In Re the Adoption of T.G., Eric Kelly v. Jesse Glover (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 23 2020, 7:40 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 APPELLEE
William A. Goebel Mark Small
Goebel Law Office Indianapolis, Indiana
Crawfordsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of T.G., June 23, 2020
Eric Kelly, Court of Appeals Case No.
19A-AD-2839
Appellant,
Appeal from the Clinton Superior
v. Court
The Honorable Donald E. Currie,
Jesse Glover, Judge Pro Tempore
Trial Court Cause No.
Appellee.
12D01-1904-AD-6
Brown, Judge.
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[1] Eric Kelly (“Stepfather”) appeals the denial of his petition for adoption. We
affirm.
Facts and Procedural History
[2] T.G. was born on October 27, 2010, to Melissa Kelly (“Mother”). Jesse Glover
(“Father”) established paternity in 2017. Mother and Stepfather moved in
together in 2017 and were married in 2018. According to the trial court, Father
was incarcerated in March 2018 and has an early release date of July 25, 2021.
[3] On April 15, 2019, Stepfather filed a petition for adoption. 1 According to the
chronological case summary, the court issued an order on May 14, 2019, stating
that Father may appear by phone if contact information was provided, Father
filed a motion to appear in person or by phone on May 15, 2019, and the court
granted his motion on May 20, 2019, to appear by phone.
[4] On August 26, 2019, the court held a hearing at which Stepfather appeared in
person and by counsel and Father appeared by phone from the Edinburgh
Correctional Facility. Stepfather testified that he and Mother had been together
for about three years and living together for almost two years and that they have
a one-month-old child together. He indicated Father established paternity in
2017, was given a graduated visitation schedule, and eventually had visitation
every other weekend. 2 He indicated Father’s last visitation was March 2, 2018.
1
The petition for adoption is not included in the appellant’s appendix.
2
An order dated May 12, 2017, in the paternity cause stated that Father signed a paternity affidavit and is
T.G.’s biological father and set forth a schedule phasing in Father’s parenting time, beginning with four hours
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He indicated Father was aware of where T.G. lived and had not made any
attempts to contact T.G. while he was incarcerated. Stepfather further testified
Father had not voluntarily paid any child support since April 23, 2018. He
indicated that, according to the support docket, a tax check of $382 was held on
May 19, 2018, and there were no support payments since that date. 3 Stepfather
testified that he was employed, had been supporting T.G. since he moved in
with Mother in 2017, and had not been convicted of any crime.
[5] Mother testified that Father did not take any action to see T.G. until 2017. She
testified that Father eventually had parenting time every other weekend and
that he was in T.G.’s life for ten months between May 2017 and March 2018.
She indicated he had not seen T.G. since March 2, 2018, she lived at the same
address since that time, she has had the same phone number since the paternity
action began, Father picked up T.G. from her mother’s house, her mother still
lived at the same address, neither she nor T.G. had received any
communication from Father since March 2, 2018, and she had not stopped any
attempted communication between T.G. and Father since that date. She stated
every other week, increasing parenting time every three or four weeks, and ending with Father having
parenting time under the Parenting Time Guidelines. The order also required that Father pay child support
of $85 per week by wage withholding order, found his support obligation was retroactive to the date of filing
and his arrearage was $850, and ordered him to pay $10 per week toward the arrearage in addition to his
weekly child support obligation. The attached child support obligation worksheet indicated Father’s weekly
gross income was $360.
3
Petitioner’s Exhibit 1 contains a one-page payment history reflecting amounts paid in reverse chronological
order. The document listing a payment of $382 by check on May 19, 2018, reflects seven other payments
ranging from $20 to $170 from February 15, 2018, through April 23, 2018, and does not contain pages of any
payment history prior to February 15, 2018.
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she had not received any support from Father since May 2019. She indicated
Father had other children, she was in contact with the mother of one of his
other children, and to her knowledge Father had made contact with his son
E.G. while incarcerated. She indicated she believed Father’s criminal record
rendered him unfit to continue as a parent of T.G., and when asked why she
believed that, she answered “he does not have a license. He does he cannot
[sic] hold down a job. So supporting T.G. is a rough thing for him I suppose.”
Id. at 19.
[6] On cross-examination, Father asked “previously before [he requested visitation]
what was the arrangements that we [] made when we separated,” Mother
replied “[w]e didn’t have an arrangement,” he asked “so before our separation
how long was I in T.G.’s life,” and she answered “[y]ou weren’t cause you were
in jail.” Id. at 20-21. Father asked which address he used when he filed for
visitation, she answered “Meadow Lane” because that was her mother’s old
address. Id. at 21. She indicated she lived on Green Street at the time. Father
asked “but you just testified that you’ve been living at the same address with”
Stepfather, and she replied “I forgot about that address.” Id. at 22. She testified
“you were updated when I had moved to Three Fifty Nine from Green Street”
and “I don’t believe I had to inform you of my mother’s because that’s where
you presided [sic] to pick up T.G. after school.” Id. Father asked “wasn’t I the
one that was paying for everything when we stayed in Lafayette and moved to
Frankfort,” and she answered “[n]o.” Id. at 23.
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[7] The court asked Mother if she was living with Father when T.G. was born, she
answered “[n]o,” the court asked “[s]o you’ve never lived with him,” she
replied “[w]e didn’t live together,” it asked “[w]hen you talk about separation
you guys were never physically living together,” she said “[n]o,” the court
asked “[y]ou’ve never lived with him,” and she replied “[j]ust before she was
born.” Id. at 23-24. Mother then stated “[b]ut when she was born he was
incarcerated.” Id. at 24. The court asked if Father’s name was on the birth
certificate, she answered affirmatively, the court asked when Father saw T.G.
for the first time, and Mother answered “when she was born.” Id. The court
asked “[s]o he was not incarcerated when she was born,” and she replied
“[a]fter she was born. I’m sorry.” Id. at 24-25. She indicated Father did not
see T.G. on a regular basis after she was born. On redirect examination, she
indicated Father saw T.G. a couple of times at the hospital when she was born
and did not see her again until 2017.
[8] Upon questioning by Stepfather’s counsel, Father indicated he was in the
Edinburgh Correctional Facility and was there for “an HTV violation as a Level
Five felony.” Id. at 29. When asked if “[i]t was a repeat HTV violation” and
“[y]ou got sentenced in fact on the HT first HTV in March” 2018 and “then
you violated by driving two weeks after that,” he answered affirmatively. Id.
He testified he did not have a phone number for T.G., he “tried for a number
yes and was not successful,” Mother’s phone number was in his cell phone
which was in police custody, and “the person I tried to get the number from I
was not they weren’t able to get a number for me.” Id. at 30. He indicated
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there was a child support order and he was delinquent before he was
incarcerated. When asked if he had not made a payment since April 23, 2018,
he answered “I had just got locked up in March so April’s was the last payment
that apparently was received yes.” Id. at 31. He indicated he was not aware of
the May 2018 payment. He indicated this was the first time he was
incarcerated in the Department of Correction (the “DOC”), he had been
incarcerated in county jails about three times since he moved to Indiana in
2008, he did not have a record in Illinois, he had a conviction for driving while
suspended, and he “had one OWI” and “that was four months in Clinton
County.” Id. at 32. He indicated he had been in contact with his son E.G.
several times while incarcerated, E.G’s mother filed some paperwork and he
obtained her number and address through the paperwork, and “[u]nlike T.G. I
haven’t got any address or numbers or anything. I only have your address and
the Courthouse.” Id. at 33. Stepfather’s counsel asked “[h]ave you written me
to see T.G.,” Father replied that he had not, Stepfather’s counsel asked “whose
fault is it that you don’t have addresses? Is it [Mother’s] or your own,” and
Father replied “I think the responsibility it is my fault that I do not have her
address.” Id.
[9] The court asked if Father had anything else for the court to consider. Father
testified that Mother’s statements were false, he and Mother lived together in
three different apartments, two in Lafayette and one in Frankfort, they paid rent
to her mother and her stepfather for an apartment they owned above a sports
bar in Frankfort, he was working at US Cold Storage when T.G. was born, he
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was fired because he took an extended stay to be with Mother in the hospital,
and “also we lived together after that continuously for after that cause I got my
lock up was in . . . July of Two Thousand Eleven.” Id. at 34. He further
testified:
And once I got out I had another job at Wal-Mart that [Mother] was
still living together until she moved out one day while I was at work.
Um and the other thing is we did have an arrangement that we was
couldn’t be we had alot of arguments. So that the arrangement was
that [Mother] would never see was in town because she was staying
at her mother’s. Whenever she was in town that I would see T.G.
After that I moved out of Clinton County and back to Lafayette.
And that arrangement was still standing. Because I would take gifts
out to T.G.’s grandmother and leave it at her house. Gifts, cards,
birthday, every holiday. Uh I found out through previously at that
time through friends that [Mother] was taking the stuff back and
getting the money for it. . . . I know I did my part. And until
recently like Two Thousand Seventeen I got fed up with the well I’ll
bring her whenever I have time or whenever she makes time for me.
So I filed for the visitation. And even still then after that [Mother]
did not apply to bringing T.G. when she was suppose to. Even her
lawyer we sat down one day after Court and established that she was
suppose to bring her for Christmas. That never happened. And I
tried to contact her lawyer at that time and didn’t get a response. So
yes and not contacting her lawyer I failed (inaudible) this. So no I
did not contact him trying to get any information about T.G.
Because that time being he didn’t give me a response back. So no I
did not try to contact him again.
Id. at 34-35. He indicated that his release date was in June of 2021. Father also
testified “as far as the child support . . . money does not matter because I keep
jobs in plenty of times when we first started I was working two jobs . . . to be
able to try to pay for to catch up on my other child support,” “I had caught up
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except for like a Hundred and some dollars,” “that was pretty much kind of the
reason part of the reason for me filing the child support because I don’t care
about the money,” and “I need to be able to see my daughter on a regular see
my kids on a regular.” Id. at 35-36. The court took the matter under
advisement.
[10] On October 1, 2019, the trial court issued an order denying Stepfather’s petition
for adoption. The court found Father had been incarcerated since March 2018,
was in the DOC, had an early release date of July 25, 2021, and does not
consent to the adoption petition. It further found:
3. The Father was present in the child’s [] early life as biological
Mother and Father lived together on and off and the parties both
significantly contributed to the child’s support (physical, emotional,
and financial). Father was present at the child’s birth and voluntarily
signed the birth certificate of the child.
4. The Father paid support for the child prior to his incarceration.
Some tax intercept support has also been paid on behalf of the child
since his period of incarceration.
5. The Father has not had the ability to have contact with the child
since his incarceration, however he indicated a strong desire to do so
and remain actively engaged in his child’s wellbeing.
6. The mother has not been accommodating or welcoming of
contact between the father and minor child since March 2, 2018.
Appellant’s Appendix Volume II at 8-9. The court concluded that Stepfather
“has failed to prove that the objecting biological Father’s consent is not
necessary to approve the Petition for Adoption” and that “Father has not
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abandoned, nor is he unfit, nor has his lack of communication or contact been
voluntary but only because he is an inmate in the Indiana Department of
Correction.” 4 Id. at 9. Stepfather filed a motion to correct error, which the
court denied.
Discussion
[11] In family law matters, we generally give considerable deference to the trial
court’s decision because we recognize that the trial judge is in the best position
to judge the facts, determine witness credibility, and obtain a feel for the family
dynamics and a sense of the parents and their relationship with their children.
E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018). Accordingly, when reviewing
an adoption case, we presume that the trial court’s decision is correct, and the
appellant bears the burden of rebutting this presumption. Id. 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). The
trial court’s findings and judgment will be set aside only if they are clearly
erroneous. E.B.F., 93 N.E.3d at 762. A judgment is clearly erroneous when
there is no evidence supporting the findings or the findings fail to support the
judgment. Id. We will not reweigh evidence or assess the credibility of
4
After the court issued the order, Father filed a letter with the trial court requesting an address and phone
number for Mother so that he is able to contact T.G. “since threw [sic] all this I have not been given the exact
info to be able to contact her.” Appellee’s Appendix Volume II at 11.
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witnesses. Id. Rather, we examine the evidence in the light most favorable to
the trial court’s decision. Id. We generally review rulings on motions to correct
error for an abuse of discretion. Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 18
(Ind. Ct. App. 2015).
[12] Stepfather asserts the trial court erred in finding that he failed to prove that
Father’s consent was not necessary and cites Ind. Code § 31-19-9-8(a)(1), (2),
and (11). He argues that Father abandoned T.G., had contact while
incarcerated with his son E.G. but not with T.G., and admitted it was his fault
that he did not have contact information available to him. He argues Father
failed to communicate with or support T.G., had no contact with her since
March 2, 2018, and made no child support payments since the middle of May
2018. He also states that he “believes that in the context of [Father’s] limited
exercise of his parental rights and obligations (a 10-month period after the child
was 6 years of age), coupled with the fact that through his own fault he has
placed himself in prison until at least July 25, 2021, shows that he is unfit to be
a parent.” Appellant’s Brief at 11.
[13] Father maintains the evidence is sufficient to support the court’s findings and to
show Stepfather failed to meet his burden of proof. He argues the evidence
supports the finding that he did not have a phone number for Mother and the
court found he paid child support prior to his incarceration. He argues
Stepfather simply asks this Court to disregard the standard of review and
reweigh the evidence. He also argues that, while Mother indicated a belief that
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he was an unfit parent due to his criminal record and lack of a license, the trial
court noted his involvement and desire to be involved in T.G.’s life.
[14] Ind. Code § 31-19-11-1 provides in part that the trial court shall grant a petition
for adoption if it hears evidence and finds in part that the adoption requested is
in the best interest of the child and “proper consent, if consent is necessary, to
the adoption has been given.” A petition to adopt a child may be granted only
if written consent to adoption has been executed by the father of a child whose
paternity has been established. See Ind. Code § 31-19-9-1. However, Ind. Code
§ 31-19-9-8(a) provides that consent to adoption “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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If a petition for adoption alleges that a parent’s consent to adoption is
unnecessary under Ind. Code § 31-19-9-8(a)(1) or (2) and the parent files a
motion to contest the adoption, the “petitioner for adoption has the burden of
proving that the parent’s consent to the adoption is unnecessary under IC 31-19-
9-8.” Ind. Code § 31-19-10-1.2(a). If a petition for adoption alleges that a
parent’s consent to adoption is unnecessary under Ind. Code § 31-19-9-8(a)(11)
and the parent files a motion to contest the adoption, the “petitioner for
adoption has the burden of proving that the requirements of IC 31-19-9-8(a)(11)
are satisfied and that the best interests of the child are served if the court
dispenses with the parent’s consent to adoption.” Ind. Code § 31-19-10-1.2(e).
Ind. Code § 31-19-10-0.5 provides: “The party bearing the burden of proof in a
proceeding under this chapter must prove the party’s case by clear and
convincing evidence.”
[15] The clear and convincing evidence standard is an intermediate standard of
proof greater than a preponderance of the evidence and less than proof beyond
a reasonable doubt. See T.D. v. Eskenazi Health Midtown Cmty. Mental Health
Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear and
convincing, the existence of a fact must be highly probable. Id. “The clear and
convincing standard is employed in cases where the wisdom of experience has
demonstrated the need for greater certainty, and where this high standard is
required to sustain claims which have serious social consequences or harsh or
far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans
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Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and internal quotation marks
omitted).
[16] This Court has observed that imprisonment standing alone does not establish
statutory abandonment. Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App.
1986) (citation omitted) (cited with approval by In re Adoption of E.A., 43 N.E.3d
592 (Ind. Ct. App. 2015), trans. denied). 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. What constitutes insignificant
communication with a free parent may be significant in relation to an
incarcerated parent with limited access to his child. Id. We are also mindful
that in general an incarcerated parent’s child support obligation should reflect
the parent’s real financial capacity. See In re Adoption of T.L., 4 N.E.3d 658, 663
(Ind. 2014).
[17] The burden was on Stepfather, as the petitioner for adoption, to prove that the
requirements of Ind. Code § 31-19-9-8(a)(1), (2), or (11) were satisfied by clear
and convincing evidence. See Ind. Code §§ 31-19-10-0.5 and -1.2. The evidence
most favorable to the trial court’s decision reveals that Father was present at the
hospital when T.G. was born and signed her birth certificate and that, in 2017,
he filed a petition to establish paternity. Father testified that he took gifts and
cards to the house of T.G.’s grandmother and that he discovered Mother was
returning the gifts for money. Father obtained a court order requiring him to
pay child support based on his weekly gross income of $360 and phasing in
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parenting time until he was exercising parenting time pursuant to the Parenting
Time Guidelines. The parties agree that Father stopped his visitation with T.G.
due to his incarceration. The record reveals Father was employed prior to his
incarceration and had made child support and arrearage payments, and
Stepfather did not demonstrate that Father was able to continue making support
payments while incarcerated. The trial court heard and was able to consider
the testimony of Stepfather, Mother, and Father regarding Father’s
incarceration and his relative efforts to communicate with and provide care and
support for T.G. prior to and following his incarceration. The court specifically
found that Father was present in T.G.’s early life as he and Mother lived
together on and off and significantly contributed to the child’s support, Father
paid support for T.G. prior to his incarceration, Father has not had the ability
to have contact with T.G. since his incarceration but indicated a strong desire to
do so and to remain actively engaged in T.G.’s wellbeing, and Mother has not
been accommodating or welcoming of contact between Father and T.G. The
trial court was in the best position to judge the facts, and we will not reweigh
evidence or assess the credibility of the witnesses. We cannot say under these
circumstances that Stepfather has met his burden to overcome the presumption
the trial court’s decision is correct or that the evidence leads to but one
conclusion and the trial court reached the opposite conclusion.
[18] For the foregoing reasons, we affirm the judgment of the trial court.
[19] Affirmed.
Najam, J., and Kirsch, J., concur.
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