In the Matter of the Adoption of K.D., B.D. v. W.D. and D.D. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 09 2017, 8:01 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Anthony M. Rose Mark F. James Anthony Rose Law Firm Anderson, Agostino & Keller P.C. South Bend, Indiana South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of February 9, 2017 K.D., Court of Appeals Case No. 71A03-1605-AD-1053 B.D., Appeal from the Appellant-Respondent, St. Joseph Probate Court v. The Honorable James N. Fox, Judge W.D. and D.D., Trial Court Cause No. 71J01-1410-AD-93 Appellees-Petitioners.

Kirsch, Judge. [1] B.D. (“Father”) appeals the trial court’s order granting the petition for adoption

of K.D. filed by W.D. and D.D. (together, “the Grandparents”). Father raises

the following restated issue for our review: whether the trial court erred when it

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concluded that Father’s consent to the adoption was not required because he

knowingly failed to provide for the care and support of K.D. when he was able

to do so. [2] We affirm.

Facts and Procedural History [3] Father and H.D. (“Mother”) were married and had one child together, K.D.,

who was born on October 23, 2005. On August 4, 2005, Father was

incarcerated for a sexual misconduct with a minor conviction and was released

on parole on October 24, 2011. Father was again incarcerated on January 31,

2012 for a parole violation, and his anticipated release date is in September

2018. Sometime after Father became incarcerated, the marriage between

Mother and Father was dissolved; as a result of the dissolution, a child support

order was entered in Cause Number 20D01-0901-DR-9. [4] W.D. and D.D. are the maternal grandparents of K.D. On November 5, 2014,

the Grandparents filed a petition for adoption, seeking to adopt K.D. Mother

consented to the adoption, and her consent was attached to the petition. The

Grandparents asserted that Father’s consent was not required because Father

had failed to provide support for K.D. for over one year when he had the ability

to do so. Appellant’s App. at 12. [5] Between September 2013 and August 2015, while incarcerated, Father earned

approximately $53.00 per month through inmate employment at the prison

facility in which he was housed. At the time of the evidentiary hearing, Father Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 2 of 7

had $53.97 in his inmate trust account, which is also called a JPAY account. A

review of the JPAY account showed that Father had used funds from the

account for purchases from Papa John’s Pizza and Kentucky Fried Chicken as

part of prison fundraisers. Pet’r’s Ex. 1. [6] During Father’s first period of incarceration, he made payments toward the

child support order for K.D. through an Income Withholding Order. After

Father returned to prison in 2012, Father’s JPAY account was debited for child

support payments through an Income Withholding Order. Father would

occasionally review his JPAY account and observed that these payments were

being routinely taken out of the account. In addition to his obligation for K.D.,

Father had a second child support obligation for another child that lived in

another state. The JPAY transaction history indicated that money was being

withheld for child support payments, but did not identify to which child support

case the money was being applied. Father testified that he thought the child

support payments being taken from his JPAY account were being given to both

of his children. Tr. at 63. In October 2015, Father became aware that the child

support deductions from his JPAY account were being applied to his other

child and not to K.D. Around the time the petition for adoption was filed,

Father began to mail child support payments to the Indiana Child Support

Collection Unit to be applied to his child support obligation for K.D. [7] An evidentiary hearing was held on the Grandparents’ adoption petition on

January 25, 2016. After taking the case under advisement, the trial court

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granted the Grandparents’ petition for adoption, finding that Father had the

ability to provide support for K.D. and failed to do so. Father now appeals.

Discussion and Decision [8] When reviewing a trial court’s ruling in an adoption case, the appellant bears

the burden of overcoming the presumption that the trial court’s decision is

correct. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing

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

We will neither reweigh the evidence nor judge the credibility of witnesses;

instead, we will consider the evidence most favorable to the trial court’s

decision, and the reasonable inferences to be drawn therefrom, to determine

whether sufficient evidence exists to sustain the decision. Id. We will not

disturb the trial court’s ruling unless the evidence leads to only one conclusion

and the probate court reached an opposite conclusion. Id. [9] Father argues that the trial court erred in determining that his consent to the

adoption was not required and in granting the Grandparents’ petition for the

adoption of K.D. He contends that the evidence presented was not sufficient to

support the conclusion that he knowingly failed to provide for the support of

K.D. Father claims that he believed that child support withholdings from his

JPAY account were being applied to his child support obligation for K.D. He

further asserts that the transaction history for his JPAY account did not contain

enough information to determine the specific case, K.D.’s or his other child’s,

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to which the withholdings were applied and that he believed that payments

were being paid to both children. [10] Parental consent is generally required to adopt a child in Indiana. Ind. Code §

31-19-9-1. However, consent to adoption 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

(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.

Ind. Code § 31-19-9-8(a)(2). “If a parent has made only token efforts to support

or to communicate with the child the court may declare the child abandoned by

the parent.” Ind. Code § 31-19-9-8(b). The petitioner bears the burden to prove

this by clear and convincing evidence. In re Adoption of M.S., 10 N.E.3d 1272,

1279 (Ind. Ct. App. 2014). [11] We do not address Father’s argument regarding whether he knowingly failed to

provide for the support of K.D. when able to do so because we affirm the trial

court’s judgment based on Father’s failure to communicate significantly with

K.D. when able to do so. At the hearing on the Grandparents’ petition, Father

testified that he was in prison at the time that K.D. was born and had never had

any direct contact with her. Tr. at 43-44. K.D. was ten years old at the time of

the hearing. Father additionally testified that he “periodically” sent letters and

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cards to K.D., and there was no testimony when the most recent

correspondence had been sent. Id. at 46. There was also testimony that Father

never sent gifts or clothing to K.D. Id. at 16, 23-24. [12] Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive—consent of

the parent is not required where either failure to communicate significantly or

failure to provide support is established. In re Adoption of S.W., 979 N.E.2d at

640. Furthermore, we may affirm a trial court order on any basis supported by

the record. Wishard Mem’l Hosp. v. Kerr, 846 N.E.2d 1083, 1093 (Ind. Ct. App.

2006). Here, because there was no evidence presented at the hearing that

Father has sent K.D. any gifts or correspondence or otherwise communicated

significantly with her when he was able to do so, we conclude that the trial

court did not clearly err when it found that Father’s consent was not required

and granted the Grandparents’ petition to adopt K.D. See In re Adoption of T.W.,

859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006) (trial court did not clearly err by

concluding that incarcerated father failed, without justifiable cause, to

communicate significantly with his children, when the record did not

demonstrate that father actually tried to write to the children or telephone them,

and father’s argument that his attempts at communication would have been

thwarted was speculative); Williams v. Townsend, 629 N.E.2d 252, 254 (Ind. Ct.

App. 1994) (occasional letter or card sent to child from incarcerated parent and

one telephone conversation with child was “token communication” that was

properly disregarded by trial court when determining that parent’s consent to

adoption was not required).

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017 Page 6 of 7 [13] Affirmed. [14] Robb, J., concurs. [15] Barnes, J., concurs in result without separate opinion.

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