	                                                    FILED
                                                   Jul 25 2012, 9:31 am


                                                           CLERK
FOR PUBLICATION                                          of the supreme court,
                                                         court of appeals and
                                                                tax court




ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:
DERICK W. STEELE                            RAKUYA K. TRICE
Deputy Public Defender                      UAW Chrysler LLC Legal Services Plan
Kokomo, Indiana                             Kokomo, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

IN RE THE ADOPTION OF S.W.,                 )
                                            )
THOMAS WEST,                                )
                                            )
       Appellant-Respondent,                )
                                            )
          vs.                               )      No. 34A04-1202-AD-77
                                            )
RONNIE D. SEDBERRY and,                     )
SONDRA A. SEDBERRY,                         )
                                            )
       Appellees-Petitioners.               )


                    APPEAL FROM THE HOWARD CIRCUIT COURT
                          The Honorable Lynn Murray, Judge
                            Cause No. 34C01-1104-AD-21


                                   July 25, 2012

                           OPINION – FOR PUBLICATION

MATHIAS, Judge
      Thomas West (“West”) appeals the order of the Howard Circuit Court granting the

petition filed by Ronnie D. Sedberry and Sondra A. Sedberry (collectively “the

Sedberrys”) seeking to adopt West’s biological daughter, S.W. On appeal, West claims

that the trial court erred in concluding that West’s consent to the adoption was not

required because of his failure to significantly communicate with S.W.

      We affirm.

                             Facts and Procedural History

       S.W. was born in March 2000 to Paige Ann (Pettit) Kelly (“Mother”), and West

later executed an affidavit establishing his paternity of S.W. Approximately four months

after S.W.’s birth, Mother was incarcerated and remained incarcerated until August 2005.

Upon Mother’s incarceration, S.W. was entrusted to the care of Mother’s parents, the

Sedberrys. The Sedberrys were appointed as S.W.’s legal guardians in May 2001.

      A support order obliging West to support S.W. was never entered, and West never

provided the Sedberrys with any financial support to assist them in raising his daughter.

Like Mother, West used illicit drugs and alcohol on a regular basis and was employed

sporadically as a dishwasher. West used cocaine, oxycodone, and marijuana.

      The Sedberrys attempted to maintain a relationship between West and S.W. They

arranged for West to visit S.W. at their home and on a few occasions even drove S.W. to

West’s parents’ home to visit with West.        Between 2000 and 2002, the Sedberrys

arranged for West to pick up S.W. for visitation, but West failed to show up, explaining

that he was “too high” to visit with his daughter. Tr. p. 12. West’s failure to show up for



                                            2
these scheduled visits upset S.W. West never contacted the Sedberrys after this to

arrange further visitation.

       Mother was released from incarceration in 2005, and sometime thereafter, the

Sedberrys’ son died. During the aftermath of her son’s death, Mrs. Sedberry let S.W.

stay with Mother for approximately three months. During this time, West stayed with

Mother occasionally as well. Then, in 2006, West was incarcerated as a result of his

conviction for Class B felony burglary of the home of his own grandfather. West was

sentenced in 2007 to twenty years executed. His projected release date is September 14,

2016,1 at which time S.W. will be sixteen years old.

       In 2010, the Sedberrys again attempted to foster a relationship between S.W. and

West. They purchased Thanksgiving, Christmas, and Father’s Day cards, had S.W. sign

them, and sent them to West in prison. They even contacted West’s mother in an effort

to have West’s family visit S.W.           The Sedberrys also gave West’s mother S.W.’s

identification documents so that S.W. could visit West in prison. After this, however,

West’s family never contacted the Sedberrys to arrange to take S.W. to see West in

prison. In 2010 and 2011, West’s parents did visit with S.W. a few times. However,

after one of these visits, S.W. informed the Sedberrys that she did not feel comfortable

during these visits, referring specifically to vulgar, inappropriate comments made by

W.W., who is West’s son and S.W.’s half-brother. West’s mother stated that she was too

physically ill to visit S.W. frequently.


1
  West testified that he could possibly be released in 2015 if completed the CLIFF (Clean Living is
Freedom Forever) program.

                                                3
       On February 16, 2011, Mother died. On April 7, 2011, the Sedberrys filed a

petition seeking to adopt S.W.     In their petition, the Sedberrys alleged that West’s

consent was not required because he had unjustifiably failed to communicate with S.W.

for a period of one year even though he was able to do so. They also alleged that West

had failed to provide support for S.W., was unfit to parent, and had abandoned S.W. prior

to his incarceration. On April 19, 2011, West filed a motion to contest the adoption. The

trial court held an evidentiary hearing on the matter on January 12, 2012. On January 17,

2012, the trial court issued findings of fact and conclusions of law granting the Sedberrys

petition to adopt S.W. These findings and conclusions read in relevant part:

          1. Thomas West and the late Paige Pettit are the natural parents of
       [S.W.], . . . now eleven (11) years of age.
          2. [S.W.] was born out of wedlock. [West]’s paternity of [S.W.] was
       established by means of the parents’ execution of a paternity affidavit per
       Ind. Code section 16-37-2-2.1.
          3. When [S.W.] was four (4) months old in July 2000, her mother Paige
       was incarcerated, and her father [West] was unable to assume care for the
       child. Maternal grandparents Ronnie and Sondra (“Sandy”) Sedberry
       assumed care and custody of [S.W.] beginning in July 2000.
          4. In May 2001, Ronnie and Sandy Sedberry were appointed guardians
       of [S.W.].
         5. [Mother] remained incarcerated in the Indiana Department of
       Correction[] for five (5) years, until she was released in August 2005.
          6. While [S.W.] was being cared for by her grandparents and guardians
       the Sedberrys, [West] visited with the child two (2) or three (3) times, the
       last time when [S.W.] was about eighteen (18) to twenty-four (24) months
       old.
          7. There were times when [West] made arrangements to come visit but
       did not show up, later saying that he was “too high”, and/or he was “in no
       condition to visit.” After sometime in 2002, Thomas did not show up for
       any further visits, and he did not contact the Sedberrys to schedule any
       visits.

                                            4
   8. In May 2002, [West] was convicted of Robbery, a C felony and
sentenced to four (4) years, two (2) years executed with one (1) year to be
served on in-home detention, followed by two (2) years on supervised
probation.
   9. [Mother] was released from the Department of Correction[] in
August 2005, and she with her teenage son [J.Y.] maintained a residence at
the Village Green Trailer Park in Kokomo. From late September to early
December 2005, [S.W.] resided with [Mother] and [J.Y.] at Village Green
for about three (3) months when the Sedberrys were in Arizona after their
son died. After December 2005, [S.W.] resumed living with her
grandparents and guardians, while visiting with [Mother] a few days at a
time.
  10. From August 2005 to May 2006, [West] stayed occasionally with
[Mother] at Village Green, then at her home on Tomahawk Drive in
Kokomo. [West] saw [S.W.] from time to time when the child visited with
her mother and when [West] was at [Mother]’s home.
   11. During this time, [West] worked occasionally as a dishwasher at
local Kokomo restaurants. Also, during this time, [West] was using illegal
drugs including oxycontin, cocaine, and marijuana. In August 2005, he
pled guilty to conversion, received a suspended sentence of one year, and
was ordered to complete drug treatment.
   12. In April 2006, [West] was arrested on charges of burglary and theft.
He posted bond two (2) days later, but in May 2006, he was arrested on
additional charges of theft and burglary, and he remained in jail thereafter.
In June 2006, he was charged with an additional count of theft.
  13. In October 2006, [West] pled guilty to Burglary, a Class B felony,
and the other pending charges were dismissed. He admitted to having
burglarized his grandfather’s residence, taking items and pawning them for
drug money.
  14. In March 2007, [West] was sentenced to the Indiana Department of
Correction[] for a period of twenty (20) years, all executed.
  15. [West] has been continually incarcerated from May 2006 through the
present. His projected release date is September 14, 2006. If [West]
successfully completes the CLIFF program, he may be eligible for release
sometime in 2015.
  16. [West] last saw [S.W.] in late 2005 or early 2006, when the child
was visiting her mother’s residence in Kokomo.
  17. Since incarcerated, [West] has sent [S.W.] letters and cards on
occasion.

                                     5
  18. In 2010, Sandy Sedberry and/or [S.W.] sent [West] cards for father’s
day, thanksgiving and Christmas.
   19. In 2010, Sandy Sedberry contacted Judy Bagby, [West]’s mother,
and offered to permit Judy and her family including [West]’s teenage son
[W.W.] to visit [S.W.]. Subsequently, [S.W.] visited with the Bagbys
several times. On one occasion in early 2011, [S.W.] talked with [West] on
the telephone from the Bagby residence.
   20. [S.W.]’s last visit with the Bagbys took place in June 2011. After
[S.W.] told Sandy [Sedberry] she did not enjoy the visits, Sandy would no
longer agree to future visits.
   21. In 2010, Sandy gave to Judy Bagby copies of [S.W.]’s identification
card and birth certificate so Judy could take [S.W.] to see Thomas [in
prison]. Judy did not take [S.W.] to see [West] because of Judy’s health
problems.
  22. On February 16, 2011, [S.W.]’s mother Paige died.
  23. Following their daughter’s death, Ronnie and Sandy Sedberry
decided to pursue an adoption of [S.W.]. They filed the petition for
adoption initiating this action on April 7, 2011.
  24. In September 2011, the Sedberrys with [S.W.] relocated to Arizona,
while maintaining a residence in Kokomo, Indiana.
  25. [S.W.] is now eleven (11) years of age, and attending 5th grade.
   26. Mr. and Mrs. Sedberry have been [S.W.]’s caregivers for more than
ten (10) years, since the child was four (4) months old. They have been her
legal guardians since the child was a year old.
   27. The Sedberrys are seventy-one (71) and sixty-nine (69) years old
respectively, and in good health. They have been married for forty-four
(44) years. Neither has been convicted of a felony or misdemeanor offense
relating to the health and safety of a child. They have sufficient ability and
income to continue to raise [S.W.].
  28. The Sedberrys have provided financial and emotional support, and
have been the primary parental figures for [S.W.] since her birth.
  29. After the Sedberrys filed their petition to adopt [S.W.], Thomas
West filed a motion to contest the adoption on April 19, 2011. The court
appointed the Howard County public defender to represent Thomas.
Subsequently, . . . a deputy public defender for Howard County entered his
appearance and represented Thomas at the adoption hearing.
   30. The court granted the Sedberrys’ motion to waive a home[-]study
report since they are the child’s grandparents and have been her guardians

                                      6
since 2001. They filed confirmation that a criminal background report had
been done showing no disqualifying criminal convictions.
  31. A hearing on the petition for adoption was held on January 12, 2012.
Thomas West was present in person, having been transported from the
Department of Correction[], and by his court appointed counsel. After
evidence was concluded, the court took the petition under advisement.
   32. In their petition for adoption, the Sedberrys allege that the consent
by Thomas West is not required. They claim that [West] abandoned the
child, has not supported the child, and has made only token efforts to
communicate with the child during her lifetime. The [Sedberrys] further
claim that [West] is unfit to be a parent and the best interests of the child
would be served if the court dispenses with [West]’s consent.

                                   ***
   39. The court finds by clear, cogent and indubitable evidence that [West]
has failed without justifiable cause to communicate significantly with his
child [S.W.] for a period of at least one (1) year. During the period from
[S.W.]’s birth in March 2000 to May 2006, [West’s] contacts and attempts
to have contact with [S.W.] were token and insignificant. The contacts in
2001 and 2002 consisted of a few visits [West] had at the Sedberry home,
thereafter, he stopped appearing for visits and did not schedule any visits.
He had no contact from 2002 until August 2005, after [S.W.]’s mother
Paige was released from prison, and she had [S.W.] with her for periods of
time. Since May 2006, [West] has been incarcerated, and his only contacts
with [S.W.] have been a few cards and letters, and one telephone
conversation.
   40. The court finds and concludes that the petitioners have proved by
clear and convincing evidence that there have been periods of more than a
year when [West] was not incarcerated and he did not have any significant
contact with [S.W.].
   41. The court further finds and concludes that the petitioners have
proved by clear and convincing evidence that [West] is unfit to be a parent
to [S.W.], and the best interests of the child would be served if the court
dispenses with [West’s] consent.
   42. Prior to his incarceration in May 2006, [West] has a substantial
history of illegal drug use and committing crimes. Since May 2006, he has
been incarcerated for committing burglary of his elderly grandfather’s
home in a drug related crime. His current earliest release date from prison
is September 16, 2016, when [S.W.] would be sixteen (16) years old.



                                     7
           43. It is well settled that individuals who pursue criminal activity run the
        risk of being denied the opportunity to develop positive and meaningful
        relationships with their children. Castro v. State Office of Family and
        Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.
           44. After [West’s] release from prison, there is no guarantee that he will
        be able to provide for [S.W.] or that he will ever obtain custody of her.
        [S.W.]’s needs for stability and permanence are too important to force her
        to wait until a determination can be made that [West] will be able to be a fit
        parent for her.
           45. There is ample evidence to conclude that [S.W.]’s best interests are
        served by granting the Sedberrys’ petition to adopt her. Since [S.W.] was
        four (4) months old, the Sedberrys have been her primary care-givers and
        source of financial support. As grandparents and guardians, they have
        provided [S.W.] with stability and the nurturing care she requires. The
        court finds and concludes by clear and convincing evidence that it is in
        [S.W.]’s best interest that the Petition for Adoption be granted over the
        objection of [West].
          46. Based on the foregoing findings and conclusions, the court finds and
        concludes that Thomas West’s consent to adoption is not required for the
        court to grant the Petition for Adoption, and his motion to contest the
        adoption should be and is denied.
           47. The court further finds that all other requirements having been met,
        that the court should and does hereby enter a Decree of Adoption
        contemporaneously with these findings and this Order.

Appellant’s App. pp. 12-20.2 West now appeals.

                                         Standard of Review

        Upon review 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


2
   In the portion of the trial court’s findings omitted from the quote above, the court found that West’s
failure to support S.W. could not be a basis for not requiring his consent to the adoption because there
was no court order requiring West to pay child support. However, it is well settled that parents have a
common-law duty to support their children even in the absence of a court order. In re Adoption of M.B.,
944 N.E.2d 73, 77 (Ind. Ct. App. 2011) (citing Boone v. Boone, 924 N.E.2d 649, 652 (Ind. Ct. App.
2010)). The lack of a court order did not relieve West of his legal obligation to support his child. See id.

                                                     8
H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008)), trans. denied. We will neither

reweigh the evidence or judge the credibility of 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 only one

conclusion and the probate court reached an opposite conclusion. Id.

       Where the trial court enters findings of fact and conclusions of law pursuant to

Indiana Trial Rule 52(A), 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 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.

                                Discussion and Decision

       West claims that the trial court erred in granting the petition to adopt despite his

objection and lack of consent to the adoption. 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 immediately preceding the date of the
       filing of the petition for adoption.



                                            9
      (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.

Ind. Code § 31-19-9-8(a). Subsection (b) of this statute further provides that “[i]f a

parent has made only token efforts to support or to communicate with the child the court

may declare the child abandoned by the parent.”

      The provisions of this section are disjunctive, and any one provides independent

grounds for dispensing with parental consent. In re Adoption of D.C., 928 N.E.2d 602,

606 (Ind. Ct. App. 2010) (citing In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.

App. 2006)), trans. denied.

      West claims that the Sedberrys had the burden to prove the elements of section 31-

19-9-8(a)(2) by “clear, cogent, and indubitable evidence.” See, e.g., In re Adoption of

Augustyniak, 505 N.E.2d 868, 870 (Ind. Ct. App. 1987) (holding that petitioner for

adoption without parental consent bears the burden of proving the statutory criteria by

“clear, cogent and indubitable evidence.”); In re Bryant, 134 Ind. App. 480, 493, 189

N.E.2d 593, 600 (1963) (same). However, in the case of In re Adoption of M.A.S., 815

N.E.2d 216, 219 (Ind. Ct. App. 2004), this court examined the applicable law and pointed


                                           10
out that use of the “clear, cogent, and indubitable evidence” standard would create

inconsistent burdens across the different statutory bases for adoption, given the 2003

amendment to the adoption statute. The court in M.A.S. held that the burden of proof for

an adoption without consent, under any of the subsections in section 31-19-9-8, is that of

“clear and convincing evidence.” 815 N.E.2d at 220; see also In re Adoption of M.B.,

944 N.E.2d 73, 76-77 (Ind. Ct. App. 2011); In re Adoption of N.W., 933 N.E.2d 909, 913

(Ind. Ct. App. 2010), opinion adopted, 941 N.E.2d 1042 (Ind. 2011); D.C., 928 N.E.2d at

606; In re Adoption of H.N.P.G., 878 N.E.2d 900, 906 (Ind. Ct. App. 2008); T.W., 859

N.E.2d at 1217 (all applying “clear and convincing evidence” standard).

       West claims that the trial court’s finding regarding his lack of communication with

S.W. was erroneous. West notes that the trial court acknowledged that he had some

contact with S.W., and claims that he attempted further contact with S.W. but was

thwarted by the Sedberrys and their frequent trips to Arizona. However, the Sedberrys

were not required to prove that West had no communication with S.W. They had to

prove that he, for a period of one year, “fail[ed] without justifiable cause to communicate

significantly with the child when able to do so.” I.C. § 31-19-9-8(a)(2)(A) (emphasis

added). Indeed, we have held that the purpose of this statutory provision is to “foster and

maintain communication between non-custodial parents and their children, not to provide

a means for parents to maintain just enough contact to thwart potential adoptive parents’




                                            11
efforts to provide a settled environment to the child.” In re Adoption of J.P., 713 N.E.2d

873, 876 (Ind. Ct. App. 1999).3

        West’s infrequent and sporadic communication with S.W. is well established in

the record. There was evidence indicating that West had only a few visits with S.W. after

her birth and failed to appear for several scheduled visits. West had no contact at all with

the child from 2002 until Mother was released from prison in 2005.                           After his

incarceration in 2006, West had little communication with S.W. despite the Sedberrys’

willingness to let S.W. visit West in prison. Given this evidence, we cannot say that the

trial court clearly erred in finding that West failed to communicate significantly with S.W.

for over a period of one year even though he was able to do so. This was sufficient to

establish that West’s consent was not required. See J.P., 713 N.E.2d at 876 (concluding

that biological mother’s communication with daughter were not significant, and thus

mother’s consent to adoption by foster mother was not required, where mother lived with

her husband and child’s half-sibling in another state, traveled to Indiana at most once a

month to visit with daughter for two to five hours and characterized these trips as

“hardships,” and daughter’s reaction to these visits was not favorable).

        West also claims that his mother had “significant and frequent” visits with S.W.

To support his claim, he refers to the testimony of his mother. However, this is evidence

which does not favor the trial court’s judgment, and we may not consider such on appeal.

A.S., 912 N.E.2d at 851. It has been held that visitation by paternal family members may

3
  We also note that a parent’s conduct after the petition to adopt was filed is “wholly irrelevant to the
determination of whether the parent failed to significantly communicate with the child for any one year
period.” In re Adoption of Subsea, 562 N.E.2d 745, 750 n.3 (Ind. Ct. App. 1990).

                                                   12
constitute indirect communication by a non-custodial father. See In re Adoption of

Thomas, 431 N.E.2d 506, 515 (Ind. Ct. App. 1982). And there was evidence that West’s

mother had some visitation with S.W. But the Sedberrys stopped the visits with West’s

mother after S.W. stated that she was uncomfortable with the sexually suggestive talk by

West’s son, W.W. And even after the Sedberrys provided West’s mother with copies of

S.W.’s identification documents, she never followed through with the plan to take S.W.

to visit West in prison. Considering only the facts favoring the trial court’s decision, we

cannot say that it clearly erred by failing to consider West’s mother’s visits with S.W. as

significant communication by West.

        West also claims that the Sedberrys failed to prove that he was able to

communicate with S.W.,4 and asserts that his lack of communication was “likely” due to

the Sedberrys frequent and sometimes lengthy trips to Arizona.                       Not only is this

speculative, but it again asks us to consider the evidence contrary to the trial court’s

judgment. It is true that there was evidence that the Sedberrys visited Arizona quite often,

and even moved there for approximately three years in beginning in 2004. But there is

no evidence that they hid S.W. from West or his family. In this “communication age,”


4
   To the extent that West claims that his imprisonment made him unable to communicate with his
daughter, the trial court correctly noted that those who “pursue criminal activity run the risk of being
denied the opportunity to develop positive and meaningful relationships with their children.” Castro v.
State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting In re A.C.B., 598
N.E.2d 570, 572 (Ind. Ct. App. 1992)). Moreover, we would not necessarily hold an incarcerated parent
to the same standard as a non-incarcerated parent when it comes to determining whether that parent’s
communication with his or her child were significant. See Williams v. Townsend, 629 N.E.2d 252, 256
(Ind. Ct. App. 1994) (Rucker, J., dissenting) (citing Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App.
1986). The evidence here, however, demonstrates that West had no significant communication with S.W.
for over one year well before his incarceration and that this lack of significant communication continued
after his incarceration.

                                                   13
moving to another state does not make frequent communication with one’s child unduly

burdensome or impossible. Moreover, West had no communication with S.W. after he

stopped visiting her in 2002 and did not see her again until after Mother was released

from prison approximately three years later. Thus, from some time in 2002 until the

Sedberrys moved to Arizona in 2004, S.W. lived with the Sedberrys in Kokomo, yet

West made no effort to communicate or visit his daughter. In short, there was ample

evidence that West had no significant communication with his daughter for a period of

over one year, despite being able to do so.5

        In essence, West’s appellate argument is simply one that we consider evidence

that does not favor the trial court’s decision, reweigh the evidence, assess the credibility

of the witnesses, and come to a conclusion other than that reached by the trial court. This,

of course, is contrary to the applicable standard of review.

        Affirmed.

ROBB, C.J., and BAILEY, J., concur.




5
  We further note that the trial court also found that West was unfit to be a parent and that S.W.’s best
interests would be served if West’s consent were dispensed. See I.C. § 31-19-9-8(a)(11). This is a
separate grounds for not requiring West’s consent to the adoption. See D.C., 928 N.E.2d at 606.
However, West makes no argument that the trial court’s findings and conclusions are clearly erroneous
with regard to his fitness as a parent. Thus, even if the trial court’s findings and conclusions with regard
to West’s failure to significantly communicate were clearly erroneous, we would not reverse the judgment
of the trial court.

                                                    14
