IN RE: the Adoption of E.Z. B.Z. (2025)

MEMORANDUM DECISION

[1] K.Z. (Father) pleaded guilty to felony assault and misdemeanor child abuse after he severely beat his wife, H.Z. (Mother), while in the presence of their infant daughter, E.Z. (Child). Father was sentenced to five years in prison, and a protective order was issued that prohibited him from communicating with Mother and Child until he was discharged from parole. While Father was incarcerated, Mother divorced Father and married B.Z. (Stepfather). A little more than a year later, while Father was on parole, Stepfather petitioned to adopt Child without Father's consent. Father opposed the adoption, and after an evidentiary hearing, the adoption court found that Stepfather failed to prove Father's consent was unnecessary. The court therefore denied Stepfather's adoption petition.

[2] On appeal, Stepfather argues that he sufficiently proved Father's consent was unnecessary because the evidence showed Father failed to communicate with and support Child for more than a year while able to do so and was unfit to be a parent. The adoption court, however, concluded that Father was unable to communicate with and support Child during the alleged period and that Stepfather did not prove Father's alleged parental unfitness by clear and convincing evidence. Because the evidence does not unerringly point to conclusions different from those reached by the adoption court, we affirm.

Facts

[3] In 2017, Father was on active duty in the United States Army. He was stationed in Colorado Springs, Colorado, where he lived with his then-wife, Mother. Child was born that December, and the following month, Father began training for deployment to Afghanistan. He was deployed in early 2018, returned to Colorado Springs roughly ten months later, and was eventually diagnosed with post-traumatic stress disorder (PTSD).

I. Father's Domestic Violence Incident, Criminal Conviction, and Incarceration

[4] Sometime after Father returned from deployment, Mother expressed to him an interest in polyamory—having “multiple consensual, loving relationships” that are “sometimes” sexual. Tr. Vol. III, p. 52. Father opposed the idea, which led to ongoing tension between him and Mother. On November 29, 2019, this tension turned violent. After attending a neighborhood party with Father, Mother and Child returned home and went to bed in Child's room. Father returned home later that night and pulled Mother out of bed. Then, in Child's presence, Father repeatedly punched Mother in the face. Mother suffered serious injuries, but Child was not physically harmed.

[5] Father does not recall beating Mother, possibly due to “thought blocking,” a known symptom of PTSD. Id. at 233. The last thing Father remembers before his ultimate arrest is seeing Mother and a male neighbor leaving the party together while holding hands. According to Father, Mother and the neighbor had been “very flirty” at the party that night, and as they were leaving, the neighbor “looked back and winked” at Father. Tr. Vol. II, p. 51. Father believed Mother and the neighbor were leaving to engage in sexual behavior.

[6] The State of Colorado charged Father with two offenses: (1) second degree assault, a Class 4 felony; and (2) child abuse, a Class 2 misdemeanor. As a result of Father's criminal charges, the Colorado criminal court issued a “mandatory protective order” under C.R.S. § 18-1-1001. The order expressly prohibited Father from “contacting or directly or indirectly communicating with” Mother and Child “until final disposition or further order of the Court.” Exhs. Vol. 5, p. 13. According to the order, “final disposition” meant dismissal of the charges, Father's acquittal thereof, or if convicted, the completion of his sentence, including any portion served on parole. Id.

[7] Father ultimately entered into an Alford plea agreement with the State.¹ Pursuant to the agreement, Father maintained his innocence but pleaded guilty to the assault and child abuse charges in exchange for a five-year prison sentence. The Colorado criminal court sentenced Father on April 14, 2020, and he served the next two years in prison before being released on parole on March 31, 2022. Father was discharged from parole on June 20, 2024, thereby completing his sentence.

II. Dissolution of Marriage and Father's Child Support Obligation

[8] Mother petitioned for dissolution of her and Father's marriage while Father was incarcerated. Pursuant to a power of attorney, Father's father (Grandfather) acted on Father's behalf in connection with the dissolution proceedings. On June 16, 2021, the Colorado dissolution court issued its final dissolution decree, stating, among other things:

8. Petitioner-Mother is awarded primary parenting time [with] and sole decision making [for Child]․

9. At such time in the future that Father is released from prison and wishes to resume parenting time, he shall petition the Court for same. This honorable court reserves jurisdiction over the allocation of parental responsibilities of the minor child in the event this happens.

10. Father shall remit $50.00 per month to Mother as and for child support, which is modifiable upon Father's release from prison in the future.

Exhs. Vol. 5, p. 8. The court also awarded Father roughly $29,000 in proceeds from the sale of his and Mother's marital home. Grandfather took possession of these funds and used them to pay Father's various attorney fees.

[9] Father did not pay Mother any child support while incarcerated, and he was $1,100 in arrears by August 2022—roughly 41/212 months after his release from prison. But on August 19 of that year, Father made a lump sum child support payment of $700. Because the mandatory protective order was in effect at that time, Father paid this money to his attorney, who forwarded it to Mother's attorney, who in turn, forwarded it to Mother. The record does not reveal how Father made his next child support payments, but by March 2023, he was only $100 in arrears.

III. Father's Efforts to Establish Parenting Time and Modify the Mandatory Protective Order

[10] In June 2022—roughly 21/212 months after Father's release from prison—Father petitioned the Colorado dissolution court to establish parenting time with Child. A month later, Father moved the Colorado criminal court to modify its mandatory protective order to allow Father to contact and communicate with Child prior to the end of his parole. Mother opposed both requests, and Father's motion to modify the protective order was decided first. In August 2022, the criminal court denied the motion, stating: “Because of the level of violence involved in [Father's] offense, it is the intention of the court that [the protective] order remain in place & unchanged through the end of [Father's] parole in order to provide safety to both victims.” Exhs. Vol. 6, p. 37 (all caps omitted).

[11] Father appealed the criminal court's denial of his motion to modify the protective order, and the Colorado Court of Appeals reversed and remanded the decision for further consideration. Specifically, the appellate court ordered the criminal court to determine whether Child's safety could be protected by less restrictive means, such as by allowing only supervised communication. On remand in March 2024, Mother advised the criminal court that Child had been seeing a therapist since the week after Father's domestic violence incident. Mother also described the incident's emotional impact on Child to date and the likely effect it would continue to have on Child in the future.

[12] On March 27, 2024, the Colorado criminal court again denied Father's motion to modify the protective order, stating: “[The] court cannot find a less restrictive means of allowing contact [with Child] pending a recommendation to do so by her therapist.” Exhs. Vol. 6, p. 39 (all caps omitted). The court added, however, that it would “re-address through pleadings if those cond[ition]s [were] met.” Id. And in announcing its ruling, the court observed, “I don't know that we need to have [Father] sign a new protection order because it's still no contact.” Exhs. Vol. 5, pp. 57-58. Father ultimately withdrew his petition to establish parenting time, considering it “moot.” Tr. Vol. II, p. 92.²

IV. Mother's Remarriage and Stepfather's Adoption Petition

[13] After Father's domestic violence incident in November 2019, Mother's longtime friend in Indiana, Stepfather, offered to support Mother and Child in any way he could. Eventually, Mother and Child moved from Colorado Springs to South Bend to live with Stepfather, and in December 2021, Mother and Stepfather married. Around this same time, Mother and Stepfather entered a polyamorous relationship with a third individual, who moved in with Mother and Stepfather and began parenting Child with them.

[14] On January 30, 2023, Stepfather filed his petition to adopt Child without Father's consent. In his petition, Stepfather alleged that Father's consent was unnecessary under Indiana Code § 31-19-9-8(a) for three different reasons: Father: (1) failed to communicate with Child for more than a year when able to do so; (2) failed to support Child for more than a year when able to do so; and (3) was unfit to be a parent. Father contested the adoption, and the matter was set for an evidentiary hearing.

[15] At the evidentiary hearing, Stepfather presented evidence that Father had not communicated with Child for over three years: from the date of Father's domestic violence incident (November 29, 2019) through the date on which Stepfather filed his adoption petition (January 30, 2023). Father acknowledged that, at some point during this time, Child's therapist had offered to serve as an intermediary between Father and Child, such that Father could send the therapist certain communications to be shared with Child at the therapist's discretion. Father, however, testified that he did not pursue the therapist's offer “[on] the advice of counsel that it would somehow violate the [Colorado criminal court's mandatory] protective order.” Tr. Vol. II, p. 50.

[16] Stepfather also presented evidence that Father did not pay Mother any child support for more than one year: from the date of the Colorado dissolution court's final dissolution decree (June 16, 2021) until the date of Father's lump sum payment of $700 (August 19, 2022). Father, however, testified that he was unable to make child support payments during most of this period because he was incarcerated. Father explained that, although he had an inmate bank account while in prison, only the Colorado Department of Correction was authorized to transfer money out of his account. Father also testified that, “on the advice of counsel,” he did not ask Grandfather to pay Mother child support from the marital home sale proceeds because “there was a looming fear that it would somehow violate the protection order ․” Id. at 79.

[17] As for Father's fitness to be a parent, Stepfather presented evidence of Father's domestic violence incident, his resulting felony assault and misdemeanor child abuse convictions, and the emotional impact the experience had and likely would continue to have on Child. Father, in turn, testified that he took courses while incarcerated to better understand his domestic violence incident and to ensure something like it would never happen again. These courses covered topics such as victim impact, anger management, and self-forgiveness. But Father did not take any courses that specifically focused on child trauma.

[18] Father also testified that he began psychiatric treatment for his PTSD upon his release from prison. The physician's assistant who directly treated Father, Kevin Williams, was certified in psychiatric services and supervised by a licensed psychiatrist. Williams testified that Father's symptoms of depression, anxiety, and hypervigilance drastically improved during his roughly 11/212 years of treatment. Williams also testified that Father never demonstrated nor reported any mental instability or anger during this time. Though Father had no memory of the domestic violence incident, Williams testified that Father still took accountability for it. And Williams opined: “It is in my professional opinion ․ that [Father] has maintained and has the ability to parent and to be a father to his child.” Tr. Vol. III, p. 218.

[19] Father also presented the expert testimony of psychiatrist Celestine Detrana, M.D., who evaluated Father's mental health prior to the adoption hearing. Dr. Detrana testified that Father “has a strong parental capacity.” Tr. Vol. IV, p. 60. She further opined:

I think he puts his daughter and her developmental level and the situations that put her in a tough position, he puts her first and foremost. He's thought about her needs for future schooling and afterschool care. He put a lot of thought into how -- he totally accepted that this would be a hard transition for her to be reunited with him and had thought through a whole series of steps he wanted to be in place to make sure it went well for her and didn't want to pressure her. He makes her a priority. I think that whatever happened on that date in November of 2019 was quite odd in the whole picture of his history and presentation.

Id.

[20] The adoption court found that Stepfather failed to meet his burden of proving Father's consent to Child's adoption was unnecessary. Specifically, the court concluded that Father did not have the ability to communicate with or support Child while incarcerated and that Stepfather did not prove Father's alleged parental unfitness by clear and convincing evidence. The court therefore denied Stepfather's adoption petition, and Stepfather appeals.

Discussion and Decision

[21] “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). The adoption statutes generally require the consent of both natural parents before a trial court may grant an adoption petition. Ind. Code § 31-19-9-1(a)(1)-(2). But “under carefully enumerated circumstances,” the 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)). “If a petition for adoption alleges that a natural parent's consent is unnecessary under these circumstances, and the natural parent contests the adoption, the petitioner carries the burden of proving that the natural parent's consent is unnecessary.” Id. (citing Ind. Code § 31-19-10-1.2(a)). “The party bearing this burden must prove his or her case by clear and convincing evidence.” Id.

[22] Stepfather alleged that three different statutory circumstances permitted Child's adoption without Father's consent: Father: (1) failed to communicate with Child for more than a year when able to do so, Ind. Code § 31-19-9-8(a)(2)(A); (2) failed to support Child for more than a year when able to do so, Ind. Code § 31-19-9-8(a)(2)(B); and (3) was unfit to be a parent, Ind. Code § 31-19-9-8(a)(11). The adoption court concluded that Stepfather failed to prove these circumstances by clear and convincing evidence. Therefore, Stepfather appeals from a negative judgment. “A party appealing from a negative judgment must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact.” In re Adoption of J.S.S., 61 N.E.3d 394, 397 (Ind. Ct. App. 2016). In conducting our review, we do not reweigh the evidence but will examine the evidence most favorable to the prevailing party together with reasonable inferences drawn therefrom.” Id.

I. Communication with Child

[23] Stepfather first argues that the adoption court erred by finding he failed to prove Father's consent to Child's adoption was unnecessary under Indiana Code § 31-19-9-8(a)(2)(A). That statute provides that consent 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 ․ fails without justifiable cause to communicate significantly with the child when able to do so.” Ind. Code § 31-19-9-8(a)(2)(A).

[24] Here, it is undisputed that Father had no communication with Child from November 29, 2019, through January 30, 2023. But the adoption court concluded that Father was unable to communicate with Child during this period because the Colorado criminal court's mandatory protective order expressly prohibited it. The court also observed that Father was incarcerated during most of that period and, upon his release from prison, actively sought to modify the protective order to permit his communication with Child. Mother opposed Father's efforts, and the criminal court twice denied them.

[25] Stepfather claims the adoption court's conclusion is clearly erroneous because Child's therapist offered to serve as an intermediary through which Father could communicate with Child at some point between November 29, 2019, and January 30, 2023. The evidence, however, did not show that the therapist's offer was ever communicated to the Colorado criminal court or that the court ever modified its mandatory protective order to permit Father's indirect communication with Child through the therapist. In fact, when the criminal court denied Father's motion to modify the protective order for the second time, the court indicated that the therapist had not yet recommended any less restrictive means of communication.

[26] As the evidence does not point unerringly to the conclusion that Father was able to communicate with Child during the period at issue, the adoption court did not err in finding that Stepfather failed to prove Father's consent to Child's adoption was unnecessary under Indiana Code § 31-19-9-8(a)(2)(A).

II. Care and Support of Child

[27] Stepfather next argues that the adoption court erred by finding he failed to prove Father's consent to Child's adoption was unnecessary under Indiana Code § 31-19-9-8(a)(2)(B). That statute provides that consent 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 ․ knowingly fails 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)(B).

[28] Here, it is undisputed that Father did not pay Mother any child support between June 16, 2021, and August 19, 2022. The adoption court, however, concluded that Father was unable to pay child support during most of this period because he was incarcerated from April 14, 2020, until March 31, 2022, had no ascertainable income, and had no power to distribute funds from his inmate bank account. The court also observed that Father began paying Mother child support shortly after his release from prison, and by March 2023, he was only $100 in arrears.

[29] Stepfather claims the adoption court's conclusion is clearly erroneous because, while Father was incarcerated, the Colorado dissolution court awarded him roughly $29,000 for the sale of his and Mother's marital home, and Father had access to these funds through Grandfather. But the evidence showed that the Colorado criminal court's mandatory protective order prohibited Father from communicating with Mother during this time, both directly and indirectly. The evidence also showed that Father, on the advice of counsel, did not instruct Grandfather to pay Mother child support out of fear that him doing so would violate the protective order.

[30] As the evidence does not point unerringly to the conclusion that Father was able to pay child support during the period at issue, the adoption court did not err in finding that Stepfather failed to prove Father's consent to the adoption was unnecessary under Indiana Code § 31-19-9-8(a)(2)(B).

III. Fitness to Be a Parent

[31] Finally, Stepfather argues that the adoption court erred by finding he failed to prove Father's consent to the adoption was unnecessary under Indiana Code § 31-19-9-8(a)(11). That statute provides that consent is not required from “[a] parent if ․ the parent is unfit to be a parent,” and “the best interests of the child sought to be adopted would be served if the court dispensed with the parent's consent.” Ind. Code § 31-19-9-8(a)(11).

[32] Here, it is undisputed that Father severely beat Mother while in Child's presence and was subsequently convicted of felony assault and misdemeanor child abuse. The adoption court recognized Father's domestic violence incident as “egregious.” App. Vol. II, p. 203. But the court concluded that the incident alone did not prove Father's alleged parental unfitness by clear and convincing evidence. This conclusion is supported by Father's voluntary pursuit of psychiatric treatment after his release from prison, Williams's testimony that Father's PTSD had drastically improved through this treatment, and Dr. Detrana's expert opinion that Father “has a strong parental capacity” and that the domestic violence incident is “quite odd in the whole picture of his history and presentation.” Tr. Vol. IV, p. 60.

[33] Stepfather claims the adoption court's conclusion is clearly erroneous because the evidence showed that Father's domestic violence incident constituted “horrific child abuse,” and Father has made no effort to learn about how such abuse can impact a child victim differently than an adult. Appellant's Br., p. 26. This claim, however, is simply a request to reweigh the evidence, which is not our role. In re J.S.S., 61 N.E.3d at 397.

[34] As the evidence does not point unerringly to the conclusion that Father was unfit to be a parent, the adoption court did not err in finding that Stepfather failed to prove Father's consent to the adoption was unnecessary under Indiana Code § 31-19-9-8(a)(11).

Conclusion

[35] For the above reasons, we affirm the adoption court's denial of Stepfather's petition to adopt Child.

FOOTNOTES

1.   “[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty.” North Carolina v. Alford, 400 U.S. 25, 37 (1970). Thus, under an Alford Plea, “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Id. In Alford, however, the United States Supreme Court “explicitly recognize[d] that the individual states may refuse to accept guilty pleas that accompany protestations of innocence.” Norris v. State, 896 N.E.2d 1149, 1152 (Ind. 2008) (citing Alford, 400 U.S. at 38 n.11). Indiana has “long refused” to accept such pleas. Id. But Colorado permits them. See Medina v. People, 535 P.3d 82, 88 (Colo. 2023).

2.   We note that the mandatory protective order expired by virtue of Father's discharge from parole only two months after the Colorado criminal court's second denial of Father's motion to modify the protective order.

Weissmann, Judge.

Judges Bailey and Brown concur. Bailey, J., and Brown, J., concur.