      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                        Oct 08 2015, 9:29 am
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      R. Patrick Magrath
      Alcorn Sage Schwartz & Magrath, LLP
      Madison, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Adoption of                         October 8, 2015
      M.H.;                                                    Court of Appeals Case No.
                                                               39A05-1503-AD-87
      D.M.,
                                                               Appeal from the Jefferson Circuit
      Appellant/Respondent,                                    Court
              v.                                               The Honorable William E. Vance,
                                                               Senior Judge
      B.H.,                                                    Trial Court Cause No.
                                                               39C01-1308-AD-14
      Appellee/Petitioner.




      Pyle, Judge.


                                       Statement of the Case
[1]   Appellant/Respondent, D.M. (“Father”), appeals the trial court’s order

      granting Appellee/Petitioner, B.H.’s (“Maternal Grandmother”), petition to

      Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015     Page 1 of 19
      adopt his minor daughter, M.H. In an adoption hearing, the trial court held

      that Father’s consent was not required for the adoption because Father had

      failed to communicate significantly with M.H. for more than a year and had

      failed to pay child support for her for more than a year. On appeal, Father

      argues that the trial court erred and his consent was required because: (1) there

      was no evidence to support the trial court’s findings of fact; (2) the trial court

      inappropriately shifted the burden of proof to Father; and (3) the trial court’s

      findings of fact did not support its conclusions of law that Father had failed to

      communicate significantly with M.H. or pay her child support for more than a

      year. Because we conclude that there was evidence to support the trial court’s

      findings of fact, it did not inappropriately shift the burden of proof, and its

      findings of fact did support its conclusions, we affirm.


      We affirm.


                                                     Issue
              Whether Father’s consent was required for Maternal Grandmother
              to adopt Father’s minor daughter, M.H.

                                                     Facts
[2]   T.H. (“Mother”) and Father had one child together, M.H., who was born in

      June 2008. After M.H.’s birth, she and Mother lived with Maternal

      Grandmother. Father did not sign M.H.’s birth certificate. However, Mother

      later established his paternity, and, on January 1, 2009, the trial court ordered

      him to pay child support in the amount of $30 per week. Father was not

      working during M.H.’s first year of life, so he only paid support “sometime[s].”

      Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 2 of 19
      (Tr. 12). In total, between January 23, 2009 and May 17, 2013, he paid

      $181.90.


[3]   Prior to M.H.’s birth, Father had served a sentence in the Indiana Department

      of Correction from July 19, 2006 to July 4, 2007, for a dealing in cocaine

      conviction. In October 2009, he was then charged with conspiracy to deal

      cocaine based on events that had occurred in June 2008, the same month that

      M.H. was born. He was convicted of the charge, and the trial court sentenced

      him to nine (9) years, plus an additional three (3) years for violating his

      probation in his earlier dealing in cocaine conviction.1 As a result, Father was

      incarcerated from October 2009 until October 7, 2014. During this time, he did

      not pay any child support for M.H. He later testified that he did not know he

      could petition the court for an abatement of his child support while he was

      incarcerated.


[4]   During Father’s incarceration, M.H. lived with Maternal Grandmother.

      Mother also lived with Maternal Grandmother for the first four years of M.H.’s

      life, but she then moved out when M.H. was four years old and left her in

      Maternal Grandmother’s care. Father did not make any attempts to

      communicate with M.H. at Maternal Grandmother’s house during his

      incarceration. However, Maternal Grandmother allowed Father’s mother

      (“Paternal Grandmother”) and step-father (“Paternal Step-Grandfather”)



      1
        Father’s judgments of conviction and sentencing orders are not a part of the record. Accordingly, these
      facts regarding his convictions and sentences are based on his testimony at the hearing.

      Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015             Page 3 of 19
      (collectively, “Paternal Grandparents”) to visit with M.H. every third weekend

      of the month, and M.H. would talk to Father at Paternal Grandparents’ house

      “if she was there when he called.” (Tr. 130).


[5]   In May 2013, with Mother’s and Father’s consent, Maternal Grandmother

      established a guardianship of M.H. While Father was in the court for the

      guardianship hearing, he asked Maternal Grandmother if she would transport

      M.H. to his prison to visit with him. Maternal Grandmother and the

      Department of Child Services (DCS) objected to this request on the basis that

      M.H. did not really know Father and that it was inappropriate for a child to

      visit a prison. DCS told Maternal Grandmother not to take M.H. to the prison

      and also told Maternal Grandmother not to allow Paternal Grandparents

      visitation if they were going to take M.H. to the prison.


[6]   Shortly thereafter, on August 21, 2013, Maternal Grandmother filed a petition

      to adopt M.H. and to terminate Mother’s and Father’s parental rights. Mother

      consented to the adoption, but Father did not. The matter was originally set for

      a hearing on September 10, 2013, but Father entered his objection to the

      adoption on that date, and the adoption court appointed counsel to represent

      him. On May 9, 2014, Father filed notice of his intent to contest the adoption.


[7]   In the meantime, on March 9, 2014, M.H. returned home from a visit with

      Paternal Grandparents with her cheekbone “all swollen, black and blue” and a

      puncture mark on the top of her forehead. (Tr. 74). Maternal Grandmother

      tried to reach Paternal Step-Grandfather over the next three days to find out


      Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 4 of 19
      what had happened, but he did not respond. Later, she discovered that a dog

      had bitten M.H. while she was at the Paternal Grandparents’ house.

      Subsequently, she did not allow Paternal Grandparents to have visitation with

      M.H.2


[8]   Father was released from prison on October 7, 2014. At the time of his release,

      he had only $50 to $60 in his bank account. Debbie Lohrig (“Lohrig”), with the

      Child Support Administration of the Prosecutor’s Office, calculated that the

      child support he owed Mother for the period of time before Maternal

      Grandmother’s guardianship was in arrearage of $6,628.10. She also calculated

      that Father owed Maternal Grandmother $660 for child support that had

      accrued since she had become M.H.’s guardian.


[9]   After his release, Father lived with his biological father and got a job doing

      construction for a week, which paid eight dollars an hour, then got a job at

      Pizza Hut. On November 26, 2014, a wage withholding order went into effect

      to garnish current and arrearage child support in the amount of $35 per check

      from Father’s Pizza Hut wages. As of the time of the hearing, child support

      had been withheld on three of the checks. However, Father did not pay any

      child support from his earnings at his construction job.




      2
       Maternal Grandmother also testified that Paternal Grandparents did not make any attempts to re-establish
      visitation after that incident.

      Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015          Page 5 of 19
[10]   One night that fall, when Father was walking from Pizza Hut, he saw Maternal

       Grandmother and six-year-old M.H. and “hollered” at M.H., saying “Hey,

       baby girl. How are you doing?” (Tr. 69). M.H. got behind Maternal

       Grandmother and then got into Maternal Grandmother’s car. When they were

       both inside, Maternal Grandmother asked, “M.H., who was that?” and she

       responded “I don’t know, Memmaw.” (Tr. 70). Maternal Grandmother

       responded, “Well, you know what I said about talking to strangers,” and M.H.

       said, “Yeah, that’s why I got behind you.” (Tr. 70). Maternal Grandmother

       did not tell M.H. that the person she had seen in the parking lot was Father.

       Father later testified that, because Maternal Grandmother did not let him see

       M.H. during this incident, he did not attempt to contact Maternal Grandmother

       for visitation after his release from prison.


[11]   On December 29, 2014, the trial court held a hearing on Maternal

       Grandmother’s petition to adopt M.H. and to terminate Father’s parental

       rights. At trial, Father said that he had communicated with M.H. on the phone

       from prison “numerous times” when she had been at Paternal Grandparents’

       house. (Tr. 27). He also said that he had sent her one birthday card at

       Maternal Grandmother’s house and that he had arranged for Angel Tree to

       send Christmas presents for her at Paternal Grandparents’ house. However,

       both of these events occurred after Maternal Grandmother filed her petition for

       adoption.


[12]   Paternal Step-Grandfather testified that he had previously taken M.H. to the

       prison to see Father when she stayed with Paternal Grandparents and that

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 6 of 19
       Father had communicated with M.H. through “[p]hone calls, letters, or

       visitation.” (Tr. 120). When he was asked whether it was possible he had

       gotten confused and that it was Father’s other daughter he had taken to visit

       Father in prison, though, Paternal Step-Grandfather said, “Well, we . . . we . . .

       we took both, but uh . . . because M.H. wasn’t on the uh . . . list she didn’t get

       to see her father, but we did take her down there.” (Tr. 120).


[13]   Next, Paternal Grandmother testified that Father had attempted to

       communicate with M.H. “if she was there when he called.” (Tr. 130). She also

       mentioned that Father had arranged for Angel Tree to send M.H. Christmas

       presents the previous year.


[14]   At the conclusion of the trial, the trial court entered findings of fact and

       conclusions thereon, concluding that Father’s consent was not required for

       Maternal Grandmother’s adoption because he had failed to communicate

       significantly with M.H. and to pay child support for her for more than a year.

       The trial court also granted Maternal Grandmother’s petition for adoption.

       Father now appeals. Additional facts will be provided as necessary.


                                                   Decision
[15]   On appeal, Father challenges the trial court’s conclusion that his consent was

       not required for the adoption. Specifically, he argues that the trial court erred

       and that his consent was required because: (1) there was no evidence to support

       the trial court’s findings of fact; (2) the trial court inappropriately shifted the



       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 7 of 19
       burden of proof to him instead of Maternal Grandmother; and (3) the trial

       court’s findings of fact do not support its conclusions of law.


[16]   Generally, a petition to adopt a minor child born out of wedlock may be

       granted only if written consent to the adoption has been provided by “the

       mother . . . and the father of a child whose paternity has been established by:

       (A) a court proceeding other than the adoption proceeding, except as provided

       in [INDIANA CODE §] 31-14-20-2; or (B) a paternity affidavit executed under

       [INDIANA CODE §] 16-37-2-2.1[.]” I.C. § 31-19-9-1(a)(2). However, there are a

       number of exceptions to the consent requirement. See I.C. § 31-19-9-8. As is

       relevant here, 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[.]” I.C. § 31-19-9-8(a)(2)(A). If an adoption petition alleges that a

       parent’s consent is unnecessary under INDIANA CODE § 31-19-9-8(a)(2) and that

       parent files a motion to contest, “‘a petitioner for adoption has the burden of

       proving that the parent’s consent to the adoption is unnecessary’ by clear and

       convincing evidence.” D.D. v. D.P., 8 N.E.3d 217, 220-21 (Ind. Ct. App. 2014)

       (quoting I.C. § 31-19-10-1.2).


[17]   Where, as here, a trial court enters findings of fact and conclusions of law, this

       Court determines, first, whether the evidence supports the findings and, second,

       whether the findings support the judgment. Id. at 220. We will set aside the

       trial court’s findings of fact and conclusions of law only if they are clearly

       erroneous, or, in other words, the record contains no facts or inferences to

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 8 of 19
       support them. Id. The trial court’s judgment is clearly erroneous when “‘it is

       unsupported by the findings of fact and conclusions of law relying on those

       findings.’” Id. (quoting In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014)).

       In making this determination, we will neither reweigh the evidence nor judge

       the credibility of witnesses. In re Paternity of M.F., 938 N.E.2d 1256, 1258 (Ind.

       Ct. App. 2010), reh’g denied, trans. denied.


[18]   Maternal Grandmother did not file an Appellee’s Brief. Where the appellee

       fails to file a brief, we will not undertake the burden of developing arguments

       for the appellee. In re Adoption of N.W.R., 971 N.E.2d 110, 112 (Ind. Ct. App.

       2012). We apply a less stringent standard of review and may reverse the trial

       court if the appellant establishes prima facie error. Id. at 113. Prima facie is

       defined as “at first sight, on first appearance, or on the face of it.” Id.


[19]   Father’s first argument is that the trial court erred because there was no

       evidence to support two of its findings of fact. Specifically, the trial court found

       that “[Father] ha[d] only seen [M.H.] on two or three occasions since her

       birth,” (App. 22), and that:

               57. Three witnesses testified on behalf of [Father:] his mother,
               his father, and himself.


               58. They gave conflicting testimony as to the amount and type of
               contact [Father] is alleged to have had with [M.H.] when she was
               visiting his parents.




       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 9 of 19
       (App. 23). Father claims that these findings were erroneous because: (1) he

       had testified that Mother and M.H. stayed with him at his home prior to his

       October 2009 incarceration and, thus, he saw her more than two or three times;

       and (2) his witnesses had not given conflicting testimony because they had all

       testified that he had spoken with M.H. “numerous” times on the phone when

       M.H. was visiting Father’s parents. (Father’s Br. 12).


[20]   However, Father’s arguments are a request to reweigh the evidence, which we

       will not do. Paternity of M.F., 938 N.E.2d at 1258. In spite of Father’s

       contentions, there was evidence to support the trial court’s findings. As for

       Father’s first argument, even though Father testified that Mother and M.H. had

       stayed with him prior to his incarceration, Maternal Grandmother disagreed

       and testified that Father had “seen M.H. maybe three times tops when she was

       a baby.” (Tr. 89). It is not our place to reweigh or question the trial court’s

       determination of her credibility. Paternity of M.F., 938 N.E.2d at 1258.


[21]   There was also evidence that Father’s witnesses had conflicting testimony.

       Paternal Step-Grandfather testified that he had previously taken M.H. to the

       prison to see Father when she stayed with Paternal Grandparents and that

       Father had communicated with M.H. through “[p]hone calls, letters, or

       visitation.” (Tr. 120). However, when he was asked whether it was possible he

       had gotten confused, he retracted his statement and said that he had taken

       M.H. to the prison but she had not seen Father. Then, when Paternal

       Grandmother was asked whether Father had communicated with M.H., she

       mentioned only that Father had talked to M.H. on the phone. She never

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 10 of 19
       testified that Father had attempted to communicate with M.H. through letters

       or visitation, even when she was asked whether Father had ever sent M.H.

       anything such as “gifts and cards.” (Tr. 130). These inconsistencies support the

       trial court’s finding that Father’s witnesses had conflicting testimony.


[22]   Next, Father argues that the trial court inappropriately shifted the burden of

       proof to him on the issue of his communication with M.H. As we stated above,

       “‘a petitioner for adoption has the burden of proving that the parent’s consent

       to the adoption is unnecessary’ by clear and convincing evidence.” D.D., 8

       N.E.3d at 220-21 (quoting I.C. § 31-19-10-1.2). Father points to the trial court’s

       following conclusions of law to support his argument:

               6. The party bearing the burden of proof in an adoption
               proceeding must prove their case by clear and convincing
               evidence. [I.C. §] 31-19-10-0.5.


               7. [Father] presented very little testimony that the best interests
               of [M.H.] were better served by the adoption being denied. He
               established that he was the biological parent, that he had some
               limited contact with the child in her infancy, that he wanted “his
               rights” to have parenting time, that he was now out of prison,
               that he had held a job for a few weeks and paid minimal child
               support, that he believed he could care for her, and that he felt he
               had “learned his lesson” and would not be returning to prison.


               8. [Father] presented no evidence as to why he had not
               supported his child when he was not incarcerated or why he had
               not kept in contact [with] her when not incarcerated or even
               while incarcerated through, at minimum, letters or phone calls.
               [Father] admitted to his history of criminal convictions including
               those for domestic violence, violent crimes, and drug related

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 11 of 19
               charges. Finally, [Father] admitted he did not want custody of
               [M.H.] but wanted only parenting time at this time, thus showing
               that he wanted limited responsibility for the care of the child.
               Rather than focusing on the best interests of [M.H.], [Father]
               seems to focus on the benefits he wants without also assuming
               any responsibilities.


               9. [Father] fails to establish by clear and convincing evidence
               that it is in the best interest of [M.H.] for her to be denied the
               opportunity to be adopted by the only “mother” figure she has
               known and into the family unit she has known.


[23]   (App. 27-28). Father asserts that, while, as findings of fact, paragraphs seven

       and eight “could be construed as mere discretionary assessment of the factual

       record[,]” as conclusions of law they are “bookended by two statements

       regarding the burden of proof” and thus openly apply the clear and convincing

       standard to his evidence. (Father’s Br. 9).


[24]   We disagree. While the trial court discussed the evidence Father “presented”

       and then applied the “clear and convincing evidence” standard to the evidence,

       the trial court used similar language in its conclusions regarding Maternal

       Grandmother. (App. 27-28). Specifically, it concluded:


               10. [Maternal Grandmother], by contrast, established that she
               has been the adult who has cared for [M.H.] physically,
               emotionally, and financially, since her birth. She presented
               evidence that meets all of the factors for consideration in
               determining the best interests of a child and for satisfying the
               requirements for a de facto custodian since [M.H.’s] birth.




       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 12 of 19
        11. [Maternal Grandmother], through testimony of family
        members, friends and third parties including the case manager
        from Indiana Department of Child Services established that her
        home provided a loving, safe, secure environment for [M.H.] and
        that [M.H.] was bonded with her siblings in the home as well as
        with [Maternal Grandmother] and extended family.


        12. [Maternal Grandmother] established through testimony of
        the representative of the Prosecutor’s Office Child Support
        Division, that [Father] had not met his financial obligation to his
        child even when not incarcerated.

                                         *        *       *

        15. . . . [T]here is no justifiable cause why [Father] could not
        have communicated with his child both when he was not in
        prison or even through written communication or phone calls
        while in prison. He has further failed to communicate with her
        in any fashion other than yelling at her across a parking lot since
        his release from prison in October of 2014.


        16. [Maternal Grandmother] has established by clear and
        convincing evidence sufficient to defeat a contest to this
        adoption, that it is in M.H.’s best interest that this adoption be
        allowed to proceed.


        17. Further, the evidence presented at the hearing in this matter
        also establishes that under [the] Indiana Code[,] [Father’s]
        consent [] is not necessary.


(App. 28-29). Based on the similarity of the language that the trial court used in

these conclusions—using words such as “established” and referring to the

“clear and convincing” standard—it is clear that in paragraphs seven and eight

the trial court was merely reviewing the evidence that Father had presented,

Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 13 of 19
       and in paragraphs ten, eleven, and twelve, it was reviewing the evidence that

       Maternal Grandmother had presented. Notably, the trial court also applied the

       clear and convincing standard to Maternal Grandmother’s evidence in

       paragraph sixteen and said that she had met her burden of proof.


[25]   Further, in paragraph nine, it is clear that the trial court was applying the clear

       and convincing standard within the context of M.H.’s best interests. While

       M.H.’s best interests were relevant to deciding Maternal Grandmother’s

       adoption petition, they were not relevant to the issue of whether Father’s

       consent to the adoption was required. See I.C. § 31-19-9-8 (specifying that a

       parent’s consent to an adoption is not required if the parent “has failed without

       justifiable cause to communicate significantly with the child when able to do

       so” for at least one year). Therefore, we conclude that the trial court’s reference

       to the burden of proof in paragraph six and its reference to the clear and

       convincing standard in paragraph nine did not indicate that the trial court

       inappropriately shifted the burden of proof to Father on the issue of his consent.


[26]   Finally, Father argues that the trial court’s findings as a whole do not support

       its conclusion that he failed to communicate significantly with M.H. for at least

       one year. He notes that his ability to communicate with M.H. while

       incarcerated was limited and asserts that, in spite of his incarceration, he made

       efforts to communicate with M.H. and asked for visitation with her.


[27]   In addition to the findings of fact we discussed previously regarding Father’s

       contact with M.H. and the reliability of his witnesses, the trial court also made


       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 14 of 19
the following findings of fact relevant to the issue of Father’s communication

with M.H.:


        23. While in Court for the Guardianship hearing on April 19,
        2013, [Father] asked that [Maternal Grandmother] transport
        M.H. to Branchville Correctional facility for visitation with him.


        24. [Maternal Grandmother] and Indiana Department of Child
        Services objected to this on the basis that M.H. did not even
        know [Father] because there had been no contact since [M.H.’s]
        infancy and because they did not believe the prison was an
        appropriate place for the child.


        25. The Court concurred with Indiana Department of Child
        Services and [Maternal Grandmother] on this issue and no
        visitation occurred.

                                         *        *       *

        36. [Father] was not present at [M.H.’s] birth.

                                         *        *       *

        38. Father testified [Mother] and [M.H.] had shared a house
        with [him] and his wife and brother for several weeks while
        [M.H.] was an infant.


        39. [Maternal Grandmother], Barbara Harden, and Crystal
        Weaver testified [Father] has never had the physical care of
        [M.H.].

                                         *        *       *

        41. [Father] stipulated that at the time of the hearing in this
        matter, of the approximately 2,400 days of [M.H.’s] life, he had
        been incarcerated for all but 554 days.


Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 15 of 19
                                                *        *       *

               55. Since [M.H.’s] birth, [Father] has sent her one birthday card,
               and claims to have had Christmas presents for her, that were
               donated by others through the Angel Tree program, dropped off
               at his parents’ home in December 2013.


               56. Both of these two contacts only occurred after the Petition
               for Adoption had been filed and the adoption was contested.

                                                *        *       *

               59. His father claimed he took [M.H.] to visit [Father] while he
               was in prison, his mother testified there was telephone contact,
               and [Father] testified there was telephone contact and she came
               to the prison but did not see him.

               60. Father was released from his most recent incarceration in
               October 2014.


               61. [Father] admitted he had made no attempt to see [M.H.]
               since his release from incarceration.


       (App. 21-24).


[28]   In order to preserve the consent requirement for adoption, a parent’s level of

       communication with his or her child must be significant and also must

       constitute more than “token efforts” on the part of the parent to communicate

       with the child. In re Adoption of C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App.

       2006). The reasonable intent of the statute is to “encourage non-custodial

       parents to maintain communication with their children and to discourage non-

       custodial parents from visiting their children just often enough to thwart the

       adoptive parents; efforts to provide a settled environment for the children.” Id.
       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 16 of 19
       We have previously held that we must view an incarcerated parent’s

       communication with his or her child within the context of the incarceration.

       Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986). Confinement alone

       should not constitute a 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.


[29]   In Lewis, we held that an incarcerated parent had communicated significantly

       with his daughter where he had written her weekly and seen her every other

       week during the first nine months of his imprisonment. Lewis, 495 N.E.2d at

       813. Thereafter, he wrote her two to three times a year and sent cards and gifts

       at Christmas, at Easter, and on her birthday, for four years in spite of the fact

       that she and her custodian failed to answer any of his letters. Id. In contrast, in

       Adoption of E.A., this Court found that a father, who was in the Department of

       Correction, had not significantly communicated with his son when the father

       had only sent his son a birthday card and mentioned his son in a few letters to

       his son’s mother. In re Adoption of E.A., No. 78A01-1504-AD-153 (Ind. Ct. App.

       Sept. 2, 2015).


[30]   Here, the trial court found that Father had only seen M.H. two to three times as

       a baby in the year before he was incarcerated. While Father testified that he

       saw her more frequently, it is clear that the trial court did not find that

       testimony credible. As we noted in Williams v. Townsend, 629 N.E.2d 252, 254

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 17 of 19
       (Ind. Ct. App. 1994), “trial courts retain the prerogative to believe or disbelieve

       self[-]serving testimony.” Then, during Father’s incarceration from October

       2009 to October 2014, he never contacted M.H. at her primary residence, her

       Maternal Grandmother’s house. While he claims that he did talk with M.H. on

       the phone when she stayed at Paternal Grandparents’ house, she only stayed

       there one weekend a month. Paternal Grandmother also testified that Father

       only talked to M.H. at Paternal Grandparents’ house “if she was there when he

       called.” (Tr. 130). The trial court did not find that he otherwise communicated

       with M.H., either through letters or visits. Father did send her one birthday

       card and arranged to have Christmas presents delivered for her, but both of

       these events occurred after Maternal Grandmother petitioned to adopt M.H.

       He did not make any attempts to send any cards or gifts during the other years

       of M.H.’s life that he was incarcerated. We have previously noted that a

       parent’s conduct after the petition to adopt has been 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 S.W., 979 N.E.2d 633,

       640 n.3 (Ind. Ct. App. 2012).


[31]   In light of all of these factors, we conclude that the trial court did not err in

       determining that Father had failed to communicate significantly with M.H. for




       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015   Page 18 of 19
       more than a year.3 Thus, the trial court also did not err in concluding that

       Father’s consent was not required for M.H.’s adoption.


[32]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       3
         Because we have concluded that the trial court did not err in determining that Father had failed to
       communicate significantly with M.H. for more than a year, we need not address Father’s remaining
       arguments regarding the trial court’s conclusion that he had failed to pay child support for her for more than
       a year. See In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014) (“[T]he statute is written in the disjunctive
       such that the existence of any one of the circumstances provides sufficient ground to dispense with
       consent.”).

       Court of Appeals of Indiana | Memorandum Decision 39A05-1503-AD-87 | October 8, 2015               Page 19 of 19
