MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Mar 11 2016, 7:04 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Mark Small                                              Robert N. Reimondo
Indianapolis, Indiana                                   Capper Tulley & Reimondo
                                                        Crawfordsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re Adoption of A.M.S. (Minor                         March 11, 2016
Child)                                                  Court of Appeals Case No.
                                                        54A05-1509-AD-2380
A.E.S. (Father),                                        Appeal from the Montgomery
Appellant-Respondent,                                   Superior Court
                                                        The Honorable Heather Dennison,
        v.                                              Judge
                                                        Trial Court Cause No.
D.S. (Stepfather),                                      54D01-1504-AD-7
Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016         Page 1 of 7
                                             Case Summary
[1]   A.E.S. (“Father”) appeals the trial court’s order granting the petition filed by

      D.S. (“Stepfather”) to adopt Father’s four-year-old biological daughter A.M.S.

      Father contends that there was insufficient evidence to support the trial court’s

      conclusion that his consent to the adoption was not required. Finding the

      evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   A.M.S. was born on September 21, 2010. A.S. (“Mother”) is her biological

      mother and Father is her biological father. In February 2011, when A.M.S.

      was approximately five months old, Father was incarcerated on charges of

      possession of methamphetamine. He began serving a ten-year prison sentence

      in May 2011. Mother brought A.M.S. to visit Father at the Montgomery

      County Jail approximately three times before he was transferred to the

      Putnamville Correctional Facility. Mother did not bring A.M.S. to visit Father

      after he was transferred.


[3]   While Father was incarcerated during 2012, Mother received approximately

      five letters from Father. The letters were addressed to Mother and not to

      A.M.S. The content of those letters generally related to Mother and Father’s

      relationship and only two of the five letters even mentioned A.M.S. The last

      letter Mother received from Father was in the fall of 2013. Again, the letter

      mostly concerned Mother and Father’s relationship with “maybe a couple

      sentences” having to do with A.M.S. and “how she was.” Tr. at 19. Mother


      Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016   Page 2 of 7
      spoke to Father on the phone approximately every three months in 2012. After

      2012 or early 2013, Mother no longer got any phone calls from Father.

      Although Father claims that he sent birthday cards, Christmas cards, and other

      mail to A.M.S. during his incarceration, Mother stated that she has never

      received a letter, card, or gift from Father to A.M.S. Father has never given

      Mother any financial support or assistance to care for A.M.S.


[4]   Mother and A.M.S. began living with Stepfather in July 2012, and Mother

      married Stepfather in August 2014. On April 28, 2015, Stepfather filed his

      verified petition for adoption of A.M.S. and Mother filed her consent to the

      adoption. In the adoption petition, Stepfather alleged that Father’s consent to

      the adoption was not required because for a period of at least one year, Father

      failed without justifiable cause to communicate significantly with A.M.S. when

      he was able to do so, and failed to provide for the care and support of A.M.S.

      when able to do so as required by law or judicial decree.


[5]   A hearing on the adoption petition was held on August 5, 2015. Counsel

      appeared on Father’s behalf and Father appeared by phone. At the conclusion

      of the hearing, the trial court determined that Father’s consent to the adoption

      was not required due to his failure without justifiable cause to communicate

      significantly with A.M.S. when he was able to do so for a period of at least one

      year. The trial court also concluded that A.M.S.’s adoption by Stepfather was

      in her best interests. Accordingly, the trial court granted Stepfather’s petition

      for adoption. This appeal followed.



      Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016   Page 3 of 7
                                     Discussion and Decision
[6]   Father’s sole contention on appeal is that there was insufficient evidence to

      support the trial court’s conclusion that his consent to the adoption was not

      required. When reviewing an adoption order, “we presume that the trial court’s

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

      presumption.” In re Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014),

      trans. denied. We will not disturb the trial court’s ruling unless the evidence

      leads to but one conclusion and the trial court reached an opposite conclusion.

      Id.


[7]   In an adoption proceeding, the petitioner must prove by clear and convincing

      evidence that a noncustodial parent’s consent is not required for the adoption.

      In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).


              In reviewing a judgment requiring proof by clear and convincing
              evidence, we may not impose our view as to whether the
              evidence is clear and convincing but must determine, by
              considering only the probative evidence and reasonable
              inferences supporting the judgment, whether a reasonable trier of
              fact could conclude that the judgment was established by clear
              and convincing evidence. Further, we may not reweigh evidence
              or assess witness credibility.


      Id. (citation omitted).


[8]   Indiana Code Section 31-19-9-8 reads in pertinent part,


              (a) Consent to adoption, which may be required under section 1
              of this chapter, is not required from any of the following:

      Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016   Page 4 of 7
               …

               (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.


[9]    Paragraph (a)(2) is written in the disjunctive, and therefore either subparagraph

       provides grounds for dispensing with parental consent. In re Adoption of B.R.,

       877 N.E.2d 217, 218 (Ind. Ct. App. 2007). Because the trial court’s decision

       here rested on Father’s lack of significant communication with A.M.S. for at

       least one year, we will focus only on the evidence regarding Father’s lack of

       significant communication with A.M.S.


[10]   The test for communication is not whether the noncustodial parent had no

       communication with the child, but whether he failed without justifiable cause to

       have significant communication when able to do so. In re Adoption of S.W., 979

       N.E.2d 633, 640 (Ind. Ct. App. 2012). “[T]he 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’ efforts to provide a settled

       environment to the child.” Id. (citation and quotation marks omitted).




       Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016   Page 5 of 7
[11]   The evidence indicates that Father has failed to significantly communicate with

       A.M.S. during the entire period of his incarceration, and that he has wholly

       failed to communicate with A.M.S. or Mother since early 2013. While Father

       gives numerous excuses, including Mother moving residences to live with

       Stepfather, Father offers no real explanation for his complete failure to reach

       out to his daughter in any meaningful way for almost two years. Regarding

       Father’s lack of communication efforts, the trial court stated in relevant part:

               One letter a month doesn’t mean significant communication.
               One Christmas card doesn’t equate to significant
               communication. The fact is that you went to DOC in [2012] after
               you had been sitting in our jail for a while and waited until
               [2015] to request that the Court require that you have contact
               with your child.[ 1] You had the ability to do that in [2012, 2013,
               2014]. You have failed to do that. You have failed to make the
               effort required of a parent who’s incarcerated by your own
               actions to have contact with your child. Your child doesn’t know
               who you are. It’s the sad reality. She doesn’t have any idea who
               you are and that’s because you haven’t communicated
               significantly with her or forced the issue. The requirement is on
               you. It’s not on her mother. It’s on you and you failed to do
               that. The Court therefore finds that your consent to the adoption
               is not warranted and that you have lost the ability to consent or
               object.




       1
        The record indicates that, on January 12, 2015, Father filed a “Petition to Order Mother to Implement
       Regular Correspondence with Father Concerning Minor Child.” Defendant’s Ex. B. Father testified that the
       petition was never heard or ruled upon because he failed to properly serve the document upon the
       Montgomery County prosecutor. The record also indicates that this document may have been originally filed
       on November 1, 2013, but Father does not explain any of the circumstances surrounding the earlier filing.

       Court of Appeals of Indiana | Memorandum Decision 54A05-1509-AD-2380 | March 11, 2016         Page 6 of 7
       Tr. at 68-69.


[12]   This summary of the evidence is quite poignant. Father’s assertions on appeal

       amount to a request that we reweigh the evidence, which we may not do.

       Considering only the probative evidence and reasonable inferences supporting

       the judgment, there was clear and convincing evidence before the trial court

       that for a period of at least one year, Father failed without justifiable cause to

       communicate significantly with A.M.S. when able to do so. Accordingly, we

       conclude that the trial court did not err in determining that Father’s consent

       was not required for the adoption. We affirm the decree of adoption entered by

       the trial court.


[13]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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