In Re the Adoption of L.A.Z.: L.Z. v. E.G. (mem. dec.)
This text of In Re the Adoption of L.A.Z.: L.Z. v. E.G. (mem. dec.) (In Re the Adoption of L.A.Z.: L.Z. v. E.G. (mem. dec.)) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 14 2018, 9:32 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 Raymond P. Dudlo Keith M. Wallace Stoll Keenon Ogden PLLC Keith Wallace Law Evansville, Indiana Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Adoption of L.A.Z.: May 14, 2018
L.Z., Court of Appeals Case No. 26A01-1711-AD-2828 Appellant-Respondent, Appeal from the Gibson Circuit v. Court The Honorable Jeffrey F. Meade, E.G., Judge Trial Court Cause No. Appellee-Petitioner 26C01-1704-AD-625
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018 Page 1 of 6 Case Summary [1] L.Z. (“Father”) appeals the trial court’s order that his consent for E.G.
(“Stepfather”) to adopt his minor daughter is not required. Finding no error,
we affirm.
Facts and Procedural History [2] Father and N.G. (“Mother”) were married in March 2010, and Mother gave
birth to their daughter, L.A.Z., in October 2010. On May 21, 2013, Father was
arrested and charged with domestic battery against Mother, and a no-contact
order was issued. The following day Father was released on bond. On May 31
Mother filed for divorce. In August, while the divorce was pending, a
provisional child-support order was entered, and Father was ordered to pay $86
per week. At this time, Father was receiving monthly disability payments from
the Department of Veterans Affairs (VA) and was able to work. Tr. Vol. II p.
35.
[3] Three months later, on November 4, Father was arrested for violating the no-
contact order. Father remained in jail until November 27, when the trial court
accepted his guilty plea to the domestic-battery charge and sentenced him to six
months of work release. Around this same time, the divorce was finalized.
Mother was awarded custody of L.A.Z., and Father’s child-support obligation
was modified to $74 per week. As of November 2013, Father had not made
any child-support payments and had an arrearage of $860.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018 Page 2 of 6 [4] In March 2014, Father was arrested and charged with burglary and other
related offenses. He pled guilty and was sentenced to twelve years. In
December 2014, Father petitioned to abate his child-support obligation because
of his incarceration. The court approved Father’s request and set his child-
support payment at $0. However, as of that time, Father still had not paid any
child support and had an arrearage of $5152.
[5] In September 2016, Father, who was still incarcerated, received a payment of
$3000 to $5000 from the Department of Veterans Affairs (VA). He sent some of
the money to his attorney and some to a “girlfriend” he had never met.1 Father
also sent $300 to Mother “to go towards [L.A.Z.].” Id. at 12. As of September
2016, this was the only child-support payment Father had made.
[6] After dating for two years, Mother and Stepfather were married in January
2017. Three months later, Stepfather petitioned to adopt L.A.Z. Father
contested the adoption, and a hearing was held in September 2017. The trial
court concluded that Father’s consent was not necessary because, for a period
of at least three years, Father had failed to provide for the care and support of
L.A.Z. despite being able to do so as required by law or judicial decree. Two
months after the hearing, the court approved Stepfather’s petition for adoption.
[7] Father now appeals.
1 At the hearing in this matter, Stepfather’s attorney stated that Father had never met the “girlfriend.” Tr. Vol. II p. 54. Father did not contest this at the hearing and does not contest it on appeal.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018 Page 3 of 6 Discussion and Decision [8] Father argues that the trial court erred when it concluded that his consent to the
adoption was not necessary. In most cases, a natural parent must consent to
the adoption of their minor child. However, consent 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). The petitioner has the burden of proving by clear
and convincing evidence that the non-custodial parent’s consent to a stepparent
adoption is not required. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct.
App. 2012).
[9] “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 (Ind. 2014). 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. at 973. We
will not reweigh the evidence or judge witness credibility, and we will only
examine the evidence most favorable to the trial court’s conclusion. Id.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-AD-2828 | May 14, 2018 Page 4 of 6 [10] Father contends that the trial court erred when it concluded that he knowingly
failed to provide care and support for L.A.Z. when able to do so as required by
law or judicial decree because (1) he was not “required” to pay child support
since December 2014 and (2) he was unable to make payments because he had
no income due to his incarceration. Father is correct that the court abated his
child-support obligation in December 2014, but he omits the fact that he was
obligated to pay and failed to pay child support for the previous sixteen
months—$86 per week from August 2013 to November 2013 and $74 per week
from November 2013 until the abatement in December 2014—amassing an
arrearage of $5152. The statute requires only a one-year period of non-support
when a parent is able. And by his own admission, Father received income from
the VA and was physically able to work when not incarcerated, and he was not
incarcerated for approximately six of the seven months from August 2013 to
March 2014. However, none of that money was used to support or care for
L.A.Z. Furthermore, when Father received $3000 to $5000 in September 2016,
he chose to send money to a “girlfriend” that could have been sent to Mother to
support L.A.Z. and pay down his arrearage. Accordingly, the trial court’s
conclusion that Father’s consent was not necessary because he had knowingly
failed to provide for the care and support of L.A.Z. when able to do so as
required by law or judicial decree was not clearly erroneous.2
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