MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 24 2020, 9:34 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
Earl E. McCoy                                            Lori S. James
Adam C. Potts                                            Law Office of Lori S. James, P.C.
McCoy Law Office                                         Rensselaer, Indiana
Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                         June 24, 2020
M.H. (Minor Child):                                      Court of Appeals Case No.
                                                         19A-AD-1708
                                                         Interlocutory Appeal from the
K.S. and T.S.,                                           Newton Circuit Court
Appellants,                                              The Honorable Rex W. Kepner,
                                                         Special Judge
        v.
                                                         Trial Court Cause No.
                                                         56C01-1806-AD-1466
D.S.,
Appellee.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020                   Page 1 of 7
                                          Case Summary
[1]   K.S. (“Mother”) and T.S., Mother’s husband, bring this interlocutory appeal of

      the trial court order granting D.S.’s (“Father”) motion to contest the adoption

      of K.S.’s and D.S.’s biological child, M.H. (“Child”), by T.S. The sole issue on

      appeal is whether the trial court clearly erred when it granted Father’s motion.


[2]   We affirm.



                            Facts and Procedural History
[3]   Mother and Father are the biological parents of Child, who was born on July

      22, 2013. At the time of Child’s birth, Mother and Father lived together and

      were engaged to be married. Sometime in 2015, Mother and Father separated.

      Although there was no court order regarding child support or parenting time,

      Mother allowed Father to have parenting time with Child until April 2016, and

      Father paid some child support for Child up until that time. However, because

      Child returned from visiting Father with sunburn, a diaper rash, and some

      bruises, Mother believed Father was not “watch[ing Child] properly.” Tr. Vol.

      I at 64. Therefore, Mother and Father agreed through text messages that Father

      would take four parenting classes and Mother would allow Father to visit Child

      after Father completed each class. Father completed the first four-hour

      parenting class and had a visit with Child. However, Mother did not allow

      Father to visit with Child thereafter because Father told her he would not be

      taking the other three parenting classes because he could not afford them.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020   Page 2 of 7
[4]   The last time Father had parenting time with Child was in April of 2016,

      despite his repeated requests to Mother to allow him parenting time. On March

      1, 2018, Father filed a petition to establish paternity, custody, parenting time,

      and child support. On June 5, 2018, Mother and T.S. filed a Petition for Step-

      Parent Adoption. On June 19, 2018, in the paternity action, the parties filed an

      agreed order that Father is the biological father of Child, and the court

      approved and adopted that order. In the adoption action, Father filed a motion

      to contest adoption on July 5, 2018. On March 11, 2019, the court-appointed

      Guardian Ad Litem (“GAL”) filed a report in the adoption action in which she

      noted that “Father has attempted on numerous occasions to exercise parenting

      time but Mother has refused Father’s attempts” and/or failed to respond to

      those attempts “due to an Adoption proceeding pending.” 1 Appellee’s App. at

      22.


[5]   On May 13, 2019, the trial court held a hearing on Father’s motion to contest

      the adoption. At that hearing, Father and Mother testified and submitted into

      evidence copies of numerous text messages between Father and Mother as

      exhibits. That evidence showed that, from 2015 to the time of the hearing, (1)

      Father made many attempts to exercise parenting time with Child by asking

      Mother by text if he could visit with Child, speak with Child by telephone, give

      presents to Child, and obtain a picture of Child; (2) Father also unsuccessfully



      1
        The GAL report did not make a recommendation to the court regarding any of the pending motions
      because the GAL believed she could not “complete her investigation until the Court rules on the Step-Parent
      Adoptions.” Appellee’s App. at 23.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020                    Page 3 of 7
      tried to arrange parenting time through text messages to Child’s maternal

      grandmother, M.H. (“Grandmother”); and (3) Mother denied Father parenting

      time from April 2016 to the time of the hearing because Father had not

      completed three additional parenting classes.


[6]   On May 16, 2019, the trial court ruled that Father’s consent was required for

      the adoption. The trial court found that Father had not seen Child in three

      years only because Mother had “thwarted” Father’s multiple attempts to have

      parenting time with Child within that time period. Amended Appealed Order

      at 1. The trial court set a hearing on parenting time in the paternity action.

      Mother and T.S. filed a motion for interlocutory appeal of the May 16, 2019,

      decision in the adoption matter, and the trial court certified the interlocutory

      appeal on June 24, 2019. This Court accepted the interlocutory appeal on

      August 27, 2019, and this appeal ensued.



                                 Discussion and Decision
[7]   Mother and T.S. contend that the trial court erred when it ordered that Father’s

      consent was required for T.S.’s adoption of Child. Our Supreme Court has

      recently reiterated our standard of review in adoption cases:


              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.”
              MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005).
              Accordingly, when reviewing an adoption case, we presume that
      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020   Page 4 of 7
              the trial court’s decision is correct, and the appellant bears the
              burden of rebutting this presumption. In re Adoption of O.R., 16
              N.E.3d 965, 972–73 (Ind. 2014).


              The trial court’s findings and judgment will be set aside only if
              they are clearly erroneous. In re Paternity of K.I., 903 N.E.2d 453,
              457 (Ind. 2009). “A judgment is clearly erroneous when there is
              no evidence supporting the findings or the findings fail to support
              the judgment.” Id. We will not reweigh evidence or assess the
              credibility of witnesses. In re Adoption of O.R., 16 N.E.3d at 973.
              Rather, we examine the evidence in the light most favorable to
              the trial court’s decision. Id.


      E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018).


[8]   This case is governed by Indiana Code Section 31-19-9-8(a)(2), which provides

      that a biological parent’s consent to adoption is not required if, among other

      reasons, the noncustodial biological parent for at least one year: “(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.” Efforts of a custodial

      parent to “thwart communication between the non-custodial parent and [his]

      child are relevant to determining the non-custodial parent’s ability to

      communicate and should be weighted in the non-custodial parent’s favor.”

      E.B.F., 93 N.E.3d at 766. The party seeking to adopt bears the burden of

      proving by clear and convincing evidence that the noncustodial parent’s consent

      is not required. S.L. v. K.G. (“Matter of Adoption of E.M.L.”), 103 N.E.3d 1110,

      1116 (Ind. Ct. App. 2018), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020   Page 5 of 7
[9]    Here, the evidence supports the trial court’s finding that Father would have had

       contact with Child if not for Mother’s successful thwarting of all his attempts to

       facilitate parenting time. Testimony at the May 13, 2019, hearing, texts in both

       parties’ exhibits, and the GAL report all provide evidence that, from 2015 up to

       date of hearing, Father repeatedly asked Mother to allow him to visit Child,

       speak with Child by telephone, give presents to Child, and obtain a picture of

       Child, and Mother repeatedly ignored or refused those requests. The testimony

       and Father’s Exhibit 6 show that Father also tried to reach Mother through

       texts to Grandmother in order to obtain parenting time with Child. Father also

       stopped at Mother’s house on at least one occasion in 2017 to try to see Child.


[10]   Moreover, Mother’s own testimony shows she denied Father contact with

       Child since April of 2016 because he had agreed by text message that he would

       take four parenting classes, but he only took one. Mother admitted the

       parenting classes were not court-ordered but insisted Father had to complete all

       four classes in order to see Child. Ostensibly, Mother’s concern was that Father

       did not properly “watch” Child during his visits with her. Tr. Vol. I at 64. Yet,

       Mother testified that she would not have let Father have ten minutes of

       parenting time even if she were there to supervise the brief visit. The evidence

       supported the trial court finding that Father would have had contact with Child

       but for Mother thwarting that contact, and that finding supports the trial court’s

       conclusion that Father did not fail, “without justification,” to communicate

       with Child for at least one year. I.C. § 31-19-9-8(a)(2)(A).




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020   Page 6 of 7
[11]   Mother and T.S. also maintain that Father’s consent to the adoption of Child is

       not required because he failed to pay child support for at least one year.

       Although there is no court order that Father pay child support, there is a

       common law duty for noncustodial parents to do so when able. See, e.g., J.J. v.

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

       denied. However, the burden is on the person seeking to adopt to prove by clear

       and convincing evidence that the noncustodial parent not only failed to pay

       support but was able to do so. I.C. § 31-19-9-8(a)(2)(B); Matter of Adoption of

       E.M.L., 103 N.E.3d at 1116. Mother and T.S. submitted no evidence of

       Father’s ability to pay child support, and there is no such evidence in the

       record. That is, there is no evidence that Father failed to pay child support for

       at least one year “when able to do so.” I.C. § 31-19-9-8(a)(2)(B).


[12]   The trial court did not commit clear error when it held that Father’s consent is

       required for the adoption of Child.


[13]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1708 | June 24, 2020   Page 7 of 7
