MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 May 14 2018, 9:32 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
Raymond P. Dudlo                                        Keith M. Wallace
Stoll Keenon Ogden PLLC                                 Keith Wallace Law
Evansville, Indiana                                     Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of L.A.Z.:                           May 14, 2018

L.Z.,                                                   Court of Appeals Case No.
                                                        26A01-1711-AD-2828
Appellant-Respondent,
                                                        Appeal from the Gibson Circuit
        v.                                              Court
                                                        The Honorable Jeffrey F. Meade,
E.G.,                                                   Judge
                                                        Trial Court Cause No.
Appellee-Petitioner
                                                        26C01-1704-AD-625



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018                Page 1 of 6
                                          Case Summary
[1]   L.Z. (“Father”) appeals the trial court’s order that his consent for E.G.

      (“Stepfather”) to adopt his minor daughter is not required. Finding no error,

      we affirm.



                            Facts and Procedural History
[2]   Father and N.G. (“Mother”) were married in March 2010, and Mother gave

      birth to their daughter, L.A.Z., in October 2010. On May 21, 2013, Father was

      arrested and charged with domestic battery against Mother, and a no-contact

      order was issued. The following day Father was released on bond. On May 31

      Mother filed for divorce. In August, while the divorce was pending, a

      provisional child-support order was entered, and Father was ordered to pay $86

      per week. At this time, Father was receiving monthly disability payments from

      the Department of Veterans Affairs (VA) and was able to work. Tr. Vol. II p.

      35.


[3]   Three months later, on November 4, Father was arrested for violating the no-

      contact order. Father remained in jail until November 27, when the trial court

      accepted his guilty plea to the domestic-battery charge and sentenced him to six

      months of work release. Around this same time, the divorce was finalized.

      Mother was awarded custody of L.A.Z., and Father’s child-support obligation

      was modified to $74 per week. As of November 2013, Father had not made

      any child-support payments and had an arrearage of $860.


      Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018   Page 2 of 6
[4]   In March 2014, Father was arrested and charged with burglary and other

      related offenses. He pled guilty and was sentenced to twelve years. In

      December 2014, Father petitioned to abate his child-support obligation because

      of his incarceration. The court approved Father’s request and set his child-

      support payment at $0. However, as of that time, Father still had not paid any

      child support and had an arrearage of $5152.


[5]   In September 2016, Father, who was still incarcerated, received a payment of

      $3000 to $5000 from the Department of Veterans Affairs (VA). He sent some of

      the money to his attorney and some to a “girlfriend” he had never met.1 Father

      also sent $300 to Mother “to go towards [L.A.Z.].” Id. at 12. As of September

      2016, this was the only child-support payment Father had made.


[6]   After dating for two years, Mother and Stepfather were married in January

      2017. Three months later, Stepfather petitioned to adopt L.A.Z. Father

      contested the adoption, and a hearing was held in September 2017. The trial

      court concluded that Father’s consent was not necessary because, for a period

      of at least three years, Father had failed to provide for the care and support of

      L.A.Z. despite being able to do so as required by law or judicial decree. Two

      months after the hearing, the court approved Stepfather’s petition for adoption.


[7]   Father now appeals.




      1
       At the hearing in this matter, Stepfather’s attorney stated that Father had never met the “girlfriend.” Tr.
      Vol. II p. 54. Father did not contest this at the hearing and does not contest it on appeal.

      Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018                 Page 3 of 6
                                Discussion and Decision
[8]   Father argues that the trial court erred when it concluded that his consent to the

      adoption was not necessary. In most cases, a natural parent must consent to

      the adoption of their minor child. However, consent is not required from:


              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.


      Ind. Code § 31-19-9-8(a)(2). The petitioner has the burden of proving by clear

      and convincing evidence that the non-custodial parent’s consent to a stepparent

      adoption is not required. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct.

      App. 2012).


[9]   “When reviewing adoption proceedings, we presume that the trial court’s

      decision is correct, and the appellant bears the burden of rebutting this

      presumption.” In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). We will

      not disturb the trial court’s ruling “unless the evidence leads to but one

      conclusion and the trial judge reached an opposite conclusion.” Id. at 973. We

      will not reweigh the evidence or judge witness credibility, and we will only

      examine the evidence most favorable to the trial court’s conclusion. Id.


      Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018   Page 4 of 6
[10]   Father contends that the trial court erred when it concluded that he knowingly

       failed to provide care and support for L.A.Z. when able to do so as required by

       law or judicial decree because (1) he was not “required” to pay child support

       since December 2014 and (2) he was unable to make payments because he had

       no income due to his incarceration. Father is correct that the court abated his

       child-support obligation in December 2014, but he omits the fact that he was

       obligated to pay and failed to pay child support for the previous sixteen

       months—$86 per week from August 2013 to November 2013 and $74 per week

       from November 2013 until the abatement in December 2014—amassing an

       arrearage of $5152. The statute requires only a one-year period of non-support

       when a parent is able. And by his own admission, Father received income from

       the VA and was physically able to work when not incarcerated, and he was not

       incarcerated for approximately six of the seven months from August 2013 to

       March 2014. However, none of that money was used to support or care for

       L.A.Z. Furthermore, when Father received $3000 to $5000 in September 2016,

       he chose to send money to a “girlfriend” that could have been sent to Mother to

       support L.A.Z. and pay down his arrearage. Accordingly, the trial court’s

       conclusion that Father’s consent was not necessary because he had knowingly

       failed to provide for the care and support of L.A.Z. when able to do so as

       required by law or judicial decree was not clearly erroneous.2




       2
        The trial court also concluded that Father’s consent was not necessary because Father failed for at least one
       year to communicate significantly with L.A.Z. when able to do so. Father challenges this conclusion.
       Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive, and either provision provides a ground for

       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018                Page 5 of 6
[11]   Affirmed.


       Barnes, J. and Pyle, J., concur.




       dispensing with parental consent. S.W., 979 N.E.2d at 640. Because we affirm on the ground that Father
       failed to support L.A.Z. for at least one year, we do not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018            Page 6 of 6
