MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Nov 07 2017, 7:20 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Erin L. Berger                                          Craig Goedde
Evansville, Indiana                                     Johnson, Carroll, Norton, Kent &
                                                        Goedde, P.C.
                                                        Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of L.B.                              November 7, 2017
(Minor Child)                                           Court of Appeals Case No.
                                                        82A01-1706-AD-1274
                                                        Appeal from the Vanderburgh
M.B.,                                                   Superior Court
Appellant,                                              The Honorable Renee Ferguson,
                                                        Magistrate Judge
        v.
                                                        Trial Court Cause No.
                                                        82D04-1610-AD-125
N.W.,
Appellee.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017         Page 1 of 8
                                          Case Summary
[1]   M.B. (“Father”) and D.W. (“Mother”) had a son, L.B. (“Child”), who was

      born on March 11, 2013. Mother subsequently married N.W. (“Stepfather”),

      who petitioned to adopt Child. Father objected. Following a hearing, the trial

      court determined that Father’s consent to the adoption was unnecessary, and it

      granted the petition for adoption. Father now appeals, raising the sole issue of

      whether the trial court erred in determining that his consent was unnecessary.


[2]   We affirm.



                            Facts and Procedural History
[3]   Father and Mother became romantically involved in 2011, and moved in

      together. Child was born in 2013. Around the time of Child’s birth, Father

      executed a paternity affidavit confirming that he was Child’s biological parent.


[4]   One day in January 2014, Father and Mother began arguing, and Father

      choked Mother until she lost consciousness. Father was arrested, and was

      prohibited from contacting Mother for one year. Around the time of Father’s

      arrest, Mother filed a petition seeking a court order requiring Father to pay

      child support. Father was ordered to make weekly payments, which he

      intermittently paid. At the time Mother petitioned for child support, neither

      parent asked the court to enter an order concerning parenting time.


[5]   Mother and Stepfather began dating in 2014, and eventually got married in

      early 2015. Meanwhile, Mother permitted Father to spend time with Child
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      from March 2014 to July 2014. When Father lost his job in July 2014 and was

      forced to leave his residence, Mother no longer allowed Father to spend time

      with Child. At some point later that year, Father was incarcerated. While he

      was incarcerated, Father wrote a letter to Mother that was directed to Child.


[6]   After the no-contact order expired in early 2015, at a time when Father was no

      longer incarcerated, Father sent Mother several text messages inquiring about

      parenting time. Father sent these messages from January 2015 to June 2015.

      Father also called Mother several times. Mother would usually not respond to

      Father’s messages, but when she did, Mother indicated that Father should seek

      court-ordered parenting time. Father indicated that he would do so, but that he

      needed Mother’s address. At one point in February 2015, Father contacted the

      Parenting Time Center in Evansville to orchestrate supervised visitation, but

      when the Parenting Time Center contacted Mother, she declined the services.


[7]   Father last sent a text message to Mother on June 10, 2015. He last called

      Mother on July 30, 2015. On November 4, 2015, Father sent Mother two

      Facebook messages asking about Child. Then, on January 8, 2016, Father sent

      two Facebook messages to Mother expressing concern about her mother’s

      health. Thereafter, Father had no contact with Mother until he filed, on

      September 15, 2016, a pro se motion alleging that Mother had contemptuously

      prevented him from spending time with Child. Shortly thereafter, Stepfather

      filed, in a separate action, the instant petition to adopt Child. Father filed an

      objection to Stepfather’s petition, and Father was later appointed counsel. As

      to Father’s contempt allegations in the other cause, the trial court treated the

      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017   Page 3 of 8
       motion as a petition to establish parenting time, and scheduled a hearing.

       When Father failed to attend the hearing, the petition was dismissed.


[8]    On May 31, 2017, a hearing was held concerning Father’s objection to

       Stepfather’s petition for adoption. The trial court determined that it could grant

       Stepfather’s petition without Father’s consent, and granted the petition.


[9]    Father now appeals.



                                 Discussion and Decision
[10]   When reviewing a trial court’s decision in an adoption proceeding, we presume

       that the 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 (Ind. 2014). “We will

       not disturb the trial court’s ruling ‘unless the evidence leads to but one

       conclusion and the trial judge reached an opposite conclusion.’” Id. at 973

       (quoting Rust v. Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999), trans.

       denied). Here, in granting Stepfather’s petition, the trial court entered findings

       and conclusions. When the trial court has entered findings and conclusions,

       “we apply a two-tiered standard of review: ‘we must first determine whether the

       evidence supports the findings and second, whether the findings support the

       judgment.’” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) (quoting In re

       Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)). We “shall not

       set aside the findings or judgment unless clearly erroneous.” Ind. Trial Rule

       52(A). Findings are clearly erroneous if they are unsupported by any evidence


       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017   Page 4 of 8
       or the reasonable inferences to be drawn therefrom. T.L., 4 N.E.3d at 662. A

       judgment is clearly erroneous when it is unsupported by the findings and the

       conclusions relying on those findings. Id. Moreover, in conducting our review,

       we must give “due regard . . . to the opportunity of the trial court to judge the

       credibility of the witnesses,” T.R. 52(A), and we are to consider the evidence in

       the light most favorable to the trial court’s decision. T.L., 4 N.E.3d at 662.


[11]   Ordinarily, a petition to adopt a child “may be granted only if written consent

       to adoption has been executed” by the child’s parents. Ind. Code § 31-19-9-1.

       However, “[c]onsent to adoption . . . is not required from . . . [a] parent of a

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

       parent . . . fails without justifiable cause to communicate significantly with the

       child when able to do so.” I.C. § 31-19-9-8(a). This exception does not apply if

       a parent has engaged in even a single significant communication with the child

       during the pertinent timeframe. See Rust, 714 N.E.2d at 773.


[12]   When a natural parent has contested an adoption, the person seeking to adopt

       the child “has the burden of proving that the parent’s consent to the adoption is

       unnecessary.” I.C. § 31-19-10-1.2(a). “Whether this burden has been met is

       necessarily dependent upon the facts and circumstances of each particular case,

       including, for example, the custodial parent’s willingness to permit visitation as

       well as the natural parent’s financial and physical means to accomplish his

       obligations.” Rust, 714 N.E.2d at 772. Moreover, “[e]fforts of a custodial

       parent to hamper or thwart communication between parent and child are

       relevant in determining the ability to communicate.” Id.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017   Page 5 of 8
[13]   The evidence favorable to the trial court’s decision indicates that from August

       2015 through August 2016—a period of at least one year—Father twice

       contacted Mother, and Father did not directly communicate with Child. On

       November 4, 2015, Father sent Mother two Facebook messages asking

       questions about Child, stating that he “hat[ed] life without him” and “want[ed]

       him.” Pet’r’s Exhibit E. Then, in early 2016, Father sent a series of Facebook

       messages to Mother expressing concern about her mother’s health; Father

       noted that he did not want her to lose her mother or for Child “to lose his

       grandmother.” Pet’r’s Exhibit H. During this timeframe, it appears that Father

       sought no other way to communicate with Child, such as by directing messages

       to Child or by writing a letter, which he had sent in the past while incarcerated.


[14]   Father does not argue that he engaged in any significant communication with

       Child after he last saw Child in July 2014. Rather, Father argues that there was

       justifiable cause for his failure to communicate. Father contends that Mother

       thwarted his ability to communicate with Child by responding to him on only

       three occasions and by “refus[ing] to allow [Father] to see or communicate with

       [Child].” Appellant’s Br. at 13. According to Father, by granting Stepfather’s

       petition, the trial court essentially “rewarded Mother’s refusal to work with

       [Father] concerning his contact with [Child].” Id. at 13-14.


[15]   In arguing that Mother thwarted his attempts to communicate with Child,

       Father likens this case to D.D. v. D.P., 8 N.E.3d 217 (Ind. Ct. App. 2014).

       There, a father had moved to Washington D.C. for work after his marriage was

       dissolved in Indiana. D.D., 8 N.E.3d at 218. Rather than pursue litigation, the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017   Page 6 of 8
       father repeatedly called and emailed the mother of his young children, sending

       over sixty emails requesting parenting time. Id. at 218. The mother responded

       to just five emails, and when she did, “she seemed interested only in

       terminating his parental rights” or in convincing the father that adoption was in

       the children’s best interests. Id. at 221. When the children’s stepfather later

       petitioned to adopt the children, the trial court determined there was justifiable

       cause for father’s lack of direct communication with the children. Id. at 220.

       This Court upheld that determination on appeal. Id. at 222.


[16]   Here, Father resided in the general area of Southwestern Indiana, and Father

       did not sustain his efforts to connect with Child. Moreover, unlike the mother

       in D.D., Mother did not seek to persuade Father to give up his parental rights.

       Rather, in each of her three responses, Mother directed Father to obtain a court

       order to establish parenting time—an indication that parenting time was

       possible if Father took certain steps. And although Father testified that on

       many occasions he had “jump[ed] through flaming hoops trying to get the ball

       rolling” on court-ordered parenting time, Tr. Vol. II at 132, the trial court did

       not find Father credible. Indeed, the trial court observed that although Father

       claimed that he needed Mother’s address to initiate an action regarding

       parenting time, Father obtained Mother’s address in the spring of 2016 but

       waited until September to take any formal action. Father blamed his failure to

       take action on being in a halfway house, but the trial court observed that being

       in a halfway house would not have kept Father from being able to exercise his




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-AD-1274 | November 7, 2017   Page 7 of 8
       “legal right to come down to the courthouse and file an action” with respect to

       his parenting time. Id. at 144.


[17]   Viewing the evidence in the light most favorable to the decision, we cannot say

       that the trial court clearly erred in determining that Father lacked justification

       for his failure to significantly communicate with Child for more than a year.

       Thus, there is sufficient evidence supporting the trial court’s determination that

       Father’s consent was unnecessary to grant Stepfather’s petition to adopt Child.1



                                                   Conclusion
[18]   The trial court did not clearly err in determining that Father’s consent to the

       adoption was unnecessary.


[19]   Affirmed.


       Baker, J., and Altice, J., concur.




       1
        The trial court also identified an alternative statutory basis for its determination that Father’s consent was
       unnecessary, to which the parties direct argument on appeal. Having concluded that the trial court’s
       determination was supported by at least one statutory basis, we need not address this additional basis.

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