MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                  FILED
this Memorandum Decision shall not be                                              Oct 18 2017, 10:44 am
regarded as precedent or cited before any                                               CLERK
court except for the purpose of establishing                                        Indiana Supreme Court
                                                                                       Court of Appeals
the defense of res judicata, collateral                                                  and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Benjamin R. Aylsworth                                       Craig Goedde
Biesecker Dutkanych & Macer, LLC                            Johnson, Carroll, Norton, Kent &
Evansville, Indiana                                         Goedde, P.C.
                                                            Evansville, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                            October 18, 2017
C.O., Minor Child,                                          Court of Appeals Case No.
                                                            82A01-1703-AD-643
J.O.,
                                                            Appeal from the
Appellant-Respondent,                                       Vanderburgh Superior Court
        v.                                                  The Honorable
                                                            Brett J. Niemeier, Judge
                                                            The Honorable
J.W.,                                                       Renee Allen Ferguson, Magistrate
Appellee-Petitioner.                                        Trial Court Cause No.
                                                            82D04-1608-AD-1101




1
 We note that, by agreement of the parties, the trial court consolidated this adoption cause number with the
parents’ previously-filed domestic relations cause number 82D04-1301-DR-5, Appellant’s App. Vol. II at 20,
such that all pending matters were heard at a consolidated hearing, and it is from the trial court’s ensuing
order that J.O. appeals.

Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017               Page 1 of 24
      Kirsch, Judge.


[1]   J.O. (“Father”) appeals the trial court’s Decree of Adoption, which granted the

      petition to adopt C.O. that was filed by J.W. (“Stepfather”). Father raises one

      issue for our review, which we restate as: Whether the trial court erred when it

      determined that Stepfather proved by clear and convincing evidence that

      Father’s consent to the adoption was not required under Indiana Code section

      31-19-9-8.


[2]   We reverse and remand.


                                     Facts and Procedural History
[3]   C.W. (“Mother”) and Father were married and had one child, C.O. (“Child”),

      who was born in September 2012. In January 2013, Mother filed a petition for

      dissolution, and in April 2013, their marriage was dissolved by Decree of

      Dissolution.2 With regard to Child, the Decree of Dissolution provided that

      Mother would have sole legal and physical custody of Child, and Father would

      exercise parenting time “any time [Mother] was working and at all other times

      agreed upon by the parties.” Appellant’s App. Vol. II at 23. It further provided

      that neither party was obligated to pay the other child support, noting, “This

      may be a slight deviation from the attached Child Support Obligation

      Worksheet inasmuch as the parties contemplate sharing parenting time with




      2
          Mother was represented by counsel during the dissolution proceedings, and Father was not.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017          Page 2 of 24
      [Child] and otherwise agree to share in [Child]’s financial expenses as further

      outlined herein.” Id. The parties agreed to equally divide all uninsured medical

      expenses as well as all other expenses, including schooling and extracurricular

      activities. Id. The Decree of Dissolution provided that Mother and Father

      would alternate the tax dependency exemption.


[4]   Before they separated, Father watched Child several days per week while

      Mother worked, and after they separated and Father moved out, “it wasn’t []

      consistent, but he saw [Child] when he could[,]” visiting with Child two or

      three days per week, including overnights. Tr. Vol. I at 38, 150-51. At some

      point, Father became involved in a relationship with a woman (“Girlfriend”)

      and their relationship included instances of physical conflict as well as alcohol

      consumption. According to Mother, in 2013 and 2014, Father generally

      exercised visitation two or three overnights per week, noting that she “tried to

      keep [Father] in [Child]’s life[,]” but after an incident in April 2015, when

      Girlfriend called Child a racial slur while he was at Father’s home, Mother

      sought to limit his parenting time. Id. at 40. To accomplish this, on April 28,

      2015, Mother and Father filed an Agreed Order of Modification, in which the

      parties agreed to modify Father’s parenting time. It provided “that [Father]

      have no overnights without the Mother’s prior approval[,]”and stated that

      “[t]he parties shall agree upon days for the Father’s parenting time, including




      Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 3 of 24
      holidays.”3 Appellant’s App. Vol. II at 28. Father was entitled to a minimum of

      four hours per week of parenting time, which he was required to schedule at

      least forty-eight hours in advance.4 Id. The Agreed Order of Modification

      provided that “under no circumstances” was Girlfriend or any member of her

      family to have “any direct or indirect contact with [Child] without the Mother’s

      prior approval.” Id. It also modified the tax exemption arrangement, such that

      Mother would be entitled to claim Child each year on her tax returns. From

      April 2015 to October 2015, Father generally exercised his four-hours of weekly

      parenting time, although sometimes Father’s mother, rather than Father, would

      exercise the four-hour visitation with Child. Tr. Vol. I at 45.


[5]   Thereafter, on July 22, 2016, Father filed, pro se, a Verified Motion for

      Contempt Regarding Parenting Time, alleging that Mother had stopped letting

      him have visitation with Child and that “[i]t has been almost a year.”

      Appellant’s App. Vol. II at 30. About a month later, on August 18, 2016,

      Stepfather filed a Petition for Adoption, seeking to adopt Child, who was then

      three years old. At that time, Stepfather was engaged to Mother, and the two

      later married in December 2016. The Petition for Adoption alleged that Father

      (1) had, for a period of at least six months immediately preceding the Petition,




      3
          Mother was represented by counsel at the time of the Agreed Order of Modification, and Father was not.
      4
        We note that the copy of the Agreed Order of Modification that is included in the record before us has a
      time stamp over certain words, making it illegible as to whether the four hours was a minimum or a
      maximum. Appellant’s App. Vol. II at 28. At the final hearing, counsel’s questioning indicated that the four
      hours was a minimum, Tr. Vol. I at 11, 45, although Mother and Father each testified in a manner indicating
      that Father was entitled to four hours, which suggests it was a maximum.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017           Page 4 of 24
      “abandoned or deserted [Child]; (2) had, for a period of at least one year: (a)

      failed without justifiable cause to communicate significantly with [Child] when

      able to do so, and (b) knowingly failed to provide for [Child]’s care and support

      when able to do so as required by Indiana law or judicial decree; and (3) was

      unfit to be a parent “where [Child]’s best interests lie in dispe[n]sing with

      [Father]’s consent.” Id. at 14-15.


[6]   On August 30, 2016, Father, now represented by counsel, filed a Motion to

      Contest Adoption, asserting that Father was not consenting to the adoption, it

      was not in Child’s best interests for the adoption to be granted, and “that

      Mother has purposefully and continuously denied Father access to his child.”

      Id. at 18.


[7]   On September 7, 2016, Father filed a Verified Petition to Modify Custody and

      Parenting Time, seeking to be awarded joint legal custody and asking for more

      defined rights concerning his parenting time and a more specific parenting time

      schedule. Id. at 31-32. He asserted that there had been a substantial and

      continuing change in circumstances, including that Mother was working third

      shift in her job, and Father was working first shift, so that he should have

      parenting time while she was at work including while she was working

      overnights.


[8]   On September 13, 2016, Mother filed a Motion to Suspend Parenting Time. In

      it, she asserted that Father had not exercised any parenting time or had any

      contact with Child since October 2015 and “has, at best, had only token efforts


      Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 5 of 24
       of communication with [Child] in nearly one year.” Id. at 34. She also alleged

       that Father “has also failed to adequately provide for [Child]’s financial well

       being.” Id. She asserted that as a result of Father’s “lack of meaningful contact

       and financial support,” Stepfather filed the Petition for Adoption, and Father

       “now wishes to attempt to exercise parenting time . . . disrupting [Child]’s new

       routine schedule.” Id. at 35. Mother requested that the trial court suspend

       Father’s parenting time until the resolution of the pending adoption matter. Id.

       On September 28, 2016, the post-dissolution matter was consolidated with the

       adoption action that Stepfather had filed.


[9]    In January 2017, a consolidated hearing was held on Father’s Motion to

       Contest Adoption and his Motion for Contempt Regarding Parenting Time,

       and Mother’s Petition to Suspend Parenting Time. At the hearing, the trial

       court heard testimony from Mother, Stepfather, and Father.5 Child was, at that

       time, four years old.


[10]   Stepfather stated that he and Mother began dating when Child was one year old

       and that he had been living with Mother and Child for approximately two



       5
         The transcript reflects that Mother offered, and the trial court admitted, five exhibits, which consisted of
       Mother’s diary of dates and circumstances of Father’s visits, texts between Mother and Father, Facebook
       snapshots, and a list of Child’s daycare expenses. Father offered one exhibit, which was admitted into
       evidence, and it consisted of text messages between Father and Mother from October 13, 2015 through
       September 1, 2016. Neither party’s exhibits are included in the record before us. Rather, we have only an
       Exhibits Volume that lists, but does not include, the exhibits, nor are the exhibits attached to or included in
       the transcript volumes or appendices. We remind the parties that Appellate Rule 2(K) states that the term
       “Transcript” means “the transcript or transcripts of all or part of the proceedings in the trial court . . . that
       any party has designated for inclusion in the Record on Appeal and any exhibits associated therewith.”
       (Emphasis added.) Because a number of text messages were read into evidence during the hearing, we were
       able to discern the content of those messages.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017               Page 6 of 24
       years. Stepfather testified to being very much involved in Child’s daily life and

       caretaking functions. Stepfather testified that, initially, Father generally

       exercised parenting time three days per week, including the overnights, but the

       arrangement changed about two years prior, and Father became less consistent

       and did not exercise overnight visitations. He recalled that under Mother and

       Father’s Agreed Order of Modification, filed in April 2015, Father was entitled

       to a minimum of four hours of visitation per week, which had to be scheduled

       forty-eight hours in advance. According to Stepfather, Father would ask to see

       Child “occasionally,” but he “rarely, if ever” scheduled it forty-eight hours in

       advance, and that situation caused issues with the family’s routine. Tr. Vol. I. at

       12. Stepfather stated that Father’s last official visitation was in October 2015

       and lasted about three and one-half hours. When asked if Father had requested

       any parenting time after that date, Stepfather replied, “Not in the forty-eight

       hour window.” Id. at 13. Stepfather also testified to being aware of a “recent”

       occasion when Father arranged and visited with Child via Mother’s mother

       (“Maternal Grandmother”), when, without Mother’s knowledge or approval,

       Maternal Grandmother took Child over to Father’s mother’s home, where

       Father and his mother visited with Child. Id. at 14.


[11]   With regard to Father’s pending petitions for contempt and to modify custody

       and parenting time, Stepfather testified that “There’s a long history. [Father]

       said several times he would just sign his rights over[.] . . . He’s admitted to

       having a drinking problem. He’s admitted to [Mother] that he was selling

       drugs.” Id. at 16-17. Stepfather also testified to a history of violence between


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 7 of 24
       Father and his then-girlfriend, Girlfriend, including when Child was present.

       Stepfather stated that, to his knowledge, the last time Father gave any money to

       Mother for Child was for Child’s preschool costs in the fall of 2015. Stepfather

       was not aware of any money that Father had provided for clothes or uninsured

       medical expenses, but was unsure whether Mother had provided bills or

       documentation of expenses to Father.


[12]   During her testimony, Mother stated that she, Child, and Stepfather had lived

       together for approximately three years, and she described the daily caretaking

       activities and functions that Stepfather performed, including cooking, cleaning,

       getting Child dressed, taking Child to doctor appointments, to and from

       daycare, and visits with family. Id. at 29. Mother testified to various expenses

       for Child, such as food, clothes, and expenses for his school. She stated that

       Father paid his share of two months of preschool tuition in August and

       September 2015, and then in October 2015 Father stated that he did not have

       money to pay and did not pay thereafter. Id. at 31. Mother explained that she

       did not keep asking Father for his share, “We never asked for money from him.

       I mean, when we did we didn’t get it, so it’s just one of those things we expect

       not to get from him.” Id. She stated, “We never asked for anything else[,]”

       other than the preschool tuition. Id. at 32. Mother said that she included

       Father on Child’s emergency contact list for preschool as Father had indicated

       that “he wanted to be a part of [Child’s] schooling,” but Father did not attend

       Child’s school events or otherwise participate. Id. at 33.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 8 of 24
[13]   Mother testified that Father had a history of issues with alcohol, describing

       “incidents on and off” since the time of their dissolution when Father would

       have been drinking, and she observed empty bottles, on one or more occasions,

       when she found him drunk with Girlfriend at Father’s mother’s home, or other

       times when Father’s mother would come and take care of Child while Child

       was with Father because he and Girlfriend were intoxicated. Id. at 38. Mother

       testified that there had been physical altercations between Father and Girlfriend

       when Child was at their residence.


[14]   Mother explained that a particular incident occurred in April 2015, which

       combined with her concern about Father’s use of alcohol, precipitated her

       decision to seek and file the Agreed Order of Modification to limit Father’s

       parenting time: Father was exercising parenting time with Child, and he

       contacted Mother asking her to come and pick up Child, because Girlfriend had

       called Child a racial slur and told Father that Child was not allowed to be

       around her. Mother explained, “And so at that time, pretty much, I was done

       with that. So we had that modification[.]” Id. at 43-44. When asked if Father

       had voluntarily reduced his parenting time to four hours per week, Mother

       acknowledged that the scaled-back parenting time was at her request and stated

       that Father told her that Girlfriend “made him” agree to it. Id. at 44.

       According to Mother, Father sometimes, but not consistently, exercised his

       four-hour parenting time between April 2015 and October 2015.


[15]   Then, in October 2015, another incident occurred, causing Mother to believe

       Child was not safe in Father’s care, such that she thereafter refused his requests

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 9 of 24
to exercise parenting time. Specifically, Mother described that she and Father

had agreed for Father to exercise parenting time with Child on Saturday, October

13 during the local “Fall Festival” weekend. On that Saturday, Father was fifteen

minutes late in picking up Child, and he returned Child fifteen minutes early.

During the period of time that Child was with Father, Mother viewed Father’s

Facebook posts – which he had posted in the early morning hours on Saturday –

describing being “too drunk” to drive home from the Festival on Friday night,

passing out on someone’s lawn, and “thanking the police [] for not takin’ him to

jail and [for] droppin’ him off at home.” Id. at 34-35, 59. She testified that she

had not approved or agreed to arrange any subsequent visits between Father and

Child since that October 13, 2015 date, because she believed Father drank too

much and needed to seek assistance, and “until he did that, [] I didn’t feel [Child]

was safe with him.” Id. at 37. She specifically told Father that he needed to “get

help” if he wanted to see Child. Id. at 37, 58, 120. When asked to outline the

subsequent occasions when Father requested parenting time, she replied,


        A: He’s never actually ever requested his time. He always just -
        I don’t know what you would call it, he just texts me and says,
        “When can I see him? Why won’t you let me see him?” But
        that’s about it. He never says a date and time to see him.


        Q: So generally he just says, “When can I see him?”, trying to
        converse with you about that but doesn’t say, “I would like to see
        him on Saturday at 6:00?”


        A: That’s correct.



Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 10 of 24
       Id. at 36-37. Mother acknowledged on cross-examination that, in the past, she

       and Father would arrange parenting time in that way, where Father would ask

       for time, she would offer options, and together they would arrange a visitation.6

       Id. at 90-91. However, she said, “I shouldn’t have to give him a date and time

       to see his Child. He should tell me when he wants to see him.” Id. at 90.


[16]   On November 1, Father texted Mother inquiring “how [Child’s] Halloween

       went” and on November 12, asking “What do I have to do to get [Child]

       back?”; Mother did not reply. Id. at 102, 103. Mother testified that, in

       December 2015, Father texted her asking, “Will you tell [Child] I said Merry

       Christmas and that I love and miss him?” and she responded, “K[,]” but, she

       noted, Father’s Christmas text did not actually request visitation with Child. Id.

       at 62, 72-73. She testified that, later that day, Father texted her stating that he

       had Christmas presents for Child and asked her how to deliver them, and she

       initially replied, “Mail them[,]” but when he said he could not mail them

       because of batteries, she told him to bring them by and put them in the door.

       Id. at 74. He did not respond or bring by any gifts that day, but on a subsequent

       day, his mother dropped off gifts at Maternal Grandmother’s home. However,

       because there was no signed card, Mother testified that she did not know the

       gifts were from Father. On January 6, 2016, Father texted Mother and asked

       how Child was doing and if he liked his gifts.




       6
         The record indicates that, since the dissolution, Mother and Father communicated almost exclusively
       through text messaging, with any phone conversation being infrequent, brief, and minimal.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017        Page 11 of 24
[17]   According to Mother, in late January 2016 and into early February 2016,

       Father sent a series of text messages to Mother asking to see Child, but “he

       didn’t ask for a specific date or a time for the four hours. He just said that he

       wanted his three days back[.]” Id. at 59. Mother told Father that her attorney

       would contact him. Id. at 92-93. Mother stated that a number of Father’s texts

       to her indicated that he planned to move away and start over, and he also

       offered to start paying her $60 per month, but did not do so.


[18]   In March, Father texted Mother asking when her lawyer was going to contact

       him to schedule parenting time. On April 6, 2016, Father texted Mother

       asking, “When can I see [Child]?” and she responded, “When you take me to

       court[,]” because she had had “enough” of his drinking, inconsistent visits, and

       claims that he did not have any money and then would see his Facebook posts

       doing an activity that cost money. Id. at 66-67, 109. In June 2016, Father

       initiated a conversation asking Mother, “I just don’t know why you’ve been

       keepin’ [Child] from me.” Id. at 67. Mother affirmed on cross-examination

       that she did not file any request to suspend Father’s parenting time or seek

       supervised visits and, instead, decided not to allow Child to exercise parenting

       time with Father, explaining that she had full custody and believed Child was

       not safe in Father’s care. During her testimony, Mother acknowledged that, on

       one occasion in August 2016, Father had visited with Child without Mother’s

       prior knowledge or consent, when Maternal Grandmother agreed to take Child

       to Father’s mother’s home.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 12 of 24
[19]   While being cross-examined and reviewing text messages between her and

       Father during the period of October 2015 and September 2016, Mother

       acknowledged receiving texts from Father, in which he asked about Child or

       sought to arrange parenting time, on October 13, 14, 19, 21, and she verified

       that on October 21 she told Father, “[I]f you continue to blow up my phone

       without saying anything that’s worth my time I’ll file a restraining order against

       you.” Id. at 100. Mother acknowledged receiving texts from Father on October

       23, November 1, 12, seeking to have parenting time and asking Mother

       questions such as, “What do I have to do to get [Child] back?”, and Mother did

       not reply. Id. at 102. Mother acknowledged receiving additional texts from

       Father in January, February, March, April, May, June, and July 2016, asking

       to see Child. Id. at 111-12. Father filed his pro se petition for contempt on July

       22, 2016, and on August 18, 2016, Stepfather filed his Petition for Adoption of

       Child. Mother agreed that the Petition for Adoption was filed less than one

       year after Father had exercised the October 2015 visitation. Id. at 113.


[20]   With regard to Father’s financial support of Child, Mother estimated that, over

       the years, the total that Father had provided to her for Child was less than

       $1,500. Id. at 56. She acknowledged that, until the hearing on the Petition for

       Adoption, she had not provided Father with receipts of incurred expenses or

       documentation of Child’s daycare costs beyond 2015, as she did not believe that

       he would pay it. She further explained that she did not request money from

       him very often because at times he was living in government-assisted housing

       and sometimes did not have work, and because he had a son with Girlfriend,


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 13 of 24
       and she did not want to take away money from that child. Her position was:

       “It’s never been about money.” Id. at 56. Even so, Mother felt frustrated that if

       and when she did ask Father for money, he would tell her that he did not have

       any money, yet he appeared to able to afford “weed and alcohol[.]” Id. at 54.


[21]   Father testified that he was not represented by counsel in the dissolution

       proceedings or when he agreed to the modification to four hours of parenting

       time in April 2015. Father explained that he generally agreed to whatever

       Mother wanted out of fear that she would withhold Child from him and upon

       her representation that she would not keep Child from him. Father testified

       that, since May 2015, he and Girlfriend were no longer in a relationship,

       although they shared a child. Father testified to passing drug screens through

       his employer and to having stable housing and employment since 2015. Father

       testified that he has never been arrested, charged, or convicted of any offenses

       as an adult. Id. at 151-52. Father testified to walking home from the Fall

       Festival on Friday, October 12, because he did not want to drive home after

       drinking, and passing out on the way, resulting in a ride home from police; he

       acknowledged that he was “hungover” the next day when he exercised

       parenting time with Child. Id. at 159. Father testified that he has limited his

       use of alcohol, does not drink on weekdays, and drinking never caused him to

       miss parenting time. Id. at 160-61, 165-66. Father testified that, after Mother

       indicated she would file for a restraining order, he did not contact Mother as

       frequently as he had been. After Father filed his petition for contempt

       regarding parenting time, he received a letter from Mother in the mail outlining


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 14 of 24
       expenses related to Child’s birth or healthcare and asking for reimbursement.

       Father stated that he paid Mother his portion of the two months of preschool in

       August and September 2015, but did not pay additional money. He asked the

       court to deny the Petition for Adoption and set up a parenting time schedule,

       noting that whatever parenting time that the court would allow, including

       supervised, would be fine with him, with the hope that at some point he could

       exercise that which is provided by the Indiana Parenting Time Guidelines. Id.

       at 177, 233.


[22]   On February 28, 2017, the trial court issued a Decree of Adoption, granting

       Stepfather’s Petition for Adoption. In the Decree of Adoption, the trial court

       determined that Father’s consent “is unnecessary pursuant to I.C. § 31-19-9-8

       inasmuch as he has failed to support the child when able to do so and has failed

       to have contact with the child for extended periods of time.” Appellant’s App.

       Vol. II at 12. The trial court found that adoption was in Child’s best interest,

       changed Child’s surname to that of Stepfather, and terminated Father’s parental

       rights. Father now appeals.


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

       the adoption was not required. When reviewing a 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 H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied,


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 15 of 24
       cert. denied, 129 S. Ct. 619 (2008). We will not reweigh the evidence but instead

       will examine the evidence most favorable to the trial court’s decision together

       with reasonable inferences drawn therefrom to determine whether sufficient

       evidence exists to sustain the decision. Id. It is the appellant’s burden to

       overcome the presumption that the trial court’s decision was correct. McElvain

       v. Hite, 800 N.E.2d 947, 949 (Ind. Ct. App. 2003).


[24]   We begin by recognizing that the purpose of our adoption statutes is to protect

       and promote the welfare of children by providing them with stable family units.

       In re Adoption of K.F., 935 N.E.2d 282, 289 (Ind. Ct. App. 2010), trans. denied.

       The relationship between parent and child is of such fundamental importance

       that adoption statutes, being in derogation of the common law, are “strictly

       construed in favor of a worthy parent and the preservation of such

       relationship.” Id. In evaluating the parent-child relationship, however, the best

       interest of the child is paramount, and “our main concern should lie with the

       effect of the adoption on the reality of the minor child’s life.” Id.


[25]   Indiana Code section 31-19-9-1 provides, in pertinent part, that a petition to

       adopt a child who is less than eighteen years of age may be granted only if

       written consent to the adoption has been executed. However, consent to

       adoption is not required from, as is relevant here,


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




       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 16 of 24
                      (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.


       Ind. Code § 31-19-9-8(a)(2). The provisions of this section are disjunctive, and

       thus either one provides independent grounds for dispensing with parental

       consent. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010), trans.

       denied. If an adoption petition alleges that a parent’s consent to adoption is

       unnecessary under subsection 31-19-9-8(a)(1) or (a)(2), and that parent files a

       motion to contest the adoption, “a petitioner for adoption has the burden of

       proving that the parent’s consent to the adoption is unnecessary” under section

       31-19-9-8. Ind. Code § 31-19-10-1.2. The petitioner for adoption without

       parental consent bears the burden of proving the statutory criteria for dispensing

       with such consent in Indiana Code section 31-19-9-8 by clear and convincing

       evidence. In re the Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct. App. 2011).


                                 I. Communication with Child
[26]   Father asserts that the trial court erred by concluding that Stepfather proved by

       clear and convincing evidence that Father, for at least one year, failed without

       justifiable cause to communicate significantly with Child when able to do so.

       Under Indiana law, the party petitioning to adopt without parental consent has

       the burden of proving both a lack of communication for the statutory period

       and that the ability to communicate during that time period existed. In re

       Adoption of C.E.N., 847 N.E.2d 267, 271 (Ind. Ct. App. 2006). In order to
       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 17 of 24
       preserve the consent requirement for adoption, the level of the parent’s

       communication with the child must be significant, and more than “token

       efforts” on the part of the parent. Id. at 272. We have held that the purpose of

       the provision dispensing with consent if the parent “fail[ed] without justifiable

       cause to communicate significantly with the child when able to do so” is to

       encourage non-custodial parents to maintain communication with their

       children and to discourage them from visiting their children just often enough

       to thwart the adoptive parents’ efforts to provide a settled environment for the

       children. Id. That being said, efforts of a custodian to hamper or thwart

       communication between parent and child are relevant in determining the

       parent’s ability and opportunity to communicate. In re Adoption of T.W., 859

       N.E.2d 1215, 1218 (Ind. Ct. App. 2006); Rust v. Lawson, 714 N.E.2d 769, 772

       (Ind. Ct. App. 1999), trans. denied.


[27]   Here, Father contends that the trial court’s determination regarding his lack of

       communication with Child was erroneous. After review of the record, we

       agree. Stepfather filed his Petition for Adoption on August 18, 2016, and thus,

       under Indiana Code section 31-19-9-8(a)(2), we examine the one-year period

       preceding that date of filing. It is undisputed that from August 2015 to October

       2015, Father regularly, even if not consistently, exercised his permitted four-

       hours of parenting time, as provided in the April 2015 Agreed Order of

       Modification. It is also undisputed that, in October 2015, Father exercised

       parenting time with Child on the Saturday following the “Fall Festival”

       incident. It also is uncontested that Father visited with Child at Maternal


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 18 of 24
       Grandmother’s home, without Mother’s consent, in or around August 2016,

       before Stepfather filed his Petition for Adoption later that month. All of the

       above occurred within the relevant-one year of Stepfather’s filing of his petition.


[28]   To the extent that Stepfather suggests that those were token or not significant

       contacts, we find that the record contains undisputed evidence that Mother

       sought to prevent, i.e., “hamper or thwart,” communication between Child and

       Father. T.W., 859 N.E.2d at 1218. Mother acknowledged that from October

       2015, when she began to no longer allow parenting time, through July 2016,

       Father sent her numerous text messages asking about Child and requesting to

       see him, which, she explained, she did not allow due to her concerns that

       Father was drinking too much and Child would not be safe in his care. At one

       point, Mother advised Father to stop bothering her, or else she would seek a

       restraining order, and, if he came to her home, she would seek to have him

       prosecuted for trespassing on her property. Father, thereafter, continued to text

       Mother, although perhaps with less frequency, asking about Child, asking to see

       Child, asking how his Halloween was, wishing him a Merry Christmas, asking

       when and how to deliver Christmas gifts to Child, inquiring when he would

       hear from Mother’s attorney, as she had told him he would, in order to arrange

       parenting time, and essentially begging Mother to let him see Child. Mother

       acknowledged that Father texted at least every month from October 2015 to

       June 2016. Eventually, Mother told Father that he would need to take her to

       court, so Father in July 2016 filed his pro se petition for contempt, alleging that

       Mother was not allowing him to exercise his court-ordered parenting time. In


       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 19 of 24
       August 2016, Father arranged through Maternal Grandmother to have an

       opportunity to see Child for approximately an hour at Father’s mother’s home.


[29]   We recognize Mother’s expressed concern that Father exhibited signs of

       excessive drinking and that he may have, at some point, sold marijuana to earn

       income, and consequently, she was concerned about Child’s safety while in

       Father’s care. She also expressed frustration at his lack of consistency at times

       and his failure to provide forty-eight hours of notice of any proposed exercise of

       parenting time, which caused disruption to her family’s scheduling and routine.

       We do not express any opinion on the validity of Mother’s concerns, nor on

       Stepfather’s parenting abilities, which, we note, no party has disparaged. Our

       task is to determine whether Stepfather proved, by clear and convincing

       evidence, that Father, for a period of one year prior to the petition, failed,

       without justifiable cause, to communicate significantly with Child when able to

       do so. Given the record before us, we cannot say that Stepfather met his

       burden. See McElvain, 800 N.E.2d at 949 (reversing grant of stepfather’s

       petition to adopt children, where father had seen children only on limited

       occasions within year of petition, including visits occurring at home of mutual

       friend without mother’s knowledge, and father testified that mother had

       frustrated father’s attempts to maintain contact with children).


                                         II. Support of Child
[30]   Having found that Stepfather did not prove that Father failed to communicate

       with Child as required by statute, we now turn to the second prong of our

       inquiry and examine whether Stepfather proved by clear and convincing
       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 20 of 24
       evidence that Father failed to provide for the care and support of Child when

       able to do so as required by law or judicial decree. Ind. Code § 31-19-9-

       8(a)(2)(B). As an initial matter, we note that, with regard to the “when able to”

       provide support component of the statute, evidence was presented that Father

       was employed as a welder during the one-year period before Stepfather’s

       Petition for Adoption was filed, received hourly pay increases during this time,

       and had the ability to pay. Tr. Vol. I at 240. Thus, to the extent that Father

       claims on appeal that Stepfather did not establish that Father was “able to”

       provide support, we reject that argument, and we turn to whether Father

       “fail[ed] to provide for the care and support” aspect of the statute. Ind. Code §

       31-19-9-8(a)(2)(B).


[31]   It is well-settled that Indiana law imposes a duty upon a parent to support his

       children. In re Adoption of M.A.S., 815 N.E.2d 216, 220 (Ind. Ct. App. 2004).

       This duty exists apart from any court order or statute. Id. Therefore, Father

       clearly had a common law duty to support Child. We have held that a parent’s

       nonmonetary contribution to a child’s care may be counted as support. E.W. v.

       J.W., 20 N.E.3d 889, 897 (Ind. Ct. App. 2014), trans. denied; In re Adoption of

       N.W., 933 N.E.2d 909, 914 (Ind. Ct. App. 2010), trans. granted, opinion adopted,

       941 N.E.2d 1042 (Ind. 2011); M.B., 944 N.E.2d at 77.


[32]   In the present case, the Decree of Dissolution provided that neither party would

       pay child support to the other, but the parties agreed to equally divide all

       uninsured medical expenses for Child, as well as “all other expenses including,

       but not limited to, schooling, extracurricular, and other controlled expenses.”

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 21 of 24
       Appellant’s App. Vol. II at 23-24. Mother testified that Father paid his equal

       share of Child’s preschool expenses for the months of August and September

       2015, but then quit paying in October 2015, which we observe was the month

       that Mother stopped allowing parenting time due to her concerns with Father’s

       consumption of alcohol. In her testimony, Mother estimated that, since the

       parties’ dissolution in April 2013, Father had paid a total of $1,500 toward the

       support of Child.


[33]   Mother acknowledged that the preschool costs were all that she, at any point,

       asked Father to pay and that she did not regularly provide documentation or

       receipts to Father of other incurred medical or extracurricular expenses. While

       testifying, Mother stated, on several occasions, that she generally did not ask for

       money or seek reimbursement or contribution from him, in part because she

       anticipated that Father would tell her that he did not have any money, given

       that he lived in government-subsidized housing, had another child, and had told

       her before that he had no money. She stated, “We never asked for money from

       him. I mean, when we did we didn’t get it[.]” Tr. Vol. I at 31. Mother further

       explained that another reason that she did not pursue support or reimbursement

       was because, in her view, “money’s not the issue here,” suggesting that her

       focus and concern was with parenting time issues and not support issues. Id. at

       134; see also id. at 56 (“[I]t’s never been about money.”).


[34]   Also relevant to the analysis is the fact that, in April 2015, Father agreed to the

       terms of the Agreed Order of Modification, which, in addition to reducing

       Father’s parenting time to four hours per week, provided that Mother would be

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017   Page 22 of 24
       entitled to claim the tax exemption every year, rather than in alternating years

       as the Decree of Dissolution had provided.7 We agree with Father that

       transferring the tax exemption to Mother could, at least potentially, “provid[e]

       an ongoing financial benefit for [Mother] and ultimately [Child].” Appellant’s

       Br. at 18.


[35]   Taking into consideration that, other than the 2015 preschool costs, (1) Mother

       did not provide Father with documentation or receipts; (2) Mother did not

       otherwise ask Father to contribute to expenses during the one-year period in

       question, (3) Father paid preschool expenses for August and September 2015,

       which was within one year of the Petition for Adoption, and (4) Father gave

       Mother the monetary benefit of claiming Child as a tax exemption every year,

       we find that Stepfather did not prove by clear and convincing evidence that

       Father failed to provide support for Child, as required in order for Father’s

       consent to be rendered unnecessary under Indiana Code section 31-19-9-8(a)(2).


[36]   In sum, we conclude that Stepfather failed to meet his burden to prove, by clear

       and convincing evidence, that Father, without justifiable cause, failed to

       communicate significantly with Child when able to do so, or that he failed to

       provide support within the year that preceded the filing of the Petition.

       Therefore, Stepfather has not met his burden of showing that Father’s consent is

       not required for the adoption, and the trial court erred when it granted



       7
        We note that, in this Agreed Order of Modification, Mother did not seek to require Father to begin making
       child support payments, although his parenting time was being significantly reduced.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1703-AD-643 | October 18, 2017        Page 23 of 24
       Stepfather’s Petition for Adoption Child without Father’s consent. We reverse

       and instruct the trial court on remand to vacate the Decree of Adoption,

       reinstate Father’s parental rights, and restore Child’s surname to that of Father.


[37]   Reversed and remanded with instructions.


[38]   Najam, J., and Brown, J., concur.




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