In re the Matter of: B.S., D.S. v. K.S. and M.S. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 10, 2015
• Docket: 82A04-1406-AD-255
• Status: Published

Opinion

MEMORANDUM DECISION Apr 10 2015, 10:10 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Jared Michel Thomas, Esq. R. Jeff Dodson, Esq. Evansville, Indiana Dodson & Schaefer, LLC Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of: April 10, 2015 B.S., Court of Appeals Case No. 82A04-1406-AD-255 Child, Appeal from the Vanderburgh D.S., Circuit Court; The Honorable René A. Ferguson, Judge; Appellant/Father, 82D07-1311-AD-143

v.

K.S. and M.S., Appellees/Adoptive Parents.

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 1 of 5 [1] D.S. (Father) appeals the trial court’s decision that his consent was not required

for K.S. and M.S. (“Maternal Grandparents”) to proceed with the adoption of

his child B.S. (Child).

[2] We affirm.

Facts and Procedural History

[3] Child was born on April 10, 2010, to Br. S. (Mother) and Father. Since birth,

Child lived with and was in the primary care of Maternal Grandparents due to

Mother’s instability. Father did not try to visit Child while she was in Maternal

Grandparents’ care, and although he testified to inconsistent patterns of alleged

visitation while Child was temporarily in Mother’s care, he presented no

evidence to corroborate his claim that he visited Child at the times he indicated.

[4] On November 25, 2013, Maternal Grandparents filed a petition to adopt Child.

Mother consented but Father challenged the adoption. A consent hearing was

held on May 5, 2014. Father appeared by telephone because he was

incarcerated. After the hearing, the trial court determined Father’s consent was

not necessary for the adoption petition to be granted because he did not have

“meaningful” contact with Child during the year preceding the adoption

petition pursuant to Ind. Code § 31-19-9-8(2)(A). (Appellant’s App. at 2.)

[5] On June 4, 2014, Father filed a motion to certify the order for interlocutory

appeal and to stay the proceedings pending the appeal. The trial court granted

his motion the same day, and we accepted jurisdiction.

Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 2 of 5 Discussion and Decision

[6] Our standard of review of adoption proceedings is well-settled:

“When reviewing adoption proceedings, we presume that the trial court’s decision is correct, and the appellant bears the burden of rebutting this presumption.” 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.” 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.” The trial court’s findings and judgment will be set aside only if they are clearly erroneous. “A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment.” “We will neither reweigh the evidence nor assess the credibility of witnesses, and we will examine only the evidence most favorable to the trial court’s decision.” In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations omitted).

[7] Generally, a trial court may grant a petition for adoption only if both the

mother and father of the child consent. Ind. Code § 31-19-9-1(a)(2). However,

Ind. Code § 31-19-9-8 provides consent to an adoption is not required from:

(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.

Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 3 of 5 The trial court found Father did not “provide any meaningful contact with the

child[.]” (Appellant’s App. at 2.)1

[8] Maternal Grandparents filed their petition on November 25, 2013. During the

hearing to determine if Father’s consent to the adoption was required, Father

testified he was not incarcerated from October 2012 until May 2013 and he saw

Child “twice a week” for “three or four hours” at Mother’s apartment starting

in January 2013. (Tr. at 26-7.) Father testified he had not had contact with

Child since May 2013, when he was again incarcerated.

[9] Father’s sporadic visitation with Child, long periods without communication,

and the fact Father has not communicated with Child since May 2013 is

sufficient to prove Father “fail[ed] without justifiable cause to communicate

significantly with the child when able to do so.” See In re Adoption of J.P., 713

N.E.2d 873, 876 (Ind. Ct. App. 1999) (“The significance of the communication

is not measured in terms of units of visits. . . . [Mother’s] fairly consistent, but

brief, monthly visits . . . were not meaningful.”). Father’s arguments to the

contrary are invitations for us to reweigh the evidence, which we cannot do.

See In re O.R., 16 N.E.3d at 973 (appellate court cannot reweigh evidence or

judge the credibility of witnesses). Accordingly, we affirm.

1 The trial court also found Father did not support Child during the relevant time period. However, because the statute is written in the disjunctive, the trial court is required to find only one reason for waiver of a parent’s consent to an adoption. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010), trans. denied. Thus we need not review the second basis found by the trial court.

Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 4 of 5 Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 5 of 5