Court of Appeals of Indiana | Memorandum Decision 18A-AD-2812 | May 21, 2019 Page 1 of 12

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

Deidre L. Monroe

Public Defender’s Office

Crown Point, Indiana

ATTORNEY FOR APPELLEES

Julie R. Glade

Law Office of Julie R. Glade, RN,

JD

Merrillville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

May 21, 2019 

Court of Appeals Case No.

18A-AD-2812 

Appeal from the Lake Superior

Court 

The Honorable Alexis Vazquez 

Dedelow, Referee 

Trial Court Cause No. 

45D06-1708-AD-139 

R.S.,

Appellant-Respondent,

v. 

J.S.S. and K.S., 

Appellees-Petitioners

May, Judge.
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[1] R.S. (“Father”) appeals the trial court’s grant of a petition to adopt R.D.S.1

(“Child”) filed by J.S.S. (“Stepfather”). Father argues Stepfather did not 

provide sufficient evidence from which the trial court could make findings and 

conclusions that: (1) Father had failed to significantly communicate with Child 

for at least a year; (2) Father had failed to provide for the care of Child for at 

least a year; and (3) adoption was in Child’s best interests. We affirm.

Facts and Procedural History

[2] K.S. (“Mother”) gave birth to Child on June 25, 2011. On March 12, 2014, 

Father established paternity, was granted parenting time pursuant to the 

Indiana Parenting Time Guidelines, and was ordered to pay $50.00 per week in 

child support. Mother married Stepfather in July 2017, though Stepfather has 

been a presence in Child’s life since approximately 2012.

[3] On August 23, 2017, Stepfather filed a verified petition for adoption, which 

alleged Father’s consent to the adoption was not required per statute. Father 

appeared at the initial adoption hearing on January 29, 2018, and orally 

objected to Child’s adoption. The trial court appointed counsel for Father. On 

March 5 and April 16, 2018, the trial court held hearings regarding Child’s 

adoption, specifically regarding whether Father’s consent was required for the 

adoption and whether adoption was in Child’s best interests. On October 2,

 

1 As part of the adoption order, Child’s name was changed to D.A.D.
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2018, the trial court entered its order on adoption, outlining numerous findings 

to support its decision to grant Stepfather’s petition to adopt Child. On October 

22, 2018, the trial court issued an order and decree of adoption granting 

Stepfather’s petition to adopt Child.

Discussion and Decision

[4] We will not disturb a decision in an adoption proceeding unless the evidence 

leads to but one conclusion and the trial judge reached an opposite conclusion. 

In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). We will not 

reweigh the evidence or judge the credibility of witnesses. Id. Instead we 

examine the evidence most favorable to the decision together with reasonable 

inferences drawn therefrom to determine whether there is sufficient evidence to 

sustain the decision. Id. The decision of the trial court is presumed correct, and 

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

[5] When, as here, the trial court sua sponte enters findings of fact and conclusions 

of law pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of 

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

denied. First, we determine whether the evidence supports the findings and 

second, whether the findings support the trial court’s conclusions. Id. The trial 

court’s findings or conclusions 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. Issues on which 

the trial court makes no findings will be reviewed as a general judgment. C.B. v. 
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B.W., 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. A “general 

judgment will be affirmed if it can be sustained upon any legal theory by the 

evidence introduced at trial.” Id.

Consent Not Required

[6] Generally, courts may not grant a petition for adoption without the consent of 

the child’s biological parents. Ind. Code § 31-19-9-1(a). There are, however, 

exceptions to that general rule. The exception at issue herein provides:

(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; or 

(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:
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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.

Ind. Code § 31-19-9-8(a)(2)(B) (2016). When considering whether a parent has 

knowingly failed to support a child for one year, we note “the relevant time 

period 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), reh’g denied, trans. denied. 

[7] Father argues Stepfather did not adequately demonstrate his consent was not 

required due to failure, for a period of one year, to communicate significantly 

with Child or to provide for Child’s care. Because Indiana Code section 31-19-

9-8 is written in the disjunctive, we need only to decide if Stepfather provided 

sufficient evidence for one of these factors. See Matter of Adoption of E.M.L., 103 

N.E.3d 1110, 1116 (Ind. Ct. App. 2018) (statute written in disjunctive therefore 

petitioner required to prove one factor), trans. denied. We conclude Stepfather 

presented sufficient evidence to support the findings and conclusion that 

Father’s consent was not required because Father had failed to provide for 

Child’s care and support for at least a year.

[8] Regarding this issue, the trial court found:
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9. Pursuant to the Judgement on Paternity, Child Support and 

Parenting Time entered on March 12, 2014, Father was awarded

parenting time with Minor Child on alternating weekends from 

Friday at 4:30 p.m. to Sunday at 6:00 p.m. and holidays pursuant 

to the Indiana Parenting Time Guidelines and Father’s weekly 

child support obligation was ordered at $50.00 per week in 

support.

* * * * *

24. Per Court Orders of October 15, 2013, and March 12, 2014, 

Father was ordered to pay child support for Minor Child in the 

amount of $50.00 per week retroactive to October 15, 2013. 

Father was employed at a gas station at the time. Father worked 

odd jobs between 2014 and 2017; including, but not limited to 

working at Trinity Hospital, Wendy’s, Strack’s, his uncle’s 

company and IHOP.

25. Between 2012 and 2014, Father paid a total of $900.00 

directly to Mother toward child support payments; and, an 

additional $200.00 in 2013.

26. In the summer of 2014, Father contacted Mother asking her 

to meet him in Whiting, Indiana, so that he could pay her 

$150.00 toward child support. At said meeting, Father asked 

Mother for a kiss, then became angry and belligerent. Father 

appeared to be intoxicated and was unstable on his bicycle. 

Mother was concerned for her safety and Father did not give 

Mother the child support he had promised.

27. Paternal grandmother opened a savings account for all of her 

grandchildren, including Minor Child. Father has not 

contributed toward this savings account. Father has not paid 

child support since 2014.
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(Appellant’s App. at 8, 10) (errors in original). Father argues he was consistent 

with child support when given parenting time, he wanted to pay his child 

support and would do so starting immediately, and he “has tried [the] best he 

could to meet his obligations” despite his “incarceration, lack of driver license, 

and lack of steady employment[.]” (Br. of Appellant at 13.)

[9] However, Father testified at the hearing that he could have paid child support 

and there was “no good reason” that he had not. (Tr. Vol. II at 144.) He also 

testified he was not “denying child support” but had money to buy “weed and 

cocaine[.]” (Id. at 165.) He indicated he did not think it was “right” for him to 

“just giv[e] [Mother] the money and [he’s] not seeing [his] kid.” (Id. at 125.) 

Father’s testimony at the hearing also supports the trial court’s findings that he 

was employed multiple times through the years and did not pay child support 

though able to do so. Father’s arguments are invitations for us to reweigh the 

evidence and judge the credibility of witnesses, which we cannot do. See In re 

Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot reweigh evidence 

or judge the credibility of witnesses). The evidence supports the trial court’s 

findings, and those findings support the court’s conclusion that Father had 

failed to provide for Child’s care and support for one year. See, e.g., Matter of 

Adoption of A.M.K., 698 N.E.2d 845, 847 (Ind. Ct. App. 1998) (affirming trial 

court’s decision that father’s consent to child’s adoption was not required 

because father did not support child for one year, during which he was 

voluntarily unemployed), trans. denied.
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Child’s Best Interests

[10] “The primary concern in every adoption proceeding is the best interests of the 

child.” In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). Even 

if the trial court determines a parent’s consent is not required for adoption, the 

court still must decide if adoption is in the child’s best interests. Id. While the 

adoption statutes do not provide guidance regarding the factors a court is to 

consider when determining the best interests of the child,

we have noted that there are strong similarities between the 

adoption statute and the termination of parental rights statute in 

this respect. See In re Adoption of M.L., 973 N.E.2d 1216, 1224 

(Ind. Ct. App. 2012) (holding that the adoption statutes and the 

termination statutes provide similar balances between parental 

rights and the best interests of the children; also holding that 

termination cases provide “useful guidance as to what makes a 

parent ‘unfit’”). In termination cases, we have held that the trial 

court is required to look to the totality of the evidence to 

determine the best interests of a child. In re I.A., 903 N.E.2d 146, 

155 (Ind. Ct. App. 2009). Relevant factors include, among 

others, a parent’s historical and current inability to provide a 

suitable environment for the child, In re J.C., 994 N.E.2d 278, 290 

(Ind. Ct. App. 2013) [,reh’g denied]; the recommendations of the 

child’s case worker or guardian ad litem; and the child’s need for 

permanence and stability, see A.J. v. Marion Cnty. Office of Family 

and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008) [, trans. 

denied].

Id. at 1281-2. Father argues Stepfather did not provide sufficient evidence from 

which the trial court could make findings and conclude adoption was in Child’s 

best interests. We disagree.
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[11] Regarding factors relevant to Child’s best interests, the trial court found:

10. . . . Mother discovered that Father was dropping off Minor 

Child at an undisclosed location with an unknown person. On 

several occasions, Mother requested that Father inform her of the 

name, phone number and location of the person to whom Father 

was taking their son during his parenting time. Despite repeated 

requests, Father refused to provide Mother with the requested 

information. Mother was concerned for the safety of Minor 

Child, who was a young toddler at the time, so Mother declined 

Father’s parenting time until he provided Mother with the 

information as to where and with whom Father was leaving 

Minor Child. At no time, did Father provide Mother with said 

information; instead Father advised Mother not to worry about it 

and that he was taking Minor Child to someone’s home close to 

Maternal Grandfather’s home.

* * * * *

16. Mother has had the same telephone number since Minor 

Child was born and has resided in the same home since 2012. 

Father has failed to provide Mother with his updated location 

and phone number(s) over time. Father admitted that he did not 

expect Mother to be able to reach him based on his changes in 

contact information, and that he had not reached out to Mother 

for parenting time as much as he could have.

17. Over the years, Father has suffered from alcohol and drug 

addiction which have led to legal consequences for excessive use 

of alcohol, such as charges of public intoxication, disorderly 

conduct and driving under the influence . . . Furthermore, Father 

has also been charged with possession of marijuana and cocaine. 

Father has not had a driver’s license since he was 19 years old.

* * * * *
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19. Father’s criminal arrest history includes operating a vehicle 

while intoxicated in 2012 and again in 2013; felony battery 

conviction as a plea agreement from charges of rape, criminal 

confinement, strangulation, interference with reporting a crime 

and battery causing moderate bodily injury in 2016; public 

intoxication, disorderly conduct, resisting law enforcement and 

driving while suspended in 2017. Father’s criminal behavior has 

contributed to his failure to contact his son.

* * * * *

29. By all accounts, Minor Child is currently thriving under the 

care of Mother and Step-Father. He is happy, empathetic, bright, 

engaging and outgoing. Step-Father and Mother ensure that 

Minor Child is engaged with outside activities, and that he 

participates in a close relationship with all members of his 

extended family.

30. Step-Father has known Mother since 2008 or 2009. During 

Mother’s pregnancy with Minor Child, Step-Father, Mother and 

Father all resided together.

31. Step-Father has known Minor Child since birth, and became 

more actively involved in Minor Child’s life since June 2012, 

when Minor Child was only one (1) year old. Step-Father 

became more regularly involved on a daily basis and actively 

participated in Minor Child’s life and case since Minor Child was 

three or four years old.

* * * * *

33. Minor Child considers Step-Father to be his dad and StepFather considers Minor Child to be his son. The relationship 

between them consists of a close, stable father-son relationship.
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34. Step-Father is able to financially support Minor Child, and 

provides Minor Child with everything he needs. Step-Father 

assists Mother with providing Minor Child with health care, and 

to provide Minor Child with support to receive the education he 

needs.

(Appellant’s App. Vol. II at 8-10) (errors in original). 

[12] Despite these findings, which Father does not challenge,2 Father contends 

adoption is not in Child’s best interest because Mother “purposely refused” to 

allow Child to visit with Father. (Br. of Appellant at 15.) Father acknowledges 

he does not have a relationship with his son, and Father asks for additional time 

to develop that relationship. Father’s arguments are invitations for us to 

reweigh the evidence and judge the credibility of witnesses, which we cannot 

do. See In re Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot 

reweigh evidence or judge the credibility of witnesses). Because the trial court’s 

unchallenged findings support the trial court’s conclusion that adoption is in 

Child’s best interest, Father has not demonstrated clear error in the court’s 

reaching this conclusion. See, e.g., In re Adoption of M.L., 973 N.E.2d 1216, 1223 

(Ind. Ct. App. 2012) (concluding father unfit as parent due to continued 

substance abuse and instability; and concluding adoption was in child’s best 

interests because she was thriving in adoptive parents’ care).

 

2 Unchallenged findings “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
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Conclusion

[13] Stepfather presented sufficient evidence to support the trial court’s findings, 

which support the trial court’s conclusions that Father’s consent was not 

required for Stepfather’s adoption of Child and that adoption was in Child’s 

best interest. Accordingly, we affirm.

[14] Affirmed.

Mathias, J., and Brown, J., concur.