Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 1 of 17

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

Brian M. Pierce

Muncie, Indiana

ATTORNEYS FOR APPELLEES

David W. Stone IV

Anderson, Indiana

Steven J. Bruce

Muncie, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

R.H.,

Appellant-Respondent,

v.

L.H. and C.H.,

Appellees-Petitioners.

July 24, 2018

Court of Appeals Case No.

18A-AD-174

Appeal from the Delaware Circuit 

Court

The Honorable John Feick, Judge

Trial Court Cause No.

18C04-1702-AD-12

Altice, Judge
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 2 of 17

Case Summary

[1] R.H. (Mother) appeals the trial court’s grant of a petition to adopt the minor 

child T.H.H. (Child) filed by L.H. (Stepmother) and C.H. (Father). Mother 

presents the following, restated issues for our review:

1. Whether the trial court erred in concluding that Mother’s 

consent to the adoption was not required based on Mother’s 

failure to provide support;

2. Whether the trial court failed to provide Mother with notice of 

the final adoption hearing; and

3. Whether the trial court’s finding that adoption was in the best 

interests of Child was clearly erroneous. 

[2] We affirm. 

Facts & Procedural History

[3] Mother and Father were married on June 21, 2008. Child was born to Mother 

and Father on October 12, 2010. During the marriage, Mother became 

addicted to opiates. She primarily used opiate-based prescription medication 

and heroin. Mother spent significant portions of 2013 and 2014 incarcerated 

for various crimes related to her drug addiction. During that time, Father cared 

for Child. 

[4] Mother and Father divorced on May 7, 2014. Under the dissolution decree, 

Mother and Father were awarded joint legal custody of Child; Father was 

awarded sole physical custody of Child; and Mother received supervised 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 3 of 17

parenting time every other weekend, with holidays and special days. Mother 

was directed to pay child support to Father in the amount of $39.00 per week,

effective March 21, 2014. Mother made no support payments to Father 

between March 21, 2014, and June 20, 2017, but an offset made her current 

through 2014.

1

[5] Mother is a high school graduate, has a degree in Criminal Justice from Ball 

State University, and worked for seven years in the legal department of a 

financial institution as a trust and estate specialist. After her divorce, however, 

and while battling her drug addition, she was employed in minimum wage jobs. 

At various times, Mother lived with her father, her brother, her mother, and her 

boyfriend. Mother used some of her income toward her residential obligations. 

Her boyfriend, who was employed, paid most of the household bills when the 

two lived together. However, no part of Mother’s income from any of her jobs 

was used to pay her court-ordered child support obligation. 

[6] Mother smokes cigarettes daily. Between July 2014 and June 2017, she smoked 

approximately $5.00 worth of cigarettes each day. Between 2015 and June 

2017, she spent approximately $4,500.00 on her smoking habit. Mother 

testified that she personally paid at least a third of that amount toward her 

 

1 The dissolution decree directed Father to pay to Mother $2,000.00 to equalize the property distribution. 

Toward the end of 2014, Mother and Father entered into an agreement regarding Father’s equalization 

payment obligation and Mother’s child support obligation. The two agreed that, for the year 2014, their 

obligations would offset each other. Based upon this agreement, the trial court found Mother to be current 

with her support payment through 2014, but not beyond. 
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habit. The balance was paid for by other individuals. Also from 2015 to June 

2017, Mother spent between $6,500.00 and $7,000.00 to support her heroin 

habit. Her eight-month treatment for her addiction, through a methadone 

clinic, cost approximately $3,840.00 and was paid for by her mother and her 

boyfriend.2

[7] Mother exercised her weekend parenting time with Child. At trial, she testified 

that during the visits, she fed Child; she bought him gifts, clothing, and toys; 

she took him to the zoo and bought him “souvenir[s] wherever we went”; and, 

she “threw birthday parties for [Child].” Transcript at 67, 71.

[8] Father married Stepmother on April 30, 2016. Child has lived with Father and 

Stepmother since March 2015. In February of 2017, Father and Stepmother

petitioned for Stepmother to adopt Child. Mother filed an objection. 

[9] Mother made her first child support payment approximately four months after 

the adoption petition was filed and several weeks after she hired an attorney. 

Mother has continued to make support payments since June 20, 2017; however,

she had accrued an arrearage of more than $5,000.00.

[10] On September 29, 2017, the trial court held an evidentiary hearing on whether 

Mother’s consent to the adoption was required. On November 3, 2017, the 

court issued “Findings of Fact, Conclusions of Law, and Order,” concluding

 

2 The costs associated with Mother’s current methadone treatment is covered by Medicaid.
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that Father presented clear and convincing evidence that Mother had 

knowingly failed to provide for the care and support of Child when she was able 

to do so, and that Mother’s consent to the adoption was implied.

3

The court 

also dismissed her objection to the adoption. 

[11] On December 13, 2017, Father filed a motion to set the final adoption for a 

hearing and, that same day, the trial court issued an order setting the final 

adoption for hearing. The hearing was held on December 21, 2017. Mother 

was not present at the hearing. Following the hearing, the trial court issued the 

final adoption decree, finding that Child’s adoption by Stepmother was in 

Child’s best interests. The court terminated Mother’s parental rights and 

granted the adoption of Child by Stepmother. Mother now appeals. Additional 

facts will be provided as necessary.

Discussion & Decision

[12] When reviewing a 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 

 

3 The trial court used the wrong terminology in its November 3, 2017 order when it concluded: “Mother’s 

consent [to the adoption] shall be implied . . . .” Implied consent to an adoption is governed by Ind. Code § 

31-19-9-18, which reads in relevant part: “The consent of a person who is served with notice . . . to adoption 

is irrevocably implied without further court action if the person . . . fails to file a motion to contest the 

adoption . . . not later than thirty (30) days after service of notice . . . .” Mother filed an objection to the 

adoption. Therefore, I.C. § 31-19-9-18 is not applicable. It appears the trial court intended to conclude that 

Mother’s consent to the adoption was not required. See I.C. § 31-19-9-8(a)(2) (a parent’s consent to adoption 

is not required “if for a period of at least one (1) year the parent . . . knowingly fails to provide for the care 

and support of the child when able to do so as required by law or judicial decree”).
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(Ind. Ct. App. 1999), trans. denied. 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.

[13] When, as in this case, the trial court has made findings of fact and conclusions 

thereon, 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.L., 4 N.E.3d 658, 662 (Ind. 2014).

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.” Id. (internal quotation omitted).

1. Mother’s Consent

[14] Mother argues that the trial court erred when it concluded that her consent to 

the adoption was not required. Indiana law provides that a parent’s consent to 

adoption is not required “if for a period of at least one (1) year the parent . . .

knowingly fails to provide for the care and support of the child when able to do 

so as required by law or judicial decree.” I.C. § 31-19-9-8(a)(2)(B). The burden 

to prove these statutory criteria is satisfied by clear and convincing evidence 

and rests squarely upon the petitioner seeking to adopt. In re Adoption of M.A.S., 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 7 of 17

815 N.E.2d 216, 220 (Ind. Ct. App. 2004). The “petitioner for adoption must 

show that the non-custodial parent had the ability to make the payments which 

[s]he failed to make.” In re Adoption of Augustyniak, 508 N.E.2d 1307, 1308 (Ind. 

Ct. App. 1987), trans. denied. To determine that ability, it is necessary to 

consider the totality of the circumstances. Id.

[15] Here, there is no question Mother did not make the court-ordered child support 

payments for a period exceeding one year. The record shows that Mother did 

not make payments, at least, between January 2015, and June 20, 2017. Thus, 

the question before us is whether Mother had the ability to provide support of 

the Child. See I.C. § 31-19-9-8(a)(2)(B). 

[16] Mother claims that:

[H]er circumstances including, but not limited to, her ongoing 

battle with addiction, her good-faith effort at recovery, reliance 

on the belief that Father did not want/need the support, and her 

continued parenting-time with her child, demonstrate that she 

lacked the ability to pay her support obligation, and/or had 

justifiable cause for her failure to pay support. 

Appellant’s Brief at 13. According to Mother:

The circumstances of [her] failure to pay support, when viewed 

in totality, clearly show a mother: struggling with her addiction 

to opiates; actively involved in addiction treatment; working 

minimum wage jobs even though well educated; willing to allow 

father to maintain physical custody; maintaining joint legal 

custody; and continuing to visit with the child on a consistent 

and regular basis. Moreover, the evidence demonstrates that 

[she] fully relied on [Father’s] statements that he didn’t need 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 8 of 17

support, wasn’t worried about support, and could financially 

provide for his child. [Father] took no action to collect the 

support [she] owed. 

Id. at 15. Mother maintains that she “is first, and foremost, an opiate addict 

fighting a continuous battle between active-use and recovery” and that,

“[b]ecause of her opiate addiction, every area of her life, including her ability to 

support her child, has been affected.” Id. at 13. She admits that most of the 

money she earned from 2014 to 2017 went toward the purchase of illegal drugs 

and treatment for her addiction, court costs and legal fees related to her 

addiction, and/or personal expenses. She claims that “[f]ailure to pay for, and 

attend treatment, would have increased [her] chances of using”; that “[f]ailure 

to pay court costs and fines would have left [her] in jail”; and that “[both of 

these things] would have left her unable to visit her child.” Id. at 14. 

[17] Mother attempts to justify her failure to pay child support on multiple 

conversations she claims to have had with Father about the child support

obligation. She claims that Father would always respond that he was “‘not 

worried about it.’” Appellant’s Appendix Vol. 2 at 12. At trial, Father denied 

telling Mother not to pay the support but admitted that, on one occasion, he 

told her he was not worried about the child support.

[18] In its findings of fact and conclusions thereon, the trial court found that Mother 

was able to maintain a number of jobs; and that she admitted she was adept at 

obtaining employment, suffered from no disabilities, and was not physically 

prevented from working. The court further found that instead of paying the 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 9 of 17

support obligation, Mother “chose to pay for heroin”; she “sold property to pay 

for heroin”; but she “never sold any property to pay her Court-ordered child 

support obligation.” Id. at 11. 

[19] The trial court noted the following:

22. That in 2015, [Mother] was able to procure a new bedroom 

furniture suite. She states her mother and boyfriend helped her 

purchase this suite. This suite cost approximately $1,500.00. 

23. That in 2017, prior to making her first judicially decreed 

support payment, [Mother] paid an attorney $750.00 for 

representation. 

24. That in 2016, [Mother] managed to pay a traffic ticket in 

Marion County. [Mother] testified her mother helped her pay 

this ticket. This expense was $62.00. 

25. That in 2015, [Mother] paid off a speeding ticket in Hancock 

County. This expense was $130.00. 

26. That after her felony conviction in Delaware County, 

[Mother] made payments towards court ordered responsibilities.

*****

28. That [Mother] has been able to keep herself clothed and fed 

since 2014.

29. That [Mother] has not, as of this time, filed for bankruptcy.

Id. The court also noted:
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36. That [Mother] also claims that she told [Father] that she was 

“trying to put [her] life together” and that [Father] never told her 

they needed her help. [Mother] felt “conned” into not paying the 

court ordered support by [Father] and that he was inducing her 

not to pay child support.

*****

38. That [Mother] testified that “I was supporting my son the 

best that I could” and that “[Child] has benefited from my 

emotional and motherly support, versus money, more.”

*****

42. That regardless, both parties agree that [Mother] was very 

aware of her obligation and her ongoing failure to comply with 

the judicial decree. [Father] testified that he has asked her many 

times when she’s going to start paying. [Mother] repeatedly 

agreed that not a single cent of earned income from 2015 to June 

2017 was used for support. 

Id. at 12-13.

[20] The trial court concluded:

16. Here, [Mother] has offered up a number of alternative basis 

[sic] for her failure to pay support (as an alternative to her 

argument that she has provided care and support, which would 

be based on holdings not applicable where there is a judicial 

decree for [support).] When looking at the totality of the 

circumstances, it is clear that [Mother] had significant third party 

[sic] support; had many jobs with earning[s]; did not even always 

bear a significant, if any, expense of housing, transportation, or 

utilities; was able to sell property and perform services to obtain 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 11 of 17

drugs; was able to pay for cigarettes; able to feed and clothe 

herself; has no other dependents; is not physically unable to 

work; and was able to afford significant expense in Methadone. 

When aggregated, in addition to her many jobs, [Mother]

produced no information suggesting she could pay nothing to 

meet her legal obligation. Her position that [Father] was not 

worried about child support and that he somehow “conned” her 

into not paying support is not persuasive in light of her attitude 

towards paying any support; her statements that [Child] is well 

cared for where he lives and doesn’t need her support; and her 

prioritizing her own financial needs and desires over the

judicially decreed support obligation. 

*****

18. [Mother] financed heroin consumption from 2015 into early 

2017. [Mother] both earned money and had significant

assistance from third parties in the same time frame. Her 

priorities did not include providing care and support pursuant to 

the judicial decree entered in 2014. 

19. [Father] has presented clear and convincing evidence that

[Mother] has knowingly failed to provide for care and support of 

[Child] and that she was able, but chose not, [sic] to do so as she 

is required by judicial decree.

Id. at 15-16. 

[21] The evidence presented at the consent hearing established that Mother had a 

court-ordered financial obligation, as set forth in the dissolution decree, to pay 

child support to Father in the amount $39.00 per week. She fed Child and,

apparently, provided Child with token amounts of clothing, toys, souvenirs, 

and gifts during visitations, but Mother made no actual financial support 
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payments to Father between January 2015, and June 20, 2017. See, e.g., Irvin v. 

Hood, 712 N.E.2d 1012, 1013 (Ind. Ct. App. 1999) (holding that the father had 

failed to support his child despite fact that he provided six items of clothing for 

the child and some food during child’s visits with paternal grandparents); 

M.A.S., 815 N.E.2d at 220 n.1 (holding that the father’s occasional provision of 

groceries, diapers, formula, clothing, presents, and cash did not qualify as 

support). In fact, Mother did not make her first support payment until four 

months after the petition for adoption was filed and after she had paid $750.00 

to an attorney to represent her in the matter. She testified at trial that she 

thought it was “B.S.” that she had to pay child support when Father was 

making $35.00 per hour. Transcript at 19. 

[22] Mother admitted that she was able to work, and that, between 2014 and 2016, 

she was working and earned money – at times earning between $700.00 and 

$1,000.00 per month. However, Mother used the money to support her daily 

cigarette smoking habit and to purchase illegal drugs. She testified that she was 

able to pay the fines for the traffic and speeding tickets she received, and to 

clothe and feed herself, but she failed to use any of her earnings to make child 

support payments. At various times, Mother lived with her father, her mother, 

and her boyfriend and contributed minimally to household expenses. When 

Mother lived with her boyfriend, he paid most of the household bills. Mother 

had third parties paying for her methadone treatments and purchasing her new 

furniture. 
Court of Appeals of Indiana | Memorandum Decision 18A-AD-174 | July 24, 2018 Page 13 of 17

[23] Ample evidence was presented to support the trial court’s conclusion that

Mother failed to provide for Child’s care or support for over one year, and that 

she was able to pay child support but chose not to do so. The trial court’s 

findings regarding such were not clearly erroneous. Mother’s arguments are 

nothing more than an invitation to reweigh the evidence and reassess witness 

credibility, which we will not do. See In re Adoption of O.R., 16 N.E.3d 965, 973 

(Ind. 2014). The trial court did not err in concluding that Mother’s consent to 

the adoption was not required based on Mother’s failure to provide support. 

2. Notice of Adoption Hearing

[24] Mother next contends that she did not receive notice of the final adoption 

hearing. However, the chronological case summary (CCS) shows that notice of 

the trial court’s order setting the final hearing was sent to the attorneys of 

record, including Mother’s attorney, by “ENotice.”

4

 Appellant’s Appendix at 6. 

Notice or information given to an attorney constitutes notice to his client. 

Reynolds v. State, 463 N.E.2d 1087, 1088 (Ind. 1984). It is well-settled that “[a]

challenge to the mailing of notice is precluded when the docket clearly states 

that notice was mailed.” Minnick v. Minnick, 663 N.E.2d 1226, 1228 (Ind. Ct. 

App. 1996); see also Trojnar v. Trojnar, 698 N.E.2d 301, 304 (Ind. 1998) (in 

 

4

Ind. Trial Rule 72(D) provides in relevant part: “It shall be the duty of the attorneys . . . when entering their 

appearance in a case or when filing pleadings or papers therein, to have noted on the Chronological Case 

Summary and on the pleadings or papers so filed, their mailing address, and an electronic mail address. 

Service at either address shall be deemed sufficient.”
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context of T.R. 72, a proper clerk’s notation on the CCS will presumptively 

establish the fact that notice was mailed).

[25] Moreover, Mother did not call the lack of notice of the hearing to the attention 

of the trial court. Rather, she raises the matter for the first time on appeal. As 

such, Mother has waived any allegation of error with respect to whether she 

received notice of the final adoption hearing. See In re K.S., 750 N.E.2d 832, 

834 n.1 (Ind. Ct. App. 2001) (Mother waived issue concerning alleged violation 

of due process rights because issue was raised for the first time on appeal).

[26] Finally, we note that Mother knew of the adoption proceedings because she 

(among other things) attended the September 29, 2017 consent hearing, where 

she was represented by counsel. Furthermore, she knew that Child’s adoption 

by Stepmother was imminent because she received the trial court’s order that 

concluded her consent to the adoption was not required and her objection to the 

adoption was dismissed. See Appellant’s Appendix at 6. 

3. Best Interests of Child

[27] Mother also challenges the trial court’s determination that adoption was in 

Child’s best interests. The primary concern in every adoption proceeding is the 

best interests of the child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind.

Ct. App. 2012). Even if a court determines that a natural parent’s consent is not 

required for an adoption, the court must still determine whether adoption is in 

the child’s best interests. See I.C. § 31–19–11–1(a)(1). “When reviewing the 

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

opposite conclusion.” T.L., 4 N.E.3d at 662. 

[28] We note that the 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. 

See M.L., 973 N.E.2d at 1223 (holding that the adoption statutes and the 

termination statutes provide similar balances between parental rights and the 

best interests of the children). 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).

[29] Mother maintains that the final adoption hearing was “merely ceremonial in 

nature,” and that, during the hearing, “no evidence was offered, and no 

determination was made, as to whether the granting of the adoption was in the 

best interests of the child.” Appellant’s Brief at 16-17. Mother also argues that 

she should have been allowed to participate in the hearing and present evidence

regarding whether the adoption was in Child’s best interests.

[30] We already have determined that Mother waived any allegation of error 

regarding whether she received notice of the final adoption hearing. As for 

whether the adoption was in the best interests of Child, based upon the totality 

of the evidence presented during the adoption proceedings, we find that it was.
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[31] Mother attended the September 29, 2017 consent hearing and was represented 

by counsel. The evidence presented at the hearing established that Mother has 

a history of drug abuse and that Child was in the care and physical custody of 

Father since early 2013. Although Mother was employed, earned income, and 

had her housing and household expenses subsidized, she did not make any 

payments toward her court-ordered child support obligation until four months 

after the adoption petition was filed. She, instead, chose to spend the money on 

her cigarette and illegal drug habits, drug treatment, and fines for traffic 

infractions. Mother exercised visitation with Child, when she was not 

incarcerated, and she testified that during the visits, she fed Child, threw 

birthday parties for him, and bought him gifts, clothing, and toys. However, 

other evidence was presented indicating that, during visitation, Mother engaged 

in illicit activities with men for money while Child was in his bedroom in the 

home where Mother resided. 

[32] The trial court held a final adoption hearing, following which the trial court 

determined that Child had resided with Stepmother and Father since March 

2015, and that Stepmother and Father were capable of raising Child and 

furnishing him with suitable support and education. The court concluded that 

Child’s adoption by Stepmother was in Child’s best interests. 

[33] Based upon the totality of the evidence presented during the adoption 

proceedings, we cannot say that the evidence leads only to the opposite 

conclusion of that reached by the trial court. We therefore find that the trial 
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court’s conclusion that the adoption of Child by Stepmother was in Child’s best 

interests was not clearly erroneous.

[34] Judgment affirmed.

Najam, J. and Robb, J., concur.