IN RE: the Adoption of J.T. (Minor Child) (2025)

MEMORANDUM DECISION

Case Summary

[1] J.M. (Father) appeals the trial court's Decree of Adoption granting C.M.’s (Stepfather's) petition to adopt Father's biological child, J.T. (Child). On appeal, Father raises one issue, which we restate as whether the trial court erred in concluding that his consent to the adoption was not required. We affirm.

Facts and Procedural History 1

[2] On September 26, 2019, Child was born out of wedlock to Mother. Stepfather was present at Child's birth, but Father “[d]idn't even know the kid existed” until February 2020 when he was “hit [ ]with a DNA test” while in jail. Transcript at 21. Child lived with Mother and Stepfather, and Stepfather financially provided for both Mother and Child. In August 2020, the paternity court confirmed that Father was Child's biological father and granted Mother sole physical and legal custody of Child. In its order, the paternity court stated that because “Father is presently incarcerated, the Court will enter a $0 support Order at this time.” Exhibits at 3.

[3] On December 14, 2023, Stepfather filed a petition to adopt Child. The petition alleged that “biological father's consent is not required, due to his failure to have meaningful contact with the child, failure to support said child and his abandonment of said child[,]” and cited to Indiana Code sections 31-19-9-8(a)(1) and (a)(2) as bases for Father's consent being unnecessary. Appellant's Appendix Vol. 2 at 39. The trial court's December 18 Order and Notice of Hearing set the adoption petition for hearing on January 17, 2024, and the clerk mailed this order to Father at Plainfield Correctional Facility. Father filed a handwritten document on January 2, 2024, acknowledging receipt of the trial court's order setting the adoption and paternity cases for hearing. Father wrote that he planned to contest the adoption, and he asked the court to allow him to be present for the hearing. The trial court ultimately continued the hearing to February 28 and had Father transported from prison so he could attend. At the hearing, the court appointed counsel for Father. In the meantime, Father filed his formal notice contesting the adoption.

[4] On July 11, 2024, the trial court held a fact-finding hearing to determine whether Father's consent for adoption was required and whether adoption by Stepfather was in Child's best interests.² By that time, Child was nearly five years old. Mother and Stepfather had lived together for six years and been married for four years. Father, then thirty-three years old, had been convicted of felony sexual misconduct with a minor in 2012. Thereafter, he obtained three convictions for failing to register as a sex offender and violated his probation. He was serving a term of imprisonment in the Plainfield Correctional Facility with a projected release date of March 17, 2025.

[5] At the consent hearing, Father testified that he spent five months out of jail in 2019, just five days out of jail in 2020, and had been incarcerated ever since. Father claimed he talked to Child for “a couple minutes on video chat” while out of jail in 2020 and over the telephone while he was incarcerated in early 2021. Tr. at 17. Since then, Father admitted that he had not communicated with Child. Mother and Stepfather, however, each testified that Father had never had any contact with Child and that his testimony to the contrary was a lie. See id. at 34, 43.

[6] Throughout the consent hearing, Father and counsel for both parties used the terms “protective order” and “no contact order” interchangeably to refer to an order Mother had obtained against Father that affected his ability to communicate with her and Child. Neither party introduced copies of the order into evidence nor included further information about the order in their appellate appendices. Having to connect the dots ourselves, we note that the trial court took judicial notice of Father's 2020 criminal charge in Cause No. 61C01-2011-CM-515 (CM-515) for Class A misdemeanor invasion of privacy. In February 2024, Father pled guilty in CM-515 for violating the protective order issued in Cause No. 61C01-1902-PO-45 (PO-45) when he contacted Mother by text message from jail. We take judicial notice of PO-45.³

[7] Upon review, on February 12, 2019, over seven months before Child was born, Mother obtained an ex parte protective order restraining Father, in part, from contacting her directly or indirectly. By its terms, the protective order expired on February 12, 2021. On February 15, 2019, the Vigo County Sheriff perfected personal service on Father at his Terre Haute address. Father, for his part, testified that he was never served with the protective order and did not know it existed until his “baby mom ․ told [him] about it” in January 2021. Id. at 22.

[8] Father testified that he last talked to Mother about Child in 2020 and had not had her phone number since 2021. But Mother stated she only changed her phone number once during Child's life and that she did so after the adoption petition had been filed in 2023. In October 2023, Father filed a petition to establish correspondence with Mother for Child in the parties’ paternity action. Father testified that he filed this petition because if he tried to communicate with Mother any other way, “she could say [he] violated the [p]rotective [o]rder and give [him] a whole new charge.” Id. at 28.

[9] Ultimately, on November 13, the trial court issued a Decree of Adoption and an order from the July 11 consent hearing.⁴ The decree stated that the adoption was in Child's best interests and there was clear and convincing evidence that “[Father's] consent [was] not required pursuant to I.C. 31-19-9-8-8(A)(1) & (2) [sic] and ․ [Father] [was] an unfit parent due to his current incarceration, and the nature of his numerous criminal convictions.” Appellant's App. Vol. 2 at 85. Father appeals the trial court's consent findings in the Decree of Adoption.

Discussion and Decision

1. Standard of Review

[10] “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.’ ” Matter of Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (quoting E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018)). On appeal, “the appellant bears the burden of overcoming the presumption that the trial court's decision is correct.” In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012). We neither reweigh the evidence nor judge the credibility of witnesses. Id. We consider the evidence most favorable to the trial court's decision and the reasonable inferences arising therefrom. Id. “And we will not disturb that decision ‘unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.’ ” I.B., 163 N.E.3d at 274 (quoting In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014)).

2. Consent

[11] “A natural parent enjoys special protection in any adoption proceeding, and courts strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship.” Id. Thus, a trial court generally “may not grant a petition for adoption without the consent of the child's biological parents.” In re Adoption of A.G., 199 N.E.3d 1220, 1224 (Ind. Ct. App. 2022); see Ind. Code § 31-19-9-1(a)(2). Under certain enumerated circumstances, however, “the adoption statutes allow ‘the trial court to dispense with parental consent and allow adoption of the child.’ ” I.B., 163 N.E.3d at 274 (quoting In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010)); see also I.C. ch. 31-19-9. The party alleging that a biological parent's consent to adoption is not required has the burden of proving his or her case by clear and convincing evidence. I.B., 163 N.E.3d at 274.

[12] Specifically, consent is not required from any of the following:

(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.

(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.

․

(11) A parent if:

(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and

(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent.

I.C. § 31-19-9-8(a).

[13] Here, the trial court found that all the foregoing statutory provisions applied to Father. On appeal, Father challenges the trial court's findings with respect to each provision. However, the statute is written in the disjunctive, so the presence of only one circumstance is enough to bypass Father's consent. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). Because we conclude that the trial court did not err in finding that Father failed without justifiable cause to communicate significantly with Child for a period of at least one year, we need not address the other provisions upon which the trial court also relied.

[14] Father does not dispute that Child has been in Mother's custody since his birth in September 2019. Father concedes that there was a period of almost three years between early 2021 and late 2023 in which he neither contacted nor made an effort to contact Child.  ⁵ However, he contends that he was unable to communicate with Child because of his incarceration “for almost the entirety of Child's life” and the court's issuance of the protective order Mother requested. Appellant's Brief at 20.

[15] Father argues that Mother “greatly frustrated” his ability to communicate with Child because she “undertook no actions ․ to help facilitate or maintain any type of communication or visitation between Father and Child.” Id. at 20, 21. “A custodial parent's efforts to thwart communication between the noncustodial parent and her child are relevant to determining the non-custodial parent's ability to communicate and should be weighted in the non-custodial parent's favor.” E.B.F., 93 N.E.3d at 766. Yet custodial parents are not ordinarily under an obligation to arrange or facilitate communication between the non-custodial parent and the child. Id. Additionally, while an incarcerated parent may not be held to the same standard as a non-incarcerated parent when determining whether his communication with his child was significant, “those who ‘pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.’ ” S.W., 979 N.E.2d at 641 n.4 (quoting, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied).

[16] Father's argument that he was unable to communicate with Child during the nearly three-year period he failed do so, falls short for two reasons. First, PO-45 reflects that Father was personally served with the protective order. Subsequently, in CM-515, he was charged with and pled guilty to invasion of privacy for violating that protective order. Thus, Father personally received the protective order barring him from communicating with Mother and arguably knew that it was issued before Child's birth and expired in February 2021, yet he made no effort to communicate with Child between early 2021 and October 2023.

[17] Second, even if Father genuinely believed that an active protective order barred him from communicating with Mother and Child, the trial court properly concluded that this was not a justifiable cause for Father's lack of contact—or any lawful attempt to establish contact—for almost three years. Father testified that he first learned about a protective order in January 2021. Yet Father did not then request a hearing to argue that he should be permitted to communicate with Child. Instead, he waited until October 2023 to petition the paternity court to order Mother to correspond with him regarding Child. Due to Father's years-long failure to make any good faith effort toward establishing contact with Child, there was clear and convincing evidence before the trial court that Father failed without justifiable cause to communicate with Child for over one year.⁶ Father's consent to the adoption of Child was therefore not required.⁷

Conclusion

[18] The trial court did not err in determining that Father failed without justifiable cause to significantly communicate with Child for a period of over one year. Accordingly, Father's consent to Child's adoption was not required, and we affirm the judgment of the trial court.

[19] Affirmed.

FOOTNOTES

2.   After the trial court made findings on the record on the issue of consent, the parties agreed to continue with the best interests phase of the adoption proceeding.

3.   This Court may take judicial notice of any records of a court of this state. J.K. v. T.C., 25 N.E.3d 179, 180 n.2 (Ind. Ct. App. 2015) (citing Ind. Evidence Rule 201(b)(5)). From our review of records in our Odyssey case management system, our observations about the initiation and expiration of this protective order are consistent with the information provided by the statewide protective order database maintained by the Indiana Supreme Court at mycourts.IN.gov/PORP. Because we see no evidence that the parties referenced a separate protective order or no contact order, we will refer to this order as a “protective order.”

4.   At the end of the July 11, 2024 consent hearing, the trial court issued an order from the bench finding that Father's consent to adoption was not required and the proposed adoption was in Child's best interests. This order also purported to terminate Father's parental rights. The trial court instructed Stepfather's counsel to prepare an order on the hearing. On July 22, Stepfather filed a motion for a hearing to formally grant the adoption as to all requirements. That same day, the trial court issued an order that vacated its July 11 order, reopened the evidence, and set an adoption hearing. Before that hearing, Stepfather filed his previously omitted background check documentation. On October 30, the trial court held the adoption hearing and took the matter under advisement.

5.   Unlike the abandonment provision of Indiana Code section 31-19-9-8(a)(1), which requires abandonment to have taken place “at least six (6) months immediately preceding” the filing of the adoption petition, the relevant time period for the failure to communicate or support circumstances in subsection (a)(2) “is any one year period” in which the parent was able to communicate with or provide support for the child. In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013) (emphasis in original), reh'g denied, trans. denied.

6.   While we need not address Father's remaining arguments, he makes the serious claim that the trial court became “an advocate for [Stepfather] and violated Father's Due Process Rights” because it went beyond the allegations of the adoption petition and found that he was an unfit father due to the nature of his criminal convictions. Appellant's Brief at 24. This argument is misplaced. At the consent hearing, when questions were asked about his parental fitness, Father did not object. While we do not decide Father's argument that he was not put on adequate notice of the allegation of his unfitness, the fact that the trial court considered this evidence is not remotely similar to the trial court's conduct in the case Father cites for the proposition that the court became Child's advocate. See Harris v. Lafayette LIHTC, LP, 85 N.E.3d 871, 879 (Ind. Ct. App. 2017) (concluding that the trial court failed to act as an impartial decisionmaker where its “questions and comments belittle[d] Harris for living in government-subsidized housing and not paying” a small sum of past-due rent).

7.   Father also argues that Stepfather failed to provide him and his parents notice of the adoption proceeding under Indiana Code chapters 31-19-2.5 and 4.5. Despite his complete and active participation in the proceedings, Father argues that the adoption decree must be set aside pursuant to Indiana Code section 31-19-2.5-3(c). Notwithstanding whether Father has standing to raise this argument on behalf of his parents, Father waived this argument on appeal because he failed to raise it before the trial court. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court.”). Furthermore, Father suffered no prejudice because the trial court notified him of the adoption proceedings, he was appointed counsel early in the proceedings, and he and his attorney fully participated in the July 11 consent hearing. See J.T.A., 988 N.E.2d at 1256 n.6 (“[T]he purpose of the notice requirement is to advise the biological parent of his or her rights so that they may be protected.”).

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.