      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                  Nov 07 2018, 9:45 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
      Karen M. Heard                                          John Andrew Goodridge
      Evansville, Indiana                                     Evansville, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      In Re the Adoption of M.R.R., a                         November 7, 2018
      child                                                   Court of Appeals Case No.
                                                              18A-AD-923
      M.R.,
                                                              Appeal from the Vanderburgh
      Appellant-Respondent,                                   Superior Court-Juvenile Division
              v.                                              The Honorable Brett J. Niemeier,
                                                              Judge
      N.G.,                                                   Trial Court Cause No.
                                                              82D04-1703-AD-29
      Appellee-Petitioner.



      Altice, Judge.


[1]   M.R. (Father) appeals the trial court’s order granting the petition filed by N.G.

      (Stepfather) to adopt Father’s biological child, M.R.R. Father claims that the

      trial court erred in concluding that his consent to the adoption was not required.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018                Page 1 of 14
[2]   We affirm.


                                  Facts & Procedural History
[3]   Father and L.G. (Mother) are the biological parents of M.R.R., born in March

      2009. At that time, Father and Mother were living together, and they married

      sometime in 2010. Father “got caught up in drugs and it turned him into a

      different person.” Transcript Vol. II at 31. By May 2011, their marriage was

      dissolved. For about a year, Father exercised parenting time every other

      weekend. During that time, Father was living in Evansville with his mother

      (Grandmother), who was present for Father’s visitations with M.R.R. In 2012,

      Father moved to Linton, Indiana, and while he still saw M.R.R. for visitations,

      it was less regularly. Mother explained, “[I]f he stopped asking to see [M.R.R.]

      that’s when I knew that he typically wasn’t clean. It was off and on a lot.” Id.

      at 32. In January 2014, Mother married Stepfather. In May 2016, Mother filed

      a petition to modify custody and parenting time. Father initially objected but

      later signed an agreement in or around August 2016 awarding Mother sole

      custody and requiring that his parenting time be supervised by the paternal

      grandfather (Grandfather).


[4]   On March 13, 2017, Stepfather filed a Petition for Adoption of M.R.R., alleging

      that Father “has had no meaningful contact with the child within the 12 months

      preceding the filing of this adoption petition and has not provided any support

      in the 5 years preceding the filing of this adoption petition.” Appellant’s App.

      Vol. II at 10. On the same date, Mother filed her consent to the adoption.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 2 of 14
      Notice was sent to Father, and he filed a pro se objection to the petition. A few

      days later, the county’s Legal Aid Society entered an appearance on behalf of

      Father, and that same day, Father, by counsel, filed a more formal objection,

      stating that he was contesting the adoption and asserting adoption was not in

      M.R.R.’s best interests.1


[5]   On January 24, 2018, the trial court held an evidentiary hearing on Father’s

      objection and the issue of his consent. Mother testified that after Father moved

      to Linton in 2012, he “went to rehab a few times” but he could not “stay clean”

      and eventually he returned to living with Grandmother in Evansville. Transcript

      Vol. II at 32. Mother testified that in 2015, Father became gravely ill with

      MRSA2 that “was somehow connected with him having a drug problem” and,

      in Mother’s view, Father was at “rock bottom, but he didn’t get clean after

      hitting rock bottom.” Id. at 34. Believing that “it was no longer safe for

      [M.R.R.] to be around him,” Mother sought full custody and supervised

      visitation in May 2016. Id. Father was arrested on felony drug charges in or

      around this time, and in late summer or early fall of 2016, he agreed to the

      requested change in custody and supervised parenting time. Grandfather




      1
       Father’s counsel through the Legal Aid Society later withdrew and, in October 2017, the trial court
      appointed the Vanderburgh County Public Defender’s Office to represent Father.
      2
       MRSA is Methicillin-resistant Staphylococcus aureus infection and is caused by a type of staph bacteria that
      has become resistant to many of the antibiotics used to treat ordinary staph infections.

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018                  Page 3 of 14
      agreed to supervise the visitation, but Grandmother declined, explaining that

      she was not comfortable with supervising due to Father’s drug usage issues.


[6]   Mother testified that Father’s last meaningful contact with M.R.R. was in

      February or March 2016. She described that, up until then, Father had been

      exercising parenting time “a day at a time here and there” but that stopped in

      February or March 2016, when she believed “he was starting to use heavily

      again.” Id. at 35. From May 2016 until July 2017, Mother testified that Father

      had seen M.R.R. twice for some “hours” each time, and she did not consider it

      as meaningful contact. Id. at 38. Father gave M.R.R. a card for her eighth

      birthday, in March 2017, putting it in their mailbox. Mother stated that, since

      the dissolution, Father had attended “zero” doctor appointments and dentist

      appointments and had never contacted Mother about school or medical issues.

      Id. at 42. Mother characterized Father as having been “non-existent for the past

      three years or so[.]” Id. at 39. Stepfather testified that, to his knowledge,

      Father had had no meaningful contact with M.R.R. in the two years preceding

      the January 2018 hearing.


[7]   When asked about when Father had last paid child support, Mother replied,

      “Early 2015, late 2014. I don’t really keep track of the dates. I just never really

      counted on it.” Id. at 42. She said that he paid consistently “for the first year or

      so” after the 2011 dissolution, then inconsistently up until sometime in 2015,

      and then he quit paying. Id. at 43. Mother explained her motivation in seeking

      adoption was to keep M.R.R. safe, physically and emotionally, and to ensure

      that if anything were to happen to Mother, that M.R.R. would remain in the

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 4 of 14
      household with her siblings and Stepfather, who was reliable and had been

      raising her. Mother stated that, if the adoption were granted, she “absolutely”

      wanted to continue to foster the relationship between M.R.R. and Father’s

      parents (Grandparents). Id. at 44. Mother had faith in Grandparents that they

      would not let M.R.R. be around Father if he was under the influence of drugs.


[8]   Grandmother testified that she saw M.R.R. regularly, about once a month, and

      that M.R.R. would stay overnight with her. Grandmother arranged those visits

      through Mother and Stepfather. Grandmother stated that while Stepfather was

      a nice man, a responsible person, and she did not have any concerns about him

      in terms of being a parental figure for M.R.R., she was opposed to adoption.

      Grandmother explained that she wanted M.R.R. to have a relationship with

      Father, stating although “he hasn’t always done everything he should” and has

      had “a drug issue,” “he’s [M.M.R.’s] Dad and she should see him.” Id. at 14.

      Grandmother added, “If he’s clean it doesn’t [need to be supervised]. But I

      don’t know if he’s clean.” Id. at 25. In response to questioning about the drug

      issue, Grandmother recalled that Father had struggled with addiction to opioids

      “on and off” for about eight years, since the time that he had been living with

      Mother, and he had been in jail twice. Id. at 18.


[9]   When asked what communication Father had had with M.R.R. in the last year,

      Grandmother replied, “I don’t think he’s had very much.” Id. at 27. With

      regard to whether Father had given presents to M.R.R., Grandmother said,

      “He’s told me that he has ‘em. He doesn’t kn[o]w when he can give ‘em to her.

      I don’t know. I haven’t seen ‘em.” Id. Grandmother indicated that on

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 5 of 14
       approximately three or four occasions in the last year, Father had asked her if

       he could see M.R.R. while M.R.R. was staying with Grandmother, but

       Grandmother did not allow him to do so because, when Grandmother asked

       Mother if this was acceptable, Mother had said no to the request, and

       Grandmother “respected” Mother’s decision. Id. at 29.


[10]   Father also testified at the consent hearing. He acknowledged that he had been

       an opiate addict for about ten years and a heroin addict for the last few years.

       He had been “in rehab” four times, in jail a few times, and he had been charged

       with two felony drug offenses. Id. at 50. Father testified that he had a daily

       drug habit, but as of the date of the hearing, he had been clean for three days,

       noting that he was in an outpatient program, but had been “struggling lately”

       and hoped to be admitted to an inpatient program. Id. at 51. He also

       acknowledged that he paid child support “here and there” but not consistently

       and believed he last paid in 2015. Id. Father said that he was hospitalized in

       September 2015 for MRSA, agreeing that, up until he was hospitalized, he had

       been using drugs and needles, which was “probably” how he contracted the

       MRSA infection. Id. at 52. He stated that, when he was working, he paid child

       support, but he did not work for most of 2016. He testified that to satisfy his

       drug habit he sometimes, but not always, would purchase “$20.00 bumps” of

       heroin once or twice a day. Id. at 55. Father conceded that during periods of

       being unemployed he bought drugs but did not pay child support.


[11]   Father testified that from March 2016 to March 2017, he tried to see M.R.R. a

       few times, with Grandfather as supervisor, but because Grandfather lived an

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 6 of 14
       hour away, Father conceded, “[S]o no, I didn’t attempt a whole lot.” Id. at 59.

       Father was asked, “Was it hard because of the distance or was it hard because

       you were high?” and he replied, “I can still drive if I’m high. I mean, if I was

       high I still wanna see my daughter.” Id. at 59. When asked to acknowledge

       that he had not “been much of a dad to [his] daughter,” Father agreed that

       “[a]bout the last year and a half, no, I haven’t been much of one.” Id. at 59.

       Father explained that, although he had not “been the best Dad” and struggled

       with addiction, he objected to the adoption because he wanted to be a part of

       his daughter’s life and see her “every other weekend or whenever they decide”

       and under whatever restrictions would be imposed. Id. at 65, 72.


[12]   The trial court took the matter under advisement. On February 12, 2018, the

       trial court ruled that Father’s consent was not required. Specifically, it

       determined:


               The Court having the matter of father’s consent under
               advisement now rules that the father’s consent is not required for
               the adoption to be granted. The father has had no meaningful
               contact with the child at least one year prior to the filing of the
               adoption nor has he supported the child for that same period of
               time. Further the court finds the father to be unfit. Father for a
               prolonged period of time has used various substances illegally
               and continues to illegally use substances that impair his ability to
               parent. After hearing the testimony of the father the court
               believes that the father has no intention of remedying his
               substance abuse problem, in that he doesn’t view it as a
               significant hindrance in his ability to parent, therefore in this
               court’s opinion rendering him unfit.


       Appellant’s Appendix Vol. II at 6.
       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 7 of 14
[13]   On March 15, 2018, the trial court held a final adoption hearing, following

       which the trial court issued a Decree of Adoption, granting Stepfather’s

       petition. The trial court found that the allegations of Stepfather’s petition were

       true and that adoption was in M.R.R.’s best interests.3 Father now appeals the

       trial court’s determination that Father’s consent was not required for the

       adoption.


                                           Discussion & Decision
[14]   As our Supreme Court has recognized, “In family law matters, we generally

       give considerable deference to the trial court’s decision because we recognize

       that the trial judge is in the best position to judge the facts, determine witness

       credibility, ‘get a feel for the family dynamics,’ and ‘get a sense of the parents

       and their relationship with their children.’” E.B.F. v. D.F., 93 N.E.3d 759, 762

       (Ind. 2018) (citing 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. Id.; In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App.

       2012). We will neither reweigh the evidence nor judge the credibility of

       witnesses; instead, we will consider the evidence most favorable to the trial

       court’s decision, and the reasonable inferences to be drawn therefrom, to

       determine whether sufficient evidence exists to sustain the decision. In re S.W.,




       3
           The trial court also changed M.R.R.’s surname to that of Mother and Stepfather.


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018       Page 8 of 14
       979 N.E.2d at 639. We will not disturb the trial court’s ruling unless the

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

       conclusion. Id.


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

       mother and father of the child consent. Ind. Code § 31-19-9-1. However, Ind.

       Code § 31-19-9-8(a) provides that consent to an adoption is not required from:


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


                       (A) fails without justifiable cause to communicate
                       significantly with the child when able to do so; or


                       (B) knowingly fails to provide for the care and support of
                       the child when able to do so as required by law or judicial
                       decree.


                                                          ****


               (11) A parent if:


                       (A) a petitioner for adoption proves by clear and
                       convincing evidence that the parent is unfit to be a parent;
                       and


                       (B) the best interests of the child sought to be adopted
                       would be served if the court dispensed with the parent’s
                       consent.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 9 of 14
       Ind. Code § 31-19-9-8(a)(2), (11). Stepfather, as the petitioner, had the burden

       of proving by clear and convincing evidence that consent was not required. In

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

       provisions of Ind. Code § 31-19-9-8 are written in the disjunctive; therefore,

       they each provide independent grounds for dispensing with parental consent.

       Id.


[16]   Here, the trial court determined that Father’s consent was not required because

       (1) Father had failed to communicate significantly with M.R.R. for a year

       preceding Stepfather’s filing of the petition in March 2017, (2) he had not paid

       child support for that period of time, and (3) he was unfit to parent M.R.R.

       While any one of those three grounds would independently support the

       decision that Father’s consent was not required, we find that the record

       supports all three and we address each.


[17]   First, with regard to communication, our Supreme Court has recognized, “A

       determination on the significance of the communication is not one that can be

       mathematically calculated to precision.” E.B.F., 93 N.E.3d at 763. The Court

       explained,


               [S]ignificance of the communication cannot be measured in
               terms of units per visit. Even multiple and relatively consistent
               contacts may not be found significant in context. But a single
               significant communication within one year is sufficient to
               preserve a non-custodial parent’s right to consent to the adoption.


       Id. (citations omitted).


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 10 of 14
[18]   Here, Mother testified that, by early 2016, the frequency of Father’s visitations

       with M.R.R. were “already starting to dwindle” and then stopped occurring in

       February or March of 2016 when he resumed “heavily” using drugs. Transcript

       Vol. II at 35. Mother testified that Father had had no meaningful

       communication with M.R.R. since February or March 2016, and Stepfather

       testified likewise. There was evidence presented that Father had seen M.R.R.

       on two occasions between May 2016 and July 2017, for some hours each time,

       but Mother testified that she did not consider those occasions as meaningful

       contact. Father’s suggestion that such contact was meaningful is a request for

       us to reweigh the evidence and witness testimony, which we cannot do on

       appeal. In re S.W., 979 N.E.2d at 639. Furthermore, Father did not present any

       evidence of specific visits on specific dates or elaborate in what way those

       visitations were meaningful.4 Father also argues that he attempted on a few

       other unspecified occasions in 2016 to see M.R.R. – by asking Grandmother to

       see M.R.R. while she was visiting with Grandmother or by trying to arrange a

       supervised visitation through Grandfather – and that either Grandmother did

       not allow it because Mother had not approved or because Grandfather was too

       busy. To the extent that Father is suggesting that his attempts to see M.R.R.




       4
        Father asserts that he had meaningful visits with M.R.R. in 2017 at a family gathering for his sister and her
       new baby, during a summer fireworks celebration that M.R.R. was attending with Grandfather, and when he
       attended some of M.R.R.’s sporting events. However, these events occurred after the filing of the petition to
       adopt and are not relevant to the determination of whether his consent was not required. See In re Adoption of
       S.W., 979 N.E.2d 633, 640 n.3 (Ind. Ct. App. 2012) (parent’s conduct after filing of adoption petition is
       “‘wholly irrelevant to the determination of whether parent failed to significantly communicate with child for
       any one year period,’” quoting In re Adoption of Subzda 562 N.E.2d 745, 750 n.3 (Ind. Ct. App. 1990)).

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018                 Page 11 of 14
       were thwarted by Mother or in some way justified his lack of communication

       with M.R.R., we reject his claim. Father has failed to show that the trial court’s

       determination that he failed to communicate significantly with M.R.R. in the

       relevant time frame was erroneous.


[19]   Second, with regard to the matter of supporting the child, Mother testified

       Father had failed to pay child support since 2015, and Father agreed this was

       accurate. Evidence of child support payments made through the Clerk’s office

       was admitted into evidence and showed that Father made some payments, not

       weekly however, during the months of January 2015 through June 2015, and he

       made none in 2016.5 Father testified that he did not provide child support in

       any other form or method besides the payments made through the Clerk’s

       office. The record thus supports the trial court’s determination that Father

       failed to provide care and support for M.R.R. for a year preceding the petition.


[20]   Third, with regard to Father’s fitness to parent M.R.R., this court has observed

       that, while I.C. § 31-19-9-8 does not define “unfit,” termination cases provide

       useful guidance, where we considered factors such as a parent’s substance

       abuse, mental health, willingness to follow recommended treatment, lack of

       insight, and instability in housing and employment. In re M.L., 973 N.E.2d at

       1223. Here, evidence was presented that Father had struggled with significant

       drug addiction for ten years. He went to rehabilitation three or four times, but



       5
        Father resumed making some payments in May, June, July, and August 2017, which was after the petition
       was filed in March 2017.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018           Page 12 of 14
       was not successful in remaining drug-free, as he resumed using opioids and

       heroin, often daily. Father had managed to stay clean for three days preceding

       the hearing, but admitted that he was struggling and hoped to return to

       inpatient treatment. He conceded that he was unemployed for most of 2016

       and was not working much in 2017. He acknowledged that, at times, he paid

       for drugs and not child support. In his testimony, Father urged that he still

       wanted to and could see his daughter even if he was high, so long as she did not

       see or know that he was using drugs. The trial court found that Father’s failure

       to recognize the drug use “as a significant hindrance in his ability to parent”

       rendered him unfit to parent. Appellant’s Appendix Vol. II at 6. The record

       supports the trial court’s determination that Father was not fit to parent M.R.R.


[21]   No one, including Mother, disputes that Father loves his daughter.

       Unfortunately, however, “the destructive tentacles of the substance abuse

       epidemic” have a grip on Father. E.B.F., 93 N.E.3d at 760. As stated, we will

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

       conclusion and the trial court reached an opposite conclusion. In re S.W., 979

       N.E.2d at 639. The record in this case supported the trial court’s decision that

       Father’s consent was not required.6


[22]   Judgment affirmed.




       6
         Father does not challenge the trial court’s subsequent determination that the adoption was in M.R.R.’s best
       interest.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018                 Page 13 of 14
Brown, J. and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-923 | November 7, 2018   Page 14 of 14
