MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Jan 23 2018, 10:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Erin L. Berger                                           Allyson R. Breeden
Evansville, Indiana                                      Molly E. Briles
                                                         Ziemer, Stayman, Weitzel &
                                                         Shoulders, LLP
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of T.C.                               January 23, 2018
(Minor Child),                                           Court of Appeals Case No.
                                                         82A04-1707-AD-1590
                                                         Appeal from the Vanderburgh
S.A.,                                                    Superior Court
Appellant-Respondent,                                    The Honorable Renee A.
                                                         Ferguson, Magistrate
        v.
                                                         Trial Court Cause No.
                                                         82D04-1602-AD-22
S.S.,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018             Page 1 of 8
                                          Case Summary
[1]   E.S. (“Mother”) gave birth to a son, T.C. (“Child”), whose putative father was

      S.A. (“Father”). Mother later married S.S. (“Stepfather”), who petitioned to

      adopt Child. Father contested the adoption, and the trial court determined that

      Father’s consent to the adoption was unnecessary. Father now appeals.


[2]   We affirm.



                                                   Issues
[3]   Father presents two issues, which we restate as:


              I.      Whether the trial court erred in denying his motion to
                      continue the consent hearing; and


              II.     Whether the trial court erred in determining that Father’s
                      consent to the adoption was unnecessary.


                            Facts and Procedural History
[4]   Child was born on October 12, 2006, out of wedlock. Father did not seek to

      legally establish paternity of Child, though both Father and Mother believed

      that Father was Child’s biological parent. For the first three months of Child’s

      life, Father saw Child once or twice a week. Thereafter, Father came to see

      Child less often, and when he did, Father would abruptly leave. The last time

      Father communicated with Child was in March of 2009. Mother moved in

      May of 2009, changed her phone number in June or July of 2009, and did not


      Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018   Page 2 of 8
      give Father her new address or phone number. At some point in 2011, Father

      was incarcerated after pleading guilty to a federal charge.


[5]   Mother and Stepfather married in 2014, and Stepfather filed a petition to adopt

      Child on February 24, 2016. Father contested the adoption, and the trial court

      scheduled a hearing to determine whether Father’s consent was necessary. The

      hearing was held on April 24, 2017, at which time Father was incarcerated in

      federal prison in Arkansas; Father appeared telephonically, and was represented

      by counsel. When the hearing commenced, Father sought a continuance “to

      give him the opportunity to be released from incarceration to participate in his

      child’s life.” Tr. at 6. Father anticipated that he would be released to a halfway

      house in April of 2020. The trial court denied the motion for a continuance,

      conducted the hearing, and determined that Father’s consent to the adoption

      was unnecessary. The trial court later granted Stepfather’s petition to adopt

      Child, and Father initiated this appeal.



                                 Discussion and Decision
[6]   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). Where, as here, the trial court has entered findings and conclusions,

      Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018   Page 3 of 8
      “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

      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.


[7]   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.


[8]   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

      Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018   Page 4 of 8
       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.


                                        Motion to Continue
[9]    At the hearing regarding the necessity of Father’s consent to the adoption,

       Father sought a continuance. The trial court denied the motion, which Father

       contends was an abuse of discretion and a violation of his right to due process.


[10]   Pursuant to Indiana Trial Rule 53.5, “[u]pon motion, trial may be postponed or

       continued in the discretion of the court, and shall be allowed upon a showing of

       good cause established by affidavit or other evidence.” Moreover, “a trial

       court’s decision to grant or deny a motion to continue is subject to abuse of

       discretion review.” In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). Ultimately,

       “‘[a]n abuse of discretion may be found in the denial of a motion for a

       continuance when the moving party has shown good cause for granting the

       motion,’ but ‘no abuse of discretion will be found when the moving party has

       not demonstrated that he or she was prejudiced by the denial.’” Id. at 244

       (quoting Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615,

       619 (Ind. Ct. App. 2006), trans. denied). Furthermore, in some circumstances,

       the denial of a motion to continue can be “so arbitrary as to violate due


       Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018   Page 5 of 8
       process.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (“[A] myopic insistence

       upon expeditiousness in the face of a justifiable request for delay can render the

       right to defend with counsel an empty formality.”).


[11]   Here, the objective of the consent hearing was to determine whether—in the

       past—Father had failed, without justifiable cause, to communicate significantly

       with Child for the statutory period. See I.C. § 31-19-9-8(a)(2). Yet, “a parent’s

       conduct after the petition to adopt was filed is ‘wholly irrelevant’” to this

       determination. In re Adoption of S.W., 979 N.E.2d 633, 640 n.3 (Ind. Ct. App.

       2012) (quoting In re Adoption of Subzda, 562 N.E.2d 745, 750 n.3 (Ind. Ct. App.

       1990)). Thus, because Father wanted a continuance for additional time to

       participate in Child’s life, Father has not demonstrated that he had good cause

       to delay the consent hearing or that he was prejudiced by proceeding to the

       merits. Accordingly, the trial court did not abuse its discretion or deprive

       Father of his right to due process when it declined to continue the hearing.


                                       Consent to Adoption
[12]   Father does not dispute that he had no contact with Child for a prolonged time.

       Rather, Father asserts that Mother thwarted his ability to communicate with

       Child because she moved and changed her phone number in 2009, and that the

       trial court essentially rewarded Mother for doing so. In so arguing, Father

       directs our attention to In re Adoption of A.K.S., 713 N.E.2d 896 (Ind. Ct. App.

       1999), and D.D. v. D.P., 8 N.E.3d 217, 221 (Ind. Ct. App. 2014). However,

       each of those cases involved a parent who moved out of state and made


       Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018   Page 6 of 8
       sustained efforts to maintain a parent-child relationship, despite the other

       parent’s lack of cooperation. In contrast, here, Father did not attempt to see

       Child for two months even when he had Mother’s current phone number and

       address. Moreover, in the ensuing years, Father did not initiate a paternity

       action or seek legal help with regaining contact with Child. Although Father

       claimed to be unsure of what steps to take, the trial court did not find Father

       credible, noting that Father had five other children and should be familiar with

       the “idea of legal paternity and needing to support a child.” Appellee’s App.

       Vol. II at 9. Furthermore, the evidence favorable to the judgment indicates that

       Mother believed Father saw her on multiple occasions in the community prior

       to his incarceration, and he did not initiate contact with her. Thus, viewing the

       evidence most favorably to the judgment, we cannot say that the trial court

       clearly erred in determining that Father did not have justifiable cause for his

       failure to significantly communicate with Child for the statutory period.1



                                                  Conclusion
[13]   The trial court did not abuse its discretion or affront Father’s right to due

       process by denying his motion to continue. The trial court did not clearly err in

       determining that Father’s consent to the adoption was unnecessary.




       1
         The trial court identified additional statutory grounds to support its determination that Father’s consent to
       the adoption was unnecessary. Because we conclude that at least one statutory basis supports the trial court’s
       determination, we need not address any additional basis.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1707-AD-1590 | January 23, 2018             Page 7 of 8
[14]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




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