MEMORANDUM DECISION
                                                                            Nov 17 2015, 8:29 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew C. Maples                                       Christine Riesner Bond
Hocker & Associates, LLC                                McNeely Stephenson
Indianapolis, Indiana                                   Shelbyville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of C.F.,                             November 17, 2015
                                                        Court of Appeals Case No.
J.F.,                                                   49A04-1505-AD-408
Appellant-Respondent,                                   Appeal from the Marion Superior
                                                        Court
        v.                                              The Honorable Evan D.
                                                        Goodman, Judge
A.R.,                                                   Trial Court Cause No.
Appellee-Petitioner.                                    49D08-1405-AD-15328




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 1 of 18
                                       Statement of the Case
[1]   J.F. (“Father”) appeals the trial court’s order granting A.R.’s petition to adopt

      Father’s minor child C.F. (“Child”). Father raises two dispositive issues for our

      review:

              1.      Whether the trial court erred when it concluded that
                      Father knowingly had failed to provide for the care and
                      support of Child as required by judicial decree for a period
                      of at least one year when he was able to do so.

              2.      Whether the trial court erred when it concluded that the
                      adoption is in Child’s best interests.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and L.R. (“Mother”) were married, and Child was born in January

      2011. When Father and Mother divorced on January 22, 2013, the trial court

      gave Mother custody of Child and ordered Father to pay child support of $250

      per week. Father was employed and earning approximately $40,000 per year at

      that time. In early 2013, Father quit that job without first having secured other

      employment. Thereafter, Father worked intermittently in sales positions and

      delivering pizzas. The trial court explained the remaining facts and procedural

      history as follows:

              7. [Sometime in 2013,] Father was arrested and convicted of an
              OWI. He was incarcerated from January 2014 through early
              April 2014 due to that conviction.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 2 of 18
        8. Even after his incarceration, [Father] admitted to continuing
        to drink alcoholic beverages. He is not currently attending AA
        meetings. He is not currently attending any other counseling for
        substance abuse.

                                               ***

        12. [Father] is currently dependent on his current significant
        other for housing as well as all living expenses. She has also paid
        for them to go on various vacations throughout 2013 and 2014,
        some of which occurred during the traditional work week.

        13. [Father] did not pay Mother any child support throughout
        2013. [Father] did not provide any other support to Mother
        during 2013 or 2014 before the filing of the Petition for Adoption,
        in any form of clothes, toys, diapers, Christmas presents,
        birthday gifts, or gift cards.

        14. Mother testified that when she asked [Father] for
        information about his employer, he refused and stated he did not
        want her to garnish his wages for child support.

        15. During 2013, [Father] had parenting time provision [sic]
        pursuant to the divorce decree that was unsupervised, yet failed
        to exercise it.

        16. While he was incarcerated, [Father] sent three letters to the
        minor child, one (1) of which was received by Mother and read
        to the minor child due to the child’s young age.

        17. In April of 2014, [Father] contacted Mother to see the minor
        child a couple of weeks after he was released from jail. [Father]
        requested to see the child that day. Since it was a weekday,
        Mother told him he could not see him that day. During that
        same conversation, Mother also informed [Father] of her new
        husband’s intent to adopt the minor child and requested his
        consent.

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        18. [Father] then retained counsel and filed several motions
        regarding parenting time and child support in Marion County
        Superior Court Number 5. Mother filed a motion request[ing]
        those matters be stayed due to the pending adoption proceedings.
        Said motion was denied.

        19. Mother and [Father] then agreed, through the Court-ordered
        Access Program, for [Father] to have supervised visits every
        other weekend one hour on Saturday and one hour on Sunday.
        Prior to each visitation weekend, [Father] was to submit to drug
        and alcohol testing.

        20. Out of the 24 possible visits [Father] could have exercised in
        2014 prior to the hearing on this adoption, [Father] only
        exercised 7. Each visit coincided in time with when a hearing
        was scheduled in either the Marion County Probate Court or
        Marion County Superior Court Number 5.

        21. Mother testified that [A.R.] is the only father known to the
        minor child, and that [sic] the minor child does not remember
        [Father] due to his young age at the time of the dissolution.

        22. [Father] paid a total of $160.00 to Mother in child support
        payments in 2014, all of which occurred after the petition for
        adoption was filed in this court. As of the date of the adoption
        hearing, [Father] had a child support arrearage of $18,600.00.

        23. In May of 2014, [Father] withdrew $6,000 from his 401(k)
        account from a prior employer. None of that money was given
        to Mother in [the] form of child support.

        24. The petition for adoption was filed on May 7, 2014[,] by
        [A.R.] [A.R.] and Mother were married on February 14, 2014[,]
        and have resided together with the minor child since January 31,
        2013.



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          25. [A.R.] and the minor child have a close relationship. Every
          morning when the child wakes up, [A.R.] and child make
          breakfast together. He helps the child get ready for daycare and
          oftentimes takes and picks up the child from daycare. He helps
          the child practice soccer. He attends all of the child’s doctors’
          appointments. He discusses the child’s development and status
          with his teachers. [A.R.]’s family is actively involved in the
          child’s life.

          26. Mother has consented to this adoption, and said consent is
          properly filed with the Court.


Appellee’s App. at 7-8.1 After A.R. filed his adoption petition, Father filed a

motion contesting the adoption. Following a final hearing on the adoption

petition on December 23, 2014, the trial court granted A.R.’s adoption petition.

In its order, the trial court concluded in relevant part as follows:

          Consent of the Natural Father

          32. Indiana Code [Section] 31-19-9-8(a)(2) is the controlling
          statute in this case as to whether [Father’s] consent is required for
          [the] petition to adopt the minor child.

          33. I.C. [§] 31-19-9-8(a)(2) states:

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

                                               ***




1
    Appellant’s appendix is not paginated.


Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 5 of 18
                (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.

        34. The provisions of Indiana Code [Section] 31-19-9-8 are
        written in [the] disjunctive providing independent grounds for
        dispensing with parental consent. In re the Adoption of M.L., 973
        N.E.2d 1216 (Ind. Ct. App. 2012).

        35. In this case, there is sufficient evidence to determine that
        [Father’s] consent is not required by applying either subsection
        (2)(A) or subsection (2)(B).

        Communication

        36. With regard to subsection (A) supra, the evidence presented
        is sufficient to conclude that [Father] failed to have significant
        contact with the minor child for one (1) year prior to the petition
        for adoption being filed.

        37. [Father] lived in the greater Indianapolis area from the date
        of the divorce decree, January 22, 2013, until the filing of the
        petition for adoption in May of 2014.

        38. During that seventeen (17)[-]month time period, [Father]
        only saw the minor child five (5) times, all of which occurred
        during the first couple of months in 2013. The evidence
        presented was that all of those visits were prompted by Mother,
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 6 of 18
        at which time she coordinated the visits and provided [Father]
        with all the supplies he would need to see his child, including a
        pack and play, membership to the Children’s Museum, diapers,
        and even food. Once Mother ceased facilitating the visits, the
        visits stopped.

        39. The last time [Father] saw the minor child prior to the
        petition for adoption being filed was in April of 2013. He visited
        Mother’s home for one (1) hour. During that time period,
        Mother discovered Father smelled of alcohol. He spilled a glass
        of water.

        40. During the remainder of 2013, [Father] did not see his minor
        child despite the fact that he lived in central Indiana and had the
        ability to do so. During that time period, he had an unsupervised
        parenting time schedule through the divorce, yet failed to
        exercise any parenting time.

        41. From January 2014 through the beginning of April of 2014,
        [Father] was incarcerated after being convicted of an OWI.
        [Father’s] argument that he was unable to see his child due to his
        incarceration, and therefore this time period should not be
        considered, is unfounded. [Father’s] incarceration was a result of
        his own actions, and therefore any lack of communication during
        that time should be considered for purposes of determining
        consent under the statute. In re the Adoption of M.S., 10 N.E.3d
        1272 (Ind. Ct. App. 2014).

        42. After the petition for adoption was filed, [Father], through
        counsel, filed several motions in the divorce court resulting in
        him participating in supervised parenting time during the
        pendency of this adoption action. Any actions made after the
        filing of a petition for adoption are irrelevant to a determination
        of whether the parent failed to significantly communicate with
        the child for any one-year period. In re the Adoption of S.W., 979
        N.E.2d 633 (Ind. Ct. App. 2012).


Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 7 of 18
        43. The purpose of the statute is to promote and maintain
        communication between the non-custodial parent and the child.
        It is not a means for a parent to maintain just enough contact to
        thwart a potential adoption. In re the Adoption of S.W., 979
        N.E.2d 633 (Ind. Ct. App. 2012). In order for consent to not be
        required, petitioner does not have to prove that no
        communication occurred, just that no significant communication
        occurred. In re the Adoption of S.W., 979 N.E.2d 633 (Ind. Ct.
        App. 2012).

        44. The evidence in this case is sufficient to conclude that
        [Father] failed to have significant contact with the minor child for
        a one[-]year period of time so that his consent is not required for
        this adoption.

        Support

        45. [Father’s] consent can also be dispensed [with] in accordance
        with section (2)(B) of the statute.

        46. The evidence presented showed that at the time of the
        parties’ divorce, [Father] was making $40,000 per year. The
        divorce decree ordered [Father] to pay $250 per week in child
        support.

        4[7]. [Father] did not pay any child support during the calendar
        year 2013. He testified that he had several jobs that he
        voluntarily quit without having a new job secured. Mother
        testified that when she asked for the information regarding one of
        his employers, he refused to give it to her because she might try
        to garnish his wages for child support.

        48. From January 2014 through the beginning of April of 2014,
        [Father] was incarcerated after being convicted of an OWI.
        [Father]’s argument that he was unable to pay child support due
        to his incarceration, and therefore this time period should not be
        considered, is unfounded. [Father]’s incarceration was a result of
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        his own actions, and therefore any lack of payment of support
        during that time should be considered for purposes of
        determining consent under the statute. In re Adoption of T.L., 4
        N.E.3d 658 (Ind. 2014).

        49. He has paid Mother a total of $160.00 from January 2013
        until the date of the hearing on December 23, 2014, all of which
        was paid after the filing of the petition for adoption. He has not
        provided any other support to the minor child during that time in
        the form of clothes, toys, gift cards, or Christmas presents.
        [Father]’s child support arrearage as of the date of the hearing
        was $18,600.00.

        50. In May of 2014, he withdrew $6,000.00 from his 401(k) from
        his previous employment. None of that money was given to
        Mother in the form of child support.

        51. [Father] has been living with his girlfriend since August of
        2013. She has paid for them to go on various vacations
        throughout 2013 and 2014, some of which occurred during the
        traditional work week.

        52. This constitutes sufficient evidence that [Father] had the
        ability to obtain employment and pay child support, but
        voluntarily failed to do so. See In re the Adoption of J.L.J., 4
        N.E.3d 1189 (Ind. Ct. App. 2014).

        53. The monies paid by [Father] since the filing of the petition
        for adoption amount to “token payments.” The Indiana Court of
        Appeals has held that to allow token payments to thwart the
        ability of a willing parent to adopt “would permit an unworthy
        parent, in complete disregard of his obligation to his child, to
        prevent an adoption which might be in the best interest of the
        child . . . such strict construction would lead to absurd
        consequences and make the statute meaningless and
        ineffective.[”] In re the Adoption of M.S., 10 N.E.3d 1272 (Ind. Ct.
        App. 2014).
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 9 of 18
        Best Interest of the Child

        54. There is sufficient evidence to support a finding that the
        granting of this adoption is in the best interest of the minor child.

        55. [A.R.] has met the statutory requirements necessary for the
        granting of this adoption.

        56. [A.R.] has been the only father the minor child has known
        for the past two (2) years. [A.R.] and the minor child have an
        established bond, and [A.R.] is greatly involved in the child’s
        day-to-day activities including soccer, school, cooking, and
        shopping. [A.R.] has financially supported the child and
        provided health insurance for the child for that period of time as
        well.

        57. [A.R.]’s family is equally bonded to the minor child acting as
        grandparents and aunts and uncles.

        58. [Father] and Mother were divorced when the child was just 1
        1/2 years old. Since the filing of the petition for adoption,
        [Father] has seen the minor child for a total of 7 hours. The
        minor child does not know [Father], and there is no established
        bond between [Father] and the minor child.

        59. [Father] has not established that he has the ability to provide
        a suitable environment for the child. He was incarcerated for a
        felony OWI, which was later reduced to a misdemeanor.
        Despite that, he continues to drink alcoholic beverages and is not
        attending AA or any other substance abuse counseling.

        60. [Father] is not currently employed and has been employed
        sporadically since the dissolution due to his voluntarily leaving
        positions without new positions becoming available.



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        61. [Father] is currently dependent on his current significant
        other.

        62. Despite agreeing to supervised visitation, [Father] has failed
        to attend the majority of the possible visits during the pendency
        of this adoption action.

        63. [Father] made no effort to communicate with the child or
        financially support the child until after he learned of petitioner’s
        intention to file this step-parent adoption action. It has now been
        a total of two (2) years of insignificant contact.


Appellee’s App. at 9-13. Thus, the trial court concluded that Father had not

“seen, supported or communicated with [Child] for over a one (1)[-] year

period” and Father’s consent was not required under either prong of Indiana

Code Section 31-19-9-8(a)(2). Id. at 13. The trial court also concluded that

adoption was in Child’s best interests, and the court granted A.R.’s adoption

petition. This appeal ensued.


                              Discussion and Decision
                                      Standard of Review

        “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.” Rust v. Lawson, 714 N.E.2d 769, 771 (Ind.
        Ct. App. 1999). We presume the trial court’s decision is correct,
        and we consider the evidence in the light most favorable to the
        decision. Id. at 771-72.

        When, as in this case, the trial court has made findings of fact
        and conclusions of law, we apply a two-tiered standard of review:

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              “we must first determine whether the evidence supports the
              findings and second, whether the findings support the judgment.”
              [White v. Silbernagel (]In re Adoption of T.W., 859 N.E.2d 1215,
              1217 (Ind. Ct. App. 2006); see also Ind. Trial Rule 52(A)
              (providing that where the trial court has made findings of fact
              and conclusions of law, “the court on appeal shall not set aside
              the findings or judgment unless clearly erroneous, and due regard
              shall be given to the opportunity of the trial court to judge the
              credibility of the witnesses.”). 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.” [In re ]T.W., 859 N.E.2d
              at 1217.


      In re T.L., 4 N.E.3d at 662.


                                Issue One: Care and Support of Child

[4]   Father first contends that the trial court erred when it found that he had failed

      to provide for the care and support of Child for one year when able to do so.

      Indiana Code Section 31-19-9-8(a)(2) provides that consent to adoption is not

      required from a parent of a child in the custody of another person if for a period

      of at least one 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.


      The burden to prove these statutory criteria by clear and convincing evidence

      rests squarely upon the petitioner seeking to adopt. Id.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 12 of 18
[5]   Here, the trial court found that Father’s consent was not required under either

      Indiana Code Section 31-19-9-8(a)(2)(A) or -8(a)(2)(B). Because the statute is

      written in the disjunctive, however, we need only address Father’s contention

      that the trial court erred when it found that he had knowingly failed to provide

      for the care and support of Child when able to do so as required by the

      dissolution decree.


[6]   The time period relevant to a determination under Indiana Code Section 31-19-

      9-8(a)(2)(B) is not limited to either the year preceding the hearing or the year

      preceding the petition for adoption but, rather, is any year in which the parent

      had an obligation and the ability to provide support, but failed to do so. R.S.P.

      v. S.S. (In re Adoption of J.T.A.), 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013),

      trans. denied. Further, in In re M.S., 10 N.E.3d at 1280, we observed as follows:


              “A petitioner for adoption must show that the non-custodial
              parent had the ability to make the payments which he failed to
              make. This ability cannot be adequately shown by proof of
              income standing alone. To determine that ability, it is necessary
              to consider the totality of the circumstances. In addition to
              income, it is necessary to consider whether that income is steady
              or sporadic and what the non-custodial parent’s necessary and
              reasonable expenses were during the period in question.”


      (Quoting Bruick v. Augustyniak (In re Adoption of Augustyniak), 508 N.E.2d 1307,

      1308 (Ind. Ct. App. 1987), trans. denied).


[7]   Father’s child support obligation began on January 22, 2013, the date of the

      dissolution decree. Father does not challenge the trial court’s finding that he


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 13 of 18
      “did not pay any child support during the calendar year 2013.” Appellee’s

      App. at 11. And Father concedes that he did not pay any child support in 2014

      until April 30. Thus, Father did not pay child support for more than one year

      beginning January 22, 2013. But Father maintains that, after the divorce, he

      “fell on hard times financially” because he was unable “to find stable

      employment” and was incarcerated for approximately three months in early

      2014. Appellant’s Br. at 8. Father asserts that he was not able to pay child

      support during that time and the trial court erred when it found that he

      knowingly failed to support Child.2


[8]   Father’s contention amounts to a request that we reweigh the evidence, which

      we will not do. Father does not contest the trial court’s findings that he: has

      had periods of unemployment solely because he voluntarily quit several jobs

      without first securing other employment; moved in with his girlfriend in August

      2013 and is dependent on her for housing and living expenses; and withdrew

      $6,000 from a 401(k) account in May 2014, but used none of that money for

      child support. Father has not demonstrated that he was involuntarily

      unemployed at any time from January 22, 2013, until his incarceration in

      January 2014. And given that he withdrew $6,000 from his 401(k) account in

      May 2014, Father has not demonstrated that he could not have paid child

      support during periods of unemployment or during his incarceration. See, e.g.,




      2
        We note that Father does not direct us to anything in the record showing that he moved the dissolution
      court to modify his child support obligation at any time.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015         Page 14 of 18
      In re T.L., 4 N.E.3d at 663 (adopting the “non-imputation” approach to

      determine the child support obligation of incarcerated parents which requires

      that child support orders reflect the “real financial capacity of a jailed parent.”).

      The trial court did not err when it concluded that Father knowingly failed to

      pay child support for one year and that Father’s consent to the adoption was

      unnecessary.


                                  Issue Two: Best Interests of Child

[9]   Father next contends that the trial court erred when it concluded that adoption

      is in Child’s best interests. The primary concern in every adoption proceeding

      is the best interests of the child. In re M.S., 10 N.E.3d at 1281. Even if, as here,

      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. N.R. v. K.G. (In re Adoption of O.R.), 16 N.E.3d 965, 974 (Ind. 2014).


              The adoption statute does not provide guidance for which factors
              to consider when determining the best interests of a child in an
              adoption proceeding, but we have noted that there are strong
              similarities between the adoption statute and the termination of
              parental rights statute in this respect. See In re [M.L.], 973 N.E.2d
              [at] 1224 . . . (holding that the adoption statutes and the
              termination statutes provide similar balances between parental
              rights and the best interests of the children; also holding that
              termination cases provide “useful guidance as to what makes a
              parent ‘unfit’”). In termination cases, we have held that the trial
              court is required to look to the totality of the evidence to
              determine the best interests of a child. In re I.A., 903 N.E.2d 146,
              155 (Ind. Ct. App. 2009). Relevant factors include, among
              others, 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
      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 15 of 18
               (Ind. Ct. App. 2013); the recommendations of the child’s case
               worker or guardian ad litem; 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).


       In re M.S., 10 N.E.3d at 1281-82.


[10]   Again, in concluding that adoption is in Child’s best interests, the trial court

       concluded as follows:


               56. [A.R.] has been the only father the minor child has known
               for the past two (2) years. [A.R.] and the minor child have an
               established bond, and Petitioner is greatly involved in the child’s
               day-to-day activities including soccer, school, cooking, and
               shopping. Petitioner has financially supported the child and
               provided health insurance for the child for that period of time as
               well.

               57. Petitioner’s family is equally bonded to the minor child
               acting as grandparents and aunts and uncles.

               58. [Father] and Mother were divorced when the child was just 1
               1/2 years old. Since the filing of the petition for adoption,
               [Father] has seen the minor child for a total of 7 hours. The
               minor child does not know [Father], and there is no established
               bond between [Father] and the minor child.


               59. [Father] has not established that he has the ability to provide
               a suitable environment for the child. He was incarcerated for a
               felony OWI, which was later reduced to a misdemeanor.
               Despite that, he continues to drink alcoholic beverages and is not
               attending AA or any other substance abuse counseling.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 16 of 18
               60. [Father] is not currently employed and has been employed
               sporadically since the dissolution due to his voluntarily leaving
               positions without new positions becoming available.

               61. [Father] is currently dependent on his current significant
               other.

               62. Despite agreeing to supervised visitation, [Father] has failed
               to attend the majority of the possible visits during the pendency
               of this adoption action.

               63. [Father] made no effort to communicate with the child or
               financially support the child until after he learned of petitioner’s
               intention to file this step-parent adoption action. It has now been
               a total of two (2) years of insignificant contact.

       Appellee’s App. at 12-13.


[11]   On appeal, Father asserts that his failure to maintain consistent visitation with

       Child after the divorce was due to the loss of his driver’s license and that he

       failed to pay child support because of his “financial hard times.” Appellant’s

       Br. at 9. Father points out that “he wrote his son letters” while he was

       incarcerated. Id. And Father maintains that the trial court should have given

       more weight to the report prepared by Michelle McGrotty, who supervised

       seven one-hour visitations between Father and Child from September 2014

       through November 2014. In particular, Father points out that McGrotty

       concluded that Father “continues to nurture a bond with his child, who climbs

       onto his lap at the start of every visit, remaining there until it’s time to play on

       the floor or go home.” Appellant’s App. at 20. But, again, Father’s contentions

       on appeal amount to a request that we reweigh the evidence, which we will not

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015   Page 17 of 18
       do. The trial court did not err when it concluded that adoption is in Child’s

       best interests.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




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