                                                                                Sep 19 2013, 5:42 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:                              ATTORNEYS FOR APPELLEE:

GARY W. SORGE                                        MICHAEL L. ROGERS
DANIELLE M. SIMMONS                                  North Vernon, Indiana
Sorge Law Firm, LLC
Lawrenceburg, Indiana                                LARRY J. GREATHOUSE
                                                     North Vernon, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

IN RE THE ADOPTION OF                                )
K.T.:                                                )
                                                     )
J.T.                                                 )
                                                     )
       Appellant-Respondent,                         )
                                                     )
                vs.                                  )        No. 69A01-1304-AD-184
                                                     )
A.A.B.,                                              )
                                                     )
       Appellee-Petitioner.                          )
                                                     )


                        APPEAL FROM THE RIPLEY CIRCUIT COURT
                             The Honorable Carl H. Taul, Judge
                              Cause No. 69C01-1301-AD-001
                               Cause No. 69C01-1203-JP-13


                                         September 19, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       J.T. (Father) appeals from the trial court’s order granting the adoption petition of

A.A.B. (Adoptive Father) and terminating Father’s parental rights as to K.T. Father presents

several issues for our review, which we consolidate and restate as: was the trial court’s

decision to grant Adoptive Father’s adoption petition without Father’s consent, effectively

denying Father’s petition to establish support and visitation, and the consequent involuntary

termination of Father’s parental rights clearly erroneous?

       We affirm.

       K.T. was born out of wedlock on August 1, 2004 to A.C. (Mother) and Father, who

were students in high school at the time. A paternity affidavit executed by Mother and Father

at K.T.’s birth established Father’s paternity of K.T. Although there is conflicting testimony

about whether Mother, Father, and K.T. lived together after K.T.’s birth, both parties agree

that they did not live together after 2006, when Mother and Father’s relationship ended.

       After breaking up with Mother, Father began a relationship with R.H. The two have

remained in a relationship for approximately six and one-half years and have a child together.

Mother began a relationship with A.C. after the end of her relationship with Father. Mother

and A.C. were married and had a child during the course of that marriage. Mother and A.C.

split up in May of 2009, and their marriage was dissolved at the end of that same year.

       Although Father claims that he voluntarily paid some support to Mother, the evidence

most favorable to the trial court’s judgment reflects that Father had no receipts of any

payments he claimed to have made by money order, and did not attempt to obtain receipts for

those payments. On March 27, 2012, Father, pro se, filed a petition to establish paternity,


                                              2
pay child support, and establish visitation rights as to K.T. Although employed, Father failed

to pay support after filing his petition, and the evidence reflects that he failed to do so from

2008 through March of 2013, a period of sixty months. Within that time frame Father was

incarcerated for approximately twenty-five and one-half months for his class A felony

conviction, and was on probation at the time of the final hearing. Father was employed but

did not make support payments during the other thirty-five and one-half months.

       From March 2008 through March of 2013 Father did not communicate significantly

with K.T. Father has never attempted to talk with K.T. by telephone, and the two letters he

sent to her from prison were returned. Moreover, Father has not visited with K.T. since she

was three years old, and K.T. would not likely recognize Father. Father made no effort to

enforce visitation with K.T. prior to March 27, 2012, when he filed his petition to establish a

visitation schedule.

       Mother, who was on house arrest for her class D felony conviction at the time of the

final hearing, began living with Adoptive Father in April 2010, and has a child by that

relationship. Adoptive Father has been a father figure in K.T.’s life for three years, has

attended all of K.T.’s school functions, parent-teacher conferences, and all but one of her

athletic events. Adoptive Father claims an attachment to K.T. such that he would care for her

as long as he is alive. A.C., whose child with Mother is in Mother’s custody, acknowledged

that Mother, Adoptive Father, and the children act as a family unit and would want Adoptive

Father to take custody of the daughter he fathered with Mother in the event anything should

happen to him.


                                               3
         Adoptive Father filed his petition to adopt K.T. on January 14, 2013. After Father

received a summons pertaining to Adoptive Father’s petition, Father filed an objection and

motion to dismiss with the trial court. The matters were consolidated for purposes of a

hearing on both Father’s paternity petition and Adoptive Father’s adoption petition, along

with related motions pertaining to the petitions. The trial court issued an order denying

Father’s motion to dismiss the petition for adoption and granting Adoptive Father’s adoption

petition, consequently involuntarily terminating Father’s parental rights to K.T. in that same

order.

         Father filed a motion to supplement the record and in the alternative to set a hearing

on purported newly discovered evidence. The trial court denied the motion, concluding that

the evidence could have been discovered prior to the adoption hearing. On April 15, 2013 an

order closing the custody case was issued as a result of the order granting Adoptive Father’s

adoption petition. Father now appeals.

         Father argues that the trial court’s order granting Adoptive Father’s petition to adopt

K.T., denying Father’s motion to dismiss the petition, and consequent involuntary

termination of his parental rights to K.T. is clearly erroneous and should be set aside. When

a trial court grants an adoption petition our standard of review compels us to consider the

evidence most favorable to the petitioner and any reasonable inferences that can be drawn

therefrom in order to determine whether sufficient evidence exists to sustain the trial court’s

decision. Irvin v. Hood, 712 N.E.2d 1012 (Ind. Ct. App. 1999). Consistent with this

standard of review, we will not disturb the trial court’s decision unless the evidence at trial


                                                4
led to but one conclusion and the trial court reached an opposite conclusion. Id. We will not

reweigh the evidence, but will examine the evidence most favorable to the trial court’s

decision. Id. The trial court’s decision in these matters is presumed to be correct, and it is

the appellant’s burden on appeal to overcome that presumption. In re Adoption of M.B., 944

N.E.2d 73 (Ind. Ct. App. 2011).

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

Indiana Trial Rule 52(A), we use a two-tiered standard of review to determine whether the

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

Adoption of S.W., 979 N.E.2d 633 (Ind. Ct. App. 2012). Findings of fact are clearly

erroneous if there is no evidence in the record or reasonable inferences therefrom to support

them. Id. A judgment is clearly erroneous when it finds no support in the findings of fact

and in the conclusions relying on those findings of fact. Id.

       In the present case, Adoptive Father and Mother contend that Father’s consent to

K.T.’s adoption was not required. As such, Adoptive Father bore the burden of proving by

clear and convincing evidence that Father’s consent was not required. In re Adoption of

M.L., 973 N.E.2d 1216 (Ind. Ct. App. 2012). Ind. Code Ann. § 31-19-9-8 (West, Westlaw

current with all 2013 legislation) provides the scenarios under which consent to the adoption

is not required. Regardless of which of these scenarios serves as the basis for the decision to

grant the adoption petition, an adoption is granted only if it is in the best interests of the

child. Ind. Code Ann. § 31-19-11-1(a) (West, Westlaw current with all 2013 legislation); In

re Adoption of M.L., 973 N.E.2d 1216.


                                              5
       Adoptive Father alleged various grounds in support of his argument that Father’s

consent was not required. The trial court granted the petition on the basis that Father had

failed to provide support when required to do so for a period of one year. I.C. § 31-19-9-

3(a)(2) (West, Westlaw current with all 2013 legislation) is written in the disjunctive and

provides that the consent of a parent of a child in another person’s custody for a period of at

least one year is not required for purposes of adoption where the parent has either failed to

communicate significantly with the child when able to do so, or knowingly failed to provide

care and support for the child when able to do so “as required by law or judicial decree.”

See In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006) (“[t]he provisions of

Indiana Code Section 31-19-9-8 are disjunctive; as such, either provides independent grounds

for dispensing with parental consent”).

       Father contends that the trial court erred by relying on this ground in reaching the

determination that his consent to the adoption was not required. He argues that his attempts

to establish some sort of child support payments via his petition to establish paternity,

visitation, and child support were thwarted due to the number of continuances filed by

Mother in that case.

       While acknowledging a parent’s fundamental right to raise a child without undue

interference by the state, and the right to have unrestrained custody of his or her child, we

recognize that those rights are to be balanced against a parental duty to provide for the

physical and mental well-being of the child. Wardship of Nahrwold v. Dep’t of Pub. Welfare

of Allen Cnty, 427 N.E.2d 474 (Ind. Ct. App. 1981). Looking at the evidence before the trial


                                              6
court, Father’s paternity was established by paternity affidavit when K.T. was born. We have

held that Indiana law imposes a duty upon a parent to support his children and that duty exists

separate from any court order or statutory requirement. Irvin v. Hood, 712 N.E.2d 1012 (Ind.

Ct. App. 1999).

       Father claimed that he had made child support payments early on, which was refuted

by Mother’s testimony, and Father had no receipts or evidence supporting that contention.

The trial court acknowledged that Father was incarcerated for a period of time, which is a

relevant inquiry into Father’s ability to pay support. See Matter of Snyder, 418 N.E.2d 1171,

1182 (Ind. Ct. App. 1981) (“she was unable to support her children because she was either

incarcerated or unemployed”). But even giving Father the benefit of doubt regarding that

period of time, the record reflects that Father failed to pay child support for a period in the

aggregate of thirty-four and one-half months.

       The plain language of the statute provides that the relevant time period under

consideration for purposes of failure to pay support is any one-year period in which the

parent was required to pay support and had the ability to pay support, but failed to do so. I.C.

§ 31-19-19-9-8. The legislature has specifically set forth instances where the time period

under consideration must immediately precede the filing of the adoption petition. See, e.g.,

Ind. Code Ann. § 31-19-9-8(a)(1) (“[c]onsent to adoption . . . is not required from . . .a parent

. . . if the child is adjudged to have been abandoned or deserted for at least six (6) months

immediately preceding the date of the filing of the petition for adoption”). Such a limitation

does not appear in the statutory provision pertaining to the payment of child support.


                                               7
       Father testified that, excluding his period of incarceration, he worked for some time at

a job earning approximately $8.00 per hour. He claimed to have lived with Mother and K.T.

when K.T. was three to six months old, and that he contributed toward the rent, but could

provide no evidence to support that contention beyond his own testimony. Father testified

that he began working at Pri-Pak distributing energy drinks and alcoholic beverages, which

was a better job. Father claimed that his starting pay was $11.29 per hour and at the end of

his employment had reached a pay level of $13.88 per hour. Father held that position for

three years, during which time he split up with Mother and began a relationship with R.H., a

relationship which resulted in the birth of a child. Father has lived with R.H. for six and one-

half years.

       One can reasonably infer from the evidence that Father was able to pay child support

for K.T.’s benefit, but did not do so. In assessing under the totality of the circumstances

whether there was income earned, if it was steady or sporadic, and Father’s reasonable and

necessary expenses, we find evidence to support the trial court’s conclusion that Father had

the ability to pay and did not do so. See In re Adoption of K.F., 935 N.E.2d 282, 288 (Ind.

Ct. App. 2010)(“[a] petitioner for adoption must show that the non-custodial parent had the

ability to make the payments which he failed to make. That ability cannot be adequately

shown by proof of income standing alone. To determine that ability, it is necessary to

consider the totality of the circumstances”). Consistent with our standard of review, we find

that the trial court gave serious consideration to the evidence before it and its determination

was not clearly erroneous.


                                               8
       Having found that Father’s consent to Adoptive Father’s adoption of K.T. was not

required, we turn to the issue whether Adoptive Father fulfilled his burden of establishing

that his adoption of K.T. was in K.T.’s best interest. The objective of Indiana’s adoption

statutes is to protect and promote the welfare of children through the provision of stable

family units. In re Adoption of D.C., 928 N.E.2d 602 (Ind. Ct. App. 2010). It is axiomatic

that the best interests of the children are paramount in adoption proceedings. Id.

       Although Father contends that there was no hearing to determine whether adoption

was in K.T.’s best interest, the record reflects that all of the pending motions and petitions

pertaining to K.T. were considered by the trial court at the hearing held on March 26, 2013.

The trial court was presented with evidence that Adoptive Father has acted as K.T.’s father

figure since the 2009 holiday season, or for approximately twenty-seven months. Adoptive

Father has also assumed and provided all of the support for K.T. Adoptive Father, Mother,

K.T., and K.T.’s half-siblings act as a family unit. Adoptive Father has attended all of K.T.’s

parent-teacher conferences and has missed only one of K.T.’s sporting activities. K.T. does

not recognize Father and considers Adoptive Father to be her father.

       In addition to the testimony presented at the hearing, the trial court, with the

agreement of the parties, interviewed K.T. in camera. The record reflects a discussion

between counsel and the trial court regarding selection of a time for such an interview that

would not disrupt K.T.’s school attendance or schedule, and that she was on Spring Break at

the time of the hearing. With the exception of arguments we will address below, the bulk of

Father’s arguments amount to an invitation to reweigh the evidence. We decline such an


                                              9
invitation, however, in recognition of the appropriate standard of review which precludes

such an exercise. See Irvin v. Hood, 712 N.E.2d 1012 (Ind. Ct. App. 1999).

        I.C. § 31-19-14-2 (West, Westlaw current with all 2013 legislation) provides for the

challenge of an adoption decree within a certain timeframe if a person’s parental rights are

terminated by the entry of the adoption decree. Such is the case here. The adoption decree

will be sustained, however, unless the person establishes by clear and convincing evidence

that setting aside the decree is in the child’s best interests. Id.

        Father raises several issues on appeal that he contends support setting aside the decree,

but he did not present them first to the trial court. Father challenges the sufficiency of the

adoption petition itself, alleging that the petition does not contain the requisite language

addressing a criminal background check for Adoptive Father. Unlike a home study, which

may be waived in certain circumstances, (I.C. § 31-19-8-5)(West, Westlaw current with all

2013 legislation), a trial court may not waive a criminal history check. I.C. § 31-19-2-7.3

(West, Westlaw current with all 2013 legislation) (“[a] court may not waive any criminal

history check requirements set forth in this chapter”). Father has, however, waived this

argument for purposes of appellate review, because he failed to raise it at the hearing or in his

motion to dismiss the adoption petition.1 See Thalheimer v. Halum, 973 N.E.2d 1145, 1150

(Ind. Ct. App. 2012) (“[w]aiver is a threshold issue because generally a party is precluded




1 Father contended in his motion to dismiss the adoption petition that 1) he did not consent to the adoption, 2)
the adoption was not it K.T.’s best interests, 3) he was asserting his rights to visitation with K.T., and 4) the
trial court did not have the right to terminate his parental rights to K.T.

                                                       10
from presenting an argument or issue to Indiana appellate courts unless the party first raised

that argument or issue to the trial court”).

       We are mindful of the need to strictly construe adoption statutes, as they are in

derogation of common law. In re Adoption of A.M., 930 N.E.2d 613 (Ind. Ct. App. 2010.

Nevertheless, the alleged deficiency would not support a finding that setting aside the

adoption petition would be in the K.T.’s best interests. “Although the adoption statute is to

be strictly construed the statute is not to be so strictly construed as to defeat its purposes.” In

re Adoption of A.M., 930 N.E.2d 613, 617 (Ind. Ct. App. 2010). Father was requesting the

establishment of visitation with K.T. knowing that both he and R.H. had a class A felony

conviction, and Mother’s class D felony conviction was revealed during direct examination at

the hearing. While we do not condone the failure to comply with statutory directives and

requirements, we find the non-compliance here to be negligible when viewing the process as

a whole in this situation. We are unpersuaded by Father’s arguments, which have been

waived, and find no reversible error here.

       Father also argues that the trial court erroneously granted Adoptive Father’s motion to

waive the home study. Father claims that he did not receive notice of the motion until after it

had been granted, and contends that it was erroneously granted because Adoptive Father did

not meet the statutory criteria. I.C. § 31-19-8-5(c) (West, Westlaw current with all 2013

legislation) provides in pertinent part that a trial court hearing an adoption petition may waive

the home study report if one of the petitioners is a stepparent or grandparent of the child.




                                                11
Adoptive Father is neither K.T.’s stepparent nor grandparent. This argument, however, like

the others, is waived because it was not presented first to the trial court.

       Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.




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