In the Matter of the Adoption of B.A.M.: G.M., Jr. v. D.E. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 03 2017, 8:32 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 APPELLEE
Timothy P. Broden Cynthia Phillips Smith
Lafayette, Indiana Lafayette, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of February 3, 2017
B.A.M.: Court of Appeals Case No.
79A02-1608-AD-1840
G.M., Jr.,
Appeal from the Tippecanoe
Appellant-Respondent, Circuit Court
v. The Honorable Thomas H. Busch,
Judge
D.E., Trial Court Cause No.
79C01-1412-AD-63
Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 1 of 7
 Case Summary
[1] G.M., Jr. (Father) appeals the trial court’s order granting the petition of D.E.

(Stepfather) to adopt Father’s daughter with J.E. (Mother). Father argues that

Stepfather failed to prove by clear and convincing evidence that his consent to

the adoption was not required because for a period of at least one year Father

failed without justifiable cause to communicate significantly with his daughter

when able to do so. Concluding that Stepfather met this burden, we affirm the

trial court.

Facts and Procedural History
[2] Father and Mother have one child together, B.A.M. (Child), who was born

September 15, 2003. Because Father and Mother were not married at the time

of Child’s birth, Father executed a paternity affidavit at the hospital. Mother

and Father lived together until 2005, when Father moved out. Mother sought

child support, and a child-support order was entered in August 2005. Mother

and Father tried reconciling a couple of times but broke up for good in the

spring of 2006.

[3] Father maintained frequent parenting time with Child until 2007, at which

point he saw her “[o]nce a month if that.” Tr. p. 20. In 2008, Father moved to

Tennessee and was in a car wreck; he did not see Child “at all” that year. Id.

In 2009, Father moved in with his parents in Florida to convalesce; he did not

see Child that year either. Father returned to Indiana in 2010 and saw Child

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 2 of 7
 three times that summer. But then Father did not see Child in 2011 or 2012.1

Id. at 23-24. After 2012, Father’s only visitation with Child occurred in

connection with his parents’ annual trips to Indiana during the summer. That

is, in July 2013, Father’s parents asked to see Child, and she spent eight hours

with them. Then, in July 2014, Father’s parents again asked to see Child, and

she spent six hours with them. The requests in 2013 and 2014 were not from

Father, but he was present during the visits.2

[4] Through the years, Father occasionally called Mother to check up on Child.

He never asked about Child’s grades, and since 2011 he has not asked about

Child’s health. Father sent Child a Christmas gift in 2012 and 2013 and called

Child on her birthday, although he did not call her in 2014.

[5] In the meantime, Mother and Stepfather started dating in 2012 and got married

in May 2014. Stepfather then filed a petition to adopt Child on December 5,

2014. In February 2016, the trial court held a hearing to determine whether

Father’s consent to adopt Child was required. The trial court issued findings of

fact and conclusions that Father’s consent to the adoption was not required

because for a period of at least one year he failed without justifiable cause to

communicate significantly with Child when able to do so. Appellant’s App.

1
Father moved back to Florida from August 2011 to June 2013. Tr. p. 62.
2
Mother claimed that the visits occurred in July 2012 and July 2013, see Tr. p. 53, but the trial court found
that they actually occurred in July 2013 and July 2014. In any event, the court found that the dates were
“immaterial, as [Father’s] contact has not been of a substantial nature, nor instituted by him, but by his
parents.” Appellant’s App. Vol. II p. 14.

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 3 of 7
 Vol. II p. 14. The court then held a best-interests hearing, following which it

granted Stepfather’s petition to adopt Child. Id. at 10-11.

Discussion and Decision
[6] Father contends that the trial court erred in granting Stepfather’s petition to

adopt Child. Our standard of review in adoption cases is well established.

When reviewing adoption proceedings, we presume that the trial court’s

decision is correct, and the appellant bears the burden of rebutting this

presumption. In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014). We

give considerable deference to the trial court’s decision in family-law matters,

because we recognize that the trial judge is in the best position to judge the

facts, determine witness credibility, “get a feel for the family dynamics,” and

“get a sense of the parents and their relationship with their children.” Id. at

973. We will not disturb the trial court’s ruling unless the evidence leads to but

one conclusion and the trial judge reached an opposite conclusion. Id.

[7] When, as in this case, the trial court has made findings of fact and conclusions,

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. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). 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. Id. We neither reweigh the evidence nor assess the credibility of

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 4 of 7
 witnesses, and we examine the evidence most favorable to the trial court’s

decision. O.R., 16 N.E.3d at 973.

[8] Generally, a petition to adopt a minor child may be granted only if written

consent has been provided by the biological parents. See Ind. Code § 31-19-9-1.

However, written consent is not required from, among others, the following:

(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 . . . .

Ind. Code § 31-19-9-8(a). The petitioner for adoption must prove this statutory

criterion by clear and convincing evidence. See T.L., 4 N.E.3d at 662 n.3.

Father claims Stepfather failed to meet this burden.3

[9] The test for communication is not whether the noncustodial parent had no

communication with the child, but whether he failed without justifiable cause to

have significant communication when able to do so. In re Adoption of S.W., 979

N.E.2d 633, 640 (Ind. Ct. App. 2012). The purpose of this statutory provision

is to foster and maintain communication between noncustodial parents and

3
The trial court also found that for a period of at least one year Father knowingly failed to provide for
the care and support of Child when able to do so as required by law or judicial decree. See Ind. Code §
31-19-9-8(a)(2)(B). Because “the statute is written in the disjunctive such that the existence of any one
of the circumstances provides sufficient ground to dispense with consent,” O.R., 16 N.E.3d at 973, we
do not address this provision.

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 5 of 7
 their children, not to provide a means for parents to maintain “just enough

contact” to thwart potential adoptive parents’ efforts to provide a settled

environment to the child. Id. Accordingly, the noncustodial parent must make

more than a “token effort” to communicate with the child. In re Adoption of

C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006). This is a fact-sensitive

determination. Id. at 271.

[10] Father concedes that he had a lengthy period of no communication with Child.

That is, Father did not see Child in 2008, 2009, 2011, and 2012. Highlighting

that he saw Child for several hours in July 2013 and July 2014, Father argues

that “it would defy logic” to ignore this “lengthy period of significant

communication” with Child that preceded the filing of Stepfather’s adoption

petition. Appellant’s Br. p. 7 (citing E.W. v. J.W., 20 N.E.3d 889, 896 (Ind. Ct.

App. 2014), trans. denied). We, however, do not believe that Father’s one visit

with Child in July 2013 (eight hours) and one visit with Child in July 2014 (six

hours)—both arranged by his parents—constitutes a lengthy period of

significant communication. This is so even considering that Father sent Child a

Christmas gift in 2013 (but not in 2014) and called her on her birthday in 2013

(but not in 2014). As the trial court found:

[Father] only had contact with [Child] when his parents would
travel to Indiana to visit relatives. He never initiated any specific
plan as to how he would have parenting time with his daughter.
The contact he had in this matter is not enough to stave off
termination of his parental rights.

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 6 of 7
 Appellant’s App. Vol. II p. 15. Accordingly, we conclude that Stepfather

proved by clear and convincing evidence that for a period of at least one year

Father failed without justifiable cause to communicate significantly with Child

when able to do so.4 We therefore affirm the trial court.

[11] Affirmed.

Bradford, J., and Brown, J., concur.

4
Citing In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind. Ct. App. 1990), Father points out that one
significant communication (provided that this single communication does not amount to a token effort to
contact the child) in a year can be enough to stave off termination of parental rights. However, we find that
Father’s one visit in July 2013 and one visit July 2014, both arranged by his parents, are token efforts.

Court of Appeals of Indiana | Memorandum Decision 79A02-1608-AD-1840 | February 3, 2017 Page 7 of 7