A.J., Appellant-Petitioner, v. W.L., Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] A.J. (Petitioner)—A.H.’s (Mother) significant other—appeals the dismissal of his petition to adopt A.L. (Child), the biological daughter of W.L. (Father) and Mother (collectively, the Parents), claiming that the trial court erred in determining that Father's consent to the adoption was required. Petitioner maintains that the consent determination was erroneous because the evidence established that, for at least one year, Father failed to support Child and did not communicate with her when he was able to do so.

[2] We affirm.

Facts and Procedural History

[3] The Parents began a romantic relationship approximately two years prior to Child's birth in June 2019, while they were both serving in the United States Army. Mother learned she was pregnant when she and Father returned from their deployment in Germany and were stationed at Fort Knox. At that time, the Parents were no longer in a relationship with each other; however, they discussed the pregnancy and Father indicated that he wanted to support and care for Child. Thus, in March 2019, Father voluntarily began paying $100 per month in child support directly to Mother via CashApp. The Parents also spoke by phone almost every week during the pregnancy. At some point, Mother was transferred back to Fort Riley in Kansas, and Father was stationed in Texas.

[4] When Child was born, Mother was married to D.C. Father was present at Child's birth and continued to see her. Mother separated from the military, and in August 2019, she decided to relocate to Indiana. Mother, D.C., and Child moved to Mt. Vernon. Father's travel was restricted in 2020 due to the COVID-19 outbreak; however, he remained in contact with Mother by text and communicated with her and Child multiple times throughout the year via FaceTime video.

[5] Mother and D.C. separated sometime in 2022. Shortly thereafter, Mother and Child moved to Evansville, and Mother began dating Petitioner. Father visited Child on many occasions from September 2020 through December 2022. He traveled to Evansville and Child stayed overnight with him and his family at a hotel or Airbnb during those trips. Father and his family also went to Evansville for Thanksgiving in 2022 and celebrated the holiday with Mother and her family.

[6] As Father had moved to North Carolina, he took Child there to stay with him from November 24, 2022, through December 3. Mother and her family then traveled to North Carolina, picked up Child, and took her back to Evansville. Father's travel expenses while exercising parenting time with Child included— but were not limited to—gas, food, hotel, and costs for various outings and activities. Father also purchased holiday and birthday gifts, formula, and other items for Child.

[7] In December 2022, the Parents discussed the possibility of increasing Father's time with Child and his child support obligation. Father also mentioned retaining legal counsel regarding custody, parenting time, and child support matters. Nearly a month later, Mother informed Father that neither he nor his family could have future contact with Child. On January 22, 2023, Father attempted to make an electronic child support payment to Mother. Mother refused the payment and permitted it to expire.

[8] On December 4, 2023, Father filed a Verified Petition Requesting Custody and Parenting Time (the Paternity Action). At that time, the trial court granted Father's request that he pay $100 in weekly child support on a provisional basis. The trial court also scheduled a hearing regarding parenting time. Father made consistent child support payments each week following the issuance of the interim order.

[9] On February 13, 2024, Petitioner filed a petition for adoption, to which Mother consented. Petitioner alleged, among other things, that he was Mother's significant other, that the two had resided together for a year, and that they had dated for nearly two years. Petitioner further alleged that Father's consent to adopt was not required because “[Father] has failed without justifiable cause to communicate significantly with the child in the past when able to do so for a period of at least one year.” Appellant's Appendix Vol. II at 27. Father objected to the petition for adoption, the trial court consolidated the Paternity Action with the present matter, and scheduled a hearing for September 25. Father continued to text Mother requesting contact with Child.

[10] Less than twenty-four hours before the hearing, the trial court permitted Petitioner to amend the adoption petition and further allege that Father's consent to adopt was not required because Father “has knowingly failed to provide the support and care of the child when able to do so as required by law for a period of at least one (1) year.” Id. at 47. Following the September 25 hearing, the trial court dismissed the petition for adoption. In arriving at that result, the trial court entered findings of fact and conclusions, which included the following:

48. Efforts of a custodial parent to hamper or thwart communication between parent and child are relevant in determining the ability to communicate.

49. The Court finds that [Father] exhibited meaningful contact with [Child] when [Mother] has permitted him to do so. It is undisputed that at all times pertinent hereto, [Mother] was a resident of Evansville, Indiana, and [Father] of Statesville, North Carolina. [Father] was also restricted from having visitation with [Child] during the COVlD-19 pandemic and during the times that the military placed a travel restriction prohibiting [Father] from traveling to and from and exercising visitation.

50. Nonetheless, when [Father] was able to travel to and from Evansville, Indiana for visitation with [Child], he would do so. This often would result in substantial expenses for [Father], not only in gas and food, but also in the expenses related to obtaining a hotel so that he could keep [Child] overnight while he was exercising visitation. In addition, the Court also notes times that [Father] would otherwise be traveling back from Statesville, North Carolina to Fort Riley, Kansas, would travel several hours out of his way just to have visitation with [Child], even for a short period of time.

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53. The Court also notes that on January 29, 2024, the Vanderburgh County Superior Court ․ entered a child support order in the amount of $100 per week. The Court notes that subsequent thereto, [Father] made each and every payment as ordered by the Court.

54. The Petitioner's original petition did not make any allegation pertaining to the nonpayment of child support for the benefit of [Child].

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57. Even if the Court determined there was an alleged one (1) year period of non-support for [Child] before, it would defy logic. The Court adopts the reasoning of In re Adoption of W.K. and finds that it would defy logic to allow [Father's] one (1) year period of not supporting [Child] previously to overcome his more recent support of [Child]. The Court finds that [Father] did not at all times have substantial means to provide support for [Child] and furthermore, did provide support when he had the ability to do so.

58. The Court determines that [Father] has not failed to provide the support and care of [Child] when able to do so.

59. After his departure from the military, [Father] exercised a substantial amount of parenting time that would nearly be in compliance with the Indiana Parenting Time Guidelines where distance is a factor.

60. The Court also recognizes [Father's] continued efforts to exercise phone and/or Facetime contact with [Child]. [Father] would also have Facetime communications with [Child] during the times that [Child] was placed with a third party when [Mother] was at work.

61. The Court also notes the financial circumstances of [Father] at the time being that both parties were very young parents and did not have a substantial amount of resources when beginning their parenthood. The Court also has to note the times that not only [Father] was exercising visitation with [Child] but [Father's] parents would also make a point to exercise visitation with [Child] during times that [Father] was otherwise unavailable to do so.

62. [Father] had a constant and continuous relationship with [Child] up until the time that [Mother] unilaterally decided that [Father] and his family would be cutoff completely from [Child] on January 8, 2023. [Mother] did this by way of phone call and [Mother] decided not to have this conversation with [Father] when she was in North Carolina at the conclusion of the 2022 Thanksgiving. The Court finds [Mother] primarily did this because she was upset regarding [Father] having visitation with [Child] while [Child] was not in the presence of the paternal grandparents and had contact with [Father's] girlfriend at that time and her minor child.

63. The Court also notes [Father's] continued request to have contact with [Child] as evidenced by his appearance in the Vanderburgh County Superior Court on January 29, 2024, and the admission of Father's Exhibit “8”, which is a transcript of the hearing. The Court notes [Father's] continued efforts to be a part of [Child's] life as evidenced by his willingness to enter into an interim child support order, even though the Court was not entering a parenting time order at that time, as was objected to by [Mother].

64. The Court in no way finds that [Father] has failed to communicate meaningfully with [Child].

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70. That the undisputed evidence before the Court is that up until January 8, 2023, when [Mother] unilaterally decided to restrict [Father] and his family from contact with [Child], [Child] had a substantial and continuing relationship with [Father] and paternal grandparents. This was tampered with by [Mother's] decision to thwart [Father], and the paternal grandparents’ contact with [Child]. Even further evidence of the importance of [Father] and his family's relationship with [Child] was seen by the maternal grandmother's testimony. The maternal grandmother indicated that she continued to update the paternal grandparents, as well as permit ․ phone contact after [Mother] decided to prohibit all communication between [Father] and paternal grandparents asked her to do so. It is clear to the Court that she did so because she simply felt it was the right thing to do and, in [Child's] best interests.

Appellant's Appendix Vol. II at 3-8.

[11] Petitioner now appeals.

Discussion and Decision

I. Standard of Review

[12] Recognizing that the trial court is in the best position to judge the facts, determine witness credibility, and assess the family dynamics and the parent-child relationship, the trial court's decision in family law matters is generally shown considerable deference. See K.H. v. M.M., 151 N.E.3d 1259, 1265 (Ind. Ct. App. 2020), trans. denied. On appeal, the trial court's decision is presumed correct, and the appellant bears the burden of rebutting this presumption. In re Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021). We will not reweigh the evidence or judge witness credibility; instead, the evidence is examined in the light most favorable to the trial court's decision. In re Adoption of C.W., 202 N.E.3d 492, 495 (Ind. Ct. App. 2023).

[13] The trial court's decision in an adoption case will not be disturbed on appeal unless the evidence leads to only one conclusion and the trial court reached an opposite conclusion. In re Adoption of I.B., 163 N.E.3d at 274. We also note that because Petitioner had the burden of proof at the hearing and did not prevail, he is appealing from a negative judgment and will succeed on appeal only if he establishes that the judgment is contrary to law. See Logan v. Evans, 230 N.E.3d 371, 377 (Ind. Ct. App. 2024).

[14] Indiana law generally requires natural parents to consent to adoptions. 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, the adoption statutes permit the trial court to dispense with parental consent and allow adoption of the child “under carefully enumerated circumstances.” In re Adoption of C.W., 202 N.E.3d at 495 (quoting In re Adoption of I.B., 163 N.E.3d at 274). Petitioner argues that two of the enumerated circumstances apply here, namely, where the parent for a period of at least one year without justifiable cause: (1) has failed to communicate significantly with the child when able to do so; and (2) has knowingly failed to provide for the care and support of the child when able to do so as required by law or judicial decree. Ind. Code § 31-19-9-8 (a)(2)(A), (B). The petitioner for adoption has the burden of proving by clear and convincing evidence that the parent's consent is not required. I.C. § 31-19-10-0.5; In re Adoption of M.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).

II. Petitioner's Contentions

A. Father's Failure to Support Child

[15] Petitioner challenges the trial court's determination that he did not prove that Father knowingly failed to support Child for at least one year when he was able to do so. Dispensing with a parent's consent under I.C. § 31-19-9-8(a)(2)(B) requires clear and convincing evidence of the parent's ability to pay. D.G. v. D.H., 182 N.E.3d 247, 251 (Ind. Ct. App. 2022). The determination regarding a parent's ability to pay requires a consideration of the totality of the circumstances, “not just his ․ income.” In re Adoption of K.B., 247 N.E.3d 803, 810 (Ind. Ct. App. 2024).

[16] Here, Petitioner maintains that Father failed to support Child from October 1, 2021, until the issuance of the provisional order on January 29, 2024, even though Father remained steadily employed and lived with his parents. Appellant's Brief at 12. The record, however, is silent as to Father's ability to pay support during that time. Petitioner only referred to Father's employment—but not income—during that period. This is insufficient, as it was Petitioner's burden to establish that the “failure to support ground was met such that [Father's] consent was not required.” In re Adoption of Childers, 441 N.E.2d 976, 978 (Ind. Ct. App. 1982). To be sure, the mere showing of employment and regular income, standing alone, is insufficient to indicate the ability to provide support. See In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010), adopted on transfer, 941 N.E.2d 1042 (Ind. 2011); see also In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013) (holding that because the record did not indicate that the parent's ability to pay was ever investigated or determined, the petitioner requesting adoption did not satisfy her burden of proof), trans. denied.

[17] Moreover, Petitioner's argument ignores Father's recent support payments, his attempted electronic payment to Mother that she rejected, and the housing, food, and gifts that Father supplied to Child during the challenged time period. See, e.g., In re Adoption of D.H., 135 N.E.3d 914, 925 (Ind. Ct. App. 2019) (it was clearly erroneous to dispense with a parent's consent to adoption when the parent offers financial assistance but is refused); In re Adoption of N.W., 933 N.E.2d at 914 (holding that a parent's nonmonetary contributions to a child's welfare including housing, gifts, food, and outings and activities may satisfy a parent's duty to support his child).

[18] In sum, Petitioner failed to meet his burden to show by clear and convincing evidence that Father failed to support and care for Child in accordance with I.C. § 31-19-9-8(a)(2)(B).

B. Communication With Child

[19] Petitioner argues that the trial court's determination regarding Father's alleged failure to communicate with Child was erroneous. Petitioner maintains that because the evidence clearly established that Father failed “without justifiable cause to communicate significantly with Child for at least one year,” Father's consent to the adoption was not required. Appellant's Brief at 2.

[20] One petitioning to adopt without parental consent has the burden of proving both a lack of communication for the statutory period and an ability to do so. In re Adoption of Augustyniak, 505 N.E.2d 868, 871 (Ind. Ct. App. 1987), trans. denied. Whether this burden has been met is necessarily dependent upon the facts and circumstances of each particular case. Id. In other words, a “determination on the significance of the communication is not one that can be mathematically calculated to precision.” In re Adoption of E.B.F., 93 N.E.3d 759, 763 (Ind. 2018). Although multiple and somewhat consistent contacts may not be found significant, a single significant communication within one year is sufficient to preserve a non-custodial parent's right to consent to the adoption. Id. at 764-65.

[21] Here, Petitioner asserts that the trial court's conclusion regarding Father's alleged lack of communication was clearly erroneous because “Father had no contact with Child from August, 2019 to September, 2020.” Appellant's Brief at 13. Notwithstanding Petitioner's contention, the evidence demonstrated that during this period, Father was in the military and his travel was restricted for the majority of the 2020 calendar year because of the COVID-19 outbreak. Father resumed his parenting time with Child when the COVID restrictions were lifted. Moreover, Father had multiple FaceTime video visits with Child during the restricted travel period and texted Mother throughout that time regarding Child.

[22] When examining the evidence in the light most favorable to the trial court's decision, we conclude that the trial court properly determined that Petitioner did not establish that Father failed to significantly communicate with Child for at least one year. Father's consent was thus necessary for the trial court to grant Petitioner's adoption petition, and the trial court therefore did not err in dismissing the petition.

[23] Judgment affirmed.

Altice, Chief Judge.

Judges Pyle and DeBoer concur. Pyle, J. and DeBoer, J., concur.