MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 14 2017, 9:20 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 APPELLEES Stanley E. Robison, Jr. Thomas E. Banks II New Albany, Indiana Pregliasco Straw-Boone Doheny Banks & Bowman, PLLC Louisville, Kentucky
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of July 14, 2017 M.M.C.C., Court of Appeals Case No. 10A01-1612-AD-2818 R.C., Appeal from the Appellant-Respondent, Clark Circuit Court v. The Honorable Andrew Adams, Judge The Honorable C.C. and C.C., William A. Dawkins, Magistrate Appellees-Petitioners. Trial Court Cause No. 10C01-1605-AD-29
Kirsch, Judge.
[1] R.C. (“Biological Father”) appeals the trial court’s order finding that his
consent was not necessary for the adoption of M.M.C.C. (“Child”) filed by
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 1 of 6 C.C. (“Mother”) and C.C. (“Adoptive Father”) (together, “Petitioners”).
Biological Father raises the following restated issue for our review: whether the
trial court erred when it concluded that his consent to the adoption was not
required because he knowingly failed without justifiable cause to communicate
significantly with Child when able to do so.
[2] We affirm.
Facts and Procedural History [3] Mother gave birth to Child on December 10, 2013. Mother had a relationship
with Biological Father when they were both living in Kentucky. Mother
describes her relationship with Biological Father to have been short-lived and
that she was raped at gunpoint by Biological Father. Biological Father alleges
that he and Mother were dating, and he acknowledges that he was married at
the time of the relationship and that at least one of the “dates” occurred with
his wife present. Appellant’s App. at 16. Mother told Biological Father she was
pregnant and abruptly left Kentucky and moved to Indiana when she was
twelve weeks pregnant. Mother married Adoptive Father in October of 2013.
She then gave birth to Child in Clark County, Indiana. Child has never had
any contact with Biological Father. Petitioners acknowledge that they did not,
and do not, want contact between Child and Biological Father.
[4] Biological Father initiated a paternity action in Taylor County, Kentucky in
early 2014. That case was dismissed under the UCCJA because Child was born
and remained in the State of Indiana. In August 2014, Biological Father
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 2 of 6 brought a paternity action in Harrison County, Indiana. Because Harrison
County was an improper venue, the case was ultimately transferred in January
2015 to Clark County, Indiana where the underlying action arose. On March
26, 2015, after DNA analysis established that Biological Father was Child’s
father, the trial court entered an order of paternity and child support, finding
Biological Father to be the father of Child. The order did not establish
parenting time, but did obligate Biological Father to pay weekly child support.
[5] Biological Father acknowledged that he was advised by the Clark County IV-D
office that he would need to pursue contact with Child on his own. Id. at 17.
On March 1, 2016, Biological Father filed a motion seeking an order of custody
and parenting time with Child. Biological Father claimed that he had to raise
money for a lawyer to seek parenting time and that it took him until March of
2016 to do so. Id. He acknowledged that his bank account had more than
$15,000 in the Spring of 2015, but he did not obtain a lawyer at that time. Id.
Instead, Biological Father spent the money on an automobile. Id. Prior to the
March 2016 motion, Biological Father did not take any steps to seek parenting
time with Child. Biological Father did not attempt to call Child, send emails,
or make any home visits. Biological Father did not seek contact information
for Child through the trial court or through counsel.
[6] Petitioners filed a Petition for Adoption of the Minor Child on May 6, 2016.
Biological Father objected to the adoption. Petitioners requested that the trial
court find that Biological Father’s consent was not necessary for the adoption.
The trial court held a hearing on the issue, and after hearing evidence, it issued
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 3 of 6 findings of fact and conclusions thereon, ordering that Biological Father’s
consent was not necessary for the adoption to proceed. The trial court held that
Biological Father’s failure to seek parenting time between March 26, 2015 and
May 6, 2016, except for the single request, made consent for Petitioners to
adopt Child unnecessary. Id. at 21-22. The trial court held that Biological
Father’s solitary filing was merely a token effort that was insufficient to require
his consent for adoption. Id. at 21. Biological Father now appeals.
Discussion and Decision [7] Biological Father argues that the trial court erred when it determined that his
consent was not necessary for Petitioners’ adoption of Child to proceed. When
reviewing a trial court’s ruling in an adoption case, the appellant bears the
burden of overcoming the presumption that the trial court’s decision is correct.
In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing In re
Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied). We
will neither reweigh the evidence nor judge the credibility of witnesses; instead,
we will consider the evidence most favorable to the trial court’s decision, and
the reasonable inferences to be drawn therefrom, to determine whether
sufficient evidence exists to sustain the decision. Id. We will not disturb the
trial court’s ruling unless the evidence leads to only one conclusion and the trial
court reached an opposite conclusion. Id.
[8] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. However, consent to adoption is not required from:
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 4 of 6 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.
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.
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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 Jul 14 2017, 9:20 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 APPELLEES Stanley E. Robison, Jr. Thomas E. Banks II New Albany, Indiana Pregliasco Straw-Boone Doheny Banks & Bowman, PLLC Louisville, Kentucky
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of July 14, 2017 M.M.C.C., Court of Appeals Case No. 10A01-1612-AD-2818 R.C., Appeal from the Appellant-Respondent, Clark Circuit Court v. The Honorable Andrew Adams, Judge The Honorable C.C. and C.C., William A. Dawkins, Magistrate Appellees-Petitioners. Trial Court Cause No. 10C01-1605-AD-29
Kirsch, Judge.
[1] R.C. (“Biological Father”) appeals the trial court’s order finding that his
consent was not necessary for the adoption of M.M.C.C. (“Child”) filed by
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 1 of 6 C.C. (“Mother”) and C.C. (“Adoptive Father”) (together, “Petitioners”).
Biological Father raises the following restated issue for our review: whether the
trial court erred when it concluded that his consent to the adoption was not
required because he knowingly failed without justifiable cause to communicate
significantly with Child when able to do so.
[2] We affirm.
Facts and Procedural History [3] Mother gave birth to Child on December 10, 2013. Mother had a relationship
with Biological Father when they were both living in Kentucky. Mother
describes her relationship with Biological Father to have been short-lived and
that she was raped at gunpoint by Biological Father. Biological Father alleges
that he and Mother were dating, and he acknowledges that he was married at
the time of the relationship and that at least one of the “dates” occurred with
his wife present. Appellant’s App. at 16. Mother told Biological Father she was
pregnant and abruptly left Kentucky and moved to Indiana when she was
twelve weeks pregnant. Mother married Adoptive Father in October of 2013.
She then gave birth to Child in Clark County, Indiana. Child has never had
any contact with Biological Father. Petitioners acknowledge that they did not,
and do not, want contact between Child and Biological Father.
[4] Biological Father initiated a paternity action in Taylor County, Kentucky in
early 2014. That case was dismissed under the UCCJA because Child was born
and remained in the State of Indiana. In August 2014, Biological Father
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 2 of 6 brought a paternity action in Harrison County, Indiana. Because Harrison
County was an improper venue, the case was ultimately transferred in January
2015 to Clark County, Indiana where the underlying action arose. On March
26, 2015, after DNA analysis established that Biological Father was Child’s
father, the trial court entered an order of paternity and child support, finding
Biological Father to be the father of Child. The order did not establish
parenting time, but did obligate Biological Father to pay weekly child support.
[5] Biological Father acknowledged that he was advised by the Clark County IV-D
office that he would need to pursue contact with Child on his own. Id. at 17.
On March 1, 2016, Biological Father filed a motion seeking an order of custody
and parenting time with Child. Biological Father claimed that he had to raise
money for a lawyer to seek parenting time and that it took him until March of
2016 to do so. Id. He acknowledged that his bank account had more than
$15,000 in the Spring of 2015, but he did not obtain a lawyer at that time. Id.
Instead, Biological Father spent the money on an automobile. Id. Prior to the
March 2016 motion, Biological Father did not take any steps to seek parenting
time with Child. Biological Father did not attempt to call Child, send emails,
or make any home visits. Biological Father did not seek contact information
for Child through the trial court or through counsel.
[6] Petitioners filed a Petition for Adoption of the Minor Child on May 6, 2016.
Biological Father objected to the adoption. Petitioners requested that the trial
court find that Biological Father’s consent was not necessary for the adoption.
The trial court held a hearing on the issue, and after hearing evidence, it issued
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 3 of 6 findings of fact and conclusions thereon, ordering that Biological Father’s
consent was not necessary for the adoption to proceed. The trial court held that
Biological Father’s failure to seek parenting time between March 26, 2015 and
May 6, 2016, except for the single request, made consent for Petitioners to
adopt Child unnecessary. Id. at 21-22. The trial court held that Biological
Father’s solitary filing was merely a token effort that was insufficient to require
his consent for adoption. Id. at 21. Biological Father now appeals.
Discussion and Decision [7] Biological Father argues that the trial court erred when it determined that his
consent was not necessary for Petitioners’ adoption of Child to proceed. When
reviewing a trial court’s ruling in an adoption case, the appellant bears the
burden of overcoming the presumption that the trial court’s decision is correct.
In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012) (citing In re
Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied). We
will neither reweigh the evidence nor judge the credibility of witnesses; instead,
we will consider the evidence most favorable to the trial court’s decision, and
the reasonable inferences to be drawn therefrom, to determine whether
sufficient evidence exists to sustain the decision. Id. We will not disturb the
trial court’s ruling unless the evidence leads to only one conclusion and the trial
court reached an opposite conclusion. Id.
[8] Parental consent is generally required to adopt a child in Indiana. Ind. Code §
31-19-9-1. However, consent to adoption is not required from:
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 4 of 6 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.
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).
[9] At the hearing on Petitioners’ petition, evidence was presented that Biological
Father was established as being the father of Child on March 25, 2015. He did
not file his motion for parenting time until March 1, 2016, which was almost a
year later. No evidence was presented that Biological Father took any steps to
have contact with Child or attempted to contact Mother or her lawyer in order
to have contact with Child. There was no evidence that Biological Father
attempted to call Child, send letters or presents to Child, or make any inquiries
into attempting to locate Mother and Child. Biological Father did not file any
other actions to try to establish parenting time prior to the action filed in March
2016. The only action Biological Father took, between March 26, 2015 when
paternity was established and the filing of the adoption petition on May 6,
2016, to attempt contact with Child was to file a single motion with the trial
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 5 of 6 court seeking parenting time. The evidence was sufficient to support the trial
court’s conclusion that Biological Father failed without justifiable cause to
communicate significantly with Child for a period of one year. We, therefore,
conclude that the trial court did not err in holding that Biological Father’s
consent was not necessary for the adoption of Child by the Petitioners to
proceed.
[10] Affirmed.
[11] Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 10A01-1612-AD-2818 | July 14, 2017 Page 6 of 6