K.S. v. D.S.

• Citation: 64 N.E.3d 1209
• Decision Date: 23 August 2016
• Docket Number: No. 18A04–1602–AD–317.,18A04–1602–AD–317.
• Parties: K.S., Appellant–Defendant, v. D.S., Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

64 N.E.3d 1209

K.S., Appellant–Defendant,

v.D.S., Appellee–Plaintiff.

No. 18A04–1602–AD–317.

Court of Appeals of Indiana.

Aug. 23, 2016.

Ordered published Oct. 17, 2016.

Michael P. Quirk, Muncie, IN, Attorney for Appellant.

Danyel Struble, Muncie, IN, Attorney for Appellee.

ALTICE, Judge.

Case Summary

[1] K.S. (Birth Mother) appeals from the trial court's order granting the petition of D.S. (Adoptive Mother) to adopt J.S. (Child), which included findings that Birth Mother's consent to the adoption was both irrevocably implied due to her failure to appear at the hearing to contest the adoption and not required due to her abandonment of Child. On appeal, Birth Mother argues that the trial court erred in denying her request for a continuance. Adoptive Mother cross-appeals and requests appellate attorney fees pursuant to Appellate Rule 66(E).

[2] We affirm and remand with instructions.

Facts & Procedural History

[3] Birth Mother and C.S. (Father) were married in 2009, and Birth Mother gave birth to Child in 2011. Birth Mother and Father's divorce was finalized in November 2014, at which time Father was awarded sole legal and physical custody of Child. When custody was transferred from Birth Mother to Father upon the entry of the custody order, Child's weight was below what it should have been for his age and he was not verbal. Father and Adoptive Mother lived together at that time, and they married approximately one month later. Adoptive Mother took an active role in caring for Child and getting him the services he needed, including counseling, speech therapy, medical care, and preschool. While in the care of Father and Adoptive Mother, Child has made significant progress in his speech, weight, and social skills. Additionally, Child has formed a close bond with Adoptive Mother's biological daughter.

[4] After Father took custody of Child, Birth Mother exercised visitation for a few months before she stopped showing up. Despite being given multiple opportunities to visit with Child, Birth Mother has not seen him since March 2015. Birth Mother has also failed to pay child support. In September 2015, the dissolution court suspended Birth Mother's visitation and ordered her to complete drug treatment and submit to a hair follicle test before visitation would be reinstated. Birth Mother has failed to complete these requirements.

[5] On November 18, 2015, Adoptive Mother filed a petition to adopt Child, to which she attached Father's written consent. In the petition, Adoptive Mother alleged that Birth Mother had abandoned Child for a period of at least six months prior to the filing of the petition and that Birth Mother had not consistently paid child support. Birth Mother filed a response and objection to the petition on November 25, 2015, and the trial court scheduled a hearing for January 8, 2016.

[6] Birth Mother filed a request for a continuance on December 17, 2015. In the motion, Birth Mother's counsel represented that Birth Mother had entered an inpatient drug treatment facility in California on December 1, 2015, and that she would be there for at least ninety days. In response to this motion, the trial court converted the hearing scheduled for January 8, 2016 to a status hearing and indicated that the motion for continuance would be addressed at that time. The court instructed counsel to bring proof of Birth Mother's enrollment in treatment to the status hearing. On January 5, Birth Mother's counsel filed a Notice to the Court stating that Birth Mother had been in inpatient drug treatment since December 1, 2015. Attached to the notice was a letter ("the Nationwide Recovery Letter") dated November 29, 2015, purporting to be from the owner of "Nationwide Recovery" in California, stating that Birth Mother "w[ould] be attending" drug treatment beginning December 1, 2015, and that treatment would last between forty-five and ninety days. Appellant's Appendix at 29.

[7] Birth Mother did not appear at the January 8 status hearing, but counsel appeared on her behalf. At the hearing, Birth Mother's counsel indicated that he had lost contact with Birth Mother. Counsel stated that he had spoken to her during a conference call on another matter shortly before Christmas, and she claimed at that time to be in treatment but she believed she would be getting out early. Counsel had not heard from Birth Mother since, and he did not know her whereabouts at the time of the hearing or whether she had left treatment early. The trial court agreed to reschedule the adoption hearing, and Birth Mother's counsel requested the hearing be set "sooner than later[.]" Transcript at 12. The trial court suggested January 13, 2016, and Birth Mother's counsel said that date was "fine." Id.

[8] Birth Mother failed to appear again at the January 13 hearing, and her counsel requested another continuance because he had been unable to locate her and he wanted to confirm whether she was in treatment. Birth Mother's counsel stated that he had called the telephone number listed on the Nationwide Recovery Letter and got what he believed to be a cell phone message indicating that the voicemail inbox was full. Birth Mother's counsel tried another telephone number for Nationwide Recovery that he looked up online, but all he got was a busy signal. Adoptive Mother's counsel objected to the motion for continuance and voiced concerns about the authenticity of the Nationwide Recovery Letter. Specifically, Adoptive Mother's counsel stated that the address listed on the letter did not match the address on the facility's website, and she noted that part of the letter was whited out. Adoptive Mother's counsel noted further that Nationwide Recovery Letter did not confirm that Birth Mother had ever actually entered treatment. Instead, it stated that Birth Mother would be entering treatment on December 1, 2015.

[9] The trial court denied the motion for continuance and the matter proceeded to a hearing. At the conclusion of the evidence, the trial court ruled that Birth Mother's consent to the adoption was implied pursuant to Ind.Code § 31–19–9–18 due to her failure to appear to contest the petition. The trial court concluded further that Birth Mother's consent was not required because she had abandoned Child for at least six months prior to the filing of the petition. See I.C. § 31–19–9–8. The trial court found that the adoption was in Child's best interest and therefore granted the petition. Birth Mother now appeals.

Mother's Arguments

[10] On appeal, Birth Mother frames the issue as whether the trial court erred in denying her motion for a continuance. However, Birth Mother has failed to cite the applicable standard of review or any authority whatsoever in support of her argument in this regard. "A party waives any issue for which it fails to develop a cogent argument or support with adequate citation to authority." Zoller v. Zoller, 858 N.E.2d 124, 127 (Ind.Ct.App.2006) (quoting Steiner v. Bank One Ind., N.A., 805 N.E.2d 421, 429 n. 6 (Ind.Ct.App.2004) ). Accordingly, Birth Mother's argument that the trial court erred in denying her motion for continuance is waived.

[11] Waiver notwithstanding, we note that Birth Mother was well aware of the adoption proceedings, as counsel had filed an appearance and objection on her behalf. Nevertheless, Birth Mother failed to appear for two scheduled hearings or maintain contact with her attorney. By the time of the adoption hearing, Birth Mother's attorney did not know where Birth Mother was or how to reach her. When he attempted to contact her using the contact information listed in the Nationwide Recovery Letter and additional information he had researched online, he could not reach anyone. Indeed, at the January 8 status hearing, Birth Mother's counsel stated that he had been informed that Birth Mother was "on the run."¹ Transcript at 6. Given Birth Mother's undisputed knowledge of the adoption case and her utter failure to keep the court or her attorney apprised of her whereabouts, we cannot conclude that Birth Mother has established good cause for a continuance.² See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App.2012) (noting that a trial court abuses its discretion in denying a continuance when the moving party has shown good cause for granting the motion).

Consent

[12] Although Birth Mother identifies the denial of her motion to continue the adoption hearing as the sole issue on appeal, she also appears to challenge the trial court's findings that her consent to the adoption was both irrevocably implied and not required. Birth Mother again fails to cite the applicable standard of review, and although she does cite to two statutes, she has clearly conflated and misunderstood them. First, Birth Mother cites I.C. § 31–19–9–18(b) and, without quoting or paraphrasing the statute, claims that it "should not apply" because Father prevented Birth Mother from contacting Child—thus, it appears that she is challenging the trial court's finding that she abandoned Child. Appellant's Brief at 10. But I.C. § 31–19–9–18 has nothing to do with abandonment; instead, it addresses the circumstances under which a party who fails to appear or to prosecute a motion to contest an adoption will be deemed to have consented thereto.

[13] Birth Mother also cites I.C. § 31–19–10–1.2(a)(1) and, again without quoting or paraphrasing the statute, argues that it does not apply in this case because that statute addresses "a biological parent who actually knows about a hearing and can attend, but chooses not to attend and in essence does not object to the adoption." Appellant's Brief at 10. But I.C. § 31–19–10–1.2(a)(1) has nothing to do with a biological parent's failure to appear to contest an adoption. Instead, it discusses the applicable burden of proof when a petition for adoption alleges that a parent's consent is unnecessary pursuant to I.C. § 31–19–9–8 and the parent files a motion to contest the adoption. Specifically, the burden is on the petitioner to establish...