In Re: The Adoption of D.J.B., B.W.B., and B.M.B., minor children, D.W.B. v. D.T. and E.T. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Dec 06 2019, 9:00 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Kristina L. Lynn Justin R. Wall
Lynn and Stein, P.C. Wall Legal Services
Wabash, Indiana Huntington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Adoption of D.J.B., December 6, 2019
B.W.B., and B.M.B., minor Court of Appeals Case No.
children, 19A-AD-1612
Appeal from the Huntington
Circuit Court
D.W.B.,
The Honorable Davin Smith,
Appellant-Respondent, Judge, and the Honorable Jeffrey
R. Heffelfinger, Judge Pro Tem
v.
Trial Court Cause Nos.
35C01-1811-AD-28
D.T. and E.T., 35C01-1811-AD-30
Appellees-Petitioners 35C01-1811-AD-31

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-1612 | December 6, 2019 Page 1 of 7
[1] D.W.B. (Father) appeals the trial court’s order granting the petition of E.T.

(Mother) and D.T. (Stepfather) for Stepfather to adopt the children of Father

and Mother. Specifically, Father argues that the trial court erroneously found

that his consent to the adoption was not required. Finding no error, we affirm.

Facts
[2] Mother and Father have three minor children: D.J.B., born in June 2006;

B.W.B., born in October 2007; and B.M.B., born in July 2009.1 After living

and raising the children together for several years, Mother and Father separated

sometime in 2012. Mother married Stepfather in March 2013. Sometime in

2013, in the paternity case, an order was entered requiring that Father’s visits be

supervised.

[3] From 2012 through 2016, Father did not see or communicate with the children

at all. Mother and Stepfather offered rides to Father and offered to pay for

Father and the children to go out to dinner together, but he failed to take them

up on the offers. He also failed to call, write letters or cards to, or Skype with

the children, nor did he send them birthday or Christmas presents. Also, he has

always had the option of contacting Youth Services Bureau to schedule visits,

but he has never done so.

1
Father has established paternity for all three children.

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[4] Between 2016 and February 2018, Father exercised overnight parenting time

with the children for a total of ten to twelve nights. Aside from the overnights,

Father only spent time with the children for a period of several hours once or

twice. Father was never present for doctor visits, sporting events, school events,

or other child-related activities, except for one school musical. Father has

always known Mother’s phone number, and Mother and Stepfather know of no

reason why he was unable to spend time or communicate with the children.

[5] From November 2012 through 2016, Father was ordered to pay child support

but failed to do so. The last voluntary child support payment Mother received

from Father occurred in February 2018, which is also the month in which

Father last saw the children.2

[6] From March through November 2018, Father had no contact whatsoever with

the children. On November 2, 2018, Mother and Stepfather filed their petitions

for Stepfather to adopt the children. They alleged that Father’s consent to the

adoption was not necessary. The trial court held an evidentiary hearing on the

issue of Father’s consent on December 14, 2018. That same day, the trial court

found that Father’s consent was not necessary:

2
Although it was court ordered that Father have supervised parenting time, the children wanted to get to
know Father, so Mother agreed to an overnight visit. One of the children reported to Mother that during that
visit, he saw Father “go[] into the bathroom with [Father’s] friend and com[e] out wiping blood off [his]
arm . . . .” Tr. Vol. II p. 36. The child told Mother that “he’s not dumb, he knows what’s going on,” id., and
from that point on, Mother strictly complied with the supervised parenting time order. But Father never
contacted the agency to schedule visits, so none occurred.

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 2. The Court finds that for the period of March, 2018
through November 2, 2018, [Father] has had no contact
with the children and has abandoned the children.

3. The Court further finds that for a period of approximately
four (4) years, [Father], without justifiable cause, has failed
to communicate with the children when he was able to do
so.

4. Pursuant to Indiana Code § 31-19-9-8(a)(1) and Indiana
Code § 31-19-9-8(a)(2), [Father’s] consent to adoption of
the children by [Stepfather] is not required.

Appellant’s App. Vol. II p. 17. On June 13, 2019, the trial court granted the

adoption petitions. Father now appeals.

Discussion and Decision
[7] When reviewing adoption proceedings, there is a strong presumption 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 (Ind. 2014). We

generally give considerable deference to the trial court’s decision in family law

matters because the trial court is in the best position to judge the facts, assess

witness credibility, “get a feel for the family dynamics,” and “get a sense of the

parents and their relationship with their children . . . .” MacLafferty v.

MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). We will affirm unless the

evidence leads to but one conclusion and the trial court reached an opposite

conclusion. O.R., 16 N.E.3d at 973. In conducting our review, we will neither

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 reweigh the evidence nor assess witness credibility, and will examine only the

evidence most favorable to the trial court’s decision. Id.

[8] Generally, a trial court may only grant a petition to adopt a child born out of

wedlock who is less than eighteen years of age if both the mother and the father

consent. I.C. § 31-19-9-1(a)(2). But Indiana Code section 31-19-9-8(a)

provides, in relevant part, that consent to an adoption is not required from 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.

Furthermore, “[i]f 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.” Id. § -8(b).

[9] Mother testified that in the six months leading up to the filing of the adoption

petitions on November 2, 2018, Father had no contact with the children. She

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 also testified that for an approximately four-year period between 2012 and

2016, Father had no contact with the children. Mother and Stepfather

repeatedly contacted Father to ask him to visit with the children, to attend their

school events, and to in some way establish a relationship with the children, but

he failed to do so in any meaningful way. He also failed to pay court-ordered

child support between 2012 and 2016. The only evidence in the record to the

contrary is Father’s self-serving testimony. His arguments on appeal amount to

a request that we reweigh the evidence and second-guess the trial court’s

assessment of the credibility of the witnesses, which we may not do. The

testimony of Mother and Stepfather supports the trial court’s conclusion that,

under the above statutory provisions, Father’s consent to the adoption was not

required.

[10] In their brief, Mother and Stepfather request appellate attorney fees. Indiana

Appellate Rule 66(E) allows this Court to award attorney fees if an appeal is

frivolous or made in bad faith; in other words, fees are appropriate when the

appeal “is permeated with meritlessness, bad faith, frivolity, harassment,

vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346

(Ind. Ct. App. 2003). We agree with Mother and Stepfather that this appeal

approaches that line, but decline to find that the line was crossed. We choose

to give Father the benefit of the doubt, as it is his relationship with his children

that is at stake. Therefore, we decline to order him to pay appellate attorney

fees.

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[11] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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