In the Matter of the Adoption of T.T. and K.T J.T., Jr. (Father) v. R.K.A. (Adoptive Parent) (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 Jun 19 2019, 10:44 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 Kimberly A. Jackson Lisa M. Dillman Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of June 19, 2019 T.T. and K.T Court of Appeals Case No. 18A-AD-2384 J.T., Jr. (Father), Appeal from the Fayette Circuit Appellant-Respondent, Court v. The Honorable Hubert Branstetter, Jr., Judge R.K.A. (Adoptive Parent), Trial Court Cause Nos. 21C01-1802-AD-81 & 21C01-1802- Appellee-Petitioner. AD-86

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019 Page 1 of 12

STATEMENT OF THE CASE [1] Appellant-Respondent, J.T., Jr. (Father), appeals the trial court’s adoption

decree, granting the adoption of the minor children, T.T. and K.T. (collectively,

Children), by R.K.A. (Adoptive Father). [2] We affirm.

ISSUES [3] Father presents us with two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion in denying Father’s motion

to continue the adoption hearing; and

(2) Whether sufficient evidence existed to support the trial court’s finding

that Father’s consent to the adoption was not required and the adoption

was in the best interests of the Children.

FACTS AND PROCEDURAL HISTORY [4] Father is the biological father of T.T., born on July 29, 2007, and K.T., born on

November 29, 2010. K.A. (Mother), and Father divorced in 2011. Pursuant to

the divorce decree, Father was ordered to pay weekly child support in the

amount of seventy-seven dollars ($77). Father was granted parenting time with

the Children, which he exercised fairly regularly at first after the divorce.

Gradually and within three years prior to filing the adoption proceedings,

Father started to taper off on his parenting time. He would not exercise his two

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full weeks during summer, and at times, Father would go about three months

between visits with the Children. [5] Both Father and Mother remarried. Mother married Adoptive Father on

December 10, 2014. Adoptive Father is raising the Children “as [his] own

children” and the Children refer to him as “dad.” (Transcript pp. 9, 22). In the

year and a half preceding the filing of the adoption petition, Father ceased

exercising consistent or scheduled parenting time. In 2017, Father contacted

Mother only three times to initiate parenting time. In April 2017, Father

contacted Mother on a Wednesday, requesting to see the Children on Friday.

Mother “told him to get ahold of [her] on Friday,” but he never did. (Tr. p. 18).

Father contacted Mother again in September and then again one time after

September, but none of these contacts resulted in actual parenting time. Father

met the Children by chance when the Children were visiting with the paternal

grandparents and Father stopped in. At no time did Father call to speak with

the Children, nor did he send them birthday presents, other gifts, or cards. [6] On February 26, 2018, Adoptive Father, with the consent of Mother, filed his

separate petitions to adopt the Children. After the filing, Father contacted

Mother twice, asking to see the Children. Adoptive Father’s counsel sent

notice of the adoption via certified mail to Father at his last known address.

The certified mail was signed for at the address and a return of service was

received. On April 3, 2018, Father filed his appearance in the proceedings, as

well as a verified motion to continue the adoption hearing that was set for April

11, 2018, and to appoint an attorney to represent him in the proceedings. In his

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verified motion, Father represented that the last known address that was used

by Adoptive Father for legal mailings was his actual address. The trial court

granted Father’s request for a continuance and set the adoption hearing for May

29, 2018. Notice of the hearing was served to Father at his address. On April

27, 2018, the trial court conducted a hearing on Father’s request for

representation. At the close of the hearing, the trial court granted Father’s

request and appointed counsel for him. The trial court entered the appointment

of Father’s attorney on its docket and served counsel with notice of his

appointment. On May 7, 2018, Father’s counsel served a motion for discovery

to Adoptive Father’s counsel. Counsel responded to the motion by disclosing

the witness list. Father met with his counsel approximately one week prior to

the hearing and after counsel received the witness list. [7] On May 29, 2018, Father and his counsel failed to appear for the hearing.

Eventually, Father’s counsel was located in the county courthouse and was

summoned to the trial court to attend the hearing. Father’s counsel informed

the trial court that he had consulted with Father the previous week and Father

had not mentioned the hearing date. Father’s counsel requested a continuance

on the ground that Father had not received notice of the hearing, which was

objected to by Adoptive Father and denied by the trial. At the close of the

evidence, the trial court concluded that

[Father] of the [Children] [] has failed without justifiable cause to communicate significantly with the [C]hildren when he has been able to do so for at least one (1) year. Therefore, pursuant to

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[I.C. §] 31-19-9-8(a)(2), the consent of [Father] to these adoptions is not required.

(Appellant’s App. Vol. II, pp. 8, 18). Finding the adoption to be in the best

interests of the Children, the trial court granted Adoptive Father’s petition. [8] Father now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION I. Notice

[9] Father contends that the trial court violated his due process rights by denying

his counsel’s motion for continuance made on his behalf at the commencement

of the adoption hearing because Father had failed to receive notice of the

hearing date. [10] The Fourteenth Amendment to the United States Constitution provides that

“no person shall be deprived of life, liberty, or property without due process of

law.” U.S. Const. Amend. XIV. We have repeatedly noted that the right to

raise one’s children is more basic, essential, and precious than property rights

and is protected by the Due Process Clause. In re T.W., 831 N.E.2d 1242, 1245

(Ind. Ct. App. 2005). “Although due process has never been precisely defined,

the phrase expresses the requirement of ‘fundamental fairness.’” Id. (citing E.P.

v. Marion Co. Office of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.

1995)). We have held that the “fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019 Page 5 of 12 [11] Both Indiana’s adoption statute and our trial rules set forth certain standards for

notice and service of process that are applicable in adoption cases. In re

Adoption of L.D., 938 N.E.2d 666, 669 (Ind. 2010). Prior to terminating a

parent’s rights in adoption proceedings under Indiana Code section 31-19-9-8,

the parent must be afforded notice of the adoption proceeding pursuant to

Indiana Trial Rule 4.1. See I.C. § 31-19-4.5-2. Indiana Trial Rule 4.1 provides

that service may be effected by

Sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter.

[12] Adoptive Father sent the notice of the adoption petition via certified mail to

Father’s last known address, the mailing was signed for and a return of service

was received. In response to the notice, Father entered his appearance in the

proceedings and filed a verified motion to continue the adoption hearing. In his

motion to continue, Father represented to the trial court that his actual address

coincided with the last known address. Accordingly, it is undeniable that

Father received notice of the adoption proceedings. [13] Father now contends that he failed to receive notice of the re-scheduled hearing

on May 29, 2018. While Trial Rule 4.1 governs service of process of the initial

action, Trial Rule 5 “governs service of subsequent papers and pleadings in the

action.” In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App. 2003), trans. denied.

Indiana Trial Rule 5 authorizes service by U.S. mail and “[s]ervice upon the Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019 Page 6 of 12

attorney or party shall be made by delivering or mailing a copy of the papers to

him at his last known address.” We have previously held that “to require

service of subsequent papers, such as hearing notices, to rise to the level of

service of process would permit a parent or other party entitled to notice to

frustrate the process by failing to provide a correct address and would add

unnecessarily to the expense and delay in termination proceedings when

existing provisions adequately safeguard a parent’s due process rights.” In re

A.C., 770 N.E.2d 947, 950 (Ind. Ct. App. 2002). Although In re A.C. was

decided in the context of a termination of parental rights proceeding, we find

that the same reasoning is applicable in adoption cases as similar safeguards are

implicated and identical rights are protected. [14] While certified mail was not necessary to effectuate service of the May 29, 2018

trial setting, the hearing notice was mailed to Father at the address referenced in

his motion via certified mail and was deemed complete upon mailing. On April

14, 2018, the certified mailing was signed for at Father’s address and a return of

service was received by the trial court. Moreover, Father’s counsel had received

the witness list from Adoptive Father’s counsel, had consulted with Father prior

to the hearing, and was present at the May 29, 2018 hearing where he

confronted and effectively cross-examined witnesses. Accordingly, based on

the facts before us, we conclude that Father received adequate notice of the re-

scheduled hearing and his due process rights were not implicated.

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II. Sufficiency of the Evidence 1

[15] With respect to the merits of the case, Father contends that the adoption should

be set aside as the trial court erroneously determined that Father’s consent to

the adoption was not required and the adoption was in the Children’s best

interests. [16] When reviewing adoption proceedings, we presume that the trial court’s

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

presumption. In re Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014).

We generally give considerable deference to the trial court’s decision in family

law matters, because we recognize that the trial court is in the best position to

judge the facts, determine witness credibility, get a feel for the family dynamics,

and get a sense of the parents and their relationship with their children.

MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Therefore, we will

not disturb the ruling of the trial court unless the evidence leads to but one

conclusion and the trial court reached an opposite conclusion. In re Adoption of

1 As an initial issue, Adoptive Father contends that Father’s consent to the adoption must be irrevocably implied because Father failed to file a written motion to contest the adoption. Indiana Code section 31-19-9- 18 provides, in pertinent part, that “[t]he 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[.]” While we agree with Adoptive Father that Father did not file a separate motion to contest the adoption, the record reflects that in his verified motion for continuance, which was filed within thirty days of service of notice, Father stated, “I am in need of a court appointed attorney so I do not lose my rights to my children.” (Appellant’s App. Vol. II, p. 50). Due to the important rights involved and because “we have often held that where the purpose of a rule is satisfied, this [c]ourt will not elevate form over substance,” we find that Father’s handwritten inclusion on his verified motion for continuance satisfied I.C. § 31-19-9-18 and we conclude that Father properly and timely contested the adoption petition. See Matter of Adoption of J.R.O., 87 N.E.3d 37, 43 (Ind. Ct. App. 2017) (oral motion to contest adoption satisfies the purpose of I.C. § 31-19-9-18), trans. denied.

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J.L.J., 4 N.E.3d at 1194. In determining whether the trial court’s decision is

supported by sufficient evidence, we do not reweigh the evidence, and we

consider all evidence and reasonable inferences derived therefrom most

favorably to the trial court’s ruling. Id. In cases where an adoption petition is

filed without the required parental consent, the party seeking to adopt “bears

the burden of proving the statutory criteria for dispensing with such consent . . .

by clear, cogent, and indubitable evidence.” Id. [17] Under Indiana law, a parent’s consent to the adoption of his child is not

required 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.

I.C. § 31-19-9-8(a)(2). Here, the trial court concluded that Father “has seen the

[C]hildren once, by chance for a brief period of time since January 2017, and

has made two (2) half-hearted attempts to see the [C]hildren since the filing of

the [p]etitions for adoption.” (Appellant’s App. Vol. II, pp. 8, 18).

Accordingly, as Father failed to communicate significantly with the Children

without justifiable cause for at least one year, the trial court concluded that

Father’s consent was not required.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019 Page 9 of 12 [18] A determination on the significance of the communication is not one that can

be mathematically calculated to precision. E.B.F. v. D.F., 93 N.E.3d 759, 763

(Ind. 2018). On the one hand, a single significant communication within one

year can be sufficient to preserve a non-custodial parent’s right to consent to

adoption, while, on the other hand, “a few, fleeting, and sometimes

unintended” contacts with the child will not be found significant. Id. Even

multiple and relatively consistent contacts may not be found significant in

context. Id. [19] The record before us reflects Father’s interactions with the Children to be

minimal at best during the year prior to the filing of the adoption petition.

Besides an accidental encounter at the home of paternal grandparents, Father

has not interacted with the Children since 2017. While he made several

attempts to set up parenting time with the Children, Father never followed

through on those attempts. Father did not contact the Children on their

birthdays or during the Holidays, nor did Father send them cards or presents.

Accordingly, as Father’s minimal efforts cannot amount to the level of

significant communications mandated under the Statute, the trial court

correctly determined that Father’s consent was not required for the adoption of

the Children. [20] Nonetheless, “[e]ven 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.” In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct.

App. 2014). The evidence suggests that Father has not had any meaningful

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contact with the Children and was delinquent in his child support payments.

Adoptive Father and Mother provide a stable and nurturing environment.

Adoptive Father is “raising the [C]hildren as if they were his own [C]hildren”

and a strong bond exists between them. (Tr. p. 9). Therefore, we conclude that

adoption is in the best interests of the Children. [21] However, Father contends that the trial court’s grant of Adoptive Father’s

petition is defective because he failed to present evidence that “Mother was the

legal custodian of the [C]hildren.” (Appellant’s Br. p. 24). Indiana Code

section 31-19-9-1(a)(3) requires consent from “[e]ach person, agency, or local

office having lawful custody of the Child whose adoption is being sought.”

“Lawful custody,” within the meaning of the statute, is interpreted as “custody

that is not unlawful.” In re Adoption of B.C.H., 22 N.E.3d 580, 585 (Ind. 2014).

The court explained that “there are many sources of potential lawful custody

that span the spectrum from court-ordered custody of a child to de facto

custodianship to informal caretaking arrangements, to name a few.” Id. Here,

the record established that Mother is the primary caregiver for the Children, as

well as the custodial parent who receives court-ordered child support from

Father. The Children have lived with Mother since the divorce and she

submitted written consent for the adoption, in compliance with I.C. § 31-19-9-1.

Accordingly, we find that Adoptive Father carried his burden of proof that

Mother was the lawful custodian of the Children.

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CONCLUSION [22] Based on the foregoing, we hold that the trial court did not abuse its discretion

by denying Father’s motion for continuance of the adoption hearing; and

sufficient evidence existed to support the trial court’s finding that Father’s

consent to the adoption was not required and the adoption was in the best

interests of the Children. [23] Affirmed. [24] Bailey, J. and Pyle, J. concur

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