IN RE: the ADOPTION OF L.A.S. and A.R.S. (2025)

MEMORANDUM DECISION

[1] E.A.S. (Father) saw his two young children, L.A.S. and A.R.S. (Children), four times in four years and provided no financial support for most of that period. During part of that time, Father was incarcerated for hitting and seriously injuring his fiancée with his truck. Father's only claimed efforts to parent Children during his lengthy incarceration were unanswered phone calls to Mother. When B.S. (Stepfather) petitioned to adopt Children, the trial court found Father's consent to the adoption was unnecessary because Father had abandoned Children and failed to support or significantly contact them. Father appeals, claiming the court abused its discretion. Finding clear and convincing evidence supports the trial court's determination of Father's abandonment of and lack of significant contact with Children, we affirm.

Facts

[2] Father and C.S. (Mother) were married in 2019, after the birth of L.A.S. in 2017 and A.R.S. in 2018. Their relationship was marked by domestic violence allegations. In March 2020, Father spent a weekend in jail after allegedly holding a knife to Mother's throat while L.A.S. was in her arms. Father ultimately was not prosecuted because Mother “dropped those charges” over concerns about continuing to share a home with Father. Tr. Vol. II, p. 9.

[3] The violence escalated. In June 2020, Father drove Mother and Children to a remote location before attacking Mother and punching her in the ribs. Mother photographed her injuries from these alleged attacks. Then, in December 2020, while at home with Children, Father punched Mother in the face. Mother reported other incidents of domestic violence, though Father generally denied such conduct. The couple separated in January 2021, and Mother filed for divorce nine months later.

[4] The separation did not end the turmoil. Father threw Mother's belongings in a snowbank. He also sent text messages to Mother calling her obscene names and threatening harm to her and her car. According to Father, he committed these acts while in “a fit of rage” and “probably drunk.” Id. at 45. Soon after, all windows in Mother's car were shattered, although Father denied responsibility. Father also threatened self-harm. When his home burned down, Mother accused him of arson, though Father denied this and was never charged.

[5] During this period, when Mother would block Father's number to prevent his direct contact, Father simply would contact her anew by using a different number, either by way of a new phone or a computer application. Mother obtained a protective order against Father in February or March 2021, and Father later was jailed for violating it. The record does not reveal details of that order.

[6] Mother and Children began living with Stepfather after Mother's separation from Father. Although Father did not provide support for Children in 2021, he began making child support payments in February 2022 through a wage withholding order as required by a provisional order in the dissolution action. These payments continued until approximately October or November 2022.

[7] On November 18, 2022, the dissolution court entered a decree ending the marriage and awarding both physical and legal custody of Children to Mother and parenting time to Father. The next weekend, while exercising parenting time with Children, Father was arrested for hitting his fiancée with his truck and has remained incarcerated ever since. The dissolution court suspended Father's parenting time with Children after his arrest. Although Father originally was accused of attempted murder and other offenses, he ultimately pleaded guilty to leaving the scene of an accident resulting in serious bodily injury and was sentenced to seven years imprisonment in April 2023.

[8] Father thereafter called Mother from prison one to two times weekly. Mother refused to answer the calls because she did not wish to pay for Father's phone calls from prison. However, she conceded that the effect of her actions was to prevent Father from speaking to Children, who were early elementary school age and lacked phones of their own. Meanwhile, Father maintained regular phone and in-person contact with his other child from a different relationship, including writing letters and sending gifts to that child. Father made no similar efforts with Children but claimed that he lacked Mother's address until May 2024. Father has seen Children only four times since early 2021, despite not being incarcerated for the hit-and-run offense until November 2022.

[9] In July 2023, Father wrote to the dissolution court from prison to request reinstatement of his parenting time. The trial court declined to act on the letter other than noting that Father's request should be in the form of a properly served motion. Father did nothing more in the dissolution court to reinstate his parenting time. After having paid no support for Children for approximately 16 continuous months, Father petitioned to stay his child support in March 2024 until his release. The dissolution court granted Father's petition the next month.

[10] On May 14, 2024, Mother and Stepfather petitioned to allow Stepfather to adopt Children without Father's consent. They alleged that Father's consent to the adoptions was not required under the adoption statutes because Father had: (1) failed to communicate significantly with Children for a period of at least one year without justifiable cause; (2) knowingly failed to financially support Children when able to do so for a period exceeding a year; and (3) through such inaction, abandoned Children. Stepfather also alleged Father's consent was unnecessary because Father was unfit to be a parent.

[11] After an evidentiary hearing three months later, the trial court found that Mother and Stepfather had presented clear and convincing evidence that Father's consent was statutorily unnecessary. However, the court's orders entered separately for each child did not specify the basis for its ruling. After a later hearing, the court granted Stepfather's adoption petitions over Father's objection. In each of the virtually identical adoption decrees, the trial court elaborated on its reasons for finding Father's consent was unnecessary:

The evidence at the hearing disclosed that the biological Father has gone years without significant or meaningful communication, interaction or contact with the child and failed to care for and support the child when able to do so. Biological Father only made token efforts to remain involved in the child's life. Biological Father demonstrated a lack of mental stability, made notions of self-harm readily known, and made threats to cause harm to Mother and others. Father has been incarcerated for a significant period of time and is currently serving a seven-year sentence to the Department of Corrections. Biological Father had no contact with the dissolution court when the issues of his child's custody and parenting time were being determined. While biological Father did try to contact the dissolution court-post-decree, that contact was rejected and biological Father took no other official actions to enforce his parenting rights. The Court finds that biological Father's efforts to call Mother periodically was not a significant attempt to show contact and communication with his child, but rather a token effort that was aimed more at maintaining contact with Mother. Biological Father's actions make it clear that he had no real desire to be involved in his child's life and that he had abandoned and deserted the child, providing no support and no contact or communication to the child.

Appellee's App. Vol. II, p. 16. Father appeals.

Discussion and Decision

[12] We review adoption decisions with considerable deference to the trial court, recognizing its superior position to judge the facts, assess witness credibility, and “get a feel for the family dynamics.” In re 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)). Accordingly, we presume the trial court's decision is correct, and the appellant (here, Father) bears the burden of rebutting this presumption. Id. We do not disturb the decision “unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.” Id. (quoting In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014)). In reaching this determination, we neither reweigh the evidence nor judge witness credibility and examine only the evidence in the light most favorable to the judgment. Id.

[13] A natural parent “enjoys special protection” in adoption proceedings, and courts “strictly construe our adoption statutes to preserve the fundamentally important parent-child relationship.” Id. Only “under carefully enumerated circumstances” may an adoption proceed without the consent of both parents. Id. (quoting In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010)). These circumstances are set forth in Indiana Code § 31-19-9-8 (“Consent Statute”), which provides in relevant part:

(a) Consent to adoption ․ 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.

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(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.

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(b) If 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.

[14] Mother and Stepfather bore the burden of proving by clear and convincing evidence that Father's consent to the adoptions was not required under at least one of the subsections of the Consent Statute. See In re Adoption of T.L., 4 N.E.3d at 662. The adoption petitions invoked several of the Consent Statute's subsections—specifically, subsections (a)(1) and (b) (abandonment), (a)(2) (lack of communication or support), and (a)(11)(A) (parental unfitness).

[15] Based on its statements in the adoption decrees, the trial court appears to have found that Father's consent was unnecessary because he abandoned Children by failing without justifiable cause to communicate significantly with or to support Children for at least a year when able to do so. Although the court appeared to allude to Father's fitness to parent, it made no specific findings that Father was unfit. Considering the evidence most favorable to the judgment and our significant deference to the trial court in family law matters, we cannot say that the trial court clearly erred in concluding that Father's consent to the adoptions was unnecessary.

I. Insignificant Communication

[16] Under the Consent Statute, a parent's consent is not required if, for a period of at least one year, the parent “fails without justifiable cause to communicate significantly with the child when able to do so.” Ind. Code § 31-19-9-8(a)(2)(A). “It is not necessary that the period of non-communication be the year immediately prior to the filing of an adoption-termination petition.” In re Adoption of Ryan L., 435 N.E.2d 624, 626 (Ind. Ct. App. 1982).

[17] Whether a parent's communication is significant “cannot be mathematically calculated to precision.” In re Adoption of I.B., 163 N.E.3d at 276. Even multiple, relatively consistent contacts may not be found significant under particular circumstances. Id. In this case, the record viewed most favorably to the judgment shows two distinct periods, each exceeding one year, during which Father unjustifiably failed to communicate significantly with Children.

A. Late November 2022 to May 14, 2024 (While Incarcerated)

[18] Father was incarcerated continuously during this period and had no contact with Children. Imprisonment alone is not a justifiable reason for failing to maintain significant communication with one's child. K.H. v. M.M., 151 N.E.3d 1259, 1267 (Ind. Ct. App. 2020). However, incarceration “unquestionably alters the means for significant communication.” Id. “What constitutes insignificant communication with a free parent may be significant in relation to an incarcerated parent with limited access to his child.” Id.

[19] Father claims he diligently attempted to contact Children by calling Mother one to two times weekly, but she thwarted his efforts by not answering his calls. “Efforts of a custodial parent to hamper or thwart communication between parent and child are relevant in determining the ability to communicate.” In re Adoption of C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006). But “to preserve the consent requirement for adoption, the level of communication with the child must be significant ․ and ․ more than ‘token efforts’ on the part of the parent to communicate with the child.” Id. (quoting language from Ind. Code § 31-19-9-8). “The reasonable intent of [the Consent Statute] is to encourage non-custodial parents to maintain communication with their children and to discourage non-custodial parents from visiting their children just often enough to thwart the adoptive parents’ efforts to provide a settled environment for the children.” Id.

[20] The trial court found that although Father claimed he attempted to contact Children during his incarceration by calling Mother at least twice weekly, these efforts were not credible attempts to maintain a relationship with Children. Instead, the court found that these calls were part of Father's continuing effort to maintain contact with Mother. The evidence supports this determination.

[21] Father's communications with Children starkly contrasted with his contacts with his other child from a different relationship. While Father maintained regular contact with that child—calling, drafting letters and drawings, and sending gifts—he made no similar efforts with Children. Although Father blamed this discrepancy on his lack of Mother's address, the record contains no evidence of any efforts by Father to obtain it. He had known both Mother and Stepfather for years, and Children lived with Mother and Stepfather in the county adjacent to Father's home. If nothing else, Father could have enlisted the dissolution court's involvement by petitioning for an address at which he could contact Children by mail. Instead, the only petition that Father filed was to suspend his child support obligation as to Children. The record shows that Father, despite having the knowledge, ability, and family support to navigate communication and other child-related issues while incarcerated, failed to use these tools to maintain contact with Children. This selective approach to maintaining parental relationships reasonably suggests that Father's phone calls to Mother were not genuinely aimed at fostering a relationship with Children.

[22] Additionally, the timing and context of Father's communication attempts raised questions about their purpose. Although Father rarely saw Children during the parties’ pre-dissolution separation, he continued to maintain contact with Mother through messages threatening violence and property damage and expressing suicidal ideation. When Father had the opportunity to assert his parental rights during dissolution hearings at which custody matters were being determined, he failed to appear. After the dissolution proceedings ended and Father was incarcerated for hitting his fiancée with his truck, he routinely called Mother, who by then was living with Stepfather. This evidence of Father's lack of contact with Children and pattern of using communication to control Mother supports the trial court's conclusion that Father's calls while incarcerated were “not a significant attempt to have contact and communication with [Children], but rather a token effort that was aimed more at maintaining contact with Mother.” Appellee's App. Vol. II, p. 16.

[23] Because Father made only token efforts to contact Children from late November 2022 to May 2024—a period of nearly eighteen months—the trial court did not clearly err in determining that Father's consent to the adoption was unnecessary under the Consent Statute. Ind. Code § 31-19-9-8(a)(2)(A); In re Adoption of T.H., 677 N.E.2d 605, 607 (Ind. Ct. App. 1997) (affirming trial court's ruling that father's consent to adoption was unnecessary because father's non-communication with child was not justified by emotional difficulties, the child's changes of address, distance to child's home, and a difficult relationship with the other parent).

B. February 2021 Through November 2022 (Not Incarcerated)

[24] Even if Father's lack of communication with Children from November 2022 through May 2024 did not render his consent unnecessary, his minimal contact with Children during the prior 18 months did. From February 2021 (shortly after Mother and Father separated) to late November 2022 (when Father was incarcerated), the evidence most favorable to the judgment shows that Father saw Children only four times. The record contains no evidence of phone calls or letters from Father to Children during that period. Nor does the record reveal any obstructions to parenting time that would have prevented Father from contacting Children during that 18-month period.

[25] This limited contact by Father with Children between February 2021 to November 2022 could reasonably be viewed under the Consent Statute as mere token, not significant, efforts over a period of at least one year that rendered his consent to the adoption unnecessary. Ind. Code § 31-19-9-8(a)(2)(A); In re Adoption of J.P., 713 N.E.2d at 876 (finding that parent's near monthly visits that began four months after child was returned to Indiana did not constitute significant communication for purposes of the Consent Statute).

[26] This period of non-significant communications—as with the November 2022-May 2024 period—qualified under the Consent Statute to render Father's consent to the adoption unnecessary. Ind. Code § 31-19-9-8(a)(2)(A); In re Adoption of T.H., 677 N.E.2d at 607. Given our deferential standard of review, we cannot say that the trial court clearly erred in finding clear and convincing evidence that Father failed without justifiable cause to communicate significantly with Children for a one-year period when he was able to do so.

[27] Because the Consent Statute is written in the disjunctive, this finding alone justified the trial court's determination that Father's consent to the adoptions was unnecessary. In re Adoption of J.T.A., 988 N.E.2d 1250, 1254 (Ind. Ct. App. 2013) (noting that “each of the sub-sections [of the Consent Statute] provides an independent ground for dispensing with consent”). As the trial court's finding that Father failed to communicate significantly with Children when able is related to its determination that Father abandoned Children, we proceed to address Father's abandonment arguments.

II. Abandonment

[28] The Consent Statute renders a parent's consent to adoption of his child unnecessary “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.” Ind. Code § 31-19-9-8(a)(1). A child may be deemed abandoned when the parent makes only token efforts to communicate with the child. Ind. Code § 31-19-9-8(b). We have already determined that the trial court did not err in finding that Father, when able to communicate with Children, made only token efforts to do so during the 18 months immediately before the filing of the adoption petition. Accordingly, the court also did not err in determining that Father's consent was not necessary because he had abandoned Children through this lack of communication. Ind. Code § 31-19-9-8(a)(1), (b).

III. Conclusion

[29] Clear and convincing evidence supports the trial court's determination that Father's consent to Children's adoption by Stepfather was not required due to Father's lack of communication with and abandonment of Children. We therefore affirm the trial court's judgments.¹

FOOTNOTES

1.   As we have found multiple independent grounds for affirming the trial court's judgments, we need not address Father's additional arguments that Mother and Stepfather did not prove Father's parental unfitness or failure to support Children when he was able.

Weissmann, Judge.

[30] May, J., and Scheele, J., concur.