                                                                 Sep 02 2015, 8:45 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Jennifer A. Joas                                          Leanna Weissmann
Madison, Indiana                                          Lawrenceburg, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of E.A.,                               September 2, 2015

M.A.,                                                     Court of Appeals Case No.
                                                          78A01-1504-AD-153
Appellant-Respondent,
                                                          Appeal from the Switzerland
        v.                                                Circuit Court
                                                          The Honorable W. Gregory Coy,
D.B.,                                                     Judge
                                                          Trial Court Cause No.
Appellee-Petitioner.
                                                          78C01-1310-AD-4



Brown, Judge.




Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015             Page 1 of 15
[1]   M.A. (“Appellant”), the biological father of E.A., appeals the trial court’s

      decree granting the petition for adoption of E.A. by D.B. (“Adoptive Father”).

      Appellant raises one issue which we revise and restate as whether the court

      erred in granting Adoptive Father’s petition for adoption over the objection of

      Appellant. We affirm.


                                       Facts and Procedural History

[2]   On February 5, 2009, E.A. was born to R.B., the mother (“Mother”), and

      Appellant. Appellant had been arrested for burglary previous to the birth, but

      he bonded out and was present at E.A.’s birth and signed a paternity affidavit

      pursuant to Ind. Code § 16-37-2-2.1. Following the birth, Appellant, Mother,

      and E.A. lived with Appellant’s mother. On March 16, 2009, when E.A. was

      six weeks old, Appellant was re-arrested on burglary charges. Appellant has

      two other children who met E.A. once, when E.A. was three months old.


[3]   During the pendency of Appellant’s burglary case, he was held at the Jefferson

      County Jail. While there, Mother kept in contact with him, and the two had an

      understanding that they would remain in a relationship. On July 21, 2010,

      Appellant was sentenced to fifteen years on the burglary conviction and

      transferred to the Department of Correction (the “DOC”), and contact between

      then one-year-old E.A. and Appellant waned. Appellant “may have sent a

      birthday card the first birthday that [E.A.] had after [Appellant] went to

      prison,” but no further contact was had. Transcript at 21. Mother stopped

      sending Appellant pictures of E.A. after E.A.’s second birthday. The last time



      Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 2 of 15
      Appellant saw E.A. was immediately after he was sentenced on July 21, 2010

      when the court arranged for a visit.


[4]   Mother started dating Adoptive Father in the fall of 2010. On April 13, 2011,

      Mother married Adoptive Father.


[5]   On October 17, 2013, Adoptive Father filed a petition for adoption of E.A.

      alleging that Appellant: (A) has abandoned E.A.; (B) has failed to contact or

      support E.A. for at least one year; and (C) has not established paternity or has

      failed to register with the putative father registry. On November 14, 2013,

      Appellant filed a Verified Motion to Contest Adoption, as well as a Petition to

      Establish Paternity and Provide Support.


[6]   On March 31, 2015, the court held a hearing on Adoptive Father’s petition.

      Adoptive Father testified that he has lived with E.A., who at that point was six

      years old, since 2010, that they have a father-son relationship and E.A. calls

      him “Dad,” and that he is the only father E.A. has ever known. Id. at 9. He

      stated that during his time living with E.A., there had not been any contact

      between Appellant and E.A. When asked whether Appellant had been

      hindered in contacting E.A., Adoptive Father testified that they kept the

      address Appellant had until almost 2012, and that no mail had been sent to

      E.A. by Appellant at that address: He further noted that “when we got the

      papers from the Court after we filed this, that [E.A.] was about to have a

      birthday, Christmas and he knew the address because he sent us the paperwork.

      He still didn’t send [E.A.] a birthday card or Christmas card or letter.” Id. at


      Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 3 of 15
      10. He also testified that when the couple moved from the address Appellant

      had on file, they had their mail to that address forwarded to their new

      residence. He stated that he and Mother have another child and that E.A. helps

      to take care of her and “loves her to death . . . .” Id. at 13.


[7]   Mother testified that Appellant wrote her “a couple of letters” after sending the

      birthday card for E.A.’s second birthday, but she lost contact with him during

      that year. Id. at 21. She indicated that at the time the petition for adoption was

      filed Appellant had not filed anything to establish paternity, and she never

      received any monetary support from him, nor from any of Appellant’s family

      on his behalf. She testified that she had had contact with Appellant’s sister five

      or six times but “not in the past two years . . . .” Id. at 24. Mother testified

      that, after Appellant was arrested, on multiple occasions she attempted to make

      arrangements to visit with Appellant’s mother with E.A., but Appellant’s

      mother “always had a reason not to.” Id. at 32.


[8]   On cross-examination, Mother indicated that she changed her cell phone

      number “numerous times,” the first time being “shortly after” Appellant was

      incarcerated, and she did not provide Appellant with her new phone number.

      Id. at 26. She acknowledged that she “did nothing really to encourage

      [Appellant] to continue contacting” her. Id. at 27. She testified that Appellant’s

      sister attempted to make contact with her at her place of employment at a

      restaurant, but she avoided the sister by going into the kitchen. She indicated

      that it was “fair to say” she avoided telephone calls from Appellant’s family. Id.

      at 30. She also testified that Appellant’s sister had her current phone number,

      Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 4 of 15
       which she has not changed since 2012, but that she has not received calls from

       the sister.


[9]    Appellant testified that he had a substantial criminal history and that he had

       previous prison sentences for crimes of burglary and forgery. He testified that

       he was currently serving his burglary sentence through parole and probation,

       that he had been out of prison for two months, and that he was living with his

       sister. He stated that prior to his burglary conviction he had been out of prison

       for eighteen months, that prior to that he had been out for nine months, and

       that of the past twelve years he has been out of prison for about two years. He

       testified that he earned twelve dollars per month in prison and that he did not

       send any of his earnings to support E.A. or his other children. He also testified

       that fifteen percent of his earnings went into an inmate trust fund, that his other

       earnings went to pay for items like soap and shampoo, and that when he was

       released from prison he had $250 in his account. He further testified that at the

       time of the hearing he was painting six days a week in Madison, Indiana.


[10]   Appellant further testified that he stopped writing letters because he “had no

       idea if [Mother] was getting the letters,” but he further acknowledged that he

       did not receive any of his letters returned as undeliverable. Id. at 45. He stated

       that he did not have an accurate telephone number to reach Mother, and that at

       one point his sister gave him a new telephone number for Mother but that “by

       the time [he] put it on [his] phone list, it took a couple of weeks to get it

       activated, and it was gone. It didn’t work any more [sic].” Id. at 46. He

       testified that he became aware of the current address of E.A. and Mother when

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       he “received this hearing paper.” Id. He also explained that he “was also

       concerned with [Mother] calling in and saying ‘hey, this guy won’t leave me

       alone’. . . . so I just figured it was best to stop.” Id.


[11]   Appellant was asked by the court whether he had been married to the mother of

       his other children, and he replied that he had not been married to her but had

       filed a paternity case in Madison. The court asked if he ever asked his “family

       to hire a lawyer so that [he] could try to make some inroads with” E.A., and he

       responded that his family “doesn’t have the means for an attorney.” Id. at 56.


[12]   On April 7, 2015, the court issued its order on petition for adoption granting

       Adoptive Father’s petition and denying Appellant’s verified motion to contest

       adoption and petition to establish paternity. The court entered findings

       consistent with the foregoing and stated the following, under the heading “Law

       and Discussion”:


               [Appellant] has an extensive criminal history, and has never
               provided housing for [E.A.] for any time; he is only recently
               released from incarceration, and while this Court believes him
               when he says he is on the right track, he is only able to work with
               his father at this time and will be unlikely to find meaningful
               employment in the near future due to his lengthy criminal record.
               Due to his incarceration and [Mother’s] decision not to take
               [E.A.] to meet with him in prison, [Appellant] has not
               communicated with [E.A.] for the majority of his life.
               Individuals who are incarcerated due to criminal activity risk
               being denied the chance to develop 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]. There is no
               guarantee that [Appellant] will be able, now or in the future, to

       Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 6 of 15
        support [E.A.] or be a fit parent. The Court finds that it would be
        inappropriate to require a six year old child to wait and see how
        his recently-released biological father will fare in life before
        deciding whether to grant and [sic] adoption petition. In re
        Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d
        874, 883 [(Ind. Ct. App.] 2004).


        As to the issue of lack of communication, the burden is on
        [Adoptive Father] to prove that there has been a lack of contact
        for the statutory period, and that the ability to communicate
        during that period existed. In Re Adoption of Anonymous (1973),
        158 Ind.[ ]App.238, 302 [N.E.2d] 507. Here, [Appellant] did not
        have significant communication with [E.A.] from the time [E.A.]
        was six weeks old. He did not file any legal proceedings to
        establish paternity, parenting time, support or the like. His
        family likewise failed to take any action on his behalf; and he nor
        his family ever provided anything in the way of financial support
        to [Mother] for [E.A.]; this court finds this to be equivalent to
        abandonment or desertion. While [Mother] did not keep
        [Appellant] or his family apprised of her address or phone
        number, this Court finds that she did not knowingly conceal her
        whereabouts, change her or [E.A.’s] name, or engage in some
        other form of subterfuge to avoid all contact with [Appellant].
        Therefore, the Court finds that [Adoptive Father] has proven by
        clear and convincing evidence that [Appellant] failed to have
        meaningful communication with [E.A.] without justifiable cause.
        Finally, the evidence clearly and convincingly establishes that
        [Appellant] was at the time of the filing of the petition and at the
        time of the hearing unfit to be a parent and it is in the best
        interests of [E.A.] for the Court to dispense with [Appellant’s]
        consent in this case and grant [Adoptive Father’s] Petition to
        Adopt.


Appellant’s Appendix at 32-33 (footnote omitted).



Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 7 of 15
                                                     Discussion

[13]   The issue is whether the court erred in granting Adoptive Father’s petition for

       adoption over the objection of Appellant. 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). We presume

       the trial court’s decision is correct, and we consider the evidence in the light

       most favorable to the decision. Id.


[14]   When the trial court has made findings of fact and conclusions of law, we apply

       a two-tiered standard of review: we must first determine whether the evidence

       supports the findings and second, whether the findings support the judgment.

       Id.; see Ind. Trial Rule 52(A) (providing that where the trial court has made

       findings of fact and conclusions of law, “the court on appeal shall not set aside

       the findings or judgment unless clearly erroneous, and due regard shall be given

       to the opportunity of the trial court to judge the credibility of the witnesses”).

       Factual findings are clearly erroneous if the record lacks any evidence or

       reasonable inferences to support them and a judgment is clearly erroneous

       when it is unsupported by the findings of fact and the conclusions relying on

       those findings. In re Adoption of T.L., 4 N.E.3d at 662.


[15]   Ind. Code § 31-19-9-1(a) provides in part that, “[e]xcept as otherwise provided

       in this chapter, a petition to adopt . . . may be granted only if written consent to

       adoption has been executed” by “(2) The mother of a child born out of wedlock

       and the father of a child whose paternity has been established by . . . (B) a
       Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 8 of 15
paternity affidavit executed under IC 16-37-2-2.1 . . . .” However, Ind. Code §

31-19-9-8 provides that:


        (a) Consent to adoption, which may be required under section 1
        of this chapter, 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 | Opinion 78A01-1504-AD-153 | September 2, 2015      Page 9 of 15
                                                      *****


               (b) If 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.


[16]   Here, the trial court found that all of the foregoing statutory provisions applied

       to Appellant, and he challenges the court’s findings with respect to each

       provision. “However, the statute is written in the disjunctive such that the

       existence of any one of the circumstances provides sufficient ground to dispense

       with consent.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Because

       we conclude the trial court properly relied on at least one statutory provision—

       namely, that for a period of at least one year Appellant failed without justifiable

       cause to communicate significantly with E.A. although he was able to do so, see

       Ind. Code § 31-19-9-8(a)(2)(A)—we do not address other provisions on which

       the trial court may also have relied.


[17]   Appellant argues that he was present at E.A.’s birth and welcomed

       responsibility for the child by signing the paternity affidavit, distinguishing

       Matter of Adoption of Herman, 406 N.E.2d 277, 279 (Ind. Ct. App. 1980), reh’g

       denied. He notes that he exchanged multiple letters with Mother while at the

       Jefferson County Jail and had a visit with E.A. immediately after his sentencing

       in July 2010. He argues that he sent letters to Mother while at the DOC in

       which he would write about E.A., as well as a birthday card to E.A. for his

       second birthday, but in each instance he received no response. He asserts that

       he tried to call Mother but she changed her phone number and did not provide

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       him with her new number. He also argues that he asked his family to try and

       contact Mother, and Mother admitted at the hearing that she avoided

       Appellant’s sister when she attempted to contact Mother by phone or at

       Mother’s place of employment. He further asserts that he was afraid to

       continue with his attempts to contact Mother for fear of repercussions at the

       DOC.


[18]   Adoptive Father argues that Appellant admits he had very little communication

       with E.A. after he was sent to the DOC. He contends that Appellant did not

       support his argument regarding the possible repercussions for contacting

       Mother, noting that she “did not accuse him of stalking,” “did not threaten him

       with punitive action if he wrote” E.A., and “did not tell him to stop,” and

       Appellant “could have persisted in exercising his legal rights.” Appellee’s Brief

       at 7. Adoptive Father asserts that Appellant’s arguments regarding Mother’s

       address are contravened by the record, which demonstrates that she kept the

       mailing address known to Appellant until 2012 and then had her mail

       forwarded to her new address. He further notes that there is no evidence of

       mail being returned to father as undeliverable. Adoptive Father argues that

       Appellant’s family knew where Mother worked, but Appellant never contacted

       her there. Adoptive Father maintains that Appellant’s “lack of correspondence

       with E.A. was a matter of choice not necessity,” and “[s]etting aside [his]

       excuses, he had no legitimate reason to ignore E.A. for more than a year.” Id.

       at 9.




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[19]   In Lewis v. Roberts, 495 N.E.2d 810 (Ind. Ct. App. 1986), this court addressed

       the level of communication necessary to qualify as significant for the purposes

       of Ind. Code § 31-19-9-8(2)(A) where the objecting parent is incarcerated.1

       Donald Lewis had been sentenced to eight years imprisonment on a conviction

       of burglary in April of 1980, two years and eight months after daughter Erin

       was born, in which Lewis, Erin, and Erin’s mother Doris Roberts saw each

       other regularly and occasionally lived together. 495 N.E.2d at 811. During the

       first nine months of Lewis’s incarceration, he wrote Erin weekly and saw her

       every other week when Doris brought her to the prison. Id. By about the end

       of 1980, however, Doris stopped visiting Lewis and stopped answering his

       letters. Id. In the ensuing years, Lewis continued to write letters, writing letters

       two or three times a year and sending a total of ten letters in 1982 and 1983. Id.

       There was also evidence in the record that Lewis wrote four letters in 1984 prior

       to his release in November of that year. Id. at 811-812. Also, during his

       incarceration he sent Erin cards and gifts on her birthday, Christmas, and

       occasionally at Easter, and these gifts continued through 1984 when Doris




       1
           The relevant statute in Lewis was a predecessor statute, Ind. Code § 31-3-1-6(g), which provided:

                Consent to adoption is not required of:
                (1) a parent or parents if the child is adjudged to have been abandoned or deserted for six (6)
                months or more immediately preceding the date of the filing of the petition; or a parent of a
                child in the custody of another person, if for a period of at least one (1) year he fails without
                justifiable cause to communicate significantly with the child when able to do so or knowingly
                fails to provide for the care and support of the child when able to do so as required by law or
                judicial decree (when the parent or parents have made only token efforts to support or to
                communicate with the child, the court may declare the child abandoned by the parent or
                parents).
       (Repealed by Pub. L. No. 1-1997, § 157).

       Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015                           Page 12 of 15
       began to refuse presents from Lewis and his family. Id. at 811. Lewis also

       “made continuing, unsuccessful attempts to see his daughter.” Id.


[20]   This court observed that Petitioner Joseph Roberts was “required to prove not

       only that Lewis failed to communicate, but also that he was able to do so,”

       noting that “[e]fforts of a custodial parent to hamper or thwart communication

       between parent and child are relevant in determining the ability to

       communicate.” Id. at 812-813. Regarding Lewis’s status as an inmate, the

       court noted the following:

               Lewis’ communication with his daughter must be viewed in the
               context of his incarceration. Imprisonment standing alone does
               not establish statutory abandonment. Matter of Adoption of
               Herman (1980), Ind. App., 406 N.E.2d 277. 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. (Garrard, P.J., concurring).
               What constitutes insignificant communication with a free parent
               may be significant in relation to an incarcerated parent with
               limited access to his child.


       Id. at 813. The court reversed the trial court’s grant of Joseph’s petition for

       adoption, concluding that Lewis’s “persistence in writing his daughter, sending

       her cards and gifts and asking Ms. Roberts to bring Erin for visits” displayed “a

       continuing interest in” her, and that accordingly Joseph failed to meet his

       burden of proof. Id. In so holding, the court specifically noted that Lewis

       “persisted for four years despite Ms. Roberts’ failure to answer his letters and

       “expressed a desire to see Erin which Ms. Roberts refused to honor.” Id.

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[21]   Here, although we empathize with the situation Appellant faced, we cannot say

       that he displayed the requisite level of persistence demonstrating a continued

       interest in E.A., and the evidence shows he chose to end his efforts to do so.

       The record reveals that following his commitment to the DOC, he sent Mother

       a few letters in which E.A. was mentioned and sent E.A. a birthday card on his

       second birthday. Appellant did not receive any of the letters he sent returned as

       undeliverable, and indeed Mother testified that she kept the address Appellant

       had been sending mail to until 2012 and then had her mail forwarded to her

       new address. Appellant did not send a communication for a period of over two

       years prior to Adoptive Father’s filing of his petition for adoption. To the

       extent Appellant suggests that he stopped writing letters due to fears of

       repercussions at the DOC, we note that there was no evidence presented that

       Mother asked him to stop writing or otherwise threatened him with punitive

       action if he continued to write her. Also, although we find that contact between

       Appellant’s sister and Mother to be of marginal relevance, we note that Mother

       indicated that his sister had not phoned her since 2012, and Mother has had the

       same phone number since that time.


[22]   Based upon the record before us there was clear and convincing evidence before

       the trial court that while E.A. was “in the custody of another person [and] for a

       period of at least one (1) year [Appellant] . . . fail[ed] without justifiable cause

       to communicate significantly with [E.A.] when able to do so.” Ind. Code § 31-

       19-9-8(a)(2)(A). Appellant’s consent to the adoption of E.A. was therefore not




       Court of Appeals of Indiana | Opinion 78A01-1504-AD-153 | September 2, 2015   Page 14 of 15
       required.2 See In re Adoption of O.R., 16 N.E.3d at 973-975 (holding that the

       natural father, who was incarcerated, failed without justifiable cause to

       communicate significantly with his daughter, and noting that he called his

       daughter once, and that he did not attempt mail communication with her

       despite his awareness that the adoptive parents were represented by counsel and

       therefore he “could have initiated contact through their counsel or the court to

       communicate with” her).


                                                      Conclusion

[23]   For the foregoing reasons, we conclude that Appellant’s consent to the

       adoption of E.A. by Adoptive Father was not required pursuant to Ind. Code §

       31-19-9-8. We affirm the decree of adoption entered by the trial court.


[24]   Affirmed.


       Riley, J., and Friedlander, Sr. J., concur.




       2
         We note that “[e]ven if a court determines that a natural parent’s consent is not required for an adoption,
       the court must still determine whether adoption is in the child’s best interests.” In re Adoption of O.R., 16
       N.E.3d at 974 (citing Ind. Code. § 31-19-11-1(a)(1)). Here, the court stated in its order that it was in E.A.’s
       best interests to grant Adoptive Father’s petition, and Appellant does not challenge the court’s determination.

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