Court of Appeals of Indiana | Opinion 09A02-1612-AD-2844 | August 30, 2017 Page 1 of 15

ATTORNEY FOR APPELLANT

Kevin C. Tankersley 

Winamac, Indiana

ATTORNEY FOR APPELLEE

T. Andrew Perkins 

Peterson Waggoner & Perkins, 

LLP 

Rochester, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re Adoption of D.M.

Michael Mendez,

Appellant,

v.

Brent L. Weaver,

Appellee.

August 30, 2017

Court of Appeals Case No.

09A02-1612-AD-2844

Appeal from the Cass Circuit 

Court

The Honorable Leo T. Burns, 

Judge

Trial Court Cause No.

09C01-1604-AD-6

Brown, Judge.
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[1] Michael Mendez (“Mendez”), the natural father of D.M., appeals from the trial 

court’s decree of adoption. Mendez raises one issue which we revise and 

restate as whether the court erred in finding that his consent to the adoption

was not required. We affirm. 

Facts and Procedural History

[2] D.M. was born to Mendez and Leilani Mendez (“Leilani”) in June 2010. For 

nearly the first two years of D.M.’s life, Mendez lived with Leilani and D.M. 

and was a stay-at-home father. C.L., Leilani’s child from a previous 

relationship, also lived part-time with Mendez and Leilani. In May 2012,

Mendez was arrested for molesting C.L. and later pled guilty to child molesting

as a class C felony.1 He was sentenced to sixteen years with eight years 

suspended, and a 2012 no contact order provided that he have no contact with 

Leilani, C.L., or D.M.2 A decree of dissolution was issued in October 2012

dissolving the marriage of Mendez and Leilani.3 Mendez was released from the 

Department of Correction (the “DOC”) to Cass County Community 

 

1 At the August 22, 2016 hearing, Leilani testified that, as of the date of the hearing, C.L. was twelve years 

old and D.M. was six years old. 

2 Mendez’s 2012 no contact order provided that, as a condition of probation, Mendez was ordered to have no 

contact with Leilani, C.L., or D.M. and, under paragraph 16, stated: “You shall have no contact with your 

victim or victim’s family unless approved in advance by your probation officer and treatment provider for the 

benefit of the victim.” Respondent’s Exhibit A. 

3

Paragraph 6 of the dissolution decree provided “no child support is ordered to be paid by [Mendez] at this 

time due to the fact that he is currently incarcerated and has no source of income.” Respondent’s Exhibit B. 

Paragraph 7 provided “[Mendez] is not requesting parenting time currently, and his parenting time is hereby 

suspended based on a finding that a no contact order has been entered . . . prohibiting [Mendez] from any 

contact with [D.M.]” and “[Mendez] shall appear before this Court to request parenting time with the minor 

child upon his release from incarceration, and the Court will schedule a hearing upon a written motion.” Id. 
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Corrections on August 18, 2015, obtained a job in September 2015, and was 

released from the community corrections facility on November 9, 2015. 

Meanwhile, Leilani began dating Brent Weaver in the fall of 2012, they moved 

in together in the spring of 2013, and they were married on March 5, 2016. 

[3] On March 31, 2016, Weaver filed a Petition for Step-Father’s Adoption of 

Minor requesting to adopt D.M. On May 23, 2016, Mendez filed a motion to 

contest the adoption. On August 22, 2016, the trial court held a hearing at 

which it heard testimony from Leilani, Weaver, and Mendez and admitted into 

evidence the July 2015 no contact order and the October 2012 decree of

dissolution. Leilani testified that C.L. lived with her and Mendez part-time, 

and when asked “when the molestation happened, was [D.M.] on the premises 

at all,” Leilani responded affirmatively. Transcript at 6. When asked “[w]as 

[D.M.] in the same room when it happened,” Leilani stated “[s]he was.” Id. 

When asked “when this happened,” Leilani replied “[s]he was 7 she was almost 

8.” Id. Leilani testified that the last time Mendez saw D.M. was May of 2012,

that Mendez had not made contact with her through an attorney to reestablish 

any contact with D.M., and that Mendez has not provided any financial 

support. She testified: 

[D.M.] has no recollection of [Mendez] in her life. She was not 

quite 2 when he was arrested . . . she’s 6 now, she’s happy, she’s 

healthy, she’s very well rounded and I think that if [Mendez] 

were to come back into her life it would be very disruptive, to be 

honest, I don’t trust him. I don’t think it would be healthy, and 

[C.L.] is 12 years old. She just started 7th grade, she is in cheer 

and volleyball and she’ [sic] active and she’s not going to 
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counseling anymore and she’s not afraid to go to sleep in her 

own bed anymore and she’s living a normal teenage life . . . . 

Id. at 11-12. When asked “[s]o, she was in counseling or sometime,” Leilani

replied “[y]es, absolutely, and when asked if C.L. had memories of what 

happened, Leilani testified “[a]bsolutely. And she the little mom, she’s just like 

me and she’s so protective of [D.M.] and if she knows that [D.M.] has to see 

[Mendez], it’s going to put her in a tail-spin.” Id. at 12. She testified Weaver 

had been a father figure for D.M. When asked “what would you think the 

affect would be on [D.M.] if she were told or have someone else replace her 

current father figure in her life,” Leilani testified “I think it would turn her 

world upside down and my kids have had that happen already once.” Id. at 13. 

[4] On cross-examination, when asked if Mendez “admitted what he did to 

[C.L.],” Leilani replied “[a]nd [G.], yes.” Id. at 15. When asked “[s]o, the facts 

at least in the criminal case was that he admitted to those 2, to molestation on 

[C.L.] and the other girl that was there that was a family friend or . . . ,” Leilani 

replied “[c]orrect.” Id. at 15. When asked if Mendez attempted to contact her 

and D.M. when he was in jail awaiting trial, Leilani testified “he called his 

parents, his parents were down and he tried to talk to them through them, talk 

to her through the parents, but no, that was the only time,” and she indicated 

that she reported Mendez to the prosecutor. Id. at 19. She also indicated that 

Mendez never bonded out after he went to jail and was incarcerated from 2012 

to 2015. Weaver testified he functioned and served as the father figure for 
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D.M. for the previous four years and provided for D.M. financially and 

emotionally. 

[5] Mendez testified that he was “basically a stay at home dad” and raised D.M. 

prior to May 2012. Id. at 33. He testified he took a substance abuse class and 

received a six-month time cut, and that his understanding was he would have 

the opportunity to petition the court to see D.M. after he completed counseling 

and his probation officer approved it. When asked if he was afforded any 

counseling for sexual offenders while incarcerated, he replied that he completed 

a three-month sex offender monitoring and management program 

(“INSOMM”) while in the DOC. He indicated that, since his release, he made 

contact with probation, his probation officer set him up with a counselor, and 

he was currently seeing the counselor and had been doing so since his release in 

November. When asked how long he “expects the treatment to go,” he

answered “[f]rom my understanding, it could last as long as my entire 

probation.” Id. at 42. When asked if he was prepared to petition the court to 

modify support, Mendez replied affirmatively, and stated he wished to have an 

opportunity to have a relationship with D.M. in the future and was prepared to 

pay for any counseling that might be required to overcome over any hurdles. 

[6] On cross-examination, Mendez indicated he was required to participate in the 

INSOMM as a part of his sentence and it was not voluntary, he was initially 

charged with class A felonies, he had been working since September 2015, and 

he had not filed a petition with the court regarding the no contact issue or 

financial support. He indicated he had been able to financially support his 
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daughter since September 2015 when he became employed. Mendez stated 

that, according to his terms, he must obtain approval of his probation officer 

prior to contacting his daughter and that he did not have that approval. When 

asked “you have not successfully completed a court approved sex offender 

treatment program . . . [o]ther than your [INSOMM],” he answered “[i]t is not 

completed, no,” and when asked “[w]as [INSOMM] supposed to count for 

this,” he replied “[n]o.” Id. at 48. Mendez also acknowledged he had a 

conviction for battery prior to D.M.’s birth. 

[7] On October 14, 2016, the court entered an Amended Decree of Adoption 

granting Weaver’s petition to adopt D.M.4 In its decree, the court found in part 

that, as a result of a no contact order that was entered in the criminal 

proceeding and the suspended parenting time order in the dissolution decree, 

Mendez has had no contact with D.M. since the time of his arrest, that from his 

employment through the work release center in August 2015 through the 

hearing in August 2016 he has made no effort to pay support for D.M. in any 

manner, and that it recognizes that Mendez’s ability to contact D.M. directly is 

prohibited by the no contact order. The court also found that the dissolution 

decree provided that Mendez was required to request parenting time with D.M. 

upon his release from incarceration and there is no evidence he has done so, 

that D.M. has no recollection of her relationship with Mendez, and that 

 

4 Entries in the chronological case summary indicate the court entered a “Decree of Adoption” and then an 

“Amended Decree of Adoption,” the entries state both orders were signed on October 14, 2016, and 

Mendez’s brief states that the amended decree was issued to correct a spelling error. 
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Weaver began living with Leilani, D.M., and C.L in 2013 and married Leilani 

in 2016. The decree concludes: 

21. Insofar as Michael Mendez is the natural parent of the child 

to be adopted, the findings and legal conclusions of this Court are 

controlled by Ind. Code 31-19-9-8[(a)]11(A) and (B). 

22. The consent of Michael Mendez to this petition for adoption 

is not required because there is clear and convincing evidence 

that he is unfit to be a parent due to the fact that his conviction of 

child molesting, a Class C Felony, against the child’s sibling, 

while not a disqualifying conviction because the conviction was 

not for a Class A or Class B felony, renders him unfit because the 

crime was committed in the child’s home, the parent, Michael 

Mendez, was in a position of trust with respect to the child 

[D.M.] and her victim sibling at a time when Michael Mendez 

had a parental and moral duty to provide care, nurture and 

protection to both the child, [D.M.], and her sibling. 

23. The best interest of the child will be served by this Court’s 

finding that her natural father’s consent is not required because, 

as previously stated, [D.M.] has no recollection of her natural 

father, the child is happy and well-rounded and has a sibling 

relationship with her 12 year old sister, [C.L.], and has a longstanding three year relationship with [Weaver].

Appellant’s Appendix Volume 2 at 7. Mendez filed a motion to correct error, 

which the court denied. 

Discussion

[8] The issue is whether the trial court erred in finding that Mendez’s consent to the 

adoption of D.M. by Weaver was not required. When reviewing the trial 

court’s ruling in an adoption proceeding, we will not disturb that ruling unless 
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the evidence leads to but one conclusion, and the trial court reached the 

opposite conclusion. In re Adoption of K.S., 980 N.E.2d 385, 387 (Ind. Ct. App.

2012) (citing In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App.

2004)). We will not reweigh the evidence, but instead will examine the 

evidence most favorable to the trial court’s decision together with reasonable 

inferences drawn therefrom, to determine whether sufficient evidence exists to 

sustain the decision. Id. The decision of the trial court is presumed to be 

correct, and it is the appellant’s burden to overcome that presumption. Id.

Recognizing the fundamental importance of the parent-child relationship, our 

courts have strictly construed the statute to preserve that relationship. Id.

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. Id. 

[9] Ind. Code § 31-19-11-1 provides that the trial court “shall grant the petition for 

adoption and enter an adoption decree” if the trial court hears evidence and 

finds, in part, that “the adoption requested is in the best interest of the child” 

and “proper consent, if consent is necessary, to the adoption has been given.” 

Ind. Code § 31-19-9-8 provides:

(a) Consent to adoption, which may be required under section 1 

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

* * * * *

(11) A parent if:
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(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.

The party bearing the burden of proof in a proceeding under this chapter must 

prove the party’s case by clear and convincing evidence, Ind. Code § 31-19-10-

0.5, and if a petition alleges a parent’s consent to adoption is unnecessary under 

Ind. Code § 31-19-9-8(a)(11) and the parent files a motion to contest the 

adoption, the petitioner has the burden of proving that the requirements of Ind. 

Code § 31-19-9-8(a)(11) are satisfied and that the best interests of the child are 

served if the court dispenses with the parent’s consent to adoption. Ind. Code § 

31-19-10-1.2. The provisions of Ind. Code § 31-19-9-8 are written in the 

disjunctive and thus each provide independent grounds for dispensing with 

parental consent. In re Adoption of K.S., 980 N.E.2d at 388. Regardless of which 

provision is relied upon, adoption is granted only if it is in the best interests of 

the child. Id. (citing Ind. Code § 31-19-11-1(a)). 

[10] 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.” In re 

Adoption of M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012) (quoting BLACK’S 

LAW DICTIONARY 1564 (8th ed. 2004)). We have also noted that statutes 

concerning the termination of parental rights and adoption “strike a similar 
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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. Id. 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. 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. See In re A.P., 981 

N.E.2d 75, 83 (Ind. Ct. App. 2012). 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. In re Adoption of 

H.N.P.G., 878 N.E.2d 900, 907 (Ind. Ct. App. 2008), trans. denied, cert. denied, 

129 S. Ct. 619 (2008). Evidence is relevant if it has any tendency to make the 

existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence. Ind. 

Evidence Rule 401. A parent’s criminal history is relevant to whether the 

parent is unfit to be a parent under Ind. Code § 31-19-9-8(a)(11). See In re T.W.,

859 N.E.2d 1215, 1218-1219 (Ind. Ct. App. 2006) (discussing evidence of the 

father’s criminal history in reviewing the trial court’s finding of parental 

unfitness). 
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[11] Mendez argues that the trial court specifically relied on his conviction for child 

molesting as a class C felony, cites to Ind. Code § 31-19-9-10,5 and argues that 

the statute “considers the very factors relied upon by the court to dispense with 

[his] consent, but the statute still requires a conviction for a Class A or B felony 

molestation,” “[t]he legislature would have provided that a class C felony can 

be considered an automatic waiver of consent if the victim was a half-blood 

sibling if it intended to authorize the courts to rely on this fact situation,” and 

that “reliance on this statute also fails because the statute requires that [he be ] 

incarcerated at the time of the filing of the petition for adoption.” Appellant’s 

Brief at 16. He further argues he has taken responsibility for his crime by 

pleading guilty, served his sentence and was released six months early, 

completed substance abuse treatment and the State’s sex offender management 

and monitoring program while in custody, has been doing follow-up treatment 

with his therapist, and is compliant with probation in every aspect. 

 

5

Ind. Code § 31-19-9-10 provides in part: 

A court shall determine that consent to adoption is not required from a parent if: 

(1) the parent is convicted of and incarcerated at the time of the filing of a 

petition for adoption for: 

* * * * *

(F) child molesting . . . as a: . . . Class A or Class B felony, for a crime 

committed before July 1, 2014; 

* * * * *

(2) the child or the child’s sibling, half-blood sibling, or step-sibling of the 

parent’s current marriage is the victim of the offense; and

(3) after notice to the parent and a hearing, the court determines that dispensing 

with the parent’s consent to adoption is in the child’s best interests. 
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[12] Weaver maintains the evidence supports the court’s finding Mendez is unfit and 

points to the facts that Mendez committed child molesting against D.M.’s halfsister C.L. at a time when he was living with D.M. and Leilani, C.L. had to go 

through counseling, Mendez also molested another girl who was a family friend 

who was staying at their home, and the molestation of C.L. occurred while 

D.M. was in the same room. He argues that, besides the molestation, Mendez

did not petition the court for visitation upon his release from incarceration 

despite being authorized to do so in the dissolution decree, made no attempt to 

provide financial support for D.M. even though he was employed and was able 

to offer financial support since September 2015, violated the no contact order, 

and admitted to a previous unrelated battery conviction. Weaver further 

contends the evidence supports the court’s bests interests determination, D.M. 

simply does not know Mendez, a visitation arrangement with Mendez would 

“‘turn [D.M.’s] world upside down,’” and Weaver’s involvement as a father 

figure in D.M.’s life has been consistent. Appellee’s Brief at 9-10 (citing 

Transcript at 13). 

[13] To the extent Mendez challenges the trial court’s consideration of his class C 

felony child molesting conviction in determining that he is unfit to be a parent 

under Ind. Code § 31-19-9-8(a)(11), the primary goal in interpreting a statute is 

to fulfill the legislature’s intent and, if that language is clear and unambiguous, 

we simply apply its plain and ordinary meaning, heeding both what it does say

and what it does not say. State v. Brown, 70 N.E.3d 331, 334 (Ind. 2017) (citing 

State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)). We presume the legislature 
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intended logical application of the language used in the statute so as to avoid 

unjust or absurd results. Cook v. Atlanta, Ind. Town Council, 956 N.E.2d 1176, 

1178 (Ind. Ct. App. 2011), reh’g denied, trans. denied. Ind. Code § 31-19-9-

8(a)(11) does not expressly prohibit the trial court from considering a parent’s 

criminal history, including a conviction for child molesting as a class C felony, 

in determining whether the parent is unfit to be a parent. Further, although 

Ind. Code § 31-19-9-10 provides that consent to adoption is not required from a 

parent who is convicted of child molesting as a class A or B felony under 

certain circumstances, the statute does not provide that a parent’s conviction for 

child molesting as a class C felony—or for that matter the parent’s conviction 

for another crime or another offense—may not be considered by the trial court 

in determining whether the parent is unfit to be a parent under Ind. Code § 31-

19-9-8(a)(11). The plain and ordinary meaning of the statutory language does 

not preclude a trial court from considering the circumstances of a parent’s 

criminal activity in determining whether the parent is unfit to be a parent. 

[14] The trial court found that Mendez is unfit to be a parent under Ind. Code § 31-

19-9-8(a)(11) due to the fact his crime of child molesting as a class C felony was 

committed in D.M.’s home and that Mendez was in a position of trust with 

respect to D.M. and C.L. at a time when he had a parental and moral duty to 

provide care, nurture, and protection to D.M. and C.L. The court also found 

that Mendez has made no effort to pay support for D.M. in any manner or that 

he has pursued parenting time. Evidence was presented which supports the 

trial court’s findings. Mendez’s sexual misconduct and convictions are relevant 
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to whether he is unfit to be a parent under the statute. Additionally, Mendez 

did not pay child support for D.M. although he was employed beginning in 

September 2015 and acknowledged that he was able to offer financial support. 

See In re Adoption of M.A.S., 815 N.E.2d at 220 (noting Indiana law imposes a 

duty upon a parent to support his children and that this duty exists apart from 

any court order or statute). Following his release, Mendez did not file a 

petition for visitation although directed to do so by the dissolution decree. See

Respondent’s Exhibit B (decree of dissolution states Mendez “shall appear 

before this Court to request parenting time with the minor child upon his 

release from incarceration”). 

[15] The trial court also found that the best interests of D.M. are served by its 

finding that Mendez’s consent is not required and noted evidence that D.M. has 

no recollection of Mendez, is happy and well-rounded, has a sibling 

relationship with her twelve-year-old sister C.L., and has a long-standing threeyear relationship with Weaver. The evidence presented at the hearing supports 

these findings as well. 

[16] The evidence most favorable to the trial court’s decision supports its conclusion 

that Mendez’s consent to the adoption is not required pursuant to Ind. Code §

31-19-9-8(a)(11). Based upon the record, we cannot say that the evidence leads 

to but one conclusion and the trial court reached an opposite conclusion. 

Conclusion

[17] For the foregoing reasons, we affirm the trial court’s decree of adoption. 
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[18] Affirmed. 

May, J., and Pyle, J., concur.