MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Feb 26 2020, 8:25 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 APPELLEE
John S. Capper, IV                                       Ronald J. Severt
Capper Tulley & Reimondo                                 Wallace Law Firm
Crawfordsville, Indiana                                  Covington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.S.,                                                    February 26, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-AD-2416
        v.                                               Appeal from the Fountain Circuit
                                                         Court
C.R.,                                                    The Honorable Harry A. Siamas,
Appellee-Respondent                                      Special Judge
                                                         Trial Court Cause No.
                                                         23C01-1804-AD-9



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020            Page 1 of 13
[1]   M.S. (Adoptive Mother) appeals the trial court’s order denying her petition for

      adoption, arguing that the trial court erred (1) by finding that Adoptive Mother

      had not proved by clear and convincing evidence that she could adopt W.H.

      (Child) without C.R.’s (Father’s) consent; and (2) by denying her motion to

      correct error because there was newly discovered evidence material to her case.

      Finding no error on either front, we affirm.


                                                     Facts
[2]   Child was born to K.H. (Mother) and Father on April 8, 2013. On October 10,

      2014, Father and Mother entered into an agreed paternity order, pursuant to

      which they would share joint legal custody of Child. Mother would have

      primary physical custody, and Father would have supervised parenting time

      beginning December 8, 2014. On March 23, 2016, Father and Mother entered

      into another agreed paternity order, pursuant to which Father would pay $2,162

      to Mother for his child support arrearage. Additionally, starting April 22, 2016,

      Father would have more parenting time with Child in accordance with the

      Indiana Parenting Time Guidelines.


[3]   The last time Father visited with Child was on March 9, 2017. Having trouble

      finding work in Indiana, Father moved to Arizona to work as a millwright. On

      his first day of work on March 17, 2017, Father fell twenty-five feet while

      hanging steel, seriously injuring his pelvis, leg muscles, and fibula bone in the

      process. Father was then hospitalized for two weeks. According to Father,

      “[w]here the injury took place and stuff, I wasn’t able to leave the state and do


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 2 of 13
      anything anywhere else, it had to be through there or I might not be covered

      with the insurance and then every issue I had would be on me.” Tr. Vol. II p.

      45. Father also underwent significant physical therapy over the next six months

      and had “a nurse coming every single day to change [the bandages on his]

      wounds[.]” Id. Mother testified that she learned “at some point . . . that perhaps

      [Father] had left the state[.]” Id. at 12.


[4]   Between April 25, 2017, and April 25, 2018, Father talked with Child on the

      phone roughly five or six times. He did not FaceTime or video chat with Child

      because Father “do[es] not know how to FaceTime,” id. at 64, he did not send

      Child a birthday card, and he did not keep in regular contact with Mother or

      Adoptive Mother. However, Father did keep in regular contact with his own

      parents by calling them three to four times a week. Child’s paternal

      grandmother—Father’s mother—testified that it was her perception that

      “[Mother] didn’t want [Father] to have contact with [Child][.]” Id. at 83. Father

      eventually returned to Indiana sometime in April 2018. Father contacted

      Mother on April 12, 2018, notifying her of his relocation.


[5]   Adoptive Mother and Mother have been in a relationship since 2015. Adoptive

      Mother has been a constant presence in Child’s life. Adoptive Mother works as

      a teacher in the Fountain Central school system and has been approved as a

      foster parent to Child. Adoptive Mother and Mother married on June 8, 2018,

      and Child reportedly has a close relationship with Adoptive Mother and her

      extended family.



      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 3 of 13
[6]   On April 25, 2018, Adoptive Mother filed a petition for adoption of Child. In

      that petition, Adoptive Mother contends that “consent to this adoption is not

      required from [Father] pursuant to I.C. 31-19-9-8(a)(2) for the reason that said

      biological father has failed to have substantial contact with [Child] for one (1)

      year and has failed to provide support for one (1) year prior to the filing of this

      petition.” Appellant’s App. Vol. II p. 8-9. Father objected and filed a motion to

      dismiss Adoptive Mother’s petition on January 14, 2019, which the trial court

      denied on February 11, 2019.


[7]   Following the June 26, 2019, adoption hearing, the trial court took the matter

      under advisement. On July 9, 2019, the trial court issued an order denying

      Adoptive Mother’s petition for adoption and found, in pertinent part, as

      follows:


                      The evidence supports that [Father] moved to Arizona on
              March 17, 2017 for his employment as an iron worker. On the first
              day of the job [Father] was working between 25 and 100 feet off
              the ground “hanging I beams” on a construction project when he
              fell to the ground. [Father] suffered severe injuries including a
              shattered pelvis and broken bones. He was hospitalized for about
              two weeks. He endured several surgeries. After his release from
              the hospital, he was bedridden for four or five months. For three
              months he couldn’t walk, bathe himself or use the restroom by
              himself. He had daily nursing care for many weeks. He was on
              narcotic medication. He was in severe pain. On a scale of one to
              ten he felt his pain level was ten. He had drain tubes inserted into
              his legs for three and one-half months. He was at a high risk for
              life threatening blood clots during this period. [Father] estimated it
              was four to five months after his accident before he was able to
              talk coherently for any length of time. The first time he attempted
              to take a shower he passed out. He was not medically released to
              travel any distance in a car or airplane until December 2017. He
              received physical therapy for six months. In addition, because of

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 4 of 13
              delays in receiving workman’s compensation benefits, [Father]
              had no income for three or four months. He could not leave
              Arizona (even if he was physically able) because he would lose his
              workman’s compensation medical insurance.

                                                   ***

                     The initial issue for the court is: was there any period
              between April 25, 2017 and April 25, 2018 when [Father] was
              unable to communicate with [Child] for a justifiable reason? The
              Court finds that the evidence establishes that there was a period of
              time or times during the year in question when [Father] was
              unable to communicate with his son. He physically was unable to
              leave his bed for many months after April 25, 2017. It was not
              until December 2017 that he was cleared to travel any distance.
              For a period of time after April 25, 2017 [Father] wan [sic]
              mentally unable to communicate coherently with his son as the
              direct result of the severity of his injuries, his extreme pain, the
              effects of the pain medication and his temporary disabilities. The
              evidence establishes that it was a period of several months after
              April 25, 2017 before [Father] was in a physical and mental state
              healthy enough to attempt any meaningful communication with
              his son. However, whether the period of inability to communicate
              after April 25, 2017 was a matter of days, weeks, or months is
              inapposite. The statute requires that there be a period of at least
              one year without communication when able to do so.
                     . . . [Adoptive Mother] has failed to prove by clear and
              convincing evidence that [Father] without justifiable cause failed
              to communicate with [Child] for a period of one year when
              [Father] was able to do so.
                     . . . Certainly, [Adoptive Mother] has proven herself to be
              an appropriate parent and she clearly has a nurturing relationship
              with [Child]. However, she has failed to meet the requirement to
              dispense with the necessity of [Father’s] consent to her adoption
              petition.


      Appealed Order p. 2-3 (emphases in original).


[8]   On August 26, 2019, Adoptive Mother filed a motion to correct error, arguing

      that she should receive a new hearing on her adoption petition because of newly

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 5 of 13
       discovered evidence material to her case. The trial court denied Adoptive

       Mother’s motion on September 12, 2019. Adoptive Mother now appeals.


                                    Discussion and Decision
                                     I. Petition for Adoption
[9]    First, Adoptive Mother argues that the trial court erred when it found that she

       had not proved by clear and convincing evidence that she could adopt Child

       without Father’s consent.


[10]   Our standard of review for these types of cases is well established:


               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 Subzda, 562 N.E.2d 745, 747 (Ind. Ct. App. 1990).
               We will not reweigh the evidence, but instead will examine the
               evidence most favorable to the trial court’s decision together with
               reasonable inferences drawn therefrom, to determine whether
               sufficient evidence exists to sustain the decision. Matter of Adoption
               of Marcum, 436 N.E.2d 102, 103 (Ind. Ct. App. 1982). We note
               that a petitioner for adoption without parental consent bears the
               burden of proving the statutory criteria for dispensing with such
               consent in Ind. Code § 31-19-9-8(a)(2) by clear, cogent and
               indubitable evidence. In re Adoption of Augustyniak, 505 N.E.2d
               868, 870 (Ind. Ct. App. 1987); Matter of Adoption of Ryan L., 435
               N.E.2d 624, 625 (Ind. Ct. App. 1982). If the evidence most
               favorable to the judgment clearly, cogently, and indubitably
               establishes one of the criteria for granting adoption without
               parental consent and, thereby, for the termination of parental
               rights without consent, we will affirm the judgment. In re Adoption
               of Childers, 441 N.E.2d 976, 978 (Ind. Ct. App. 1982). Finally, the
               decision of the trial court is presumed to be correct, and it is the
               appellant’s burden to overcome that presumption. Id.



       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 6 of 13
       Rust v. Lawson, 714 N.E.2d 769, 771-72 (Ind. Ct. App. 1999).


[11]   Indiana Code section 31-19-9-8(a)(2) states that:


               (a) Consent to adoption, which may be required under section 1 of
               this chapter, is not required from any of the following:

                                                    ***

                        (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.


[12]   Here, the trial court found that Father had justifiable cause for his failure to

       communicate significantly with Child for at least one year. Adoptive Mother

       disagrees, arguing that his work-related injuries were not that severe. Thus,

       according to Adoptive Mother, she did not need Father’s consent to proceed

       with her petition for adoption of Child.


[13]   The record shows that Father’s last in-person visit with Child was on March 9,

       2017. Shortly thereafter, Father moved to Arizona to work as a millwright and

       was injured on March 17, 2017, his first day on the job. For the next five to six

       months, Father was incapacitated, underwent significant physical therapy, and

       required the assistance of a visiting nurse to perform the most basic functions.

       Additionally, Father could not leave Arizona while his worker’s compensation

       claim was pending out of fear that he would lose his insurance. The trial court
       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 7 of 13
       ultimately determined that “[t]he evidence establishes that it was a period of

       several months after April 25, 2017 before [Father] was in a physical and

       mental state healthy enough to attempt any meaningful communication with

       his son.” Appealed Order p. 3. In other words, the trial court reasoned that

       under the totality of the circumstances, there were several months between

       April 25, 2017, and April 25, 2018—the day on which Adoptive Mother filed

       her petition for adoption—when Father had justifiable cause for not

       significantly communicating with Child.


[14]   We find no error in the trial court’s assessment. As a reminder, we give

       considerable deference to trial courts for family law matters because they are in

       the best position to judge facts, determine witness credibility, and “‘get a feel for

       the family dynamics[.]’” E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018) (quoting

       MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). And here, the trial

       court reached a sound decision based on the facts and circumstances before it.

       Between April 25, 2017, and April 25, 2018, there were periods during which

       Father both physically and mentally could not communicate with Child. Those

       periods, in effect, interrupted the one-year lull of significant communication

       that Adoptive Mother had to prove to adopt Child without Father’s consent.


[15]   Adoptive Mother contests these conclusions, arguing that “the evidence shows

       that [Father] only had contact, via telephone, with [Child] on five (5) or six (6)

       undated occasions from April 25, 2017 to April 25, 2018.” Appellant’s Br. p.

       14. However, Adoptive Mother’s argument here is unavailing for three primary

       reasons. First, as the trial court pointed out, “[t]he Court has not considered

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 8 of 13
       whether [Father’s] communications during the year were token efforts since the

       one-year period has not been proven.” Appealed Order p. 3. In other words,

       Adoptive Mother’s efforts to show that Father’s communications with Child

       were insignificant are premature since she has not yet proved that the one-year

       period exists. Next, Indiana law is patently clear that “a single significant

       communication within one year is sufficient to preserve a non-custodial parent’s

       right to consent to the adoption.” E.B.F., 93 N.E.3d at 763. Therefore, even if

       we were to consider the significance of Father’s sporadic communication, the

       caselaw does not support Adoptive Mother’s factual assertions.


[16]   Finally, and most importantly, much of Adoptive Mother’s argument is

       comprised of an attempt to have us reweigh the facts in her favor, which we

       may not do. The question before us is not whether Adoptive Mother would

       make a suitable adoptive parent to Child. Though the record is replete with

       evidence demonstrating that Adoptive Mother would be an exemplary parent,

       and the trial court concurs in that assessment, our task is to determine whether

       the trial court erred when it determined that Adoptive Mother had not proved

       by clear and convincing evidence that she could adopt Child without Father’s

       consent. And, upon further review by this Court, it was reasonable for the trial

       court to conclude that Adoptive Mother has not met her burden of proof. In

       sum, the trial court did not err.




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 9 of 13
                                  II. Motion to Correct Error
[17]   Next, Adoptive Mother argues that the trial court erred when it denied her

       motion to correct error because there was newly discovered evidence material

       to her case. We will reverse a trial court’s denial of a motion to correct error

       only when its decision is against the logic and effect of the facts and

       circumstances before it or if the court has misinterpreted the law. Scales v. Scales,

       891 N.E.2d 1116, 1118 (Ind. Ct. App. 2008). “The trial court’s decision on a

       motion to correct error comes to us cloaked with a presumption of correctness,

       and the appellant has the burden of showing [that the trial court erred].”

       Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015).


[18]   Specifically, Adoptive Mother argues that this newly discovered evidence—

       photos taken from Father’s girlfriend’s Instagram account showing Father’s

       health status after his injuries—is material to her case and warrants grant of a

       new adoption hearing. Indiana Trial Rule 59(A)(1) states that a party may file a

       motion to correct error if the party seeks to address “[n]ewly discovered

       material evidence, including alleged jury misconduct, capable of production

       within thirty (30) days of final judgment which, with reasonable diligence,

       could not have been discovered and produced at trial[.]”


[19]   Newly discovered evidence will mandate a new trial on a motion to correct

       error only when the defendant demonstrates that:


               (1) the evidence has been discovered since the trial;

               (2) it is material and relevant;

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 10 of 13
               (3) it is not cumulative;

               (4) it is not merely impeaching;

               (5) it is not privileged or incompetent;

               (6) due diligence was used to discover it in time for trial;

               (7) the evidence is worthy of credit;

               (8) it can be produced upon a retrial of the case; and

               (9) it will probably produce a different result at retrial.


       Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). “The basis for newly discovered

       evidence should be received with great caution and the alleged new evidence

       carefully scrutinized.” Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987).


[20]   In describing why these Instagram photos are material to her case, Adoptive

       Mother contends that:


               the Instagram photographs [show] that [Father] was physically
               and mentally well enough to travel outside the hospital, potentially
               travel to Mexico, travel to Indiana, operate a motor vehicle, and
               celebrate the Fourth of July, all in 2017, the time period of his
               alleged incapacity. These all go to the core issue in the trial court’s
               order denying [Adoptive Mother’s] petition for adoption: whether
               [Adoptive Mother] proved by clear and convincing evidence that
               [Father] without justifiable cause failed to communicate with the
               child for a period of one year when [Father] was able to do so.


       Appellant’s Br. p. 12. The Instagram photos are “dated July 3, 2017; the next

       photo August 7, 2017; and the final photo dated November 27, 2017.”

       Appellant’s App. Vol. II p. 75.

       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 11 of 13
[21]   Simply put, Adoptive Mother’s argument is unavailing. Even if we were to find

       that Adoptive Mother had demonstrated the necessary requirements for newly

       discovered evidence, the Instagram photos do not alter our analysis. The trial

       court still determined, and we find no error in its determination, that there were

       several months between April 25, 2017, and April 25, 2018, when Father had

       justifiable cause for not communicating significantly with Child. In other

       words, the Instagram photos do not change the fact that there was no entire one-

       year lull of significant communication without justifiable cause between non-

       custodial parent and child. Adoptive Mother must clear this threshold to

       proceed with her adoption petition, and the Instagram photos do nothing to aid

       her in this endeavor. The trial court found as much when it issued its order

       denying Adoptive Mother’s motion to correct error, finding that:


               The Court found that the evidence at trial established that there
               was a period of time or times during the year in question when
               [Father] was unable to communicate with his son for a justifiable
               cause. The submitted “newly discovered evidence” does not alter
               this finding. Even if the “newly discovered evidence” is probative
               that in July, August and November [Father] could communicate
               with his son, it does nothing to prove that he was physically and
               mentally able to communicate with his son in the April days after
               April 25th, or in May or June. That would have been the time
               period when [Father’s] injuries were most debilitating—the days
               closer to the date he suffered his injuries. The Court finds that this
               evidence would not produce a different result at a retrial of the
               case.


       Id. at 75-76.


[22]   Furthermore, we see Adoptive Mother’s attempt to have us evaluate these

       Instagram photos post hoc as nothing more than a veiled request for us to
       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 12 of 13
       reweigh the evidence, which we may not do. According to Adoptive Mother,

       these photos are material not because they shed new light on her case or would

       likely alter the outcome of the hearing, but because they allegedly strengthen

       her contention that Father failed to communicate with Child without justifiable

       cause. It was the province of the trial court, not of this Court on appeal, to

       analyze the evidence and render a judgment based on the totality of the

       circumstances before it. As such, we will not reassess this evidence and

       effectively give Adoptive Mother two bites at the proverbial apple.


[23]   Despite Adoptive Mother’s best efforts, this newly discovered evidence does not

       alter the outcome of her case. We find no error emanating from the trial court’s

       decision to deny Adoptive Mother’s motion to correct error.


[24]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-AD-2416 | February 26, 2020   Page 13 of 13
