                                                                                    FILED
                                                                               May 25 2018, 11:35 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Karen Celestino-Horseman                                 Alan D. Wilson
      Indianapolis, Indiana                                    Kokomo, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Matter of the                                 May 25, 2018
      Adoption of:                                             Court of Appeals Case No.
                                                               29A05-1710-AD-2250
      E.M.L., (Minor)                                          Appeal from the Hamilton
                                                               Superior Court
      S.L.,                                                    The Honorable Steven R. Nation,
      Appellant-Petitioner,                                    Judge
                                                               The Honorable William P.
              v.                                               Greenaway, Magistrate
                                                               Trial Court Cause No.
      K.G.,                                                    29D01-1608-AD-997
      Appellee-Respondent.



      Barnes, Judge.


                                             Case Summary
[1]   S.L. (“Father”) appeals the granting of the adoption petition filed by K.G.

      (“Stepfather”) for Father’s biological child, E.M.L. (“Child”). We reverse.



      Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                            Page 1 of 18
                                                      Issue
[2]   Father essentially raises two issues. We need only address the dispositive issue

      of whether the trial court properly concluded that Father’s consent to Child’s

      adoption by Stepfather was unnecessary.


                                                     Facts
[3]   Child was born in 2009 to T.G. (“Mother”). Father, Mother, and Child lived

      together for about a year before Mother and Child moved out. Father

      established paternity in December 2011 and was ordered to pay child support.

      Mother and Father were granted joint physical and legal custody of Child.

      From the time of Child’s birth, he spent approximately every other weekend

      with his paternal grandparents in Brown County. Father often visited with

      Child when he was at the grandparents’ house. Mother and Stepfather married

      in 2012.


[4]   Between December 2011 and December 2012, Father paid about $620 of the

      $3,380 he would have owed in child support. There is scant evidence in the

      record as to Father’s employment situation during that time frame; evidently,

      Father was employed as a machinist when his child support obligation was

      calculated but lost that job sometime thereafter, according to Mother.


[5]   In March 2012, Father was arrested for dealing in methamphetamine. On July

      1, 2013, Mother filed a motion to modify custody. On October 9, 2013, the

      trial court granted Mother sole legal and primary physical custody of Child.

      This order contained no requirement that Child’s visitation with Father be

      Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018   Page 2 of 18
      supervised or otherwise placed any limitations on his visitation or contact with

      Child.


[6]   Father was convicted of dealing in methamphetamine in March 2013 and was

      incarcerated through July 2014. Father sought and was granted a complete

      abatement of his child support obligation to $0 while he was incarcerated. 1

      Father frequently telephoned and spoke with Child when Child was visiting

      Father’s parents.


[7]   After being released from incarceration, Father resumed frequent visitation with

      Child through Child’s weekend visits with Father’s parents. However, on June

      9, 2015, Father filed a pro se “request” regarding parenting time and custody,

      alleging that Mother improperly refused to allow Child to continue visiting

      Father in Father’s own home and refused to allow Father any unsupervised

      visitation with Child. App. Vol. II p. 113. A hearing on the matter originally

      was scheduled for August 6, 2015, but was continued to November, and then

      December, and finally to February 10, 2016.


[8]   Before a hearing was held, Father was arrested in November 2015 on a

      domestic battery charge for slapping a girlfriend in front of two children. He

      remained in jail until he pled guilty in February 2016, at which time he was




      1
        The State, in a Title IV-D action, had first sought a total abatement of Father’s support obligation while he
      was incarcerated. This request was dismissed when Father failed to appear telephonically at a hearing while
      incarcerated. Father subsequently filed his own motion seeking a child support abatement, which was
      granted.

      Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                             Page 3 of 18
      released on probation. He moved in with his parents thereafter. Meanwhile,

      Father’s June 2015 petition regarding parenting time was dismissed after he

      failed to appear at the February 2016 hearing on the matter, apparently held

      while he was still incarcerated. However, the trial court ordered an abatement

      of Father’s support obligation while he was incarcerated.


[9]   Mother and paternal grandmother (“Grandmother”) frequently communicated

      by text message regarding Child and Father, Child’s visitation with paternal

      grandparents, and Child’s sports activities in Noblesville that Mother invited

      paternal grandparents but not Father to attend.2 After Mother learned of

      Father’s domestic violence arrest in November 2015, she texted Grandmother,

      “I don’t trust [Father’s] judgement [sic] with his girlfriends that he affiliates

      himself with, which is why I never thought it was a good idea for [Child] to be

      around [Father] and his girlfriend.” Ex. 8, p. 42. 3 On November 27, 2015,

      Mother texted Grandmother,


               I wanted to let you know that [Child] knows that [Father] is in
               jail. Unfortunately with what I’ve learned about [Father’s]
               behavior in the last year, that until [Father] and I talk to each
               other and get things resolved in court, that it’s in [Child’s] best
               interest for [Father] to not talk with [Child] over the phone. I
               know this is tough for you, but I’m trusting you to be sure that




      2
       Mother does not dispute the accuracy or veracity of these text messages as introduced into evidence. Also,
      Father never had a cell phone with which he could have texted Mother.
      3
        The page numbers with respect to the exhibits refers to the page of the entire exhibit volume, not the
      individual exhibit.

      Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                             Page 4 of 18
               there’s no communication going on between [Child] and
               [Father].


       Id. at 44. Grandmother responded to this text,


               I will respect your wishes, but I don’t know what you mean
               about his behavior in the last year? The issues he had was
               between him and that girl. Nothing to do with [Child] at all. He
               has not been on any drugs and was doing good, until the
               incidents with her. I think it would hurt [Child] more by not
               being able to talk to his Dad. . . . Please answer the phone when
               [Father] tries to call you . . . .


       Id.


[10]   On November 29, 2015, Grandmother texted Mother,


               I told [Child] last night when [Father] called, that he couldn’t talk
               to him, he buried his head in the couch with tears and asked
               why? I broke down and let him talk to him for a minute. I know
               I told you I wouldn’t but he broke my heart when I seen him. I
               am sorry. I told [Child] when he asked why, he would need to
               talk to you. Please don’t be to [sic] upset with me. . . .


       Id. at 45. Mother responded, “I’m not upset with you, I’m just really

       disappointed with [Father].” Id.


[11]   On Christmas Day 2015, Grandmother texted Mother, “[Paternal grandfather]

       will be picking up [Child] today. Can you please find it in your heart to let

       [Child] talk to his Daddy today?” Id. at 48. Mother responded,


               [Child] can not [sic] talk to [Father]. I’m raising [Child] to be
               responsible for his own actions and respectful of women and
       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018      Page 5 of 18
               [Father] is supposed to be a positive role model with this for
               [Child] and doesn’t demonstrate that for him, therefore [Father]
               doesn’t need to be talking with [Child] until [Father] gets the help
               that he needs. We know that this is not a one time incident and
               that this has been a reoccurring pattern for a while with [Father].


       Id.


[12]   On Child’s birthday, January 17, 2016, Grandmother texted Mother asking if

       Father could call and wish Child a happy birthday. Mother responded that he

       could do so. Grandmother then texted, “I just talked to him before you texted

       back. He said he tried calling several times today. I hope he tries again . . . .”

       Id. at 50. Fifteen minutes later Mother texted, “We just got off the phone with

       him.” Id. At trial, Mother initially testified that Father did not call Child on his

       birthday in 2016, but admitted after seeing these text messages that Father must

       have done so.


[13]   On February 12, 2016, Grandmother texted Mother that Father had just been

       released from jail and was living with paternal grandparents. Mother replied,


               I know that [Father] has been released and in order for me to
               ensure [Child’s] safety and stability, [Child] will not be able to
               visit with you guys down there for a while. You and [paternal
               grandfather] are more than welcome to visit [Child] up here [in
               Noblesville]. I’m sure you’re aware of [Father] requesting an
               appearance in court with us over parenting time which we
               appeared for so he doesn’t have any rights to parenting time for
               [Child]. Please understand that this isn’t a grandparent issue, but
               a [Father] issue.




       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018     Page 6 of 18
       Id. at 52. Despite what Mother stated in this text, there never was a court order

       entered restricting Father’s parenting time.


[14]   On March 4, 2016, Grandmother texted Mother,


               I wish you would reconsider and let him [Child] come home with
               us. His second family misses him terribly. I know that you and
               [Father] are having trouble communicating, and he hangs up,
               [Father] and I have talked about this extensively. His feelings are
               you can not [sic] talk to him without talking down to him in a
               demeaning manner. . . . Not sure if you know this, [Father] will
               be having surgery on the 14th for a double hernia. He has been
               suffering through this for many months. He will be glad to get it
               taken care of so he can get back to work.


       Id. at 55. Mother responded, “I need you to understand that at this point I’m

       not okay with [Father] talking to or seeing [Child], however I’m fine with you

       talking to him and visiting him in Noblesville.” Id.


[15]   On March 14, 2016, Grandmother texted Mother, “Would you let [Child] call

       [Father] tonight? He is in recovery after a pretty painful surgery.” Id. at 57.

       Mother responded,


               [Child] has never asked me if he can call [Father], so there’s
               absolutely no reason for [Child] to call him. Please stop asking
               me if [Child] can talk to [Father], I have been very direct with
               you about why [Child] is not to have any contact with [Father]
               and I’m going to tell you for the last time. [Father] is NOT a
               good role model for [Child] and that [Father] has a lot of areas in
               his life that he needs to improve on before being coming in
               contact with children. If you want to talk to [Child], feel free to
               call him while [Father] is not around.

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018    Page 7 of 18
       Id. at 57-58.


[16]   On March 29, 2016, Grandmother texted Mother that Father had moved into

       his own place and asked if Child could visit and stating that Father “won’t see

       or talk to him per your request.” Id. at 58. Still, Child did not resume visitation

       with paternal grandparents, although they continued attending sports activities

       in Noblesville; Father never attended these events. On June 28, 2016, Mother

       explicitly informed Grandmother, “I don’t think it’s a good idea for [Child] to

       visit you guys down there . . . .” Id. at 63.


[17]   On August 18, 2016, Stepfather filed a petition to adopt Child, which Father

       contested. During the year prior to the filing of the adoption petition, Father

       paid $3,189.74 in child support toward his total obligation of $3,380. All but

       $222.00 of that amount was from tax intercepts. In the year prior to that, from

       August 2014 to August 2015, Father regularly paid weekly child support. As

       mentioned in one of Grandmother’s texts above, he had a severe hernia in the

       summer of 2015 but was unable to have it operated on until March 2016 due to

       lack of insurance and he had an extended recovery period thereafter; Mother

       does not dispute that Father had a hernia and surgery to repair it. Father

       claimed his hernia and post-surgery recovery impacted his ability to work. In

       June 2016, Father began working steadily as a cook and began having child

       support regularly withdrawn from his paycheck beginning in August 2016.


[18]   The trial court held a hearing on July 26, 2017 to address whether Father’s

       consent to the adoption was required, at which Father appeared and


       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018   Page 8 of 18
       participated. On August 18, 2017, the trial court entered an order with findings

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

       The court found that Father had failed to support Child during three separate

       periods: from December 2011 to December 2012, during his incarceration from

       January 2013 to August 2014, and from August 2015 to August 2016. The

       court also found that Father had failed to significantly communicate with Child

       in the year preceding the filing of the adoption petition.


[19]   On September 6, 2017, the trial court held a final hearing to address whether

       Child’s adoption by Stepfather would be in Child’s best interests. Father and

       his attorney appeared at the hearing. At the outset, counsel for Stepfather

       moved to exclude Father from the courtroom. Father’s attorney objected. The

       trial court overruled the objection, based on its order of August 18, 2017, and

       ordered Father and his attorney to leave the courtroom. After hearing

       testimony from Stepfather and Mother, the trial court granted the adoption

       petition. Father now appeals.


                                                    Analysis
[20]   Father contends there was insufficient evidence to support the trial court’s

       conclusion that his consent to Child’s adoption by Stepfather was not required.

       The granting of an adoption petition over a natural parent’s objection results in

       termination of parental rights and implicates the traditional right of parents

       under the Fourteenth Amendment to the United States Constitution to establish

       a home and raise their children. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind.

       2014). “A parent’s interest in the care, custody, and control of his or her
       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018    Page 9 of 18
       children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

       (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000)).


[21]   We will reverse a trial court’s decision in an adoption proceeding only if the

       evidence leads to one conclusion and the trial court reached the opposite

       conclusion. E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans.

       denied. “We do not reweigh evidence, and we consider the evidence most

       favorable to the decision together with reasonable inferences drawn from that

       evidence.” Id. We also recognize that trial courts are in the best position to

       judge facts, determine witness credibility, ascertain family dynamics, and

       evaluate the parents and their relationship with their child or children. Id.


[22]   The trial court here entered findings of fact and conclusions thereon sua sponte.

       In such a case, we apply a two-tiered standard of review, determining: (1)

       whether the evidence supports the findings of fact and (2) whether the findings

       support the judgment. Id. We will set aside the trial court’s findings or

       judgment only if they are clearly erroneous. Id. “A finding of fact is clearly

       erroneous if the record lacks evidence or reasonable inferences from the

       evidence to support it.” Id. When findings are entered sua sponte, they control

       only as to the issues upon which the court has found, but they do not otherwise

       affect our general judgment standard of review, and we may look both to other

       findings and beyond the findings to the evidence of record to determine if the

       result is against the facts and circumstances before the court. C.B. v. B.W., 985

       N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied.



       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018   Page 10 of 18
[23]   Indiana Code Section 31-19-9-8(a)(2) provides that a biological parent’s consent

       to adoption is not required if, among other possibilities:


               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.


       Because the statute is written in the disjunctive, the existence of any of the listed

       circumstances would provide sufficient reason to dispense with consent. In re

       O.R., 16 N.E.3d at 973. A party seeking to adopt bears the burden of proving

       by clear and convincing evidence that a noncustodial parent’s consent is not

       required. In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).


                                                    A. Support

[24]   We first address the trial court’s finding that there were three separate year-

       long-plus periods, totaling forty-two months, in which Father failed to provide

       for Child’s care and support. Stepfather had the burden of proving that Father

       had the ability to make child support payments but that Father knowingly failed

       to do so. See In re Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010),

       trans. denied.




       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018     Page 11 of 18
               “[The ability to pay] 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.”


       Id. (quoting In re Adoption of Augustyniak, 508 N.E.2d 1307, 1308 (Ind. Ct. App.

       1987), trans. denied).


[25]   The first period of nonsupport found by the trial court was from December 2011

       to December 2012. During that time frame, Father paid $620 in support toward

       a total annual obligation of $3,380. Even if this constituted a gross

       underpayment of support, there is no evidence whatsoever in the record of the

       totality of the circumstances regarding that year of underpayment. All that is

       known is that the original child support calculation was based on Father’s job

       as a machinist but that he lost that job sometime thereafter for unknown

       reasons. Stepfather’s attorney did not question Father about this time period,

       though he did about the other two periods in question. It was not Father’s

       burden to present evidence explaining why he did not pay the full amount of

       support; it was Stepfather’s burden to prove that Father was able to pay it.

       Thus, although the trial court found that Father was able to pay the full amount

       of support for that year, there is a lack of evidence to support that finding, and it

       is clearly erroneous. Cf. In re M.S., 10 N.E.3d at 1272 (holding there was

       sufficient evidence biological mother had ability to pay support, despite claims

       of high medical expenses and loss of business, where there was evidence mother


       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018    Page 12 of 18
       still maintained gainful employment, lived in and paid to redecorate house

       purchased by grandmother, and had multiple pets).


[26]   The second period of nonpayment was during Father’s incarceration from

       March 2013 through July 2014. Although Father’s child support obligation was

       reduced to $0 during his incarceration, the trial court concluded nonetheless

       that Father had a duty to continue paying some support, based on approximate

       monthly income of $30 from a prison job. We conclude that the trial court’s

       decision to essentially penalize Father for not paying any child support while

       incarcerated, despite having had his support obligation reduced to $0, is

       contrary to the policies underlying our supreme court’s decision in Clark v.

       Clark, 902 N.E.2d 813 (Ind. 2009). In that case, the court held that

       incarceration may be considered a substantial change in circumstances

       justifying modification of a child support order. Clark, 902 N.E.2d at 817. The

       court stated:


               Proscribing the consideration of incarceration as a substantial
               change in circumstances justifying the modification of a child
               support order is not in the best interest of children. When
               released, most obligated parents face the twin barriers of large
               arrearages and difficulty finding employment. Such a situation
               makes it more likely that the newly-released obligated parent will
               face jail time as a result of non-payment of child support or
               participate in the underground economy—once again straining
               family relationships, if not jeopardizing public safety.


       Id. Here, the trial court’s decision to effectively impose a retroactive child

       support obligation upon Father while incarcerated put the ultimate strain upon

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018    Page 13 of 18
       a family relationship, as it was used as partial justification to terminate his

       parental rights. Its finding that Father’s nonpayment of support while

       incarcerated obviated the need for his consent to Child’s adoption is clearly

       erroneous, as there is insufficient evidence he had the ability to pay during that

       time.


[27]   Finally, the trial court found Father knowingly failed to pay support when able

       to do so between August 2015 and August 2016. During that time, Father paid

       $3,189.74 in child support toward his total obligation of $3,380.00, and all but

       $222.00 of that amount was from tax intercepts. Although the total amount of

       these payments nearly equaled Father’s total obligation for the year, Mother

       and the trial court discount the amount that resulted from tax intercepts because

       they were not, strictly speaking, “voluntary” payments. Father notes that he

       was again incarcerated for a part of that time period, and argues that he had a

       hernia and resulting surgery and recovery that prevented him from working for

       much of the rest of the time period.


[28]   Those arguments aside, the fact that much of the support paid in that time

       period came from tax intercepts does not mean that it should have been

       disregarded by the trial court. Such intercepts would constitute support for

       purposes of any criminal action for nonsupport of a dependent. See Long v.

       State, 716 N.E.2d 51, 54 (Ind. Ct. App. 1999). Additionally, if the tax intercepts

       had caused more to be paid in child support than Father owed for the one-year

       period, he may have been entitled to reimbursement of that amount as an

       involuntary overpayment of child support. See Matson v. Matson, 569 N.E.2d

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018    Page 14 of 18
       732, 734 (Ind. Ct. App. 1991). Regardless of the form in which support was

       paid from August 2015 to August 2016, it was paid and the fact that most of it

       came from tax intercepts should not have been held against Father when

       considering whether his consent to Child’s adoption was required. The trial

       court’s finding that Father knowingly failed to provide for Child’s support

       during this time period is clearly erroneous.


                                              B. Communication

[29]   We now turn to whether there is sufficient evidence that Father failed to

       communicate significantly with Child, when able to do so and without

       justifiable cause, for the year preceding the filing of the adoption petition. It is

       well-settled that, “‘Efforts of a custodial parent to hamper or thwart

       communication between a parent and child are relevant in determining the

       ability to communicate.’” E.W., 20 N.E.3d at 896-97 (quoting In re Adoption of

       A.K.S., 713 N.E.2d 896, 899 (Ind. Ct. App. 1999), trans. denied). Also, “It has

       been held that visitation by paternal family members may constitute indirect

       communication by a non-custodial father.” In re Adoption of S.W., 979 N.E.2d

       633, 641 (Ind. Ct. App. 2012).


[30]   The evidence is clear and undisputed that Mother made efforts to curtail, and

       then completely terminate, Father’s ability to communicate with Child in the

       year preceding the filing of the adoption petition. At trial, Mother did not deny

       what is reflected in the text messages between her and Grandmother: that she

       wanted Father to have no communication with Child beginning with his

       November 2015 incarceration, and no contact at all with Child when he was
       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018     Page 15 of 18
       released from incarceration in February 2016.4 It required begging on

       Grandmother’s part for Mother to allow Father to make a brief phone call to

       Child on his birthday in January 2016. After Father’s release from

       incarceration, Mother terminated the previous arrangement—in place since

       Child’s infancy—whereby Child frequently spent weekends with Grandmother,

       which facilitated visitation between Father and Child even when Mother

       refused to allow Child to spend time alone with Father at his own residence.

       On occasion, Father did phone Mother to attempt to arrange some

       communication or visitation with Child. Unfortunately, these phone calls

       would disintegrate into arguments when Mother insisted that Father had to, for

       example, undergo counseling before he could see or talk to Child.


[31]   Mother and the trial court discounted her clear efforts to hamper

       communication between Child and Father by essentially claiming that he

       should have expended more effort to force such communication, through legal

       channels or by simply, for example, showing up at Child’s sporting events in

       Noblesville unannounced and without Mother’s invitation and in contravention

       of Mother’s clearly-expressed desire that Father have no contact with Child.

       We conclude, however, that Father’s failure to fight Mother more aggressively

       with respect to communicating with Child does not mean he lacked justifiable




       4
         Because the statutory period of required noncommunication is at least one year, we need not examine the
       three-to-four-month time period between August and November 2015.

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                        Page 16 of 18
       cause for failing to communicate or that he was practically able to

       communicate.


[32]   Father’s parenting time rights were never curtailed by any court order. We do

       not wish to be overly critical of Mother’s natural desire to protect Child, and

       there is no question that Father has been far from an ideal parent. However,

       there are established legal procedures to follow if a custodial parent believes

       restriction or complete cessation of a noncustodial parent’s parenting time is

       warranted. See I.C. § 31-14-14-1(a) (applying to paternity cases and stating, “A

       noncustodial parent is entitled to reasonable parenting time rights unless the

       court finds, after a hearing, that parenting time might: (1) endanger the child’s

       physical health and well-being; or (2) significantly impair the child’s emotional

       development”).5 Those procedures were not followed here. A custodial parent

       should not be able to unilaterally limit, place conditions on, or completely

       terminate a noncustodial parent’s parenting time, and then successfully assert in

       an adoption proceeding that the noncustodial parent was able to communicate

       with the child but failed to do so without justifiable cause. In sum, we conclude

       the trial court clearly erred in finding that Father failed to significantly

       communicate with Child, when able to do so and without justifiable cause, in

       the year preceding the filing of the adoption petition.




       5
        A noncustodial parent’s conviction for child molesting or child exploitation creates a rebuttable
       presumption that parenting time may be curtailed or, if granted, supervised. I.C. § 31-14-14-1(c) & (d).
       Father has not been convicted of either offense.

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                           Page 17 of 18
                                                   Conclusion
[33]   The trial court’s findings that Father failed to support Child for at least a year

       when able to do so, and that he failed without justifiable cause to communicate

       significantly with Child for at least a year when able to do so, are clearly

       erroneous. Thus, it erred in ultimately concluding that Father’s consent to

       Child’s adoption by Stepfather was not required.6 We reverse the granting of

       Stepfather’s adoption petition.


[34]   Reversed.


       Vaidik, C.J., and Pyle, J., concur.




       6
         Given our resolution of this issue, we need not address Father’s alternative argument that he was denied
       due process when the trial court precluded him and his attorney from attending or participating in the hearing
       that addressed whether adoption was in Child’s best interests.

       Court of Appeals of Indiana | Opinion 29A05-1710-AD-2250| May 25, 2018                          Page 18 of 18
