MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be
                                                                                Apr 08 2019, 10:54 am
regarded as precedent or cited before any
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.




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Katherine N. Worman                                      Keith M. Wallace
Evansville, Indiana                                      Evansville, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of W.L.:                              April 8, 2019
                                                         Court of Appeals Case No.
                                                         18A-AD-2671
D.L.,
                                                         Appeal from the Vanderburgh
Appellant-Respondent,                                    Superior Court
                                                         The Honorable Brett J. Niemeier,
        v.
                                                         Judge
                                                         The Honorable Renee A.
C.C.,                                                    Ferguson, Magistrate
Appellee-Petitioner.                                     Trial Court Cause No.
                                                         82D04-1802-AD-31



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019                Page 1 of 10
                                          Case Summary
[1]   After D.L. (“Father”) failed to engage in any significant communication with

      his son W.L. (“Child”) for a period of more than one year, C.C. (“Stepfather”)

      petitioned to adopt Child. Stepfather argued, and the trial court concluded, that

      pursuant to Indiana Code section 31-19-9-8(a)(2), Father’s consent to the

      adoption was not required. After concluding Father’s consent was not

      required, the trial court granted Stepfather’s petition. Father argues on appeal

      that the trial court erred by concluding that his consent to the adoption was not

      required. Because we conclude otherwise, we affirm.



                            Facts and Procedural History
[2]   Child was born on March 4, 2011, to Father and K.C. (“Mother”). In

      November of 2016, Father exercised unsupervised overnight visitation with

      Child at paternal grandmother’s home. On Thanksgiving Day, Father was at

      paternal grandmother’s home with Child. At some point, a dispute arose

      between Father, paternal grandmother, and paternal stepgrandfather that

      resulted in Father striking paternal grandmother and paternal stepgrandfather,

      causing injury. Father has not visited Child since shortly after this incident.


[3]   On January 10, 2017, in relation to the events that took place on Thanksgiving,

      Father was charged with three felonies. Father was incarcerated on these

      charges from January 16, 2017 to June 19, 2017. Father did not communicate

      with Child while incarcerated. In February of 2017, while Father was


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 2 of 10
      incarcerated, Father’s parenting time was modified to supervised visits at the

      Parenting Time Center (“PTC”). Father did not immediately seek to reinstate

      visitation with Child upon his release from incarceration, but rather waited until

      January 5, 2018, to do so. Father’s visits with Child were never successfully

      reinstated.


[4]   Father also failed to support Child. The Vanderburgh County Clerk’s Office’s

      (the “Clerk’s”) records detailing child support payments paid by Father indicate

      that Father did not make any support payments between November 8, 2016 and

      April 11, 2018.


[5]   On February 16, 2018, Stepfather filed a verified petition for stepparent

      adoption of Child. In his petition, Stepfather alleged that Mother had

      consented to the adoption, Father’s consent was not required pursuant to

      Indiana Code section 31-19-9-8(a)(2), and Stepfather “has been a part of

      [Child’s] life, and [Child] looks to [him] for parental love, guidance, affection,

      support and care.” Appellant’s App. Vol. II p. 30. The trial court conducted a

      consent hearing at which Father testified on July 31, 2018, and September 26,

      2018. At the conclusion of the hearing, the trial court concluded that Father’s

      consent was not required pursuant to Indiana Code section 31-19-9-8(a)(2).

      The trial court subsequently determined that adoption by Stepfather was in

      Child’s best interests and granted Stepfather’s adoption petition.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 3 of 10
[6]   Father challenges the trial court’s order granting Stepfather’s adoption petition.


              When reviewing adoption proceedings, we presume that the trial
              court’s decision is correct, and the appellant bears the burden of
              rebutting this presumption. We generally give considerable
              deference to the trial court’s decision in family law matters,
              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. We will not disturb the trial
              court’s ruling unless the evidence leads to but one conclusion and
              the trial judge reached an opposite conclusion. The trial court’s
              findings and judgment will be set aside only if they are clearly
              erroneous. A judgment is clearly erroneous when there is no
              evidence supporting the findings or the findings fail to support
              the judgment. We will neither reweigh the evidence nor assess
              the credibility of witnesses, and we will examine only the
              evidence most favorable to the trial court’s decision.


      In re Adoption of O.R., 16 N.E.3d 965, 972–73 (Ind. 2014) (internal citations and

      quotations omitted).


[7]   Father claims that the trial court erred in finding that his consent to Stepfather’s

      adoption petition was not required. Under Indiana law, 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 (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.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 4 of 10
      Ind. Code § 31-19-9-8(a)(2). The petitioner bears the burden of proving by clear

      and convincing evidence that a noncustodial parent’s consent to a stepparent

      adoption is not required. See In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind.

      Ct. App. 2012).


                              I. Significant Communication
[8]   Father argues that he did not fail, without justifiable cause, to communicate

      significantly with Child. We disagree. The record reveals that Father has not

      visited or communicated significantly with Child since November of 2016.


[9]   Father’s last visit with Child occurred shortly after Thanksgiving of 2016.

      Father admits that he did not make any attempts to visit Child in December of

      2016. Father was arrested on January 16, 2017, and remained incarcerated

      until June 19, 2017. Father also did not visit with Child upon his release from

      incarceration. The record reveals that despite his claims that he contacted the

      PTC on the “soonest available date that [he] could” to reinstate visitation with

      Child, tr. p. 24, documentation submitted by the PTC indicates that Father did

      not contact the PTC until January 5, 2018, approximately seven months after

      he was released from incarceration. Father acknowledged that he was aware of

      the court order requiring him to contact the PTC before he could be awarded

      visitation with Child. Father was also reminded of such when he went to

      Stepfather’s residence and asked Stepfather about speaking to Mother in

      October of 2017.




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 5 of 10
[10]   In addition, Father does not dispute that he did not communicate with Child

       while incarcerated but argues that his lack of communication was justified and

       that he had, on a few occasions, unsuccessfully attempted to communicate with

       Child. Specifically, Father makes the unsupported, self-serving claims that he

       attempted to call Child from jail and wrote letters to Child while he was

       incarcerated. Father acknowledges, however, that he never spoke to Child or

       sent the letters he claims to have written. The trial court found that Father’s

       claims that he attempted to communicate with Child via telephone and mail

       were not credible, noting a lack of evidence beyond Father’s self-serving

       testimony of any such attempts. The trial court was in the best position to make

       such a determination. See Adoption of O.R., 16 N.E.3d at 973 (providing that the

       trial judge is in the best position to judge the facts and determine witness

       credibility). Father’s arguments on appeal essentially amount to an invitation

       to reweigh the evidence, which we will not do. See id.


[11]   Further, while Father acknowledges that he never communicated in person or

       over the phone with Child following his release from incarceration, he claims

       that he attempted to communicate with Child by leaving a T-Rex costume for

       Child at Mother’s home at some point around Christmas of 2017. Mother

       acknowledged that Father left a costume for Child but asserted that the costume

       in question had been given to Child as a birthday present “for a year earlier”

       than 2017. Tr. p. 74. While we agree that Father’s act of leaving a gift for

       Child evidences an attempt to communicate, we conclude that one such

       attempt over the course of fourteen months does not evidence significant


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 6 of 10
       communication.1 In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App.

       1999) (providing that parent’s “short, not-quite-monthly visits” with the child

       did not establish significant communication); see also Ind. Code § 31-19-9-8(b)

       (“If a parent has made only token efforts to support or to communicate with the

       child the court may declare the child abandoned by the parent.”). The trial

       court’s determination that Father failed to engage in significant communication

       with Child for a period of more than one year is not clearly erroneous.


                                 II. Provide Care and Support
[12]   Father also argues that the trial court erred in determining that he knowingly

       failed to provide for Child’s care and support for a period of at least one year.

       In support, Father points to an alleged lack of evidence indicating that he either

       was able or failed to pay after acquiring the ability to do so. In determining

       ability to pay child support, we have noted that ability to pay “cannot be

       adequately shown by proof of income standing alone” and that to determine

       ability, “it is necessary to consider the totality of the circumstances.” In re

       Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010). Likewise, a

       parent’s incarceration does not prove inability to pay. See In re Adoption of T.L.,

       4 N.E.3d 658, 663 (Ind. 2014) (holding that incarcerated parents are not

       “granted a full reprieve from their child support obligations” and noting that



       1
         Father testified that additional attempts to visit and communicate with Child following his incarceration
       would have been unsuccessful, but it appears the trial court did not lend much weight, if any, to this
       testimony.



       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019                     Page 7 of 10
       Indiana’s approach “preserves our tradition of responsibility by imposing at

       least a minimal level of support … without ignoring the realities of

       incarceration”).


[13]   The record demonstrates that Father failed to support Child for a period of

       more than one year as the Clerk’s records indicate that Father did not make any

       child support payments between November 8, 2016 and April 11, 2018. The

       question then becomes whether Father’s failure to pay should have been

       excused due to an inability to pay.


[14]   Father’s nonpayment began prior to both the events occurring on Thanksgiving

       of 2016, and Father’s resulting incarceration. The record is unclear as to why

       Father did not make support payments in late November, December, or early

       January. Father provided conflicting testimony regarding his employment

       status and his failure to communicate with and support Child during this time.

       Further, while it is undisputed that Father was incarcerated for approximately

       six months in mid-January through mid-June of 2017, Father was not relieved

       of his obligation to support Child during his incarceration, and the record does

       not establish that Father lacked the ability to provide some minimal level of

       support while incarcerated.


[15]   It is also undisputed that, following his release, Father eventually obtained

       employment and had some ability to support Child. For instance, Father

       acknowledged that he was employed in September of 2017 and indicated that

       he thought he might have made a child support payment at that time. The


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 8 of 10
       record, however, does not support Father’s recollection. Father also

       acknowledged that he had been continuously employed since January of 2018,

       sometimes working multiple jobs, but nonetheless failed to make child support

       payments until April 11. The record indicates that Father is an able-bodied

       individual who demonstrated the ability to obtain employment when he so

       desired. Thus, any periods of unemployment appear to be more a matter of

       choice rather than inability to obtain employment.


[16]   Stepfather argues that Father’s testimony during the consent hearing indicates

       that Father knew he was obligated to financially support Child and had at least

       some ability to provide support but failed to do so. We agree. Again, Father

       provided conflicting testimony regarding his employment status and his

       payment of support during periods when he claimed to be employed. The trial

       court determined that Father’s claim that he was unable to support Child was

       not credible. As we stated above, the trial court was in the best position to

       judge Father’s credibility, and we will not second guess the trial court’s

       credibility determination. See Adoption of O.R., 16 N.E.3d at 973. The trial

       court’s credibility determination coupled with Father’s conflicting testimony

       regarding his employment status and financial position supports the inference

       that Father was able to provide support for Child but knowingly failed to do so.

       The trial court’s determination in this regard is therefore not clearly erroneous.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019   Page 9 of 10
[17]   The trial court determined that Father failed to both communicate significantly

       with and provide care and support for Child. Neither of these determinations is

       clearly erroneous as both are supported by the record.2 As such, we conclude

       that the trial court did not err in determining that Father’s consent to the

       adoption was not required pursuant to Indiana Code section 31-19-9-8(a)(2).


[18]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       2
         We acknowledge that because Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive, “the
       existence of any one of the circumstances [contained therein] provides sufficient ground to dispense with
       consent.” Adoption of O.R., 16 N.E.3d at 973. We nevertheless review the trial court’s determination that
       both circumstances are present in the instant matter and conclude that the trial court’s determination as to
       both is supported by the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019                     Page 10 of 10
