      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                               FILED
      court except for the purpose of establishing                        Dec 23 2019, 6:53 am

      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
      Katherine N. Worman
      Evansville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Adoption of                        December 23, 2019
      K.H.;                                                   Court of Appeals Case No.
                                                              19A-AD-1637
      T.H.,
                                                              Appeal from the Vanderburgh
      Appellant,                                              Superior Court
              v.                                              The Honorable Brett J. Niemeier,
                                                              Judge
      J.W.,                                                   The Honorable Renee A.
                                                              Ferguson, Magistrate
      Appellee.
                                                              Trial Court Cause No.
                                                              82D04-1901-AD-6



      Najam, Judge.


                                       Statement of the Case
[1]   T.H. (“Father”) appeals the trial court’s grant of J.W.’s (“Stepfather”) petition

      for adoption of Father’s minor child K.H. (“Child”). Father presents a single
      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019            Page 1 of 9
      issue for our review, namely, whether Stepfather presented sufficient evidence

      to support the trial court’s grant of the adoption petition without Father’s

      consent. We affirm.


                                 Facts and Procedural History
[2]   Father and S.W. (“Mother”) never married, and they have one child together,

      Child, who was born on March 6, 2012. After Father’s paternity was

      established, a court awarded Mother custody of Child, with Father to exercise

      parenting time at Mother’s discretion. The court also ordered Father to pay

      child support to Mother. Father’s parenting time with Child was sporadic, and,

      because he was incarcerated multiple times over the years, since 2013, Father

      has only seen Child approximately ten times. The last time Father saw Child

      was in November 2017.


[3]   Sometime in early 2017, Mother had begun dating Stepfather. In January 2019,

      Stepfather filed his petition for adoption of Child. And in February 2019,

      Mother and Stepfather were married. Father timely filed his objection to the

      adoption petition. Following a hearing , the trial court concluded that Father’s

      consent to the adoption was not required. In particular, the court found and

      concluded in relevant part as follows:


              10. [Father] did not communicate with [Child] for a period
              exceeding one year that began on or about the end of November
              2017 through the date of the filing of the adoption petition [in]
              January 2019.

                                                     ***

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 2 of 9
        12. [Father] has not significantly communicated with [Child] for
        several years because he had only seen [Child] about 10 times
        since June 2013.

        13. [Father] testified that he saw [Child] at his mother[’s] home
        on Christmas 2018; however, [Father’s] mother testified that
        [Father] did not see [Child] at her home on Christmas 2018. The
        court finds that [Father] did not see [Child] on Christmas 2018.

        14. [Father] does not have a relationship with his daughter and
        is not bonded to [her].

        15. [Father] due to his own unlawful actions and choices
        voluntarily removed himself from [Child’s] life.

        16. [Father] was in and out of jail from late 2015 through the
        date of this hearing and was incarcerated the day of the hearing
        on his objection [sic].

                                               ***

        22. One time when [Father] was on either probation or parole he
        was told by [Mother] that if he wanted to see [Child], she would
        agree to parenting time at the Parenting Time Center[,] to which
        he replied, “go f*** yourself.”

        23. [Father] did not send a letter, card or gift to [Child] in at least
        several years.

        24. [Father’s] testimony that he contacted the Mother hundreds
        of times to ask to see [Child], but was always denied by the
        Mother is not credible testimony.

        25. [The CCS of the paternity matter] states that parenting time
        is at Mother’s discretion and this Court finds that the parenting
        time was at Mother’s discretion due to [Father’s] violence toward
        the Mother.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 3 of 9
        26. [Father’s] written objection to the adoption stated that his
        family did not get to see [Child] due to threats from the Mother.

        27. [Father’s mother] testified that she does see and have a
        relationship with [Child] and that she had never been threatened
        by [Child’s] mother.

        28. [Father] did not provide any support for [Child] in excess of
        one year. Petitioner’s Exhibit #9.

                                               ***

        30. While incarcerated at the IDOC [Father] has worked and
        received a wage.

        31. While on work release [Father] worked at least two different
        jobs, one 40 hours a week and another at 60 hours a week.

        32. When [Father] was on work release he made no effort to
        provide any support for [Child].

        33. Petitioner’s Exhibit # 9 shows one involuntary payment
        from 11/11/2017 through March 3, 2019.

        34. [Father’s] testimony that he was told by Volunteers of
        America that he was to put all his money in savings for when he
        is out is not a valid legal reason to provide zero support for
        [Child].

        35. [Father’s] pattern of conduct of violating probation and
        parole thereby extending his incarceration were voluntary actions
        which prevented him from seeing his daughter, [Child,] and from
        complying with his duty to provide support for [Child].

        36. [Father] could have still communicated with [Child] through
        letters, cards, and gifts.


Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 4 of 9
                                               ***

        CONCLUSIONS

        1. The Petitioner alleges that the biological father’s consent is
        not required pursuant to [Indiana Code Section ] 31-19-9-8.

                                               ***

        4. Pursuant to [I.C. §] 31-19-9-8(a)(1) this court finds that
        [Stepfather] has met his burden by clear and convincing evidence
        that [Father’s] consent is not required pursuant to [Father’s]
        failure to communicate significantly for a period of more than
        one year from Thanksgiving 2017 through the date of the consent
        hearing on May 10, 2019 when he [was] able to do so.

        5. [Father] was on legal probation and parole numerous times in
        2016, 2017 and 2018 and if he abided by the rules of his
        probation or parole he would have been able to see [Child], but
        due to his own choices of violating probation and parole ended
        up being on the run from the law.

        6. Pursuant to [I.C. §] 31-19-9-8(a)(2) this court finds that
        [Stepfather] has met his burden by clear and convincing evidence
        that [Father’s] consent is not required pursuant to [Father’s]
        failure to pay child support for a year from November 11, 2017
        through March 3, 2019 when he was able to provide some
        support. Petitioner’s Exhibit #9.

                                               ***

        RULING

        For the reasons stated above, the Court finds that the Father’s
        Consent to [Stepfather’s] action to adopt [Child] IS NOT
        required pursuant to [I.C. §] 31-19-9-8(a)(1 and 2).


Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 5 of 9
      Appellant’s App. Vol. 2 at 16-20. Accordingly, on June 13, the trial court

      issued an adoption decree granting Stepfather’s petition. This appeal ensued.


                                     Discussion and Decision
[4]   Father contends that the trial court erred when it concluded that his consent to

      the adoption was not required. As our Supreme Court has stated:


              In family law matters, we generally give considerable deference
              to the trial court’s decision because we recognize that the trial
              judge 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).
              Accordingly, when reviewing an adoption case, we presume that
              the trial court’s decision is correct, and the appellant bears the
              burden of rebutting this presumption. In re Adoption of O.R., 16
              N.E.3d 965, 972-73 (Ind. 2014).

              The trial court’s findings and judgment will be set aside only if
              they are clearly erroneous. In re Paternity of K.I., 903 N.E.2d 453,
              457 (Ind. 2009). “A judgment is clearly erroneous when there is
              no evidence supporting the findings or the findings fail to support
              the judgment.” Id. We will not reweigh evidence or assess the
              credibility of witnesses. In re Adoption of O.R., 16 N.E.3d at 973.
              Rather, we examine the evidence in the light most favorable to
              the trial court’s decision. Id.


      E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018)


[5]   Initially, we note that Stepfather has not filed an appellee’s brief.


              When an appellee fails to file a brief, we apply a less stringent
              standard of review. We are under no obligation to undertake the

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 6 of 9
              burden of developing an argument for the appellee. We may,
              therefore, reverse the trial court if the appellant establishes prima
              facie error. “Prima facie” is defined as “at first sight, on first
              appearance, or on the face of it.”


      Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations

      omitted).


[6]   Generally, a trial court may grant a petition for adoption only if both the

      mother and father of the child consent. Ind. Code § 31-19-9-1 (2019).

      However, Indiana Code Section 31-19-9-8(a) provides in relevant part that

      consent to an adoption is not required from:


              (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.


      Because the provisions of the statute are written in the disjunctive, they each

      provide an independent ground for dispensing with parental consent. J.H. v.

      J.L. (In re Adoption of M.L.), 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).


[7]   Here, the trial court concluded that Father, for a period of at least one year,

      both failed without justifiable cause to communicate significantly with Child

      when able to do so and knowingly failed to provide for the care and support of


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 7 of 9
      Child when able to do so as required by law or judicial decree. Father contends

      that Stepfather presented insufficient evidence to prove either statutory element.

      Because the statute is written in the disjunctive, we need only address whether

      the trial court erred when it concluded that Father, for a period of at least one

      year, failed without justifiable cause to communicate significantly with Child

      when able to do so.


[8]   Our Supreme Court has stated that “[a] determination on the significance of the

      communication is not one that can be mathematically calculated to precision.”

      J.W. v. D.F. (In re Adoption of E.B.F.), 93 N.E.3d 759, 763 (Ind. 2018). The

      Court explained that the “significance of the communication cannot be

      measured in terms of units per visit. Even multiple and relatively consistent

      contacts may not be found significant in context. But a single significant

      communication within one year is sufficient to preserve a non-custodial parent’s

      right to consent to the adoption.” Id. (citations omitted).


[9]   Here, at the hearing on May 10, 2019, Stepfather presented evidence that

      Father had not had any contact with Child since Thanksgiving 2017. Father

      disputed that evidence and testified that he had seen Child at Father’s mother’s

      house on Christmas 2018. But both Mother and Father’s mother unequivocally

      testified that Father did not see Child that day. Father testified further that he

      had made multiple attempts to contact Child after Thanksgiving 2017, but he

      was thwarted by Mother. The trial court found that Father’s testimony was not

      credible. And, as the court found, the evidence is undisputed that Father “has

      not sen[t] a letter, card or gift to [Child] in at least several years.” Appellant’s

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019   Page 8 of 9
       App. Vol. 2 at 17. Father’s contentions on this issue amount to a request for us

       to reweigh the evidence and witness testimony, which we cannot do. Father

       has not demonstrated that the trial court’s conclusion that he failed to

       communicate significantly with Child for at least one year was clearly

       erroneous.1 Accordingly, the trial court did not err when it concluded that

       Father’s consent to Stepfather’s adoption of Child was not required.


[10]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       1
        The trial court cited Indiana Code Section 31-19-9-8(a)(1) as the subsection applicable to this conclusion.
       That is a typo. The correct subsection is Indiana Code Section 31-19-9-8(a)(2)(A).

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1637 | December 23, 2019                  Page 9 of 9
