In re the Adoption of W.L.: D.L. v. C.C. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 08 2019, 10:54 am
regarded as precedent or cited before any
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
Katherine N. Worman Keith M. Wallace
Evansville, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Adoption of W.L.: April 8, 2019
Court of Appeals Case No.
18A-AD-2671
D.L.,
Appeal from the Vanderburgh
Appellant-Respondent, Superior Court
The Honorable Brett J. Niemeier,
v.
Judge
The Honorable Renee A.
C.C., Ferguson, Magistrate
Appellee-Petitioner. Trial Court Cause No.
82D04-1802-AD-31
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-AD-2671 | April 8, 2019 Page 1 of 10
Case Summary
[1] After D.L. (“Father”) failed to engage in any significant communication with
his son W.L. (“Child”) for a period of more than one year, C.C. (“Stepfather”)
petitioned to adopt Child. Stepfather argued, and the trial court concluded, that
pursuant to Indiana Code section 31-19-9-8(a)(2), Father’s consent to the
adoption was not required. After concluding Father’s consent was not
required, the trial court granted Stepfather’s petition. Father argues on appeal
that the trial court erred by concluding that his consent to the adoption was not
required. Because we conclude otherwise, we affirm.
Facts and Procedural History
[2] Child was born on March 4, 2011, to Father and K.C. (“Mother”). In
November of 2016, Father exercised unsupervised overnight visitation with
Child at paternal grandmother’s home. On Thanksgiving Day, Father was at
paternal grandmother’s home with Child. At some point, a dispute arose
between Father, paternal grandmother, and paternal stepgrandfather that
resulted in Father striking paternal grandmother and paternal stepgrandfather,
causing injury. Father has not visited Child since shortly after this incident.
[3] On January 10, 2017, in relation to the events that took place on Thanksgiving,
Father was charged with three felonies. Father was incarcerated on these
charges from January 16, 2017 to June 19, 2017. Father did not communicate
with Child while incarcerated. In February of 2017, while Father was
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incarcerated, Father’s parenting time was modified to supervised visits at the
Parenting Time Center (“PTC”). Father did not immediately seek to reinstate
visitation with Child upon his release from incarceration, but rather waited until
January 5, 2018, to do so. Father’s visits with Child were never successfully
reinstated.
[4] Father also failed to support Child. The Vanderburgh County Clerk’s Office’s
(the “Clerk’s”) records detailing child support payments paid by Father indicate
that Father did not make any support payments between November 8, 2016 and
April 11, 2018.
[5] On February 16, 2018, Stepfather filed a verified petition for stepparent
adoption of Child. In his petition, Stepfather alleged that Mother had
consented to the adoption, Father’s consent was not required pursuant to
Indiana Code section 31-19-9-8(a)(2), and Stepfather “has been a part of
[Child’s] life, and [Child] looks to [him] for parental love, guidance, affection,
support and care.” Appellant’s App. Vol. II p. 30. The trial court conducted a
consent hearing at which Father testified on July 31, 2018, and September 26,
2018. At the conclusion of the hearing, the trial court concluded that Father’s
consent was not required pursuant to Indiana Code section 31-19-9-8(a)(2).
The trial court subsequently determined that adoption by Stepfather was in
Child’s best interests and granted Stepfather’s adoption petition.
Discussion and Decision
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[6] Father challenges the trial court’s order granting Stepfather’s adoption petition.
When reviewing adoption proceedings, we presume that the trial
court’s decision is correct, and the appellant bears the burden of
rebutting this presumption. We generally 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. 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. The trial court’s
findings and judgment will be set aside only if they are clearly
erroneous. A judgment is clearly erroneous when there is no
evidence supporting the findings or the findings fail to support
the judgment. We will neither reweigh the evidence nor assess
the credibility of witnesses, and we will examine only the
evidence most favorable to the trial court’s decision.
In re Adoption of O.R., 16 N.E.3d 965, 972–73 (Ind. 2014) (internal citations and
quotations omitted).
[7] Father claims that the trial court erred in finding that his consent to Stepfather’s
adoption petition was not required. Under Indiana law, 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 (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.
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Ind. Code § 31-19-9-8(a)(2). The petitioner bears the burden of proving by clear
and convincing evidence that a noncustodial parent’s consent to a stepparent
adoption is not required. See In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind.
Ct. App. 2012).
I. Significant Communication
[8] Father argues that he did not fail, without justifiable cause, to communicate
significantly with Child. We disagree. The record reveals that Father has not
visited or communicated significantly with Child since November of 2016.
[9] Father’s last visit with Child occurred shortly after Thanksgiving of 2016.
Father admits that he did not make any attempts to visit Child in December of
2016. Father was arrested on January 16, 2017, and remained incarcerated
until June 19, 2017. Father also did not visit with Child upon his release from
incarceration. The record reveals that despite his claims that he contacted the
PTC on the “soonest available date that [he] could” to reinstate visitation with
Child, tr. p. 24, documentation submitted by the PTC indicates that Father did
not contact the PTC until January 5, 2018, approximately seven months after
he was released from incarceration. Father acknowledged that he was aware of
the court order requiring him to contact the PTC before he could be awarded
visitation with Child. Father was also reminded of such when he went to
Stepfather’s residence and asked Stepfather about speaking to Mother in
October of 2017.
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[10] In addition, Father does not dispute that he did not communicate with Child
while incarcerated but argues that his lack of communication was justified and
that he had, on a few occasions, unsuccessfully attempted to communicate with
Child. Specifically, Father makes the unsupported, self-serving claims that he
attempted to call Child from jail and wrote letters to Child while he was
incarcerated. Father acknowledges, however, that he never spoke to Child or
sent the letters he claims to have written. The trial court found that Father’s
claims that he attempted to communicate with Child via telephone and mail
were not credible, noting a lack of evidence beyond Father’s self-serving
testimony of any such attempts. The trial court was in the best position to make
such a determination. See Adoption of O.R., 16 N.E.3d at 973 (providing that the
trial judge is in the best position to judge the facts and determine witness
credibility). Father’s arguments on appeal essentially amount to an invitation
to reweigh the evidence, which we will not do. See id.
[11] Further, while Father acknowledges that he never communicated in person or
over the phone with Child following his release from incarceration, he claims
that he attempted to communicate with Child by leaving a T-Rex costume for
Child at Mother’s home at some point around Christmas of 2017. Mother
acknowledged that Father left a costume for Child but asserted that the costume
in question had been given to Child as a birthday present “for a year earlier”
than 2017. Tr. p. 74. While we agree that Father’s act of leaving a gift for
Child evidences an attempt to communicate, we conclude that one such
attempt over the course of fourteen months does not evidence significant
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communication.1 In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App.
1999) (providing that parent’s “short, not-quite-monthly visits” with the child
did not establish significant communication); see also Ind. Code § 31-19-9-8(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.”). The trial
court’s determination that Father failed to engage in significant communication
with Child for a period of more than one year is not clearly erroneous.
II. Provide Care and Support
[12] Father also argues that the trial court erred in determining that he knowingly
failed to provide for Child’s care and support for a period of at least one year.
In support, Father points to an alleged lack of evidence indicating that he either
was able or failed to pay after acquiring the ability to do so. In determining
ability to pay child support, we have noted that ability to pay “cannot be
adequately shown by proof of income standing alone” and that to determine
ability, “it is necessary to consider the totality of the circumstances.” In re
Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010). Likewise, a
parent’s incarceration does not prove inability to pay. See In re Adoption of T.L.,
4 N.E.3d 658, 663 (Ind. 2014) (holding that incarcerated parents are not
“granted a full reprieve from their child support obligations” and noting that
1
Father testified that additional attempts to visit and communicate with Child following his incarceration
would have been unsuccessful, but it appears the trial court did not lend much weight, if any, to this
testimony.
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Indiana’s approach “preserves our tradition of responsibility by imposing at
least a minimal level of support … without ignoring the realities of
incarceration”).
[13] The record demonstrates that Father failed to support Child for a period of
more than one year as the Clerk’s records indicate that Father did not make any
child support payments between November 8, 2016 and April 11, 2018. The
question then becomes whether Father’s failure to pay should have been
excused due to an inability to pay.
[14] Father’s nonpayment began prior to both the events occurring on Thanksgiving
of 2016, and Father’s resulting incarceration. The record is unclear as to why
Father did not make support payments in late November, December, or early
January. Father provided conflicting testimony regarding his employment
status and his failure to communicate with and support Child during this time.
Further, while it is undisputed that Father was incarcerated for approximately
six months in mid-January through mid-June of 2017, Father was not relieved
of his obligation to support Child during his incarceration, and the record does
not establish that Father lacked the ability to provide some minimal level of
support while incarcerated.
[15] It is also undisputed that, following his release, Father eventually obtained
employment and had some ability to support Child. For instance, Father
acknowledged that he was employed in September of 2017 and indicated that
he thought he might have made a child support payment at that time. The
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record, however, does not support Father’s recollection. Father also
acknowledged that he had been continuously employed since January of 2018,
sometimes working multiple jobs, but nonetheless failed to make child support
payments until April 11. The record indicates that Father is an able-bodied
individual who demonstrated the ability to obtain employment when he so
desired. Thus, any periods of unemployment appear to be more a matter of
choice rather than inability to obtain employment.
[16] Stepfather argues that Father’s testimony during the consent hearing indicates
that Father knew he was obligated to financially support Child and had at least
some ability to provide support but failed to do so. We agree. Again, Father
provided conflicting testimony regarding his employment status and his
payment of support during periods when he claimed to be employed. The trial
court determined that Father’s claim that he was unable to support Child was
not credible. As we stated above, the trial court was in the best position to
judge Father’s credibility, and we will not second guess the trial court’s
credibility determination. See Adoption of O.R., 16 N.E.3d at 973. The trial
court’s credibility determination coupled with Father’s conflicting testimony
regarding his employment status and financial position supports the inference
that Father was able to provide support for Child but knowingly failed to do so.
The trial court’s determination in this regard is therefore not clearly erroneous.
Conclusion
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[17] The trial court determined that Father failed to both communicate significantly
with and provide care and support for Child. Neither of these determinations is
clearly erroneous as both are supported by the record.2 As such, we conclude
that the trial court did not err in determining that Father’s consent to the
adoption was not required pursuant to Indiana Code section 31-19-9-8(a)(2).
[18] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
2
We acknowledge that because Indiana Code section 31-19-9-8(a)(2) is written in the disjunctive, “the
existence of any one of the circumstances [contained therein] provides sufficient ground to dispense with
consent.” Adoption of O.R., 16 N.E.3d at 973. We nevertheless review the trial court’s determination that
both circumstances are present in the instant matter and conclude that the trial court’s determination as to
both is supported by the record.
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