      MEMORANDUM DECISION
                                                                             Jul 28 2015, 9:43 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Anthony Rose                                                      Mark James
      Anthony Rose Law Firm                                             Anderson, Agostino, & Keller
      South Bend, Indiana                                               South Bend, Indiana



                                                        IN THE
             COURT OF APPEALS OF INDIANA

      In Re the Adoption of D.B. and                                    July 28, 2015
      S.R.,                                                             Court of Appeals Case No.
                                                                        71A03-1410-AD-00385
      M.R.
                                                                        Appeal from the St. Joseph Probate
      Appellant-Respondent,                                             Court
                                                                        The Honorable J. Eric Smithburn,
                 v.                                                     Senior Judge
                                                                        Trial Court Cause No.
      J.W.,                                                             71J01-1310-AD-000078
      Appellee-Petitioner



      Mathias, Judge.


[1]   M.R. (“Father”) appeals an order of the St. Joseph Probate Court granting the

      petition of J.W. (“Stepfather”) to adopt S.R.1 Father presents one issue for



      1
          Stepfather’s adoption of Mother’s other child, D.B., is not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015             Page 1 of 9
      review: whether the probate court clearly erred in determining that Father’s

      consent to Stepfather’s adoption of S.R. was not required.

[2]   We affirm.


                                   Facts and Procedural History

[3]   Father and R.B. (“Mother”) married on October 15, 2000, and had one child

      together, S.R., born on January 29, 2003. In January 2010, after a domestic

      dispute involving Father, Mother, and Mother’s father, Father was arrested and

      charged with the attempted murder of Mother’s father, criminal confinement of

      Mother while armed with a handgun, battery in the presence of S.R., firing a

      handgun inside an occupied residence, and pointing a loaded handgun at

      Mother. On October 1, 2010, Father was convicted of the charges and

      sentenced to twenty years incarceration. His earliest possible release date is in

      July 2019, when S.R. will be sixteen years old.


[4]   Mother and Father’s marriage was dissolved on May 13, 2010, shortly after

      Father was incarcerated. Pursuant to Mother’s and Father’s property settlement

      agreement, the dissolution court did not enter a child support order for Father

      due to his incarceration. Father has not paid any child support since his arrest,

      and Mother apparently has not sought any child support from Father. No

      evidence exists that Father has sent S.R. any gifts or correspondence. Father is

      employed as a graphic designer within the correctional system, is paid $0.65 per

      hour, and works approximately thirty-five hours per week. His monthly

      earnings amount to approximately $80.00.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 2 of 9
[5]   Mother married Stepfather on November 11, 2011. With Mother’s consent,

      Stepfather filed a petition to adopt S.R. on January 3, 2014, and an amended

      petition on August 26, 2014. In his petition, Stepfather alleged that Father’s

      consent to the adoption was not required because Father had failed to provide

      child support for S.R. for more than one year.


[6]   The probate court held a trial on Stepfather’s petition on September 3, 2014. On

      October 1, 2014, the trial court entered an order making the following relevant

      findings and conclusions:


              10. Step-Father has lived with [S.R. and D.B.] since 7-2011.
              11. Mother and Step-Father were married on 11-11-2011.
              12. Step-Father earned a baccalaureate degree and 2 masters
              degrees in psychology and criminal justice.
              13. Since 2012, Step-Father has served as a professor at Brown
              Mackie College in Michigan City. Indiana.
              14. Mother is gainfully employed at Fifth Third Bank.
              15. Step-Father has the financial resources to care for and support
              [S.R. and D.B.].
              16. Step-Father does chores with the children around the home
              and cooks meals for the children and Mother.
              17. Step-Father helps [S.R. and D.B.] with their school work.
              18. Step-Father is able to care for, support, and educate the
              children.
              19. Mother consents to the adoption of [S.R. and D.B.] by Step-
              Father.
              20. [S.R. and D.B.] do not possess real or personal property.
              21. Step-Father has not been convicted of a felony or a
              misdemeanor relating to the health and safety of children.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 3 of 9
        22. The consent to adoption of the Department of Child Services
        is not required.
        23. The marriage of Mother and Bio-Father was dissolved on 5-
        13-2010.
        24. Bio-Father failed to pay support for [S.R.] after 5-13-2010.
        25. In 1-2010, Bio-Father was arrested and charged with
        attempted murder; criminal confinement (Mother) while armed
        with a handgun; battery (Mother) in the presence of children less
        than 16 years of age ([S.R.]); firing a handgun inside an occupied
        residence; and pointing a loaded handgun at Mother.
        26. On 10-1-2010, the St. Joseph Superior Court, in Cause
        Number 71DO1-100 l-FA-00003, entered judgments of
        conviction and sentencing on all 10 counts of a criminal
        information and Bio-Father was sentenced to the Indiana
        Department of Corrections.
        27. The St. Joseph Superior Court, in its Judgment of Conviction
        and Sentencing Order, continued in effect the no contact order as
        to Bio-Father and [S.R. and D.B.].
        28. The St. Joseph Superior Court, in its Judgment of Conviction
        and Sentencing Order, recommended that Bio-Father receive
        psychiatric treatment while serving his sentence at the Indiana
        Department of Correction. There is no evidence that Bio-Father
        has received psychiatric treatment, which causes the Court
        concern, particularly for the best interests of [S.R.].
        29. Bio-Father’s earliest incarceration release date is 7-2019.
        30. [S.R.] will be 16 years of age on Bio-Father’s earliest release
        date.
        31. During his incarceration in 2011, Bio-Father was employed
        with Penn Products, earning 75 cents per hour.
        32. Since 2014, Bio-Father was employed 35 hours a week as a
        graphic designer, earning 65 cents per hour.
        33. Bio-Father knew [S.R.’s] address in order to pay any support
        for [S.R.].

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 4 of 9
              34. Bio-Father acknowledged in Open Court that he paid no
              support to [S.R.] from 2010 to date.
              35. Bio-Father has earned approximately $100.00 per month
              while he is incarcerated.
              36. Bio-Father had the ability to pay some support for [S.R.] but
              he chose not to do so.
              37. Bio-Father has a common law duty to pay support even in
              the absence of a court order.
              38. Bio-Father’s consent to adoption, by clear and convincing
              evidence, is not required because Bio-Father, while [S.R.] was in
              the custody of Mother and Step-Father, for at least 1 year,
              knowingly failed to provide for the care and support of [S.R.]
              when able to do so, as required by law.
              39. Step-Father and Mother have provided [S.R. and D.B.] with
              a loving, stable home environment.
              40. It is in the best interests of [S.R. and D.B.] that Step-Father’s
              Petition for Adoption be granted.
                                                   ***
              IT IS THEREFORE ORDERED as follows:
              1. Adoptive Father’s Petition for Adoption is GRANTED.
              2. The Bio-Father’s Motion to Contest Adoption is DENIED.
              3. The parental rights of Bio-Father . . . as to [S.R.] are
              terminated.
      Appellant’s App. pp. 8-10 (internal citations omitted).

[7]   Father now appeals.

                                      Discussion and Decision

[8]   Upon review a trial court’s ruling in an adoption case, the appellant bears the

      burden of overcoming the presumption that the trial court’s decision is correct.

      In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009). We will neither
      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 5 of 9
       reweigh the evidence or judge the credibility of witnesses; instead, we will

       consider the evidence most favorable to the trial court’s decision, and the

       reasonable inferences to be drawn therefrom, to determine whether sufficient

       evidence exists to sustain the decision. Id. We will not disturb the trial court’s

       ruling unless the evidence leads to only one conclusion and the probate court

       reached an opposite conclusion. Id.


[9]    Where the trial court enters findings of fact and conclusions of law pursuant to

       Indiana Trial Rule 52(A), we employ our familiar two-tiered standard of

       review: we must determine whether the evidence supports the findings and

       whether the findings support the judgment. Id. We will not set aside the

       findings or the judgment unless they are clearly erroneous. Id. Findings of fact

       are clearly erroneous if the record is devoid of any evidence or reasonable

       inferences to support them, while a judgment is clearly erroneous when it is

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

       findings. Id.


[10]   Father claims that the probate court erred in granting Stepfather’s petition to

       adopt despite Father’s lack of consent. Parental consent is generally required to

       adopt a child in Indiana. See Ind. Code § 31-19-9-1. 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


       Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 6 of 9
                         (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.

       Ind. Code § 31-19-9-8(a).

[11]   Father argues that Stepfather did not prove that he knowingly failed to provide

       for the care and support of S.R. when able to do so for a period of at least one

       year. Specifically, Father argues that the probate court clearly erred in using

       “the fact that Father earned income as its sole basis for determining that Father

       had the ability to pay some support while incarcerated.” 2 Appellant’s Br. at 9.

       He maintains that “no evidence . . . indicate[s] where and how Father spent the

       $0.65 per hour that he earned while in prison.” Id. at 11.


[12]   However, we do not address Father’s argument regarding his ability or failure

       to pay child support for S.R. while incarcerated because we affirm the trial

       court’s judgment based on Father’s failure to communicate significantly with

       S.R. when able to do so.




       2
         Father served in the United States Navy and was honorably discharged in 1997. After his discharge from
       the Navy, he was entitled to receive monthly VA benefits in the amount of $1,298, and S.R. received an
       additional monthly benefit of $1,228. Father’s and S.R.’s eligibility to receive full VA benefits ended shortly
       after his criminal convictions, at which point, he became entitled to only 10% of the original payment and
       S.R. became entitled to nothing. However, he continued to receive monthly payments after his eligibility
       ended and ultimately received over $7,000 in overpayments. This money was deposited into an account held
       jointly by Mother and Father and was spent by Mother on household and child-related expenses. The VA
       notified Father that he would have to repay the funds and that it would apply his monthly entitlement to the
       overpayment until it was repaid. Father argues that his “only possible avenue to provide meaningful support
       to [S.R.] during Father’s incarceration was through VA benefits” and that “due to Mother spending the VA
       benefits,” S.R. no longer received the $1,200 she would have received had Father not been required to repay
       the overpaid amount. Appellant’s Br. at 12-13. Essentially, he argues that his failure to support S.R. is
       Mother’s fault, not his. This argument has no merit. Father’s own criminal conduct was what led to S.R.’s
       ineligibility to apportionment benefits, and his delay in notifying the VA of his conviction and incarceration
       led to the overpayment.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015                Page 7 of 9
[13]   At the hearing on Stepfather’s petition, Father admitted that S.R. and Mother

       lived in the same house in which the family lived prior to Father’s incarceration

       and Father’s and Mother’s divorce. He admitted that he knew “how to send

       stuff there.” Tr. p. 43. He also acknowledged that his sentencing order

       permitted him to communicate with S.R. through Mother and Stepfather and

       that he had their address. However, the record does not reveal any evidence

       that Father communicated with S.R. during his incarceration.


[14]   Indiana Code section 31-19-9-8(a) is written in the disjunctive — consent of the

       parent is not required where either failure to communicate significantly or

       failure to provide support is established. In re Adoption of B.R., 877 N.E.2d 217,

       218 (Ind. Ct. App. 2007). Moreover, we may affirm a trial court order on any

       basis supported by the record. Wishard Mem’l Hosp. v. Kerr, 846 N.E.2d 1083,

       1093 (Ind. Ct. App. 2006). Because no evidence that Father has sent S.R. any

       gifts or correspondence or otherwise communicated significantly with her was

       presented, we conclude that the trial court did not clearly err in finding that

       Father’s consent was not required in granting Stepfather’s petition to adopt S.R.

       See In re Adoption of T.W., 859 N.E.2d 1215 (Ind. Ct. App. 2006) (trial court did

       not clearly err by concluding that incarcerated father failed, without justifiable

       cause, to communicate significantly with his children; record did not

       demonstrate that father actually tried to write to the children or telephone them,

       and father's argument that his overtures would have been impeded was

       speculative); Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct. App. 1994)

       (occasional letter or card sent to child from incarcerated parent together with


       Court of Appeals of Indiana | Memorandum Decision 71A03-1410-AD-00385| July 28, 2015   Page 8 of 9
       one telephone conversation with child was “token communication” that trial

       court properly disregarded when determining that parent's consent to adoption

       was not required).


[15]   Affirmed.

       May, J., and Robb, J., concur.




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