      MEMORANDUM DECISION
                                                                       Mar 16 2015, 10:02 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Joshua D. Hershberger                                    R. Patrick Magrath
      Hershberger Law Office                                   Alcorn Sage Schwartz & Magrath, LLP
      Madison, Indiana                                         Madison, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the                                     March 16, 2015
      Adoption of B.R. (Minor Child)                           Court of Appeals Case No.
                                                               72A04-1408-AD-372
      R.R. (Father),                                           Appeal from the Scott Circuit Court
                                                               The Honorable Roger L. Duvall,
      Appellant-Respondent,                                    Judge
                                                               Case No. 72C01-1010-AD-30
              v.

      D.S. and V.S.,
      Appellees-Petitioners



      Crone, Judge.

                                               Case Summary
[1]   R.R. (“Father”) appeals the trial court’s order granting the petition filed by V.S.

      (“Grandmother”) to adopt B.R., a quadriplegic fourteen-year-old for whom

      Grandmother had been guardian for most of his life. Father contends that the
      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015     Page 1 of 13
      trial court erred in concluding that his consent to the adoption is not required

      and that the adoption is in B.R.’s best interest. Finding no error, we affirm.


                                    Facts and Procedural History1
[2]   Grandmother and her sister, D.S., filed a petition to adopt B.R. in October

      2010. The trial court held a hearing on the petition in February and April 2014.

      In an order dated June 30, 2014, the trial court made the following relevant

      findings of fact and conclusions thereon:2

                 1. B.R. was born on February 1, 2000 one of three children to the
                 marriage of the Father and the Mother, T.R. (Mother).

                 2. The Court takes notice of the fact that the siblings of B.R. are wards
                 of the Court in child in need of services cases pending since 2009 and
                 are not parties to this case.

                 3. The Mother has consented to this adoption.

                 4. In April, 2001, Mother and B.R. were in an automobile accident
                 that left B.R. a quadriplegic. The accident resulted in [] 7 weeks of
                 hospitalization of B.R. followed by 4 ½ months at St. Vincent Rehab.
                 The child returned to the home of his parents on September 22, 2001.

                 5. The Indiana Department of Child Services (DCS) removed B.R. in
                 February 2003 from the home of his parents for failure to thrive.

                 6. The Father and Mother eventually separated in August 2004, and
                 dissolution was granted on May 17, 2005 in Johnson County, Indiana.



      1
        We remind Father that an appellant’s statement of facts “shall be stated in accordance with the standard of
      review appropriate to the judgment or order being appealed.” Ind. Appellate Rule 46(A)(6)(b). Also,
      Indiana Appellate Rule 43(C) states that an appellate brief “may be copied by any copying process that
      produces a distinct black image on white paper.” The text in Father’s brief is indistinct and difficult to read.
      2
          We replace family members’ names with initials or descriptors where appropriate.


      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015                Page 2 of 13
        7. The Father was granted the custody of B.R. and his two siblings.
        In 2005 the Father was incarcerated on charges of criminal
        confinement and domestic battery. B.R. was placed by DCS with
        Grandmother, a great grandmother, who has had physical custody
        since April 2005.

        8. [Grandmother filed a petition for guardianship of B.R. in
        September, 2005.] A temporary order on the guardianship was
        entered September 7, 2005 and the guardianship order was entered on
        May 11, 2006. The Father was awarded parenting time as a part of the
        guardianship order.

        9. The next three years of the guardianship would be marked by
        continued litigation. During that time period the Court appointed,
        Mary Fondrisi, as guardian ad litem. This ongoing litigation
        culminated with a petition by GAL Fondrisi to suspend parenting time
        filed on April 3, 2009 with a hearing conducted on May 21, 2009 ….

        10. This Court granted the petition to suspend parenting time not[]ing
        extensively the reasons in the order of May 22, 2009 including Father’s
        arrest for possession of a controlled substance; ten residences since
        December 2007, and limited and inappropriate interaction by Father in
        B.R.’s long term medical needs.

        11. While the order allowed supervised parenting time there is no
        record of any contact or parenting time between the Father or B.R.
        between the order of May 22, 2009 and the filing of the petition for
        adoption on October 25, 2010, a period of seventeen (17) months.

        12. There were also no proceedings in the guardianship case whereby
        Father requested the resumption of his parenting time. The next filing
        by the Father was a letter of November 8, 2010 requesting records,
        copies of the petition and a continuance of any hearings as Father was
        then incarcerated in the Jackson County Jail.

        13. The Court acknowledges considerable delay in bringing this
        petition for adoption to final hearing. Much of the delay is attributable
        to Father’s efforts to secure counsel (Court eventually appointed
        counsel) and continued instability in Father’s life.


Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 3 of 13
        14. B.R. appeared at the hearing on April 14, 2014 and being fourteen
        years of age expressed his desire that the adoption be granted.

        15. The Father has demonstrated continuous and significant
        instability in his life. That history is extensively set out in the
        guardianship and has continued since documented by the Court in the
        May 22, 2009 guardianship order. It is during this time that B.R.’s
        siblings were found to be children in need of services. During this time
        Father has had additional arrests and periods of incarceration.

        16. Father has not executed consent to the proposed adoption.

        17. The issue before the Court is whether there is sufficient evidence
        to find that the Father’s consent is not required.

        18. I.C. 31-19-9-8(a) provides in part that consent to an adoption is
        not required when:


                A. Parent of a child in custody of another person if for a period
                of at least (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.


        19. Payment or non-payment of support is a separate basis for
        termination of parental rights and is irrelevant to the issue of
        communication.

        20. For the entire history of the guardianship and adoption
        proceedings, the Father paid no child support. There had also been no
        meaningful contact with B.R. after May, 2009.

        21. The Father was under no child support order although a parent
        continues to have a legal duty to support children. However this factor
        is not the essential factor upon which the question of dispensing with
        Father’s consent rests.

        22. The issue before the Court is whether Father failed, without
        justifiable cause for a period of one year to communicate significantly

Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 4 of 13
        with [h]is child when able to do so.

        23. There is no question of reluctance by the co-petitioners to allow
        visits or communication by the Father with B.R. existed.

        24. This reluctance did not translate into an outright denial by co-
        petitioners. There were genuine safety concerns given the events
        leading up to May 2009 which safety concerns have continued to the
        present date.

        25. Father took no steps in this seventeen (17) month period before
        the petition to adoption to pursue and enforce his supervised parenting
        time rights.

        26. Father provided no gifts or cards to B.R.

        27. By clear and convincing evidence, Father did no[t] significantly
        communicate with B.R. from May, 2009 up to the filing of this
        proceeding in October, 2010. Further there has been no significant
        communication since that time.

        28. The second part of that test is did Father have the ability to
        communicate with B.R. and this translates to the fundamental
        question of whether co-petitioners thwarted that ability such that no
        action taken by Father could have prevailed to allow his
        communication.

        29. While there has been conflict between D.S. and Father, there is no
        significant or credible evidence of that conflict between Father and
        Grandmother.

        30. Grandmother has not prevented communication between Father
        and B.R.

        31. The Court finds by clear and convincing evidence that the actions
        by co-petitioner were not such as to prevent Father from having the
        ability to communicate.

        32. Again, there is no evidence that Father ever sent birthday or
        Christmas cards or presents. These simple measures to maintain a line

Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 5 of 13
        of communication the Court finds to be significant.

        33. Father undertook no steps to enforce his parenting time rights.

        34. It is true that co-petitioners were not cooperative in facilitating the
        Father-Child relationship. There were many uncertainties and
        concerns given Father’s substance abuse and criminal issues and B.R.’s
        health issues which explain that reluctance. However the Court does
        not find this constituted a block to Father’s assertion of his rights.

        35. There has been no significant communication, and in reality there
        has been almost no communication between Father and B.R. Co-
        Petitione[rs’] resistance to parenting time and communication were
        not such as to preclude the Father from communicating with the child.

        36. The Court would comment on B.R.’s health needs. As stated he is
        quadriplegic and in need of constant care. Grandmother has dedicated
        her life to the care of this child and the care she has provided to B.R.
        has been exemplary. She is motivated only by her love for B.R.

        37. The only concern that has been able to be expressed regarding
        Grandmother, has been her family and the ability to keep bad
        influences away from B.R. Unfortunately the compassion
        demonstrated by Grandmother has on occasion extended to other less
        than deserving family members. The Court finds that there is no
        evidence Grandmother has ever allowed this to affect or in any way
        diminish the quality of care provided to B.R.

        38. The Court does have concerns about whether it is in B.R.’s best
        interest to grant the adoption as to D.S. The Court has significant
        concern about her ability to prevent and control less than desirable
        influences in the family on B.R. and his care. The Court understands
        and acknowledges that co-petitioner D.S. has been appropriate in her
        care to B.R. and has been of great assistance to co-petitioner
        Grandmother. However for the concerns expressed herein the Court
        finds that the co-petition for adoption as to D.S. fails and therefore the




Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 6 of 13
                 Court denies the petition for adoption as to D.S. alone.[3]

                 39. There is ample evidence before the Court that B.R. would be well
                 served by the granting of the petition for adoption by Grandmother,
                 that is not the critical issue before the Court. The home study
                 indicates that the adoption would be beneficial to B.R. and he is in a
                 loving and caring home and that B.R. wants the adoption. His
                 extensive medical needs are being met. The GAL recommends the
                 adoption.

                 40. Co-Petitioner Grandmother has met her burden. The Court finds
                 that the consent of the Father to the adoption of B.R. is not required as
                 Father for at least one year has failed without justifiable cause to
                 communicate significantly with the child when able to do so.
      Appellant’s App. at 8-14 (citations omitted). Father now appeals.


                                          Discussion and Decision

            Section 1 – The trial court did not clearly err in concluding
              that Father’s consent to the adoption is not required.
[3]   Father first contends that the trial court erred in concluding that his consent to

      the adoption is not required. When reviewing an adoption order, “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), trans. denied. We will not disturb the trial court’s ruling unless

      the evidence leads to but one conclusion and the trial court reached an opposite

      conclusion. Id. Where, as here, the trial court has made findings of fact and




      3
          D.S. has not appealed this ruling.


      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 7 of 13
      conclusions thereon, we apply a two-tiered standard of review: we first

      determine whether the evidence supports the findings and then whether the

      findings support the judgment. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind.

      2014). Factual findings are clearly erroneous where the record lacks any

      evidence or reasonable inferences to support them, and a judgment is clearly

      erroneous where it is unsupported by the findings and the conclusions based on

      those findings. Id.


[4]   In an adoption proceeding, the petitioner must prove by clear and convincing

      evidence that a noncustodial parent’s consent is not required for the adoption.

      In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).


              In reviewing a judgment requiring proof by clear and convincing
              evidence, we may not impose our view as to whether the evidence is
              clear and convincing but must determine, by considering only the
              probative evidence and reasonable inferences supporting the judgment,
              whether a reasonable trier of fact could conclude that the judgment
              was established by clear and convincing evidence. Further, we may
              not reweigh evidence or assess witness credibility.
      Id. (citation omitted).


[5]   Indiana Code Section 31-19-9-8 reads, in pertinent part,

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

              …

              (2) A parent of a child in the custody of another person if for a period
              of at least one (1) year the parent:

      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 8 of 13
              (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.


[6]   To the extent that Father challenges the trial court’s findings regarding his

      nonpayment of support, we first note that paragraph (a)(2) of the statute is

      disjunctive, and thus either subparagraph provides grounds for dispensing with

      parental consent. In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App.

      2007). We also note that the trial court took into account that Father was not

      under a child support order; made a general observation that parents

      nonetheless have a legal duty to support children; and emphasized that Father’s

      nonpayment of support “is not the essential factor upon which the question

      dispensing with Father’s consent rests.” Appellant’s App. at 11.


[7]   The trial court’s decision rested on Father’s lack of significant communication

      with B.R. for at least one year. The test for communication is not whether the

      noncustodial parent had no communication with the child, but whether he

      failed without justifiable cause to have significant communication when able to

      do so. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012). “[T]he

      purpose of this statutory provision is to foster and maintain communication

      between non-custodial parents and their children, not to provide a means for

      parents to maintain just enough contact to thwart potential adoptive parents’

      efforts to provide a settled environment to the child.” Id. (citation and

      quotation marks omitted). “[A] parent’s conduct after the petition to adopt was


      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 9 of 13
      filed is wholly irrelevant to the determination of whether the parent failed to

      significantly communicate with the child for any one year period.” Id. at n.3

      (citation and quotation marks omitted).4


[8]   As mentioned above, the trial court found that there was “no record of any

      contact or parenting time between the Father or B.R. between … May 22, 2009

      and the filing of the petition for adoption on October 25, 2010, a period of

      seventeen (17) months.” Appellant’s App. at 10. Although it is true, as Father

      asserts, that Grandmother and D.S. “never clearly stated in their testimony”

      that he failed to contact B.R. from May 2009 until October 2010, Appellant’s

      Br. at 13, the evidence and inferences favorable to the trial court’s decision

      clearly and convincingly establish this. Grandmother notes that Father’s visits

      “after May of 2009 would have had to be at [her] residence supervised by [her]”

      and asserts that “[e]ven if any visits occurred after May of 2009 it is reasonable

      to infer from the record that they were short, sporadic and without

      significance.” Appellee’s Br. at 24. We agree. B.R.’s nurse, who has cared for

      him ten hours a day four days a week since 2008, testified that she saw “a

      couple of visits” between Father and B.R. in 2008 but did not “remember [B.R.]

      telling [her] really anything about visiting with his father” after “sometime in

      2009.” Tr. at 136. Father complains that she did not “state a particular date.”

      Appellant’s Br. at 13. Given that Father’s parenting time was suspended in



      4
         Consequently, we do not address the parties’ arguments regarding events that occurred after Grandmother
      filed the adoption petition in October 2010, such as Father’s attempts to reestablish parenting time with B.R.
      and the parties’ encounter at a basketball game in 2012.

      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015             Page 10 of 13
      May 2009, it is reasonable to infer that his communication with B.R. decreased

      significantly at that point and remained minimal at best until the adoption

      petition was filed over one year later in October 2010.


[9]   Father claims that he “never stopped trying to contact” B.R. and “regularly

      attempted to send cards or packages” to him, Appellant’s Br. at 14, but the trial

      court was entitled to disbelieve this self-serving testimony. The court was also

      entitled to weigh and credit the conflicting testimony regarding whether and to

      what extent Grandmother and/or D.S. might have thwarted Father’s ability to

      communicate with B.R.; we may not second-guess its determination in this

      regard.5 Father’s arguments are merely invitations to reweigh evidence and

      assess witness credibility, which we may not do. Based on the evidence and

      inferences favorable to the trial court’s decision, we hold that the court did not

      clearly err in concluding that Father failed without justifiable cause to

      communicate significantly with B.R. when able to do so for a period of at least

      one year and therefore his consent to the adoption is not required.




      5
        Father cites no authority for his argument that Grandmother’s and D.S.’s actions “should be measured
      against the provisions of the Indiana Parenting Time Guidelines.” Appellant’s Br. at 16. Therefore, this
      argument is waived. See Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 995 (Ind. 2014) (finding
      argument waived because of failure to cite authority).

      Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015           Page 11 of 13
          Section 2 – The trial court did not clearly err in concluding
                  that the adoption is in B.R.’s best interest.
[10]   “Even 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.” M.S., 10 N.E.3d at 1281 (citing Ind. Code § 31-19-11-1(a)(1)).

               The adoption statute does not provide guidance for which factors to
               consider when determining the best interests of a child in an adoption
               proceeding, but we have noted that there are strong similarities
               between the adoption statute and the termination of parental rights
               statute in this respect. In termination cases, we have held that the trial
               court is required to look to the totality of the evidence to determine the
               best interests of a child. Relevant factors include, among others, a
               parent’s historical and current inability to provide a suitable
               environment for the child; the recommendations of the child’s case
               worker or guardian ad litem; and the child’s need for permanence and
               stability.
       Id. (citations omitted).


[11]   Father does not challenge the trial court’s findings regarding his substance

       abuse, history of arrests and incarceration, “limited and inappropriate

       interaction” in B.R.’s “long term medical needs,” and “continuous and

       significant instability in his life.” Appellant’s App. at 10. Nor does he

       challenge the findings regarding B.R.’s “desire that the adoption be granted,”

       his “extensive medical needs,” and the “exemplary” care that Grandmother has




       Court of Appeals of Indiana | Memorandum Decision 72A04-1408-AD-372 | March 16, 2015   Page 12 of 13
       provided. Appellant’s App. at 10, 13.6 Instead, he cites evidence regarding

       Grandmother and D.S. and their home environment that was either disputed by

       various witnesses or discounted by the trial court as being stale or having no

       detrimental effect on the “quality of care provided to B.R.” Id. at 13. Once

       again, we must decline Father’s request to reweigh evidence and assess witness

       credibility in his favor. The totality of the evidence favorable to the trial court’s

       decision supports the court’s conclusion that the adoption is in B.R.’s best

       interest, and therefore we hold that this conclusion was not clearly erroneous.

       Consequently, we affirm the trial court’s granting of Grandmother’s petition to

       adopt B.R.


[12]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




       6
        The trial court found that the guardian ad litem recommended the adoption. Lisa Garcia Reger was
       appointed as GAL for the adoption proceeding, and Father asserts that she did not recommend the adoption.
       When asked whether she recommended that Grandmother “continue to serve as guardian rather than
       adoptive mother,” Reger replied, “Well, that’s, it’s not necessarily my recommendation[.]” Tr. at 112. Reger
       explained that she “kind of wanted to leave it up to the Judge” because “there’s a legal issue […] on whether
       or not [Father’s] consent’s even required[.]” Id. She further stated,
             [I]f there’s financial concerns one way for the court to monitor this situation would be if the
             guardianship continued at least somebody could be monitoring this whole money situation.
             And maybe, maybe somebody could be appointed to make sure that there is some estate
             planning done and to make sure that this trust fund is being managed appropriately.
       Id. To the extent that Reger’s recommendation was equivocal, we note that “[s]pecial findings, even if
       erroneous, do not warrant reversal if they amount to mere surplusage and add nothing to the trial court’s
       decision.” City of Gary v. Conat, 810 N.E.2d 1112, 1115 (Ind. Ct. App. 2004). Such was the case here.

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