                                                                           FILED
                                                                     Jul 29 2020, 9:55 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John R. Worman                                             Yvette M. LaPlante
Evansville, Indiana                                        LaPlante, LLP
                                                           Evansville, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Adoption of K.H.,                                   July 29, 2020

D.R.,                                                      Court of Appeals Case No.
                                                           20A-AD-337
Appellant,
                                                           Appeal from the Vanderburgh
        v.                                                 Superior Court
                                                           The Honorable Brett J. Niemeier,
M.M. and C.M.,                                             Judge
                                                           The Honorable Renee Allen
Appellees.
                                                           Ferguson, Magistrate
                                                           Trial Court Cause No.
                                                           82D04-1811-AD-210



Brown, Judge.




Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020                             Page 1 of 18
[1]   D.R. appeals the trial court’s decree of adoption. We affirm.


                                        Facts and Procedural History

[2]   On April 24, 2017, K.H. was born to Ka.H. (“Mother”). Under cause number

      82D04-1704-JC-768 (“Cause No. 768”), the Indiana Department of Children

      Services (“DCS”) filed a petition on April 27, 2017, alleging K.H. was a child in

      need of services (“CHINS”) in the Vanderburgh Superior Court. On April 11,

      2018, a chronological case summary (“CCS”) entry under Cause No. 768 noted

      that “DCS has filed termination on this child (82D04-1802-JT-359).” 1

      Appellant’s Appendix Volume II at 90.


[3]   Under Cause No. 768, a CCS entry dated September 13, 2018, indicated “State

      will be filing to add [D.R.] as an alleged father.” Id. at 89. The court appointed

      counsel for D.R., and counsel requested a DNA test. A CCS entry dated

      October 15, 2018, mentions “DNA Results.” Id. at 88. An October 24, 2018

      CCS entry states:


              [D.R.’s counsel] says that [D.R.] has had DNA done to confirm
              he is the father. DCS moves to show him as father; Court orders.
              . . . Over [D.R.’s counsel’s] objection, Court allows DCS to
              orally amend. There are no allegations against father in the
              petition and he has no objection to the child being found to be a




      1
        Under cause number 82D04-1802-JT-359 (“Cause No. 359”), DCS filed a petition to terminate the parental
      rights of Mother, T.J. (Alleged Father), and “Unknown Alleged Father.” February 23, 2018 Verified Petition
      for Involuntary Termination of Parent-Child Relationship under Cause No. 359. On June 6, 2018, Mother
      signed a voluntary relinquishment of parental rights, and the court entered an order terminating her parental
      rights. On December 3, 2019, the court entered an order granting the petition for termination of the parent-
      child relationship.

      Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020                                Page 2 of 18
              CHINS. He is at VCCC until February. He is to sign a release
              for VCCC. He does want services and visitation, Mother’s rights
              have been terminated.


      Id.


[4]   On November 7, 2018, M.M. and C.M. filed a petition to adopt K.H. under

      cause number 82D04-1811-AD-210, the cause from which this appeal arises, in

      the Vanderburgh Superior Court. On November 21, 2018, D.R. filed an

      objection to the adoption and requested an attorney. The court appointed

      counsel for him.


[5]   In a document dated July 5, 2018, and titled “Indiana State Department of

      Health Putative Father Registry Affidavit,” Evelyn Riley asserted that she was

      responsible for the administration of the Putative Father Registry, searched the

      registry for K.H. and Mother, and found no putative father was registered and

      that no paternity determination was on file with the department. Id. at 29

      (capitalization omitted).


[6]   On June 11, 2019, the court held a hearing, and counsel for M.M. and C.M.

      argued D.R.’s consent to the adoption was not necessary. Specifically, he

      asserted: “We believe we’ve got I.C. 31-19-9-8(a)11, unfit parent, best interest of

      the child. We think we’ve got 31-19-9-8(a)6, token effort with the child. We’ve

      got I.C. 31-19-9-15, he f[a]iled to file a paternity action. And the last is 31-19-5-

      18, failure to register as the putative Father.” Transcript Volume II at 5.




      Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020           Page 3 of 18
[7]   D.R. testified he was in custody for a DUI and an assault which occurred the

      previous night, but that he did not know whom he had allegedly assaulted. He

      testified he went to the hospital after K.H. was born and was told that the baby

      was not his. When asked if he did not have any contact with K.H. for the first

      eighteen months of his life, he answered: “Right, ‘cause I was told that it wasn’t

      mine so I left it alone. I ain’t gonna go around looking for a kid.” Id. at 7.

      Counsel for M.M. and C.M. asked: “Now you have not filed a putative Father

      affidavit.” Id. He answered: “Yes, I have.” Id. D.R.’s counsel stated she

      believed “that was filed right after we had our hearing where he was

      established” and later stated “I don’t have it with me, but we did do it.” Id.

      D.R. indicated he did not initially obtain any presents for K.H., but he did so

      after he became aware he was the father at the time of the DNA test in October

      2018. M.M. and C.M.’s counsel asked: “But you haven’t done anything prior

      to the DNA results, correct, in regard to the child?” Id. at 10-11. D.R.

      answered: “Yes. I’ve done everything. I’ve fed and bought toys and all.” Id. at

      11. D.R. denied refusing to complete a substance abuse evaluation. When

      asked if he had completed NOW Counseling, he answered: “Yes, I did, and

      when I got released from the Safe House they told me that I didn’t have to

      continue. Same thing (Indiscernible) was talking about. Until I got this new

      case worker, then she wanted me to start all that stuff over. I’m not gonna do

      that.” Id. He testified that he went to Fatherhood Engagement Services “once

      a week. Went twice a week.” Id. at 12. He denied that the police were called

      to his house on February 21, 2019, regarding domestic violence. When asked if

      he was kicked out of his house or his girlfriend’s house, he answered: “Yeah,
      Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020           Page 4 of 18
      but wasn’t no police involved. It was a freaking argument.” Id. at 13. He

      indicated he had eight children including “four grown, four little.” Id. at 14.

      He testified he worked at Rally’s on 41 and Tristate Cylinder and lived with his

      fiancée. He asserted that visits which “ended early wasn’t on” him and that

      DCS canceled visits. Id. at 15. On cross-examination, he testified he was in jail

      and on his way to the “Safe House” when there was a DCS case against

      Mother. Id. at 21. He related he has good relationships with all his children

      and that he has three in Evansville besides K.H., two in Lexington, and two in

      Hopskinsville.


[8]   Lauren Koehler, a foster care specialist and family case manager for DCS,

      testified that D.R. did not comply with the mandates of DCS. Court Appointed

      Special Advocate Linda Atchison (“CASA Atchison”) testified that K.H. had

      been in the care of the foster parents since two days after his birth, foster parents

      also had two of K.H.’s half-siblings, and D.R. initially told her that he was not

      interested in taking K.H. away from his siblings and not interested in services at

      that time. She testified her concern with several visits ending early, including

      one in which D.R. stated “it was because it was his birthday.” Id. at 45. She

      indicated she heard D.R. testify that it was his birthday but he had to attend a

      meeting and, when asked if she was saying she verified that was not the case,

      she answered: “Yeah, they told me there was no meeting scheduled on that

      Sunday evening.” Id. at 46. She testified D.R. told her he had eight children

      and that they were all around the age of two years, but he later reported their

      ages ranged from nineteen years to two years. She testified that the only time


      Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020           Page 5 of 18
      D.R. participated in the NOW Counseling was when he was at the Safe House

      or in jail and that he told her he was going to participate in NOW Counseling

      when he was released but did not do so. D.R. was a “no call, no show on

      February the 12th, February 14th, February 21st, and February 26[th]” for

      random drug screens, tested positive for alcohol on February 22nd, and “was a

      no call, no show on March 21st of 2019, March 28th of 2019, April 3rd of 2019,

      April 9th of 2019, and April 18th of 2019.” Id. at 51, 53. She recommended that

      the adoption be granted. On cross-examination, she testified that “on January

      the 22nd while [D.R.] was at the Safe House and he was very close to ending his

      time there, he was PTRed because of smoking a leafy green substance” and his

      conduct “just didn’t show a commitment to developing that relationship.” Id.

      at 56-57. When asked if she believed D.R. had given anything more than a

      token effort in being involved with the child, she answered in the negative.


[9]   On June 25, 2019, the hearing continued. Lee Poag, a field case worker with

      Ireland Home Based Services, testified D.R. was one of his clients for

      supervised visitations and Fatherhood Engagement. He testified that he

      observed primarily positive interactions between K.H. and D.R., D.R. always

      had what was necessary for the visits including food, diapers, wipes, and toys,

      D.R. followed a lot of his recommendations, and the bond between them

      became better as visits progressed. On cross-examination, he stated that D.R.

      was one of his first clients, D.R. was in jail when he first started working on the

      case on December 3rd until he was released in February, and he was remanded

      back to jail in January for smoking a leafy green substance. He also testified


      Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020          Page 6 of 18
       that D.R. was not complying with services, D.R. was not going to change his

       mind despite his encouragement, and D.R. stated he “won’t take orders from

       anybody.” Id. at 84.


[10]   On July 22, 2019, the court entered an order finding that D.R.’s consent to the

       adoption was not required. The court found:


               1. [K.H.] is a ward of the Court under the care and supervision
               of the Vanderburgh County Department of Child Services
               (“VCDCS”) under Cause No. [768] (“CHINS case”).

               2. The Petitioners, [M.M.] and [C.M.], are [K.H.’s] licensed
               foster parents and pre-adoptive placement.

               3. [K.H.] was born on April 24, 2017 and is two (2) years old.

               4. [D.R.] ([] “Putative Father”) claims to be [K.H.’s] father but
               has never established paternity. [D.R.] was shown to be the
               biological father of the child as indicated by a DNA test taken as
               part of the Child In Need of Services case. There has been no
               formal adjudication by a court of [K.H.’s] paternity.

               5. [K.H.’s] Mother is [Ka.H.]. She executed a voluntary
               termination of parental rights on June 6, 2018 in [Cause No.
               359].

               6. [Mother] and [D.R.] were never married to each other.

               7. On September 13, 2018, [D.R.] was added as a party to the
               CHINS case.

               8. On October 24, 2018, [D.R.] was confirmed as the biological
               father of [K.H.] through DNA testing as part of the CHINS case.

               9. Further, Disposition in the CHINS case was held for [D.R.]
               on November 21[,] 2018. [D.R.] was present for the hearing. At


       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020             Page 7 of 18
        the time of the hearing [D.R.] was at the Vanderburgh
        Community Corrections Complex (“VCCC”).

        10. The Disposition Order stated that [D.R.] was to participate
        in the Fatherhood Engagement Program, have supervised
        visitation, and remain drug and alcohol free. A substance abuse
        evaluation and any recommended therapy or treatment was
        taken under advisement by the Court.

        11. [D.R.] began services working with Lee Poag (“Lee”) from
        Ireland Home Based Services on the Fatherhood Engagement
        Program. Lee also supervised visitation.

        12. Lee stated that in the beginning [D.R.] was cooperative.

        13. Lee testified that as the case moved forward [D.R.] was less
        cooperative and finally did not want to participate in services.

        14. [D.R.] began working two jobs and stated to Lee that he
        didn’t have time for services and there was nothing that he
        needed to work on.

        15. On March 25, 2019, VCDCS, filed a Motion to Modify
        Disposition in regard to [D.R.] due to [D.R.] testing positive for
        drugs while placed in the VCCC.

        16. Based on the positive drug test, the CHINS Court ordered
        that [D.R.] undergo a substance abuse evaluation and follow any
        recommended treatment or therapy.

        17. [D.R.] never followed through with the Court’s order.

        18. Finally in April of 2019, [D.R.] told Lee that he wasn’t going
        to cooperate with VCDCS, that he didn’t have anything that he
        needed to learn, and that he would only comply on his terms.

        19. [D.R.] never established paternity of [K.H.] by a court
        proceeding or by executing a paternity affidavit, pursuant to
        Indiana Code section 31-19-9-8(a)(3) and (6), the Putative
        Father’s consent is not necessary for Petitioners to adopt [K.H.].

Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020             Page 8 of 18
               20. Additionally, the court finds that by clear and convincing
               evidence that [D.R.] is unfit to parent [K.H.] and it is in the best
               interest of the child to dispense with [D.R.’s] consent as provided
               in Indiana Code section 31-19-9-8(a)(11). Putative Father has
               never been in this child’s life and when presented with the
               opportunity to learn to parent the child, he states that he doesn’t
               have time and will only do things on his terms. Further [D.R.]
               cannot obey the criminal statutes of Indiana long enough to
               remain free to participate in services or parent [K.H.].


       Appellant’s Appendix Volume II at 64-66. On January 30, 2020, the court

       entered a decree of adoption which found in part that “by Order of this Court

       dated July 22, 2019 his consent to this adoption is not required.” Id. at 76.


                                                     Discussion

[11]   In family law matters, we generally give considerable deference to the trial

       court’s decision because we recognize that the trial judge is in the best position

       to judge the facts, determine witness credibility, and obtain a feel for the family

       dynamics and a sense of the parents and their relationship with their children.

       E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018). Accordingly, when reviewing

       an adoption case, we presume that the trial court’s decision is correct, and the

       appellant bears the burden of rebutting this presumption. Id. When reviewing

       the 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 judge reached an

       opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). The

       trial court’s findings and judgment will be set aside only if they are clearly

       erroneous. E.B.F., 93 N.E.3d at 762. A judgment is clearly erroneous when


       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020           Page 9 of 18
       there is no evidence supporting the findings or the findings fail to support the

       judgment. Id. We will not reweigh evidence or assess the credibility of

       witnesses. Id. Rather, we examine the evidence in the light most favorable to

       the trial court’s decision. Id.


[12]   D.R. asserts that he was established to be K.H.’s father by the court in Cause

       No. 768 on October 24, 2018. He also asserts that he filed with the putative

       father registry. He argues that his consent is not irrevocably implied because he

       timely filed his motion to contest the adoption. He also argues that the court

       erred in finding that he was unfit to parent K.H. and in finding that it was in the

       child’s best interest to dispense with his consent as provided in Ind. Code § 31-

       19-9-8(a)(11). M.M. and C.M. respond that D.R.’s consent was not required

       because he had only made token efforts with the child, he failed to file a

       paternity action and his consent is not required under Ind. Code § 31-19-9-15,

       he failed to register with the putative father registry, he was unfit to parent, and

       adoption was in the child’s best interest.


[13]   Ind. Code § 31-19-11-1 provides in part that the trial court shall grant a petition

       for adoption if it hears evidence and finds in part that the adoption requested is

       in the best interest of the child and “proper consent, if consent is necessary, to

       the adoption has been given.” A petition to adopt a child may be granted only

       if written consent to adoption has been executed by the father of a child whose

       paternity has been established. See Ind. Code § 31-19-9-1. However, Ind. Code

       § 31-19-9-8(a) provides that consent to adoption “is not required from any of the

       following”:

       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020          Page 10 of 18
           (3) The biological father of a child born out of wedlock whose
           paternity has not been established:

                    (A) by a court proceeding other than the adoption
                    proceeding; or

                    (B) by executing a paternity affidavit under IC 16-37-2-2.1.

                                                    *****

           (5) The putative father of a child born out of wedlock if the
           putative father’s consent to adoption is irrevocably implied under
           section 15 of this chapter.[ 2]

           (6) The biological father of a child born out of wedlock if the:

                    (A) father’s paternity is established after the filing of a
                    petition for adoption in a court proceeding or by executing
                    a paternity affidavit under IC 16-37-2-2.1; and




2
    Ind. Code § 31-19-9-15 provides:

           (a) The putative father’s consent to adoption of the child is irrevocably implied without
           further court action if the father:
                    (1) fails to file a paternity action:
                               (A) under IC 31-14; or
                               (B) in a court located in another state that is competent to obtain
                               jurisdiction over the paternity action;
                    not more than thirty (30) days after receiving actual notice under IC 31-19-3 of the
                    mother’s intent to proceed with an adoptive placement of the child, regardless of
                    whether the child is born before or after the expiration of the thirty (30) day
                    period; or
                    (2) files a paternity action:
                               (A) under IC 31-14; or
                               (B) in a court located in another state that is competent to obtain
                               jurisdiction over the paternity action;
                    during the thirty (30) day period prescribed by subdivision (1) and fails to establish
           paternity in the paternity proceeding under IC 31-14 or the laws applicable to a court of
           another state when the court obtains jurisdiction over the paternity action.

           (b) This section does not prohibit a putative father who meets the requirements of section
           17(b) of this chapter from establishing paternity of the child.

Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020                                     Page 11 of 18
                        (B) father is required to but does not register with the
                        putative father registry established by IC 31-19-5 within
                        the period required by IC 31-19-5-12.

                                                      *****

               (11) A parent if:

                        (A) a petitioner for adoption proves by clear and
                        convincing evidence that the parent is unfit to be a parent;
                        and

                        (B) the best interests of the child sought to be adopted
                        would be served if the court dispensed with the parent’s
                        consent.

       Ind. Code § 31-19-9-8(a) is written in the disjunctive. In re Adoption of B.R., 877

       N.E.2d 217, 218 (Ind. Ct. App. 2007). Ind. Code § 31-19-9-8(b) provides that

       “[i]f a parent has made only token efforts to support or to communicate with

       the child the court may declare the child abandoned by the parent.” We note

       that Ind. Code § 31-14-2-1 is titled “Exclusive methods of establishing

       paternity” and provides: “A man’s paternity may only be established: (1) in an

       action under this article; or (2) by executing a paternity affidavit in accordance

       with IC 16-37-2-2.1.” 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).


[14]   If a petition for adoption alleges that a parent’s consent to adoption is

       unnecessary under Ind. Code § 31-19-9-8(a)(11) and “the parent files a motion

       to contest the adoption,” the “petitioner for adoption has the burden of proving

       that the requirements of IC 31-19-9-8(a)(11) are satisfied and that the best

       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020             Page 12 of 18
       interests of the child are served if the court dispenses with the parent’s consent

       to adoption.” 3 Ind. Code § 31-19-10-1.2(e). Ind. Code § 31-19-10-0.5 provides:

       “The party bearing the burden of proof in a proceeding under this chapter must

       prove the party’s case by clear and convincing evidence.”


[15]   The clear and convincing evidence standard is an intermediate standard of

       proof greater than a preponderance of the evidence and less than proof beyond

       a reasonable doubt. See T.D. v. Eskenazi Health Midtown Cmty. Mental Health Ctr.,

       40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear and convincing,

       the existence of a fact must be highly probable. Id. “The clear and convincing

       standard is employed in cases where the wisdom of experience has

       demonstrated the need for greater certainty, and where this high standard is

       required to sustain claims which have serious social consequences or harsh or

       far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans

       Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and internal quotation marks

       omitted).


[16]   This Court has observed that imprisonment standing alone does not establish

       statutory abandonment. Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App.

       1986) (citation omitted) (cited with approval by In re Adoption of E.A., 43 N.E.3d

       592 (Ind. Ct. App. 2015), trans. denied). Neither should confinement alone

       constitute justifiable reason for failing to maintain significant communication



       3
        Ind. Code § 31-9-2-88 provides that “[p]arent” “for purposes of the juvenile law, means a biological or an
       adoptive parent.”

       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020                                Page 13 of 18
       with one’s child. Id. Incarceration, however, unquestionably alters the means

       for significant communication. Id. What constitutes insignificant

       communication with a free parent may be significant in relation to an

       incarcerated parent with limited access to his child. Id.


[17]   D.R. does not allege and the record does not reveal that he established paternity

       by a court proceeding or by executing a paternity affidavit under Ind. Code §

       16-37-2-2.1. 4 Thus, D.R.’s consent to the adoption of K.H. was not required

       pursuant to Ind. Code § 31-19-9-8(a)(3), which provides that consent to

       adoption is not required from “[t]he biological father of a child born out of

       wedlock whose paternity has not been established: (A) by a court proceeding

       other than the adoption proceeding; or (B) by executing a paternity affidavit

       under IC 16-37-2-2.1.”


[18]   Even assuming that Ind. Code § 31-19-9-8(a)(3) did not apply, we cannot say

       that reversal is warranted. Ind. Code § 31-19-9-8(a)(11) provides that consent to

       adoption “is not required from . . . [a] parent if . . . a petitioner for adoption

       proves by clear and convincing evidence that the parent is unfit to be a parent;

       and . . . the best interests of the child sought to be adopted would be served if

       the court dispensed with the parent’s consent.” While the term “unfit” as used

       in Ind. Code § 31-19-9-8(a)(11) is not statutorily defined, this Court has defined




       4
        To the extent D.R. asserts he was established to be K.H.’s father by the court in the CHINS action, Cause
       No. 768, we note that Ind. Code § 31-14-2-1, which is titled “Exclusive methods of establishing paternity,”
       provides: “A man’s paternity may only be established: (1) in an action under this article; or (2) by executing a
       paternity affidavit in accordance with IC 16-37-2-2.1.”

       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020                                  Page 14 of 18
       “unfit” as “[u]nsuitable; not adapted or qualified for a particular use or service”

       or “[m]orally unqualified; incompetent.” In re Adoption of M.L., 973 N.E.2d

       1216, 1223 (Ind. Ct. App. 2012) (quoting BLACK’S LAW DICTIONARY 1564 (8th

       ed. 2004)).


[19]   We have also noted that statutes concerning the termination of parental rights

       and adoption “strike a similar balance between the parent’s rights and the

       child’s best interests” and thus termination cases provide useful guidance in

       determining whether a parent is unfit. Id. Termination cases have considered

       factors such as a parent’s substance abuse, mental health, willingness to follow

       recommended treatment, lack of insight, instability in housing and

       employment, and ability to care for a child’s special needs. Id. Also, this Court

       has consistently held in the termination context that it need not wait until

       children are irreversibly harmed such that their physical, mental, and social

       development are permanently impaired before terminating the parent-child

       relationship. See In re A.P., 981 N.E.2d 75, 83 (Ind. Ct. App. 2012). It is well-

       settled that individuals who pursue criminal activity run the risk of being denied

       the opportunity to develop positive and meaningful relationships with their

       children. In re Adoption of H.N.P.G., 878 N.E.2d 900, 907 (Ind. Ct. App. 2008),

       trans. denied, cert. denied, 555 U.S. 1034, 129 S. Ct. 619 (2008). A parent’s

       criminal history is relevant to whether the parent is unfit under Ind. Code § 31-

       19-9-8(a)(11). See In re T.W., 859 N.E.2d 1215, 1218-1219 (Ind. Ct. App. 2006)

       (discussing evidence of the father’s criminal history in reviewing a finding of

       parental unfitness).


       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020         Page 15 of 18
[20]   The record reveals that K.H. was born on April 24, 2017, and that D.R. did not

       request a DNA test before September 2018, or file a paternity affidavit or

       establish paternity under Ind. Code Article 31-14. At the June 11, 2019

       hearing, D.R. testified he was in custody for DUI and assault, the assault

       occurred the previous night, and he did not know whom he allegedly assaulted.

       When asked if he did not have any contact with K.H. for the first eighteen

       months of his life, he answered: “Right, ‘cause I was told that it wasn’t mine so

       I left it alone. I ain’t gonna go around looking for a kid.” Transcript Volume II

       at 7. He testified he was in jail and on his way to the “Safe House” when there

       was a DCS case against K.H.’s mother. Id. at 21. Koehler, the foster care

       specialist and family case manager for DCS, testified that D.R. did not comply

       with the mandates of DCS. CASA Atchison testified that K.H. had been in the

       care of the foster parents since two days after his birth, foster parents also had

       two of K.H.’s half-siblings, and D.R. initially told her that he was not interested

       in taking K.H. away from his siblings and was not interested in services at that

       time. She testified regarding her concern that several visits ended early,

       including one in which D.R. stated “it was because it was his birthday.” Id. at

       45. She testified D.R. was a “no call, no show on February the 12th, February

       14th, February 21st, and February 26[th]” for random drug screens, tested

       positive for alcohol on February 22nd, and “was a no call, no show on March

       21st of 2019, March 28th of 2019, April 3rd of 2019, April 9th of 2019, and April

       18th of 2019.” Id. at 51, 53. When asked her recommendation, CASA Atchison

       answered:



       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020          Page 16 of 18
        [M]y recommendation is that the adoption be granted. I feel that
        there’s been no consistencies with making [K.H.] a priority. I
        feel like there’s just always something that kind of takes
        precedence over [K.H.]. And I just don’t think that that is in his
        best interest. I think he needs to continue that stability and I just
        haven’t seen that cooperation from [D.R.] to be able to provide
        for [K.H.] the way I think he deserves to be provided.


Id. at 54. She testified that “on January the 22nd while [D.R.] was at the Safe

House and he was very close to ending his time there, he was PTRed because of

smoking a leafy green substance” and that D.R.’s conduct “just didn’t show a

commitment to developing that relationship.” Id. at 56-57. When asked if she

believed D.R. had given anything more than a token effort in being involved

with the child, she answered:


        No. I feel like [K.H.] deserves to have the very best and that’s
        always been my focus. You know, I think this is a little bit
        unusual situation. And again, I’m looking at it from [K.H.’s]
        point. You know, he is in a home for 18 months of his life, his
        whole life. He identifies with those foster parents as Mom and
        Dad, he does. Whether it’s anyone’s fault or not, that’s the truth.
        That’s what he does. And, you know, to take him out of that
        situation I would want to see a more consistent effort. I would
        want to see that [D.R.] did not take the chance that if he smoked
        that green leafy substance he was gonna go back to jail and he
        wasn’t gonna get to see his child. That if he had two police runs
        where he became angry with his girlfriend that he wanted to
        place [K.H.] with. My goodness, what if [K.H.] had been there?
        Those are the things that I do as the CASA. I want to see that
        consistency that I know [K.H.] would be safe and that he would
        always be put number one over cigarettes and green leafy
        substances and alcohol and . . . his birthday. And the whole
        thing – the substance abuse eval, when we came back for the

Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020           Page 17 of 18
               modification Judge Niemeier said, “You need to go for the
               substance abuse eval. If they say you don’t have a problem and
               you don’t need treatment, you don’t have to do treatment.” So
               how hard would that have been to go get a substance abuse eval?
               But he refused to do that. And I think it’s become more of just a
               challenge, like nobody’s gonna tell me what to do. And I don’t
               think that’s what’s best for [K.H.].


       Id. at 63. The trial court was in the best position to judge the facts, and we will

       not reweigh evidence or assess the credibility of the witnesses. We cannot say

       under these circumstances that D.R. has met his burden to overcome the

       presumption the trial court’s decision is correct or that the evidence leads to but

       one conclusion and the trial court reached the opposite conclusion.


[21]   For the foregoing reasons, we affirm the judgment of the trial court.


[22]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 20A-AD-337 | July 29, 2020          Page 18 of 18
