      MEMORANDUM DECISION
                                                                        Jul 20 2015, 10:54 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                                    ATTORNEY FOR APPELLEE
      Joel M. Schumm                                            Amanda O. Blackketter
      Indianapolis, Indiana                                     Blackketter Law, LLC
                                                                Shelbyville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re: the adoption of A.A.,                             July 20, 2015
                                                               Court of Appeals Case No.
      A.A.                                                     73A05-1411-AD-509
      Appellant-Defendant,                                     Appeal from the Shelby Superior
                                                               Court
              v.
                                                               Lower Court Cause No.
                                                               73D01-1405-AD-23
      D.J.,                                                    The Honorable Jack A. Tandy,
      Appellee-Plaintiff.                                      Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   A.A. (“Father”) appeals the trial court’s order allowing D.J.’s (“Stepfather”)

      adoption petition regarding Father’s minor son, A.A. (Child), to proceed

      without his consent. Specifically, Father claims that the trial court’s judgment


      Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015       Page 1 of 11
      was clearly erroneous because the factual findings show that he had significant

      communication with Child. After reviewing the trial court’s order, we agree

      with Father that the finding of facts do not support the specific judgment as

      entered by the trial court. Because the trial court’s order only dispensed with

      Father’s consent under INDIANA CODE §31-19-9-8(a)(2)(A), we reverse the trial

      court’s order and remand for further proceedings.


[2]   We reverse and remand.


                                                     Issue
              Whether the trial court erred in allowing the adoption of Child to
              proceed without Father’s consent.

                                                     Facts
[3]   Father and C.J. (“Mother”) dated for approximately two years before Child

      was born in December of 2003. Father served in the military and was deployed

      to Iraq when Child was born. Upon his return, Father and Mother’s

      relationship worsened, and they separated.


[4]   Through an agreed entry, the Shelby County Superior Court established

      Father’s paternity on October 17, 2005. The court awarded joint legal custody

      of Child to Father and Mother, with Mother retaining primary physical

      custody. The court’s order also established a visitation schedule for Father to

      be with Child on alternate weekends, two weeks in the summer, and on certain

      holidays.




      Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015   Page 2 of 11
[5]   Mother met Stepfather shortly thereafter, and they married in July of 2010.

      Stepfather bonded with Child and served as a father-figure, participating with

      him in his Cub Scout group, helping him with his homework, attending

      parent/teacher conferences, and taking him to doctor appointments when

      Mother could not. Stepfather would also listen to audiobooks and talk with

      Child about his day before going to bed.


[6]   On January 27, 2012, Mother sought to modify custody, parenting time, and

      child support for Child. The trial court appointed a special advocate (“CASA”)

      on April 9, 2012, and she filed a report on October 31, 2012. The CASA report

      detailed instances of Child using curse words and making racially-offensive

      remarks after returning from visits with Father. The report specifically

      mentioned Child “saying that he hates black people, his friends, and his

      family.” (Stepfather’s Ex. 1 at 2). In addition, Child’s teachers notified Mother

      of behavioral problems they experienced with Child. The behavioral problems

      typically occurred the week following visits with Father.


[7]   The trial court held a hearing on Mother’s motion to modify custody, parenting

      time, and child support on December 27, 2012. On the next day, the trial court

      issued an order awarding sole legal custody to Mother. The trial court also

      decreased Father’s visitation to one two-hour visit per week supervised by a

      third party, and adjusted his child support payment to $52 per week. The trial

      court modified custody and parenting time because:

              Father has not been a consistent and positive parent for [Child].
              [Father] has been convicted of various crimes and served time in

      Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015   Page 3 of 11
               prison, on work release and on house arrest. He has been a
               negative factor at times with [Child], suggesting that women are
               to be physically struck and making derogatory comments about
               people of color. This is particularly upsetting to [Child] since his
               stepfather is African[-]American.


      (Stepfather’s Ex. 6 at 2). The trial court also continued an agreed pendent lite

      order admonishing everyone to “refrain from making any racially derogatory

      comments, language, actions, or other inappropriate communication in the

      child’s presence.” (Stepfather’s Ex. 6 at pg. 1). Father’s supervised visits with

      Child began in April of 2013.


[8]   Father participated in supervised visits through Gibault Children’s Services

      (“Gibault”). During these visits, Child was always happy to see Father. The

      reports from Gibault showed that Father was engaged and affectionate with

      Child. However, during their visits, Father continued to make disparaging

      remarks about Mother and referred to Stepfather as “Buckwheat.”1                                        This

      behavior culminated on September 25, 2013, when Gibault workers terminated

      Father’s last visit with Child early because of Father’s continued discussion of

      inappropriate topics. Specifically, Father told Child that day would be his last

      visit because of finances and that he needed Child’s address because he would



      1
       “Buckwheat,” in this context, is a reference to a character in the short film series, OUR GANG (Hal Roach
      Studios 1922), later syndicated on television as The Little Rascals. The character “Buckwheat” is a picaninny,
      which is a caricature of African-American children dating back to Harriet Beecher Stowe’s Uncle Tom’s Cabin.
      “Picaninnies had bulging eyes, unkempt hair, red lips, and wide mouths into which they stuffed huge slices of
      watermelon. [T]he term picaninny is today rarely used as a racial slur; it has been replaced by the term
      buckwheat.” Dr. David Pilgrim, The Picaninny Caricature, JIM CROW MUSEUM OF RACIST MEMORABILIA,
      www.ferris.edu/HTMLS/news/jimcrow/picaninny (last visited July 7, 2015).

      Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015              Page 4 of 11
       not be able to communicate with him, except to send a birthday card. Father

       has had no contact with Child since the September 2013 visit.


[9]    On June 9, 2014, Stepfather filed his petition to adopt Child, alleging that

       Father’s consent was not required pursuant to INDIANA CODE § 31-19-9-8

       because Father was unfit, had abandoned Child, had only made token efforts to

       support or communicate with Child, and that Child’s best interests would be

       best served by letting the adoption proceed without Father’s permission. In

       response, Father filed a pro se response and a verified notice to contest the

       adoption with the assistance of court-appointed counsel.


[10]   The trial court held a hearing on October 1, 2014 and entered an order allowing

       Child’s adoption to proceed without Father’s consent. Based on the above-

       mentioned facts, the trial court entered the following conclusions of law:


                                             Conclusions of Law
               1) The court has subject matter and personal jurisdiction of the
                  parties.
               2) The Court finds by clear and convincing evidence that Father
                  has abandoned [Child] by not having meaningful
                  communication with him for more than one year even though
                  Father had the ability to have contact with him. In addition,
                  Father has made no effort to communicate with [Child] by
                  telephone or correspondence.


               WHEREFORE, the Court finds that the adoption matter may
               proceed without Father’s consent pursuant to Indiana Code [§]
               31-19-9-8-(a)(2)(A).



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       (App. 26-27). On October 30, 2014, the trial court clarified that its order was a

       final judgment, and Father now appeals.


                                                   Decision
[11]   Father appeals the trial court’s conclusion that he abandoned Child by not

       having meaningful communication with him without justifiable cause.

       Specifically, Father claims that the record shows that he did have significant

       communication with Child. In the alternative, Father asserts justifiable cause

       existed for any lack of communication with Child.


[12]   Upon review of a trial court’s ruling in an adoption case, the appellant bears the

       burden of overcoming the presumption that the trial court’s decision is correct.

       In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009) (citing In re

       Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008)), trans. denied.

       We will neither reweigh the evidence nor judge the credibility of the witnesses;

       instead, we will consider the evidence most favorable to the trial court’s

       decision, and the reasonable inferences to be drawn therefrom, to determine

       whether sufficient evidence exists to sustain the decision. Id. We will not

       disturb the trial court’s ruling unless the evidence leads to one conclusion and

       the trial court reached an opposite conclusion. Id.


[13]   Where the trial court enters findings of fact and conclusions of law, we employ

       our familiar two-tiered standard of review: we must determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Id. We will not set aside the findings or the judgment unless they are clearly

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       erroneous. Id. Findings of fact are clearly erroneous if the record is devoid of

       any evidence or reasonable inferences to support them, while a judgment is

       clearly erroneous when it is unsupported by the findings of fact and the

       conclusions relying on those findings. Id.


[14]   Where the trial court, as done here, enters findings of fact and conclusions of

       law sua sponte, the trial court’s findings control only as to issues they cover.

       Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). On all other matters, the

       general-judgment standard applies, and we will affirm on any legal theory

       supported by the evidence. Id. Though we defer substantially to the findings of

       fact, that same deference is not given to conclusions of law. J.S. v. J.D., 941

       N.E.2d 1107, 1110. (Ind. Ct. App. 2011), trans. denied. We evaluate questions

       of law de novo and owe no deference to the trial court’s determinations of such

       questions. Id.


[15]   Parental consent is generally required to adopt a child in Indiana. See IND.

       CODE § 31-19-9-1. However, consent to adoption is not required from any of

       the following:

                        (1) A parent or parents if the child is adjudged to have
                            been abandoned or deserted for at least six (6) months
                            preceding the date of the filing of the petition.
                        (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


       Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015   Page 7 of 11
                                    (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.
                                                    *.*.*.*.*
               (11) A parent if:
                                    (A) a petitioner for adoption proves by clear and
                                         convincing evidence that the parent is unfit
                                         to be a parent; and
                                    (B) the best interests of the child sought to be
                                        adopted would be served if the court
                                        dispensed with the parent’s consent.
       IND. CODE § 31-19-9-8(a).


[16]   Here, the trial court’s sole legal conclusion for allowing the adoption to proceed

       without Father’s consent was that he failed without justifiable reason to

       significantly communicate with Child for at least a year pursuant to INDIANA

       CODE § 31-19-9-8(a)(2)(A). We find the trial court’s conclusion erroneous for

       two reasons. First, the factual findings do not establish that Stepfather’s

       petition satisfied the one-year threshold required by the statute. Second, we

       find that there was significant communication between Father and Child.


[17]   Concerning the one-year threshold, the trial court found that “Father has not

       had any communication with [Child] since September 25, 2013.” (App. 25).

       Stepfather filed his petition to adopt Child on June 9, 2014, eight months after

       Father’s last communication with Child in September 2013. In determining

       whether a parent has failed to communicate significantly with his child for the

       statutory one-year period, we have previously noted that a “parent’s conduct


       Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015   Page 8 of 11
       after the petition to adopt was filed is wholly irrelevant.” In re Adoption of S.W.,

       979 N.E.2d 633, 640, n. 3 (Ind. Ct. App. 2012) (internal quotation marks

       omitted) (emphasis in original).


[18]   The reasonable inference from the factual findings is that the trial court used

       September 25, 2013 as a starting point in satisfying the one-year threshold.

       However, starting at that time would also include conduct after Stepfather filed

       the petition to adopt. That conduct, as previously mentioned, is irrelevant. It is

       clearly erroneous to conclude that Father failed to communicate significantly

       with Child for at least a year starting on September 25, 2013 up until the time of

       the trial court’s order.


[19]   Moreover, even if the trial court considered the relevant time period of June 8,

       2013 through June 8, 2014, its conclusion of law is still erroneous because

       Father had significant communication with Child. The adoption statute does

       not define “significant.” The interpretation of a statute is a pure question of

       law, which we review de novo. M.S. v. C.S., 938 N.E.2d 278, 282

       (Ind.Ct.App.2010). “In construing a statute, our primary goal is to determine

       and effectuate the legislative intent.” Id. We give words and phrases their plain

       and ordinary meaning. Id. at 284.


[20]   The plain, ordinary meaning of “significant” is “having meaning [or] especially,

       having or likely to have an influence[], probably caused by something other

       than mere chance.” Merriam–Webster Online Dictionary, available at

       http://www.merriam-webster.com/significant (last visited July 7, 2015). Here,


       Court of Appeals of Indiana | Memorandum Decision 73A05-1411-AD-509 | July 20, 2015   Page 9 of 11
       the trial court’s findings of fact stated, “[Child] was always glad to see his

       father.” (App. 25) Indeed, during visits, Child and Father both said, “I love

       you” to each other, and Child told Father that “he’s the best Dad ever.”

       (Stepfather’s Ex. 3) Thus, the reasonable inference is that the visits within the

       relevant statutory one year period were meaningful to Child. cf In re Adoption of

       J.P., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999) (Child’s reaction to visits from

       Mother were not favorable, supporting the conclusion that communication was

       not significant).


[21]   Stepfather claims that we cannot consider this evidence because it “is an

       invitation to consider evidence that does not favor the trial court’s judgment.”

       (Stepfather’s Br. 7). However, because the trial court entered findings of fact

       and conclusions of law, we are not prohibited from considering this evidence to

       determine whether the trial court’s judgment is clearly erroneous. See A.S., 912

       N.E.2d at 850. Accordingly, Father’s visits within the relevant statutory period

       were significant, and the trial court’s conclusion that it could dispense with

       Father’s consent to the adoption based on I.C. 31-19-9-8(a)(2)(A) was clearly

       erroneous.


[22]   The trial court’s order only determined whether Father’s consent was required

       for the adoption to proceed because it was asserted that father had no

       significant communication with the Child. However, there are numerous

       statutory provisions that permit proceeding with the adoption without Father’s

       consent. Accordingly, we reverse and remand for further proceedings under the



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       adoption consent statute, particularly whether Father’s consent may be

       dispensed with under I.C. 31-19-9-8(a)(11).


[23]   Reversed and remanded.


       Crone, J., and Brown, J., concur.




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