MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 19 2019, 10:44 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
Kimberly A. Jackson                                      Lisa M. Dillman
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                         June 19, 2019
T.T. and K.T                                             Court of Appeals Case No.
                                                         18A-AD-2384
J.T., Jr. (Father),
                                                         Appeal from the Fayette Circuit
Appellant-Respondent,                                    Court
        v.                                               The Honorable Hubert Branstetter,
                                                         Jr., Judge
R.K.A. (Adoptive Parent),                                Trial Court Cause Nos.
                                                         21C01-1802-AD-81 & 21C01-1802-
Appellee-Petitioner.                                     AD-86



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019                  Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, J.T., Jr. (Father), appeals the trial court’s adoption

      decree, granting the adoption of the minor children, T.T. and K.T. (collectively,

      Children), by R.K.A. (Adoptive Father).


[2]   We affirm.


                                                   ISSUES
[3]   Father presents us with two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion in denying Father’s motion

              to continue the adoption hearing; and

          (2) Whether sufficient evidence existed to support the trial court’s finding

              that Father’s consent to the adoption was not required and the adoption

              was in the best interests of the Children.


                      FACTS AND PROCEDURAL HISTORY
[4]   Father is the biological father of T.T., born on July 29, 2007, and K.T., born on

      November 29, 2010. K.A. (Mother), and Father divorced in 2011. Pursuant to

      the divorce decree, Father was ordered to pay weekly child support in the

      amount of seventy-seven dollars ($77). Father was granted parenting time with

      the Children, which he exercised fairly regularly at first after the divorce.

      Gradually and within three years prior to filing the adoption proceedings,

      Father started to taper off on his parenting time. He would not exercise his two




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 2 of 12
      full weeks during summer, and at times, Father would go about three months

      between visits with the Children.


[5]   Both Father and Mother remarried. Mother married Adoptive Father on

      December 10, 2014. Adoptive Father is raising the Children “as [his] own

      children” and the Children refer to him as “dad.” (Transcript pp. 9, 22). In the

      year and a half preceding the filing of the adoption petition, Father ceased

      exercising consistent or scheduled parenting time. In 2017, Father contacted

      Mother only three times to initiate parenting time. In April 2017, Father

      contacted Mother on a Wednesday, requesting to see the Children on Friday.

      Mother “told him to get ahold of [her] on Friday,” but he never did. (Tr. p. 18).

      Father contacted Mother again in September and then again one time after

      September, but none of these contacts resulted in actual parenting time. Father

      met the Children by chance when the Children were visiting with the paternal

      grandparents and Father stopped in. At no time did Father call to speak with

      the Children, nor did he send them birthday presents, other gifts, or cards.


[6]   On February 26, 2018, Adoptive Father, with the consent of Mother, filed his

      separate petitions to adopt the Children. After the filing, Father contacted

      Mother twice, asking to see the Children. Adoptive Father’s counsel sent

      notice of the adoption via certified mail to Father at his last known address.

      The certified mail was signed for at the address and a return of service was

      received. On April 3, 2018, Father filed his appearance in the proceedings, as

      well as a verified motion to continue the adoption hearing that was set for April

      11, 2018, and to appoint an attorney to represent him in the proceedings. In his

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 3 of 12
      verified motion, Father represented that the last known address that was used

      by Adoptive Father for legal mailings was his actual address. The trial court

      granted Father’s request for a continuance and set the adoption hearing for May

      29, 2018. Notice of the hearing was served to Father at his address. On April

      27, 2018, the trial court conducted a hearing on Father’s request for

      representation. At the close of the hearing, the trial court granted Father’s

      request and appointed counsel for him. The trial court entered the appointment

      of Father’s attorney on its docket and served counsel with notice of his

      appointment. On May 7, 2018, Father’s counsel served a motion for discovery

      to Adoptive Father’s counsel. Counsel responded to the motion by disclosing

      the witness list. Father met with his counsel approximately one week prior to

      the hearing and after counsel received the witness list.


[7]   On May 29, 2018, Father and his counsel failed to appear for the hearing.

      Eventually, Father’s counsel was located in the county courthouse and was

      summoned to the trial court to attend the hearing. Father’s counsel informed

      the trial court that he had consulted with Father the previous week and Father

      had not mentioned the hearing date. Father’s counsel requested a continuance

      on the ground that Father had not received notice of the hearing, which was

      objected to by Adoptive Father and denied by the trial. At the close of the

      evidence, the trial court concluded that


              [Father] of the [Children] [] has failed without justifiable cause to
              communicate significantly with the [C]hildren when he has been
              able to do so for at least one (1) year. Therefore, pursuant to


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 4 of 12
               [I.C. §] 31-19-9-8(a)(2), the consent of [Father] to these adoptions
               is not required.


       (Appellant’s App. Vol. II, pp. 8, 18). Finding the adoption to be in the best

       interests of the Children, the trial court granted Adoptive Father’s petition.


[8]    Father now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                                     I. Notice


[9]    Father contends that the trial court violated his due process rights by denying

       his counsel’s motion for continuance made on his behalf at the commencement

       of the adoption hearing because Father had failed to receive notice of the

       hearing date.


[10]   The Fourteenth Amendment to the United States Constitution provides that

       “no person shall be deprived of life, liberty, or property without due process of

       law.” U.S. Const. Amend. XIV. We have repeatedly noted that the right to

       raise one’s children is more basic, essential, and precious than property rights

       and is protected by the Due Process Clause. In re T.W., 831 N.E.2d 1242, 1245

       (Ind. Ct. App. 2005). “Although due process has never been precisely defined,

       the phrase expresses the requirement of ‘fundamental fairness.’” Id. (citing E.P.

       v. Marion Co. Office of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.

       1995)). We have held that the “fundamental requirement of due process is the

       opportunity to be heard at a meaningful time and in a meaningful manner.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 5 of 12
[11]   Both Indiana’s adoption statute and our trial rules set forth certain standards for

       notice and service of process that are applicable in adoption cases. In re

       Adoption of L.D., 938 N.E.2d 666, 669 (Ind. 2010). Prior to terminating a

       parent’s rights in adoption proceedings under Indiana Code section 31-19-9-8,

       the parent must be afforded notice of the adoption proceeding pursuant to

       Indiana Trial Rule 4.1. See I.C. § 31-19-4.5-2. Indiana Trial Rule 4.1 provides

       that service may be effected by


               Sending a copy of the summons and complaint by registered or
               certified mail or other public means by which a written
               acknowledgment of receipt may be requested and obtained to his
               residence, place of business or employment with return receipt
               requested and returned showing receipt of the letter.


[12]   Adoptive Father sent the notice of the adoption petition via certified mail to

       Father’s last known address, the mailing was signed for and a return of service

       was received. In response to the notice, Father entered his appearance in the

       proceedings and filed a verified motion to continue the adoption hearing. In his

       motion to continue, Father represented to the trial court that his actual address

       coincided with the last known address. Accordingly, it is undeniable that

       Father received notice of the adoption proceedings.


[13]   Father now contends that he failed to receive notice of the re-scheduled hearing

       on May 29, 2018. While Trial Rule 4.1 governs service of process of the initial

       action, Trial Rule 5 “governs service of subsequent papers and pleadings in the

       action.” In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App. 2003), trans. denied.

       Indiana Trial Rule 5 authorizes service by U.S. mail and “[s]ervice upon the
       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 6 of 12
       attorney or party shall be made by delivering or mailing a copy of the papers to

       him at his last known address.” We have previously held that “to require

       service of subsequent papers, such as hearing notices, to rise to the level of

       service of process would permit a parent or other party entitled to notice to

       frustrate the process by failing to provide a correct address and would add

       unnecessarily to the expense and delay in termination proceedings when

       existing provisions adequately safeguard a parent’s due process rights.” In re

       A.C., 770 N.E.2d 947, 950 (Ind. Ct. App. 2002). Although In re A.C. was

       decided in the context of a termination of parental rights proceeding, we find

       that the same reasoning is applicable in adoption cases as similar safeguards are

       implicated and identical rights are protected.


[14]   While certified mail was not necessary to effectuate service of the May 29, 2018

       trial setting, the hearing notice was mailed to Father at the address referenced in

       his motion via certified mail and was deemed complete upon mailing. On April

       14, 2018, the certified mailing was signed for at Father’s address and a return of

       service was received by the trial court. Moreover, Father’s counsel had received

       the witness list from Adoptive Father’s counsel, had consulted with Father prior

       to the hearing, and was present at the May 29, 2018 hearing where he

       confronted and effectively cross-examined witnesses. Accordingly, based on

       the facts before us, we conclude that Father received adequate notice of the re-

       scheduled hearing and his due process rights were not implicated.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 7 of 12
                                            II. Sufficiency of the Evidence 1


[15]   With respect to the merits of the case, Father contends that the adoption should

       be set aside as the trial court erroneously determined that Father’s consent to

       the adoption was not required and the adoption was in the Children’s best

       interests.


[16]   When reviewing adoption proceedings, we presume that the trial court’s

       decision is correct, and the appellant bears the burden of rebutting this

       presumption. In re Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014).

       We generally give considerable deference to the trial court’s decision in family

       law matters, because we recognize that the trial court 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.

       MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Therefore, we will

       not disturb the ruling of the trial court unless the evidence leads to but one

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




       1
         As an initial issue, Adoptive Father contends that Father’s consent to the adoption must be irrevocably
       implied because Father failed to file a written motion to contest the adoption. Indiana Code section 31-19-9-
       18 provides, in pertinent part, that “[t]he consent of a person who is served with notice . . . to adoption is
       irrevocably implied without further court action if the person . . . fails to file a motion to contest the adoption
       . . .not later than thirty (30) days after service of notice[.]” While we agree with Adoptive Father that Father
       did not file a separate motion to contest the adoption, the record reflects that in his verified motion for
       continuance, which was filed within thirty days of service of notice, Father stated, “I am in need of a court
       appointed attorney so I do not lose my rights to my children.” (Appellant’s App. Vol. II, p. 50). Due to the
       important rights involved and because “we have often held that where the purpose of a rule is satisfied, this
       [c]ourt will not elevate form over substance,” we find that Father’s handwritten inclusion on his verified
       motion for continuance satisfied I.C. § 31-19-9-18 and we conclude that Father properly and timely contested
       the adoption petition. See Matter of Adoption of J.R.O., 87 N.E.3d 37, 43 (Ind. Ct. App. 2017) (oral motion to
       contest adoption satisfies the purpose of I.C. § 31-19-9-18), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019                         Page 8 of 12
       J.L.J., 4 N.E.3d at 1194. In determining whether the trial court’s decision is

       supported by sufficient evidence, we do not reweigh the evidence, and we

       consider all evidence and reasonable inferences derived therefrom most

       favorably to the trial court’s ruling. Id. In cases where an adoption petition is

       filed without the required parental consent, the party seeking to adopt “bears

       the burden of proving the statutory criteria for dispensing with such consent . . .

       by clear, cogent, and indubitable evidence.” Id.


[17]   Under Indiana law, a parent’s consent to the adoption of his child 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.


       I.C. § 31-19-9-8(a)(2). Here, the trial court concluded that Father “has seen the

       [C]hildren once, by chance for a brief period of time since January 2017, and

       has made two (2) half-hearted attempts to see the [C]hildren since the filing of

       the [p]etitions for adoption.” (Appellant’s App. Vol. II, pp. 8, 18).

       Accordingly, as Father failed to communicate significantly with the Children

       without justifiable cause for at least one year, the trial court concluded that

       Father’s consent was not required.



       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 9 of 12
[18]   A determination on the significance of the communication is not one that can

       be mathematically calculated to precision. E.B.F. v. D.F., 93 N.E.3d 759, 763

       (Ind. 2018). On the one hand, a single significant communication within one

       year can be sufficient to preserve a non-custodial parent’s right to consent to

       adoption, while, on the other hand, “a few, fleeting, and sometimes

       unintended” contacts with the child will not be found significant. Id. Even

       multiple and relatively consistent contacts may not be found significant in

       context. Id.


[19]   The record before us reflects Father’s interactions with the Children to be

       minimal at best during the year prior to the filing of the adoption petition.

       Besides an accidental encounter at the home of paternal grandparents, Father

       has not interacted with the Children since 2017. While he made several

       attempts to set up parenting time with the Children, Father never followed

       through on those attempts. Father did not contact the Children on their

       birthdays or during the Holidays, nor did Father send them cards or presents.

       Accordingly, as Father’s minimal efforts cannot amount to the level of

       significant communications mandated under the Statute, the trial court

       correctly determined that Father’s consent was not required for the adoption of

       the Children.


[20]   Nonetheless, “[e]ven if a court determines that a natural parent’s consent is not

       required for an adoption, the court must still determine whether adoption is in

       the child’s best interests.” In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct.

       App. 2014). The evidence suggests that Father has not had any meaningful

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 10 of 12
       contact with the Children and was delinquent in his child support payments.

       Adoptive Father and Mother provide a stable and nurturing environment.

       Adoptive Father is “raising the [C]hildren as if they were his own [C]hildren”

       and a strong bond exists between them. (Tr. p. 9). Therefore, we conclude that

       adoption is in the best interests of the Children.


[21]   However, Father contends that the trial court’s grant of Adoptive Father’s

       petition is defective because he failed to present evidence that “Mother was the

       legal custodian of the [C]hildren.” (Appellant’s Br. p. 24). Indiana Code

       section 31-19-9-1(a)(3) requires consent from “[e]ach person, agency, or local

       office having lawful custody of the Child whose adoption is being sought.”

       “Lawful custody,” within the meaning of the statute, is interpreted as “custody

       that is not unlawful.” In re Adoption of B.C.H., 22 N.E.3d 580, 585 (Ind. 2014).

       The court explained that “there are many sources of potential lawful custody

       that span the spectrum from court-ordered custody of a child to de facto

       custodianship to informal caretaking arrangements, to name a few.” Id. Here,

       the record established that Mother is the primary caregiver for the Children, as

       well as the custodial parent who receives court-ordered child support from

       Father. The Children have lived with Mother since the divorce and she

       submitted written consent for the adoption, in compliance with I.C. § 31-19-9-1.

       Accordingly, we find that Adoptive Father carried his burden of proof that

       Mother was the lawful custodian of the Children.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 11 of 12
                                             CONCLUSION
[22]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by denying Father’s motion for continuance of the adoption hearing; and

       sufficient evidence existed to support the trial court’s finding that Father’s

       consent to the adoption was not required and the adoption was in the best

       interests of the Children.


[23]   Affirmed.


[24]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2384 | June 19, 2019   Page 12 of 12
