MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Sep 14 2016, 9:07 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                                   ATTORNEYS FOR APPELLEE
Matthew J. Elkin                                         Craig A. Dechert
Deputy Public Defender                                   Kokomo, Indiana
Kokomo, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

G.S.,                                                    September 14, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         34A04-1601-AD-140
        v.                                               Appeal from the Howard Circuit
                                                         Court
T.K.,                                                    The Honorable Lynn Murray,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         34C01-1501-AD-3



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 1 of 13
                                               Case Summary
[1]   G.S. appeals the trial court’s grant of T.K.’s petition to adopt G.S.’s son. We

      reject all of G.S.’s arguments except one: the trial court erred by accepting a

      limited criminal-history check for T.K. rather than ordering the complete

      criminal-history report required by Indiana Code section 31-19-8-5(d). We

      vacate and remand to the trial court for reconsideration in light of a complete

      background check.



                             Facts and Procedural Summary
[2]   C.K. (Mother) and G.S. were married and have one son, T.S. (Child), born

      December 22, 2008. The couple divorced in 2011, and Mother was awarded

      custody of Child. G.S. was granted supervised parenting time and ordered to

      pay child support.

[3]   G.S. initially maintained his parenting time with Child every other weekend,

      but he did not pay the ordered child support.1 In November 2012, Mother

      married T.K. T.K became the sole financial support for Mother and Child and

      a primary caregiver for Child. Around the same time, the visits between G.S.

      and Child stopped. There was only one visit after November 2012—G.S. went

      to Child’s t-ball game in spring 2013 and spoke with Child at the game. In

      March 2014, G.S. was incarcerated, serving sentences for, among other crimes,




      1
          G.S. did pay some child support in the summer of 2015, six months after the adoption petition was filed.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016           Page 2 of 13
      possession of methamphetamine and auto theft. His only communication with

      Child during his incarceration was “five or six” cards or letters he sent for

      Child’s birthday, Christmas (which is three days after Child’s birthday), and “a

      few in between.” Tr. p. 24.

[4]   On January 22, 2015, T.K. filed a petition to adopt Child. The petition

      included the following statement:

              That [G.S.] is the natural father of [Child] and his consent should
              not be necessary due to him having no contact with the child
              since April of 2013 and providing no support for the minor child
              for the past year.


      Appellant’s App. p. 32. A summons and a copy of the petition were sent to

      G.S. However, T.K. did not tender the Notice to Named Father form to the

      trial court until three weeks later, and the notice T.K. tendered for service on

      G.S. did not comply with the section of the Indiana Code to be used for

      adoption petitions where it is being argued that consent is not required.

      Nevertheless, on February 12, 2015, G.S. requested a continuance until he

      completed his incarceration in Hendricks and Marion Counties, and on March

      16, G.S. filed a motion to contest the adoption. The trial court appointed

      counsel for G.S. in April and held a hearing on the adoption petition on

      November 24, 2015.

[5]   At the hearing, G.S.’s counsel argued that the petition should be dismissed

      because, in addition to the issue with the Notice to Named Father, the petition

      itself did not contain Child’s gender or race; the trial court failed to return the

      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 3 of 13
      petition to T.K. within five days to add the omitted gender and race; T.K. failed

      to submit proof with the adoption petition that certain fees due to the State were

      paid; the required medical-history report was filed five months after the

      statutory deadline and was incomplete; and the criminal-history report T.K.

      offered into evidence at trial was prepared by the Howard County Sheriff and

      did not contain the state or national components of the criminal history report

      required for adoption. The trial court reserved ruling on G.S.’s requests to

      dismiss the petition. After the hearing, T.K. submitted a Limited Criminal

      History prepared by the Indiana State Police declaring that a search of Indiana

      records indicated T.K. had no criminal history. The trial court ultimately found

      all of these defects harmless.

[6]   The trial court issued its order granting T.K.’s petition to adopt, including

      findings and conclusions, in late December 2015. Relevant to this appeal, the

      trial court concluded that G.S.’s consent was not required because he “did not

      provide any financial support for [Child]” for more than one year despite there

      being times when G.S. was employed and could have provided some financial

      support, and that “[G.S.] has failed without justifiable cause to communicate

      significantly with [Child] for a period of at least one (1) year.” Appellant’s

      App. p. 17-18. The trial court also concluded that “[Child’s] best interests are

      served by granting [T.K.’s] petition to adopt him.” Id. at 19.


[7]   G.S. now appeals.




      Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 4 of 13
                                  Discussion and Decision
[8]    G.S. contends that the trial court erred in granting T.K.’s petition to adopt

       Child because (1) the evidence was insufficient to support the trial court’s

       conclusions that his consent was not required and the adoption was in Child’s

       best interests and (2) T.K. failed to comply with certain statutory requirements.

       When reviewing the trial court’s ruling in an adoption proceeding, we presume

       the trial court’s decision is correct, and we will not disturb the ruling unless the

       evidence, considered in the light most favorable to the decision, leads to but one

       conclusion and the trial judge reached an opposite conclusion. In re Adoption of

       T.L., 4 N.E.3d 658, 662 (Ind. 2014).


[9]    When, as in this case, the trial court has made findings of fact and conclusions

       of law, we first determine whether the evidence supports the contested findings

       and, second, whether the findings support the judgment. Id. We will not set

       aside the findings or judgment unless clearly erroneous. Ind. Trial Rule 52.

       Factual findings are clearly erroneous if the record lacks any evidence or

       reasonable inferences to support them, and a judgment is clearly erroneous

       when it is unsupported by the findings of fact and the conclusions relying on

       those findings. T.L., 4 N.E.3d at 662.


                                     I. Insufficient Evidence
[10]   G.S. argues that the evidence is insufficient to support the trial court’s

       conclusions that his consent to the adoption is not necessary and that the

       adoption is in Child’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 5 of 13
                                                 A. Consent
[11]   Generally, a trial court cannot grant an adoption without the consent of the

       child’s parents. See Ind. Code § 31-19-9-1. However, Indiana Code section 31-

       19-9-8(a)(2) provides that a non-custodial parent’s consent is not required “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.”

[12]   Here, the trial court found that both of these statutory provisions applied to

       G.S., but in this appeal, G.S. challenges only the trial court’s findings with

       respect to communication. The statute is written in the disjunctive such that the

       existence of either one of the circumstances provides sufficient ground to

       dispense with consent. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014).

       Because G.S. makes no argument that the trial court’s findings and conclusions

       are clearly erroneous with regard to his failure to provide financial support for

       Child, even if the trial court’s findings and conclusions with regard to G.S.’s

       failure to significantly communicate were clearly erroneous, we would not

       reverse the judgment of the trial court. In re Adoption of S.W., 979 N.E.2d 633,

       642 n.5 (Ind. Ct. App. 2012).

[13]   Nevertheless, we will address G.S.’s argument with respect to communication.

       G.S. argues that he had some communication with Child—he attended a t-ball

       game in 2013 and he sent a handful of cards after he was incarcerated in 2014.

       We have long held that the purpose of Indiana Code section 31-19-9-8(a)(2)(A)
       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 6 of 13
       is to “foster and maintain communication between non-custodial parents and

       their children, not to provide a means for parents to maintain just enough

       contact to thwart potential adoptive parents’ efforts to provide a settled

       environment to the child.” In re Adoption of S.W., 979 N.E.2d at 640.

       Therefore, T.K. “[was] not required to prove that [G.S.] had no communication

       with [Child,]” but rather that the communication G.S. had with Child was not

       significant. Id. Attending a sporting event and sending a few cards over the

       course of three years, in the context of a parent-child relationship, is minimal

       communication. The trial court reasonably concluded from these facts that

       G.S. failed to significantly communicate for at least one year.

[14]   However, the statute also requires that the failure to significantly communicate

       be unjustifiable, and G.S. asserts that he “can be said to have justifiably failed”

       to communicate with his son because he was incarcerated and he is a drug

       addict.2 Appellant’s Br. p. 17. G.S. is correct that his communication with

       Child after being incarcerated in March 2014 must be viewed in the context of

       that incarceration and the attendant limitations on his ability to communicate

       with Child. See Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986).




       2
         G.S. also argues that Mother did not give adequate notice of a change in address and phone number, and
       that “[Mother] said she was not inclined to drive [Child] to see G.S.” Appellant’s Br. p. 17. However, the
       trial court found that Mother did not know how to reach G.S. when she moved and that Mother notified
       G.S.’s mother, with whom G.S. sometimes lived, of the changes. Additionally, G.S. in fact contacted
       Mother after her contact information changed. Because G.S. makes no argument that there was an attempt
       to contact Child that was thwarted because he did not have valid contact information, or that Mother was
       obligated to be the person who supplied transportation for his visitation, we do not need to address this
       argument further.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016       Page 7 of 13
       However, even before his incarceration, G.S. failed to communicate with Child

       for sixteen months from November 2012 through March 2014, with the

       exception of attending one t-ball game. While we understand that G.S. is an

       addict and that may have hindered his ability to communicate, difficult times

       do not constitute justifiable cause for failing to maintain significant

       communication with one’s child. In re Adoption of T.H., 677 N.E.2d 605, 607

       (Ind. Ct. App. 1997). There is sufficient evidence to establish that G.S.

       unjustifiably failed to significantly communicate with Child for at least one

       year. G.S. has failed to persuade us that the evidence regarding communication

       “leads to but one conclusion and the trial judge reached an opposite

       conclusion.” In re Adoption of T.L., 4 N.E.3d at 662.


                                  B. Best Interests of the Child
[15]   G.S. also asserts that there was insufficient evidence to support the trial court’s

       conclusion that adoption is in Child’s best interests. In determining the best

       interests of a child in an adoption proceeding, we have noted that there are

       strong similarities between the adoption statute and the termination-of-parental-

       rights statute. In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App.

       2014). In termination-of-parental-rights cases, the trial court looks to the

       totality of the evidence to determine the best interests of a child. Id. Relevant

       factors include a parent’s historical and current inability to provide a suitable

       environment for the child, In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013),

       and the child’s need for permanence and stability, see A.J. v. Marion Cnty. Office

       of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 8 of 13
[16]   G.S. argues that there is “no testimony in the record regarding the impact of the

       adoption on [Child]” except for his own testimony that Child would feel

       abandoned if he “lost” his biological father. Appellant’s Br. p. 18. Therefore,

       G.S. concludes, the trial court erred in deciding that adoption was in Child’s

       best interests. We cannot agree. G.S. also testified that he has been

       incarcerated for the past two years, that he has no prospective employment for

       when he is released, that he has no stable housing of his own and intends to

       return to his mother’s house, and that G.S. was periodically homeless when he

       was using drugs during the year before his incarceration. G.S. has a history of

       drug abuse and criminality that has kept him from providing a stable

       environment for his child, and the trial court could reasonably infer that this

       pattern will continue.

[17]   In contrast, T.K. provided financial support and participated in Child’s daily

       life as a step-parent for the three years preceding the adoption hearing. In light

       of the above factors, and based on the record as it stands now, the trial court’s

       conclusion that adoption was in Child’s best interests was not clearly

       erroneous.3




       3
        This is, of course, subject to change depending on the findings, if any, of the complete background check
       discussed below.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016         Page 9 of 13
                              II. Strict Procedural Compliance
[18]   G.S. also argues that T.K. failed to comply with certain provisions of the

       adoption statute and, therefore, the trial court should have dismissed the

       petition. In some circumstances, it is possible that procedural irregularities in

       family-law proceedings may be of such significance that they deprive a parent of

       procedural due process when terminating his or her parental rights. A.P. v.

       Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1112-13 (Ind. Ct. App.

       2000), trans. denied. In general, the adoption statute is to be strictly construed

       and followed. See In re Adoption of A.M., 930 N.E.2d 613, 620 (Ind. Ct. App.

       2010). But it is not to be so strictly construed as to defeat the statute’s purposes.

       Id. The Court “must disregard any error or defect in the proceeding which does

       not affect the substantial rights of the parties.” Ind. Trial Rule 61. Therefore,

       we will not reverse for harmless errors. See id.


[19]   First, G.S. complains that he did not receive adequate notice of the proposed

       adoption. He notes that the original petition did not list Child’s sex, race, or

       how long Child had lived with T.K.; the Notice to Named Father did not

       contain the reasons why T.K. would argue G.S.’s consent was not required; and

       G.S. maintains that he did not initially receive the Notice to Named Father.4




       4
         The adoption statute provides more than one form for notice to the parent whose rights will be terminated if
       the adoption petition is granted. Here, T.K. tendered a Notice to Named Father that complies with Indiana
       Code section 31-19-4-5. But because T.K. was arguing that G.S.’s consent was not required, the proper form
       is a Notice of Adoption described in Indiana Code section 31-19-4.5-3. However, this does not affect our
       conclusion that sufficient notice was given in this case.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016        Page 10 of 13
[20]   It is well settled that substantial compliance with the notice provision “will be

       sufficient if the party receives notice which achieves that purpose for which the

       statute was intended.” In re Adoption of J.T.A., 988 N.E.2d 1250, 1257 (Ind. Ct.

       App. 2013) (quoting Matter of Paternity of Baby Girl, 661 N.E.2d 873, 877 (Ind.

       Ct. App. 1996)), trans. denied. Here, G.S. knew from the adoption petition that

       T.K. was seeking to adopt Child, and the petition made clear that T.K.

       intended to argue G.S.’s consent was not required because of a lack of

       significant communication and failure to pay child support. G.S. was able to

       contest the adoption in court, with counsel. While the petition to adopt and

       Notice to Named Father did not strictly comply with the statute, and G.S.

       contends he did not initially receive the Notice to Named Father, these defects

       did not cause G.S. to be deprived of due process; notice was, therefore,

       sufficient.


[21]   G.S. next complains that T.K. failed to satisfy Indiana Code section 31-19-2-7,

       which requires a medical report to be submitted within sixty days of filing the

       petition to adopt. In this case, the report was not submitted until seven months

       after the adoption petition was filed, and G.S. notes that it does not contain

       information regarding his own medical history, or Child’s size and APGAR

       score at birth. However, G.S. does not argue that timely submission or the

       missing information would have changed the outcome in this case. Any error

       was therefore harmless.

[22]   Next, Section 31-19-2-8 requires that an adoption-history fee and putative-

       father-registry fee be attached to the petition for adoption. T.K. did not submit

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 11 of 13
       proof of payment for these two fees until December 2015, after the adoption

       hearing. Appellant’s App. p. 99-101. We agree that these fees should have

       been paid according to the deadlines in the statute; however, G.S. offers no

       explanation of how the error affected his rights, and we see no reason to

       remand simply to have the trial court say that the requirements are now met.

[23]   Finally, G.S. complains that the trial court did not order the complete criminal-

       history report required by Indiana Code section 31-19-8-5(d).5 Instead, the trial

       court accepted the Limited Criminal History prepared by the Indiana State

       Police and submitted after the hearing. Among other issues, the State Police

       report does not satisfy the requirements for national database searches in

       Indiana Code section 31-9-2-22.5. According to Indiana Code section 31-19-2-

       7.3, “[a] court may not waive any criminal history check requirements . . . .”

       For the protection of the child, we recently decided that the absence of a

       statutorily compliant background check “renders an adoption petition fatally

       deficient.” See In re Adoption of S.O., No. 41A01-1510-AD-1781, 2016 WL

       3421219 (Ind. Ct. App. June 22, 2016).




       5
         Section 31-19-8-5(d) requires the trial court to order either the county office of family and children or a child
       placement agency to prepare a criminal-history report. There are five components to the report that are listed
       in Indiana Code section 31-9-2-22.5, which we summarize: (1) a state police department fingerprint-based or
       name-based criminal history check of both national and state databases; (2) a check for substantiated reports
       of child abuse or neglect in jurisdictions where a person lived within the previous five years; (3) a search of
       the United States Department of Health and Human Services’ national registry of substantiated cases of child
       abuse or neglect; (4) a search of the national sex offender registry maintained by the United States
       Department of Justice; and (5) a check of local law enforcement agency records in every jurisdiction where a
       person has lived within the previous five years.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016             Page 12 of 13
[24]   Here, the trial court relied on the limited background check that T.K. submitted

       after the adoption hearing. That is not sufficient. Therefore, we must remand

       to the trial court to order a background check that fully complies with Indiana

       Code section 31-19-8-5(d) and to reconsider the best interests of the child should

       the background check reveal that T.K. has a criminal history.

[25]   Vacated and remanded.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1601-AD-140 | September 14, 2016   Page 13 of 13
