MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Oct 17 2018, 9:17 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Ryan P. Dillon                                           Shannon L. Robinson
Dillon Legal Group, P.C.                                 Shannon Robinson Law
Franklin, Indiana                                        Bloomington, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of B.A.B.N.                           October 17, 2018
and K.E.J.N.                                             Court of Appeals Case No.
                                                         18A-AD-978
B.N.,
                                                         Appeal from the Johnson Superior
Appellant-Respondent,                                    Court
        v.                                               The Honorable Kevin M. Barton,
                                                         Judge
Q.S.,                                                    Trial Court Cause Nos.
                                                         41D01-1612-AD-62, -63
Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018                 Page 1 of 9
                                             Case Summary
[1]   B.N. (“Father”) appeals the adoption decree terminating his parental rights to

      B.A.B.N. and K.E.J.N. (“the Children”) and granting the adoption petition

      filed by Q.S. (“Stepfather”). Father argues that the trial court erred in finding

      that his consent for adoption was not required. Finding no error, we affirm.


                                 Facts and Procedural History
[2]   The following facts are undisputed. In 2008, the Children were born out of

      wedlock to Father and K.S. (“Mother”). Prior to May 2014, Father had

      primary physical custody of the Children. On May 5, 2014, the Monroe Circuit

      Court granted Mother’s petition for modification of custody, awarded her

      primary physical custody and sole legal custody of the Children, and granted

      Father supervised parenting time. On June 29, 2014, Mother filed a motion to

      modify Father’s parenting time. Father failed to appear at the hearing on

      Mother’s motion. The Monroe Circuit Court issued an order modifying

      Father’s parenting time such that it would be at Mother’s sole discretion and be

      supervised by the Children’s paternal grandparents. On August 13, 2014,

      Mother filed a petition for an ex parte order for protection in the Monroe

      Circuit Court. The Monroe Circuit Court issued an ex parte order for

      protection for a period of two years, which was renewed in 2016 for an

      additional two years through August 9, 2018. In the protection order, Father

      was enjoined was contacting or directly or indirectly communicating with

      Mother, was prohibited from entering Mother’s residence, and was ordered to

      stay away from her residence. The Children were not listed as family members

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 2 of 9
      subject to the protection order, and the protection order did not prohibit Father

      from contacting the Children directly or indirectly.


[3]   Starting in May of 2014, Father was incarcerated for a significant period. From

      the first part of November 2014 to March 13, 2015, he was incarcerated in the

      Morgan County Jail. Father then lived with the Children’s paternal grandfather

      (“Grandfather”) until Father was again incarcerated on May 14, 2015.1 From

      May 14, 2016, to December 8, 2016, Father was incarcerated in the Monroe

      County Jail, and then transported to the Morgan County Jail where he

      remained until May 2, 2017.


[4]   During 2015 when Father lived with Grandfather, Father had visitation with

      the Children when they were at Grandfather’s residence. The Children were at

      Grandfather’s home with Mother’s permission, but she was unaware of the

      visitation. Other than that period of visitation, Father had no contact with the

      Children after his incarceration in November 2014.


[5]   On December 12, 2016, Stepfather filed a verified petition for adoption. Father

      filed an objection, and on August 2, 2017, the trial court held a hearing on

      whether Father’s consent was required. On October 3, 2017, the trial court

      entered its order on Father’s consent (“October 2017 Order”), in which it

      concluded that between May 14, 2015, and December 12, 2016, Father failed

      without justifiable cause to communicate significantly with the Children when



      1
        The appealed order does not state when Father was released from this incarceration or where he resided
      after his release.

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018                 Page 3 of 9
able to do so, and therefore his consent was not required under Indiana Code

Section 31-19-9-8(a)(2(A). In reaching this conclusion, the trial court made the

following relevant findings:


        19. During the period of May 14, 2015 through December 12,
        2016, Father was continuously incarcerated. Indiana has
        recognized that the fact of imprisonment by itself does not
        operate automatically to satisfy the waiver provisions of Indiana
        Code 31-19-9-8 and it does not foreclose the possibility of such a
        finding. The fact of imprisonment is a circumstance to be taken
        into account in the ability of a parent to communicate
        significantly so that what may be insignificant for a free person
        may be significant for an incarcerated person.


        20. The fact of imprisonment precluded visitation. The fact that
        visitation did not occur cannot be held against Father.


        21. No evidence was submitted that Father could have made any
        telephone calls to the children. Realistically, any telephone calls
        would have to be placed to Mother. Mother testified that she
        obtained the Ex Parte Order For Protection to prevent Father
        from contacting her. Shortly thereafter, Mother changed her
        telephone number. The fact that Father placed no telephone calls
        to the [C]hildren cannot be held against Father.


        22. The only means that Father had to communicate with the
        [C]hildren during his incarceration was by written letter. This
        Father did not do. Father had no communication with the
        [C]hildren. Nothing prevented Father from writing the
        [C]hildren letters. Father is accorded the right under Section
        I(A)(4) of the Indiana Parenting Time Guidelines. The
        [C]hildren were not protected persons subject to the Ex Parte
        Order For Protection entered in favor of Mother. Written
        communication would not have been prohibited.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 4 of 9
      Appellant’s App. Vol. 2 at 60-61.


[6]   On February 28, 2018, the trial court held a hearing on the best interest of the

      Children, at which Father was permitted to testify regarding his efforts to

      communicate with the Children between May 14, 2015, and December 12,

      2016. On March 15, 2018, the trial court issued the adoption decree, in which

      it found in relevant part as follows:


              3. At hearing on February 28, 2018, [Father] was permitted to
              testify that he sent letters to [Grandfather] for [him] to give to the
              [Children]. However, [Grandfather] testified that he did not give
              the letters to the [Children] for fear of antagonizing [Mother] and
              adversely effecting his opportunity for visitation with the
              [Children]. [Grandfather] testified that he had possession of the
              letters.


              4. Inasmuch as the Court’s [October 2017 Order] was based
              upon the absence of communication by [Father], the Court
              directed that the letters be provided to the court. Upon the letters
              being provided to the court, the court stated that it would
              distribute the letters to counsel and determine if objection were to
              be made to the receipt of the letters into evidence.


              5. [Grandfather] delivered two letters to the court. However, the
              letters were not authored by [Father]. The letters were in the
              nature of ex parte communication with the court from non-
              witnesses. The court does not receive the letters.


              6. In addition, the court received from [Grandfather] an audio
              book that had been recorded by [Father] for the [Children]. The
              book was not within the terms of the court’s directive. [Father]
              testified that the book was recorded while he was incarcerated,


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 5 of 9
              however, the date of the recording and the date of delivery of the
              book were not established.


              7. The Court does not reconsider [its October 2017 Order].


      Appealed Order at 1-2. The trial court found that adoption was in the

      Children’s best interest, terminated Father’s parental rights, and granted

      Stepfather’s petition for adoption. This appeal ensued.


                                     Discussion and Decision
[7]   Father argues that “[u]nder the facts and circumstances of this case, specifically

      his incarceration, Mother’s protection order, and Grandfather’s failure/decling

      to relay Father’s letters and audio book, he had justifiable cause for his failure

      to communicate significantly with [the Children].” Appellant’s Br. at 7. 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. Where, as

      here, the trial court has made findings of fact and conclusions thereon, we apply

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

      supports the findings and then whether the findings support the judgment. In re

      Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual findings are clearly

      erroneous where the record lacks any evidence or reasonable inferences to




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 6 of 9
      support them, and a judgment is clearly erroneous where it is unsupported by

      the findings and the conclusions based on those findings. Id.


[8]   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. (citations omitted).


[9]   In finding that Father’s consent was not required, the trial court applied Indiana

      Code Section 31-19-9-8(a)(2)(A), which provides in relevant part that a

      noncustodial parent’s consent to adoption is not required where the child has

      been in the custody of another person for at least one year and the parent “fails

      without justifiable cause to communicate significantly with the child when able

      to do so.”


      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

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 7 of 9
       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).


[10]   From March of 2015 until the petition was filed in December 2016, a period of

       one year and nine months, Father had no communication with the Children.

       While Father asserts that his incarceration and the protection order should be

       considered when determining whether his lack of communication was justified,

       he ignores that the trial court specifically found that his imprisonment

       prevented visitation and therefore his lack of visitation would not be held

       against him. The trial court also specifically found that the protection order and

       the fact that Mother changed her telephone number prevented Father from

       phoning the Children, and therefore his failure to call the Children would not

       be held against him.


[11]   That leaves the letters and audiobook that Father allegedly created while

       incarcerated and allegedly delivered to Grandfather to give to the Children. In

       its October 2017 Order, the trial court found that Father could have written

       letters but had not, and therefore his lack of communication was unjustifiable.

       At the best interest hearing, Father and Grandfather testified that Father wrote

       letters and recorded an audiobook, but Grandfather failed to give them to the

       Children. Grandfather testified that he had the letters. Further, Father argues

       that Mother acknowledged that she received one letter from him but refused to

       let the Children see it. Tr. at 171.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 8 of 9
[12]   Father ignores that the trial court directed that the letters be provided to it, but

       none were submitted. Although an audio book read by Father was submitted,

       the date of the recording and the date of the delivery of the book were not

       established. Father’s argument is merely an invitation to reweigh the evidence

       and judge witness credibility which we will not do. Adoption of M.S., 10 N.E.3d

       at 1279. In Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct. App. 1994), another

       panel of this Court affirmed the trial court’s finding that Williams failed to

       communicate significantly with his child for more than one year, noting that

       Williams offered no evidence of any of the hundred or so letters that he claimed

       to have written and that “trial courts retain the prerogative to believe or

       disbelieve self[-]serving testimony.” Id. at 254. We cannot say that the

       evidence leads to but one conclusion and the trial court reached the opposite

       conclusion. As such, we conclude that the trial court did not err in concluding

       that Father failed to communicate with the Children without justifiable cause

       for a period of one year, and therefore his consent to the adoption was not

       required. Therefore, we affirm the adoption decree.


[13]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-978 | October 17, 2018   Page 9 of 9
