Je.B. v. Ja.B.

944 N.E.2d 73, 2011 Ind. App. LEXIS 239
CourtIndiana Court of Appeals
DecidedFebruary 24, 2011
DocketNo. 39A01-1007-AD-366
StatusPublished
Cited by2 cases

This text of 944 N.E.2d 73 (Je.B. v. Ja.B.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Je.B. v. Ja.B., 944 N.E.2d 73, 2011 Ind. App. LEXIS 239 (Ind. Ct. App. 2011).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Je.B. (“Stepfather”) appeals the trial court’s order dismissing his petition to adopt M.B. (“the child”) without the consent of her natural father, Ja.B. (“Father”). We consider a single issue on review, namely, whether the trial court erred when it denied and dismissed Stepfather’s petition.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 22, 2007, KB. (“Mother”) gave birth to the child. Father was present at the birth and, the following day, executed a paternity affidavit. Mother was eighteen years old, and Mother and Father were engaged at the time. Following the birth, Mother and the child resided with Mother’s parents. Father did not contribute to the cost of Mother’s pregnancy or the child’s birth.

Mother and Father’s engagement ended approximately two months after the child was born. After six weeks of maternity leave, Mother returned to her job wait-ressing at Cliffy Inn, where Father worked as a cook. Mother worked the morning shift and Father worked an evening shift. To avoid the cost of daycare, Mother left the child with Father at his apartment while Mother was working. Father has not had a driver’s license since before the child’s birth, nor does he have a high school education.

In August or September 2007, Mother unilaterally decided to take the child to daycare instead of leaving her with Father. Following the change in childcare arrangements, Mother allowed Father to see the child one day per week. Father also had the child for one overnight visitation, at Christmas in 2008. Meanwhile, in October 2007, Mother began dating Stepfather. Mother and Stepfather married in August 2008.

[75]*75Since the child’s birth, Father has been employed intermittently. He worked as a cook at Cliffy Inn until October 2007, when his employment was terminated. He drew unemployment benefits for three or four months before relocating to live with friends in Carrollton, Kentucky, so that he could take a job with a subcontractor at North American Stainless (“NAS”). While at NAS, Father asked Mother for the child’s Social Security number so that he could arrange to pay child support. Mother refused Father’s offer. Shortly thereafter, Father left NAS to move closer to his family. He then worked as a self-employed construction worker, but work was not always available. In 2008, Father was also briefly employed as a weekend cook at the Red Pepper Restaurant for minimum wage and at Jendy’s Pizzeria. He left both jobs due to the limited hours and low wage.1

Father exercised parenting time one work day per week until July 2, 2009, missing a few visitations. On that date, Mother and Father argued about the time Father was supposed to return the child to Mother. After that argument, Mother refused Father’s requests to see the child. On September 2, 2009, Father filed a petition to establish paternity.2 And on October 15, Stepfather filed his petition for adoption (“Petition”) and motion to proceed with adoption without consent of biological father pursuant to Indiana Code Section 81-19-9-8.3

The trial court held a hearing on Stepfather’s Petition on May 18 and July 1, 2010.

At the close of evidence, the court took the matter under advisement. And on July 6, the court entered an order denying and dismissing Stepfather’s Petition (“Order”). The Order provides, in relevant part:

After the child was born, [Mother] returned to her parents’ home and was soon back working as a waitress. She worked in the morning and [Father] worked the evening shift. She would drop [the child] off at [Father’s] apartment and he would have parenting time and the parties could thus avoid the expense of day care. This arrangement lasted until late August or early September of 2007 when [Mother] decided to arrange for day care without [Father’s] help. [Father’s] parenting time then became limited, at [Mother’s] choice, to parenting time of one day a week. This arrangement lasted from September 2007 until July 2, 2009. [Father] has only had overnight parenting time once, that being at Christmas of 2008. [Mother] had allowed these one[-]day a week visits only because [Father] wanted them.
* * *
On the issue of whether [Father] provided financial support, the evidence is that he provided no support. He did, however, provide substantial parenting time that avoided the need for day care during much of the first five months of [the child’s] life and he was rebuffed whenever he mentioned his willingness to provide such support thereafter. [Mother], rather than insist on support, [76]*76told [Father] they didn’t need his money. There never has been a Court order for support in place.
During much of this time [Father] was either out of work or working for minimum or low wage. He lost his job at Cliffy Inn in September [2007] over a disagreement about whether he was allowed to take a day off. This was followed by intermittent employment at a low wage except for one short period when he had secured a job that required him to work varying shifts that had him living out of town and which interfered with what parenting time he was able to obtain from [Mother].
[Father] was regularly exercising parenting time at his request for over two years and three months from [the child’s] birth to two months prior to his filing a paternity action to have a judicial determination of parenting time and support. During this same time offers of support by him were either rebuffed, or [Father’s] financial ability to provide support was not evident. Upon being refused parenting time [Father] saved money to hire an attorney and filed a paternity action to establish both support and parenting time.
Under these circumstances the Court finds that [Stepfather] has not met his burden of proving by clear, cogent and indubitable evidence that he may proceed with the adoption without the consent of the natural father.

Appellant’s App. at 33-35. Stepfather now appeals.

DISCUSSION AND DECISION

Stepfather appeals the trial court’s order denying and dismissing his petition to adopt the child without Father’s consent, pursuant to Indiana Code Section 31-19-9-8. Our standard of review in adoption cases is well-settled:

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. Rust v. Lawson, 714 N.E.2d 769, 771 (Ind.Ct.App.1999), trans. denied. 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.

M.A.S. v. Murray, 815 N.E.2d 216, 218-19 (Ind.Ct.App.2004).

Stepfather alleges in the Petition that Father’s consent to the adoption is not required pursuant to Indiana Code Section 31-19-9-8.

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Related

T.H. and R.H. v. C.J. (mem. dec.)
Indiana Court of Appeals, 2017
In Re Adoption of MB
944 N.E.2d 73 (Indiana Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
944 N.E.2d 73, 2011 Ind. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeb-v-jab-indctapp-2011.