MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 03 2017, 8:32 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Timothy P. Broden Cynthia Phillips Smith Lafayette, Indiana Lafayette, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 3, 2017 B.A.M.: Court of Appeals Case No. 79A02-1608-AD-1840 G.M., Jr., Appeal from the Tippecanoe Appellant-Respondent, Circuit Court v. The Honorable Thomas H. Busch, Judge D.E., Trial Court Cause No. 79C01-1412-AD-63 Appellee-Petitioner
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 1 of 7 Case Summary [1] G.M., Jr. (Father) appeals the trial court’s order granting the petition of D.E.
(Stepfather) to adopt Father’s daughter with J.E. (Mother). Father argues that
Stepfather failed to prove by clear and convincing evidence that his consent to
the adoption was not required because for a period of at least one year Father
failed without justifiable cause to communicate significantly with his daughter
when able to do so. Concluding that Stepfather met this burden, we affirm the
trial court.
Facts and Procedural History [2] Father and Mother have one child together, B.A.M. (Child), who was born
September 15, 2003. Because Father and Mother were not married at the time
of Child’s birth, Father executed a paternity affidavit at the hospital. Mother
and Father lived together until 2005, when Father moved out. Mother sought
child support, and a child-support order was entered in August 2005. Mother
and Father tried reconciling a couple of times but broke up for good in the
spring of 2006.
[3] Father maintained frequent parenting time with Child until 2007, at which
point he saw her “[o]nce a month if that.” Tr. p. 20. In 2008, Father moved to
Tennessee and was in a car wreck; he did not see Child “at all” that year. Id.
In 2009, Father moved in with his parents in Florida to convalesce; he did not
see Child that year either. Father returned to Indiana in 2010 and saw Child
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 2 of 7 three times that summer. But then Father did not see Child in 2011 or 2012.1
Id. at 23-24. After 2012, Father’s only visitation with Child occurred in
connection with his parents’ annual trips to Indiana during the summer. That
is, in July 2013, Father’s parents asked to see Child, and she spent eight hours
with them. Then, in July 2014, Father’s parents again asked to see Child, and
she spent six hours with them. The requests in 2013 and 2014 were not from
Father, but he was present during the visits.2
[4] Through the years, Father occasionally called Mother to check up on Child.
He never asked about Child’s grades, and since 2011 he has not asked about
Child’s health. Father sent Child a Christmas gift in 2012 and 2013 and called
Child on her birthday, although he did not call her in 2014.
[5] In the meantime, Mother and Stepfather started dating in 2012 and got married
in May 2014. Stepfather then filed a petition to adopt Child on December 5,
2014. In February 2016, the trial court held a hearing to determine whether
Father’s consent to adopt Child was required. The trial court issued findings of
fact and conclusions that Father’s consent to the adoption was not required
because for a period of at least one year he failed without justifiable cause to
communicate significantly with Child when able to do so. Appellant’s App.
1 Father moved back to Florida from August 2011 to June 2013. Tr. p. 62. 2 Mother claimed that the visits occurred in July 2012 and July 2013, see Tr. p. 53, but the trial court found that they actually occurred in July 2013 and July 2014. In any event, the court found that the dates were “immaterial, as [Father’s] contact has not been of a substantial nature, nor instituted by him, but by his parents.” Appellant’s App. Vol. II p. 14.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 3 of 7 Vol. II p. 14. The court then held a best-interests hearing, following which it
granted Stepfather’s petition to adopt Child. Id. at 10-11.
Discussion and Decision [6] Father contends that the trial court erred in granting Stepfather’s petition to
adopt Child. Our standard of review in adoption cases is well established.
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, 972-73 (Ind. 2014). We
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.” Id. at
973. 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.
[7] When, as in this case, the trial court has made findings of fact and conclusions,
we apply a two-tiered standard of review: we must first determine whether the
evidence supports the findings and second, whether the findings support the
judgment. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual
findings are clearly erroneous if the record lacks any evidence or reasonable
inferences to support them, and a judgment is clearly erroneous when it is
unsupported by the findings of fact and the conclusions relying on those
findings. Id. We neither reweigh the evidence nor assess the credibility of
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 4 of 7 witnesses, and we examine the evidence most favorable to the trial court’s
decision. O.R., 16 N.E.3d at 973.
[8] Generally, a petition to adopt a minor child may be granted only if written
consent has been provided by the biological parents. See Ind. Code § 31-19-9-1.
However, written consent is not required from, among others, the following:
(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 . . . .
Ind. Code § 31-19-9-8(a). The petitioner for adoption must prove this statutory
criterion by clear and convincing evidence. See T.L., 4 N.E.3d at 662 n.3.
Father claims Stepfather failed to meet this burden.3
[9] The test for communication is not whether the noncustodial parent had no
communication with the child, but whether he failed without justifiable cause to
have significant communication when able to do so. In re Adoption of S.W., 979
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 03 2017, 8:32 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Timothy P. Broden Cynthia Phillips Smith Lafayette, Indiana Lafayette, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 3, 2017 B.A.M.: Court of Appeals Case No. 79A02-1608-AD-1840 G.M., Jr., Appeal from the Tippecanoe Appellant-Respondent, Circuit Court v. The Honorable Thomas H. Busch, Judge D.E., Trial Court Cause No. 79C01-1412-AD-63 Appellee-Petitioner
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 1 of 7 Case Summary [1] G.M., Jr. (Father) appeals the trial court’s order granting the petition of D.E.
(Stepfather) to adopt Father’s daughter with J.E. (Mother). Father argues that
Stepfather failed to prove by clear and convincing evidence that his consent to
the adoption was not required because for a period of at least one year Father
failed without justifiable cause to communicate significantly with his daughter
when able to do so. Concluding that Stepfather met this burden, we affirm the
trial court.
Facts and Procedural History [2] Father and Mother have one child together, B.A.M. (Child), who was born
September 15, 2003. Because Father and Mother were not married at the time
of Child’s birth, Father executed a paternity affidavit at the hospital. Mother
and Father lived together until 2005, when Father moved out. Mother sought
child support, and a child-support order was entered in August 2005. Mother
and Father tried reconciling a couple of times but broke up for good in the
spring of 2006.
[3] Father maintained frequent parenting time with Child until 2007, at which
point he saw her “[o]nce a month if that.” Tr. p. 20. In 2008, Father moved to
Tennessee and was in a car wreck; he did not see Child “at all” that year. Id.
In 2009, Father moved in with his parents in Florida to convalesce; he did not
see Child that year either. Father returned to Indiana in 2010 and saw Child
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 2 of 7 three times that summer. But then Father did not see Child in 2011 or 2012.1
Id. at 23-24. After 2012, Father’s only visitation with Child occurred in
connection with his parents’ annual trips to Indiana during the summer. That
is, in July 2013, Father’s parents asked to see Child, and she spent eight hours
with them. Then, in July 2014, Father’s parents again asked to see Child, and
she spent six hours with them. The requests in 2013 and 2014 were not from
Father, but he was present during the visits.2
[4] Through the years, Father occasionally called Mother to check up on Child.
He never asked about Child’s grades, and since 2011 he has not asked about
Child’s health. Father sent Child a Christmas gift in 2012 and 2013 and called
Child on her birthday, although he did not call her in 2014.
[5] In the meantime, Mother and Stepfather started dating in 2012 and got married
in May 2014. Stepfather then filed a petition to adopt Child on December 5,
2014. In February 2016, the trial court held a hearing to determine whether
Father’s consent to adopt Child was required. The trial court issued findings of
fact and conclusions that Father’s consent to the adoption was not required
because for a period of at least one year he failed without justifiable cause to
communicate significantly with Child when able to do so. Appellant’s App.
1 Father moved back to Florida from August 2011 to June 2013. Tr. p. 62. 2 Mother claimed that the visits occurred in July 2012 and July 2013, see Tr. p. 53, but the trial court found that they actually occurred in July 2013 and July 2014. In any event, the court found that the dates were “immaterial, as [Father’s] contact has not been of a substantial nature, nor instituted by him, but by his parents.” Appellant’s App. Vol. II p. 14.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 3 of 7 Vol. II p. 14. The court then held a best-interests hearing, following which it
granted Stepfather’s petition to adopt Child. Id. at 10-11.
Discussion and Decision [6] Father contends that the trial court erred in granting Stepfather’s petition to
adopt Child. Our standard of review in adoption cases is well established.
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, 972-73 (Ind. 2014). We
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.” Id. at
973. 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.
[7] When, as in this case, the trial court has made findings of fact and conclusions,
we apply a two-tiered standard of review: we must first determine whether the
evidence supports the findings and second, whether the findings support the
judgment. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual
findings are clearly erroneous if the record lacks any evidence or reasonable
inferences to support them, and a judgment is clearly erroneous when it is
unsupported by the findings of fact and the conclusions relying on those
findings. Id. We neither reweigh the evidence nor assess the credibility of
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 4 of 7 witnesses, and we examine the evidence most favorable to the trial court’s
decision. O.R., 16 N.E.3d at 973.
[8] Generally, a petition to adopt a minor child may be granted only if written
consent has been provided by the biological parents. See Ind. Code § 31-19-9-1.
However, written consent is not required from, among others, the following:
(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 . . . .
Ind. Code § 31-19-9-8(a). The petitioner for adoption must prove this statutory
criterion by clear and convincing evidence. See T.L., 4 N.E.3d at 662 n.3.
Father claims Stepfather failed to meet this burden.3
[9] The test for communication is not whether the noncustodial parent had no
communication with the child, but whether he failed without justifiable cause to
have significant communication when able to do so. In re Adoption of S.W., 979
N.E.2d 633, 640 (Ind. Ct. App. 2012). The purpose of this statutory provision
is to foster and maintain communication between noncustodial parents and
3 The trial court also found that for a period of at least one year Father knowingly failed to provide for the care and support of Child when able to do so as required by law or judicial decree. See Ind. Code § 31-19-9-8(a)(2)(B). Because “the statute is written in the disjunctive such that the existence of any one of the circumstances provides sufficient ground to dispense with consent,” O.R., 16 N.E.3d at 973, we do not address this provision.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 5 of 7 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. Id. Accordingly, the noncustodial parent must make
more than a “token effort” to communicate with the child. In re Adoption of
C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006). This is a fact-sensitive
determination. Id. at 271.
[10] Father concedes that he had a lengthy period of no communication with Child.
That is, Father did not see Child in 2008, 2009, 2011, and 2012. Highlighting
that he saw Child for several hours in July 2013 and July 2014, Father argues
that “it would defy logic” to ignore this “lengthy period of significant
communication” with Child that preceded the filing of Stepfather’s adoption
petition. Appellant’s Br. p. 7 (citing E.W. v. J.W., 20 N.E.3d 889, 896 (Ind. Ct.
App. 2014), trans. denied). We, however, do not believe that Father’s one visit
with Child in July 2013 (eight hours) and one visit with Child in July 2014 (six
hours)—both arranged by his parents—constitutes a lengthy period of
significant communication. This is so even considering that Father sent Child a
Christmas gift in 2013 (but not in 2014) and called her on her birthday in 2013
(but not in 2014). As the trial court found:
[Father] only had contact with [Child] when his parents would travel to Indiana to visit relatives. He never initiated any specific plan as to how he would have parenting time with his daughter. The contact he had in this matter is not enough to stave off termination of his parental rights.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 6 of 7 Appellant’s App. Vol. II p. 15. Accordingly, we conclude that Stepfather
proved by clear and convincing evidence that for a period of at least one year
Father failed without justifiable cause to communicate significantly with Child
when able to do so.4 We therefore affirm the trial court.
[11] Affirmed.
Bradford, J., and Brown, J., concur.
4 Citing In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind. Ct. App. 1990), Father points out that one significant communication (provided that this single communication does not amount to a token effort to contact the child) in a year can be enough to stave off termination of parental rights. However, we find that Father’s one visit in July 2013 and one visit July 2014, both arranged by his parents, are token efforts.
Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 7 of 7