      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Feb 12 2020, 6:45 am
      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT
      Donald E.C. Leicht
      Deputy Public Defender
      Peru, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Adoption of                         February 12, 2020
      K.L.B.;                                                  Court of Appeals Case No.
                                                               19A-AD-2180
      M.B.,
                                                               Appeal from the Howard Circuit
      Appellant-Respondent,                                    Court
              v.                                               The Honorable Lynn Murray,
                                                               Judge
      J.D. and K.D.,                                           Trial Court Cause No.
                                                               34C01-1810-AD-52
      Appellees-Petitioners.



      Najam, Judge.


                                       Statement of the Case
[1]   M.B. (“Father”) appeals the adoption court’s grant of J.D. and K.D.’s

      (“Adoptive Parents”) petition for adoption of Father’s minor child, K.L.B.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020             Page 1 of 7
      (“Child”). Father presents a single issue for our review, namely, whether the

      adoption court erred when it concluded that his consent to the adoption was

      not required. 1


[2]   We affirm.


                                    Facts and Procedural History
[3]   Child was born on January 29, 2016, to A.B. (“Mother”) and Father. After the

      Indiana Department of Child Services (“DCS”) learned of allegations that

      Mother and Father were using drugs, it removed Child from Mother and

      Father’s care on May 22, 2017, and placed Child with Adoptive Parents. 2 After

      DCS removed Child, Father visited Child twice. Thereafter, on June 18, Father

      was arrested and charged with burglary, as Level 4 felony. Father ultimately

      pleaded guilty to that charge and was sentenced to six years in the Department

      of Correction.


[4]   When Father “first got incarcerated,” he called Child, but Child was “so

      young” that “there wasn’t really a conversation.” Tr. at 50, 51. On

      Thanksgiving Day 2017, Father attempted to call Child, but Adoptive Parents

      were “unable” to answer the phone. Id. at 19. Then, in August 2018, Father

      called Child one time, and the call lasted approximately “[t]wo to three




      1
       The adoption court also concluded that Mother’s consent to the adoption was not required. However,
      Mother does not participate in this appeal.
      2
          Adoptive Parents are Mother’s mother and stepfather.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020            Page 2 of 7
      minutes.” Id. at 63. Father also sent Child a few letters, and he sent Child a

      Christmas card in 2018. 3


[5]   In October 2018, Adoptive Parents filed a petition to adopt Child. Thereafter,

      the adoption court held a hearing on the petition. During the hearing, K.D.

      testified that, during the phone call in August 2018, she had told Father that he

      was “welcome” to call and speak to Child, but Father never called again. Id. at

      63. K.D. also testified that the Christmas card Father had sent to Child

      “[d]idn’t really ask about her or how she was doing.” Id. at 12.


[6]   Following the hearing, the adoption court concluded that Father’s consent to

      the adoption was not required. In particular, the court found and concluded in

      relevant part as follows:


                 45. Since his incarceration, [Father] has had no physical contact
                 with [Child]. His contacts with her consist of two (2) brief
                 telephone conversations, the last in August 2018. He has sent to
                 her a few letters, and after the adoption petition was filed, a
                 Christmas card. There was no evidence that [Father] could not
                 keep mail correspondence or telephone contact with [Child]
                 through [Adoptive Parents]. When [Father] talked to [K.D.] by
                 telephone in August 2018 she told him that he could call
                 anytime, yet he never called again. Even though incarcerated,
                 there was nothing that prevented [Father] from making or
                 attempting to make telephone contact or send correspondence to
                 the child on a regular basis.




      3
          The record does not indicate when Father sent Child the letters or describe their contents.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020                 Page 3 of 7
                                                     * * *


              47. The court finds that [Father] has failed to communicate with
              [Child] for more than one (1) year without justifiable cause.


                                                     * * *


              53. Based upon the above findings and conclusions, the court
              finds and concludes the consent to the adoption by [Father] is not
              required, and the petition for adoption should be granted over his
              objection.


      Appellant’s App. Vol. II at 135-143. Accordingly, the adoption court issued an

      adoption decree granting Adoptive Parents’ petition. This appeal ensued.


                                     Discussion and Decision
[7]   Father contends that the adoption court erred when it concluded that his

      consent to the adoption was not required. As our Supreme Court has stated:


              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.
              Accordingly, when reviewing an adoption case, we presume that
              the trial court’s decision is correct, and the appellant bears the
              burden of rebutting this presumption.


              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 not reweigh evidence or

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020   Page 4 of 7
                assess the credibility of witnesses. Rather, we examine the
                evidence in the light most favorable to the trial court’s decision.


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

       omitted).


[8]    Initially, we note that Adoptive Parents have not filed an appellee’s brief.


                When an appellee fails to file a brief, we apply a less stringent
                standard of review. We are under no obligation to undertake the
                burden of developing an argument for the appellee. We may,
                therefore, reverse the trial court if the appellant establishes prima
                facie error. “Prima facie” is defined as “at first sight, on first
                appearance, or on the face of it.”


       Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations

       omitted).


[9]    Generally, a trial court may grant a petition for adoption only if both the

       mother and father of the child consent. Ind. Code § 31-19-9-1 (2019).

       However, Indiana Code Section 31-19-9-8(a) provides in relevant part that

       consent to an 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 “fails without

       justifiable cause to communicate significantly with the child when able to do

       so[.]”


[10]   Here, Father contends that the court erred when it concluded that he failed to

       communicate significantly with Child for a period of at least one year when he

       was able to do so. Our Supreme Court has stated that “[a] determination on

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020   Page 5 of 7
       the significance of the communication is not one that can be mathematically

       calculated to precision.” J.W. v. D.F. (In re Adoption of E.B.F.), 93 N.E.3d 759,

       763 (Ind. 2018). The Court explained that the “significance of the

       communication cannot be measured in terms of units per visit. Even multiple

       and relatively consistent contacts may not be found significant in context. But a

       single significant communication within one year is sufficient to preserve a non-

       custodial parent’s rights to consent to the adoption.” Id. (citations omitted).


[11]   Here, Father has not seen Child since his arrest on June 18, 2017. Since that

       date, Father has only sent a few letters and one Christmas card to Child, and he

       has only spoken to Child over the phone twice. Father acknowledged that

       “there wasn’t really a conversation” during the first call, because Child was “so

       young.” Tr. at 51. And Father’s second call with Child only lasted “[t]wo to

       three minutes.” Id. at 63. Father never called Child after August 2018, even

       though K.D. had told him that he could call “anytime” he wanted. Id. at 51.


[12]   Based on that evidence, we cannot say that the court clearly erred when it

       found that Father had failed to communicate significantly with Child for at

       least one year even though he was able to do so. Father’s argument on appeal

       is simply a request that we reweigh the evidence, which we cannot do. The




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020   Page 6 of 7
       adoption court did not err when it concluded that Father’s consent to Child’s

       adoption was not required. 4


[13]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       4
         Father also appears to assert that the court erred when it concluded that his consent to the adoption was
       not required because his mother had regular visits with Child. However, Father has not made cogent
       argument to support that assertion, and it is waived. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2180 | February 12, 2020                  Page 7 of 7
