In re Adoption of B.A.B.N. and K.E.J.N. B.N. v. Q.S. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 17 2018, 9:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Ryan P. Dillon Shannon L. Robinson
Dillon Legal Group, P.C. Shannon Robinson Law
Franklin, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Adoption of B.A.B.N. October 17, 2018
and K.E.J.N. Court of Appeals Case No.
18A-AD-978
B.N.,
Appeal from the Johnson Superior
Appellant-Respondent, Court
v. The Honorable Kevin M. Barton,
Judge
Q.S., Trial Court Cause Nos.
41D01-1612-AD-62, -63
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] B.N. (“Father”) appeals the adoption decree terminating his parental rights to
B.A.B.N. and K.E.J.N. (“the Children”) and granting the adoption petition
filed by Q.S. (“Stepfather”). Father argues that the trial court erred in finding
that his consent for adoption was not required. Finding no error, we affirm.
Facts and Procedural History
[2] The following facts are undisputed. In 2008, the Children were born out of
wedlock to Father and K.S. (“Mother”). Prior to May 2014, Father had
primary physical custody of the Children. On May 5, 2014, the Monroe Circuit
Court granted Mother’s petition for modification of custody, awarded her
primary physical custody and sole legal custody of the Children, and granted
Father supervised parenting time. On June 29, 2014, Mother filed a motion to
modify Father’s parenting time. Father failed to appear at the hearing on
Mother’s motion. The Monroe Circuit Court issued an order modifying
Father’s parenting time such that it would be at Mother’s sole discretion and be
supervised by the Children’s paternal grandparents. On August 13, 2014,
Mother filed a petition for an ex parte order for protection in the Monroe
Circuit Court. The Monroe Circuit Court issued an ex parte order for
protection for a period of two years, which was renewed in 2016 for an
additional two years through August 9, 2018. In the protection order, Father
was enjoined was contacting or directly or indirectly communicating with
Mother, was prohibited from entering Mother’s residence, and was ordered to
stay away from her residence. The Children were not listed as family members
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subject to the protection order, and the protection order did not prohibit Father
from contacting the Children directly or indirectly.
[3] Starting in May of 2014, Father was incarcerated for a significant period. From
the first part of November 2014 to March 13, 2015, he was incarcerated in the
Morgan County Jail. Father then lived with the Children’s paternal grandfather
(“Grandfather”) until Father was again incarcerated on May 14, 2015.1 From
May 14, 2016, to December 8, 2016, Father was incarcerated in the Monroe
County Jail, and then transported to the Morgan County Jail where he
remained until May 2, 2017.
[4] During 2015 when Father lived with Grandfather, Father had visitation with
the Children when they were at Grandfather’s residence. The Children were at
Grandfather’s home with Mother’s permission, but she was unaware of the
visitation. Other than that period of visitation, Father had no contact with the
Children after his incarceration in November 2014.
[5] On December 12, 2016, Stepfather filed a verified petition for adoption. Father
filed an objection, and on August 2, 2017, the trial court held a hearing on
whether Father’s consent was required. On October 3, 2017, the trial court
entered its order on Father’s consent (“October 2017 Order”), in which it
concluded that between May 14, 2015, and December 12, 2016, Father failed
without justifiable cause to communicate significantly with the Children when
1
The appealed order does not state when Father was released from this incarceration or where he resided
after his release.
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able to do so, and therefore his consent was not required under Indiana Code
Section 31-19-9-8(a)(2(A). In reaching this conclusion, the trial court made the
following relevant findings:
19. During the period of May 14, 2015 through December 12,
2016, Father was continuously incarcerated. Indiana has
recognized that the fact of imprisonment by itself does not
operate automatically to satisfy the waiver provisions of Indiana
Code 31-19-9-8 and it does not foreclose the possibility of such a
finding. The fact of imprisonment is a circumstance to be taken
into account in the ability of a parent to communicate
significantly so that what may be insignificant for a free person
may be significant for an incarcerated person.
20. The fact of imprisonment precluded visitation. The fact that
visitation did not occur cannot be held against Father.
21. No evidence was submitted that Father could have made any
telephone calls to the children. Realistically, any telephone calls
would have to be placed to Mother. Mother testified that she
obtained the Ex Parte Order For Protection to prevent Father
from contacting her. Shortly thereafter, Mother changed her
telephone number. The fact that Father placed no telephone calls
to the [C]hildren cannot be held against Father.
22. The only means that Father had to communicate with the
[C]hildren during his incarceration was by written letter. This
Father did not do. Father had no communication with the
[C]hildren. Nothing prevented Father from writing the
[C]hildren letters. Father is accorded the right under Section
I(A)(4) of the Indiana Parenting Time Guidelines. The
[C]hildren were not protected persons subject to the Ex Parte
Order For Protection entered in favor of Mother. Written
communication would not have been prohibited.
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Appellant’s App. Vol. 2 at 60-61.
[6] On February 28, 2018, the trial court held a hearing on the best interest of the
Children, at which Father was permitted to testify regarding his efforts to
communicate with the Children between May 14, 2015, and December 12,
2016. On March 15, 2018, the trial court issued the adoption decree, in which
it found in relevant part as follows:
3. At hearing on February 28, 2018, [Father] was permitted to
testify that he sent letters to [Grandfather] for [him] to give to the
[Children]. However, [Grandfather] testified that he did not give
the letters to the [Children] for fear of antagonizing [Mother] and
adversely effecting his opportunity for visitation with the
[Children]. [Grandfather] testified that he had possession of the
letters.
4. Inasmuch as the Court’s [October 2017 Order] was based
upon the absence of communication by [Father], the Court
directed that the letters be provided to the court. Upon the letters
being provided to the court, the court stated that it would
distribute the letters to counsel and determine if objection were to
be made to the receipt of the letters into evidence.
5. [Grandfather] delivered two letters to the court. However, the
letters were not authored by [Father]. The letters were in the
nature of ex parte communication with the court from non-
witnesses. The court does not receive the letters.
6. In addition, the court received from [Grandfather] an audio
book that had been recorded by [Father] for the [Children]. The
book was not within the terms of the court’s directive. [Father]
testified that the book was recorded while he was incarcerated,
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however, the date of the recording and the date of delivery of the
book were not established.
7. The Court does not reconsider [its October 2017 Order].
Appealed Order at 1-2. The trial court found that adoption was in the
Children’s best interest, terminated Father’s parental rights, and granted
Stepfather’s petition for adoption. This appeal ensued.
Discussion and Decision
[7] Father argues that “[u]nder the facts and circumstances of this case, specifically
his incarceration, Mother’s protection order, and Grandfather’s failure/decling
to relay Father’s letters and audio book, he had justifiable cause for his failure
to communicate significantly with [the Children].” Appellant’s Br. at 7. When
reviewing an adoption order, “we presume that the trial court’s decision is
correct, and the appellant bears the burden of rebutting this presumption.” In re
Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014), trans. denied. We
will not disturb the trial court’s ruling unless the evidence leads to but one
conclusion and the trial court reached an opposite conclusion. Id. Where, as
here, the trial court has made findings of fact and conclusions thereon, we apply
a two-tiered standard of review: we first determine whether the evidence
supports the findings and then whether the findings support the judgment. In re
Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). Factual findings are clearly
erroneous where the record lacks any evidence or reasonable inferences to
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support them, and a judgment is clearly erroneous where it is unsupported by
the findings and the conclusions based on those findings. Id.[8] In an adoption proceeding, the petitioner must prove by clear and convincing
evidence that a noncustodial parent’s consent is not required for the adoption.
In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).
In reviewing a judgment requiring proof by clear and convincing
evidence, we may not impose our view as to whether the
evidence is clear and convincing but must determine, by
considering only the probative evidence and reasonable
inferences supporting the judgment, whether a reasonable trier of
fact could conclude that the judgment was established by clear
and convincing evidence. Further, we may not reweigh evidence
or assess witness credibility.
Id. (citations omitted).
[9] In finding that Father’s consent was not required, the trial court applied Indiana
Code Section 31-19-9-8(a)(2)(A), which provides in relevant part that a
noncustodial parent’s consent to adoption is not required where the child has
been in the custody of another person for at least one year and the parent “fails
without justifiable cause to communicate significantly with the child when able
to do so.”
The test for communication is not whether the noncustodial parent had no
communication with the child, but whether he failed without justifiable cause to
have significant communication when able to do so. In re Adoption of S.W., 979
N.E.2d 633, 640 (Ind. Ct. App. 2012). “[T]he purpose of this statutory
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provision is to foster and maintain communication between non-custodial
parents and their children, not to provide a means for parents to maintain just
enough contact to thwart potential adoptive parents’ efforts to provide a settled
environment to the child.” Id. (citation and quotation marks omitted).
[10] From March of 2015 until the petition was filed in December 2016, a period of
one year and nine months, Father had no communication with the Children.
While Father asserts that his incarceration and the protection order should be
considered when determining whether his lack of communication was justified,
he ignores that the trial court specifically found that his imprisonment
prevented visitation and therefore his lack of visitation would not be held
against him. The trial court also specifically found that the protection order and
the fact that Mother changed her telephone number prevented Father from
phoning the Children, and therefore his failure to call the Children would not
be held against him.
[11] That leaves the letters and audiobook that Father allegedly created while
incarcerated and allegedly delivered to Grandfather to give to the Children. In
its October 2017 Order, the trial court found that Father could have written
letters but had not, and therefore his lack of communication was unjustifiable.
At the best interest hearing, Father and Grandfather testified that Father wrote
letters and recorded an audiobook, but Grandfather failed to give them to the
Children. Grandfather testified that he had the letters. Further, Father argues
that Mother acknowledged that she received one letter from him but refused to
let the Children see it. Tr. at 171.
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[12] Father ignores that the trial court directed that the letters be provided to it, but
none were submitted. Although an audio book read by Father was submitted,
the date of the recording and the date of the delivery of the book were not
established. Father’s argument is merely an invitation to reweigh the evidence
and judge witness credibility which we will not do. Adoption of M.S., 10 N.E.3d
at 1279. In Williams v. Townsend, 629 N.E.2d 252 (Ind. Ct. App. 1994), another
panel of this Court affirmed the trial court’s finding that Williams failed to
communicate significantly with his child for more than one year, noting that
Williams offered no evidence of any of the hundred or so letters that he claimed
to have written and that “trial courts retain the prerogative to believe or
disbelieve self[-]serving testimony.” Id. at 254. We cannot say that the
evidence leads to but one conclusion and the trial court reached the opposite
conclusion. As such, we conclude that the trial court did not err in concluding
that Father failed to communicate with the Children without justifiable cause
for a period of one year, and therefore his consent to the adoption was not
required. Therefore, we affirm the adoption decree.
[13] Affirmed.
Najam, J., and Pyle, J., concur.
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