MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Jul 23 2018, 5:56 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, RI.L                             ATTORNEY FOR APPELLEES
Kimberly A. Jackson                                      MacKenzie J. Breitenstein
Indianapolis, Indiana                                    Rochester, IN
ATTORNEY FOR APPELLANT, R.O.
Mark Small
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of B.L., S.L.,                        July 23, 2018
and R.L.                                                 Court of Appeals Case No.
                                                         52A02-1711-AD-2753
Ri.L. and R.O.,
                                                         Appeal from the Miami Circuit
Appellants-Respondents,                                  Court
        v.                                               The Honorable A. Christopher
                                                         Lee, Special Judge
C.M. and B.M.                                            Trial Court Cause No.
                                                         52C01-1701-AD-3
Appellees-Petitioners.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018             Page 1 of 21
[1]   Ri.L. and R.O. (“Appellants”), the biological father and mother of B.L., S.L.,

      and R.L. (“Children”), appeal the trial court’s decree granting the petition of

      C.M. (“Adoptive Father”) and B.M. (“Adoptive Mother,” and collectively,

      “Adoptive Parents”) for the adoption of Children. Appellants raise one issue

      which we revise and restate as whether the court erred in granting Adoptive

      Parents’ petition for adoption over the objection of Appellants. We affirm.


                                      Facts and Procedural History

[2]   On April 3, 2006, B.L. was born; on June 23, 2008, S.L. was born; and on

      January 31, 2011, R.L. was born. In November 2011, the Department of Child

      Services (“DCS”) conducted a relative placement of Children with Adoptive

      Parents as part of the Child in Need of Services (“CHINS”) investigations

      following foster placement. When removed from the home, Children were

      dehydrated and severely malnourished and had to be hospitalized. During the

      CHINS investigations, Appellants were initially allowed unsupervised visits

      with Children, but the visits later became supervised. At the request of

      Appellants, Adoptive Parents agreed to assume guardianship of Children in

      order to avoid DCS filing petitions to terminate Appellants’ parental rights. In

      April 2012, Adoptive Parents were appointed as guardians of Children, and

      DCS closed the CHINS cases. After the guardianship was granted, Adoptive

      Parents maintained the same supervised visitation model that had been in place

      during the CHINS cases. Appellants were ordered to pay fifty dollars weekly

      for support of Children. When Appellants divorced in “May or June of



      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 2 of 21
      [2012],” each was then responsible for twenty-five dollars weekly. Transcript

      Volume I at 28, 42.


[3]   On January 30, 2017, Adoptive Parents filed a Petition for Adoption seeking to

      adopt Children. On August 16, 2017, the court held a contested hearing on the

      issue of parental consent to the adoption, where all parties were present and

      represented by counsel.


[4]   Adoptive Mother testified that, when she and Adoptive Father became

      guardians, it was agreed that when R.O. received her schedule on Fridays, she

      would contact Adoptive Parents and they would make arrangements for the

      following week to see Children. During her testimony, Adoptive Mother stated

      that she and Adoptive Father had resided at the same address for “twenty-four

      plus” years and had retained the same phone number that R.O. called the night

      of Christmas 2013 for “twenty-four plus” years. Id. at 30. The court admitted a

      spreadsheet as Petitioner’s Exhibit 1 that Adoptive Mother had created from

      her desk calendar to record the dates Appellants visited Children. Petitioner’s

      Exhibit 1 indicates that R.O.’s last visit was on October 4, 20131 and Ri.L.’s last

      visit was on April 5, 2015.


[5]   Adoptive Mother testified about a call she received from R.O. on December 25,

      2013, during which R.O. requested to see Children in thirty minutes. Adoptive




      1
       Adoptive Mother testified that the last time R.O. “saw the boys was October 5, 2013.” Transcript Volume I
      at 29.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018          Page 3 of 21
      Mother stated she told R.O. that they had guests over, that R.O. could not be

      accommodated, that R.O. “hadn’t been much of a mother,” and that they

      would need to discuss her visiting the boys. Id. at 29. Adoptive Mother

      testified that R.O. hung up on her and that was the last phone call she made to

      Adoptive Mother.


[6]   Adoptive Mother testified further that she had seen R.O. at a Wendy’s in Peru,

      Indiana, in December 2014, but that R.O. avoided her and they did not speak.

      She testified she received a letter from R.O. addressed to her, not Children, in

      January 2015, which she characterized as “fifteen excuses of why we haven’t

      heard from her in over a year.” Id. at 31. Adoptive Mother indicated that the

      letter contained R.O.’s current contact information and that she did not respond

      to the letter.


[7]   Adoptive Mother testified that Ri.L.’s contact with Children was “very sparse.”

      Id. at 32. She indicated that he would frequent a church fellowship meal before

      Sunday church and stated:


              [D]epending on what time you got there, you had fifteen minutes
              or so. A lot of times he showed up there. Sometimes we were
              there or sometimes we wouldn’t be. Like I said we never knew
              whether he was coming. I only documented in my calendar one
              time that he actually contacted [Adoptive Father] and [Adoptive
              Father] met him at the church with [B.L. and S.L.] for a visit for
              over an hour.


      Id. Adoptive Mother testified that R.O. filed for visitation after she and

      Adoptive Father filed for adoption, that R.O. “quit paying in September of ’13,

      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 4 of 21
      . . . until we received three payments of $200 in May,” 2 and that Ri.L.’s last

      support payment was in January 2015. Id. at 36.


[8]   Adoptive Father testified:


                 [Adoptive Mother and I] went out of our way and did lot’s [sic]
                 and lot’s [sic] of counseling with – I did a lot with [Ri.L.] We did
                 with both of them trying to help them change things they were
                 doing so they could get their children back. That was the whole
                 goal. Other family members did also. They met with our –
                 pastor, DCS counselors and they didn’t seem to change a single
                 thing. They actually seem to have gotten worse.


      Id. at 50-51.


[9]   He testified that they sold a vehicle to Ri.L. so he would be able to comply with

      the DCS requirement of having sufficient space to “haul three car seats,” but

      that, shortly after, Ri.L. sold the vehicle for a truck that did not comply with the

      DCS requirement. Id. at 51. Adoptive Father testified that R.O. expressed

      interest shortly after the divorce in obtaining custody of Children and that, in

      response to her interest, he asked her to submit a budget and childcare plan.

      Adoptive Father testified:


                 [R.O.] did turn in some stuff. The budget didn’t take into
                 account for extra groceries, gas, books for school. I mean all of
                 that kind of stuff. It was [a] very, very, rudimentary budget. The
                 childcare plan relied on three co-workers to watch [Children] for
                 free. And the schedule would have been made a logistic[s]



      2
          Court Finding 43 indicates that the payments R.O. made after the petition was filed totaled $200.00.


      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018               Page 5 of 21
               professor cry. She was asking each co-worker to watch
               [Children] at four in the morning when she would go into work
               at the Deli. One of the co-workers was a single male that had
               never had any experience with children that we know of. So
               when she turned that into us we put together a list of questions
               that we wanted answered. And was quite extensive about, you
               know, childcare and people and other[s] that were going to be
               watching them. Who else was going to be in the home and
               safety of [Children], things like that. All kinds of different
               questions on money. I provided her with a sample budget to help
               her put together a better budget. She never answered any of the
               questions or filled out another budget. She decided that she
               wasn’t ready at that time to have [Children] back. And that was
               the only time.


       Id. at 52.


[10]   Kurt Kiefer, the court appointed special advocate director at the time of the

       CHINS investigations, testified there were concerns with Appellants’ supervised

       visits with Children. He indicated that some of the concerns with R.O.’s visits

       included the feeding of Children, the foods that were offered, and the

       supervision of Children that occurred while he was there. Kiefer indicated

       there were similar concerns with Ri.L., but that Ri.L. additionally had anger

       issues that would “come out during visits of [Children] wanting to play or do

       something.” Id. at 70-71. When asked if there would be any ongoing concerns

       if visits were to resume between R.O. and Children, Kiefer answered, “I think

       that it would need to be supervised by a third party if there were to be visits and

       have that individual make that decision if they need to continue or not.” Id. at

       71.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 6 of 21
[11]   R.O. testified that Adoptive Mother’s calendar was “relatively accurate,” and

       stated “there was quite a few times actually that the [Adoptive Parents] had

       cancelled because of different things.” Id. at 75. R.O. answered affirmatively

       when asked “until the adoption was filed you hadn’t filed any petitions in the

       [c]ourt to try and get visitation or anything,” and stated:


               I didn’t know I had the option to do that because when I
               originally gave up guardianship I was under the impression that -
               - the DCS had told me that the guardianship was -- would make
               it that the guardians would be the ones that said what [Children]
               did. That they would have authority over [Children] and so I
               thought that meant that I didn’t have any way of fighting if they
               didn’t want me to be at visits.


       Id. at 79.


[12]   R.O. further testified that she could not pay her weekly support because of her

       financial situation. She admitted to being “[s]omewhere around” “over

       $4,000.00 behind” in child support and stated that she was paying for college

       and vehicles, and that she did not have “one extra single dollar” she could have

       paid toward her support obligation. Id. at 84, 86. She also testified that, at the

       time of the hearing, she did not have a place for Children to live with her, but as

       soon as “[she] got that in order [she] would like for them to be in [her] home,”

       and that she was asking for the guardianship to continue and her parental rights

       not to be terminated. Id. at 82.


[13]   Ri.L. testified that he received $735.00 in monthly SSI benefits. He agreed that

       Adoptive Mother’s timeline of visits was correct and that he did not have

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 7 of 21
       unsupervised visitation when DCS was involved, and stated that he visited

       Children “as much as [he] could.” Id. at 89. Ri.L. stated that Children would

       ask him to come to their programs and sporting events, and that he would “let

       them know . . . it’s got to be okay with [Adoptive Parents] first,” and he would

       “never ever hear anything” from them so he “figured it was never okay.” Id. at

       90. When asked what made him think he could not go to a public place and

       watch Children play a sport, Ri.L. stated, “I didn’t want to do anything to upset

       them by showing up or, I mean I love [Children], but I just did not want to

       cause no problems by showing up when I didn’t have the okay.” Id. at 90.

       When asked why he did not go over and try to speak with Children when he

       saw them at Denver Days, he replied, “I did not want to cause no problems.

       I’m – yes, I would [have] loved to go up and talk to [Children] and it killed me

       seeing them down the street from me and not even being able to tell them hi.”

       Id. at 90-91. He stated that Ri.L. bought B.L. some boots in June 2014 and

       brought Easter baskets to Children in April 2015.


[14]   Ri.L. further testified that he felt like he was not wanted around so he just kept

       his distance and, when asked if he was under the impression that he could not

       visit, he stated, “[m]ore or less, yes.” Id. at 92. Ri.L. indicated he called

       Adoptive Father’s cell phone to schedule a time when Adoptive Father could

       inspect Ri.L.’s new dwelling so his visits with Children could occur somewhere

       besides the church, that he never received a return phone call, and that

       Adoptive Father never showed up. When asked whether he made other

       attempts to contact Adoptive Parents, he answered, “I kind of like backed off.”


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 8 of 21
       Id. at 94. Ri.L. further testified that he did not pay his weekly ordered child

       support because he “hit a rough spot and [has been] trying to get it where he

       can start paying on it.” Id. at 95. Ri.L. stated that the last time he paid child

       support was in 2015 or 2016 and that he had not paid any support in 2017. He

       stated that he last spoke with Adoptive Father on Easter in 2015 “except for

       when I – after I got my new place.” Id. at 97. He agreed that he had spoken to

       Adoptive Father “on the phone so they have the same telephone number.” Id.

       at 99.


[15]   On September 1, 2017, the court issued an order which stated in part:


                                             FINDINGS OF FACT

                                                     *****

                6.   [Ri.L.] and [R.O.] were married at the time of the births of
                     [Children].

                                                     *****

                8.   In 2011, [DCS] became involved with [Ri.L.] and [R.O.]
                     and filed CHINS cases due to allegations of poor home
                     conditions, lack of supervision of [Children], and not
                     proper[] feeding . . . .

                9.   [Children] were severely malnourished and required medical
                     treatment.

                                                     *****

                12. [Adoptive Father] and [Ri.L.] are cousins.

                13. [Appellants] contacted [Adoptive Parents] to see if they
                    would consider being the relative placement for [Children].


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 9 of 21
                                              *****

         15. On November 5, 2011, [Children] moved into [Adoptive
             Parents’] home.

                                              *****

         18. In February of 2012, the youngest child, [R.L.], ate cigarette
             butts during an unsupervised visit and became extremely ill,
             and DCS modified visits for [Ri.L.] and [R.O.] to be
             supervised visits.

         19. [Adoptive Parents] attempted to help [Ri.L.] and [R.O.]
             comply with DCS’s requirements for them, including selling
             them a suburban for only $500.00 so they could meet the
             requirement of having a vehicle that would hold three car
             seats.

         20. Prior to having paid Adoptive Parents] the full $500.00 for
             the vehicle and shortly after receiving the vehicle, [Ri.L.]
             and [R.O.] sold the suburban and obtained a truck which
             would not hold three car seats.

         21. [Kiefer] was the director of the Miami County Court
             Appointed Special Advocate (CASA) program at the time of
             the CHINS cases and was involved in the CHINS cases.

         22. [Kiefer] had concerns about the parents’ progress in services
             and concerns about their visits with [Children].

         23. The CHINS cases were not progressing well and were
             headed toward termination of parental rights.

         24. [Adoptive Parents] agreed to assume guardianship of
             [Children] in order to avoid DCS filing petitions to
             terminate the parental rights of [Appellants].

         25. On May 2, 2012, [Adoptive Parents] were appointed as
             guardians of [Children], and DCS closed out the CHINS
             cases.

Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 10 of 21
                                              *****

         29. [Appellants] were to contact [Adoptive Parents] each week
             to schedule the visits for the following week so the visits
             could be scheduled around the [Appellants’] schedules.

         30. In March of 2013, [R.O.] asked [Adoptive Parents] about
             getting custody of [Children] back.

         31. [Adoptive Parents] requested that [R.O.] provide them with
             a budget and a daycare plan so they could determine if it
             was safe and appropriate to return [Children] to her at that
             time.

         32. [R.O.] provided an incomplete budget which did not
             account for insurance or a large enough grocery budget, and
             she provided a daycare plan that relied upon co-workers
             watching [Children] free of charge.

         33. [Adoptive Parents] gave [R.O.] a budget template and made
             suggestions for her to change things so she could ready
             herself to resume full-time care of [Children].

         34. Upon receiving the feedback from the [Adoptive Parents],
             [R.O.] determined she was not ready to have [Children]
             back.

                                              *****

         36. On October 4, 2013, [R.O.] had her last visit with
             [Children].

         37. [R.O.] did not call [Adoptive Parents] again about seeing
             [Children] until December 25, 2013, at which time she told
             [Adoptive Mother] she wanted to see [Children] that same
             day, and [Adoptive Mother] told her she could not be
             accommodated at that time and began to explain how hard
             it was on [Children] for [R.O.] to go three months without
             calling or seeing [Children].

Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 11 of 21
         38. [R.O.] hung up on [Adoptive Mother] and has not called
             again since.

         39. [R.O.] sent a letter to [Adoptive Parents] in January of 2015
             and claimed to have sent a letter in October of 2016, but
             [Adoptive Parents] never received that letter.

         40. [R.O.] has not sent any letters or cards to [Children] since
             she last saw them on October 4, 2013.

                                              *****

         42. As of January 30, 2017, when the adoption petition was
             filed, [R.O.] had not paid any child support in over three
             years.

         43. After the adoption petition was filed, [R.O.] made a few
             support payments totaling $200.00, but at the time of the
             hearing she had not been making regular support payments
             and had an arrearage in excess of $4,000.00.

         44. [R.O.] has been employed since the support order was
             entered and did have income that could have gone toward
             child support.

         45. [Ri.L.] continued to exercise supervised visitation with
             [Children], but he would frequently come to church for his
             visits and only see [Children] during the church breakfast
             provided prior to Sunday school or during church services.

         46. On April 5, 2015, [Ri.L.] had his last visit with [Children].

         47. [Ri.L.] did not contact [Adoptive Parents] again about
             having visitation with [Children].

         49. [Ri.L.] has not sent any letters or cards to [Children] since
             he last saw them on April 5, 2015.

                                              *****


Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 12 of 21
                51. As of January 30, 2017, when the adoption petition was
                    filed, [Ri.L.] had not paid any child support in two years.

                52. At the time of the hearing he had not been making regular
                    support payments and had an arrearage in excess of
                    $3,000.00.

                53. [Ri.L.] has been employed at various times in the five years
                    since the guardianship was established and receives social
                    security disability income and did have income that could
                    have gone toward child support.

                54. [Adoptive Parents] have resided at the same address, had the
                    same landline and cellphone telephone numbers, worked at
                    the same jobs, and attended the same church since they took
                    placement of [Children].

                55. [Appellants] had all of [Adoptive Parents’] contact
                    information and knew where they attended church, having
                    attended church there several times.

                56. Neither [Ri.L.] nor [R.O.] has been incarcerated or
                    otherwise unable to contact [Adoptive Parents] at any point
                    since [Adoptive Parents] took placement of [Children].

                57. [R.O.], after the filing of the adoption petition, petitioned the
                    Court in the open guardianship cause numbers for visitation
                    with [Children].


       Appellant Father Appendix Volume II at 65-70.


[16]   The court concluded that Adoptive Parents had proven by clear and convincing

       evidence that Appellants’ consents to the adoption were not required; that

       Adoptive Parents had met their burden of proof; that Appellants had

       abandoned or deserted Children; and that Appellants had failed without


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 13 of 21
       justifiable cause to communicate significantly with Children. On October 25,

       2017, the court held a final hearing and entered a decree of adoption granting

       Adoptive Parents’ petition.


                                                    Discussion

[17]   The issue is whether the trial court erred in granting Adoptive Parents’ petition

       for adoption over Appellants’ objection. When reviewing the trial court’s ruling

       in an adoption proceeding, we will not disturb that ruling unless the evidence

       leads to but one conclusion and the trial judge reached an opposite conclusion.

       In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). We presume the trial

       court’s decision is correct, and we consider the evidence in the light most

       favorable to the decision. Id.


[18]   When the trial court has made findings of fact and conclusions of law, 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.

       Id.; see Ind. Trial Rule 52(A) (providing that where the trial court has made

       findings of fact and conclusions of law, “the court on appeal shall not set aside

       the findings or judgment unless clearly erroneous, and due regard shall be given

       to the opportunity of the trial court to judge the credibility of the witnesses”).

       Factual findings are clearly erroneous if the record lacks any evidence or

       reasonable 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. In re Adoption of T.L., 4 N.E.3d at 662.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 14 of 21
[19]   Ind. Code. § 31-19-9-1(a) provides in part that, “[e]xcept as otherwise provided

       in this chapter, a petition to adopt . . . may be granted only if written consent to

       adoption has been executed” by “(1) Each living parent of a child born in

       wedlock.” However, Ind. Code. § 31-19-9-8 provides:


               (a) Consent to the adoption, which may be required under
                   section 1 of this chapter, is not required from any of the
                   following:

                    (1)     A parent or parents if the child is adjudged to have
                            been abandoned or deserted for at least six (6) months
                            immediately preceding the date of the filing of the
                            petition for adoption.

                    (2)     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.

                                                           *****

                    (11) A parent if:

                            (A)    a petitioner for adoption proves by clear and
                                   convincing evidence that the parent is unfit to be
                                   a parent; and

                            (B)    the best interests of the child sought to be adopted
                                   would be served if the court dispensed with the
                                   parent’s consent.

                                                           *****


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 15 of 21
               (b)    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.


       (Subsequently amended by Pub. L. No. 113-2017, § 5 (eff. July 1, 2017)).


[20]   Here, the trial court found that all the foregoing statutory provisions applied to

       Appellants, and Appellants challenge the court’s findings with respect to each

       provision. “However, the statute is written in the disjunctive such that the

       existence of any one of the circumstances provides sufficient ground to dispense

       with consent.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Because

       we conclude the trial court properly relied on at least one statutory provision—

       namely, that for a period of at least one year Appellants failed without

       justifiable cause to communicate significantly with Children although they were

       able to do so—we do not address other provisions on which the trial court may

       also have relied.


[21]   Ri.L. argues that the court erroneously determined his consent to adoption of

       Children was not required. He states the court entered three erroneous

       findings: Finding 48, in which the court indicated the scheduling of the visit to

       Ri.L.’s home by Adoptive Father never took place; Finding 55, in which it

       found Ri.L. had all contact information of Adoptive Parents; and Finding 53, in

       which it found Ri.L. has been employed at various times in the five years since

       the guardianship was established, receives social security disability income, and

       did have income that could have gone toward child support. He maintains that

       the court’s conclusion that he failed, without justifiable cause, to communicate

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 16 of 21
       significantly with Children when able to do so is not supported by the evidence.

       He also maintains that he provided testimony as to why he had not contacted

       Children since April 5, 2015, that circumstances were outside his control, and

       that Adoptive Parents unreasonably limited his contact with Children.


[22]   R.O. argues that she did not fail to communicate with her sons without

       justifiable cause, and that she viewed Adoptive Parents’ roles as the

       “gatekeepers . . . to visitation” with Children. Appellant R.O.’s Brief at 12.

       She maintains that she wrote two letters to Adoptive Mother asking for

       permission to visit Children and she thought this was the proper way to seek

       visitation. She also argues that she felt that, every time she tried to contact

       Adoptive Parents to visit, they were unavailable or they would frequently

       cancel appointments.


[23]   Adoptive Parents argue that Appellants failed without justifiable cause to

       communicate significantly with Children when able to do so, and that the last

       time Ri.L. saw Children was April 5, 2015, and the last time R.O. saw Children

       was October 5, 2013. Adoptive Parents maintain that the evidence does not

       support Appellants’ claim that they thwarted Appellants’ attempts to

       communicate with Children.


[24]   One petitioning to adopt without parental consent has the burden of proving

       both a lack of communication for the statutory period and that the ability for

       communication during that time period existed. Rust v. Lawson, 714 N.E.2d

       769, 772. (Ind. Ct. App. 1999), trans denied. The reasonable intent of the


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 17 of 21
       statute, which requires significant communication between the biological parent

       and the child in order to preserve the biological parent’s right to consent to the

       child’s adoption, is to encourage non-custodial biological parents to maintain

       communication with their children, and to discourage such parents from

       visiting their children just often enough to thwart the adoptive parents’ efforts to

       provide a settled environment. Id. In order to preserve the consent requirement

       for adoption, the level of communication by the biological parent with the child

       must not only be significant, but it also must consist of more than token efforts

       at communication. Id.


[25]   Taken in the light most favorable to the court’s findings with respect to Ri.L.,

       the record reveals that his last visit with Children was April 5, 2015. To the

       extent Ri.L. testified that he did not visit Children or contact them since April

       5, 2015, because “[he] felt like [he] wasn’t wanted around so [he] just kept [his]

       distance” and was under the impression he could not visit, we observe that

       Ri.L. also testified that he saw Children at Denver Days but made no attempt

       to speak to them. Transcript Volume I at 92. Further, the record does not

       establish that Adoptive Parents told Ri.L. that he could not visit Children.

       Adoptive Parents tried to help Ri.L. comply with DCS’s requirements to avoid

       having his parental rights terminated by selling a vehicle to Ri.L. that complied

       with DCS requirements. The record also reveals that Ri.L. sold the vehicle and

       replaced it with a truck that did not comply. Ri.L. also testified that he would

       “never. . . hear anything” from Adoptive Parents so he “figured it was never

       okay” to attend sporting events, and that, after Adoptive Father did not come to


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 18 of 21
       inspect his new dwelling, he “kind of like backed off.” Id. at 90, 94. To the

       extent Ri.L. argues that he did not have all contact information for Adoptive

       Parents, the record indicates that he did have their landline phone number,

       knew where they attended church, knew where they lived, and had contacted

       them many times previously.


[26]   Taken in the light most favorable to the court’s findings with respect to R.O.,

       reveals that the last visit she had with Children was on October 4, 2013. She

       sent one verified letter to Adoptive Mother, not Children, in January 2015.

       Adoptive Father testified that R.O. expressed an interest in ending the

       guardianship and having Children live with her again shortly after the divorce,

       but when asked to complete a budget plan, R.O. did not submit a satisfactory

       budget, decided she was not ready for Children to live with her, and never tried

       again. While R.O. argues she sent a letter to Adoptive Parents in October 2016,

       the court found that Adoptive Parents never received the letter. Further, even if

       the letter had been received, it would not rise to the significant level of

       communication required to preserve the consent requirement of the natural

       parents. See Rust, 714 N.E.2d at 772 (noting that one two-hour visit and one

       fifteen minute visit with the child in a twenty-two month period was not

       substantial contact and were only token efforts taken by the natural father).


[27]   The record further reveals that Adoptive Parents filed the petition for adoption

       on January 29, 2016; that they did not attempt to thwart any efforts by

       Appellants to communicate with Children; and that Adoptive Parents have not

       moved or changed their phone numbers and have attended the same church

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018   Page 19 of 21
       since they took placement of Children. Thus, we conclude there was clear and

       convincing evidence that while Children were “in custody of another person

       [and] for a period of at least one (1) year [Appellants] . . . fail[ed] without

       justifiable cause to communicate significantly with the Children when able to

       do so.” Ind. Code § 31-19-9-8(a)(2)(A). The Appellants’ consents to the

       adoption of Children were not required.3 See In re Adoption of C.E.N., 847

       N.E.2d 267, 268-271 (Ind. Ct. App. 2006) (holding that the natural mother

       failed without justifiable cause to communicate significantly with her child, and

       noting that communication between the natural mother and the child had been

       sporadic, that the natural mother had the ability to visit her child if she had

       chosen, and that, even though the adoptive mother gave up on the natural

       mother visiting with the child, the adoptive mother did not hamper

       communication between the natural mother and the child).


                                                        Conclusion

[28]   For the foregoing reasons, we affirm the decree of adoption entered by the trial

       court.


[29]   Affirmed.




       3
         We note that, “[e]ven if a court determines that a natural parent’s consent is not required for an adoption,
       the court must still determine whether the adoption is in the child’s best interests.” In re Adoption of O.R., 16
       N.E.3d at 974 (citing Ind. Code § 31-19-11-1(a)(1)). Here, the court stated in its order that it was in
       Children’s best interests to grant Adoptive Parents’ petition, and Appellants do not challenge the court’s
       determination.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-AD-2753 | July 23, 2018                 Page 20 of 21
Bailey, J., concurs in result.


Crone, J., concurs.




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