MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 31 2017, 8:12 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Julianne L. Fox Kelly A. Lonnberg Evansville, Indiana Bamberger, Foreman, Oswald and Hahn, LLP Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Matter of the Adoption July 31, 2017 of J.R., Court of Appeals Case No. 82A01-1702-AD-321 B.R., Appeal from the Vanderburgh Superior Court Appellant-Respondent, The Honorable Renee Allen v. Ferguson, Magistrate Trial Court Cause No. R.S., 82D04-1605-AD-68
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 1 of 7 Case Summary and Issues [1] B.R. (“Father”) appeals the trial court’s order granting R.S.’s (“Maternal
Grandmother”) petition to adopt J.R. (“Child”), raising three issues for our
review, which we consolidate and restate as: 1) whether the trial court abused
its discretion in denying Father’s motion for continuance, and 2) whether the
trial court erred in concluding Father’s consent to adoption was not required.
Concluding the trial court did not abuse its discretion in denying Father’s
motion nor did it err in concluding Father’s consent was not required, we
affirm.
Facts and Procedural History [2] Father and M.M. (“Mother”) ended their relationship shortly after Child’s birth
in 2011 and Father received supervised parenting time. Over the next few
years, Father’s participation in Child’s life was sporadic. He often failed to
make child support payments and did not interact with Child during his
parenting time. In addition, Father was addicted to drugs, committed
numerous criminal acts, including smacking Mother in the face and violating a
protective order Mother had put in place, and spent time in jail.
[3] In April 2015, Father was charged with several drug-related offenses and was
jailed. In the same month, Father called Mother on one occasion to speak with
Child, but Mother did not allow Father to speak with Child because she did not
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 2 of 7 feel comfortable doing so. Father has remained incarcerated since April 2015
and did not contact Mother, Maternal Grandmother, or Child until May 2016.
[4] On May 10, 2016, Maternal Grandmother filed a petition to adopt Child.
Mother consented to the adoption, and Mother and Maternal Grandmother
expressed an intent to co-parent Child. The petition alleged Father’s consent to
the adoption was not required. At a hearing on the petition in January 2017,
Father, appearing telephonically, intended to have his grandparents testify on
his behalf. After Maternal Grandmother and Father presented their evidence,
Father learned his grandparents were not present and moved to continue the
hearing to allow his grandparents to testify later. The trial court denied the
continuance.
[5] Following the hearing, the trial court entered an order granting Maternal
Grandmother’s petition, explaining Father’s consent was not required:
Father is unfit and it is in the best interests of the child to dispense with his consent pursuant to Indiana Code 31-19-9- 8(a)(11), that the Father has abandoned the Child by failing to make more than token efforts to support or communicate with the Child for at least six months pursuant to Indiana Code 31-19- 9-8(a)(1) in the six months immediately preceding the filing of the adoption petition, and also that the father has failed to financially support and significant[ly] maintain contact with the Child while the child was in the custody of another person for a period of at least one year pursuant to Indiana Code 31-19-9- 8(a)(2).
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 3 of 7 Appellant’s Appendix, Volume II at 3. This appeal ensued. Additional facts
will be added as necessary.
Discussion and Decision I. Motion for Continuance [6] Father contends the trial court abused its discretion in denying his motion for
continuance. However, Father fails to cite to any statutory authority or case
law, or any portions of the record supporting his claim. His argument is
therefore waived for failure to present a cogent argument. Ind. Appellate Rule
46(A)(8). Waiver notwithstanding, Father knew of the adoption proceedings
for nearly seven months prior to the hearing and the record reveals Father was
in contact with his grandparents in the interim despite his incarceration.
Therefore, Father had a full opportunity to ensure his grandparents’ presence at
the hearing. Father has not shown good cause for granting his motion for
continuance. See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012)
(noting a trial court abuses its discretion in denying a motion for continuance
when the moving party demonstrates good cause for granting the motion).
II. Consent to Adoption [7] Father also contends the trial court erred in concluding his consent was not
required. We disagree.
[8] When reviewing a trial court’s ruling in adoption proceedings, we will not
disturb the ruling unless the evidence leads to but one conclusion and the trial
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 4 of 7 court reached an opposite conclusion. Rust v. Lawson, 714 N.E.2d 769, 771
(Ind. Ct. App. 1999), trans. denied. We presume the trial court’s decision is
correct and consider the evidence in the light most favorable to the decision. Id.
at 771-72. We will not reweigh the evidence. E.W. v. J.W., 20 N.E.3d 889, 894
(Ind. Ct. App. 2014), trans. denied. In addition, where, as here, a trial court
makes findings of fact and conclusions thereon, we apply a two-tiered standard
of review: first, we determine whether the evidence in the record supports the
findings, and second, whether the findings support the judgment. In re Adoption
of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006).
[9] Indiana Code section 31-19-9-8(a) provides consent to adoption is not required
from any of 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. *** (11) A parent if: (A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and (B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 31 2017, 8:12 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Julianne L. Fox Kelly A. Lonnberg Evansville, Indiana Bamberger, Foreman, Oswald and Hahn, LLP Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Matter of the Adoption July 31, 2017 of J.R., Court of Appeals Case No. 82A01-1702-AD-321 B.R., Appeal from the Vanderburgh Superior Court Appellant-Respondent, The Honorable Renee Allen v. Ferguson, Magistrate Trial Court Cause No. R.S., 82D04-1605-AD-68
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 1 of 7 Case Summary and Issues [1] B.R. (“Father”) appeals the trial court’s order granting R.S.’s (“Maternal
Grandmother”) petition to adopt J.R. (“Child”), raising three issues for our
review, which we consolidate and restate as: 1) whether the trial court abused
its discretion in denying Father’s motion for continuance, and 2) whether the
trial court erred in concluding Father’s consent to adoption was not required.
Concluding the trial court did not abuse its discretion in denying Father’s
motion nor did it err in concluding Father’s consent was not required, we
affirm.
Facts and Procedural History [2] Father and M.M. (“Mother”) ended their relationship shortly after Child’s birth
in 2011 and Father received supervised parenting time. Over the next few
years, Father’s participation in Child’s life was sporadic. He often failed to
make child support payments and did not interact with Child during his
parenting time. In addition, Father was addicted to drugs, committed
numerous criminal acts, including smacking Mother in the face and violating a
protective order Mother had put in place, and spent time in jail.
[3] In April 2015, Father was charged with several drug-related offenses and was
jailed. In the same month, Father called Mother on one occasion to speak with
Child, but Mother did not allow Father to speak with Child because she did not
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 2 of 7 feel comfortable doing so. Father has remained incarcerated since April 2015
and did not contact Mother, Maternal Grandmother, or Child until May 2016.
[4] On May 10, 2016, Maternal Grandmother filed a petition to adopt Child.
Mother consented to the adoption, and Mother and Maternal Grandmother
expressed an intent to co-parent Child. The petition alleged Father’s consent to
the adoption was not required. At a hearing on the petition in January 2017,
Father, appearing telephonically, intended to have his grandparents testify on
his behalf. After Maternal Grandmother and Father presented their evidence,
Father learned his grandparents were not present and moved to continue the
hearing to allow his grandparents to testify later. The trial court denied the
continuance.
[5] Following the hearing, the trial court entered an order granting Maternal
Grandmother’s petition, explaining Father’s consent was not required:
Father is unfit and it is in the best interests of the child to dispense with his consent pursuant to Indiana Code 31-19-9- 8(a)(11), that the Father has abandoned the Child by failing to make more than token efforts to support or communicate with the Child for at least six months pursuant to Indiana Code 31-19- 9-8(a)(1) in the six months immediately preceding the filing of the adoption petition, and also that the father has failed to financially support and significant[ly] maintain contact with the Child while the child was in the custody of another person for a period of at least one year pursuant to Indiana Code 31-19-9- 8(a)(2).
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 3 of 7 Appellant’s Appendix, Volume II at 3. This appeal ensued. Additional facts
will be added as necessary.
Discussion and Decision I. Motion for Continuance [6] Father contends the trial court abused its discretion in denying his motion for
continuance. However, Father fails to cite to any statutory authority or case
law, or any portions of the record supporting his claim. His argument is
therefore waived for failure to present a cogent argument. Ind. Appellate Rule
46(A)(8). Waiver notwithstanding, Father knew of the adoption proceedings
for nearly seven months prior to the hearing and the record reveals Father was
in contact with his grandparents in the interim despite his incarceration.
Therefore, Father had a full opportunity to ensure his grandparents’ presence at
the hearing. Father has not shown good cause for granting his motion for
continuance. See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012)
(noting a trial court abuses its discretion in denying a motion for continuance
when the moving party demonstrates good cause for granting the motion).
II. Consent to Adoption [7] Father also contends the trial court erred in concluding his consent was not
required. We disagree.
[8] When reviewing a trial court’s ruling in adoption proceedings, we will not
disturb the ruling unless the evidence leads to but one conclusion and the trial
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 4 of 7 court reached an opposite conclusion. Rust v. Lawson, 714 N.E.2d 769, 771
(Ind. Ct. App. 1999), trans. denied. We presume the trial court’s decision is
correct and consider the evidence in the light most favorable to the decision. Id.
at 771-72. We will not reweigh the evidence. E.W. v. J.W., 20 N.E.3d 889, 894
(Ind. Ct. App. 2014), trans. denied. In addition, where, as here, a trial court
makes findings of fact and conclusions thereon, we apply a two-tiered standard
of review: first, we determine whether the evidence in the record supports the
findings, and second, whether the findings support the judgment. In re Adoption
of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006).
[9] Indiana Code section 31-19-9-8(a) provides consent to adoption is not required
from any of 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. *** (11) A parent if: (A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and (B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 5 of 7 This statute is written in the disjunctive, and as such, each provision provides
independent grounds for dispensing with parental consent. In re Adoption of
T.W., 859 N.E.2d at 1218. The party petitioning for adoption must prove by
clear and convincing evidence the parent’s consent to adoption is not required.
Id. at 1217. The trial court concluded Maternal Grandmother met her burden
in proving Father’s consent was not required pursuant to all four provisions
noted above. On appeal, Father challenges each conclusion, but because the
statute is written in the disjunctive, we need only address one provision.
[10] Father contends the evidence is insufficient to support the trial court’s
conclusion that he failed without justifiable cause to significantly communicate
with Child for a period of one year when able to do so pursuant to subsection
(a)(2)(A). Specifically, he cites only to Mother’s testimony where she admitted
thwarting Father’s attempt to contact Child when Father was in jail in April
2015 and appears to argue he was therefore unable to contact Child. Father is
correct in asserting that a custodian’s efforts “to hamper or thwart
communication between parent and child are relevant in determining the ability
to communicate.” Id. at 1218. However, it is necessary to emphasize that
evidence showing a custodian hampered or thwarted communications is merely
“relevant” to the determination, not dispositive of the issue. See id. Therefore,
Father’s argument invites this court to reweigh the evidence, which we will not
do. E.W., 20 N.E.3d at 894. The record establishes Father did not
communicate in any manner with Child between April 2015 and May 2016
despite being able to do so. Although Father was incarcerated during this
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 6 of 7 period, Father had the ability to contact Child, but did not even attempt to
contact Child after the initial phone call in April 2015. Even assuming Father
did try to contact Child by phone and failed, not once did Father attempt
another method. In fact, Father sent at least thirty letters while incarcerated
and not one letter was sent to Child.1 The evidence is sufficient to support the
finding Father failed without justifiable cause to communicate significantly with
Child for a period of one year despite being able to do so and therefore the trial
court did not err in concluding Father’s consent to adoption was not required.
Conclusion [11] The trial court did not abuse its discretion in denying Father’s motion for
continuance nor did it err in concluding Father’s consent to the adoption was
not required. Accordingly, we affirm.
[12] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
1 Father testified at the hearing he was unable to contact Child in jail while awaiting his trial in the spring and summer of 2015 because Mother blocked the jail’s phone number. However, even assuming the trial court found this testimony to be credible, there is nothing in the record showing Father attempted to contact Child by mail, nor did he attempt to contact Child by phone or mail once incarcerated in the Department of Correction following his trial. Father also testified he could not contact Child by mail because he could not remember Mother’s address, and when he did regain his memory, he did not have sufficient funds for postage. Father did not submit any evidence to corroborate his testimony, and it is clear from the record the trial court did not find Father’s testimony to be credible. See Tr., Vol. I at 149 (“Court doesn’t believe that that is a convincing argument and believes that the father did have a way to force communication with the child at least through the U.S. mail.”).
Court of Appeals of Indiana | Memorandum Decision 82A01-1702-AD-321 | July 31, 2017 Page 7 of 7