MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Dec 14 2016, 9:38 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                                  ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                       Karl L. Mulvaney
Ripstra Law Office                                      Nana Quay-Smith
Jasper, Indiana                                         Bingham Greenebaum Doll LLP
                                                        Indianapolis, Indiana

                                                        David T. McGimpsey
                                                        Bingham Greenebaum Doll LLP
                                                        Jasper, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                        December 14, 2016
A.Y.S.:                                                 Court of Appeals Case No.
                                                        19A04-1606-AD-1439
J.S. (Father),
                                                        Appeal from the Dubois Circuit
Appellant-Respondent,                                   Court
        v.                                              The Honorable William E.
                                                        Weikert, Senior Judge
C.A.K.,                                                 Trial Court Cause No.
                                                        19C01-1505-AD-9
Appellee-Petitioner.



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016    Page 1 of 14
                                          Case Summary
[1]   J.S. (Father) appeals the trial court’s order granting the petition of C.A.K.

      (Stepfather) to adopt Father’s daughter. Father argues that the evidence is

      insufficient to support the trial court’s conclusions that his consent was not

      required and that the adoption was in his daughter’s best interests. Finding no

      error, we affirm.



                            Facts and Procedural History
[2]   E.J.K. (Mother) and Father were married in February 2004. Father has an

      extensive criminal record dating back to 1999, including seven felony

      convictions and nine misdemeanor convictions. See Appellant’s App. p. 8-10

      (General Finding No. 9). He has also struggled with drug addiction. Mother

      and Father have one child, A.Y.S. (Child), who was born May 13, 2005.

      Mother and Father separated when Child was about ten months old and then

      divorced in February 2008. Mother was granted full custody of Child, and

      Father was given eight hours of supervised visitation with Child each Sunday,

      which was later increased.

[3]   In August 2008, Mother and Child moved in with Stepfather and his two

      children. Mother and Stepfather later married.

[4]   Since Mother and Father’s marriage, Father has spent a lot of time either

      incarcerated, on work release, or on home detention. As a result, Mother has



      Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016   Page 2 of 14
      agreed—on numerous occasions—to modify Father’s parenting time with Child

      in order to accommodate his availability.

[5]   In June 2013, Father helped Mother and Stepfather move into a new home in

      Jasper. Because Father was having marital problems with his then-wife,

      Mother and Stepfather gave him $600 and offered to let him stay at their house

      “until he got back on his feet.” Tr. p. 81. Father rejected the offer. In the

      meantime, Father continued his every-other-weekend, overnight parenting time

      with Child, which he exercised sporadically. Id. at 76.


[6]   The last time Father saw Child was October 25, 2013.1 Father came to Mother

      and Stepfather’s home to get Child. Based on Father’s recent drastic weight

      loss and past problems with methamphetamine, Mother and Stepfather were

      suspicious that Father had been using methamphetamine again. When Mother

      saw Father that night, she became more convinced that Father was using

      methamphetamine again. So the following week, Mother called Father’s

      probation officer and requested that he be drug tested. Father tested positive for

      methamphetamine. Father later admitted to Mother that he had been using

      methamphetamine but told her that he would make sure that it had “worn off”

      before seeing Child. Id. at 79. Mother thought this plan was “nonsense” since

      drug users generally cannot control “when you want to use and when you




      1
       Father claimed that he saw Child after October 25 at a gymnastics class, but Mother disputed this. The trial
      court resolved this credibility dispute in Mother’s favor when it made the following finding: “The last time
      [Father] was in the presence of [Child] was October 25, 2013 . . . .” Appellant’s App. p. 12.

      Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016         Page 3 of 14
      don’t.” Id. Mother was also concerned about the people that Father

      surrounded himself with. Accordingly, Mother told Father that he could not

      see Child. She also went to her attorney, who said that he would file a petition

      to modify Father’s parenting time based on his drug use. Mother’s petition to

      modify parenting time was then filed on December 13. See Appellee’s App.

      Vol. III, p. 30. A guardian ad litem (GAL) was then appointed. Appellee’s

      App. Vol. II, p. 133.

[7]   After October 25, 2013, Father never called to speak with Child. See Tr. p. 80

      (Mother explaining that she did not “actually” block phone calls from Father

      after October 25 and that Father could have called Child if he wanted to do so

      but he did not).

[8]   In May 2014, Father was charged with Class B felony dealing in

      methamphetamine and being a habitual offender; he was jailed on these charges

      on June 5. The GAL issued her report in August, while Father was in jail

      awaiting trial. In her report, the GAL explained that she consulted an earlier

      GAL report regarding these parties:

              I read the July 5, 2011 Guardian Ad Litem Michael A. Fritch’s
              report. The following are excerpts from Mr. Fritch’s report:


                      [Father] admitted having problems, including drugs, in the
                      past, but says that he is clean and plans to remain that way
                      ....


                      In a nutshell, the problem with [Father] resuming
                      visitation with [Child] is that he has a horrible track

      Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016   Page 4 of 14
                record. Not with any issues of abuse, but simply that he
                doesn’t stay out of trouble with the law very long before he
                is either arrested again, or put back in jail because of a
                violation of Community Corrections or probation.
                Because of this, he has spent little time with [Child], and
                [Child], at her young age, has become predictably
                estranged and disenchanted with her father. [Father], of
                course, claims his problems are in the past, and the
                environment within which he now lives is positive and
                healthy.


                                              *****

        It is now three years later and Father again finds himself
        incarcerated facing serious criminal charges with significant time
        to serve if found guilty. Father is currently not involved in
        [Child’s] life as he is sitting in the Dubois County Security
        Center.


        Father’s criminal history spans fifteen (15) years . . . . The
        current situation is similar to three years ago; however, this time
        Father is incarcerated and has serious criminal charges pending
        against him. [Child] is nine (9) years of age. . . . She knows that
        [Father] comes in and out of her life. Father is not receiving any
        parenting time since he is incarcerated and he last received
        parenting time in November 2013. In the event[] Father bonds
        out of jail or receives some type of pre-trial detention (such as
        work release or home detention), I would recommend that
        Father not have parenting time with [Child] until his pending
        criminal charges and any motions to revoke his probation are
        resolved. In my opinion, any future parenting time
        recommendations for Father will depend on: the outcome of his
        pending criminal matters, his rehabilitation, how much time has
        passed since he last saw [Child], [Child’s] age and development,
        and other pertinent factors that exist at that time.


Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016   Page 5 of 14
       Appellee’s App. Vol. III, p. 49-50.

[9]    A month after the GAL filed her report, Father pled guilty to Class B felony

       dealing in methamphetamine and was sentenced to ten-and-a-half years.

       Father’s earliest possible release date is June 1, 2018.

[10]   Stepfather filed a petition to adopt Child on May 12, 2015. After Stepfather

       filed the adoption petition, Father sent letters to Child from prison. According

       to Father, he also sent a few letters to Child before Stepfather filed the adoption

       petition; however, Mother claimed she never received these letters.

[11]   The trial court held a hearing on Stepfather’s adoption petition. At the time,

       Father was nearly $20,000 behind in child support. In May 2016, when Child

       was eleven years old, the trial court issued an order granting Stepfather’s

       petition to adopt Child, finding that (1) Father’s consent to the adoption was

       not required because for a period of at least one year he failed without

       justifiable cause to communicate significantly with Child although he was able

       to do so and (2) the adoption was in Child’s best interests. The court

       concluded, in relevant part:

               In our case, the best evidence favoring [Father] was that he sent 3
               letters to the daughter during the one year period [before the
               adoption petition was filed], made no phone calls to her, and was
               $19,996.00 in arrears in child support.


               The Court’s conclusion is that during the one year period before
               the filing of the petition for adoption, while [Father] was in
               prison, he could have done his part in having a significant


       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016   Page 6 of 14
        communication by writing his daughter and sending her gifts.
        He did not do so.


                                             *****


        [I]t is the Court’s opinion that it definitely is in [Child’s] best
        interest to grant the petition for adoption. These facts are:


        1. It is [Stepfather] who has provided shelter, clothing and food
        for the last 8 years. [Father] is $19,966.00 in arrears in child
        support.


        2. It is [Stepfather] who has helped [Child] with her homework
        all these years and has been the de facto father.


        3. It is [Stepfather] who has loved [Child] like a father should
        love his child. [Father] has been absent.


        4. It is [Stepfather] who has always been there for [Child], and
        not [Father] who has spent much of [Child’s] life committing
        crimes, being in jail or prison, or on Community Corrections
        programs.


        5. The GAL report of 2011 and the GAL report of 2014 both
        stated how [Father] has always promised to do better, not get in
        any trouble again in order to be a responsible father. He has
        again failed as he now sits in prison serving a long term.


        6. [Child] deserves some consistency, continuity and love from a
        father figure. It is [Stepfather] who has provided all these
        important ingredients for [Child] over the last 8 years, not
        [Father].



Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016   Page 7 of 14
       Appellant’s App. p. 17, 25.


[12]   Father now appeals.



                                      Discussion and Decision
[13]   Father contends that the trial court erred in granting Stepfather’s petition to

       adopt Child. He argues that the evidence is insufficient to support the trial

       court’s conclusions that his consent was not required and that the adoption was

       in Child’s best interests.

[14]   Our standard of review in adoption cases is well established.2 When reviewing

       adoption proceedings, we presume 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, 972-73 (Ind. 2014). We generally give considerable

       deference to the trial court’s decision in family-law matters, because we

       recognize that the trial judge is in the best position to judge the facts, determine

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

       parents and their relationship with their children.” Id. at 973 (quoting

       MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). We will not

       disturb the trial court’s ruling unless the evidence leads to but one conclusion

       and the trial judge reached an opposite conclusion. Id.




       2
           Father asks us to modify this standard of review. See Appellant’s Br. p. 14. We decline his invitation.


       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016             Page 8 of 14
[15]   When, as in this case, the trial court has made findings of fact and conclusions,

       we apply a two-tiered standard of review: we must first determine whether the

       evidence supports the findings and second, whether the findings support the

       judgment. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual

       findings are clearly erroneous if the record lacks any evidence or reasonable

       inferences to support them,3 and a judgment is clearly erroneous when it is

       unsupported by the findings of fact and the conclusions relying on those

       findings. Id. We neither reweigh the evidence nor assess the credibility of

       witnesses, and we examine the evidence most favorable to the trial court’s

       decision. O.R., 16 N.E.3d at 973.


                                                   I. Consent
[16]   Generally, a petition to adopt a minor child may be granted only if written

       consent has been provided by the biological parents. See Ind. Code § 31-19-9-1.

       However, written consent is not required from, among others, 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 . . . .




       3
         Father quotes three pages of findings that he claims are “not supported by the evidence.” See Appellant’s
       Br. p. 12-14. However, because he makes no argument other than this bald assertion, we do not address the
       findings individually.

       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016        Page 9 of 14
       Ind. Code § 31-19-9-8(a).4 The petitioner for adoption must prove this statutory

       criterion by clear and convincing evidence. See T.L., 4 N.E.3d at 662 n.3.


[17]   The test for communication is not whether the noncustodial parent had no

       communication with the child, but whether he failed without justifiable cause to

       have significant communication when able to do so. In re Adoption of S.W., 979

       N.E.2d 633, 640 (Ind. Ct. App. 2012). The purpose of this statutory provision

       is to foster and maintain communication between noncustodial parents and

       their children, not to provide a means for parents to maintain “just enough

       contact” to thwart potential adoptive parents’ efforts to provide a settled

       environment to the child. Id. Accordingly, the noncustodial parent must make

       more than a “token effort” to communicate with the child. In re Adoption of

       C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006).


[18]   Here, the record shows that the last time Father saw or spoke to Child was

       October 25, 2013; Father was incarcerated on June 5, 2014; and the adoption

       petition was filed on May 12, 2015. Thus, Father had no contact with Child




       4
         Here, the trial court found that another statutory provision applied to Father. Indiana Code section
       31-19-9-8(a)(1) provides that consent is not required from a parent if the child is adjudged to have been
       abandoned or deserted for at least six months immediately preceding the date of the filing of the
       adoption petition. “However, the statute is written in the disjunctive such that the existence of any one
       of the circumstances provides sufficient ground to dispense with consent.” O.R., 16 N.E.3d at 973.
       Because we conclude that the trial court properly relied on Indiana Code section 31-19-9-8(a)(2)(A)—
       namely, that for a period of at least one year Father failed without justifiable cause to communicate
       significantly with Child although he was able to do so—we do not address the other provision the trial
       court relied on.



       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016 Page 10 of 14
       between October 25, 2013, and his incarceration on June 5, 2014—a period of

       over seven months.

[19]   As for the fact that Father was incarcerated from June 5, 2014, until the

       adoption petition was filed on May 12, 2015—a period of over eleven months—

       the trial court found that he still could have had meaningful contact with Child

       by sending her letters or gifts. See Appellant’s App. p. 13 (Finding No. 18:

       “[T]here was no one keeping [Father] from writing to his daughter on a regular

       basis while he was in prison. He could have sent her birthday cards or cards or

       gifts at Christmas and other holidays. He did not.”). The court noted that

       while Father was incarcerated and before the adoption petition was filed, he

       mailed only three letters to Child, which Mother never received. See id. at 14

       (Finding No. 19(o): “The most favorable evidence for . . . Father was that he

       mailed Exhibits C, D and E prior to the filing of the petition for adoption. . . .

       [Mother] denied ever getting any of these. . . . [T]he Court believes [Mother]

       when she said she did not receive Father’s C, D and E.”). To the extent Father

       claims that Mother destroyed letters from Father, this is simply a request for us

       to reweigh the evidence. Finally, Father claims on appeal that Mother was

       uncooperative in his efforts to see Child. However, the trial court, noting that

       Mother agreed on at least five occasions to modify Father’s parenting time

       because of his criminal behavior, specifically rejected this claim. See id. at 16

       (Finding 20(b)(ix): “This record does not reflect a mother who was

       uncooperative. In fact, she was very cooperative, while at the same time trying

       to protect her daughter from the dangers in which [Father] often found himself.


       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016 Page 11 of 14
       The Court does not give any credibility to [Father’s] contention that [Mother]

       was uncooperative with him regarding parenting time.”).

[20]   In sum, in the eighteen months leading up to Stepfather’s filing of the adoption

       petition, Father did not see or speak to Child and mailed her only three letters

       (which Mother never received). Although Father was incarcerated for a large

       part of this time (and remains incarcerated today), there was nothing that

       prevented him from sending letters to Child on a more regular basis. We

       therefore find that Stepfather has proven by clear and convincing evidence that

       for a period of at least one year, Father failed without justifiable cause to

       communicate significantly with Child when able to do so. See O.R., 16 N.E.3d

       at 973-75 (holding that incarcerated father failed without justifiable cause to

       communicate significantly with his daughter by calling her only once in six

       years and not attempting mail communication with her through the adoptive

       parents or the court); In re Adoption of E.A., 43 N.E.3d 592, 598-99 (Ind. Ct.

       App. 2015) (holding that incarcerated father failed without justifiable cause to

       communicate significantly with his son by sending mother a few letters in

       which his son was mentioned and by sending his son a birthday card on his

       second birthday and by not sending any communication for two years), trans.

       denied; cf. Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986) (holding

       that incarcerated parent communicated significantly with his daughter by

       writing her weekly and seeing her every other week during the first nine months

       of his incarceration and thereafter writing her two to three times a year and




       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016 Page 12 of 14
       sending her cards and gifts at Christmas, Easter, and birthday). Accordingly,

       Father’s consent to adopt Child was not required.


                                           II. Best Interests
[21]   Even if a court determines that a biological parent’s consent is not required for

       an adoption, the court must still determine whether adoption is in the child’s

       best interests. Ind. Code § 31-19-11-1(a); O.R., 16 N.E.3d at 974. Father

       appears to argue that adoption is not in Child’s best interests because he has

       bettered himself since he has been in prison this time. See Appellant’s Br. p. 17.


[22]   The adoption statute does not provide guidance for which factors to consider

       when determining the best interests of a child in an adoption proceeding, but

       we have noted that there are strong similarities between the adoption statute

       and the termination-of-parental-rights statute in this respect. In re Adoption of

       M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). In termination cases, we

       have held that the trial court is required to look to the totality of the evidence to

       determine the best interests of a child. Id. Relevant factors include, among

       others, a parent’s historical and current inability to provide a suitable

       environment for the child; the recommendations of the child’s case worker or

       guardian ad litem; and the child’s need for permanence and stability. Id. at

       1281-82.

[23]   Here, the record shows that Father has sixteen convictions (seven felonies and

       nine misdemeanors), ten since Child was born. As a result, he has been

       incarcerated for “much” of Child’s life and continuously since June 5, 2014.

       Court of Appeals of Indiana | Memorandum Decision 19A04-1606-AD-1439 | December 14, 2016 Page 13 of 14
       Appellant’s App. p. 24. In fact, he will be incarcerated until at least June 1,

       2018, at which point Child will be a teenager. Because of his convictions,

       Father has not been able to keep up with his child-support payments and was

       nearly $20,000 in arrears at the time of the hearing in this case. As the trial

       court found, “[Child] has been disappointed all her life because [Father] would

       promise to stay out of trouble and be a father, only to be followed with more

       episodes of incarceration.” Id. In the meantime, since Child was three years

       old, Stepfather has been acting as Child’s father by providing her with food,

       shelter, clothing, love, and support. The trial court recognized that Father

       claimed to have learned his lesson this time; however, the court noted that he

       told the GAL this very same thing back in 2011: “Despite the possible good

       intentions of [Father], he has failed time and again as a father.” Id.

       Accordingly, the court concluded that Child deserved the “consistency,

       continuity and love” that Stepfather has provided over the past eight years. Id.

       at 25. The trial court did not err in determining that adoption was in Child’s

       best interests. Accordingly, the court did not err in granting Stepfather’s

       petition to adopt Child.

[24]   Affirmed.

       Bradford, J., and Brown, J., concur.




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