      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                   FILED
      regarded as precedent or cited before any
                                                                         Feb 09 2017, 8:01 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                 CLERK
                                                                          Indiana Supreme Court
      estoppel, or the law of the case.                                      Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
      Anthony M. Rose                                          Mark F. James
      Anthony Rose Law Firm                                    Anderson, Agostino & Keller P.C.
      South Bend, Indiana                                      South Bend, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Adoption of                         February 9, 2017
      K.D.,                                                    Court of Appeals Case No.
                                                               71A03-1605-AD-1053
      B.D.,
                                                               Appeal from the
      Appellant-Respondent,                                    St. Joseph Probate Court
              v.                                               The Honorable
                                                               James N. Fox, Judge
      W.D. and D.D.,                                           Trial Court Cause No.
                                                               71J01-1410-AD-93
      Appellees-Petitioners.



      Kirsch, Judge.


[1]   B.D. (“Father”) appeals the trial court’s order granting the petition for adoption

      of K.D. filed by W.D. and D.D. (together, “the Grandparents”). Father raises

      the following restated issue for our review: whether the trial court erred when it

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017     Page 1 of 7
      concluded that Father’s consent to the adoption was not required because he

      knowingly failed to provide for the care and support of K.D. when he was able

      to do so.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and H.D. (“Mother”) were married and had one child together, K.D.,

      who was born on October 23, 2005. On August 4, 2005, Father was

      incarcerated for a sexual misconduct with a minor conviction and was released

      on parole on October 24, 2011. Father was again incarcerated on January 31,

      2012 for a parole violation, and his anticipated release date is in September

      2018. Sometime after Father became incarcerated, the marriage between

      Mother and Father was dissolved; as a result of the dissolution, a child support

      order was entered in Cause Number 20D01-0901-DR-9.


[4]   W.D. and D.D. are the maternal grandparents of K.D. On November 5, 2014,

      the Grandparents filed a petition for adoption, seeking to adopt K.D. Mother

      consented to the adoption, and her consent was attached to the petition. The

      Grandparents asserted that Father’s consent was not required because Father

      had failed to provide support for K.D. for over one year when he had the ability

      to do so. Appellant’s App. at 12.


[5]   Between September 2013 and August 2015, while incarcerated, Father earned

      approximately $53.00 per month through inmate employment at the prison

      facility in which he was housed. At the time of the evidentiary hearing, Father
      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 2 of 7
      had $53.97 in his inmate trust account, which is also called a JPAY account. A

      review of the JPAY account showed that Father had used funds from the

      account for purchases from Papa John’s Pizza and Kentucky Fried Chicken as

      part of prison fundraisers. Pet’r’s Ex. 1.


[6]   During Father’s first period of incarceration, he made payments toward the

      child support order for K.D. through an Income Withholding Order. After

      Father returned to prison in 2012, Father’s JPAY account was debited for child

      support payments through an Income Withholding Order. Father would

      occasionally review his JPAY account and observed that these payments were

      being routinely taken out of the account. In addition to his obligation for K.D.,

      Father had a second child support obligation for another child that lived in

      another state. The JPAY transaction history indicated that money was being

      withheld for child support payments, but did not identify to which child support

      case the money was being applied. Father testified that he thought the child

      support payments being taken from his JPAY account were being given to both

      of his children. Tr. at 63. In October 2015, Father became aware that the child

      support deductions from his JPAY account were being applied to his other

      child and not to K.D. Around the time the petition for adoption was filed,

      Father began to mail child support payments to the Indiana Child Support

      Collection Unit to be applied to his child support obligation for K.D.


[7]   An evidentiary hearing was held on the Grandparents’ adoption petition on

      January 25, 2016. After taking the case under advisement, the trial court



      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 3 of 7
      granted the Grandparents’ petition for adoption, finding that Father had the

      ability to provide support for K.D. and failed to do so. Father now appeals.


                                     Discussion and Decision
[8]   When reviewing 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 S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing

      In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied).

      We will neither reweigh the evidence nor 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]   Father argues that the trial court erred in determining that his consent to the

      adoption was not required and in granting the Grandparents’ petition for the

      adoption of K.D. He contends that the evidence presented was not sufficient to

      support the conclusion that he knowingly failed to provide for the support of

      K.D. Father claims that he believed that child support withholdings from his

      JPAY account were being applied to his child support obligation for K.D. He

      further asserts that the transaction history for his JPAY account did not contain

      enough information to determine the specific case, K.D.’s or his other child’s,




      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 4 of 7
       to which the withholdings were applied and that he believed that payments

       were being paid to both children.


[10]   Parental consent is generally required to adopt a child in Indiana. Ind. Code §

       31-19-9-1. However, consent to adoption is not required from:


               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.


       Ind. Code § 31-19-9-8(a)(2). “If 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.” Ind. Code § 31-19-9-8(b). The petitioner bears the burden to prove

       this by clear and convincing evidence. In re Adoption of M.S., 10 N.E.3d 1272,

       1279 (Ind. Ct. App. 2014).


[11]   We do not address Father’s argument regarding whether he knowingly failed to

       provide for the support of K.D. when able to do so because we affirm the trial

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

       K.D. when able to do so. At the hearing on the Grandparents’ petition, Father

       testified that he was in prison at the time that K.D. was born and had never had

       any direct contact with her. Tr. at 43-44. K.D. was ten years old at the time of

       the hearing. Father additionally testified that he “periodically” sent letters and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 5 of 7
       cards to K.D., and there was no testimony when the most recent

       correspondence had been sent. Id. at 46. There was also testimony that Father

       never sent gifts or clothing to K.D. Id. at 16, 23-24.


[12]   Indiana Code section 31-19-9-8(a)(2) 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 S.W., 979 N.E.2d at

       640. Furthermore, 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). Here, because there was no evidence presented at the hearing that

       Father has sent K.D. any gifts or correspondence or otherwise communicated

       significantly with her when he was able to do so, we conclude that the trial

       court did not clearly err when it found that Father’s consent was not required

       and granted the Grandparents’ petition to adopt K.D. See In re Adoption of T.W.,

       859 N.E.2d 1215, 1218 (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, when the record did not

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

       and father’s argument that his attempts at communication would have been

       thwarted was speculative); Williams v. Townsend, 629 N.E.2d 252, 254 (Ind. Ct.

       App. 1994) (occasional letter or card sent to child from incarcerated parent and

       one telephone conversation with child was “token communication” that was

       properly disregarded by trial court when determining that parent’s consent to

       adoption was not required).


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 6 of 7
[13]   Affirmed.


[14]   Robb, J., concurs.


[15]   Barnes, J., concurs in result without separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-AD-1053 | February 9, 2017   Page 7 of 7
