MEMORANDUM DECISION
Nov 17 2015, 8:29 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 ATTORNEYS FOR APPELLEE
Matthew C. Maples Christine Riesner Bond
Hocker & Associates, LLC McNeely Stephenson
Indianapolis, Indiana Shelbyville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Adoption of C.F., November 17, 2015
Court of Appeals Case No.
J.F., 49A04-1505-AD-408
Appellant-Respondent, Appeal from the Marion Superior
Court
v. The Honorable Evan D.
Goodman, Judge
A.R., Trial Court Cause No.
Appellee-Petitioner. 49D08-1405-AD-15328
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 1 of 18
Statement of the Case
[1] J.F. (“Father”) appeals the trial court’s order granting A.R.’s petition to adopt
Father’s minor child C.F. (“Child”). Father raises two dispositive issues for our
review:
1. Whether the trial court erred when it concluded that
Father knowingly had failed to provide for the care and
support of Child as required by judicial decree for a period
of at least one year when he was able to do so.
2. Whether the trial court erred when it concluded that the
adoption is in Child’s best interests.
[2] We affirm.
Facts and Procedural History
[3] Father and L.R. (“Mother”) were married, and Child was born in January
2011. When Father and Mother divorced on January 22, 2013, the trial court
gave Mother custody of Child and ordered Father to pay child support of $250
per week. Father was employed and earning approximately $40,000 per year at
that time. In early 2013, Father quit that job without first having secured other
employment. Thereafter, Father worked intermittently in sales positions and
delivering pizzas. The trial court explained the remaining facts and procedural
history as follows:
7. [Sometime in 2013,] Father was arrested and convicted of an
OWI. He was incarcerated from January 2014 through early
April 2014 due to that conviction.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 2 of 18
8. Even after his incarceration, [Father] admitted to continuing
to drink alcoholic beverages. He is not currently attending AA
meetings. He is not currently attending any other counseling for
substance abuse.
***
12. [Father] is currently dependent on his current significant
other for housing as well as all living expenses. She has also paid
for them to go on various vacations throughout 2013 and 2014,
some of which occurred during the traditional work week.
13. [Father] did not pay Mother any child support throughout
2013. [Father] did not provide any other support to Mother
during 2013 or 2014 before the filing of the Petition for Adoption,
in any form of clothes, toys, diapers, Christmas presents,
birthday gifts, or gift cards.
14. Mother testified that when she asked [Father] for
information about his employer, he refused and stated he did not
want her to garnish his wages for child support.
15. During 2013, [Father] had parenting time provision [sic]
pursuant to the divorce decree that was unsupervised, yet failed
to exercise it.
16. While he was incarcerated, [Father] sent three letters to the
minor child, one (1) of which was received by Mother and read
to the minor child due to the child’s young age.
17. In April of 2014, [Father] contacted Mother to see the minor
child a couple of weeks after he was released from jail. [Father]
requested to see the child that day. Since it was a weekday,
Mother told him he could not see him that day. During that
same conversation, Mother also informed [Father] of her new
husband’s intent to adopt the minor child and requested his
consent.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 3 of 18
18. [Father] then retained counsel and filed several motions
regarding parenting time and child support in Marion County
Superior Court Number 5. Mother filed a motion request[ing]
those matters be stayed due to the pending adoption proceedings.
Said motion was denied.
19. Mother and [Father] then agreed, through the Court-ordered
Access Program, for [Father] to have supervised visits every
other weekend one hour on Saturday and one hour on Sunday.
Prior to each visitation weekend, [Father] was to submit to drug
and alcohol testing.
20. Out of the 24 possible visits [Father] could have exercised in
2014 prior to the hearing on this adoption, [Father] only
exercised 7. Each visit coincided in time with when a hearing
was scheduled in either the Marion County Probate Court or
Marion County Superior Court Number 5.
21. Mother testified that [A.R.] is the only father known to the
minor child, and that [sic] the minor child does not remember
[Father] due to his young age at the time of the dissolution.
22. [Father] paid a total of $160.00 to Mother in child support
payments in 2014, all of which occurred after the petition for
adoption was filed in this court. As of the date of the adoption
hearing, [Father] had a child support arrearage of $18,600.00.
23. In May of 2014, [Father] withdrew $6,000 from his 401(k)
account from a prior employer. None of that money was given
to Mother in [the] form of child support.
24. The petition for adoption was filed on May 7, 2014[,] by
[A.R.] [A.R.] and Mother were married on February 14, 2014[,]
and have resided together with the minor child since January 31,
2013.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 4 of 18
25. [A.R.] and the minor child have a close relationship. Every
morning when the child wakes up, [A.R.] and child make
breakfast together. He helps the child get ready for daycare and
oftentimes takes and picks up the child from daycare. He helps
the child practice soccer. He attends all of the child’s doctors’
appointments. He discusses the child’s development and status
with his teachers. [A.R.]’s family is actively involved in the
child’s life.
26. Mother has consented to this adoption, and said consent is
properly filed with the Court.
Appellee’s App. at 7-8.1 After A.R. filed his adoption petition, Father filed a
motion contesting the adoption. Following a final hearing on the adoption
petition on December 23, 2014, the trial court granted A.R.’s adoption petition.
In its order, the trial court concluded in relevant part as follows:
Consent of the Natural Father
32. Indiana Code [Section] 31-19-9-8(a)(2) is the controlling
statute in this case as to whether [Father’s] consent is required for
[the] petition to adopt the minor child.
33. I.C. [§] 31-19-9-8(a)(2) states:
(a) Consent to adoption, which may be required under section 1
of this chapter, is not required from any of the following:
***
1
Appellant’s appendix is not paginated.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 5 of 18
(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.
34. The provisions of Indiana Code [Section] 31-19-9-8 are
written in [the] disjunctive providing independent grounds for
dispensing with parental consent. In re the Adoption of M.L., 973
N.E.2d 1216 (Ind. Ct. App. 2012).
35. In this case, there is sufficient evidence to determine that
[Father’s] consent is not required by applying either subsection
(2)(A) or subsection (2)(B).
Communication
36. With regard to subsection (A) supra, the evidence presented
is sufficient to conclude that [Father] failed to have significant
contact with the minor child for one (1) year prior to the petition
for adoption being filed.
37. [Father] lived in the greater Indianapolis area from the date
of the divorce decree, January 22, 2013, until the filing of the
petition for adoption in May of 2014.
38. During that seventeen (17)[-]month time period, [Father]
only saw the minor child five (5) times, all of which occurred
during the first couple of months in 2013. The evidence
presented was that all of those visits were prompted by Mother,
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 6 of 18
at which time she coordinated the visits and provided [Father]
with all the supplies he would need to see his child, including a
pack and play, membership to the Children’s Museum, diapers,
and even food. Once Mother ceased facilitating the visits, the
visits stopped.
39. The last time [Father] saw the minor child prior to the
petition for adoption being filed was in April of 2013. He visited
Mother’s home for one (1) hour. During that time period,
Mother discovered Father smelled of alcohol. He spilled a glass
of water.
40. During the remainder of 2013, [Father] did not see his minor
child despite the fact that he lived in central Indiana and had the
ability to do so. During that time period, he had an unsupervised
parenting time schedule through the divorce, yet failed to
exercise any parenting time.
41. From January 2014 through the beginning of April of 2014,
[Father] was incarcerated after being convicted of an OWI.
[Father’s] argument that he was unable to see his child due to his
incarceration, and therefore this time period should not be
considered, is unfounded. [Father’s] incarceration was a result of
his own actions, and therefore any lack of communication during
that time should be considered for purposes of determining
consent under the statute. In re the Adoption of M.S., 10 N.E.3d
1272 (Ind. Ct. App. 2014).
42. After the petition for adoption was filed, [Father], through
counsel, filed several motions in the divorce court resulting in
him participating in supervised parenting time during the
pendency of this adoption action. Any actions made after the
filing of a petition for adoption are irrelevant to a determination
of whether the parent failed to significantly communicate with
the child for any one-year period. In re the Adoption of S.W., 979
N.E.2d 633 (Ind. Ct. App. 2012).
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 7 of 18
43. The purpose of the statute is to promote and maintain
communication between the non-custodial parent and the child.
It is not a means for a parent to maintain just enough contact to
thwart a potential adoption. In re the Adoption of S.W., 979
N.E.2d 633 (Ind. Ct. App. 2012). In order for consent to not be
required, petitioner does not have to prove that no
communication occurred, just that no significant communication
occurred. In re the Adoption of S.W., 979 N.E.2d 633 (Ind. Ct.
App. 2012).
44. The evidence in this case is sufficient to conclude that
[Father] failed to have significant contact with the minor child for
a one[-]year period of time so that his consent is not required for
this adoption.
Support
45. [Father’s] consent can also be dispensed [with] in accordance
with section (2)(B) of the statute.
46. The evidence presented showed that at the time of the
parties’ divorce, [Father] was making $40,000 per year. The
divorce decree ordered [Father] to pay $250 per week in child
support.
4[7]. [Father] did not pay any child support during the calendar
year 2013. He testified that he had several jobs that he
voluntarily quit without having a new job secured. Mother
testified that when she asked for the information regarding one of
his employers, he refused to give it to her because she might try
to garnish his wages for child support.
48. From January 2014 through the beginning of April of 2014,
[Father] was incarcerated after being convicted of an OWI.
[Father]’s argument that he was unable to pay child support due
to his incarceration, and therefore this time period should not be
considered, is unfounded. [Father]’s incarceration was a result of
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 8 of 18
his own actions, and therefore any lack of payment of support
during that time should be considered for purposes of
determining consent under the statute. In re Adoption of T.L., 4
N.E.3d 658 (Ind. 2014).
49. He has paid Mother a total of $160.00 from January 2013
until the date of the hearing on December 23, 2014, all of which
was paid after the filing of the petition for adoption. He has not
provided any other support to the minor child during that time in
the form of clothes, toys, gift cards, or Christmas presents.
[Father]’s child support arrearage as of the date of the hearing
was $18,600.00.
50. In May of 2014, he withdrew $6,000.00 from his 401(k) from
his previous employment. None of that money was given to
Mother in the form of child support.
51. [Father] has been living with his girlfriend since August of
2013. She has paid for them to go on various vacations
throughout 2013 and 2014, some of which occurred during the
traditional work week.
52. This constitutes sufficient evidence that [Father] had the
ability to obtain employment and pay child support, but
voluntarily failed to do so. See In re the Adoption of J.L.J., 4
N.E.3d 1189 (Ind. Ct. App. 2014).
53. The monies paid by [Father] since the filing of the petition
for adoption amount to “token payments.” The Indiana Court of
Appeals has held that to allow token payments to thwart the
ability of a willing parent to adopt “would permit an unworthy
parent, in complete disregard of his obligation to his child, to
prevent an adoption which might be in the best interest of the
child . . . such strict construction would lead to absurd
consequences and make the statute meaningless and
ineffective.[”] In re the Adoption of M.S., 10 N.E.3d 1272 (Ind. Ct.
App. 2014).
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 9 of 18
Best Interest of the Child
54. There is sufficient evidence to support a finding that the
granting of this adoption is in the best interest of the minor child.
55. [A.R.] has met the statutory requirements necessary for the
granting of this adoption.
56. [A.R.] has been the only father the minor child has known
for the past two (2) years. [A.R.] and the minor child have an
established bond, and [A.R.] is greatly involved in the child’s
day-to-day activities including soccer, school, cooking, and
shopping. [A.R.] has financially supported the child and
provided health insurance for the child for that period of time as
well.
57. [A.R.]’s family is equally bonded to the minor child acting as
grandparents and aunts and uncles.
58. [Father] and Mother were divorced when the child was just 1
1/2 years old. Since the filing of the petition for adoption,
[Father] has seen the minor child for a total of 7 hours. The
minor child does not know [Father], and there is no established
bond between [Father] and the minor child.
59. [Father] has not established that he has the ability to provide
a suitable environment for the child. He was incarcerated for a
felony OWI, which was later reduced to a misdemeanor.
Despite that, he continues to drink alcoholic beverages and is not
attending AA or any other substance abuse counseling.
60. [Father] is not currently employed and has been employed
sporadically since the dissolution due to his voluntarily leaving
positions without new positions becoming available.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 10 of 18
61. [Father] is currently dependent on his current significant
other.
62. Despite agreeing to supervised visitation, [Father] has failed
to attend the majority of the possible visits during the pendency
of this adoption action.
63. [Father] made no effort to communicate with the child or
financially support the child until after he learned of petitioner’s
intention to file this step-parent adoption action. It has now been
a total of two (2) years of insignificant contact.
Appellee’s App. at 9-13. Thus, the trial court concluded that Father had not
“seen, supported or communicated with [Child] for over a one (1)[-] year
period” and Father’s consent was not required under either prong of Indiana
Code Section 31-19-9-8(a)(2). Id. at 13. The trial court also concluded that
adoption was in Child’s best interests, and the court granted A.R.’s adoption
petition. This appeal ensued.
Discussion and Decision
Standard of Review
“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.” Rust v. Lawson, 714 N.E.2d 769, 771 (Ind.
Ct. App. 1999). We presume the trial court’s decision is correct,
and we consider the evidence in the light most favorable to the
decision. Id. at 771-72.
When, as in this case, the trial court has made findings of fact
and conclusions of law, we apply a two-tiered standard of review:
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 11 of 18
“we must first determine whether the evidence supports the
findings and second, whether the findings support the judgment.”
[White v. Silbernagel (]In re Adoption of T.W., 859 N.E.2d 1215,
1217 (Ind. Ct. App. 2006); see also 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 ]T.W., 859 N.E.2d
at 1217.
In re T.L., 4 N.E.3d at 662.
Issue One: Care and Support of Child
[4] Father first contends that the trial court erred when it found that he had failed
to provide for the care and support of Child for one year when able to do so.
Indiana Code Section 31-19-9-8(a)(2) provides 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:
(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.
The burden to prove these statutory criteria by clear and convincing evidence
rests squarely upon the petitioner seeking to adopt. Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 12 of 18
[5] Here, the trial court found that Father’s consent was not required under either
Indiana Code Section 31-19-9-8(a)(2)(A) or -8(a)(2)(B). Because the statute is
written in the disjunctive, however, we need only address Father’s contention
that the trial court erred when it found that he had knowingly failed to provide
for the care and support of Child when able to do so as required by the
dissolution decree.
[6] The time period relevant to a determination under Indiana Code Section 31-19-
9-8(a)(2)(B) is not limited to either the year preceding the hearing or the year
preceding the petition for adoption but, rather, is any year in which the parent
had an obligation and the ability to provide support, but failed to do so. R.S.P.
v. S.S. (In re Adoption of J.T.A.), 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013),
trans. denied. Further, in In re M.S., 10 N.E.3d at 1280, we observed as follows:
“A petitioner for adoption must show that the non-custodial
parent had the ability to make the payments which he failed to
make. This ability cannot be adequately shown by proof of
income standing alone. To determine that ability, it is necessary
to consider the totality of the circumstances. In addition to
income, it is necessary to consider whether that income is steady
or sporadic and what the non-custodial parent’s necessary and
reasonable expenses were during the period in question.”
(Quoting Bruick v. Augustyniak (In re Adoption of Augustyniak), 508 N.E.2d 1307,
1308 (Ind. Ct. App. 1987), trans. denied).
[7] Father’s child support obligation began on January 22, 2013, the date of the
dissolution decree. Father does not challenge the trial court’s finding that he
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 13 of 18
“did not pay any child support during the calendar year 2013.” Appellee’s
App. at 11. And Father concedes that he did not pay any child support in 2014
until April 30. Thus, Father did not pay child support for more than one year
beginning January 22, 2013. But Father maintains that, after the divorce, he
“fell on hard times financially” because he was unable “to find stable
employment” and was incarcerated for approximately three months in early
2014. Appellant’s Br. at 8. Father asserts that he was not able to pay child
support during that time and the trial court erred when it found that he
knowingly failed to support Child.2
[8] Father’s contention amounts to a request that we reweigh the evidence, which
we will not do. Father does not contest the trial court’s findings that he: has
had periods of unemployment solely because he voluntarily quit several jobs
without first securing other employment; moved in with his girlfriend in August
2013 and is dependent on her for housing and living expenses; and withdrew
$6,000 from a 401(k) account in May 2014, but used none of that money for
child support. Father has not demonstrated that he was involuntarily
unemployed at any time from January 22, 2013, until his incarceration in
January 2014. And given that he withdrew $6,000 from his 401(k) account in
May 2014, Father has not demonstrated that he could not have paid child
support during periods of unemployment or during his incarceration. See, e.g.,
2
We note that Father does not direct us to anything in the record showing that he moved the dissolution
court to modify his child support obligation at any time.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 14 of 18
In re T.L., 4 N.E.3d at 663 (adopting the “non-imputation” approach to
determine the child support obligation of incarcerated parents which requires
that child support orders reflect the “real financial capacity of a jailed parent.”).
The trial court did not err when it concluded that Father knowingly failed to
pay child support for one year and that Father’s consent to the adoption was
unnecessary.
Issue Two: Best Interests of Child
[9] Father next contends that the trial court erred when it concluded that adoption
is in Child’s best interests. The primary concern in every adoption proceeding
is the best interests of the child. In re M.S., 10 N.E.3d at 1281. Even if, as here,
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. N.R. v. K.G. (In re Adoption of O.R.), 16 N.E.3d 965, 974 (Ind. 2014).
The adoption statute does not provide guidance for which factors
to consider when determining the best interests of a child in an
adoption proceeding, but we have noted that there are strong
similarities between the adoption statute and the termination of
parental rights statute in this respect. See In re [M.L.], 973 N.E.2d
[at] 1224 . . . (holding that the adoption statutes and the
termination statutes provide similar balances between parental
rights and the best interests of the children; also holding that
termination cases provide “useful guidance as to what makes a
parent ‘unfit’”). In termination cases, we have held that the trial
court is required to look to the totality of the evidence to
determine the best interests of a child. In re I.A., 903 N.E.2d 146,
155 (Ind. Ct. App. 2009). Relevant factors include, among
others, a parent’s historical and current inability to provide a
suitable environment for the child, In re J.C., 994 N.E.2d 278, 290
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 15 of 18
(Ind. Ct. App. 2013); the recommendations of the child’s case
worker or guardian ad litem; and the child’s need for permanence
and stability, see A.J. v. Marion Cnty. Office of Family and Children,
881 N.E.2d 706, 718 (Ind. Ct. App. 2008).
In re M.S., 10 N.E.3d at 1281-82.
[10] Again, in concluding that adoption is in Child’s best interests, the trial court
concluded as follows:
56. [A.R.] has been the only father the minor child has known
for the past two (2) years. [A.R.] and the minor child have an
established bond, and Petitioner is greatly involved in the child’s
day-to-day activities including soccer, school, cooking, and
shopping. Petitioner has financially supported the child and
provided health insurance for the child for that period of time as
well.
57. Petitioner’s family is equally bonded to the minor child
acting as grandparents and aunts and uncles.
58. [Father] and Mother were divorced when the child was just 1
1/2 years old. Since the filing of the petition for adoption,
[Father] has seen the minor child for a total of 7 hours. The
minor child does not know [Father], and there is no established
bond between [Father] and the minor child.
59. [Father] has not established that he has the ability to provide
a suitable environment for the child. He was incarcerated for a
felony OWI, which was later reduced to a misdemeanor.
Despite that, he continues to drink alcoholic beverages and is not
attending AA or any other substance abuse counseling.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 16 of 18
60. [Father] is not currently employed and has been employed
sporadically since the dissolution due to his voluntarily leaving
positions without new positions becoming available.
61. [Father] is currently dependent on his current significant
other.
62. Despite agreeing to supervised visitation, [Father] has failed
to attend the majority of the possible visits during the pendency
of this adoption action.
63. [Father] made no effort to communicate with the child or
financially support the child until after he learned of petitioner’s
intention to file this step-parent adoption action. It has now been
a total of two (2) years of insignificant contact.
Appellee’s App. at 12-13.
[11] On appeal, Father asserts that his failure to maintain consistent visitation with
Child after the divorce was due to the loss of his driver’s license and that he
failed to pay child support because of his “financial hard times.” Appellant’s
Br. at 9. Father points out that “he wrote his son letters” while he was
incarcerated. Id. And Father maintains that the trial court should have given
more weight to the report prepared by Michelle McGrotty, who supervised
seven one-hour visitations between Father and Child from September 2014
through November 2014. In particular, Father points out that McGrotty
concluded that Father “continues to nurture a bond with his child, who climbs
onto his lap at the start of every visit, remaining there until it’s time to play on
the floor or go home.” Appellant’s App. at 20. But, again, Father’s contentions
on appeal amount to a request that we reweigh the evidence, which we will not
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 17 of 18
do. The trial court did not err when it concluded that adoption is in Child’s
best interests.
[12] Affirmed.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 18 of 18