C. Q. v. J.G. (In re Adoption of L.M.Q.)

32 N.E.3d 845 (Table)

In the Matter of the ADOPTION OF L.M.Q.C. Q., Appellant–Respondent

v.J.G. and M. G., Appellees–Petitioners.

No. 82A01–1409–AD–391.

Court of Appeals of Indiana.

May 13, 2015.

Patrick A. Duff, Evansville, IN, Attorney for Appellant.

Allyson R. Breeden, Ziemer Stayman Weitzel & Shoulders, LLP, Evansville, IN, Attorney for Appellee.

MEMORANDUM DECISION

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant–Respondent, C.Q. (Father), appeals the adoption of his minor son, L.Q. (Child), by Appellees–Petitioners, J.G. and M.G. (collectively, Adoptive Parents).

[2] We affirm.

ISSUE

[3] Father raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in determining that Father's consent to the Child's adoption was not required.

FACTS AND PROCEDURAL HISTORY

[4] On February 8, 2010, the Child was born to J.F. (Mother)¹ and Father in Newburgh, Warrick County, Indiana. Father was not present for the Child's birth as he was serving an eighteen-month sentence in the Indiana Department of Correction (DOC) for a Class C felony conviction of stalking. While incarcerated, on March 12, 2010, Father executed a paternity affidavit claiming to be the Child's biological father. No order for child support was ever entered.

[5] At birth, the Child was diagnosed with microcephaly, a neurological disorder that results in abnormal brain development. As a result of his condition, the Child suffers from a number of developmental, cognitive, and behavioral issues for which he requires constant supervision, medication, and various types of therapy, among other special needs. For the first six months of his life, Mother was the Child's sole custodian. During this time, Mother and the Child, along with the Child's half-sister, C.F., lived with various relatives, including Father's mother, D.S. (Paternal Grandmother). In May of 2010, Mother, C.F., and the Child moved in with Mother's father and step-mother—i.e., Adoptive Parents.

[6] At some point, Mother left the Child in the care of Paternal Grandmother. Then, on August 8, 2010, Father was released from prison, and he moved in with Paternal Grandmother and the Child, eventually taking over the role of the Child's primary caretaker. Three months later, on November 20, 2010, Mother—accompanied by several police officers—appeared at the Child's doctor's appointment and removed the Child from Father's custody. When Mother subsequently moved out of Adoptive Parents' home, she left the Child in Adoptive Parents' care.

[7] Adoptive Parents filed a petition for guardianship over the Child, and on July 1, 2011, the trial court appointed them as temporary guardians. On July 6, 2011, Father appeared at a hearing on the guardianship, but he did not object to the Adoptive Parents' appointment or request parenting time. On October 4, 2011, the trial court appointed Adoptive Parents as the Child's permanent co-guardians. For six months thereafter, per an informal agreement with Adoptive Parents, Father exercised parenting time with the Child every other weekend.

[8] In March of 2012, Father was charged with battery with a deadly weapon. Before he could be arrested, Father absconded and remained “on the run” until he was apprehended in August of 2012 and confined to the Vanderburgh County Jail. (Appellant's App. p. 43). At the end of October of 2012, Father posted a $2,000 bond and was released from jail. During the seven-month period that Father was either a fugitive or incarcerated, he did not have any contact with the Child. Although he called Adoptive Parents a few times, Father did not speak to or inquire about the Child; rather, he demanded that Adoptive Parents pay him half of the tax refund that they received as the Child's guardians.

[9] Shortly after bonding out of jail—just a few days prior to Halloween 2012—Father appeared at Adoptive Parents' apartment and waited until they brought the Child outside. Father spent about twenty minutes visiting with the Child and requested that he be able to resume his prior parenting time schedule. Adoptive Parents informed him that they would have to discuss the matter with their attorney, and at their counsel's advice, Adoptive Parents notified Father that he could no longer have overnight visits with the Child. In response, Father became belligerent and shouted obscenities at Adoptive Father. Over the next few weeks, Father called Adoptive Parents between two and four times to argue about the Child's custody. Ultimately, Adoptive Parents indicated that the matter would have to be resolved in court, and Father stated that he would hire an attorney to sue for custody. Following these conversations, Adoptive Parents changed their home phone number; however, they maintained the same cell phone number, which is the number that Father used to contact them. Since his brief visit in October of 2012, Father has not requested parenting time or otherwise attempted to visit or communicate with the Child by any means.

[10] On November 8, 2012, Adoptive Parents filed a verified petition to adopt the Child. In their petition, Adoptive Parents alleged that Father's consent to the adoption was unnecessary based on his abandonment of the Child and his failure to communicate with or provide any support for the Child for more than one year. On November 28, 2012, Father filed his objection to the adoption.

[11] On December 9, 2013, and January 3, 2014, the trial court conducted a hearing on the matter of Father's consent to Adoptive Parents' adoption of the Child. On March 6, 2014, the trial court ruled that Father's consent was not required because Father “failed to communicate significantly with [the Child] for a period of at least one year[,]” and he “knowingly and voluntarily failed to provide for the care and support of [the Child] despite his ability to do so.” (Appellant's App. pp. 49, 51). On August 28, 2014, the trial court granted Adoptive Parents' petition to adopt the Child.

[12] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[13] In matters of family law, Indiana courts have long recognized that the trial court “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 the children.” E.W. v. J.W., 20 N.E.3d 889, 894 (Ind.Ct.App.2014), trans. denied. Accordingly, in an adoption case, our court will not disturb the trial court's 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). On review, we do not reweigh the evidence, and we consider the evidence and all inferences reasonably derived therefrom in a light most favorable to the trial court's ruling. In re Adoption of K.S., 980 N.E.2d 385, 387 (Ind.Ct.App.2012). We presume that the trial court made the correct decision, and the appellant bears the burden of overcoming this presumption. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind.Ct.App.2012).

[14] In addition, because the trial court issued special findings of fact and conclusions thereon, our review is further governed by Indiana Trial Rule 52(A), which provides that “the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Thus, “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 at 662. Findings of fact “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. (alterations in original).

II. Father's Consent to the Adoption

[15] Father claims that the trial court erred when it determined that his consent to the Child's adoption was not required. Indiana's adoption statute provides, in pertinent part, that upon the finding that adoption would be in the best interest of a child and that “proper consent, if consent is necessary, to the adoption has been given[,]” the trial court shall grant a petition for adoption. Ind.Code § 31–19–11–1(a)(1),(7). In any adoption proceeding, the natural parent is entitled to the most protected status. In re Adoption of K.S., 980 N.E.2d at 387. As such, if paternity has been established, both parents must execute written consent for the adoption to proceed. See I.C. § 31–19–9–1(a)(2)(B). However, consent is not required from the

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.

I.C. § 31–19–9–8(a)(2). The party petitioning for adoption bears the burden of proving that the parent's consent to the adoption is unnecessary by clear and convincing evidence. In re Adoption of M .B., 944 N.E.2d 73, 77 (Ind.Ct.App.2011).²

A. Failure to Communicate with the Child

[16] First, Father contends that the trial court erroneously found that he failed to communicate significantly with the Child for a period of at least one year. In order to dispense with parental consent, the petitioner for adoption must prove both a lack of communication for the statutory period and that the parent had an ability to communicate during that time. See Rust v. Lawson, 714 N.E.2d 769, 772 (Ind.Ct.App.1999), trans. denied. On appeal, we must consider the facts and circumstances of the particular case, including, for example, “the custodial parent's willingness to permit visitation as well as the natural parent's financial and...