K.S., Appellant-Petitioner v. F.T., Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] The Vanderburgh Superior Court denied and dismissed K.S.’s (“Stepfather's”) petition to adopt his stepchild, Z.T., after the child's father, F.T. (“Father”), objected to the petition. Stepfather appeals and argues that Father's consent to the adoption was not required under Indiana Code section 31-19-9-8(a)(2).

[2] We affirm.

Facts and Procedural History

[3] Father is a United States citizen who lives in New Jersey, and Mother is a Guyanese citizen. Mother and Father met when they were both employed by the same airline. Father, a pilot, flew a route between New York and Guyana, and Mother was a flight attendant. While they were involved in a romantic relationship, Mother gave birth to Z.T. in Guyana in August 2017. Father established his paternity to Z.T., and the child was granted United States citizenship in February 2018.

[4] In 2018 and 2019, Z.T. lived in both Guyana and the United States for various periods of time. Mother, Father, and Mother's extended family cared for Z.T. depending on their work schedules. Mother and Father's romantic relationship ended in the early months of 2019.

[5] Mother and Z.T. lived in the United States from the end of August 2019 to January 2020. Father regularly exercised parenting time with Z.T. during those months. When Mother and Z.T. arrived in the United States, Father observed that Z.T. appeared unhealthy and underweight. Father took Z.T. to a physician, and, ultimately, Z.T. had surgery to have her adenoids removed.

[6] In September 2019, Father executed a “Request to Enter the Child in the Passport Alert Program” so that he would be notified if a new passport was issued for Z.T. Appellant's App. Vol. 2, p. 153. Father was also concerned that Mother would return Z.T. to Guyana where she would be left with relatives while Mother traveled internationally. Id.

[7] Also in September, Father filed a petition for emergency custody of Z.T. in Superior Court in Essex County, New Jersey. That court granted Father temporary custody of Z.T. Ex. Vol.1, pp. 20-21. On October 5, the court held a hearing at which both Mother and Father appeared. The court determined that it did not have jurisdiction because Z.T. had not been a resident of New Jersey for at least six consecutive months. Id. at 29. And Father agreed to return Z.T. to Mother's custody. Z.T. remained in New Jersey and New York until January 12, 2020.

[8] Mother and Father's relationship deteriorated after Father filed his petition for custody of Z.T. Mother was also upset with Father because he refused to sign a document needed to replace Z.T.’s lost passport. Father asked Mother to return to the United States so that the parties could obtain a court order establishing custody, parenting time, and child support. Appellant's App. Vol. 2, p. 155.

[9] During April 2020, Father had open heart surgery that involved an extensive hospital stay and several months of rehabilitation. He was also unable to work during those months. But Father continued to provide financial support for Z.T. until October. Father tried to send additional funds to Mother, but his deposits were rejected. Father has also maintained health insurance for Z.T. throughout her life. He has communicated with Mother and Z.T. via telephone, Facetime, and messaging apps. Id.

[10] In 2021, Mother initiated court proceedings in Guyana for the purpose of obtaining a duplicate United States passport without Father's consent. On May 18, the Guyanese court ordered the parties to have joint custody, with Mother having primary physical custody. Father was allowed “reasonable access to the Child.” Appellant's App. Vol. 2, p. 158. The court also authorized Mother to obtain a duplicate passport without Father's consent.

[11] Between January 2020 and May 2022, Father communicated with Mother via WhatsApp or text messages on several occasions. In his messages, Father often requested time to speak to Z.T. via telephone or video call. Ex. Vol. 1, pp. 213-19. They also spoke to each other on the phone and Father participated in video calls with Z.T., but the number of phone or video calls is not known. Tr. Vol. 2, pp. 123, 141-143. Father also believed that Mother blocked his phone number repeatedly after she and Z.T. had returned to Guyana in 2020.

[12] In March 2021, Mother married Stepfather. Two months later, Mother, Stepfather, and Z.T. moved to Indiana. Mother did not tell Father that she had moved to the United States, but mutual acquaintances informed Father that Mother was engaged to Stepfather, a U.S. citizen.

[13] In March 2022, Father learned that Mother and Z.T. were living with Stepfather in Cynthiana, Indiana. On May 16, 2022, the Federal Bureau of Investigations proceeded to Stepfather's home to investigate Father's claim that Z.T. had been kidnapped. Four days later, Stepfather filed a petition to adopt Z.T. Stepfather alleged that Father's consent to the adoption was not required.

[14] Father objected to Stepfather's petition. Mother has not allowed Father to communicate with Z.T. since May 2022.

[15] After holding evidentiary hearings on Stepfather's petition to adopt, the court issued its findings of fact and conclusions of law on October 21, 2024. The court concluded that Stepfather “has failed to meet his burden of proof to establish that the Father's consent to the adoption is not required.” Appellant's App. Vol. 2, p. 163. For this reason, the court denied and dismissed Stepfather's petition to adopt Z.T. In support of its order, the court found, in relevant part:

5. From the time of the Child's birth in August 2017 until the time the Mother returned with the Child to Guyana in January 2020, the Father had regular and continuous contact with the Child in person in Guyana and in the United States. After the Mother returned with the Child to Guyana in January 2020, the Father maintained regular contact with the Child via electronic means such as telephone, texts, Facetime, so long as he was able to do so. The Father's inability to travel to Guyana to visit with the Child in person was the result of factors wholly beyond his control. The COVID-19 pandemic made it impossible for the Father to travel to Guyana from early 2020 through much of 2021. In addition, the Father's debilitating heart condition would have made it impossible to travel, even if flights had been available. During this time, the Father maintained electronic communication with the Child to the best of his ability. Over time, the Mother began thwarting the Father's efforts to communicate with the Child as reflected in the communications introduced into evidence as Father's Exhibits “A” & “B.” Ultimately, the Mother moved to Southwestern Indiana with the Child in May 2021. Thereafter, the Father had no idea where his daughter was living for almost a year. Had the Father known the Child was living in Southwestern Indiana, it would have been relatively easy for him to resume his in-person visitation with the Child. The Mother's concealment of the Child's location during this time seriously thwarted the Father's efforts to communicate with the Child and to obtain Court orders establishing custody, parenting time, and child support, something that he had been requesting for years, which would have greatly increased his ability to communicate with the Child.

6. The Mother produced a list of texts which she testified represented the Father's communications with her after she returned to Guyana, Exhibit “11”, but acknowledged that the Father's telephone calls and Facetime communications were not reflected in this Exhibit.

7. The Petitioner presented no evidence to refute the Father's testimony that he also communicated with the Child by calls and Facetime calls to the Mother's sister who frequently cared for the Child when [Mother] was working.

8. The Petitioner cannot meet his burden of proof that the Father failed to communicate with the Child for a period of one (1) year despite having the ability to do so given his persistent efforts to communicate with the Child and the fact that the Mother relocated with the Child from Guyana to the United States in May 2021 and concealed her whereabouts from the Father for over one (1) year․

Id. at 160-61. The court also concluded that “Mother made it impossible for the Father to provide for his support of the Child when she relocated to Indiana with the Child and concealed the Child's whereabouts from the Father.” Id. at 162-63.

[16] Stepfather now appeals the court's order denying and dismissing his petition to adopt Z.T.

Discussion and Decision

[17] Stepfather argues that he proved by clear and convincing evidence that Father failed to communicate with Z.T. or provide financial support for the child for over one year, and therefore, the trial court's order is clearly erroneous. When we review a trial court's judgment in family law matters,

we generally give considerable deference to the trial court's decision 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.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005). Accordingly, 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. In re Adoption of O.R., 16 N.E.3d 965, 972–73 (Ind. 2014).

The trial court's findings and judgment will be set aside only if they are clearly erroneous. In re Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009). “A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment.” Id. We will not reweigh evidence or assess the credibility of witnesses. In re Adoption of O.R., 16 N.E.3d at 973.

Rather, we examine the evidence in the light most favorable to the trial court's decision. Id.

E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018).

[18] “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.” Matter of Adoption of I.B., 163 N.E.3d 270, 274 (Ind. 2021) (citing In re Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010)). When an adoption petition is filed, if the child is born out of wedlock and the father has established paternity to the child, Indiana Code section 31-19-9-1 requires consent of both the mother and the father. However, a court may dispense with parental consent under the circumstances enumerated in Indiana Code section 31-19-9-8(a).

[19] Relevant to this appeal, subsection 31-19-9-8(a)(2) provides that consent to adoption is not required from:

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.

Because the statute is written in the disjunctive, each subsection provides an independent ground for dispensing with consent. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006). Father contested the adoption, and, therefore, Stepfather bore the burden of proving by clear and convincing evidence that Father's consent was unnecessary. See Adoption of I.B., 163 N.E.3d at 274. The trial court found that Stepfather had not met his burden of proving either prong of subsection 31-19-9-8(a)(2).

[20] First, we consider whether Stepfather proved that Father had failed to significantly communicate with Z.T. for at least one year when he had the ability to do so. There is no precise method to determine whether communication is significant. Depending on the totality of the circumstances, several relatively consistent contacts might be considered insignificant while “a single significant communication within one year is sufficient to preserve a non-custodial parent's right to consent to the adoption.” E.B.F., 93 N.E.3d at 763 (citing In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind. Ct. App. 1990)). Moreover, “[a] custodial parent's efforts to thwart communication between the non-custodial parent and [the] child are relevant to determining the non-custodial parent's ability to communicate and should be weighted in the non-custodial parent's favor.” Id. at 766.

[21] In his Appellant's Brief, Stepfather observes that Father has not seen Z.T. in person since December 2019. But the statute does not require in-person communication.¹ Stepfather also contests the trial court's finding that Mother thwarted Father's ability to communicate with Z.T. But Stepfather's argument that the evidence does not support the trial court's finding is merely a request to reweigh the evidence and the credibility of the witnesses, which our court will not do.

[22] The trial court credited Father's testimony that Mother had blocked his phone number multiple times after their relationship deteriorated and Mother had returned to Guyana in January 2020. And less than a year before Stepfather filed the adoption petition in May 2022, Mother and Father exchanged several messages via a messaging app. Ex. Vol. 1, p. 115. In the August 2021 messages, Father asked, as he had in earlier messages, to speak to four-year-old Z.T. stating that he had tried to call many times. Id. at 230. Father also tried to call several times to speak with Z.T., but Mother did not answer the calls. Id. at 230-31. Father knew that Mother was planning to marry a United States citizen, but Mother did not tell Father, and he did not know until the spring of 2022, that Mother and Z.T. had returned to the United States or that they were living in Indiana. Because Father did not know where Mother and Z.T. lived, and even if he did, due to the distance between their homes and the child's age, Father could not communicate with Z.T. absent Mother's cooperation. Because Mother thwarted Father's attempts to communicate with Z.T., Father was not able to communicate with the child. This evidence supports the trial court's findings that Mother thwarted Father's ability to communicate with Z.T. And therefore, Stepfather did not prove that Father had the ability to communicate with Z.T. but failed to do so.

[23] Turning our attention to the failure to support prong, we observe that “[a] petitioner for adoption must show that the noncustodial parent had the ability to make the payments that [he] failed to make.” I.B., 163 N.E.3d at 277. “A court must look at the totality of the circumstances to determine the parent's ability to pay, not just his or her income (or lack of income).” Id.

[24] The trial court found that Mother had made it impossible for Father to support Z.T. And Stepfather's argument that the evidence does not support this finding is another request for our court to reweigh the evidence and the credibility of the witnesses.

[25] On numerous occasions, Father asked Mother to cooperate with him to obtain child support, custody, and parenting time orders. No child support order was ever entered on Z.T.’s behalf, but Father sent money to Mother for Z.T.’s support regularly until October 2020. Ex. Vol. 1, pp. 31-32. Father also purchased items for Z.T. and shipped them to Guyana. And he has paid for Z.T. to be carried on his health insurance policy throughout her life and paid her medical bills when she had surgery in the fall of 2019. Father made several attempts to send additional money to Mother via Zelle and tried to deposit money in Mother's Wells Fargo account, but the deposits were rejected. Father believed Mother blocked his phone number causing the deposits to fail. Tr. Vol. 2, pp. 245-46. Father's inability to make support payments coincided with the time frame when it became difficult for him to communicate with Z.T. despite his attempts to do so. Appellant's App. Vol. 2, p. 145. And if Mother had disclosed to Father that she and Z.T. had returned to the United States in the spring of 2021 and were living in Indiana, Father could have sought a child support order after the residency requirement had been met. The trial court found that Mother's conduct affected Father's ability to support Z.T., and Stepfather does not challenge that finding on appeal.² See Appellant's Br. at 14.

[26] For all of these reasons, Stepfather did not meet his burden of proving by clear and convincing evidence that Father knowingly failed to support Z.T. when he had the ability to do so.

Conclusion

[27] Stepfather did not meet his burden of proving that the trial court could dispense with the need for Father's consent to his petition to adopt Z.T. under Indiana Code section 31-19-9-8(a)(2). Therefore, we affirm the trial court's order denying and dismissing Stepfather's adoption petition.

[28] Affirmed.

FOOTNOTES

1.   As we noted above, Mother returned to Guyana with Z.T. in January 2020. The COVID-19 pandemic and Father's heart surgery made it impossible for Father to travel to Guyana for several months.

2.   Stepfather only argues that he proved that Father had the financial ability to pay support. Appellant's Br. at 14. Father conceded that his income was sufficient to provide support for Z.T.

Mathias, Judge.

May, J., and Bradford, J., concur.