MEMORANDUM DECISION
Jul 28 2015, 9:43 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not 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 APPELLEE
Anthony Rose Mark James
Anthony Rose Law Firm Anderson, Agostino, & Keller
South Bend, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of D.B. and July 28, 2015
S.R., Court of Appeals Case No.
71A03-1410-AD-00385
M.R.
Appeal from the St. Joseph Probate
Appellant-Respondent, Court
The Honorable J. Eric Smithburn,
v. Senior Judge
Trial Court Cause No.
J.W., 71J01-1310-AD-000078
Appellee-Petitioner
Mathias, Judge.
[1] M.R. (“Father”) appeals an order of the St. Joseph Probate Court granting the
petition of J.W. (“Stepfather”) to adopt S.R.1 Father presents one issue for
1
Stepfather’s adoption of Mother’s other child, D.B., is not at issue in this appeal.
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review: whether the probate court clearly erred in determining that Father’s
consent to Stepfather’s adoption of S.R. was not required.
[2] We affirm.
Facts and Procedural History
[3] Father and R.B. (“Mother”) married on October 15, 2000, and had one child
together, S.R., born on January 29, 2003. In January 2010, after a domestic
dispute involving Father, Mother, and Mother’s father, Father was arrested and
charged with the attempted murder of Mother’s father, criminal confinement of
Mother while armed with a handgun, battery in the presence of S.R., firing a
handgun inside an occupied residence, and pointing a loaded handgun at
Mother. On October 1, 2010, Father was convicted of the charges and
sentenced to twenty years incarceration. His earliest possible release date is in
July 2019, when S.R. will be sixteen years old.
[4] Mother and Father’s marriage was dissolved on May 13, 2010, shortly after
Father was incarcerated. Pursuant to Mother’s and Father’s property settlement
agreement, the dissolution court did not enter a child support order for Father
due to his incarceration. Father has not paid any child support since his arrest,
and Mother apparently has not sought any child support from Father. No
evidence exists that Father has sent S.R. any gifts or correspondence. Father is
employed as a graphic designer within the correctional system, is paid $0.65 per
hour, and works approximately thirty-five hours per week. His monthly
earnings amount to approximately $80.00.
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[5] Mother married Stepfather on November 11, 2011. With Mother’s consent,
Stepfather filed a petition to adopt S.R. on January 3, 2014, and an amended
petition on August 26, 2014. In his petition, Stepfather alleged that Father’s
consent to the adoption was not required because Father had failed to provide
child support for S.R. for more than one year.
[6] The probate court held a trial on Stepfather’s petition on September 3, 2014. On
October 1, 2014, the trial court entered an order making the following relevant
findings and conclusions:
10. Step-Father has lived with [S.R. and D.B.] since 7-2011.
11. Mother and Step-Father were married on 11-11-2011.
12. Step-Father earned a baccalaureate degree and 2 masters
degrees in psychology and criminal justice.
13. Since 2012, Step-Father has served as a professor at Brown
Mackie College in Michigan City. Indiana.
14. Mother is gainfully employed at Fifth Third Bank.
15. Step-Father has the financial resources to care for and support
[S.R. and D.B.].
16. Step-Father does chores with the children around the home
and cooks meals for the children and Mother.
17. Step-Father helps [S.R. and D.B.] with their school work.
18. Step-Father is able to care for, support, and educate the
children.
19. Mother consents to the adoption of [S.R. and D.B.] by Step-
Father.
20. [S.R. and D.B.] do not possess real or personal property.
21. Step-Father has not been convicted of a felony or a
misdemeanor relating to the health and safety of children.
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22. The consent to adoption of the Department of Child Services
is not required.
23. The marriage of Mother and Bio-Father was dissolved on 5-
13-2010.
24. Bio-Father failed to pay support for [S.R.] after 5-13-2010.
25. In 1-2010, Bio-Father was arrested and charged with
attempted murder; criminal confinement (Mother) while armed
with a handgun; battery (Mother) in the presence of children less
than 16 years of age ([S.R.]); firing a handgun inside an occupied
residence; and pointing a loaded handgun at Mother.
26. On 10-1-2010, the St. Joseph Superior Court, in Cause
Number 71DO1-100 l-FA-00003, entered judgments of
conviction and sentencing on all 10 counts of a criminal
information and Bio-Father was sentenced to the Indiana
Department of Corrections.
27. The St. Joseph Superior Court, in its Judgment of Conviction
and Sentencing Order, continued in effect the no contact order as
to Bio-Father and [S.R. and D.B.].
28. The St. Joseph Superior Court, in its Judgment of Conviction
and Sentencing Order, recommended that Bio-Father receive
psychiatric treatment while serving his sentence at the Indiana
Department of Correction. There is no evidence that Bio-Father
has received psychiatric treatment, which causes the Court
concern, particularly for the best interests of [S.R.].
29. Bio-Father’s earliest incarceration release date is 7-2019.
30. [S.R.] will be 16 years of age on Bio-Father’s earliest release
date.
31. During his incarceration in 2011, Bio-Father was employed
with Penn Products, earning 75 cents per hour.
32. Since 2014, Bio-Father was employed 35 hours a week as a
graphic designer, earning 65 cents per hour.
33. Bio-Father knew [S.R.’s] address in order to pay any support
for [S.R.].
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34. Bio-Father acknowledged in Open Court that he paid no
support to [S.R.] from 2010 to date.
35. Bio-Father has earned approximately $100.00 per month
while he is incarcerated.
36. Bio-Father had the ability to pay some support for [S.R.] but
he chose not to do so.
37. Bio-Father has a common law duty to pay support even in
the absence of a court order.
38. Bio-Father’s consent to adoption, by clear and convincing
evidence, is not required because Bio-Father, while [S.R.] was in
the custody of Mother and Step-Father, for at least 1 year,
knowingly failed to provide for the care and support of [S.R.]
when able to do so, as required by law.
39. Step-Father and Mother have provided [S.R. and D.B.] with
a loving, stable home environment.
40. It is in the best interests of [S.R. and D.B.] that Step-Father’s
Petition for Adoption be granted.
***
IT IS THEREFORE ORDERED as follows:
1. Adoptive Father’s Petition for Adoption is GRANTED.
2. The Bio-Father’s Motion to Contest Adoption is DENIED.
3. The parental rights of Bio-Father . . . as to [S.R.] are
terminated.
Appellant’s App. pp. 8-10 (internal citations omitted).
[7] Father now appeals.
Discussion and Decision
[8] Upon review 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 A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009). We will neither
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reweigh the evidence or 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 probate court
reached an opposite conclusion. Id.
[9] Where the trial court enters findings of fact and conclusions of law pursuant to
Indiana Trial Rule 52(A), we employ our familiar two-tiered standard of
review: we must determine whether the evidence supports the findings and
whether the findings support the judgment. Id. We will not set aside the
findings or the judgment unless they are clearly erroneous. Id. Findings of fact
are clearly erroneous if the record is devoid of any evidence or reasonable
inferences to support them, while a judgment is clearly erroneous when it is
unsupported by the findings of fact and the conclusions relying on those
findings. Id.
[10] Father claims that the probate court erred in granting Stepfather’s petition to
adopt despite Father’s lack of consent. Parental consent is generally required to
adopt a child in Indiana. See Ind. Code § 31-19-9-1. However, consent to
adoption is not required from:
(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
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(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).
[11] Father argues that Stepfather did not prove that he knowingly failed to provide
for the care and support of S.R. when able to do so for a period of at least one
year. Specifically, Father argues that the probate court clearly erred in using
“the fact that Father earned income as its sole basis for determining that Father
had the ability to pay some support while incarcerated.” 2 Appellant’s Br. at 9.
He maintains that “no evidence . . . indicate[s] where and how Father spent the
$0.65 per hour that he earned while in prison.” Id. at 11.
[12] However, we do not address Father’s argument regarding his ability or failure
to pay child support for S.R. while incarcerated because we affirm the trial
court’s judgment based on Father’s failure to communicate significantly with
S.R. when able to do so.
2
Father served in the United States Navy and was honorably discharged in 1997. After his discharge from
the Navy, he was entitled to receive monthly VA benefits in the amount of $1,298, and S.R. received an
additional monthly benefit of $1,228. Father’s and S.R.’s eligibility to receive full VA benefits ended shortly
after his criminal convictions, at which point, he became entitled to only 10% of the original payment and
S.R. became entitled to nothing. However, he continued to receive monthly payments after his eligibility
ended and ultimately received over $7,000 in overpayments. This money was deposited into an account held
jointly by Mother and Father and was spent by Mother on household and child-related expenses. The VA
notified Father that he would have to repay the funds and that it would apply his monthly entitlement to the
overpayment until it was repaid. Father argues that his “only possible avenue to provide meaningful support
to [S.R.] during Father’s incarceration was through VA benefits” and that “due to Mother spending the VA
benefits,” S.R. no longer received the $1,200 she would have received had Father not been required to repay
the overpaid amount. Appellant’s Br. at 12-13. Essentially, he argues that his failure to support S.R. is
Mother’s fault, not his. This argument has no merit. Father’s own criminal conduct was what led to S.R.’s
ineligibility to apportionment benefits, and his delay in notifying the VA of his conviction and incarceration
led to the overpayment.
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[13] At the hearing on Stepfather’s petition, Father admitted that S.R. and Mother
lived in the same house in which the family lived prior to Father’s incarceration
and Father’s and Mother’s divorce. He admitted that he knew “how to send
stuff there.” Tr. p. 43. He also acknowledged that his sentencing order
permitted him to communicate with S.R. through Mother and Stepfather and
that he had their address. However, the record does not reveal any evidence
that Father communicated with S.R. during his incarceration.
[14] Indiana Code section 31-19-9-8(a) 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 B.R., 877 N.E.2d 217,
218 (Ind. Ct. App. 2007). Moreover, 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). Because no evidence that Father has sent S.R. any
gifts or correspondence or otherwise communicated significantly with her was
presented, we conclude that the trial court did not clearly err in finding that
Father’s consent was not required in granting Stepfather’s petition to adopt S.R.
See In re Adoption of T.W., 859 N.E.2d 1215 (Ind. Ct. App. 2006) (trial court did
not clearly err by concluding that incarcerated father failed, without justifiable
cause, to communicate significantly with his children; record did not
demonstrate that father actually tried to write to the children or telephone them,
and father's argument that his overtures would have been impeded was
speculative); Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct. App. 1994)
(occasional letter or card sent to child from incarcerated parent together with
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one telephone conversation with child was “token communication” that trial
court properly disregarded when determining that parent's consent to adoption
was not required).
[15] Affirmed.
May, J., and Robb, J., concur.
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