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
Free access — add to your briefcase to read the full text and ask questions with AI
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