Court of Appeals of Indiana | Memorandum Decision 76A04-1410-AD-502 | March 31, 2015 Page 1 of 13

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 APPELLANTS

Latriealle Wheat

Angola, Indiana

ATTORNEY FOR APPELLEES

James C. Yankosky

Tourkow, Crell, Rosenblatt

& Johnston, LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re the Adoption of H.J.S.

J.H.S. and P.L.S.,

Appellants-Petitioners,

v.

B.M.C. and A.J.S.,

Appellees-Respondents

March 31, 2015

Court of Appeals Case No.

76A04-1410-AD-502

Appeal from the Steuben Superior 

Court.

The Honorable William C. Fee, 

Judge.

Cause No. 76D01-1312-AD-8

Baker, Judge.
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[1] J.H.S. (Paternal Grandfather) and P.L.S. (Paternal Grandmother) appeal the 

trial court’s order dismissing their petition to adopt their grandchild, H.J.S. 

(Child). The trial court found that the Paternal Grandparents had thwarted the 

ability of B.C. (Mother) to communicate with Child for the year leading up to 

the filing of the adoption petition and that, consequently, Mother’s consent to 

the adoption was required. The Grandparents argue that some of the trial 

court’s findings are erroneous as a matter of law and that their petition should 

not have been dismissed. Finding that Mother’s consent was not required, we 

reverse and remand for further proceedings.

Facts

[2] Child was born on August 31, 2007, to Mother and Father.1 Child has been 

living with Paternal Grandparents since December 31, 2009. On November 9, 

2010, Paternal Grandparents filed a petition for temporary custody of Child so 

that they could enroll him in preschool. After Mother expressed hesitation 

regarding custody, the parties agreed to meet with a mediator.

[3] Following mediation, Mother and the Paternal Grandparents were able to 

reach an agreement (Mediation Agreement). The Mediation Agreement was 

filed with the trial court on February 8, 2011. In relevant part, the Mediation 

Agreement provides as follows:

 

1

Father had not had contact with Child for at least a year prior to the filing of the adoption petition, so his 

consent to the adoption is not required and he is not participating in this appeal.
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2. All parties agree that it is in [Child’s] best interest that his 

Paternal Grandparents continue to exercise temporary physical 

custody of [Child] and to determine his best interests.

3. Furthermore, all parties agree that it is in [Child’s] best interest 

that his Mother be offered an opportunity to normalize her 

parenting relationship with [Child] in the hopes that she may 

take up the duties of his primary care in the future.

4. To that end, all parties agree that as a first step . . . , that over 

approximately the next six (6) months . . . , Mother will [abide 

by] the following plan:

1. Mother will have predictable and consistent visitation 

with [Child] on alternate weekends or at such times and 

places as she and Paternal Grandparents shall agree.

2. Mother will provide a stable home for [Child] . . . .

3. Mother will provide proof of completing a parenting 

class . . . .

4. Mother will help to facilitate and to support visits 

between [Child] and his Maternal Grandmother . . . .

***

5. All parties agree that the question of Mother’s reasonable 

fulfillment and completion of the above first step, or any 

subsequent steps outlined below, will be at Paternal 

Grandparents’ discretion, but contestable by Mother if she 

believes they are being unreasonable . . . , first through an 

appeal privately in mediation, but, if needed thereafter, to the 

Court.

***

10. All parties agree that until such time as such a stipulation is 

provided to the Court, Paternal Grandparents will remain the 

temporary custodians of [Child] and will have the duty and 

responsibility to set the pace and exercise the discretion 

required in the above [sic] at each step to advance to the next 

step, with Mother’s right to contest their judgment as outlined 

in paragraph five (5) above.

***
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13. Finally, all parties agree that, should any future private efforts 

at conflict resolution not prove successful, they will return to 

mediation at the unilateral request of either Paternal 

Grandparents or Mother as their first step towards formal 

conflict resolution before filing any future petition with the 

court . . . .

Tr. Ex. 3. p. 7-12. The Mediation Agreement goes on to outline several more 

steps to work through after completion of the above-described first step. The 

trial court adopted the Mediation Agreement and awarded Paternal 

Grandparents temporary custody of Child on February 8, 2011.

[4] Mother had not yet completed the first step of the Mediation Agreement as of 

the adoption hearing on August 6, 2014. She had failed to complete a parenting

class despite having over three years to do so. She had failed to obtain stable 

housing, instead living in multiple states and cities with different boyfriends, at 

times actively concealing her location from Paternal Grandparents.

[5] Mother did, however, exercise her parenting time rights for over a year. In fact, 

as of March 2012, Mother was taking Child to the home of Maternal 

Grandmother for full weekend visitations. At some point, Paternal 

Grandparents learned that two people living with Maternal Grandmother had 

been recently charged with multiple drug offenses.

2

 One of the probable cause 

affidavits specified that on April 12, 2012, there was marijuana, drug 

paraphernalia, methamphetamine, and a handgun in Maternal Grandmother’s 

 

2 Both individuals ended up pleading guilty to possession of methamphetamine.
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home. After learning of the drug issues in Maternal Grandmother’s home, 

Paternal Grandparents no longer permitted Child to spend the night in that 

home because they feared for his safety. They still let Child visit that residence 

because Maternal Grandmother stated that those two individuals had moved 

out. At some point, however, Mother posted a picture on Facebook of one of 

the people convicted of drug offenses sleeping on a couch next to Child at 

Maternal Grandmother’s home. 

[6] After seeing that picture, Paternal Grandparents stated that parenting time 

would have to occur at a public location rather than in Maternal 

Grandmother’s home. Mother selected a McDonald’s for those visits. The first 

McDonald’s visit was uneventful. At some point, Mother failed to show for 

one of the visits. On another occasion, Maternal Grandmother came with 

Mother to the visit and engaged Paternal Grandparents in a verbal altercation 

in front of the Child when they refused her request to have Child spend 

Christmas at her home.

[7] Paternal Grandparents believed that conflict and verbal altercations were not 

healthy for Child and concluded that it would be best for Child if they were no 

longer present for Mother’s visits. Given the past problems, however, they were 

reluctant to permit the visits to occur in an unsupervised setting. On December 

10, 2012, Paternal Grandparents sent Mother a letter stating that they planned 

to have her visits set up at an agency called Family Ties, which is able to 

supervise parenting time. They provided her with the agency’s phone number 

and the name of the contact person to call to set up the visits. In the letter, 
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Paternal Grandparents also stated that Mother could take Child to her family’s 

Christmas party on Christmas Eve.

[8] Mother did not call Family Ties. Paternal Grandmother called Family Ties, 

and was mistakenly informed that a court order was needed for parenting time 

to take place at that facility. Neither Mother nor Paternal Grandmother 

followed up. Mother did not take Child to her family’s Christmas party 

because “somethin’ came up.” Tr. p. 95. Mother’s last visit with Child was at 

McDonald’s on December 9, 2012.

[9] Between December 10, 2012, and December 10, 2013, Mother called or texted 

Paternal Grandparents on two or three occasions. Paternal Grandparents did 

not respond. During that year, Mother never sought mediation pursuant to the 

Mediation Agreement, stopped by Paternal Grandparents’ home, followed up 

with Family Ties, or pursued relief from the trial court.

[10] On December 10, 2013, Paternal Grandparents filed a petition to adopt Child. 

On August 6, 2014, the trial court held an evidentiary hearing regarding the 

issue of Mother’s consent. At the hearing, the director of Family Ties testified 

that a court order is not required for the facility to supervise parenting time. Tr. 

p. 78. On September 25, 2014, the trial court entered an order dismissing the 

petition because of a lack of consent from Mother. In relevant part, the trial 

court found and concluded as follows:

3. [Mother] was granted unsupervised parenting time with the 

child pursuant to this Court’s Order dated February 8, 2011 
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(ratifying [the Mediation Agreement]). The Order has not been 

modified.

***

5. [Mother] communicated significantly in person with [Child] 

after September 4, 2012 through December 9, 2012 both at her 

residence and at McDonald’s . . . .

***

8. The Court’s Order of February 8, 2011, regarding visitation 

does not call for any of Mother’s visitation to be supervised nor 

does it specify that any visitation will be conducted at [Family 

Ties].

***

12. [Mother’s] uncontroverted testimony is she tried contacting the 

[Paternal Grandparents] by cell phone after December 9, 2012 

and into the early part of 2013 to visit with [Child] but her 

phone calls and text messages went unanswered.

***

14. As of December 10, 2012, the [Paternal Grandparents] have 

negated efforts on [Mother’s] behalf to communicate 

significantly/exercise visitation with [Child] by:

 Refusing to answer or return phone calls from [Mother] 

regarding visitation;

 Refusing to meet at a mutually acceptable place for 

visitations . . . ; and

 Mandating that any visitation between [Mother] and [Child] 

after December 9, 2012, be supervised at [Family Ties] despite 

uncontroverted testimony that this facility required a court order 

to facilitate such visitation.

***

20. The [Paternal Grandparents], in refusing to answer [Mother’s] 

phone calls and text messages, and in mandating supervised 

visitation when the Court had not required such, have 

hampered and/or thwarted significant communication from 

occurring between [Mother] and [Child].
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21. Based upon the foregoing, the Court FINDS that the [Paternal 

Grandparents] have failed to meet their burden of proof, by 

clear and convincing evidence, that for a period of at least one 

year since [December] 9, 2012, [Mother] has failed without 

justifiable cause to communicate significantly with [Child] 

when able to do so.

Appellant’s App. p. 7-12. Paternal Grandparents now appeal.

Discussion and Decision

[11] Our Supreme Court has recently clarified the standard of review to be applied 

to adoption proceedings:

“When reviewing the trial court’s ruling in an adoption proceeding, we 

will not disturb that ruling unless the evidence leads to but one 

conclusion and the trial judge reached an opposite conclusion.” Rust v. 

Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999). We presume the 

trial court’s decision is correct, and we consider the evidence in the 

light most favorable to the decision. Id. at 771–72.

When, as in this case, the trial court has made findings of fact and 

conclusions of law, we apply a two-tiered standard of review: “we 

must first determine whether the evidence supports the findings and 

second, whether the findings support the judgment.” In re Adoption of 

T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006); see also Ind. Trial 

Rule 52(A) (providing that where the trial court has made findings of 

fact and conclusions of law, “the court on appeal shall not set aside the 

findings or judgment unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the credibility of the 

witnesses.”). Factual findings “are clearly erroneous if the record lacks 

any evidence or reasonable inferences to support them [and] . . . a 

judgment is clearly erroneous when it is unsupported by the findings of 

fact and the conclusions relying on those findings.” T.W., 859 N.E.2d 

at 1217.

In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).
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[12] As a general rule, a petition to adopt a child under the age of eighteen will be 

granted only if written consent to the adoption has been executed by the child’s 

parents. Ind. Code § 31-19-9-1(a). Indiana Code section 31-19-9-8, however, 

sets forth an exception to the general rule:

(a) 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:

(A) fails without justifiable cause to communicate 

significantly with the child when able to do so[.]

In seeking an adoption without consent from the parents, the petitioner must 

meet the burden of proof by clear and convincing evidence. In re Adoption of 

S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).

[13] This Court has discussed the evidence that is required to satisfy the above 

statutory exception to the general consent rule:

Initially, we note that a party petitioning to adopt without parental 

consent has the burden of proving both a lack of communication for 

the statutory period and that the ability to communicate during that 

time period existed. Whether this burden has been met is necessarily 

dependent upon the facts and circumstances of each particular case, 

including, for example, the custodial parent’s willingness to permit 

visitation as well as the natural parent’s financial and physical means 

to accomplish his obligations. Efforts of a custodial parent to hamper or 

thwart communication between parent and child are relevant in determining 

the ability to communicate. However, in order to preserve the consent 

requirement for adoption, the level of communication with the child must be 

significant, and also must be more than “token efforts” on the part of the parent 

to communicate with the child. The reasonable intent of the statute is to 

encourage non-custodial parents to maintain communication with 
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their children and to discourage non-custodial parents from visiting 

their children just often enough to thwart the adoptive parents' efforts 

to provide a settled environment for the children. 

In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal 

citations omitted) (emphasis added).

[14] In this case, the trial court based its conclusion regarding Mother’s consent on 

three basic findings of fact: (1) that Paternal Grandparents required that 

Mother’s visits be supervised, ostensibly in violation of the Mediation 

Agreement; (2) that Paternal Grandparents required that Mother’s visits take 

place at a facility that ostensibly required a court order to supervise parenting 

time; and (3) that Paternal Grandparents failed to return Mother’s two or three 

phone calls and texts. We will consider each of these in turn.

[15] First, the trial court found that the Mediation Agreement granted Mother 

unsupervised parenting time. Appellant’s App. p. 7-8. This is incorrect. The 

Mediation Agreement does not specify whether Mother’s parenting time was to 

be supervised or unsupervised. Instead, it says that it was up to Paternal 

Grandparents to determine what was in Child’s best interests and that 

visitation, as well as Mother’s compliance with the terms of the Mediation 

Agreement, was within the discretion of Paternal Grandparents. Tr. Ex. 3 p. 8-

9. Mother had the right to seek redress from a mediator and/or the trial court if 

she believed that Paternal Grandparents were abusing their discretion.

[16] Second, the trial court found that the Mediation Agreement does not specify 

that visits were to take place at Family Ties. While this is technically correct, as 
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noted above, the agreement does state that visits were within the discretion of 

Paternal Grandparents. The trial court also found that there was 

“uncontroverted testimony that [Family Ties] required a court order to facilitate 

such visitation.” Appellant’s App. p. 9. This is incorrect, inasmuch as the 

director of Family Ties testified at the hearing that a court order is not required 

to facilitate parenting time. Tr. p. 78-79. She testified that it was “possible, but 

unlikely,” that a Family Ties employee had mistakenly informed Maternal 

Grandmother that a court order was required, but it is undisputed that, in fact, 

no court order is required. Id. at 79.

[17] Third, the trial court found that Paternal Grandparents failed to answer or 

return Mother’s phone calls or texts. This is correct, but must be considered in 

context. Between February 2011 and December 2012, Paternal Grandparents 

made every effort to enable Mother and Child to see each other. They allowed 

overnight visits at Maternal Grandmother’s home, until residents of that home 

were convicted of possessing drugs inside that residence. They still allowed 

Child to visit the home during the day, until they learned that one of the 

convicted drug offenders was still maintaining a presence in that home. 

Paternal Grandparents then asked that Mother’s visits take place at a public 

location, which they let her select. And after Maternal Grandmother initiated a 

verbal altercation at one of those visits, in front of the Child, Paternal 

Grandparents determined that it was in Child’s best interests that they no longer 

be present at the visits. But given the unstable history of those visits and of 

Mother’s living situation, Paternal Grandparents asked that the visits be 
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supervised. Of their own initiative, they found an agency that would help, and 

informed Mother of the name, phone number, and contact person for that 

agency. Paternal Grandparents also told Mother that Child could join her for 

her family’s Christmas party.

[18] Notwithstanding all of these efforts, Mother did not call Family Ties, nor did 

she follow up when Maternal Grandmother reported that a court order was 

required. Mother did not take Child to her family Christmas party. Mother 

called and texted Paternal Grandparents two or three times between December 

2012 and the beginning of 2013, but quickly gave up after she received no 

response.

[19] Mother had the right, under the Mediation Agreement, to seek mediation on 

the issue of her parenting time. She did not. She also did not seek redress from 

the trial court. Mother worked just blocks from the home of Paternal 

Grandparents and Child, but she never went there in person. Mother had 

previously visited the workplace of Paternal Grandparents, but never once went 

there in person during the year leading up to the filing of the adoption petition. 

Mother never sent cards or letters to Child during that year.

[20] To determine whether Mother’s consent is required, the trial court need 

examine only the year prior to the filing of the petition. I.C. § 31-19-9-8(a)(2). 

In that year, Mother made two or three phone calls, and made no further efforts 

to see Child. As noted above, more than “token efforts” on the part of the 

parent to communicate with the child are required to retain the right to consent 
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to an adoption. C.E.N., 847 N.E.2d at 271-72. Mother’s two or three phone 

calls and text messages, over the course of an entire year, amount to only token 

efforts to communicate with Child. And Paternal Grandparents’ failure to 

return those few calls does not amount to an attempt to thwart that 

communication. 

[21] We find that the evidence in this case leads to but one conclusion—that, in the 

year prior to the filing of the adoption petition, Mother failed without justifiable 

cause to communicate with Child despite having the opportunity to do so. 

Consequently, her consent to the adoption was not required and it was 

erroneous to dismiss the adoption petition.

[22] The judgment of the trial court is reversed and remanded for further 

proceedings consistent with this opinion.

Najam, J., and Friedlander, J., concur.