Williams v. Townsend , 629 N.E.2d 252 ( 1994 )

BARTEAU, Judge.

Charol Williams appeals the adoption of R.W. by Gary and Gail Townsend, arguing that the granting of the adoption without his consent was not supported by the evidence. We affirm.

FACTS

Williams is serving a fifty year prison sentence for the November, 1989 murder of his wife — the mother of R.W. R.W. was four years old at the time of the murder and has resided since then with her maternal aunt and uncle, Gary and Gail Townsend. The Townsends brought the petition for adoption alleging that Williams had abandoned and deserted R.W. as of November, 1989. Williams contested the adoption, which was granted over his objection.

DISCUSSION

Indiana Code 31 — 3—1—6(i) governs when consent to adoption is not required. It provides:

(i) Consent to adoption is not required from any of the following:

(1) A:

(A) parent or parents, if the child is adjudged to have been abandoned or deserted for six (6) months or more immediately preceding the date of the filing of the petition; or

(B) parent of a child in the custody of another person, if for a period of at least one (1) year the parent fails without justifiable cause to communicate significantly with the child when able to do so or knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree. (When the parent or parents have made only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents.)

Williams contends that the trial court erred in granting the adoption without his consent because he sent R.W. cards and letters.

As a reviewing court, we will not disturb the trial court’s decision in adoption proceedings unless the evidence at trial leads to but one conclusion, and the trial court reached an opposite conclusion. In re Adoption of Marcum (1982), Ind.App., 436 N.E.2d 102.

In its findings of fact, the court noted that Williams had not communicated nor visited with the child since the time he was incarcerated, except by an occasional letter or card sent to his sister, and that he had made no substantial effort to communicate with the child in any other manner nor to visit with the child. The court also noted that Williams had taken no legal action to enable visitation or communication. The only evidence presented in Williams’ favor as to his attempted communication was that he had one telephone conversation with the child shortly after November of 1989 and that he had written her letters through his sister. This evidence, even considering that Williams is incarcerated, is not of such a compelling nature that it mandates consideration as more than merely “token” communication. While the fact of Williams’ incarceration alone cannot justify a finding of abandonment, In re Adoption of Herman (1980), Ind.App., 406 N.E.2d 277, it is obvious from the court’s findings that Williams’ incarceration was not the sole factor supporting the decision. In light of the specific statutory authority permitting the trial court to disregard token attempts at communication and the absence of any compelling evidence that Williams’ attempts at communication were more than that, we cannot say, without engaging in a reweighing of the evidence, that the trial court erred.

The dissent contends that Williams’ testimony that he sent “hundreds” of letters (actually he testified he sent “[a] hundred or so or more”, R. 113), and the verification of his letter writing by his sister and mother, presents uneontroverted testimony that contradicts the trial court’s finding that Williams only communicated by an “occasional” card or letter. The dissent ignores the fact that trial courts retain the prerogative to believe or disbelieve self serving testimony. Williams did not introduce into evidence any of the “hundred or so” letters he claimed to have written his daughter and the Townsend’s had no way of disproving his claim of proficient letter writing, as all the letters were conveniently mailed to Williams’ sister’s address. Further, Williams’ relatives’ credibility is not above reproach. Williams’ sister had maintained contact with R.W. and was faced with the imminent extinguishment of her legal right to do so should the Townsend’s adoption petition be granted. Williams’ testimony itself raised a question as to whether he was fighting for his right to be R.W.’s parent or his sister’s desire to assume the role. When asked how he proposed to be a father to this child while he was in prison, Williams testified: ‘Well, I was wanting my sister to have my daughter.” R. 118. Later, when asked a similar question, he responded “I was wanting my sister to do it for me.” R. 119. The trial court, as the ultimate finder of fact, was free to assign nominal weight to the claims of both Williams and his family.

Further, the unique facts of this case weigh heavily in favor of permitting R.W. to be adopted. Williams is incarcerated because he killed R.W.’s mother. In so doing, he condemned four-year-old R.W. to a childhood spent without the daily care and nurturing of either of her natural parents. To allow Williams, by merely sending an occasional card or letter, to prevent R.W. from ever completely developing such a parental relationship with others is unjustifiable. We believe that commission of an intentional act by a parent, which not only results in that parent’s incarceration for the duration of the child’s minority but which also deprives the child completely of the love, affection and care of the other parent, is sufficient to constitute abandonment of the child, negating the need for parental consent to adoption.

The trial judge did not rely on these peculiar circumstances to justify the finding of abandonment — and rightfully so — because the statute permitting adoption without consent of the parent does not contemplate consideration of the circumstances leading to the child’s abandonment. We consider this an oversight on the part of the legislature. Situations such as this and ones where a parent is incarcerated for harming the child merit inclusion in the exceptions to the consent requirement.

We affirm the decision of the trial court because there is sufficient evidence to support the trial court’s conclusion that Williams failed to communicate significantly with R.W. for more than one year. To do otherwise would constitute an impermissible reweighing of the evidence.

AFFIRMED.

HOFFMAN, J., concurs. RUCKER, J., dissents with opinion.