In Re the Adoption of L.B. (Minor Child) M.B. v. N.W. (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 Nov 07 2017, 7:20 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Erin L. Berger Craig Goedde Evansville, Indiana Johnson, Carroll, Norton, Kent & Goedde, P.C. Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Adoption of L.B. November 7, 2017 (Minor Child) Court of Appeals Case No. 82A01-1706-AD-1274 Appeal from the Vanderburgh M.B., Superior Court Appellant, The Honorable Renee Ferguson, Magistrate Judge v. Trial Court Cause No. 82D04-1610-AD-125 N.W., Appellee.

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017 Page 1 of 8

Case Summary [1] M.B. (“Father”) and D.W. (“Mother”) had a son, L.B. (“Child”), who was

born on March 11, 2013. Mother subsequently married N.W. (“Stepfather”),

who petitioned to adopt Child. Father objected. Following a hearing, the trial

court determined that Father’s consent to the adoption was unnecessary, and it

granted the petition for adoption. Father now appeals, raising the sole issue of

whether the trial court erred in determining that his consent was unnecessary. [2] We affirm.

Facts and Procedural History [3] Father and Mother became romantically involved in 2011, and moved in

together. Child was born in 2013. Around the time of Child’s birth, Father

executed a paternity affidavit confirming that he was Child’s biological parent. [4] One day in January 2014, Father and Mother began arguing, and Father

choked Mother until she lost consciousness. Father was arrested, and was

prohibited from contacting Mother for one year. Around the time of Father’s

arrest, Mother filed a petition seeking a court order requiring Father to pay

child support. Father was ordered to make weekly payments, which he

intermittently paid. At the time Mother petitioned for child support, neither

parent asked the court to enter an order concerning parenting time. [5] Mother and Stepfather began dating in 2014, and eventually got married in

early 2015. Meanwhile, Mother permitted Father to spend time with Child Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017 Page 2 of 8

from March 2014 to July 2014. When Father lost his job in July 2014 and was

forced to leave his residence, Mother no longer allowed Father to spend time

with Child. At some point later that year, Father was incarcerated. While he

was incarcerated, Father wrote a letter to Mother that was directed to Child. [6] After the no-contact order expired in early 2015, at a time when Father was no

longer incarcerated, Father sent Mother several text messages inquiring about

parenting time. Father sent these messages from January 2015 to June 2015.

Father also called Mother several times. Mother would usually not respond to

Father’s messages, but when she did, Mother indicated that Father should seek

court-ordered parenting time. Father indicated that he would do so, but that he

needed Mother’s address. At one point in February 2015, Father contacted the

Parenting Time Center in Evansville to orchestrate supervised visitation, but

when the Parenting Time Center contacted Mother, she declined the services. [7] Father last sent a text message to Mother on June 10, 2015. He last called

Mother on July 30, 2015. On November 4, 2015, Father sent Mother two

Facebook messages asking about Child. Then, on January 8, 2016, Father sent

two Facebook messages to Mother expressing concern about her mother’s

health. Thereafter, Father had no contact with Mother until he filed, on

September 15, 2016, a pro se motion alleging that Mother had contemptuously

prevented him from spending time with Child. Shortly thereafter, Stepfather

filed, in a separate action, the instant petition to adopt Child. Father filed an

objection to Stepfather’s petition, and Father was later appointed counsel. As

to Father’s contempt allegations in the other cause, the trial court treated the

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motion as a petition to establish parenting time, and scheduled a hearing.

When Father failed to attend the hearing, the petition was dismissed. [8] On May 31, 2017, a hearing was held concerning Father’s objection to

Stepfather’s petition for adoption. The trial court determined that it could grant

Stepfather’s petition without Father’s consent, and granted the petition. [9] Father now appeals.

Discussion and Decision [10] When reviewing a trial court’s decision in an adoption proceeding, we presume

that the decision is correct, and the appellant bears the burden of rebutting this

presumption. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). “We will

not disturb the trial court’s ruling ‘unless the evidence leads to but one

conclusion and the trial judge reached an opposite conclusion.’” Id. at 973

(quoting Rust v. Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999), trans.

denied). Here, in granting Stepfather’s petition, the trial court entered findings

and conclusions. When the trial court has entered findings and conclusions,

“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) (quoting In re

Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)). We “shall not

set aside the findings or judgment unless clearly erroneous.” Ind. Trial Rule

52(A). Findings are clearly erroneous if they are unsupported by any evidence

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or the reasonable inferences to be drawn therefrom. T.L., 4 N.E.3d at 662. A

judgment is clearly erroneous when it is unsupported by the findings and the

conclusions relying on those findings. Id. Moreover, in conducting our review,

we must give “due regard . . . to the opportunity of the trial court to judge the

credibility of the witnesses,” T.R. 52(A), and we are to consider the evidence in

the light most favorable to the trial court’s decision. T.L., 4 N.E.3d at 662. [11] Ordinarily, a petition to adopt a child “may be granted only if written consent

to adoption has been executed” by the child’s parents. Ind. Code § 31-19-9-1.

However, “[c]onsent 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 . . . fails without justifiable cause to communicate significantly with the

child when able to do so.” I.C. § 31-19-9-8(a). This exception does not apply if

a parent has engaged in even a single significant communication with the child

during the pertinent timeframe. See Rust, 714 N.E.2d at 773. [12] When a natural parent has contested an adoption, the person seeking to adopt

the child “has the burden of proving that the parent’s consent to the adoption is

unnecessary.” I.C. § 31-19-10-1.2(a). “Whether this burden has been met is

necessarily dependent upon the facts and circumstances of each particular case,

including, for example, the custodial parent’s willingness to permit visitation as

well as the natural parent’s financial and physical means to accomplish his

obligations.” Rust, 714 N.E.2d at 772. Moreover, “[e]fforts of a custodial

parent to hamper or thwart communication between parent and child are

relevant in determining the ability to communicate.” Id.

Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017 Page 5 of 8 [13] The evidence favorable to the trial court’s decision indicates that from August

2015 through August 2016—a period of at least one year—Father twice

contacted Mother, and Father did not directly communicate with Child. On

November 4, 2015, Father sent Mother two Facebook messages asking

questions about Child, stating that he “hat[ed] life without him” and “want[ed]

him.” Pet’r’s Exhibit E. Then, in early 2016, Father sent a series of Facebook

messages to Mother expressing concern about her mother’s health; Father

noted that he did not want her to lose her mother or for Child “to lose his

grandmother.” Pet’r’s Exhibit H. During this timeframe, it appears that Father

sought no other way to communicate with Child, such as by directing messages

to Child or by writing a letter, which he had sent in the past while incarcerated. [14] Father does not argue that he engaged in any significant communication with

Child after he last saw Child in July 2014. Rather, Father argues that there was

justifiable cause for his failure to communicate. Father contends that Mother

thwarted his ability to communicate with Child by responding to him on only

three occasions and by “refus[ing] to allow [Father] to see or communicate with

[Child].” Appellant’s Br. at 13. According to Father, by granting Stepfather’s

petition, the trial court essentially “rewarded Mother’s refusal to work with

[Father] concerning his contact with [Child].” Id. at 13-14. [15] In arguing that Mother thwarted his attempts to communicate with Child,

Father likens this case to D.D. v. D.P., 8 N.E.3d 217 (Ind. Ct. App. 2014).

There, a father had moved to Washington D.C. for work after his marriage was

dissolved in Indiana. D.D., 8 N.E.3d at 218. Rather than pursue litigation, the

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father repeatedly called and emailed the mother of his young children, sending

over sixty emails requesting parenting time. Id. at 218. The mother responded

to just five emails, and when she did, “she seemed interested only in

terminating his parental rights” or in convincing the father that adoption was in

the children’s best interests. Id. at 221. When the children’s stepfather later

petitioned to adopt the children, the trial court determined there was justifiable

cause for father’s lack of direct communication with the children. Id. at 220.

This Court upheld that determination on appeal. Id. at 222. [16] Here, Father resided in the general area of Southwestern Indiana, and Father

did not sustain his efforts to connect with Child. Moreover, unlike the mother

in D.D., Mother did not seek to persuade Father to give up his parental rights.

Rather, in each of her three responses, Mother directed Father to obtain a court

order to establish parenting time—an indication that parenting time was

possible if Father took certain steps. And although Father testified that on

many occasions he had “jump[ed] through flaming hoops trying to get the ball

rolling” on court-ordered parenting time, Tr. Vol. II at 132, the trial court did

not find Father credible. Indeed, the trial court observed that although Father

claimed that he needed Mother’s address to initiate an action regarding

parenting time, Father obtained Mother’s address in the spring of 2016 but

waited until September to take any formal action. Father blamed his failure to

take action on being in a halfway house, but the trial court observed that being

in a halfway house would not have kept Father from being able to exercise his

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“legal right to come down to the courthouse and file an action” with respect to

his parenting time. Id. at 144. [17] Viewing the evidence in the light most favorable to the decision, we cannot say

that the trial court clearly erred in determining that Father lacked justification

for his failure to significantly communicate with Child for more than a year.

Thus, there is sufficient evidence supporting the trial court’s determination that

Father’s consent was unnecessary to grant Stepfather’s petition to adopt Child.1

Conclusion [18] The trial court did not clearly err in determining that Father’s consent to the

adoption was unnecessary. [19] Affirmed.

Baker, J., and Altice, J., concur.

1 The trial court also identified an alternative statutory basis for its determination that Father’s consent was unnecessary, to which the parties direct argument on appeal. Having concluded that the trial court’s determination was supported by at least one statutory basis, we need not address this additional basis.

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