MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 28 2020, 9:46 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 APPELLANTS
Erik H. Carter
Carter Legal Services LLC
Noblesville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of R.D:                               July 28, 2020

B.L.D. and K.D.,                                         Court of Appeals Case No.
                                                         20A-AD-364
Appellants-Petitioners,
                                                         Appeal from the Cass Circuit
        v.                                               Court
                                                         The Honorable Stephen Roger
B.D. and C.P.,                                           Kitts, II, Judge
                                                         Trial Court Cause No.
Appellees-Respondents
                                                         09C01-1901-AD-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020                     Page 1 of 12
[1]   B.L.D. and K.D. (collectively, the Adoptive Parents) appeal the trial court’s

      order denying their petition for adoption, arguing that the trial court erred (1)

      by finding that Adoptive Parents had not proved by clear and convincing

      evidence that they could adopt R.D. (Child) without B.D.’s (Mother’s) and

      C.P.’s (Father’s) consent due to a lack of significant communication; and (2) by

      finding that Adoptive Parents had not proved by clear and convincing evidence

      that consent was not required because Mother and Father were not fit to be

      Child’s guardians and because adoption was in Child’s best interests. Finding

      no error on either front, we affirm.


                                                     Facts
[2]   Child was born on January 24, 2017. At the time of birth, Father did not sign

      Child’s birth certificate and did not submit a paternity affidavit. Two days later,

      on January 26, 2017, Mother went with Child to the home of Adoptive Parents

      to discuss childcare. Due to Mother’s preexisting relationship with B.L.D.,

      Mother asked if Adoptive Parents would temporarily look after Child during

      Mother’s pending incarceration. Adoptive Parents agreed, and on October 4,

      2017, all three signed a Temporary Custody Agreement, pursuant to which

      Adoptive Parents were to have temporary guardianship of and “special power

      of attorney” for Child. Tr. Vol. II p. 54.


[3]   From the time of Child’s birth until Mother’s first release from incarceration,

      Father made little effort to reach out to Child or provide any financial support.

      While incarcerated, Mother permitted Adoptive Parents to file her federal


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 2 of 12
      income tax return and then to subsequently use the $3,264 tax refund to support

      Child and the household. Mother was eventually released from incarceration on

      April 24, 2018. Upon release, Mother went to live with Child and Adoptive

      Parents in their home. During this time, Mother “[bought] things for [Child]

      while [she] [was] in the home,” and attempted to establish a relationship with

      Child. Id. at 159-60. After approximately two months, Adoptive Parents kicked

      Mother out for personal reasons. Thereafter, Mother’s visits with Child were

      sporadic, and Father’s visits were very infrequent.


[4]   Sometime in July 2018, Mother filed a petition to establish Father’s paternity

      and child support. A DNA test proved that Father was, in fact, the biological

      father of Child. But before the trial court could conduct a hearing on Mother’s

      petition, Mother became incarcerated again on December 25, 2018. Because

      Mother could not appear for the hearing and did not notify the trial court of her

      absence, the petition was dismissed, and “no order establishing either paternity

      or child support was issued by the court.” Appealed Order p. 2.


[5]   During her second period of incarceration, Mother did not visit with Child, but

      did attempt to call Adoptive Parents “at [their] expense.” Tr. Vol. II p. 56.

      There is disputed evidence that Father communicated with or visited Child at

      Adoptive Parents’ home and that Father contributed financially to Child’s

      upbringing. However, it is undisputed that between the years 2017-19, Adoptive

      Parents moved approximately six times.




      Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 3 of 12
[6]   On January 14, 2019, Adoptive Parents filed a petition for adoption of Child,

      claiming abandonment by Mother and Father and, consequently, arguing that

      neither party’s consent was necessary for the adoption to proceed. Adoptive

      Parents attempted to serve Father with their petition, but service to Father was

      returned not served, “having been sent to an incorrect address.” Appealed

      Order p. 3. On January 24, 2019, Mother, from the Howard County Jail,

      objected to the adoption. On February 21, 2019, Mother was granted leave to

      appear at an initial hearing. On March 21, 2019, Father appeared with counsel

      and stated his intent to proceed with separate paternity proceedings. On August

      2, 2019, the trial court held another hearing, at which time the trial court

      “issued a temporary order for custody and parenting time, as well as appointing

      a Guardian ad Litem and Court Appointed Special Advocate to the case.” Id.

      Mother and Father were both granted supervised parenting time.


[7]   At the conclusion of the December 3, 2019, adoption hearing, the trial court

      took the matter under advisement. On December 6, 2019, the trial court issued

      an order denying the Adoptive Parents’ petition for adoption, awarding

      physical custody of Child to Father, and granting Mother supervised parenting

      time. In pertinent part, the order reads as follows:


              Much additional testimony was given with respect to the fitness of
              all four parties as parents. The record of the hearing indicates
              much additional information about their personal, family, and
              criminal histories. The court concedes that it considered the record
              in its entirety; it merely declines to offer further findings of fact or
              opinions of the characters of the parties at this time. The court
              does not find that [Mother] and [Father] abandoned [Child], or
              that either of them willfully or negligently failed to communicate

      Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 4 of 12
              with [Child], or provide care for [Child] when able to do so or
              required by law. Rather, the court finds that both parents were
              faced with obstruction from [Adoptive Parents] when they made
              any efforts for [Child’s] benefit. The court can find no case on
              point in which parties were attempting to adopt a child over the
              objection of a parent based on abandonment after having
              guaranteed the abandonment through their own willful actions. . .
              The court considers the three above stated points to be sufficient
              for its analysis that the evidence that consent is not required per
              statute is not clear and convincing.


      Id. at 6. Adoptive Parents now appeal.


                                   Discussion and Decision
[8]   Initially, we note that both Mother and Father have failed to file appellate

      briefs. “When the appellee does not file a brief, we apply a less stringent

      standard of review and may reverse the trial court when the appellant

      establishes prima facie error.” Geller v. Kinney, 980 N.E.2d 390, 398 (Ind. Ct.

      App. 2012). “‘Prima facie’ is defined as ‘at first sight, on first appearance, or on

      the face of it.” Id. (citing Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind.

      Ct. App. 2003)). “If the appellant is unable to meet the burden of prima facie

      error, however, we will affirm.” Geller, 980 N.E.2d at 398.


                                  I. Lack of Communication
[9]   First, Adoptive Parents argue that the trial court erred when it found that they

      had not proved by clear and convincing evidence that they could adopt Child

      without both Father’s and Mother’s consent due to a lack of significant

      communication.


      Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 5 of 12
[10]   Our standard of review for these types of cases is well established:


               When reviewing the trial court’s ruling in an adoption proceeding,
               we will not disturb that ruling unless the evidence leads to but one
               conclusion and the trial judge reached an opposite conclusion. In
               re Adoption of Subzda, 562 N.E.2d 745, 747 (Ind. Ct. App. 1990).
               We will not reweigh the evidence, but instead will examine the
               evidence most favorable to the trial court’s decision together with
               reasonable inferences drawn therefrom, to determine whether
               sufficient evidence exists to sustain the decision. Matter of Adoption
               of Marcum, 436 N.E.2d 102, 103 (Ind. Ct. App. 1982). We note
               that a petitioner for adoption without parental consent bears the
               burden of proving the statutory criteria for dispensing with such
               consent in Ind. Code § 31-19-9-8(a)(2) by clear, cogent and
               indubitable evidence. In re Adoption of Augustyniak, 505 N.E.2d
               868, 870 (Ind. Ct. App. 1987); Matter of Adoption of Ryan L., 435
               N.E.2d 624, 625 (Ind. Ct. App. 1982). If the evidence most
               favorable to the judgment clearly, cogently, and indubitably
               establishes one of the criteria for granting adoption without
               parental consent and, thereby, for the termination of parental
               rights without consent, we will affirm the judgment. In re Adoption
               of Childers, 441 N.E.2d 976, 978 (Ind. Ct. App. 1982). Finally, the
               decision of the trial court is presumed to be correct, and it is the
               appellant’s burden to overcome that presumption. Id.


       Rust v. Lawson, 714 N.E.2d 769, 771-72 (Ind. Ct. App. 1999).


[11]   Indiana Code section 31-19-9-8(a)(2) states that:


               (a) Consent to adoption, which may be required under section 1 of
               this chapter, is not required from any of the following:

                                                    ***

                        (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

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 6 of 12
                                (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 Mother and Father faced significant

       obstruction by Adoptive Parents when attempting to communicate with Child.

       Adoptive Parents disagree, arguing that both Mother and Father failed to

       communicate significantly with Child at any time since Child’s birth.


[13]   Adoptive Parents filed their petition for adoption on January 14, 2019. Thus,

       Adoptive Parents had to prove by clear and convincing evidence that both

       Mother and Father failed without justifiable cause to communicate significantly

       with Child when able to do so between January 14, 2018, and January 14,

       2019. And based on the record, we find that the trial court did not err by

       concluding that Adoptive Parents did not clear this threshold.


[14]   To start, during Mother’s first incarceration, she coordinated with the Adoptive

       Parents to sign a Temporary Custody Agreement, pursuant to which the

       Adoptive Parents would care for Child in Mother’s absence. The Adoptive

       Parents argue that though “there was conflicting testimony over the scope and

       intention of this handwritten agreement, there is no testimony that Mother at

       any time requested to take [Child] into her possession and custody.”

       Appellant’s Br. p. 20. This logic is, for lack of a better term, baffling to us. The

       Temporary Custody Agreement contains a clause that explicitly states that the

       guardianship will expire on “3/17/2018 or my release date from prison,

       whichever is earlier[.]” Appealed Order p. 4. Thus, Mother did not abandon
       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 7 of 12
       Child by signing the Agreement—indeed, she was trying to ensure that Child

       was cared for while Mother was unable to do so herself. We would be remiss to

       punish Mother for entrusting Child to responsible guardians on a temporary

       basis. The fact that the Adoptive Parents seek to use the Temporary Custody

       Agreement as evidence against Mother seems duplicitous and, quite frankly,

       perfidious.


[15]   Between Mother’s release on April 24, 2018, and January 14, 2019, there were

       periods during which Mother communicated with and financially provided for

       Child. After her initial release from incarceration, Mother went to live with

       Adoptive Parents at their request. It is undisputed that Mother bought things for

       Child, attempted to establish a relationship with him, and even allowed

       Adoptive Parents to use her tax refund to provide for Child. In July 2018,

       Mother instituted paternity and child support proceedings against Father so that

       she would have more money for Child’s support. Further, after Mother was

       reincarcerated on December 25, 2018, she frequently called Adoptive Parents to

       communicate with Child.


[16]   Those concerted efforts, in effect, interrupted the one-year lull of significant

       communication that the Adoptive Parents had to prove to adopt Child without

       Mother’s consent. Our Supreme Court has held that “a single significant

       communication within one year is sufficient to preserve a non-custodial parent’s

       right to consent to the adoption.” E.B.F. v. D.F., 93 N.E.3d 759, 763 (Ind.

       2018). And here, no matter how sporadic her communications were, Mother

       did enough to require Adoptive Parents to obtain her consent before adopting.

       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 8 of 12
       In other words, the trial court did not err in its assessment by denying Adoptive

       Parents’ petition for adoption on this basis.


                                        II. Fitness of Parents
[17]   Next, Adoptive Parents argue that the trial court erred by finding that Adoptive

       Parents had not proved by clear and convincing evidence that consent was not

       required because Mother and Father were not fit to be Child’s guardians and

       because adoption was in Child’s best interests. Once again, “we will not disturb

       the trial court’s decision in an adoption proceeding unless the evidence leads

       only to a conclusion opposite that reached by the trial court.” In re Adoption of

       J.T.A., 988 N.E.2d 1250, 1252 (Ind. Ct. App. 2013). It is our job to reexamine

       the evidence most favorable to the trial court’s decision, “together with

       reasonable inferences drawn therefrom, to determine whether sufficient

       evidence exists to sustain the decision.” Id.


[18]   Indiana Code section 31-19-9-8(a)(11) states that:


               (a) Consent to adoption, which may be required under section 1 of
               this chapter, is not required from any of the following:

                                                         ***

                        (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 interest 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 20A-AD-364 | July 28, 2020    Page 9 of 12
[19]   Here, while the trial court did not make an explicit finding as to Mother and/or

       Father’s fitness or to Child’s best interests, we give considerable deference to

       trial courts for family law matters because they are in the best position to

       analyze facts, determine witness credibility, and “‘get a feel for the family

       dynamics[.]’” E.B.F., 93 N.E.3d at 762 (quoting MacLafferty v. MacLafferty, 829

       N.E.2d 938, 940 (Ind. 2005)). And here, the trial court clearly believed that

       neither Mother nor Father were unfit and that it was not in Child’s best interests

       to be adopted without their consent.


[20]   Specifically, the trial court faults Adoptive Parents for “obstruct[ing]” both

       biological parents in their attempts to communicate with Child. Appealed

       Order p. 6. And the record shows that it was not erroneous for the trial court to

       reach that decision. Not only did Adoptive Parents agree to temporarily care for

       Child while Mother was incarcerated—only to later use that as evidence that

       Mother purportedly abandoned Child—but Adoptive Parents also moved

       roughly six times over a three-year span, making it extremely challenging for

       Mother and Father to locate them and Child. The trial court took note of this

       when admonishing Adoptive Parents for failing to have a constant address that

       Father could contact during the adoption proceedings.


[21]   Further, the trial court established supervised parenting time for both Mother

       and Father and appointed a Guardian ad Litem and a CASA. It is apparent that

       despite the paucity of early intervention and communication by Father, the trial

       court thought it fit to grant Father parenting time under the court’s watch and to


       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 10 of 12
       award him physical custody. Once again, we find nothing errant or incorrect

       about the trial court’s decisions.


[22]   At the crux of the trial court’s conclusion is the fact that Mother and Father did

       not abandon Child. While the trial court “merely decline[d] to offer further

       findings of fact or opinions of the characters of the parties at this time,” id., it is

       unambiguous that the trial court saw both Mother and Father as fit to care for

       Child. Though the record is comprised of significant evidence demonstrating

       that Adoptive Parents would be suitable guardians, that is not the question

       before us. Rather, we are tasked with determining whether the trial court erred

       when it ruled against Adoptive Parents on their claim that the biological parents

       were unfit. And quite honestly, Adoptive Parents proffer no significant evidence

       proving that it would not be in Child’s best interests for his biological parents to

       remain as primary caregivers rather than for Child to be adopted without

       Mother and Father’s consent.


[23]   We reiterate that these are fact-sensitive matters that require diligence and an

       eye towards the best interests of the Child. Here, we find that the trial court did

       not err by finding that Adoptive Parents did not prove by clear and convincing

       evidence that Mother and Father were not fit to be Child’s guardians and that

       adoption was in Child’s best interests. There is no doubt that Adoptive Parents

       love and wish to care for Child on a permanent basis. Yet, Indiana law requires

       the biological parents’ consent or some alternative showing that consent was

       not necessary. And here, neither is present.



       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 11 of 12
[24]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-AD-364 | July 28, 2020   Page 12 of 12
