MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Mar 02 2018, 8:49 am

court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Elden E. Stoops, Jr.                                    Pamela Buchanan
Law Offices of Elden E. Stoops, Jr.                     Buchanan & Bruggenschmidt, P.C.
North Manchester, Indiana                               Zionsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of P.H. and                          March 2, 2018
M.H., Minor Children,                                   Court of Appeals Case No.
                                                        06A01-1706-AD-1494
B.H.,
                                                        Appeal from the Boone Superior
Appellant-Respondent,                                   Court

        v.                                              The Honorable Matthew C.
                                                        Kincaid, Judge

M.S.,                                                   Trial Court Cause Nos.
                                                        06D01-1606-AD-7
Appellee-Petitioner                                     06D01-1606-AD-8




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018      Page 1 of 11
[1]   B.H. (Father) appeals the trial court’s order permitting M.S. (Stepfather) to

      adopt Father’s biological children without Father’s consent, arguing that the

      trial court erred by finding that for at least one year, Father failed to support his

      children when able to do so and failed to communicate significantly with his

      children when able to do so. Finding no error, we affirm.


                                                    Facts
[2]   T.H.S. (Mother) and Father are the biological parents of two minor children,

      M.H. and P.H. In 2009, Mother and Father divorced in Texas, and that same

      year, Mother moved to Indiana to be near her family. The final divorce decree

      awarded Mother primary physical custody and the parents joint legal custody.

      In the decree, Mother agreed to waive Father’s child support obligation for four

      years to allow Father time to complete his college education or start a

      profession if he chose to do so. Mother paid all of the children’s living expenses

      during these four years. The decree ordered Father to start paying child support

      to Mother on March 1, 2013; ordered that his child support obligation would be

      calculated based on Father earning the minimum hourly wage if Father was

      unemployed on March 1, 2013; divided parenting time between the parents;

      ordered Mother to provide health insurance for the children; and ordered

      Mother and Father to divide equally the children’s uninsured healthcare costs.


[3]   Father did not start paying child support on March 1, 2013, nor did he

      contribute financially to the children’s uninsured healthcare expenses. Since




      Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 2 of 11
      March 1, 2013, Father has been gainfully employed, including a two-year stint

      as a successful salesperson for an electronics store.


[4]   Since the divorce, Father has moved several times in Texas, Georgia, and South

      Carolina. Father did not notify the trial court of his new addresses. Mother

      tried to encourage Father to establish regular contact with the children, sent

      Father photographs of them, and emailed Father with updates about them.

      Mother emailed Father about his child support obligation several times and

      asked for his income records, but Father did not respond to Mother’s emails or

      provide copies of his tax returns. Mother occasionally mailed packages to

      Father at Father’s last-known address, often including a letter from Mother,

      information about and copies of receipts for the children’s uninsured health-

      care expenses, and current photographs of the children. Most of the packages

      were returned to Mother, marked “unclaimed or unknown addressee.” Tr. Vol.

      II p. 65.


[5]   Father did not exercise all the parenting time he was entitled to, and despite an

      order requiring him to provide notice to Mother if he was unable to exercise his

      parenting time, Father routinely failed to provide such notice to Mother.

      Father’s contact with the children included the following:


          • In 2010, Father spoke with the children by phone four times and by
            Skype once for a total of 105 minutes. In June, Mother took the children
            to Texas for a three-day visit with Father. In November, Father saw the
            children when Mother took them to South Carolina to visit their paternal
            grandmother.



      Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 3 of 11
          • In 2011, Father spoke with the children by phone five times for a total of
            one hundred minutes. In May, Mother took the children to Texas for a
            three-day visit with Father.
          • In 2012, Father spoke with the children by phone twice and by Skype
            once for a total of ninety-four minutes. In November, Father saw the
            children during their four-day visit to their paternal grandmother in
            South Carolina.
          • In 2013, Father spoke with the children by phone ten times and by Skype
            once for a total of 189 minutes. In November, the children had a two-
            day visit with Father in Atlanta, during which the children called Mother
            because Father had no food for them in his apartment. Father also saw
            the children during their ten-day visit to their paternal grandmother in
            South Carolina.
          • In 2014, Father spoke with the children by phone twice and by Skype
            twice for a total of fifty-five minutes. In July, the children again visited
            their paternal grandmother in South Carolina; Father saw the children on
            four of the ten days of their visit. In November, Father drove to Indiana
            for a visit with the children that lasted less than twenty-four hours.
          • In 2015, Father spoke with the children by phone twice and by Skype
            once for a total of forty-eight minutes. In March 2015, Father left his
            daughter a voicemail message wishing her a happy birthday, despite her
            birthday being in September.

[6]   In 2014, Mother married Stepfather. On June 3, 2016, Stepfather petitioned to

      adopt M.H. and P.H. In his petition, Stepfather alleged that Father’s consent to

      his adoption of the children was not required because Father had failed without

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

      so and that Father had knowingly failed to provide for the care and support of

      the children when able to do so for at least one year. On June 20, 2016, Father

      filed a motion contesting the adoptions.




      Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 4 of 11
[7]   A hearing took place on May 1, 2017, to address whether Father’s consent to

      Stepfather’s adoption of the children was necessary. On June 19, 2017, the trial

      court found that Father’s consent to Stepfather’s adoption of the children was

      not required. The trial court made the following findings:


              1. [Father] has been under a child support order . . . . He was to
              pay 50% of uninsured medical expenses of the children and he
              was to pay support after March 1, 2013.


              2. Father failed to reimburse Mother for medical expenses and
              prescription[s] incurred on behalf of the children during 2010
              through 2013.


              3. Father paid Mother no child support from March 1, 2013
              through 2015.


              4. Father worked as an account executive for Yellow Pages.com
              for part of 2012 and 2013. He worked as a bartender from April
              of 2012 until August of 2012. He worked for Conn’s Electronics
              and Appliances from March of 2010 until April of 2012 – he was
              in the top 100 of sales for five consecutive months with a sales
              force of 2,500 peers, he was number 1 in warranties sold for
              seven consecutive months at his store and he was among the top
              ten additional warranty sellers company wide. Father also
              worked for Verizon Wireless from 2008-2010. Father is college
              educated and has experience with the United States Naval
              Submarine service. Father has been issued 1099 forms and [W]-2
              statements showing income and earnings. Father was able to
              earn and pay his obligations and for several years he did not.


              5. Additionally Father has had sporadic and rare
              communication with the children. In 2010, Father spoke with
              the children over the phone a total of 105 minutes. The children

      Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 5 of 11
        initiated all the calls. He only saw the children on two occasions
        for eight total days – three days in June and five days in
        November.


        6. In 2011, Father spoke with the children over the phone a total
        of 100 minutes. The children initiated all the calls. He only saw
        the children on one occasion for three total days in May of 2011.


        7. In 2012, Father spoke with the children over the phone
        and/or skype a total of 94 minutes. The children initiated the
        telephone calls. He only saw the children on one occasion for
        four total days in November of 2012.


        8. In 2013, Father communicated by phone or skype 189
        minutes and saw them for parts of twelve days.


        9. In 2014, Father communicated by phone or skype 55 minutes
        and saw them for parts of four days.


        10. In 2015, Father communicated by phone with the children
        on three occasions for a total of 48 minutes. He did not see the
        children in person the whole year.


        11. Most of the in-person visits were really paternal grandmother
        visits.


        12. Father texted and communicated rather often with Mother,
        seeking her counsel on romantic matters.


        13. Father curiously called [M.H.] and left a very [serious]
        sounding happy birthday voice mail message months from her
        actual birthday. Mother has engaged professional counseling to
        assist the children with coping with lack of significant
        communication by their father.
Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 6 of 11
              14. Generally, adoption of a child requires the consent of natural
              parents. But consent to adoption 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 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. I.C. 31-
              19-9-8(a)(2).


              15. [Father] without any justifiable cause failed to communicate
              significantly with his children when he was able to do so for
              more than a year – this has been shown by clear and convincing
              evidence.


              16. [Father] was able to provide support for his children, knew
              he was obliged by the terms of the decree to do so and failed to
              do so for more than one year – this too has been shown by clear
              and convincing evidence.


      Appealed Order p. 1-2. Father now appeals.


                                   Discussion and Decision
[8]   Father argues that the trial court erred by concluding that his consent to the

      children’s adoption by Stepfather is not required. When we review a 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 court reached an opposite

      conclusion. J.H. v. J.L. & C.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).

      On appeal, we will not reweigh the evidence, instead focusing on the evidence

      and inferences most favorable to the trial court’s decision. Id. We generally

      give considerable deference to a trial court’s rulings in family law matters, “as

      Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 7 of 11
       we recognize that the trial judge is in the best position to judge the facts,

       determine witness credibility, get a feel for family dynamics, and get a sense of

       the parents and their relationship with their children.” Id.


[9]    Generally, a noncustodial biological parent’s consent to adoption is required

       before an adoption petition may be granted. Ind. Code § 31-19-9-1(a)(2).

       However, consent to adoption is not required from


               (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.


       I.C. § 31-19-9-8(a). It is well established that the provisions of Indiana Code

       section 31-19-9-8 are disjunctive, and “as such, either provides independent

       grounds for dispensing with parental consent.” In re Adoption of T.W., 859

       N.E.2d 1215, 1218 (Ind. Ct. App. 2006).


[10]   Father first argues that the trial court erred by finding that Father was able to

       provide support for his children because the trial court did not address Father’s

       disposable income. Specifically, he argues that the evidence presented at trial

       regarding his income was deficient because the evidence did not reveal Father’s

       business or personal expenses. The record shows that Father was gainfully


       Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 8 of 11
       employed from the date of the parents’ divorce through the date of the hearing.

       During the hearing, Father testified that he could not afford to pay child

       support until 2016, when he began a better-paying job. But Father was under a

       court order to start paying child support on March 1, 2013, and the record

       clearly shows that between March 1, 2013, and December 31, 2015, he did not

       provide any child support to his children. If Father was unable to pay child

       support during this time, he bore the responsibility to file a motion to modify

       his child support obligation. Father did not present any evidence of having

       done so or having tried to do so. Moreover, Father was the party in possession

       of the details of his employment and income history. The trial court cannot be

       faulted for failing to rely on evidence that Father never submitted. Under these

       circumstances, we will not second-guess the trial court’s determination that

       Father was able to provide for the care and support of his children but failed to

       do so for at least one year.


[11]   Because the trial court did not err by finding that Father failed to provide

       support for the children for more than one year despite being able to do so, we

       need not discuss Father’s argument regarding his communication with his

       children. Nonetheless, we will still address his arguments that the trial court

       erred by minimizing the contacts between Father and the children and by

       overlooking Mother’s interference with Father’s communication with the

       children.


[12]   The inquiry regarding parent-child communication under the statute is highly

       fact- and context-specific. Rust v. Lawson, 714 N.E.2d 769, 772 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 9 of 11
       1999). The inquiry is guided by the statute’s purpose: to “foster and maintain”

       communication between a noncustodial parent and his child, “not to provide a

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

       parents’[ ] efforts to provide a settled environment [for] the child.” C.H. v.

       E.W., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999). Whether communication was

       significant is not to be measured merely in units. J.W. v. D.F., 79 N.E.3d 394,

       397 (Ind. Ct. App. 2017). One significant communication in a year would be

       sufficient to bar nonconsensual adoption; however, even multiple, fairly

       consistent contacts may not be found significant in context. Id. The law holds

       a noncustodial parent responsible for maintaining a relationship with his child if

       he is to successfully resist an adoption petition. Id. The custodial or

       prospective adoptive parents are under no obligation to arrange or facilitate the

       noncustodial parent’s communication, or to serve his convenience. Id. at 398.


[13]   Father first contends that the contacts between him and his children “were

       significant as a matter of law” because “he maintained at least one contact with

       them, in each year under scrutiny.” Appellant’s Br. p. 11-12. But he fails to

       explain why these contacts are significant. Moreover, he disregards this Court’s

       holding that even multiple, fairly consistent contacts may not be found

       significant in context. When considering the context of Father’s phone calls

       with the children, the trial court found that the children initiated many of the

       phone calls. And while Father attempts to explain that they called him because

       he had requested to talk to them, he ignores the fact that the law holds the

       parent, not the children, responsible for maintaining their relationship. As for


       Court of Appeals of Indiana | Memorandum Decision 06A01-1706-AD-1494 | March 2, 2018   Page 10 of 11
       his in-person visits with the children, most of those took place because Mother

       transported the children to visit Father or because Father saw the children

       during their visits with their paternal grandmother in South Carolina. The

       record shows that although Father always knew the children’s location and

       Mother’s cell phone number and email address, he rarely called the children

       and did not send them letters, cards, or gifts. In short, Father was aware of

       different methods through which he could communicate with his children, and

       he chose not to do so.


[14]   Father next contends that Mother interfered with his communication with the

       children. Yet the record shows that, rather than interfere with their

       relationship, Mother attempted to foster a positive relationship between Father

       and the children, sending him packages with updates on their lives and

       travelling with them at her own expense to visit Father. Father’s only support

       for his argument is his own testimony. The trial court was in the best position

       to assess witness credibility, and we will not second-guess the trial court’s

       determination that Father’s credibility was lacking. The trial court did not err

       by finding that, for at least one year, Father failed without justifiable cause to

       communicate significantly with the children when able to do so.


[15]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




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