A.C.B. v. D.E. (mem. dec.)

MEMORANDUM DECISION FILED Jun 09 2016, 6:31 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Ann C. Coriden Madison, Indiana Dominic W. Glover Columbus, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.C.B., June 9, 2016 Appellant-Petitioner, Court of Appeals Case No. 72A04-1511-AD-2034 v. Appeal from the Scott Circuit Court D.E., The Honorable Roger L. Duvall, Appellee-Respondent. Judge Trial Court Cause No. 72C01-1502-AD-4

Altice, Judge.

Case Summary [1] D.D. (Mother) and D.E. (Father) are the biological parents of B.K.E. (Child),

born in 2010. Mother married A.C.B. (Stepfather) in December 2012. About

two years later, Father initiated a paternity action. Mother and Stepfather Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 1 of 12

responded with Stepfather filing a petition to adopt Child, and Father objected

to the petition. Following a hearing, the trial court denied the adoption

petition. Stepfather now appeals arguing that Father’s consent was not required

because Father had not provided support for Child or communicated

significantly with Child for the two years prior to the filing of the adoption

petition. [2] We affirm.

Facts & Procedural History [3] Mother and Father were in a relationship that resulted in the birth of Child in

May 2010. The couple lived together off and on due to financial issues, but

they actively raised Child together until the relationship ended in February

2012, when Father was unfaithful. Thereafter, Mother began a relationship

with Stepfather and married him in December 2012. [4] Although bitter toward Father after the break up, Mother maintained a good

relationship with Father’s parents (Grandparents) and would leave Child at

their house at least once a week while she was at work. Through December

2012, Mother allowed Father to see Child only at Grandparents’ home, which

Father did regularly. Mother also made it clear to Father that he was not to

contact her directly. For example, in response to a text message from Father,

Mother wrote on June 2, 2012: “[Child] is perfect as always! Next time you

want to know how she is doing I will let your parents know and you can ask

them. I’m going to tell you ONE more time .. [sic] do not contact me you lying

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piece of crap.” Exhibits at 52. Other text messages and calls were ignored by

Mother, including a text from November 2012 in which Father sought

information in order to continue covering Child on his insurance in 2013. [5] Father and his family celebrated Christmas with Child on December 23, 2012,

just over a week after Mother married Stepfather. The following month,

Mother met with Grandparents and “made it very clear to [Grandparents] that

[Father] was not to be in physical contact anymore with [Child]”. Transcript at

37. Grandparents were visibly upset by this request. While Mother did not

directly threaten to withhold visits if they did not comply, Grandparents felt

that this was implied and therefore honored her request in order to maintain a

relationship with Child. [6] Beginning in January 2013, Father no longer visited Child due to Mother’s

request. His texts to Mother inquiring about visitation went unanswered.

Father regularly asked Grandparents about Child and on at least two or three

occasions spoke with Child directly while she was with Grandparents. Father

also bought gifts for Child that were kept at Grandparents’ home and kept

secret from Mother. On a few occasions, Father provided envelopes with

money for Grandparents to give to Mother, which Mother refused. She

consistently rejected anything from Father. [7] Father testified that he was devastated when Grandparents told him that

Mother would no longer permit his visits. He believed this would be short term

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and that once he got his finances in order1 he could hire a lawyer to go to court

and establish parenting time and child support. He relied on indirect contact

through Grandparents in the meantime and last spoke directly with Child in

July 2014. [8] In the fall of 2014, Father learned that he could establish child support in

coordination with the prosecutor’s office and without having to hire an

attorney. Accordingly, on December 4, 2014, Father filed an application for

Title IV-D child support services and initiated an action in January to establish

support for Child under cause no. 72C01-1501-JP-1 (the Paternity Action). [9] One month later, on February 17, 2015, Stepfather filed a petition to adopt

Child, who was four years old at the time. Mother consented to the stepparent

adoption, and Father filed an objection to the petition. Around this same time,

Mother stopped Child’s visits with Grandparents. [10] The trial court held an evidentiary hearing on July 17, 2015. At the beginning

of the hearing, the trial court noted the pending Paternity Action but indicated,

with agreement of the parties, that the instant adoption case should be

addressed first due to its potentially determinative effect. Mother, Father,

Stepfather, and Grandparents testified at the hearing. The trial court then took

the matter under advisement and issued its order on October 30, 2015, denying

Stepfather’s petition for adoption. In its order, the trial court issued detailed

1 Father filed bankruptcy in 2014.

Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 4 of 12 findings and ultimately found that for the two years prior to the filing of the adoption petition, Father had no significant contact with Child and made no significant effort to support her. The court further found it apparent that after December 2012 Mother wanted to end all involvement by Father in her and Child’s lives. In determining whether Father’s consent to the adoption was required, the court indicated that the “critical issue [was] whether Mother’s actions thwarted Father’s communication with the child and the effect of her refusal to accept any offered support.” Appendix at 19. The court continued:

26. It is not sufficient for Mother to maintain that Father could have physically come over to [Grandparents’] house or that she never explicitly stated that [Grandparents’] visitation would be cut off if Father visited. The fact is that over the period from Christmas, 2012 until [Stepfather] filed his petition for adoption, the Mother made very clear that she wanted Father to stay away from the child and insisted that Father stay away from the Child.

27. The parties and family fell into a routine where the grandparents could visit, Father would stay away and Mother was content with Father having nothing to do with the child and refused the limited offers of support and insurance.

28. Father certainly could have been more attentive to his parental duties and should not have taken what the Court would characterize as the easy way out by acquiescing to this arrangement. But, the burden is upon [Stepfather] and Mother to show that Father’s consent is not required and it is a very high burden.

29. This Court on other occasions has found that a non- custodial parent’s consent is not required even when the custodial

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parent and adopting step parent have interfered with the efforts of communication. Those cases, however, have been characterized with behavior by the non-custodial parent that justified that interference such as drug use or criminal activity.

30. Mother’s anger over Father’s affair and the breakup of the relationship, no matter how understandable on Mother’s part or inexcusable on Father’s part, do not constitute a reason to sever from the Father his relationship with his child.

31. It is somewhat ironic that when Father finally takes the steps to assert his rights with his daughter in December, 2014, which [sic] fact then prompted the adoption action a month later.

32. The Court finds that Mother’s actions to restrict Father’s contact with the Child and her refusal to accept the few offers of support and insurance benefits are such that Father’s consent to the adoption may not be dispensed with and is required. The petition for adoption is denied.

Id. at 19-20. Stepfather now appeals, arguing that the trial court erroneously

determined that Father’s consent was required.

Standard of Review [11] We will not disturb a trial court’s ruling in an adoption proceeding unless the

evidence leads to but one conclusion and the trial court reached an opposite

conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). On review,

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

light most favorable to that decision. Id. Where, as here, a trial court enters

findings of fact and conclusions of law, we determine whether the evidence

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supports the findings and then whether the findings support the judgment. Id.

We will not set aside the findings or judgment unless clearly erroneous. Id.

Factual findings are clearly erroneous only where the record contains no facts

or 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.

Discussion & Decision [12] Stepfather argues that it was erroneous for the trial court to require Father’s

consent where Father had only three phone calls with Child and provided no

support for her during the two years prior to the filing of the adoption petition.

While acknowledging that actions by the custodial parent to thwart or rebuff a

non-custodial parent’s communication and support efforts are a relevant

consideration, Stepfather argues that Father had the opportunity for direct

access to Child at all times through Grandparents and, further, that Father only

made a few offers of support. [13] In Indiana, the consent of a biological parent to the adoption of their child is

not required under certain exceptions enumerated in Ind. Code § 31-19-9-8.

The exceptions relevant here provide that consent is not required from:

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

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(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.

I.C. § 31-19-9-8(a)(2). As this provision is written in the disjunctive, consent is

not required if either failure to communicate or failure to provide support is

established. In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App. 2007).

The burden rests squarely upon the petitioner seeking to adopt, here Stepfather,

to prove the statutory criterion by clear and convincing evidence. See In re

Adoption of T.L., 4 N.E.3d at 662. [14] On appeal, Stepfather expresses agreement with the vast majority of the trial

court’s findings of fact and indicates disagreement with only one. Specifically,

he disagrees with the trial court’s view that Mother’s statement to Grandparents

was an effort to thwart Father’s contact with Child via an implied threat to

Grandparents. Stepfather, however, does not ask us to review this finding

because he recognizes that would constitute an improper request to reweigh the

evidence. Rather, he argues that a single statement made by Mother in early

2013 cannot constitute a sufficient justification for Father’s two years of failure

to communicate significantly with Child. [15] As recognized by Stepfather, “[e]fforts of a custodial parent to hamper or thwart

communication between a parent and child are relevant in determining the

ability to communicate.” In re Adoption of A.K.S., 713 N.E.2d 896, 899 (Ind. Ct.

App. 1999) (trial court incorrectly determined that father’s consent for

stepparent adoption was not required where evidence showed that mother

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refused out-of-state father’s attempts to communicate with son via letters), trans.

denied. See also D.D. v. D.P., 8 N.E.3d 217, 221 (Ind. Ct. App. 2014) (trial court

did not err by finding that mother hampered and thwarted father’s attempts to

communicate where over a six-year period mother ignored almost all of father’s

emails and seemed interested only in terminating father’s parental rights). [16] Contrary to Stepfather’s assertion on appeal, Mother’s attempts to hamper and

thwart communication between Father and Child went beyond a single

statement and began well before January 2013. When Mother and Father’s

relationship ended before Child’s second birthday, Mother placed significant

limitations on Father’s time with Child, allowing him to see his daughter only

during her weekly visits at Grandparents’ home. Further, in 2012, Mother

angrily rebuffed Father’s attempts to directly communicate with her regarding

their young child and, on other occasions, simply ignored his communications.

After marrying Stepfather, Mother met with Grandparents and made it clear to

them that Father was not to be in physical contact with Child anymore and

could not visit during their time with Child. Grandparents regretfully complied

with this request because they believed that their visits would be cut off if they

did not.2 Thereafter, Mother ignored Father’s texts regarding seeing his child.

As the trial court observed, it was apparent that “Mother wanted to end all

involvement by Father in her and the child’s life.” Appendix at 16.

2 In fact, Mother ceased visits with Grandparents after the adoption petition was filed because Grandparents indicated that they should have just let Father come over all along.

Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 9 of 12 [17] Despite Mother’s efforts, Father continued to maintain some minimum contact

with Child through his parents. He spoke with her on at least three occasions

while in Grandparents’ care, sent her gifts for use at Grandparents’ home, and

regularly checked in with Grandparents regarding Child’s wellbeing. [18] With respect to support, the record establishes that Mother similarly rebuffed all

efforts by Father. He attempted to send money through his parents, but Mother

refused the envelopes and indicated that she did not want anything from him.

Father sent a text to Mother seeking information to continue to cover Child on

his insurance in 2013, but she did not respond. Mother emphasized at the

hearing that she did not want or need his money. [19] Without Mother’s knowledge, however, Father did give gifts to Child on her

birthday and holidays to keep and use at Grandparents’ house. During this

time, Father worked on getting his finances in order and in late 2014 began

efforts to establish child support and parenting time through the court. This

endeavor was then met with Stepfather’s petition to adopt Child. [20] Under these facts and circumstances, we cannot say that the trial court erred by

concluding: “Mother’s actions to restrict Father’s contact with the Child and

her refusal to accept the few offers of support and insurance benefits are such

that Father’s consent to the adoption may not be dispensed with and is

required.” Id. at 20. While Father certainly could have done more, it was

within the trial court’s discretion to determine that Mother’s interference and

outright refusal to work with Father should not be rewarded by dispensing with

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his consent. Accordingly, the trial court did not err in denying Stepfather’s

petition for adoption. [21] Father asks that in affirming the trial court we also award appellate attorneys’

fees to him. He argues that Stepfather’s appeal was a “frivolous effort to ‘out

litigate’ Father” and, therefore, fees are appropriate under Indiana Appellate

Rule 66(E). Appellee’s Brief at 12. [22] Appellate Rule 66(E) provides, in pertinent part, that an appellate court “may

assess damages if an appeal…is frivolous or in bad faith. Damages shall be in

the Court’s discretion and may include attorneys’ fees.” Our discretion to

award attorneys’ fees under this rule is limited to “instances when an appeal is

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or

purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App.

2003). We must use extreme restraint when exercising our power under the

rule because of the “potential chilling effect upon the exercise of the right to

appeal.” Id. Further, with respect to claims of substantive bad faith, as asserted

here by Father, the party seeking attorneys’ fees “must show that the appellant’s

contentions and arguments are utterly devoid of all plausibility.” Id. Father

has not made such a showing here, and we decline his request for an award of

appellate attorneys’ fees under Appellate Rule 66(E). [23] Alternatively, Father asks that we remand with instructions for the trial court to

determine an award of appellate attorneys’ fees pursuant to Ind. Code § 31-14-

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18-2.3 His argument is not well developed. Moreover, because Father appears

to have never requested an award of attorneys’ fees below, we agree with

Stepfather that the issue is not properly before us. [24] Judgment affirmed. [25] Bailey, J. and Bradford, J., concur.

3 I.C. § 31-14-18-2(a) provides that a trial court may order a party to pay:

(1) a reasonable amount for the cost to the other party of maintaining an action under this article; and (2) a reasonable amount for attorney’s fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.

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