MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Jun 23 2020, 7:40 am

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
William A. Goebel                                        Mark Small
Goebel Law Office                                        Indianapolis, Indiana
Crawfordsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of T.G.,                              June 23, 2020

Eric Kelly,                                              Court of Appeals Case No.
                                                         19A-AD-2839
Appellant,
                                                         Appeal from the Clinton Superior
        v.                                               Court
                                                         The Honorable Donald E. Currie,
Jesse Glover,                                            Judge Pro Tempore
                                                         Trial Court Cause No.
Appellee.
                                                         12D01-1904-AD-6



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020                 Page 1 of 14
[1]   Eric Kelly (“Stepfather”) appeals the denial of his petition for adoption. We

      affirm.


                                           Facts and Procedural History

[2]   T.G. was born on October 27, 2010, to Melissa Kelly (“Mother”). Jesse Glover

      (“Father”) established paternity in 2017. Mother and Stepfather moved in

      together in 2017 and were married in 2018. According to the trial court, Father

      was incarcerated in March 2018 and has an early release date of July 25, 2021.


[3]   On April 15, 2019, Stepfather filed a petition for adoption. 1 According to the

      chronological case summary, the court issued an order on May 14, 2019, stating

      that Father may appear by phone if contact information was provided, Father

      filed a motion to appear in person or by phone on May 15, 2019, and the court

      granted his motion on May 20, 2019, to appear by phone.


[4]   On August 26, 2019, the court held a hearing at which Stepfather appeared in

      person and by counsel and Father appeared by phone from the Edinburgh

      Correctional Facility. Stepfather testified that he and Mother had been together

      for about three years and living together for almost two years and that they have

      a one-month-old child together. He indicated Father established paternity in

      2017, was given a graduated visitation schedule, and eventually had visitation

      every other weekend. 2 He indicated Father’s last visitation was March 2, 2018.



      1
          The petition for adoption is not included in the appellant’s appendix.
      2
       An order dated May 12, 2017, in the paternity cause stated that Father signed a paternity affidavit and is
      T.G.’s biological father and set forth a schedule phasing in Father’s parenting time, beginning with four hours

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020                     Page 2 of 14
      He indicated Father was aware of where T.G. lived and had not made any

      attempts to contact T.G. while he was incarcerated. Stepfather further testified

      Father had not voluntarily paid any child support since April 23, 2018. He

      indicated that, according to the support docket, a tax check of $382 was held on

      May 19, 2018, and there were no support payments since that date. 3 Stepfather

      testified that he was employed, had been supporting T.G. since he moved in

      with Mother in 2017, and had not been convicted of any crime.


[5]   Mother testified that Father did not take any action to see T.G. until 2017. She

      testified that Father eventually had parenting time every other weekend and

      that he was in T.G.’s life for ten months between May 2017 and March 2018.

      She indicated he had not seen T.G. since March 2, 2018, she lived at the same

      address since that time, she has had the same phone number since the paternity

      action began, Father picked up T.G. from her mother’s house, her mother still

      lived at the same address, neither she nor T.G. had received any

      communication from Father since March 2, 2018, and she had not stopped any

      attempted communication between T.G. and Father since that date. She stated




      every other week, increasing parenting time every three or four weeks, and ending with Father having
      parenting time under the Parenting Time Guidelines. The order also required that Father pay child support
      of $85 per week by wage withholding order, found his support obligation was retroactive to the date of filing
      and his arrearage was $850, and ordered him to pay $10 per week toward the arrearage in addition to his
      weekly child support obligation. The attached child support obligation worksheet indicated Father’s weekly
      gross income was $360.
      3
        Petitioner’s Exhibit 1 contains a one-page payment history reflecting amounts paid in reverse chronological
      order. The document listing a payment of $382 by check on May 19, 2018, reflects seven other payments
      ranging from $20 to $170 from February 15, 2018, through April 23, 2018, and does not contain pages of any
      payment history prior to February 15, 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020                     Page 3 of 14
      she had not received any support from Father since May 2019. She indicated

      Father had other children, she was in contact with the mother of one of his

      other children, and to her knowledge Father had made contact with his son

      E.G. while incarcerated. She indicated she believed Father’s criminal record

      rendered him unfit to continue as a parent of T.G., and when asked why she

      believed that, she answered “he does not have a license. He does he cannot

      [sic] hold down a job. So supporting T.G. is a rough thing for him I suppose.”

      Id. at 19.


[6]   On cross-examination, Father asked “previously before [he requested visitation]

      what was the arrangements that we [] made when we separated,” Mother

      replied “[w]e didn’t have an arrangement,” he asked “so before our separation

      how long was I in T.G.’s life,” and she answered “[y]ou weren’t cause you were

      in jail.” Id. at 20-21. Father asked which address he used when he filed for

      visitation, she answered “Meadow Lane” because that was her mother’s old

      address. Id. at 21. She indicated she lived on Green Street at the time. Father

      asked “but you just testified that you’ve been living at the same address with”

      Stepfather, and she replied “I forgot about that address.” Id. at 22. She testified

      “you were updated when I had moved to Three Fifty Nine from Green Street”

      and “I don’t believe I had to inform you of my mother’s because that’s where

      you presided [sic] to pick up T.G. after school.” Id. Father asked “wasn’t I the

      one that was paying for everything when we stayed in Lafayette and moved to

      Frankfort,” and she answered “[n]o.” Id. at 23.




      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 4 of 14
[7]   The court asked Mother if she was living with Father when T.G. was born, she

      answered “[n]o,” the court asked “[s]o you’ve never lived with him,” she

      replied “[w]e didn’t live together,” it asked “[w]hen you talk about separation

      you guys were never physically living together,” she said “[n]o,” the court

      asked “[y]ou’ve never lived with him,” and she replied “[j]ust before she was

      born.” Id. at 23-24. Mother then stated “[b]ut when she was born he was

      incarcerated.” Id. at 24. The court asked if Father’s name was on the birth

      certificate, she answered affirmatively, the court asked when Father saw T.G.

      for the first time, and Mother answered “when she was born.” Id. The court

      asked “[s]o he was not incarcerated when she was born,” and she replied

      “[a]fter she was born. I’m sorry.” Id. at 24-25. She indicated Father did not

      see T.G. on a regular basis after she was born. On redirect examination, she

      indicated Father saw T.G. a couple of times at the hospital when she was born

      and did not see her again until 2017.


[8]   Upon questioning by Stepfather’s counsel, Father indicated he was in the

      Edinburgh Correctional Facility and was there for “an HTV violation as a Level

      Five felony.” Id. at 29. When asked if “[i]t was a repeat HTV violation” and

      “[y]ou got sentenced in fact on the HT first HTV in March” 2018 and “then

      you violated by driving two weeks after that,” he answered affirmatively. Id.

      He testified he did not have a phone number for T.G., he “tried for a number

      yes and was not successful,” Mother’s phone number was in his cell phone

      which was in police custody, and “the person I tried to get the number from I

      was not they weren’t able to get a number for me.” Id. at 30. He indicated


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 5 of 14
      there was a child support order and he was delinquent before he was

      incarcerated. When asked if he had not made a payment since April 23, 2018,

      he answered “I had just got locked up in March so April’s was the last payment

      that apparently was received yes.” Id. at 31. He indicated he was not aware of

      the May 2018 payment. He indicated this was the first time he was

      incarcerated in the Department of Correction (the “DOC”), he had been

      incarcerated in county jails about three times since he moved to Indiana in

      2008, he did not have a record in Illinois, he had a conviction for driving while

      suspended, and he “had one OWI” and “that was four months in Clinton

      County.” Id. at 32. He indicated he had been in contact with his son E.G.

      several times while incarcerated, E.G’s mother filed some paperwork and he

      obtained her number and address through the paperwork, and “[u]nlike T.G. I

      haven’t got any address or numbers or anything. I only have your address and

      the Courthouse.” Id. at 33. Stepfather’s counsel asked “[h]ave you written me

      to see T.G.,” Father replied that he had not, Stepfather’s counsel asked “whose

      fault is it that you don’t have addresses? Is it [Mother’s] or your own,” and

      Father replied “I think the responsibility it is my fault that I do not have her

      address.” Id.


[9]   The court asked if Father had anything else for the court to consider. Father

      testified that Mother’s statements were false, he and Mother lived together in

      three different apartments, two in Lafayette and one in Frankfort, they paid rent

      to her mother and her stepfather for an apartment they owned above a sports

      bar in Frankfort, he was working at US Cold Storage when T.G. was born, he


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 6 of 14
was fired because he took an extended stay to be with Mother in the hospital,

and “also we lived together after that continuously for after that cause I got my

lock up was in . . . July of Two Thousand Eleven.” Id. at 34. He further

testified:


        And once I got out I had another job at Wal-Mart that [Mother] was
        still living together until she moved out one day while I was at work.
        Um and the other thing is we did have an arrangement that we was
        couldn’t be we had alot of arguments. So that the arrangement was
        that [Mother] would never see was in town because she was staying
        at her mother’s. Whenever she was in town that I would see T.G.
        After that I moved out of Clinton County and back to Lafayette.
        And that arrangement was still standing. Because I would take gifts
        out to T.G.’s grandmother and leave it at her house. Gifts, cards,
        birthday, every holiday. Uh I found out through previously at that
        time through friends that [Mother] was taking the stuff back and
        getting the money for it. . . . I know I did my part. And until
        recently like Two Thousand Seventeen I got fed up with the well I’ll
        bring her whenever I have time or whenever she makes time for me.
        So I filed for the visitation. And even still then after that [Mother]
        did not apply to bringing T.G. when she was suppose to. Even her
        lawyer we sat down one day after Court and established that she was
        suppose to bring her for Christmas. That never happened. And I
        tried to contact her lawyer at that time and didn’t get a response. So
        yes and not contacting her lawyer I failed (inaudible) this. So no I
        did not contact him trying to get any information about T.G.
        Because that time being he didn’t give me a response back. So no I
        did not try to contact him again.

Id. at 34-35. He indicated that his release date was in June of 2021. Father also

testified “as far as the child support . . . money does not matter because I keep

jobs in plenty of times when we first started I was working two jobs . . . to be

able to try to pay for to catch up on my other child support,” “I had caught up

Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 7 of 14
       except for like a Hundred and some dollars,” “that was pretty much kind of the

       reason part of the reason for me filing the child support because I don’t care

       about the money,” and “I need to be able to see my daughter on a regular see

       my kids on a regular.” Id. at 35-36. The court took the matter under

       advisement.


[10]   On October 1, 2019, the trial court issued an order denying Stepfather’s petition

       for adoption. The court found Father had been incarcerated since March 2018,

       was in the DOC, had an early release date of July 25, 2021, and does not

       consent to the adoption petition. It further found:


               3. The Father was present in the child’s [] early life as biological
               Mother and Father lived together on and off and the parties both
               significantly contributed to the child’s support (physical, emotional,
               and financial). Father was present at the child’s birth and voluntarily
               signed the birth certificate of the child.

               4. The Father paid support for the child prior to his incarceration.
               Some tax intercept support has also been paid on behalf of the child
               since his period of incarceration.

               5. The Father has not had the ability to have contact with the child
               since his incarceration, however he indicated a strong desire to do so
               and remain actively engaged in his child’s wellbeing.

               6. The mother has not been accommodating or welcoming of
               contact between the father and minor child since March 2, 2018.


       Appellant’s Appendix Volume II at 8-9. The court concluded that Stepfather

       “has failed to prove that the objecting biological Father’s consent is not

       necessary to approve the Petition for Adoption” and that “Father has not


       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 8 of 14
       abandoned, nor is he unfit, nor has his lack of communication or contact been

       voluntary but only because he is an inmate in the Indiana Department of

       Correction.” 4 Id. at 9. Stepfather filed a motion to correct error, which the

       court denied.


                                                       Discussion

[11]   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, and obtain a feel for the family

       dynamics and a sense of the parents and their relationship with their children.

       E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018). 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. Id. 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. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). The

       trial court’s findings and judgment will be set aside only if they are clearly

       erroneous. E.B.F., 93 N.E.3d at 762. A judgment is clearly erroneous when

       there is no evidence supporting the findings or the findings fail to support the

       judgment. Id. We will not reweigh evidence or assess the credibility of




       4
         After the court issued the order, Father filed a letter with the trial court requesting an address and phone
       number for Mother so that he is able to contact T.G. “since threw [sic] all this I have not been given the exact
       info to be able to contact her.” Appellee’s Appendix Volume II at 11.

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020                      Page 9 of 14
       witnesses. Id. Rather, we examine the evidence in the light most favorable to

       the trial court’s decision. Id. We generally review rulings on motions to correct

       error for an abuse of discretion. Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 18

       (Ind. Ct. App. 2015).


[12]   Stepfather asserts the trial court erred in finding that he failed to prove that

       Father’s consent was not necessary and cites Ind. Code § 31-19-9-8(a)(1), (2),

       and (11). He argues that Father abandoned T.G., had contact while

       incarcerated with his son E.G. but not with T.G., and admitted it was his fault

       that he did not have contact information available to him. He argues Father

       failed to communicate with or support T.G., had no contact with her since

       March 2, 2018, and made no child support payments since the middle of May

       2018. He also states that he “believes that in the context of [Father’s] limited

       exercise of his parental rights and obligations (a 10-month period after the child

       was 6 years of age), coupled with the fact that through his own fault he has

       placed himself in prison until at least July 25, 2021, shows that he is unfit to be

       a parent.” Appellant’s Brief at 11.


[13]   Father maintains the evidence is sufficient to support the court’s findings and to

       show Stepfather failed to meet his burden of proof. He argues the evidence

       supports the finding that he did not have a phone number for Mother and the

       court found he paid child support prior to his incarceration. He argues

       Stepfather simply asks this Court to disregard the standard of review and

       reweigh the evidence. He also argues that, while Mother indicated a belief that



       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 10 of 14
       he was an unfit parent due to his criminal record and lack of a license, the trial

       court noted his involvement and desire to be involved in T.G.’s life.


[14]   Ind. Code § 31-19-11-1 provides in part that the trial court shall grant a petition

       for adoption if it hears evidence and finds in part that the adoption requested is

       in the best interest of the child and “proper consent, if consent is necessary, to

       the adoption has been given.” A petition to adopt a child may be granted only

       if written consent to adoption has been executed by the father of a child whose

       paternity has been established. See Ind. Code § 31-19-9-1. However, Ind. Code

       § 31-19-9-8(a) provides that 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 immediately preceding the date of
               the filing of the petition for adoption.

               (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.

                                                       *****

               (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. . . .



       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 11 of 14
       If a petition for adoption alleges that a parent’s consent to adoption is

       unnecessary under Ind. Code § 31-19-9-8(a)(1) or (2) and the parent files a

       motion to contest the adoption, the “petitioner for adoption has the burden of

       proving that the parent’s consent to the adoption is unnecessary under IC 31-19-

       9-8.” Ind. Code § 31-19-10-1.2(a). If a petition for adoption alleges that a

       parent’s consent to adoption is unnecessary under Ind. Code § 31-19-9-8(a)(11)

       and the parent files a motion to contest the adoption, the “petitioner for

       adoption has the burden of proving that the requirements of IC 31-19-9-8(a)(11)

       are satisfied and that the best interests of the child are served if the court

       dispenses with the parent’s consent to adoption.” Ind. Code § 31-19-10-1.2(e).

       Ind. Code § 31-19-10-0.5 provides: “The party bearing the burden of proof in a

       proceeding under this chapter must prove the party’s case by clear and

       convincing evidence.”


[15]   The clear and convincing evidence standard is an intermediate standard of

       proof greater than a preponderance of the evidence and less than proof beyond

       a reasonable doubt. See T.D. v. Eskenazi Health Midtown Cmty. Mental Health

       Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear and

       convincing, the existence of a fact must be highly probable. Id. “The clear and

       convincing standard is employed in cases where the wisdom of experience has

       demonstrated the need for greater certainty, and where this high standard is

       required to sustain claims which have serious social consequences or harsh or

       far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 12 of 14
       Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and internal quotation marks

       omitted).


[16]   This Court has observed that imprisonment standing alone does not establish

       statutory abandonment. Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App.

       1986) (citation omitted) (cited with approval by In re Adoption of E.A., 43 N.E.3d

       592 (Ind. Ct. App. 2015), trans. denied). Neither should confinement alone

       constitute justifiable reason for failing to maintain significant communication

       with one’s child. Id. Incarceration, however, unquestionably alters the means

       for significant communication. Id. What constitutes insignificant

       communication with a free parent may be significant in relation to an

       incarcerated parent with limited access to his child. Id. We are also mindful

       that in general an incarcerated parent’s child support obligation should reflect

       the parent’s real financial capacity. See In re Adoption of T.L., 4 N.E.3d 658, 663

       (Ind. 2014).


[17]   The burden was on Stepfather, as the petitioner for adoption, to prove that the

       requirements of Ind. Code § 31-19-9-8(a)(1), (2), or (11) were satisfied by clear

       and convincing evidence. See Ind. Code §§ 31-19-10-0.5 and -1.2. The evidence

       most favorable to the trial court’s decision reveals that Father was present at the

       hospital when T.G. was born and signed her birth certificate and that, in 2017,

       he filed a petition to establish paternity. Father testified that he took gifts and

       cards to the house of T.G.’s grandmother and that he discovered Mother was

       returning the gifts for money. Father obtained a court order requiring him to

       pay child support based on his weekly gross income of $360 and phasing in

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 13 of 14
       parenting time until he was exercising parenting time pursuant to the Parenting

       Time Guidelines. The parties agree that Father stopped his visitation with T.G.

       due to his incarceration. The record reveals Father was employed prior to his

       incarceration and had made child support and arrearage payments, and

       Stepfather did not demonstrate that Father was able to continue making support

       payments while incarcerated. The trial court heard and was able to consider

       the testimony of Stepfather, Mother, and Father regarding Father’s

       incarceration and his relative efforts to communicate with and provide care and

       support for T.G. prior to and following his incarceration. The court specifically

       found that Father was present in T.G.’s early life as he and Mother lived

       together on and off and significantly contributed to the child’s support, Father

       paid support for T.G. prior to his incarceration, Father has not had the ability

       to have contact with T.G. since his incarceration but indicated a strong desire to

       do so and to remain actively engaged in T.G.’s wellbeing, and Mother has not

       been accommodating or welcoming of contact between Father and T.G. The

       trial court was in the best position to judge the facts, and we will not reweigh

       evidence or assess the credibility of the witnesses. We cannot say under these

       circumstances that Stepfather has met his burden to overcome the presumption

       the trial court’s decision is correct or that the evidence leads to but one

       conclusion and the trial court reached the opposite conclusion.


[18]   For the foregoing reasons, we affirm the judgment of the trial court.

[19]   Affirmed.

       Najam, J., and Kirsch, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020   Page 14 of 14
