as here, the trial court enters sua sponte findings and 

conclusions, we exercise a two-tiered standard of review. See M.S. v. C.S., 938 

N.E.2d 278, 281 (Ind. Ct. App. 2010). We first determine whether the evidence 

supports the findings and then we determine whether the findings support the 

trial court’s conclusions. Id. We will only set aside a trial court’s findings and 

conclusions if they are clearly erroneous, meaning that they lack any evidence 

or any reasonable inferences to support them. Id. at 281-82. Sua sponte findings 

“control only as to issues upon which the court has found, but they do not 

otherwise affect our general judgment standard of review, and we may look 

both to other findings and beyond the findings to the evidence of record to 

determine if the result is against the facts and circumstances before the court.” 

Matter of Adoption of E.M.L., 103 N.E.3d 1110, 1115 (Ind. Ct. App. 2018), trans. 

denied. 

[15] A trial court’s grant of an adoption petition over the objection of a natural 

parent results in the termination of parental rights and implicates the traditional 

right of parents under the Fourteenth Amendment to the United States 

Constitution to establish a home and raise their children. In re Adoption of O.R., 

16 N.E.3d 965, 972 (Ind. 2014). A parent’s interest in the care, custody, and 
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control of her children is “‘perhaps the oldest of the fundamental liberty 

interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 

2060, 147 L.Ed.2d 49 (2000)). “However, even the status of natural parent, 

though a material consideration, is not one which will void all others, and 

under carefully enumerated circumstances, the statute allows the trial court to 

dispense with parental consent and allow adoption of the child.” In re Adoption 

of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010), opinion adopted, 941 N.E.2d 

1042 (Ind. 2011). 

[16] Indiana Code section 31-19-9-8(a) provides, in relevant part, as follows:

Consent to adoption, which may be required under section 1 of 

this chapter, is not required from any of the following:

(2) A parent of a child in the custody of another person if for a 

period of at least one (1) year the parent:

* * * * 

(B) knowingly fails to provide for the care and support of 

the child when able to do so as required by law or judicial 

decree.

* * * *

(11) A parent 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. 
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The party seeking to adopt has the burden to prove by clear and convincing 

evidence that a noncustodial parent’s consent is not required. See In re Adoption 

of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004). Because the adoption 

consent statute is written in the disjunctive, the existence of any of the 

circumstances listed provides adequate reason to dispense with the noncustodial 

parent’s consent. In re Adoption of M.L., 973 N.E.2d at 1222. 

I. Care and Support of the Children

[17] Mother first challenges the trial court’s conclusion that she failed to provide 

care and support for the Children despite having the ability to do so. Mother 

does not contend on appeal that the evidence showed that she provided support 

for the Children. Rather, she argues that Stepmother failed to show by clear 

and convincing evidence that Mother had the ability to provide support. 

[18] In order to prevail under this portion of the statute, the petitioner must show 

that the parent had the ability to provide support that she failed to provide. 

Matter of Adoption of E.M.L., 103 N.E.3d at 1116. The ability to pay is not 

adequately shown by proof of income alone. Id. Instead, it is necessary to 

consider the totality of the circumstances, which could include whether income 

is steady or sporadic and what the noncustodial parent’s necessary and 

reasonable expenses were. Id. “A parent’s failure to support may have 

occurred during any year in which the parent had an obligation and the ability 
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to provide support, but failed to do so.” In re Adoption of J.L.J., 4 N.E.3d at 

1194 (quotation omitted). 

[19] In support of its conclusion that Mother had the ability to provide care and 

support, the trial court found that Mother began receiving disability income in 

2016, federal law prohibits such income from being paid as child support, but

that Mother had worked in 2017. It also found that Mother spent money on 

snack food and gifts for the Children and gave them money directly, all of 

which could have been provided to Father to support the Children. Although 

recognizing Mother’s limited means, the trial court found that “[a]ny amount of 

money that would have been given to [F]ather for support would have been an 

acknowledgement by [M]other that she is aware that the [C]hildren need to be 

financially supported.” (Appellant’s App. Vol. II, p. 3). 

[20] The gravamen of Mother’s argument is that because her income came from SSI 

disability benefits, the trial court was precluded from finding that she was able 

to provide the Children with care and support. Stepmother offers no response 

to this argument. In Winters v. Talley, 784 N.E.2d 1045 (Ind. Ct. App. 2003), 

this court addressed the issue of whether a mother whose only source of income 

was from SSI could be found to have the ability to provide care and support for 

her child for purposes of the consent to adopt statute. Examining the treatment 

of SSI income for child support purposes, the court found that 

SSI is a federal social welfare program designed to assure that the 

recipient’s income is maintained at a level viewed by Congress as 
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the minimum necessary for the subsistence of that individual.” 

Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995). Meanstested public assistance programs such as SSI are specifically 

excluded from a parent’s income for the purpose of computing 

child support under Ind. Child Support Guideline 3 (A)(1). Id. 

Child support may not be set such as the obligor is denied a 

means of self-support at a subsistence level. Id.; Ind. Child Supp. 

G. 2, cmt. (“Minimum Support”). As a matter of law, SSI 

recipients lack the money or means to satisfy child support 

obligations. See Cox, 654 N.E.2d at 277 (imputing potential 

income to SSI recipient father despite his SSI status “effectively 

constitutes an impermissible collateral attack upon the 

determination of [f]ather’s entitlement to SSI benefits.”).

Winters, 784 N.E.2d at 1947-48. The court held that “[f]or purposes of 

determining that a parent’s consent to adoption is not required, we find that a 

parent whose only source of income is SSI is not able to provide for the support 

of the child.” Id. at 1048. Our supreme court originally granted transfer of

Winters, vacating the decision of this court, but it subsequently dismissed its 

grant of transfer. We find the reasoning of Winters to be persuasive. 

[21] Here, Mother’s only reported source of regular income was from SSI. 

Following Winters, we conclude that the trial court erred when it determined 

that Mother had the ability to provide care and support. While it is true that 

Mother worked for five weeks at some unspecified time in 2017, the trial court 

did not state in either its oral or written rulings what one-year period it found 

that Mother had failed to provide care and support, so it is unclear whether 

Mother’s one-time employment in 2017 had any relevance. In any event, one 
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period of five weeks of employment is sporadic employment, at most. See

Matter of Adoption of E.M.L., 103 N.E.3d at 1116 (holding that we may consider 

whether any reported employment is steady or sporadic). The only evidence of 

Mother’s necessary and reasonable expenses was that she paid $55 each time 

she exercised her right to parenting time. 

[22] In addition, Mother’s small gifts to the Children are the type of token

contributions which we have long held to be insufficient to demonstrate that a 

parent has provided support. See, e.g., Irvin v. Hood, 712 N.E.2d 1012, 1013 

(Ind. Ct. App. 1999) (holding that father failed to provide care and support 

where he merely provided six items of clothing and some food during visitation

over three years); In re Adoption of M.A.S., 815 N.E.2d at 220 n.1 (concluding 

that Father’s occasional provision of groceries, diapers, formula, clothing, 

presents and cash were inadequate to show care and support). If such token 

contributions are insufficient to show provision of care and support, they 

cannot be relied upon exclusively and conclusively as evidence of a parent’s 

ability to provide care and support. This was not a case where Mother was 

shown to have expended money on other non-essential expenses for herself, 

despite claiming that her only source of income was SSI. Cf. In re Adoption of 

J.L.J., 4 N.E.3d at 1194-95 (considering evidence that the father, whose only 

claimed source of income was SSI, could maintain his own residence, had 

funds to purchase cigarettes, and could travel between Michigan and Indiana as 

evidence that he had ability to provide support). We conclude that the trial 
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court’s determination that Mother had the ability to provide care and support to 

the Children was not supported by the evidence and was, therefore, clearly 

erroneous. See M.S., 938 N.E.2d at 281-82. 

II. Unfitness to Parent and Children’s Best Interests

[23] Mother also challenges the evidence supporting the trial court’s second basis for 

dispensing with her consent, namely its determination that she was unfit to 

parent the Children and that it was in the Children’s best interests to grant the 

adoption without her consent. We address each of these conclusions in turn. 

A. Unfitness

[24] Although the term “unfit” is not defined by the adoption statute, we have 

looked to termination of parental rights cases for guidance as to its meaning. In 

re Adoption of M.L., 973 N.E.2d at 1223. Those cases have led us to conclude 

that “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” are all relevant to 

our inquiry. Id.

[25] The trial court found that Mother was unfit to parent the Children because she 

had untreated mental health issues, those mental health issues had caused her 

to engage in behavior that resulted in her harassing the family and, ultimately, 

her conviction for invasion of privacy, and that she had demonstrated poor 
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impulse control and decision making, unconscionable, selfish behavior, and a 

lack of insight by encouraging M.J.F. to also violate court orders. Mother does 

not contend that these factors, in the abstract and taken together, could never 

support a determination that a parent was unfit; rather, she argues that those 

factors do not amount to unfitness as they apply to her.

[26] Mother challenges several of the trial court’s factual findings regarding her 

mental health, and therefore, we will examine the record to determine if there is 

any evidence to support them. See M.S., 938 N.E.2d at 281-82. Mother first 

challenges the trial court’s findings that she failed to follow through with all 

available treatment because she had voluntarily removed herself from mental 

health court and that there was no verification of Mother’s claims that she was 

currently in counseling. Mother contends that the trial court impermissibly 

shifted the burden of proof to her, it was “uncontradicted” that Mother was in 

counseling and being treated by a physician, and her participation in mental 

health court was voluntary. (Appellant’s Br. p. 19). 

[27] We observe that the trial court was in the best position to judge Mother’s 

credibility. In re Adoption of M.L., 973 N.E.2d at 1222. The trial court 

apparently did not believe Mother’s claims that she was currently in treatment 

and noted as part of that credibility assessment the lack of other evidentiary 

support for these claims in the record, which did not constitute an unfair 

shifting of the evidentiary burden to her. In addition, Mother does not dispute 

that she withdrew herself from mental health court. It was within the trial 
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court’s discretion to conclude that Mother’s withdrawal because she “spent six 

months in Mental Health Court and [she] decided [she] was done” was simply 

an excuse and was a failure to pursue treatment that was open to her. (Tr. p. 

77). 

[28] Regarding her mental health as it related to her record of harassment and 

conviction for invasion of privacy, Mother concedes that the evidence showed 

that she “was convicted of [i]nvasion of [p]rivacy as a result of charges 

stemming from an inappropriate phone call to Father, a call to [a fast-food 

restaurant], and an appearance at the [C]hildren’s school to see if they were 

present for ISTEP testing.” (Appellant’s Br. p. 20) (record citations removed). 

Mother argues that the trial court’s determination was unsupported because her 

harassment was not violent, there was no evidence that the Children were 

present when she did these things, she engaged in no other similar conduct after 

Stepmother procured a protective order, and these incidents were too remote in 

time from the consent hearing to be significant. These arguments are 

unpersuasive because they essentially require us to reweigh the evidence and 

consider evidence that does not support the trial court’s determination in 

contravention to our standard of review. See In re Adoption of M.L., 973 N.E.2d 

at 1222. 

[29] Lastly, Mother challenges the trial court’s determination that she was unfit due

to her admitted pattern of seeing M.J.F. outside of court-ordered supervised 

parenting time. Mother argues that the trial court’s findings that she 
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communicated in code with M.J.F. and taught M.J.F. to “sneak, be dishonest, 

and that rules do not apply if you do not like them” are not supported by the 

evidence. (Appellant’s App. Vol. II, p. 4). Mother’s arguments are not welltaken. Mother testified at the consent hearing that when she had gifts for the 

Children, she would “call up to school and tell [M.J.F.] that I left the keys 

under the car for her to get into the house and that was our code that I dropped 

their stuff off.” (Tr. p. 91). This evidence supported the trial court’s finding 

that Mother communicated with M.J.F. in code. Evidence that Mother met 

with M.J.F. surreptitiously at the child’s work, in the bathroom at a restaurant, 

and communicated with her in code, all in violation of the divorce court’s 

parenting-time order, and all because she was concerned that if Father and 

Stepmother found out M.J.F. “would get in trouble,” supported the other 

disputed factual finding. (Tr. p. 81). 

[30] Mother admits that she met with M.J.F. outside of the parenting time order. 

However, Mother argues that her knowing violation of the parenting time order 

had no detrimental effect on M.J.F because M.J.F. was not harmed, parenting 

time records indicated that she was always appropriate with the Children, and 

the parenting time records showed that she posed no immediate threat to the 

Children. These arguments are additional requests for us to reweigh the 

evidence and to consider evidence that does not support the trial court’s 

determination, something we will not do in light of our standard of review. See

In re Adoption of M.L., 973 N.E.2d at 1222. In addition, Mother’s assertion that 
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she had not spoken to, or made contact with, any of her other children outside 

of parenting time is belied by her testimony at the consent hearing that she 

communicates with the Children on a social media platform. In short, Mother 

does not persuade us that the trial court’s findings and conclusions regarding 

her unfitness were clearly erroneous. 

B. Best Interests

[31] Mother also briefly contends that the trial court’s “best interests” determination 

was unsupported by the evidence, but Mother does not develop any separate 

argument on the issue. We conclude that Mother has waived this issue by 

failing to develop a cogent argument. See Ind. Appellate Rule 46(A)(8); see also

Martin v. Brown, 129 N.E.3d 283, 285 (Ind. Ct. App. 2019) (holding that failure 

to present a cogent argument results in waiver of the issue on appeal). 

[32] Mother’s waiver of the issue notwithstanding, we conclude that the trial court’s 

determination regarding the Children’s best interests was supported by the 

evidence. “The primary concern in every adoption proceeding is the best 

interests of the child.” In re Adoption of M.L., 973 N.E.2d at 1224. This court 

has observed that 

[t]he adoption statute does not provide guidance for which 

factors to consider when determining the best interests of a child 

in an adoption proceeding, but we have noted that there are 

strong similarities between the adoption statute and the 

termination of parental rights statute in this respect. In 

termination cases, we have held that the trial court is required to 
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look to the totality of the evidence to determine the best interests 

of a child. Relevant factors include, among others, a parent’s 

historical and current inability to provide a suitable environment 

for the child, the recommendations of the child’s case worker or 

guardian ad litem, and the child’s need for permanence and 

stability.

In re Adoption of M.S., 10 N.E.3d 1272, 1281-82 (Ind. Ct. App. 2014) (citations 

omitted). 

[33] Stepmother has shared in the care of the Children for several years. She is with 

the Children on a daily basis, helps them with their homework, and takes them 

to their appointments. Stepmother is well-bonded with the Children, and they 

appear to have thrived in her care. Stepmother demonstrated love for the 

Children and excellent parenting when she facilitated parenting time between 

Mother and the Children until that became untenable. The two older children 

executed consents to their adoption. The Children’s GAL testified at the 

consent hearing that she believed that it was in the Children’s best interests to

dispense with Mother’s consent to the adoption because it did not appear to the 

GAL that Mother had done anything to address her mental health or change 

her behavior. This evidence supported the trial court’s determination, and 

therefore, we cannot conclude that determination was clearly erroneous. See 

M.S., 938 N.E.2d at 281-82. 
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CONCLUSION

[34] Based on the foregoing, we conclude that the trial court’s determination that 

Mother’s consent for adoption was not required was supported by the evidence 

and was, therefore, not clearly erroneous. 

[35] Affirmed. 

[36] Baker, J. and Brown, J. concur