Sep 02 2015, 8:45 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jennifer A. Joas Leanna Weissmann
Madison, Indiana Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of E.A., September 2, 2015
M.A., Court of Appeals Case No.
78A01-1504-AD-153
Appellant-Respondent,
Appeal from the Switzerland
v. Circuit Court
The Honorable W. Gregory Coy,
D.B., Judge
Trial Court Cause No.
Appellee-Petitioner.
78C01-1310-AD-4
Brown, Judge.
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[1] M.A. (“Appellant”), the biological father of E.A., appeals the trial court’s
decree granting the petition for adoption of E.A. by D.B. (“Adoptive Father”).
Appellant raises one issue which we revise and restate as whether the court
erred in granting Adoptive Father’s petition for adoption over the objection of
Appellant. We affirm.
Facts and Procedural History
[2] On February 5, 2009, E.A. was born to R.B., the mother (“Mother”), and
Appellant. Appellant had been arrested for burglary previous to the birth, but
he bonded out and was present at E.A.’s birth and signed a paternity affidavit
pursuant to Ind. Code § 16-37-2-2.1. Following the birth, Appellant, Mother,
and E.A. lived with Appellant’s mother. On March 16, 2009, when E.A. was
six weeks old, Appellant was re-arrested on burglary charges. Appellant has
two other children who met E.A. once, when E.A. was three months old.
[3] During the pendency of Appellant’s burglary case, he was held at the Jefferson
County Jail. While there, Mother kept in contact with him, and the two had an
understanding that they would remain in a relationship. On July 21, 2010,
Appellant was sentenced to fifteen years on the burglary conviction and
transferred to the Department of Correction (the “DOC”), and contact between
then one-year-old E.A. and Appellant waned. Appellant “may have sent a
birthday card the first birthday that [E.A.] had after [Appellant] went to
prison,” but no further contact was had. Transcript at 21. Mother stopped
sending Appellant pictures of E.A. after E.A.’s second birthday. The last time
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Appellant saw E.A. was immediately after he was sentenced on July 21, 2010
when the court arranged for a visit.
[4] Mother started dating Adoptive Father in the fall of 2010. On April 13, 2011,
Mother married Adoptive Father.
[5] On October 17, 2013, Adoptive Father filed a petition for adoption of E.A.
alleging that Appellant: (A) has abandoned E.A.; (B) has failed to contact or
support E.A. for at least one year; and (C) has not established paternity or has
failed to register with the putative father registry. On November 14, 2013,
Appellant filed a Verified Motion to Contest Adoption, as well as a Petition to
Establish Paternity and Provide Support.
[6] On March 31, 2015, the court held a hearing on Adoptive Father’s petition.
Adoptive Father testified that he has lived with E.A., who at that point was six
years old, since 2010, that they have a father-son relationship and E.A. calls
him “Dad,” and that he is the only father E.A. has ever known. Id. at 9. He
stated that during his time living with E.A., there had not been any contact
between Appellant and E.A. When asked whether Appellant had been
hindered in contacting E.A., Adoptive Father testified that they kept the
address Appellant had until almost 2012, and that no mail had been sent to
E.A. by Appellant at that address: He further noted that “when we got the
papers from the Court after we filed this, that [E.A.] was about to have a
birthday, Christmas and he knew the address because he sent us the paperwork.
He still didn’t send [E.A.] a birthday card or Christmas card or letter.” Id. at
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10. He also testified that when the couple moved from the address Appellant
had on file, they had their mail to that address forwarded to their new
residence. He stated that he and Mother have another child and that E.A. helps
to take care of her and “loves her to death . . . .” Id. at 13.
[7] Mother testified that Appellant wrote her “a couple of letters” after sending the
birthday card for E.A.’s second birthday, but she lost contact with him during
that year. Id. at 21. She indicated that at the time the petition for adoption was
filed Appellant had not filed anything to establish paternity, and she never
received any monetary support from him, nor from any of Appellant’s family
on his behalf. She testified that she had had contact with Appellant’s sister five
or six times but “not in the past two years . . . .” Id. at 24. Mother testified
that, after Appellant was arrested, on multiple occasions she attempted to make
arrangements to visit with Appellant’s mother with E.A., but Appellant’s
mother “always had a reason not to.” Id. at 32.
[8] On cross-examination, Mother indicated that she changed her cell phone
number “numerous times,” the first time being “shortly after” Appellant was
incarcerated, and she did not provide Appellant with her new phone number.
Id. at 26. She acknowledged that she “did nothing really to encourage
[Appellant] to continue contacting” her. Id. at 27. She testified that Appellant’s
sister attempted to make contact with her at her place of employment at a
restaurant, but she avoided the sister by going into the kitchen. She indicated
that it was “fair to say” she avoided telephone calls from Appellant’s family. Id.
at 30. She also testified that Appellant’s sister had her current phone number,
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which she has not changed since 2012, but that she has not received calls from
the sister.
[9] Appellant testified that he had a substantial criminal history and that he had
previous prison sentences for crimes of burglary and forgery. He testified that
he was currently serving his burglary sentence through parole and probation,
that he had been out of prison for two months, and that he was living with his
sister. He stated that prior to his burglary conviction he had been out of prison
for eighteen months, that prior to that he had been out for nine months, and
that of the past twelve years he has been out of prison for about two years. He
testified that he earned twelve dollars per month in prison and that he did not
send any of his earnings to support E.A. or his other children. He also testified
that fifteen percent of his earnings went into an inmate trust fund, that his other
earnings went to pay for items like soap and shampoo, and that when he was
released from prison he had $250 in his account. He further testified that at the
time of the hearing he was painting six days a week in Madison, Indiana.
[10] Appellant further testified that he stopped writing letters because he “had no
idea if [Mother] was getting the letters,” but he further acknowledged that he
did not receive any of his letters returned as undeliverable. Id. at 45. He stated
that he did not have an accurate telephone number to reach Mother, and that at
one point his sister gave him a new telephone number for Mother but that “by
the time [he] put it on [his] phone list, it took a couple of weeks to get it
activated, and it was gone. It didn’t work any more [sic].” Id. at 46. He
testified that he became aware of the current address of E.A. and Mother when
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he “received this hearing paper.” Id. He also explained that he “was also
concerned with [Mother] calling in and saying ‘hey, this guy won’t leave me
alone’. . . . so I just figured it was best to stop.” Id.
[11] Appellant was asked by the court whether he had been married to the mother of
his other children, and he replied that he had not been married to her but had
filed a paternity case in Madison. The court asked if he ever asked his “family
to hire a lawyer so that [he] could try to make some inroads with” E.A., and he
responded that his family “doesn’t have the means for an attorney.” Id. at 56.
[12] On April 7, 2015, the court issued its order on petition for adoption granting
Adoptive Father’s petition and denying Appellant’s verified motion to contest
adoption and petition to establish paternity. The court entered findings
consistent with the foregoing and stated the following, under the heading “Law
and Discussion”:
[Appellant] has an extensive criminal history, and has never
provided housing for [E.A.] for any time; he is only recently
released from incarceration, and while this Court believes him
when he says he is on the right track, he is only able to work with
his father at this time and will be unlikely to find meaningful
employment in the near future due to his lengthy criminal record.
Due to his incarceration and [Mother’s] decision not to take
[E.A.] to meet with him in prison, [Appellant] has not
communicated with [E.A.] for the majority of his life.
Individuals who are incarcerated due to criminal activity risk
being denied the chance to develop meaningful relationships with
their children. Castro v. State Office of Family and Children, 842
N.E.2d 367, 374 [(Ind. Ct. App. 2006), trans. denied]. There is no
guarantee that [Appellant] will be able, now or in the future, to
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support [E.A.] or be a fit parent. The Court finds that it would be
inappropriate to require a six year old child to wait and see how
his recently-released biological father will fare in life before
deciding whether to grant and [sic] adoption petition. In re
Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d
874, 883 [(Ind. Ct. App.] 2004).
As to the issue of lack of communication, the burden is on
[Adoptive Father] to prove that there has been a lack of contact
for the statutory period, and that the ability to communicate
during that period existed. In Re Adoption of Anonymous (1973),
158 Ind.[ ]App.238, 302 [N.E.2d] 507. Here, [Appellant] did not
have significant communication with [E.A.] from the time [E.A.]
was six weeks old. He did not file any legal proceedings to
establish paternity, parenting time, support or the like. His
family likewise failed to take any action on his behalf; and he nor
his family ever provided anything in the way of financial support
to [Mother] for [E.A.]; this court finds this to be equivalent to
abandonment or desertion. While [Mother] did not keep
[Appellant] or his family apprised of her address or phone
number, this Court finds that she did not knowingly conceal her
whereabouts, change her or [E.A.’s] name, or engage in some
other form of subterfuge to avoid all contact with [Appellant].
Therefore, the Court finds that [Adoptive Father] has proven by
clear and convincing evidence that [Appellant] failed to have
meaningful communication with [E.A.] without justifiable cause.
Finally, the evidence clearly and convincingly establishes that
[Appellant] was at the time of the filing of the petition and at the
time of the hearing unfit to be a parent and it is in the best
interests of [E.A.] for the Court to dispense with [Appellant’s]
consent in this case and grant [Adoptive Father’s] Petition to
Adopt.
Appellant’s Appendix at 32-33 (footnote omitted).
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Discussion
[13] The issue is whether the court erred in granting Adoptive Father’s petition for
adoption over the objection of Appellant. When reviewing the 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 T.L., 4 N.E.3d 658, 662 (Ind. 2014). We presume
the trial court’s decision is correct, and we consider the evidence in the light
most favorable to the decision. Id.
[14] When the trial court has made findings of fact and conclusions of law, 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.
Id.; see Ind. Trial Rule 52(A) (providing that where the trial court has made
findings of fact and conclusions of law, “the court on appeal shall not set aside
the findings or judgment unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses”).
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. In re Adoption of T.L., 4 N.E.3d at 662.
[15] Ind. Code § 31-19-9-1(a) provides in part that, “[e]xcept as otherwise provided
in this chapter, a petition to adopt . . . may be granted only if written consent to
adoption has been executed” by “(2) The mother of a child born out of wedlock
and the father of a child whose paternity has been established by . . . (B) a
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paternity affidavit executed under IC 16-37-2-2.1 . . . .” However, Ind. Code §
31-19-9-8 provides that:
(a) Consent to adoption, which may be required under section 1
of this chapter, is not required from any of the following:
(1) A parent or parents if the child is adjudged to have
been abandoned or deserted for at least six (6) months
immediately preceding the date of the filing of the petition
for adoption.
(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
(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.
*****
(11) A parent if:
(A) a petitioner for adoption proves by clear and
convincing evidence that the parent is unfit to be a
parent; and
(B) the best interests of the child sought to be
adopted would be served if the court dispensed with
the parent’s consent.
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*****
(b) 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.
[16] Here, the trial court found that all of the foregoing statutory provisions applied
to Appellant, and he challenges the court’s findings with respect to each
provision. “However, the statute is written in the disjunctive such that the
existence of any one of the circumstances provides sufficient ground to dispense
with consent.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Because
we conclude the trial court properly relied on at least one statutory provision—
namely, that for a period of at least one year Appellant failed without justifiable
cause to communicate significantly with E.A. although he was able to do so, see
Ind. Code § 31-19-9-8(a)(2)(A)—we do not address other provisions on which
the trial court may also have relied.
[17] Appellant argues that he was present at E.A.’s birth and welcomed
responsibility for the child by signing the paternity affidavit, distinguishing
Matter of Adoption of Herman, 406 N.E.2d 277, 279 (Ind. Ct. App. 1980), reh’g
denied. He notes that he exchanged multiple letters with Mother while at the
Jefferson County Jail and had a visit with E.A. immediately after his sentencing
in July 2010. He argues that he sent letters to Mother while at the DOC in
which he would write about E.A., as well as a birthday card to E.A. for his
second birthday, but in each instance he received no response. He asserts that
he tried to call Mother but she changed her phone number and did not provide
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him with her new number. He also argues that he asked his family to try and
contact Mother, and Mother admitted at the hearing that she avoided
Appellant’s sister when she attempted to contact Mother by phone or at
Mother’s place of employment. He further asserts that he was afraid to
continue with his attempts to contact Mother for fear of repercussions at the
DOC.
[18] Adoptive Father argues that Appellant admits he had very little communication
with E.A. after he was sent to the DOC. He contends that Appellant did not
support his argument regarding the possible repercussions for contacting
Mother, noting that she “did not accuse him of stalking,” “did not threaten him
with punitive action if he wrote” E.A., and “did not tell him to stop,” and
Appellant “could have persisted in exercising his legal rights.” Appellee’s Brief
at 7. Adoptive Father asserts that Appellant’s arguments regarding Mother’s
address are contravened by the record, which demonstrates that she kept the
mailing address known to Appellant until 2012 and then had her mail
forwarded to her new address. He further notes that there is no evidence of
mail being returned to father as undeliverable. Adoptive Father argues that
Appellant’s family knew where Mother worked, but Appellant never contacted
her there. Adoptive Father maintains that Appellant’s “lack of correspondence
with E.A. was a matter of choice not necessity,” and “[s]etting aside [his]
excuses, he had no legitimate reason to ignore E.A. for more than a year.” Id.
at 9.
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[19] In Lewis v. Roberts, 495 N.E.2d 810 (Ind. Ct. App. 1986), this court addressed
the level of communication necessary to qualify as significant for the purposes
of Ind. Code § 31-19-9-8(2)(A) where the objecting parent is incarcerated.1
Donald Lewis had been sentenced to eight years imprisonment on a conviction
of burglary in April of 1980, two years and eight months after daughter Erin
was born, in which Lewis, Erin, and Erin’s mother Doris Roberts saw each
other regularly and occasionally lived together. 495 N.E.2d at 811. During the
first nine months of Lewis’s incarceration, he wrote Erin weekly and saw her
every other week when Doris brought her to the prison. Id. By about the end
of 1980, however, Doris stopped visiting Lewis and stopped answering his
letters. Id. In the ensuing years, Lewis continued to write letters, writing letters
two or three times a year and sending a total of ten letters in 1982 and 1983. Id.
There was also evidence in the record that Lewis wrote four letters in 1984 prior
to his release in November of that year. Id. at 811-812. Also, during his
incarceration he sent Erin cards and gifts on her birthday, Christmas, and
occasionally at Easter, and these gifts continued through 1984 when Doris
1
The relevant statute in Lewis was a predecessor statute, Ind. Code § 31-3-1-6(g), which provided:
Consent to adoption is not required of:
(1) a parent or parents if the child is adjudged to have been abandoned or deserted for six (6)
months or more immediately preceding the date of the filing of the petition; or a parent of a
child in the custody of another person, if for a period of at least one (1) year he fails without
justifiable cause to communicate significantly with the child when able to do so or knowingly
fails to provide for the care and support of the child when able to do so as required by law or
judicial decree (when the parent or parents have made only token efforts to support or to
communicate with the child, the court may declare the child abandoned by the parent or
parents).
(Repealed by Pub. L. No. 1-1997, § 157).
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began to refuse presents from Lewis and his family. Id. at 811. Lewis also
“made continuing, unsuccessful attempts to see his daughter.” Id.
[20] This court observed that Petitioner Joseph Roberts was “required to prove not
only that Lewis failed to communicate, but also that he was able to do so,”
noting that “[e]fforts of a custodial parent to hamper or thwart communication
between parent and child are relevant in determining the ability to
communicate.” Id. at 812-813. Regarding Lewis’s status as an inmate, the
court noted the following:
Lewis’ communication with his daughter must be viewed in the
context of his incarceration. Imprisonment standing alone does
not establish statutory abandonment. Matter of Adoption of
Herman (1980), Ind. App., 406 N.E.2d 277. Neither should
confinement alone constitute justifiable reason for failing to
maintain significant communication with one’s child. Id.
Incarceration, however, unquestionably alters the means for
significant communication. Id. (Garrard, P.J., concurring).
What constitutes insignificant communication with a free parent
may be significant in relation to an incarcerated parent with
limited access to his child.
Id. at 813. The court reversed the trial court’s grant of Joseph’s petition for
adoption, concluding that Lewis’s “persistence in writing his daughter, sending
her cards and gifts and asking Ms. Roberts to bring Erin for visits” displayed “a
continuing interest in” her, and that accordingly Joseph failed to meet his
burden of proof. Id. In so holding, the court specifically noted that Lewis
“persisted for four years despite Ms. Roberts’ failure to answer his letters and
“expressed a desire to see Erin which Ms. Roberts refused to honor.” Id.
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[21] Here, although we empathize with the situation Appellant faced, we cannot say
that he displayed the requisite level of persistence demonstrating a continued
interest in E.A., and the evidence shows he chose to end his efforts to do so.
The record reveals that following his commitment to the DOC, he sent Mother
a few letters in which E.A. was mentioned and sent E.A. a birthday card on his
second birthday. Appellant did not receive any of the letters he sent returned as
undeliverable, and indeed Mother testified that she kept the address Appellant
had been sending mail to until 2012 and then had her mail forwarded to her
new address. Appellant did not send a communication for a period of over two
years prior to Adoptive Father’s filing of his petition for adoption. To the
extent Appellant suggests that he stopped writing letters due to fears of
repercussions at the DOC, we note that there was no evidence presented that
Mother asked him to stop writing or otherwise threatened him with punitive
action if he continued to write her. Also, although we find that contact between
Appellant’s sister and Mother to be of marginal relevance, we note that Mother
indicated that his sister had not phoned her since 2012, and Mother has had the
same phone number since that time.
[22] Based upon the record before us there was clear and convincing evidence before
the trial court that while E.A. was “in the custody of another person [and] for a
period of at least one (1) year [Appellant] . . . fail[ed] without justifiable cause
to communicate significantly with [E.A.] when able to do so.” Ind. Code § 31-
19-9-8(a)(2)(A). Appellant’s consent to the adoption of E.A. was therefore not
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required.2 See In re Adoption of O.R., 16 N.E.3d at 973-975 (holding that the
natural father, who was incarcerated, failed without justifiable cause to
communicate significantly with his daughter, and noting that he called his
daughter once, and that he did not attempt mail communication with her
despite his awareness that the adoptive parents were represented by counsel and
therefore he “could have initiated contact through their counsel or the court to
communicate with” her).
Conclusion
[23] For the foregoing reasons, we conclude that Appellant’s consent to the
adoption of E.A. by Adoptive Father was not required pursuant to Ind. Code §
31-19-9-8. We affirm the decree of adoption entered by the trial court.
[24] Affirmed.
Riley, J., and Friedlander, Sr. J., concur.
2
We note that “[e]ven if a court determines that a natural parent’s consent is not required for an adoption,
the court must still determine whether adoption is in the child’s best interests.” In re Adoption of O.R., 16
N.E.3d at 974 (citing Ind. Code. § 31-19-11-1(a)(1)). Here, the court stated in its order that it was in E.A.’s
best interests to grant Adoptive Father’s petition, and Appellant does not challenge the court’s determination.
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