MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          Dec 06 2019, 9:00 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Kristina L. Lynn                                        Justin R. Wall
Lynn and Stein, P.C.                                    Wall Legal Services
Wabash, Indiana                                         Huntington, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Adoption of D.J.B.,                          December 6, 2019
B.W.B., and B.M.B., minor                               Court of Appeals Case No.
children,                                               19A-AD-1612
                                                        Appeal from the Huntington
                                                        Circuit Court
D.W.B.,
                                                        The Honorable Davin Smith,
Appellant-Respondent,                                   Judge, and the Honorable Jeffrey
                                                        R. Heffelfinger, Judge Pro Tem
        v.
                                                        Trial Court Cause Nos.
                                                        35C01-1811-AD-28
D.T. and E.T.,                                          35C01-1811-AD-30
Appellees-Petitioners                                   35C01-1811-AD-31




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019                   Page 1 of 7
[1]   D.W.B. (Father) appeals the trial court’s order granting the petition of E.T.

      (Mother) and D.T. (Stepfather) for Stepfather to adopt the children of Father

      and Mother. Specifically, Father argues that the trial court erroneously found

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


                                                            Facts
[2]   Mother and Father have three minor children: D.J.B., born in June 2006;

      B.W.B., born in October 2007; and B.M.B., born in July 2009.1 After living

      and raising the children together for several years, Mother and Father separated

      sometime in 2012. Mother married Stepfather in March 2013. Sometime in

      2013, in the paternity case, an order was entered requiring that Father’s visits be

      supervised.


[3]   From 2012 through 2016, Father did not see or communicate with the children

      at all. Mother and Stepfather offered rides to Father and offered to pay for

      Father and the children to go out to dinner together, but he failed to take them

      up on the offers. He also failed to call, write letters or cards to, or Skype with

      the children, nor did he send them birthday or Christmas presents. Also, he has

      always had the option of contacting Youth Services Bureau to schedule visits,

      but he has never done so.




      1
          Father has established paternity for all three children.


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019   Page 2 of 7
[4]   Between 2016 and February 2018, Father exercised overnight parenting time

      with the children for a total of ten to twelve nights. Aside from the overnights,

      Father only spent time with the children for a period of several hours once or

      twice. Father was never present for doctor visits, sporting events, school events,

      or other child-related activities, except for one school musical. Father has

      always known Mother’s phone number, and Mother and Stepfather know of no

      reason why he was unable to spend time or communicate with the children.


[5]   From November 2012 through 2016, Father was ordered to pay child support

      but failed to do so. The last voluntary child support payment Mother received

      from Father occurred in February 2018, which is also the month in which

      Father last saw the children.2


[6]   From March through November 2018, Father had no contact whatsoever with

      the children. On November 2, 2018, Mother and Stepfather filed their petitions

      for Stepfather to adopt the children. They alleged that Father’s consent to the

      adoption was not necessary. The trial court held an evidentiary hearing on the

      issue of Father’s consent on December 14, 2018. That same day, the trial court

      found that Father’s consent was not necessary:




      2
        Although it was court ordered that Father have supervised parenting time, the children wanted to get to
      know Father, so Mother agreed to an overnight visit. One of the children reported to Mother that during that
      visit, he saw Father “go[] into the bathroom with [Father’s] friend and com[e] out wiping blood off [his]
      arm . . . .” Tr. Vol. II p. 36. The child told Mother that “he’s not dumb, he knows what’s going on,” id., and
      from that point on, Mother strictly complied with the supervised parenting time order. But Father never
      contacted the agency to schedule visits, so none occurred.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019                  Page 3 of 7
              2.      The Court finds that for the period of March, 2018
                      through November 2, 2018, [Father] has had no contact
                      with the children and has abandoned the children.


              3.      The Court further finds that for a period of approximately
                      four (4) years, [Father], without justifiable cause, has failed
                      to communicate with the children when he was able to do
                      so.


              4.      Pursuant to Indiana Code § 31-19-9-8(a)(1) and Indiana
                      Code § 31-19-9-8(a)(2), [Father’s] consent to adoption of
                      the children by [Stepfather] is not required.


      Appellant’s App. Vol. II p. 17. On June 13, 2019, the trial court granted the

      adoption petitions. Father now appeals.


                                   Discussion and Decision
[7]   When reviewing adoption proceedings, there is a strong presumption that the

      trial court’s decision is correct, and the appellant bears the burden of rebutting

      this presumption. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). We

      generally give considerable deference to the trial court’s decision in family law

      matters because the trial court is in the best position to judge the facts, assess

      witness credibility, “get a feel for the family dynamics,” and “get a sense of the

      parents and their relationship with their children . . . .” MacLafferty v.

      MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). We will affirm unless the

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

      conclusion. O.R., 16 N.E.3d at 973. In conducting our review, we will neither



      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019   Page 4 of 7
      reweigh the evidence nor assess witness credibility, and will examine only the

      evidence most favorable to the trial court’s decision. Id.


[8]   Generally, a trial court may only grant a petition to adopt a child born out of

      wedlock who is less than eighteen years of age if both the mother and the father

      consent. I.C. § 31-19-9-1(a)(2). But Indiana Code section 31-19-9-8(a)

      provides, in relevant part, that consent to an adoption is not required from the

      following:


              (1)     A parent or parents 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.


              (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


                      (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.


      Furthermore, “[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.” Id. § -8(b).


[9]   Mother testified that in the six months leading up to the filing of the adoption

      petitions on November 2, 2018, Father had no contact with the children. She

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019   Page 5 of 7
       also testified that for an approximately four-year period between 2012 and

       2016, Father had no contact with the children. Mother and Stepfather

       repeatedly contacted Father to ask him to visit with the children, to attend their

       school events, and to in some way establish a relationship with the children, but

       he failed to do so in any meaningful way. He also failed to pay court-ordered

       child support between 2012 and 2016. The only evidence in the record to the

       contrary is Father’s self-serving testimony. His arguments on appeal amount to

       a request that we reweigh the evidence and second-guess the trial court’s

       assessment of the credibility of the witnesses, which we may not do. The

       testimony of Mother and Stepfather supports the trial court’s conclusion that,

       under the above statutory provisions, Father’s consent to the adoption was not

       required.


[10]   In their brief, Mother and Stepfather request appellate attorney fees. Indiana

       Appellate Rule 66(E) allows this Court to award attorney fees if an appeal is

       frivolous or made in bad faith; in other words, fees are appropriate when the

       appeal “is permeated with meritlessness, bad faith, frivolity, harassment,

       vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346

       (Ind. Ct. App. 2003). We agree with Mother and Stepfather that this appeal

       approaches that line, but decline to find that the line was crossed. We choose

       to give Father the benefit of the doubt, as it is his relationship with his children

       that is at stake. Therefore, we decline to order him to pay appellate attorney

       fees.




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019   Page 6 of 7
[11]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019   Page 7 of 7
