In the Matter of the Adoption of J.H., Minor Child, D.H. v. K.J. and B.J. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2018
• Docket: 18A-AD-454
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2018, 9:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Joseph A. Sobek Jay A. Rigdon Lennox, Sobek & Buehler, LLC Rockhill Pinnick LLP Warsaw, Indiana Warsaw, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of J.H., Minor Child, July 31, 2018 D.H., Court of Appeals Case No. 18A-AD-454 Appellant-Respondent, Appeal from the v. Kosciusko Circuit Court The Honorable K.J. and B.J., Michael W. Reed, Judge Appellees-Petitioners. Trial Court Cause No. 43C01-1703-AD-10

Kirsch, Judge.

[1] D.H. (“Father”) appeals the trial court’s Decree of Adoption, which granted the

petition to adopt minor child J.H. (“the Child”) that was filed by K.J.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 1 of 9 (“Mother”) and B.J. (“Stepfather”). Father raises the following restated issues

for our review:

[2] Whether the evidence was sufficient to support the trial court’s decision that

Father’s consent was not required for adoption of the Child; and

[3] Whether counsel for Father provided ineffective assistance.

[4] We affirm.

[5] Facts and Procedural History

[6] The Child was born to Mother and Father on January 17, 2008. Tr. at 10.

Before October 26, 2017, the last time that Father had seen the Child was in

2012 when the Child entered kindergarten. Id. at 10, 22. Father arranged to

visit the Child once for a playdate in 2012, but did not appear. Id. at 10-11.

The last time Father spoke to the Child on the phone also was in 2012. Id. at

12. Father had numerous options available to him to communicate with the

Child, either through electronic communication or written correspondence. Id.

at 12, 14, 15, 16. Those included Mother’s email address, Facebook, Mother

and Stepfather’s phone numbers, and Mother’s physical address. Pet’r’s Ex. 1.

Since 2012, Father has not sent anything in writing to the Child and has not

tried to call her on the phone. Tr. at 12, 27. He did not reach out to Mother to

request that the Child contact him through any sort of electronic media. Id. at

12. Mother always kept her physical address available in the child support

records of the Clerk’s Office. Pet’r’s Ex. 2.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 2 of 9 [7] Father had been ordered to pay child support in the amount of eighty dollars

per week. Tr. at 18. The child support records from the Clerk of the Court

indicated that after March 15, 2014, a total of $520 was paid on the child

support obligation. Pet’r’s Ex. 5. Father held a job as a security officer with

Menards for about three months, being paid approximately ten dollars an hour.

Tr. at 25, 35. Thereafter, Father claimed to have physical, mental, and

emotional disorders that kept him from working. Although Father filed for

Supplemental Security Income (“SSI”) benefits, he never received such

disability benefits, nor did he provide the trial court with records or evidence to

support his claims of disability. Id. at 22, 25, 26, 35, 36. Mother and Stepfather

filed a petition to adopt the Child, contending that Father’s consent was not

necessary because Father has failed to communicate with the Child and has

failed to provide financial support to the Child. Father contested the adoption,

and a hearing was held.

[8] Although Father did not provide any financial support to the Child, he testified

at the adoption hearing that he had received, perhaps, hundreds or thousands of

dollars in financial support from April 2015, through the date of the hearing,

from family and the Warsaw Evangelical Presbyterian Church. Id. at 33. He

did not provide any of that cash for financial support for the Child. Id. at 33-34.

The trial court found that Father’s consent was not required because Father

failed to communicate and to provide financial support to the Child. The trial

court stated that the evidence was clear that Father had the ability to

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 3 of 9 communicate with the Child and failed to do so, and there was a lack of

financial support for the Child since 2012. Father now appeals.

[9] Discussion and Decision

[10] We begin by recognizing that the purpose of our adoption statutes is to protect

and promote the welfare of children by providing them with stable family units.

In re Adoption of K.F., 935 N.E.2d 282, 289 (Ind. Ct. App. 2010), trans denied.

The relationship between parent and child is of such fundamental importance

that adoption statutes, being in derogation of the common law, are “strictly

construed in favor of a worthy parent and the preservation of such

relationship.” Id. In evaluating the parent-child relationship, however, the best

interest of the child is paramount, and “our main concern should lie with the

effect of the adoption on the reality of the minor child’s life.” Id.

[11] Consent

[12] Father contends that the trial court erred when it determined that his consent to

the adoption was not required. When reviewing a 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 judge reached an opposite conclusion. In re

Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied,

cert. denied, 129 S. Ct. 619 (2008). 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. It is the appellant’s burden

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 4 of 9 to overcome the presumption that the trial court’s decision was correct.

McElvain v. Hite, 800 N.E.2d 947, 949 (Ind. Ct. App. 2003). Furthermore, we

may affirm a trial court order on any basis supported by the record. Wishard

Mem’l Hosp. v. Kerr, 846 N.E.2d 1083, 1093 (Ind. Ct. App. 2006).

[13] Indiana Code section 31-19-9-1 provides, in pertinent part, that a petition to

adopt a child who is less than eighteen years of age may be granted only if

written consent to the adoption has been executed. Indiana Code section 31-

19-9-8, provides, however, 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:

[14] (A) fails without justifiable cause to communicate significantly with the child

when able to do so; or

[15] (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.”

[16] Ind. Code § 31-19-9-8(a)(2). “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.” Ind. Code § 31-19-9-8(b). The petitioner bears the burden to prove

this by clear and convincing evidence. In re Adoption of M.S., 10 N.E.3d 1272,

1279 (Ind. Ct. App. 2014).

[17] Father asserts that the trial court erred by concluding that Mother and

Stepfather proved by clear and convincing evidence that Father, for at least one

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 5 of 9 year, failed without justifiable cause to communicate significantly with the

Child when able to do so. See Ind. Code § 31-19-9-8(a)(2)(A).

[18] Under Indiana law, the party petitioning to adopt without parental consent

under section 8(a)(2)(A) has the burden of proving both a lack of

communication for the statutory period and that the ability to communicate

during that time period existed. In re Adoption of C.E.N., 847 N.E.2d 267, 271

(Ind. Ct. App. 2006). To preserve the consent requirement for adoption, the

level of the parent’s communication with the child must be significant and more

than “token efforts” on the part of the parent. Id. at 272. We have held that the

purpose of the provision dispensing with consent if the parent “fail[ed] without

justifiable cause to communicate significantly with the child when able to do

so” is to encourage non-custodial parents to maintain communication with

their children and to discourage them from visiting their children just often

enough to thwart the adoptive parents’ efforts to provide a settled environment

for the children. Id. That being said, efforts of a custodian to hamper or thwart

communication between parent and child are relevant in determining the

parent’s ability and opportunity to communicate. In re Adoption of T.W., 859

N.E.2d 1215, 1218 (Ind. Ct. App. 2006); Rust v. Lawson, 714 N.E.2d 769, 772

(Ind. Ct. App. 1999), trans. denied.

[19] Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive—consent of

the parent is not required where either failure to communicate significantly or

failure to provide support is established. In re Adoption of S.W., 979 N.E.2d 633,

640 (Ind. Ct. App. 2012). Here, we do not address Father’s argument

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 6 of 9 regarding whether he knowingly failed to provide for the support of the Child

when able to do so because we affirm the trial court’s judgment based on

Father’s failure to communicate significantly with the child when able to do so.

[20] Father contends that he had a justifiable reason for his lack of communication

with the Child, which was that Mother prevented such communication. Father

also contends that he attempted to communicate with the Child multiple times,

but did not know where Mother and the Child lived. After review of the

record, we disagree. Both Mother and Father testified that Father last saw the

Child on the Child’s first day of kindergarten in 2012. The Child is now in

fourth grade. Tr. at 10, 22. Mother stated that there was one occasion when

Father was scheduled to have a visit with the Child at the park, and Father did

not show up. Id. at 10-11. Father never followed up with Mother regarding

why he missed the visit. Id. at 11. Mother testified that Father had made one

request, since 2012, to see the Child, and that was a request that Mother bring

the Child to the hospital the day his daughter with his current wife was born.

Id. at 11-12. Mother did not take the Child to the hospital and could not recall

when this happened. Id. at 12. Mother testified that she has kept her address

current with the Clerk’s Office. Id. at 14.

[21] Mother testified that Father last spoke to the Child on the telephone in 2012.

Id. Mother stated that Father has her phone number because it is the same

phone number that he used to call to talk to her about his issues prior to August

2013. Id. at 15. Stepfather’s phone number was also provided to Father via

Facebook so that he could communicate with the Child. Id. Mother admitted

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 7 of 9 that Father has called to speak with the Child once or twice since 2012;

however, he was unable to speak to the Child because it was a school night and

past the Child’s bedtime. Id. at 19-20. Mother stated that she informed Father

that he was welcome to call, but Father would need to do so before the Child’s

bedtime. Id. at 20. Furthermore, Father has not attempted to contact Mother

via Facebook since 2012 to communicate with the Child. Id. at 12. Father also

had Mother’s email address and did not attempt to reach Mother and request to

communicate with the Child. Id. at 16. Therefore, because the evidence

showed that Father failed without justifiable cause to communicate significantly

with the Child for a period of at least one year, Mother and Stepfather have met

their burden of showing that Father’s consent was not required for the

adoption, and the trial court did not err when it granted the petition for

adoption of the Child without Father’s consent.

[22] Ineffective Assistance of Counsel

[23] Father argues that the trial court erred in declaring that his consent was not

required because he received ineffective assistance from his attorney. “Where

parents whose rights were terminated upon trial claim on appeal that their

lawyer underperformed, we deem the focus of the inquiry to be whether it

appears that the parents received a fundamentally fair trial whose facts

demonstrate an accurate determination.” Baker v. Marion Cnty. Office of Family &

Children, 810 N.E.2d 1035, 1041 (Ind. 2004).

Court of Appeals of Indiana | Memorandum Decision 18A-AD-454 | July 31, 2018 Page 8 of 9 [24] Father contends that his trial counsel was ineffective. Father indicated during

his testimony that he had been deemed “medically frail” by his insurance

company and, he argues, documentation of this could be found in the Title IV-

D Office located in the same building as where the adoption hearing was being

held. Tr. at 34. Father also argues that his counsel was made aware, prior to

the contested adoption hearing, that additional documentation was available

from Father in reference to the issues that Father testified to regarding his

employment as it pertained to the care and support of the Child. Father

maintains that this documentation would have made a difference in the

contested hearing. However, this documentation was not required because

sufficient evidence was presented to support that Father failed to communicate

with the Child for at least one year, and that was enough to prove Father’s

consent was not needed.

[25] Affirmed.

[26] Baker, J., and Bradford, J., concur.

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