                                                                       FILED
                                                                   Jul 20 2020, 9:15 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Glen E. Koch II                                            Julie A. Camden
Boren, Oliver & Coffey, LLP                                Camden & Meridew, P.C.
Martinsville, Indiana                                      Fishers, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                           July 20, 2020
I.B. (Minor Child):                                        Court of Appeals Case No.
                                                           20A-AD-229
                                                           Appeal from the Hamilton
J.P.,                                                      Superior Court
Appellant-Respondent,                                      The Honorable Gail Bardach,
                                                           Judge
        v.
                                                           Trial Court Cause No.
                                                           29D06-1907-AD-1089
V.B.,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                           Page 1 of 14
                                            Case Summary
[1]   J.P. (“Mother”) appeals the trial court’s order that her consent was not required

      for V.B.’s adoption of J.P.’s child, I.B. (“Child”), and the subsequent decree of

      adoption. She raises two issues on appeal, which we restate as the following

      issue: whether the trial court clearly erred when it determined that Mother’s

      consent was not required for V.B.’s adoption of Child.


[2]   We reverse.



                             Facts and Procedural History
[3]   Mother and R.B. (“Father”) (collectively, “parents”) were married and are the

      parents of Child, who was born on November 10, 2010. Parents divorced in

      May of 2014, and the court granted legal and physical custody of Child to

      Mother, with parenting time to Father. On March 6, 2017, Father filed a

      motion for emergency modification of custody based on Mother’s alleged drug

      use and instability. On July 25, 2017, the trial court granted legal and physical

      custody of Child to Father, ordered that Mother would have supervised

      parenting time, and ordered that Mother pay child support.


[4]   On July 17, 2019, Father’s wife, V.B., filed a petition for step-parent adoption

      of Child, and Father consented. The petition alleged that Mother’s consent was

      not required under Indiana Code Section 31-19-9-8(a)(1), (2), and (11) because

      she had abandoned Child, failed to communicate with or pay support for Child

      for at least one year, and was unfit to parent Child. On September 3, 2019,

      Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020         Page 2 of 14
      Mother filed a letter contesting the adoption. On November 8, 2019, the trial

      court conducted a hearing on the adoption petition, including the issue of

      whether Mother’s consent was required.


[5]   On December 23, 2019, the trial court entered orders regarding the November 8

      hearing. The court concluded that Mother’s consent was not required for the

      adoption and it entered an adoption decree. The trial court concluded that

      Mother’s consent was not required because “Natural Mother abandoned

      [Child] for at least six (6) months preceding the filing of the Petition [for

      Adoption] in this case, failed to significantly communicate with [Child] for at

      least one (1) year, and failed to pay child support for at least one (1) year.”

      App. at 64. The trial court found it unnecessary to consider whether Mother’s

      consent was not required because she was unfit to parent Child per Indiana

      Code Section 31-19-9-8(a)(11). Id. at 64-65.


[6]   Mother now appeals. We provide additional facts below as necessary.



                                  Discussion and Decision
[7]   Mother contends that the trial court erred when it concluded that her consent

      was not required for V.B.’s adoption of Child. Our standard of review in

      adoption cases is well-settled:


              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

      Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020              Page 3 of 14
              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).


[8]   As this court has recently noted, “the most protected status in any adoption

      proceeding is that of the natural parent. Recognizing the fundamental

      importance of the parent-child relationship, our courts have strictly construed

      the adoption statute to preserve that relationship.” In re Adoption of D.H., 135

      N.E.3d 914, 919 (Ind. Ct. App. 2019) (quoting In re Adoption of N.W., 933

      N.E.2d 909, 913 (Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011)).

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

      trans. denied).




      Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020           Page 4 of 14
[9]   This case is governed by Indiana Code Section 31-19-9-8, which provides in

      relevant part that consent to adoption is not required of the following people:


               (a)(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.


               (a)(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.


      The statute further provides that, “[i]f 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.” I.C. § 31-19-9-8(b). The party seeking to adopt

      bears the burden of proving by clear and convincing evidence 1 that the

      noncustodial parent’s consent is not required. Matter of Adoption of E.M.L., 103

      N.E.3d 1110, 1116 (Ind. Ct. App. 2018), trans. denied.




      1
        V.B. incorrectly stated that her burden was to prove the statutory criteria by “clear, cogent, and indubitable
      evidence.” Appellee’s Br. at 8. However, our Supreme Court has noted that the 2003 amendment to
      subsection (a)(11) of the statute specifically states that the adoption petitioner must prove the statutory
      requirements by clear and convincing evidence and held that burden of proof applies equally to subsection
      (a)(2). In re Adoption of T.L., 4 N.E.3d 658, 662 n.3 (Ind. 2014) (adopting holding of In re Adoption of M.A.S.,
      815 N.E.2d 216, 220 (Ind. Ct. App. 2004)).

      Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                                    Page 5 of 14
[10]   The trial court concluded that Mother’s consent to the adoption of Child was

       not required because she had abandoned child by making no more than token

       efforts to communicate with or support Child for the six months preceding the

       adoption petition, and, for at least one year before the filing of the adoption

       petition, she had failed without justifiable cause to communicate significantly

       with Child and knowingly failed to pay child support when she was required

       and able to do so. I.C. § 31-19-9-8(a)(1)(2), (b). We address the court’s

       conclusions regarding communication and support separately.


                                               Communication
[11]   The trial court’s finding that Mother failed, without justification, to significantly

       communicate with Child in both the six-month2 and one-year time periods prior

       to the filing of the adoption petition (i.e., July 17, 2019) was based upon its

       findings that, within those time periods, Mother had not exercised her

       supervised parenting time with Child, had not written to Child, had failed to

       “recognize” Child’s seventh and eighth birthdays, and had not spent “any

       significant time on the telephone with [Child].” App. at 62. The conclusion

       that Mother’s telephone contacts were not “significant” communication was

       based on the court’s finding that stated, in relevant part:




       2
         V.B. maintains that Mother waived the issue of abandonment (i.e., no more than “token efforts” to support
       or communicate with Child in the six months prior to the adoption petition) by not raising it in her initial
       appellate brief. I.C. § 31-19-9-8(a)(1), (b). We disagree. Mother addressed the trial court’s findings regarding
       communication and support within both the six-month and one-year time periods. Appellant’s Br. at 10-11,
       12, 14.

       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                                   Page 6 of 14
               12. Records of telephone calls were put into evidence, and
               they show that Natural Mother made 45 phone calls to [Child] in
               the more than eighteen (18) months from March 20, 2018 to
               October 8, 2019. The total amount of telephone time represented
               by those calls was 265 minutes, so an average of less than fifteen
               (15) minutes per month. In the six (6) months before the Petition
               in this cause was filed, there were eleven (11) calls made for a
               combined total of 83 minutes. That is an average of less than
               fourteen (14) minutes per month. In the twelve (12) months
               before the Petition was filed, there were 30 calls made for a total
               of 191 minutes. That is an average of less than sixteen (16)
               minutes per month. This Court does not find that to be
               significant communication. In those twelve (12) months, there
               were three (3) months with no calls and three months with one
               (1) call.


       App. at 61-62.


[12]   As our Supreme Court stated in E.B.F.,


               [a] determination on the significance of the communication is not
               one that can be mathematically calculated to precision … [or]
               measured in terms of units per visit. In re Adoption of J.P., 713
               N.E.2d 873, 876 (Ind. Ct. App. 1999). Even multiple and
               relatively consistent contacts may not be found significant in
               context. Id. But a single significant communication within one year is
               sufficient to preserve a non-custodial parent’s right to consent to the
               adoption. In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind. Ct.
               App. 1990).


       93 N.E.3d at 763 (emphasis added); see also In re Adoption of J.T.A., 988 N.E.2d

       1250, 1254 (Ind. Ct. App. 2013) (holding “abandonment,” as used in the

       statute, means “any conduct by a parent that evinces an intent or settled


       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020             Page 7 of 14
       purpose to forego all parental duties and relinquish all parental claims to the

       child” (quotation and citation omitted)), trans. denied.


[13]   Thus, in Williams v. Townsend, for example, the parent’s occasional card or letter

       from jail and one telephone call to his child within the relevant six-month

       period was only “token” communication. 629 N.E.2d 252, 253-54 (Ind. Ct.

       App. 1994). On the other hand, in McElvain v. Hite, for example, we held that

       four visits with the children during the prior one year was sufficient to show

       significant communication and lack of intent to abandon the children. 800

       N.E.2d 947, 949 (Ind. Ct. App. 2003); see also In re Adoption of D.H., 135 N.E.3d

       914, 924 (Ind. Ct. App. 2019) (holding the non-custodial parent’s one telephone

       call and several texts to custodial parent seeking additional parenting time

       within the relevant time period “suffice[d] for purposes of preserving [parent’s]

       right to consent to the adoption,” and the parent’s efforts to achieve sobriety

       supplied “justifiable cause” for her failure to maintain additional

       communication with the child).


[14]   Here, the trial court clearly erred when it found that the telephone records of

       Mother’s calls to Child were admitted into evidence. The records to which the

       trial court referred were offered into evidence as V.B.’s Exhibit 15, but they

       were never admitted into evidence.3 Tr. at 69; Ex. at 2. Moreover, the trial




       3
         There was also testimony from Father that those unadmitted records showed that Mother had called Child
       “a total of 13 minutes a month from March of [20]18 through …October 8th … of [20]19,” and that “24
       minutes of these phone calls were two minutes or less, missed calls, or voicemails.” Tr. at 71. Mother


       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                             Page 8 of 14
       court clearly erred in placing complete emphasis on the “average” number of

       minutes Mother called Child each month. See E.B.F., 93 N.E.3d at 763. The

       only evidence in the record establishes that Mother spoke with Child multiple

       times by telephone during the relevant time periods, even as she participated in

       services to obtain sobriety. And V.B. presented no evidence that there was not

       one “significant” communication in Mother’s admittedly multiple telephone

       calls to Child within the relevant six-month and one-year time periods.

       Therefore, the trial court’s finding to that effect is not supported by the

       evidence. Cf. In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999)

       (noting potential adoptive parent presented evidence that the Department of

       Welfare Division of Family and Children case manager and the CASA did not

       believe parent’s “fairly consistent, but brief” monthly visits to her child were

       “meaningful”).


                                                 Child Support
[15]   Mother also appeals the trial court’s findings and conclusions regarding failure

       to pay child support. Specifically, the trial court found that “for more than one

       (1) year, Natural Mother failed to pay Child support, when she could have

       when she worked, when she could have if she had not ‘attended’ school instead

       of working, and when she could have had she accepted the money for same that

       her father[, Jos.P.,] testified she could have had for the asking.” App. at 64. In




       testified that she called Child “constantly. Id. at 16. And V.B. testified that Mother’s multiple telephone calls
       to Child were five to ten minutes “on average, maybe.” Id. at 97.

       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                                    Page 9 of 14
       addition, the trial court noted that Mother “used none of those proceeds [from

       her student loans] to pay any child support.” Id. at 63. The trial court also

       found that “Natural Mother’s father purchased a car for her[, and s]he was

       later, somehow, able to repay him for that.” Id.


[16]   The party seeking to adopt without a parent’s consent on the grounds of failure

       to support has the burden to prove by clear and convincing evidence that,

       during the relevant time periods, the parent was required to pay child support,

       had the ability to pay child support, and failed to pay child support. I.C. § 31-

       19-9-8(a). The ability to pay child support


               cannot be adequately shown by proof of income standing alone.
               To determine that ability, it is necessary to consider the totality of
               the circumstances. In addition to income, it is necessary to
               consider whether that income is steady or sporadic and what the
               non-custodial parent’s necessary and reasonable expenses were
               during the period in question.


       E.M.L., 103 N.E.3d at 1116 (quotation and citation omitted). When the

       petitioner fails to demonstrate by clear and convincing evidence that the natural

       parent had the ability to provide for the support of the child, “the evidence must

       be deemed insufficient to sustain the granting of the petition” to adopt.

       McElvain, 800 N.E.2d at 950; see also E.M.L., 103 N.E.3d at 1116 (“It was not

       Father’s burden to present evidence explaining why he did not pay the full

       amount of support; it was Stepfather’s burden to prove that Father was able to

       pay it.”). Thus, where “[t]he record does not indicate that [the parent’s] ability



       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020            Page 10 of 14
       to pay was ever investigated, much less determined,” the petitioner fails to carry

       his or her burden of proof. J.T.A., 988 N.E.2d at 1255.


[17]   Here, undisputed evidence showed Mother was required to pay child support

       and did not do so. However, V.B. presented no evidence that Mother was able

       to do so. The only evidence in the record4 establishes that Mother had sporadic

       and very brief employment in 2017 and 2019. Mother unsuccessfully looked for

       work in 2018, and unsuccessfully attempted to sell personal belongings on

       social media in 2018 and 2019. Mother participated in services to address her

       substance abuse from August 2018 to June 2019. From June of 2019 to August

       of 2019, Mother engaged in a ten-week online legal course through Purdue

       University. Mother took out an unspecified amount of student loans which she

       used to pay for her educational expenses such as the internet and a computer.

       There is no evidence at all regarding Mother’s necessary and reasonable

       expenses.


[18]   There is no evidence to support the trial court’s finding that Mother could have

       paid child support during her brief periods of employment; while the record

       contains evidence of small amounts of income from that employment, there is

       no evidence that any of that amount was available after considering Mother’s




       4
         We note that V.B. failed to comply with Indiana Appellate Rule 22(C) in the following respects. (1) V.B.
       repeatedly supports factual statements with citations to “Appellee’s App.”; however, there is no such
       appendix in the record as we granted V.B.’s own motion to withdraw her appendix. Appellee’s Br. at 11-12.
       (2) V.B. repeatedly supports factual statements with citations to Appellee’s Appendix and Appellant’s
       Appendix when she is actually referring to the transcript. Id. We remind V.B.’s counsel to comply with Rule
       22(C) in full in the future.

       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                              Page 11 of 14
       “necessary and reasonable expenses.” E.M.L., 103 N.E.3d at 1116. Similarly,

       there is no evidence supporting the trial court’s finding that Mother could have

       paid child support if she had worked instead of attending school; again, there

       was no evidence of Mother’s income in relation to her necessary living

       expenses. Nor is there evidence to support the trial court’s conclusion that

       Mother could have paid child support by asking for money from her father,

       Jos.P.; although Jos.P. testified that he would have given Mother money to pay

       child support if Mother had asked him for it, there was no evidence that Mother

       was aware of Jos.P.’s willingness to provide that money or that he ever offered

       to provide that money.


[19]   To the extent the trial court relied on its finding that Mother did not use student

       loan money to pay child support (thereby implying that she should have done

       so), it clearly erred in two respects. First, there is no evidence in the record that

       Mother was permitted to use student loan money to pay child support. 5

       Second, even if Mother were permitted to use student loans to pay child

       support, there is no evidence in the record that the student loan was in an

       amount sufficient to allow her to make such payments, or that any student loan

       money was remaining after Mother used it for her education-related and/or

       necessary living expenses. See J.M. v. D.A., 935 N.E.2d 1235, 1243 (Ind. Ct.




       5
         There is no evidence in the record regarding Mother’s student loan other than her own testimony that she
       obtained such a loan “to help her support school” and used it only “to pay [for her] tuition,” a computer, and
       the internet. Tr. at 8-9. Mother specifically testified that she could not “take out school loans for something
       other than school,” and that she did not use her student loans to pay for her rent or any other living expenses.
       Id. at 8-9.

       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020                                  Page 12 of 14
       App. 2010) (holding father could not be held in contempt for failure to pay child

       support from his student loan money where there was no evidence that any of

       that money remained after father paid his “necessary living expenses.”)


[20]   Finally, to the extent the trial court relied on its finding that Mother repaid

       Jos.P. for a car he bought her as evidence of her ability to pay child support, the

       only evidence in the record regarding the source of that repayment is Jos.P.’s

       testimony that Mother’s boyfriend—not Mother—was the source of the money

       for the repayment. Tr. at 119.


[21]   In sum, V.B. failed to provide clear and convincing evidence to support the trial

       court’s findings and/or conclusions that Mother was able to pay child support

       during the relevant time periods.



                                                 Conclusion
[22]   V.B. did not provide clear and convincing evidence to support the trial court’s

       findings that Mother’s multiple telephone communications with Child during

       the prior six-month and one-year periods were “token” and not “significant.”

       Nor did V.B. provide clear and convincing evidence to support the trial court’s

       findings that Mother was able to work and/or had available funds to make

       child support payments during the relevant time periods. And those

       unsupported findings do not support the trial court’s conclusions that Mother

       abandoned Child, failed without justifiable cause to communicate significantly

       with Child, and knowingly failed to pay child support when required and able


       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020          Page 13 of 14
       to do so. The trial court clearly erred when it determined that Mother’s consent

       was not required for V.B.’s adoption of Child.


[23]   Reversed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 20A-AD-229 | July 20, 2020      Page 14 of 14
