J.P. v. V.B. (In re Adoption I.B.)

151 N.E.3d 774

In the MATTER OF the ADOPTION OF I.B. (Minor Child):

J.P., Appellant-Respondent,

v.V.B., Appellee-Petitioner.

Court of Appeals Case No. 20A-AD-229

Court of Appeals of Indiana.

FILED July 20, 2020

Attorney for Appellant: Glen E. Koch II, Boren, Oliver & Coffey, LLP, Martinsville, Indiana

Attorney for Appellee: Julie A. Camden, Camden & Meridew, P.C., Fishers, Indiana

Bailey, Judge.

Case Summary

[1] J.P. ("Mother") appeals the trial court's order that her consent was not required for V.B.'s adoption of J.P.'s child, I.B. ("Child"), and the subsequent decree of adoption. She raises two issues on appeal, which we restate as the following issue: whether the trial court clearly erred when it determined that Mother's consent was not required for V.B.'s adoption of Child.

[2] We reverse.

Facts and Procedural History

[3] Mother and R.B. ("Father") (collectively, "parents") were married and are the parents of Child, who was born on November 10, 2010. Parents divorced in May of 2014, and the court granted legal and physical custody of Child to Mother, with parenting time to Father. On March 6, 2017, Father filed a motion for emergency modification of custody based on Mother's alleged drug use and instability. On July 25, 2017, the trial court granted legal and physical custody of Child to Father, ordered that Mother would have supervised parenting time, and ordered that Mother pay child support.

[4] On July 17, 2019, Father's wife, V.B., filed a petition for step-parent adoption of Child, and Father consented. The petition alleged that Mother's consent was not required under Indiana Code Section 31-19-9-8(a)(1), (2), and (11) because she had abandoned Child, failed to communicate with or pay support for Child for at least one year, and was unfit to parent Child. On September 3, 2019, Mother filed a letter contesting the adoption. On November 8, 2019, the trial court conducted a hearing on the adoption petition, including the issue of whether Mother's consent was required.

[5] On December 23, 2019, the trial court entered orders regarding the November 8 hearing. The court concluded that Mother's consent was not required for the adoption and it entered an adoption decree. The trial court concluded that Mother's consent was not required because "Natural Mother abandoned [Child] for at least six (6) months preceding the filing of the Petition [for Adoption] in this case, failed to significantly communicate with [Child] for at least one (1) year, and failed to pay child support for at least one (1) year." App. at 64. The trial court found it unnecessary to consider whether Mother's consent was not required because she was unfit to parent Child per Indiana Code Section 31-19-9-8(a)(11). Id. at 64-65.

[6] Mother now appeals. We provide additional facts below as necessary.

Discussion and Decision

[7] Mother contends that the trial court erred when it concluded that her consent was not required for V.B.'s adoption of Child. Our standard of review in adoption cases is well-settled:

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, "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). 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. In re Adoption of O.R. , 16 N.E.3d 965, 972–73 (Ind. 2014).

The trial court's findings and judgment will be set aside only if they are clearly erroneous. In re Paternity of K.I. , 903 N.E.2d 453, 457 (Ind. 2009). "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 witnesses. In re Adoption of O.R. , 16 N.E.3d at 973. Rather, we examine the evidence in the light most favorable to the trial court's decision. Id .

E.B.F. v. D.F. , 93 N.E.3d 759, 762 (Ind. 2018).

[8] As this court has recently noted, "the most protected status in any adoption proceeding is that of the natural parent. Recognizing the fundamental importance of the parent-child relationship, our courts have strictly construed the adoption statute to preserve that relationship." In re Adoption of D.H. , 135 N.E.3d 914, 919 (Ind. Ct. App. 2019) (quoting In re Adoption of N.W. , 933 N.E.2d 909, 913 (Ind. Ct. App. 2010), adopted by 941 N.E.2d 1042 (Ind. 2011) ). However, the best interest of the child is paramount, and "our main concern should lie with the effect of the adoption on the reality of the minor child's life." Id . (quoting In re Adoption of K.F. , 935 N.E.2d 282, 289 (Ind. Ct. App. 2010), trans. denied ).

[9] This case is governed by Indiana Code Section 31-19-9-8, which provides in relevant part that consent to adoption is not required of the following people:

(a) (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.

(a) (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.

The statute further provides that, "[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." I.C. § 31-19-9-8(b). The party seeking to adopt bears the burden of proving by clear and convincing evidence¹ that the noncustodial parent's consent is not required. Matter of Adoption of E.M.L. , 103 N.E.3d 1110, 1116 (Ind. Ct. App. 2018), trans. denied .

[10] The trial court concluded that Mother's consent to the adoption of Child was not required because she had abandoned child by making no more than token efforts to communicate with or support Child for the six months preceding the adoption petition, and, for at least one year before the filing of the adoption petition, she had failed without justifiable cause to communicate significantly with Child and knowingly failed to pay child support when she was required and able to do so. I.C. § 31-19-9-8(a)(1)(2), (b). We address the court's conclusions regarding communication and support separately.

Communication

[11] The trial court's finding that Mother failed, without justification, to significantly communicate with Child in both the six-month² and one-year time periods prior to the filing of the adoption petition (i.e., July 17, 2019) was based upon its findings that, within those time periods, Mother had not exercised her supervised parenting time with Child, had not written to Child, had failed to "recognize" Child's seventh and eighth birthdays, and had not spent "any significant time on the telephone with [Child]." App. at 62. The conclusion that Mother's telephone contacts were not "significant" communication was based on the court's finding that stated, in relevant part:

12. Records of telephone calls were put into evidence, and they show that Natural Mother made 45 phone calls to [Child] in the more than eighteen (18) months from March 20, 2018 to October 8, 2019. The total amount of telephone time represented by those calls was 265 minutes, so an average of less than fifteen (15) minutes per month. In the six (6) months before the Petition in this cause was filed, there were eleven (11) calls made for a combined total of 83 minutes. That is an average of less than fourteen (14) minutes per month. In the twelve (12) months before the Petition was filed, there were 30 calls made for a total of 191 minutes. That is an average of less than sixteen (16) minutes per month. This Court does not find that to be significant communication. In those twelve (12) months, there were three (3) months with no calls and three months with one (1) call.

App. at 61-62.

[12] As our Supreme Court stated in E.B.F. ,

[a] determination on the significance of the communication is not one that can be mathematically calculated to precision ... [or] measured in terms of units per visit. In re Adoption of J.P. , 713 N.E.2d 873, 876 (Ind. Ct. App. 1999). Even multiple and relatively consistent contacts may not be found significant in context. Id . But a single significant communication within one year is sufficient to preserve a non-custodial parent's right to consent to the adoption. In re Adoption of Subzda , 562 N.E.2d 745, 749 (Ind. Ct. App. 1990).

93 N.E.3d at 763 (emphasis added); see also In re Adoption of J.T.A. , 988 N.E.2d 1250, 1254 (Ind. Ct. App. 2013) (holding "abandonment," as used in the statute, means "any conduct by a parent that evinces an intent or settled purpose to forego all parental duties and relinquish all parental claims to the child" (quotation and citation omitted)), trans. denied .

[13] Thus, in Williams v. Townsend , for example, the parent's occasional card or letter from jail and one telephone call to his child within the relevant six-month period was only "token" communication. 629 N.E.2d 252, 253-54 (Ind. Ct. App. 1994). On the other hand, in McElvain v. Hite , for example, we held that four visits with the children during the prior one year was sufficient to show significant communication and lack of intent to abandon the children. 800 N.E.2d 947, 949 (Ind. Ct. App. 2003) ; see also In re Adoption of D.H. , 135 N.E.3d 914, 924 (Ind. Ct. App. 2019) (holding the non-custodial parent's one telephone call and several texts to custodial parent seeking additional parenting time within the relevant time period "suffice[d] for purposes of preserving [parent's] right to consent to the adoption,"...