                                                                          Apr 29 2014, 9:41 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KENDRA G. GJERDINGEN                             DARRYN L. DUCHON
Mallor Grodner LLP                               Indianapolis, Indiana
Bloomington, Indiana
                                                 MONTY K. WOOLSEY
                                                 Cross, Pennamped, Woolsey & Glazier, P.C.
                                                 Carmel, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

D.D.,                                            )
                                                 )
        Appellant-Petitioner,                    )
                                                 )
               vs.                               )      No. 49A02-1311-DR-1004
                                                 )
D.P.,                                            )
                                                 )
        Appellee-Respondent.                     )


                       APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Theodore M. Sosin, Judge
                     Cause Nos. 49D02-0310-DR-1827 and 32D01-0911-AD-37



                                       April 29, 2014

                                OPINION – FOR PUBLICATION

BAKER, Judge
         In this case, the parties are before this Court for the third time concerning

essentially the same stepparent adoption proceedings.            Appellant-petitioner D.D.

(Stepfather) married K.D. (Mother) in 2007 and wanted to adopt her two children from a

previous marriage. However, the children’s father, appellee-respondent D.P. (Father),

resides in Washington D.C., and Mother could not convince him to consent to the

adoption. Nevertheless, Stepfather’s petition for adoption was granted in 2010 but was

vacated for lack of notice to Father.

         Another hearing on the adoption petition was scheduled and Stepfather alleged

that Father’s consent was unnecessary because he had failed to significantly

communicate with the children for a period of at least one year when able to do so. The

trial court found that Stepfather had not met his burden, but a panel of this Court

remanded after clarifying the correct burden of proof. After reviewing the evidence again

and applying the correct burden of proof, the trial court entered findings of fact and

conclusions of law in its order denying Stepfather’s petition to adopt the children.

Perhaps the trial court’s most compelling finding was that Mother had thwarted Father’s

attempts at communicating with the children.

         Stepfather now appeals, arguing that the trial court’s finding that Mother thwarted

Father’s attempts at communication are clearly erroneous, insofar as Father never tried to

directly communicate with the children. Concluding that the trial court did not err by

denying Stepfather’s petition to adopt the children, we affirm the judgment of the trial

court.

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                                         FACTS

       In 2004, Mother and Father had their marriage dissolved by the Marion Superior

Court, and Mother was awarded sole legal and physical custody of their two children, JJP

and JP, who were twenty-three months and four months old at the time. Father was

awarded parenting time with no overnight visits and was ordered to pay $502 per week in

child support, which he has consistently paid except for a short period when he was

seeking employment.

       Father saw JJP and JP a few times during the pendency of the dissolution

proceedings. In 2004, after the dissolution was granted, Father moved to Washington,

D.C. for work and currently resides in Arlington, Virginia. Father’s last visitation with

the children was in 2004 before the trial court enforced parenting time in 2010.

       In 2007, Mother married Stepfather, and they currently reside with the children in

Hendricks County. Father is also remarried and has three older children from a previous

marriage.

       Following the dissolution and Father’s relocation, he made numerous efforts to

establish parenting time in a manner that would be the least disruptive to the children.

More particularly, Father repeatedly emailed and telephoned Mother, attempting to

establish a parenting time schedule that would be agreeable to both of them. Father sent

Mother over sixty emails requesting parenting time, of which Mother responded to five.

       Father continued to struggle with his concerns over his children’s well-being,

wanting to be a part of their lives, and the effect that coming back into their lives would

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have on them. Rather than initiating litigation, Father continued to pursue his goal of

gaining Mother’s cooperation in establishing a parenting time schedule.

       However, Mother did not want Father in the children’s lives, refused to address

most of his communications, and led Father to believe that she thought that it would be

traumatic for the children if Father had parenting time with them. From the time that the

dissolution decree was granted, Mother’s position was that she wanted Father out of her

and the children’s lives and quickly expressed her approval and cooperation in

terminating Father’s parental rights, acknowledging that she could not pursue such action

on her own. After Mother remarried, this evolved into requests that Father consent to

Stepfather’s adoption of their children.

       On November 10, 2009, Stepfather filed a petition for adoption in the Hendricks

Superior Court. The petition was not served on Father, and no summons was issued. A

hearing on the adoption was held without any notice to Father, and a decree of adoption

was entered on January 11, 2010, without Father’s knowledge or consent.

       On January 15, 2010, Mother moved to terminate the child support withholding

order against Father’s income, which was granted on January 21. On January 27, 2010,

Father moved to vacate the adoption in the Hendricks Superior Court, and on February 3,

2010, Father filed an objection to Mother’s motion to terminate the child support

withholding order and moved to establish parenting time with the children in the Marion

Superior Court.



                                           4
       On March 15, 2010, the Hendricks Superior Court vacated the adoption decree for

lack of proper service on Father. However, Stepfather’s adoption petition was still

pending and set for a contested adoption hearing before the Hendricks Superior Court.

       On March 23, 2010, Father filed a notice of vacation of adoption in the Marion

Superior Court.    Father requested that the Hendricks Superior Court proceeding be

dismissed or consolidated with the Marion Superior Court proceeding. The Hendricks

Superior Court took Father’s motion under advisement and stayed the case pending

receipt of the Marion Superior Court Order. The Marion Superior Court issued an order

on July 16, 2010, concluding that it had jurisdiction over the adoption proceeding, that

Mother had failed to establish that Father’s consent was not required, and ordered Mother

to provide Father with access to his children in response to his motion to enforce

parenting time.

       Mother appealed a part of the Marion Superior Court’s decision. Specifically,

Mother appealed its determination that it had jurisdiction over the adoption proceeding

and that she had failed to establish that Father’s consent to the adoption was not required.

Devlin v. Peyton, 946 N.E.2d 605 (Ind. Ct. App. 2011). In Peyton, a panel of this Court

held that the Marion Superior Court did not have jurisdiction over the adoption

proceeding because Stepfather’s adoption petition was still pending in the Hendricks

Superior Court. Id. at 607. The panel reversed only the adoption portion of the ruling.

Id. at 608.



                                             5
       Father then filed a motion to dismiss or transfer with the Hendricks Superior

Court, which granted the request, and the Marion Superior Court accepted transfer. On

August 8, 2012, the Marion Superior Court (trial court), issued an order which addressed

Father’s attempts to enforce his parenting time, set a hearing on the necessity of Father’s

consent to the adoption, and set a hearing on the final adoption to determine the

children’s best interests as they related to Stepfather’s adoption request.

       The trial court held a hearing on the consent issue and ruled on October 5, 2012,

that Father’s consent to the adoption was required. Stepfather appealed, and a different

panel of this Court remanded, directing the trial court to reconsider the evidence but

noted that a new hearing was not required. D.D. v. D.P., No. 49A02-1211-DR-896,

memo op. at 4 n.1 (Ind. Ct. App. June 27, 2013). In this opinion, the panel held that the

trial court had used an incorrect standard when determining whether Stepfather had

satisfied his burden to prove that Father’s consent to the adoption is not required. Id. at 2.

Specifically, instead of using the “clear and convincing” standard, the trial court had used

the “clear, cogent and indubitable” standard. Id. at 1.

       After reconsidering extensive evidence, on November 1, 2013, the trial court

issued an order on remand that Father’s consent to Stepfather’s adoption was required.

Specifically, under the clear and convincing standard, the trial court concluded that

Stepfather had not proven that Father failed to communicate with the children for more

than one year without justifiable cause. Stepfather now appeals.



                                              6
                            DISCUSSION AND DECISION

      Stepfather argues that the trial court erred in finding that he had not proved by

clear and convincing evidence that Father’s consent was unnecessary for him to adopt the

children. More particularly, Stepfather maintains that Father failed to communicate with

the children for more than five years even though he was able to do so.

                                  I. Standard of Review

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

Court first determines whether the evidence supports the findings. In re Adoption of

T.L., No. 02S03-1308-AD-528, slip op. 4 (Ind. March 11, 2014).            Then, the Court

determines whether the findings support the judgment. Id. The trial court’s findings of

fact and conclusions of law will be set aside only if they are clearly erroneous, or, in

other words, the record contains no facts or inferences to support them. Id. The trial

court’s judgment is clearly erroneous when “‘it is unsupported by the findings of fact and

the conclusions of law relying on those findings.’” Id. (quoting In re Adoption of T.W.,

859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)).

                            II. Father’s Consent to Adoption

      Stepfather contends that the trial court erred, inasmuch as he proved by clear and

convincing evidence that Father’s consent to adopt the children was not necessary

because Father had failed to communicate with the children for five years, four more than

the statutory minimum. Thus, according to Stepfather, the trial court’s finding that “[a]t

best, Mother ignored/hampered Father’s inquiries regarding a mutually acceptable plan

                                            7
for visitation/communication, and at worst, thwarted Father’s attempts at arranging

visitation/communication with the children,” appellant’s app. p. 29, is erroneous.

       Generally, “a petition to adopt a child who is less than eighteen (18) years of age

may be granted only if written consent to adoption has been executed by . . . [e]ach living

parent of a child born in wedlock . . . .” Ind. Code § 31-19-9-1. However, consent is not

required if “[a] parent of a child in the custody of another person [] for a period of at least

one (1) year . . . fails without justifiable cause to communicate significantly with the child

when able to do so[.]” I.C. § 31-19-9-8(a)(2)(A) (emphasis added). If an adoption

petition alleges that parent’s consent is unnecessary under Indiana Code section 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. I.C. § 31-19-10-1.2.; In re Adoption of S.W., 979 N.E.2d 633, 640

(Ind. Ct. App. 2012).

       Here, both children were less than two years old when Mother and Father

dissolved their marriage.     Pet. Ex. 4.    Following the dissolution, Father moved to

Washington, D.C. for work and experienced financial difficulties. Pet. Ex. 5 p. 1; Tr. p.

52.   In December 23, 2004, Father emailed Mother seeking her cooperation in

establishing a parenting time schedule. Pet. Ex. 5 p. 1-2. However, even in early 2005,

Mother was uncooperative in responding to Father’s emails. Id. at 4. And these were not

the only emails that Father sent to Mother attempting to discuss with her the best way in



                                              8
which he could be integrated into the children’s lives. Indeed, as noted above, Mother

responded to only five of Father’s sixty emails that he sent to her. Tr. p. 53-54.

       When Mother did respond to Father’s emails, she seemed interested only in

terminating his parental rights or, after she married Stepfather, convincing Father that it

was in the children’s best interests for Stepfather to adopt them. Pet. Ex. 3, 5.

       At the October 5, 2012 hearing on the adoption petition, Father testified about his

goals regarding the children and his communications with Mother to achieve them:

       I would communicate with [Mother] and trying to figure out what can I do
       to become part of these kids’ lives? What can I do- how am I going to get
       involved? How are we going to integrate me? I had to move to
       Washington D.C. for work, and how do we navigate through this . . . and be
       a good parent. How do I get introduced to them as a good parent, and that
       was what I was trying to work through, and when you ask what I was trying
       to do, I was trying to understand how am I going to do this and what can I
       do to do the right thing about it. [Mother], on the other hand, would
       respond, I want you to, and I’m paraphrasing . . . I want you to let me adopt
       them, and I’ve always been pessimistic when she would say that, like, why
       is that in the best interests, was always my response.

Tr. p. 52-53.

       Under these facts and circumstances, we cannot say that the trial court erred by

finding that “Mother hampered and thwarted Father’s attempts to communicate with the

children.”      Appellant’s App. p. 29.     Here, the trial court did not permit Mother’s

interference with Father’s efforts to be a part of his children’s lives to operate to

Stepfather’s benefit when determining whether Father’s consent was unnecessary. To do

so would have had the effect of rewarding Mother’s refusal to work with Father

concerning his contact with the children.

                                               9
       Notwithstanding this conclusion, Stepfather places great emphasis on the lack of

direct communication between Father and the children. As stated above, the trial court

did not err in concluding that Mother thwarted Father’s attempts to communicate with the

children. However, assuming solely for argument’s sake that Father was required to

attempt to directly communicate with the children, we note that Father’s emails to Mother

indicate that he tried to work with Mother to devise a plan to re-establish contact between

himself and the children. Mother rarely responded to Father’s emails or attempt to

cooperate with Father to re-establish contact with the children. Tr. p. 53-54.

       In light of these facts, Father sought to establish contact in a manner that would

gain Mother’s approval and minimize any negative impact on the children, who were

very young when Mother and Father dissolved their marriage. We would think that

under these circumstances, Mother, or any parent, would prefer that Father contact her

regarding communications to determine how to proceed in the best interests of the

children. Accordingly, under these circumstances, Father demonstrated justifiable cause

for not initiating direct communication with the children.

       The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.




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