Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not Oct 25 2013, 5:48 am 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:
ANA M. QUIRK DAVID W. STONE IV Public Defender Stone Law Office & Legal Research Muncie, Indiana Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE ADOPTION OF B.R. ) ) F.R., ) ) Appellant, ) ) vs. ) No. 18A02-1302-AD-185 ) J.B. and E.B., ) ) Appellees. )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees, Judge Cause No. 18C01-1208-AD-28
October 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge F.R. (“Appellant”), the biological father of B.R., appeals the trial court’s order
granting the petition for adoption of B.R. by J.B. (“Adoptive Father”). Appellant raises
two issues, which we revise and restate as whether the court erred in finding that his
consent to the adoption was not required. We affirm.
PROCEDURAL HISTORY
B.R. was born in June 2003 and lives with his mother, E.B. (“Mother”), and
Adoptive Father in Eaton, Delaware County, Indiana. On August 21, 2012, Adoptive
Father filed a petition for adoption and Mother filed a consent to the adoption. In the
petition, Adoptive Father alleged that Appellant is the natural father of B.R. and that his
consent was not necessary as he had not had meaningful or consistent contact with B.R.
and had not provided any meaningful support. On January 15, 2013, the court held a
hearing to determine whether Appellant’s consent was required at which the court
admitted evidence and testimony from, among others, Appellant, Mother, and Adoptive
Father.
On January 22, 2013, the court entered its findings of fact and order that
Appellant’s consent was not required and that it is in B.R.’s best interests for Adoptive
Father to adopt him. With respect to Appellant’s failure to communicate significantly
with B.R., the court found that “[t]he parties had few disputes about the basic time-line
involved,” that Appellant “admitted from June, 2008, on, his contact was sporadic,” that
in July 2011 Appellant attended one baseball game and saw B.R. at Mother’s home for
about an hour, each at Mother’s request, that in March 2012 Appellant sent a letter to
Mother stating his love for and desire to see B.R., that in May 2012 Appellant filed a
2 petition to establish custody, visitation, and support, and that on August 11, 2012 Mother
and Adoptive Father married. Appellant’s Appendix at 49. The court found that
Appellant had the ability at all relevant times to contact B.R. through Mother, who had
lived in the same home and had the same telephone number for over thirty years, that
Mother and her family did not try to keep Appellant away from B.R., that they
encouraged and wanted Appellant to visit, that Appellant simply was not motivated to
visit and build a relationship with B.R. until the petition for adoption was filed, and that
Adoptive Father carried his burden to prove that Appellant failed for one year prior to the
petition to communicate significantly with B.R. when able to do so, without justifiable
cause. The court found that, even starting the one year period from May 31, 2012, there
were “only a few token attempts by [Appellant] to visit [B.R.], both of which [Mother
and Adoptive Father] initiated and insisted [Appellant] should do,” that the July 2011
visits “do not constitute significant contact of the type contemplated by the statute,” and
that “[e]ven these two physical contacts with maybe another two visits outside [Mother’s]
house within that year period are not the significant contact that the statute requires.” Id.
at 51. The court further found that all of the parties live in Eaton, Indiana, which is a
very small community, that it would not have been very difficult for Appellant “to put
some effort into finding out the activities in which [B.R.] was involved,” that Appellant
had the ability to contact B.R., and that he had no justifiable cause for not contacting B.R.
Id. The court found that Appellant’s consent was not required for this reason.
With respect to Appellant’s failure to pay support, the court noted that although no
court had ordered Appellant to pay support, he had a legal duty to do so, that Appellant
3 admitted to steady employment for several years, into the year 2011, that he earned
$10.45 per hour for a forty hour work week in one position, that Appellant admitted he
had not paid any money to Mother for B.R. when he had the ability to do so, and that
Appellant admitted he knew he had a duty to help support B.R. even without being
ordered by a court to do so. The court noted that Appellant later testified that he had
given money to Mother in the past but none in the last few years, and the court found his
testimony lacked any credibility. The court further found that the evidence showed that
Appellant knowingly failed to provide for B.R.’s care and support when able to do so as
required by law and that Appellant’s consent was not required for this reason as well.
The court further found that it would be in B.R.’s best interests for Adoptive
Father to adopt him, that B.R. and Adoptive Father “are very well bonded,” that B.R. sees
Adoptive Father “as a ‘Dad,’” that they interact like a father and son, and that “they play
ball together; do homework together; watch television together; and play video games
together.” Id. at 52. The court found that “[a]lthough [Appellant] has good intentions,
and he obviously loves [B.R.], he has had numerous opportunities to become part of
[B.R.’s] life and has not taken advantage of those opportunities.” Id. Additionally, the
court found that “it would be in [B.R.’s] best interests to terminate his parental
relationship with [Appellant] now, while [B.R.] and [Adoptive Father] have plenty of
time to build the strong father-son relationship that will enable [B.R.] to grow and
develop into a responsible, emotionally stable young man” and that “[g]iving [Appellant]
more time to demonstrate he has the desire to be a father, when he has demonstrated little
effort to this point in time, could cause future harm to [B.R.’s] development.” Id. at 53.
4 The court also found that “it would not be in [B.R.’s] best interests to assume [Appellant]
will become part of his life if the Court denies the petition to adopt, when [Appellant] has
not demonstrated any consistent presence in [B.R.’s] life.” Id.
Following a final hearing, the court entered a decree of adoption on February 26,
2013. The relevant evidence presented at the hearing is discussed below.
ISSUE AND STANDARD OF REVIEW
The issue is whether the trial court erred in finding that Appellant’s consent to the
adoption of B.R. by Adoptive Father was not required. When reviewing the trial court’s
ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads
to but one conclusion, and the trial court reached the opposite conclusion. In re Adoption
of K.S., 980 N.E.2d 385, 387 (Ind. Ct. App. 2012) (citing In re Adoption of M.A.S., 815
N.E.2d 216, 218 (Ind. Ct. App. 2004)). We will not reweigh the evidence, but instead
will examine the evidence most favorable to the trial court’s decision together with
reasonable inferences drawn therefrom, to determine whether sufficient evidence exists to
sustain the decision. Id. The decision of the trial court is presumed to be correct, and it is
the appellant’s burden to overcome that presumption. Id. Recognizing the fundamental
importance of the parent-child relationship, our courts have strictly construed the statute
to preserve that relationship. Id. However, even the status of natural parent, though a
material consideration, is not one which will void all others, and under carefully
enumerated circumstances, the statute allows the trial court to dispense with parental
consent and allow adoption of the child. Id.
5 DISCUSSION
Appellant contends that the court erred in finding that his consent was not required
pursuant to Ind. Code § 31-19-9-8. Ind. Code § 31-19-11-1 provides that the trial court
“shall grant the petition for adoption and enter an adoption decree” if the trial court hears
evidence and finds, in part, that “the adoption requested is in the best interest of the
child” and “proper consent, if consent is necessary, to the adoption has been given.” Ind.
Code § 31-19-9-8 provides:
(a) Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
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(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.
(3) The biological father of a child born out of wedlock whose paternity has not been established:
(A) by a court proceeding other than the adoption proceeding; or
(B) by executing a paternity affidavit under IC 16-37-2-2.1.
(b) If 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.
6 The provisions of Ind. Code § 31-19-9-8 are written in the disjunctive and thus
each provide independent grounds for dispensing with parental consent. In re Adoption
of K.S., 980 N.E.2d at 388. Regardless of which provision is relied upon, adoption is
granted only if it is in the best interests of the child. Id. (citing Ind. Code § 31-19-11-
1(a)).
Appellant argues that the evidence does not establish that he failed to
communicate significantly with B.R. for at least one year or knowingly failed to provide
for the care and support of B.R. when able to do so. Appellant argues that he attended
B.R.’s baseball game and visited B.R. at Mother’s home in July 2011, that he sent a letter
to Mother requesting to see B.R. in March 2012, and that Mother ignored the letter and
did not contact him. Appellant further argues that Mother had not considered adoption
until after she received a petition filed by Appellant requesting that custody, support, and
visitation be determined in court. In addition, Appellant asserts that a support order had
not been entered whereby he was ordered to pay a certain amount in child support to
Mother, and that, although there was some evidence he worked at the time B.R. was born,
he had drawn unemployment during 2011 and was unemployed at the time of the hearing.
He also states that he was indigent and appointed a public defender, and thus that there
was no evidence as to whether his income was steady or sporadic and what his necessary
and reasonable expenses were during the year in question. Appellant also argues that the
court erred in determining that it was in the best interest of B.R. to be adopted by
Adoptive Father, and there was no evidence that, when B.R. did see Appellant, there
were any problems or any harm to B.R. Appellant also notes a lack of evidence as to
7 what B.R. thought about the adoption or about ending his relationship with Appellant, or
the effect on B.R. of terminating the parental relationship.
Adoptive Father maintains that the court did not err in finding that Appellant’s
consent to the adoption was unnecessary. Adoptive Father initially argues that Appellant
had not signed a paternity affidavit, that paternity had not been established by a court
proceeding, and thus that Appellant’s consent was not required under subsection (3) of
Ind. Code § 31-19-9-8(a) and it is unnecessary to even consider his arguments. With
respect to subsection (2) of Ind. Code § 31-19-9-8(a), Adoptive Father argues that
Appellant repeatedly testified that he had the ability to pay support for many years but
had not done so and that the duty of a parent to support his children exists apart from any
court order or statute. He further maintains that Appellant had no contact with B.R. after
August of 2011, that Appellant has had about ten contacts with B.R. since 2003, that the
contact only occurred when Mother requested such, that each of the visits were around an
hour in length, and that Appellant lived within a mile of Mother. He also maintains that
Appellant had the ability to communicate with B.R. but simply chose not to do so.
Upon questioning at the hearing, Appellant indicated that he was the biological
father of B.R., that he did not sign a paternity affidavit when B.R. was born, and that
paternity had not been established through the courts. Further, Appellant states that he
and Mother were not married and did not marry subsequent to the birth of B.R. Thus,
consent to adoption of B.R. by Adoptive Father was not required pursuant to Ind. Code §
31-19-9-8(a)(3) (providing in part that consent to adoption is not required from a
8 biological father of a child born out of wedlock whose paternity has not been established
by a court proceeding or paternity affidavit).
Ind. Code § 31-19-9-8(a)(2) provides that consent to adoption is not required from
a parent of a child in the custody of another person if, for a period of at least one 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.” This court has held that “[t]he
subsections regarding significant communication, and regarding failure to support are
framed in the disjunctive” and that “[t]hus, demonstrating either of the two criteria is
sufficient to establish that the adoption without parental consent may move forward.” In
re Adoption of J.P., 713 N.E.2d 873, 875 (Ind. Ct. App. 1999). In In re Adoption of J.P.,
we noted that “[s]ubsection (b) of the statute specifically allows a court to find
abandonment despite token communication by the parent.” Id. We further noted: “The
thrust of the statute is to foster and maintain communication between non-custodial
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. The significance of the communication is not measured in terms of units of
visits.” Id. at 876 (citations omitted).
With respect to Appellant’s failure to communicate significantly with B.R., the
record reveals that Appellant’s contact with B.R. was nonexistent at times and at best
sporadic. Mother testified that Appellant had no contact with B.R. since August 2011,
and that, during the previous year, Appellant had not contacted her for any kind of
9 parenting time with B.R. Mother testified that she had lived at the same residence and
had the same home phone number for thirty-one years and that Appellant had been to her
residence and had her home phone number available to him. Mother testified that, since
B.R. was born in 2003, Appellant had contact with B.R. “[r]oughly ten” times, that the
contact occurred “only because [she] contacted [Appellant] to come see [B.R.],” and that
the visits would last “maybe an hour.” Transcript at 8, 30. Mother testified that she
believed the last time Appellant had any contact with B.R. was when he went to one of
B.R.’s baseball games and visited B.R. at Mother’s residence for about one hour in July
2011 after Mother and Adoptive Father went to Appellant’s house and encouraged him to
see B.R. more frequently. Mother also testified that she told Appellant that he could visit
B.R. anytime and encouraged him to make phone calls if he could not visit. Mother
stated that she was not aware of any phone calls or other attempts by Appellant to contact
B.R. following those visits and that she never at any time denied Appellant contact with
B.R. In March 2012, Appellant sent a letter to Mother stating that he loves and thinks
about B.R. and that he wished to see him. Appellant also indicated in the letter that he
would not write to Mother anymore, that he had taken drug and alcohol classes, and that
he was out of jail. Mother did not respond to the letter. Also, in May 2012 Appellant
filed a petition to establish custody, visitation, and child support. Mother testified that
she believed Appellant wrote the letter “trying to make it look like he’s concerned about
his child,” that Appellant did not wish to see B.R. or pay support, and that he filed the
petition because “the State got involved” and because “he doesn’t want other people to
look at him and think that he . . . was the bad guy . . . .” Id. at 41-42.
10 Appellant testified that he knew where Mother lived and had her phone number,
that there were two periods of time that he lived in close proximity to B.R., namely, at
one location approximately a mile from B.R.’s home and at another location
approximately a quarter of a mile from B.R.’s home. Appellant stated that he had pled
guilty to domestic battery as a misdemeanor, that the victim was his girlfriend with whom
he currently lived, and that he was required to take parenting, domestic violence, and
drug and alcohol classes as conditions of probation.
Based upon the evidence, we cannot say that the court erred in finding that, for a
period of at least one year, Appellant failed 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 at
876 (holding that evidence was presented that fairly consistent, but brief, monthly visits
by a parent with the child were not meaningful and that the trial court did not err in
determining that the parent’s consent was not required pursuant to Ind. Code § 31-19-9-
8); In re Adoption of T.H., 677 N.E.2d 605, 607 (Ind. Ct. App. 1997) (holding that the
trial court did not err in determining that the parent had not engaged in significant
communication with the child where the parent saw the child four times and did not see
the child for over two years, and noting that, while the parent was going through a
difficult time emotionally, the child’s whereabouts changed often, and the other parent
did not keep the parent current, the parent presented no evidence concerning his efforts to
see his child, and the inconvenience of contacting the other parent did not amount to
justifiable cause for not seeing the child nor a showing that the parent was not able to do
so).
11 With respect to Appellant’s failure to provide support, the trial court found that the
evidence showed that Appellant knowingly failed to provide for B.R.’s care and support
when able to do so as required by law and that Appellant admitted that he knew he had a
duty to support B.R. even without being ordered by a court to do so. We note that
“Indiana law imposes a duty upon a parent to support his children” and that “[t]his duty
exists apart from any court order or statute.” In re Adoption of M.A.S., 815 N.E.2d 216,
220 (Ind. Ct. App. 2004) (citing Irvin v. Hood, 712 N.E.2d 1012, 1014 (Ind. Ct. App.
1999)). As a result, even absent a support order, Appellant was required to provide
support for B.R., and the record reveals that Appellant failed to pay child support for nine
years. Appellant testified that he was employed for about four years at Meridian Foods
making, at his latest rate, $9.45 per hour, that during that time he did not pay support but
had the ability to do so, that he later worked for Gruwell and Son for about a year making
approximately $10.00 per hour for about twenty hours a week, that during that time he
did not pay support but had the ability to do so, that he then worked for The Cleaning
Company for about eighteen months making, at his latest rate, $10.45 per hour for forty
hours per week, and that during that time he did not pay support but again had the ability
to do so. Appellant indicated that he received unemployment compensation in 2011
following his employment with The Cleaning Company in the amount of $260 per week,
that he did not pay child support for B.R. during that time, and that he had the ability to
do so. When asked “[d]o you think you have to have a court order to pay child support,”
Appellant replied “I don’t think so,” and when asked “[d]o you believe that you have a
duty to pay support for your child,” he testified “I do have a duty to take care of my child,
12 yes.” Transcript at 114. Appellant testified that he gave Mother money in the past when
she needed it but did not remember the approximate time he did so, how much he gave
her, or the reason Mother needed it. The trial court found Appellant’s testimony was not
credible and that, even if Appellant had given some money to Mother, that fact did not
alter the court’s ultimate determination. Based upon the record and under the totality of
the circumstances, we cannot say that the court erred in finding that Appellant was able to
provide support for B.R. but knowingly failed to do so. See In re Adoption of M.A.S.,
815 N.E.2d at 221 (noting the parent’s employment and that the trial court found that the
parent had sufficient income to pay something to meet his legal duty to pay support for
the child, and concluding that, under the totality of the circumstances, the parent was able
to provide support for the child but failed to do so); Irvin, 712 N.E.2d at 1014 (holding
that the parent’s consent to an adoption was not necessary because he had failed to
provide support for the child for more than one year).
In addition, as stated above adoption is granted only if it is in the best interests of
the child. See Ind. Code § 31-19-11-1(a). The trial court found that “[a]lthough
[Appellant] has good intentions, and he obviously loves [B.R.], he has had numerous
opportunities to become part of [B.R.’s] life and has not taken advantage of those
opportunities.” Appellant’s Appendix at 52. Adoptive Father testified that he had been
and would be a father to B.R. every day and that it is in B.R.’s best interests for Adoptive
Father to adopt him because it would provide the stability of a father in B.R.’s life.
Adoptive Father testified that he filled the role of father, talked to B.R. about school,
helped him with his homework, played video and board games with him, and went to
13 B.R.’s sporting events and school functions. Adoptive Father testified that he had bonded
with B.R., that they act like father and son, that B.R. calls him “dad,” and that B.R. is
happy and healthy when he is with Adoptive Father. Transcript at 49. Adoptive Father
also testified that he had two children with Mother and that B.R. is very close to the other
children. Mother’s testimony regarding Adoptive Father’s relationship with B.R. was
consistent with Adoptive Father’s testimony. The evidence most favorable to the court’s
determination, as described above and in the record, demonstrates that Appellant had
many years to develop a relationship with B.R. and did not do so. Based upon the
evidence most favorable to the trial court’s decision together with reasonable inferences
therefrom, we cannot say that the evidence leads to a conclusion opposite that reached by
the trial court regarding the best interests of B.R. See In re Adoption of M.A.S., 815
N.E.2d at 222 (affirming the adoption after finding that the consent of the parent
challenging the adoption was not required under Ind. Code § 31-19-9-8 and that the
parent’s arguments that the adoption was not in the best interests of the child were
unpersuasive); see also In re Adoption of J.P., 713 N.E.2d at 876 (noting that the mother
“viewed the time J.P. was removed from [mother’s] home, which included virtually all
but the first eighteen months of J.P.’s life, as a holiday from parental responsibilities” and
that the mother “would like to be excused from parental duties, yet retain the rights and
benefits of motherhood”).
CONCLUSION
Based upon the record, we cannot say that the evidence leads to but one
conclusion and the trial court reached an opposite conclusion. Appellant’s paternity had
14 not been established by a court proceeding or by affidavit, and the court did not err in
finding that Appellant, for a period of at least one year, failed to provide support for B.R.
or failed to communicate significantly with B.R. Accordingly, Appellant’s consent to the
adoption of B.R. by Adoptive Father was not required pursuant to Ind. Code § 31-19-9-
8(a)(2) or (3). See In re Adoption of M.A.S., 815 N.E.2d at 221 (holding the parent’s
consent to the adoption was not required); In re Adoption of J.P., 713 N.E.2d at
876 (concluding the parent’s consent to the adoption was not required). Also, Appellant
has not demonstrated that it is not in B.R.’s best interests that the court grant the adoption
petition.
For the foregoing reasons, we affirm the trial court’s order of adoption.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.