Opinion
22A-AD-2798
04-26-2023
L.U., Appellant-Respondent, v. C.D., Appellee-Petitioner.
ATTORNEY FOR APPELLANT Alexander L. Hoover Walter & Hoover Plymouth, Indiana ATTORNEYS FOR APPELLEE Lindsay N. Shively James E. Easterday Easterday Houin, LLP Plymouth, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marshall Circuit Court The Honorable Curtis D. Palmer, Judge Trial Court Cause No. 50C01-2004-AD-5
ATTORNEY FOR APPELLANT
Alexander L. Hoover
Walter & Hoover
Plymouth, Indiana
ATTORNEYS FOR APPELLEE
Lindsay N. Shively
James E. Easterday
Easterday Houin, LLP
Plymouth, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Respondent, L.U., appeals the trial court's Order, dispensing with the need for his consent to the adoption of the minor child, G.U. (Child).
[¶2] We affirm.
ISSUE
[¶3] L.U. presents this court with one issue, which we restate as: Whether the trial court's determination that his consent to Child's adoption was unnecessary is clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[¶4] L.U. and Samantha Jones (Mother) are the biological parents of Child, who was born on May 9, 2015. L.U.'s paternity to Child was established by affidavit. Mother has had full custody of Child since birth. Mother and Child were living with Child's maternal grandmother when Child was born; Mother and Child have never lived with L.U. Child was born prematurely and spent the first three and one-half months of her life in the hospital. While Child was hospitalized, L.U. visited Child two or three times. After Child's release from the hospital, Mother and Child went to L.U.'s mother's (Paternal Grandmother) house, where L.U. was living, on a few occasions. L.U.'s last contact with Child occurred in September 2015, when Child was approximately six months old.
[¶5] L.U. has been in jail or prison for most of Child's life, and he is currently incarcerated in a federal penitentiary in Texas. After 2015 and for "a few years[,]" Mother kept L.U. informed via Facebook Messenger about Child's health, school, and activities. (Transcript p. 19). In 2016, Mother began dating C.D. At the end of 2016, Mother and C.D. moved with Child and their other children to Plymouth, Indiana, and Mother provided L.U. and Paternal Grandmother with that address. L.U. contacted Mother in 2017 but did not ask about Child. In the spring of 2019, Mother, C.D., Child, and the rest of the family moved to Argos, Indiana, and Mother again provided L.U. and Paternal Grandmother with the new address for herself and Child. Mother and Child have lived at the Argos address ever since. On November 5, 2017, Mother and C.D. were married.
[¶6] From March 2019 to September 5, 2019, L.U. was on work release, but he did not have any contact with Child. While L.U. was on work release, Mother received two child support payments which were garnished from L.U.'s paycheck. Mother has received no other child support from L.U. for Child. Paternal Grandmother came to Child's home in Argos for Child's May 5, 2019, birthday. Mother has had the same telephone number since approximately 2017, and she provided that number to L.U. via Facebook Messenger.
[¶7] On April 17, 2020, C.D. filed his petition to adopt Child in which he alleged that L.U.'s consent to the adoption was not required due to L.U.'s failure to communicate with Child for over four years and L.U.'s abandonment of Child. On April 17, 2020, Mother filed her consent to Child's adoption by C.D. On April 20, 2020, in response to a motion by C.D., the trial court entered an order waiving the statutorily-required supervision period and report by a child placement agency and directed that the matter should proceed to a final hearing. On May 4, 2020, L.U. filed his timely Motion to Contest the Adoption.
[¶8] On August 17, 2022, after a series of hearings were vacated due to L.U.'s unavailability and after L.U. was appointed counsel, the trial court held a hearing on the issue of whether L.U.'s consent was required for Child's adoption. Mother testified that L.U. had only had contact with Child approximately six times in Child's life and that all of those contacts occurred before September 2015. Mother stated that after September 2015, L.U. had not contacted Child by letter, telephone call, video chat, or through sending a birthday card. Mother denied ever refusing L.U. parenting-time that he had requested, although she did require that L.U., who struggled with an addiction to methamphetamine, be sober in order to visit with Child. Mother denied blocking Paternal Grandmother on Facebook. During his testimony, L.U. acknowledged that he had never attempted to contact Child from 2016 to 2018 while he was incarcerated. When asked for an explanation, L.U. stated "[t]o be truly honest, I do not know, yeah." (Tr. p. 33). L.U. stated that, since 2018, he has kept in touch with his other two children through visits, letters, and telephone calls. L.U. claimed that he would have been in contact with Child if he had had her contact information. L.U. confirmed that he has always been in contact with Paternal Grandmother.
[¶9] On August 25, 2022, the trial court issued its Order, entering findings in support consistent with the aforementioned facts. Concerning L.U.'s access to contact information for Child and his incarceration, the trial court found in relevant part as follows:
16. [Father and Paternal Grandmother] have always had the address, telephone number and/or Facebook Messenger contact for [M]other. [F]ather has always maintained contact with [Paternal Grandmother].
17. After her release from the hospital, [C]hild lived with [M]other in Mishawaka and [F]ather knew of this address. Mother later moved to Plymouth and provided this new address to [F]ather, although he never attempted to visit there. She then moved in 2019 to her current residence in Argos and provided this address to [F]ather (and to [P]aternal [G]randmother).
18. [P]aternal [G]randmother last had contact with [C]hild when she came to [C]hild's birthday party at [M]other's home in Argos in May of 2019. [M]other still lived at this same address.
(Appellant's App. Vol. II, pp. 72-73). The trial court concluded that L.U.'s consent to Child's adoption was not required because L.U. had failed to communicate significantly with Child without justifiable cause when L.U. was able to do so and because L.U. had abandoned Child. On October 25, 2022, the trial court held a final hearing on Child's adoption and entered its Decree of Adoption of Child by C.D.
[¶10] L.U. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶11] L.U. challenges the evidence supporting the trial court's determination that his consent to Child's adoption was unnecessary. The trial court entered findings of fact and conclusions thereon in support of its Order. Our supreme court recently re-iterated our standard of review in such matters as follows:
We generally show 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. So, 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. And we will not disturb that decision unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion. We will not reweigh evidence or assess the credibility of witnesses. Rather, we examine the evidence in the light most favorable to the trial court's decision.Matter of Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quotations and citations omitted); see also In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) (examining the trial court's order dispensing with a parent's consent to adoption for clear error).
II. Failure to Communicate Without Justifiable Cause
[¶12] As a general matter, a biological parent's consent to adoption is required. In re Adoption of K.T., 172 N.E.3d 326, 336 (Ind.Ct.App. 2021), trans. denied; Ind. Code § 31-19-9-1. However, under certain circumstances enumerated in the adoption statutes, the trial court may dispense with parental consent and allow the adoption of the child. In re Adoption of W.K., 163 N.E.3d 370, 374 (Ind.Ct.App. 2021), trans. denied; I.C. § 31-19-9-8. Two of those circumstances are implicated by this case, namely, (1) where a parent is adjudged to have abandoned or deserted the child for at least six months immediately preceding the date of the filing of the petition for adoption, and (2) where the parent has failed without justifiable cause to communicate significantly with the child when able to do so for a period of at least one year. I.C. §§ 31-19-9-8(a)(1)-(2). The petitioner in the adoption proceeding bears the burden of proving by clear and convincing evidence that the parent's consent is unnecessary. I.C. § 31-19-10-1.2(a).
[¶13] Here, the evidence established that both L.U. and Paternal Grandmother always had Mother's and Child's current address and that L.U. had Mother's telephone number since at least 2017. Despite having this contact information, L.U. had not seen Child in person since September 2015, nor had he ever sent Child a letter, arranged for a telephone or video call with Child, or sent Child any birthday or holiday cards. While L.U. has been incarcerated for most of Child's life, the fact that he kept in communication with his other children through visits, telephone calls, and letters indicates that he could have been in contact with Child but was not. Mother testified that she had provided L.U. with information about Child for several years, that she had welcomed L.U. to visit with Child and gave him their address but he never showed up, and that she never denied L.U. parenting time with Child. We conclude that this evidence clearly and convincingly showed that L.U. failed to communicate with Child without justifiable cause for at least a one-year period. See M.M. v. A.C., 160 N.E.3d 1133, 1138 (Ind.Ct.App. 2020) (upholding trial court's order dispensing with a mother's consent where it was established that the mother had not seen, called, visited, or sent cards or presents for three years and the adoptive stepmother testified that she and the father were not prohibiting communication); see also I.B., 163 N.E.3d at 276-77 (no significant communication requiring consent to adopt, where the mother spoke to the child once a month on the telephone during the relevant year, but where the mother never sent the child any letters or visited and mother did not assert that her efforts at substance abuse recovery prevented her contact with the child).
[¶14] On appeal, L.U. acknowledges the evidence in the record showing that he did not contact Child after September 2015 due to "his incarceration and/or his admitted drug use." (Appellant's Br. p. 8). L.U. argues that his lack of communication with Child was justified because he did not have contact information for Child and because Paternal Grandmother, who was his main point of contact with Mother, had been blocked by Mother on Facebook. L.U. reasons that Paternal Grandmother helped him to keep in contact with his other children and that she would have done so with Child if she had had Child's contact information. However, as L.U. also acknowledges on appeal, there was conflicting evidence regarding whether he had access to Child's contact information, as Mother testified that she had always kept L.U. and Paternal Grandmother informed of Child's address, Mother had not blocked Paternal Grandmother on Facebook, and, indeed, Paternal Grandmother had visited Child's home on May 5, 2019, a home where Child continued to reside. Pursuant to our standard of review, this is the only evidence that we will consider, as it is the evidence that supports the trial court's determination. See In re Adoption of S.W., 979 N.E.2d 633, 641 (Ind.Ct.App. 2012) (rejecting a father's argument based on testimony that did not favor the trial court's judgment as being contrary to the standard of review).
[¶15] L.U. also asserts that his lack of communication with Child was justified because "his methods of communication and contact with [Child] were severely limited by" his incarceration. (Appellant's Br. p. 9). However, L.U.'s own testimony showed that he communicated with his other children since 2018 through letters, telephone calls, and visits, despite his incarceration. As we have already observed, in light of this evidence, the trial court could have reasonably concluded that, despite his incarceration, L.U. had the ability to communicate with Child but simply did not. L.U.'s argument on this point requests that we reweigh the evidence, something which we will not do as part of our review. See I.B., 163 N.E.3d at 274. Concluding that clear and convincing evidence supported the trial court's determination that L.U.'s consent was not required for Child's adoption, that determination was not clearly erroneous. See id. Accordingly, we do not disturb the trial court's judgment.
Given our conclusion and the fact that Indiana Code section 31-19-9-8(a) is written in the disjunctive, we do not address the evidence supporting the trial court's determination that L.U. had abandoned Child for the six months preceding the filing of C.D.'s petition to adopt. See I.B., 163 N.E.3d at 275 (observing that each of the sub-sections of Indiana Code section 31-19-9-8(a) provides an independent ground for dispensing with consent).
CONCLUSION
[¶16] Based on the foregoing, we hold that the trial court's Order, dispensing with L.U.'s consent to adopt Child was not clearly erroneous.
[¶17] Affirmed.
[¶18] Altice, C. J. and Pyle, J. concur