D.P., Appellant v. D.W., Appellee (2026)

MEMORANDUM DECISION

[1] D.P. appeals the trial court's order of adoption and claims the court erred in finding that his consent to the adoption is not required. We affirm.

Facts and Procedural History

[2] On October 18, 2024, D.W. filed a Petition to Adopt alleging that D.G.P. (“Child”) was born in August 2012, that B.W. (“Mother”) is the mother of Child, and that D.P. is Child's biological father.¹ D.W. alleged that he married Mother in September 2017, that he and Mother have three minor children in addition to Child, and that D.P. has no relationship with Child and had not seen Child since August 2014. He argued that, pursuant to Ind. Code § 31-19-9-8(a)(1), (2) and (11), D.P.’s consent to the adoption is not required. Mother filed a consent to D.W.’s adoption of Child. D.P. filed a motion contesting the adoption. The court issued an order in March 2025, finding that D.P.’s consent is not required.² In June 2025, D.P. filed a Motion to Disqualify alleging that, prior to becoming a judge of the circuit court, the trial judge was an attorney with the law firm which represented Mother. The court granted the motion and appointed a special judge.

[3] On November 13, 2025, the court held a hearing. On January 20, 2026, the trial court issued an order providing:

4. [D.W.] is [Child's] stepfather. [Mother] married [D.W.] on September 23, 2017. [D.W.] had already formed a bond with [Child] and been acting in a father-like/caregiver role with [Child] for about a year when [D.W.] and Mother married.

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6. [D.P.] was ordered to pay $43.00 per week in child support to Mother by Order dated April 11, 2013, in the JP Case. Child support was never modified at any point thereafter. Lawrence County Title IV-D Child Support Prosecutor case manager, Deedra Matthews, testified that [D.P.’s] arrearage was $11,787.29, as of February 2025, when the Title IV-D Child Support office stopped showing accrued, ongoing child support due to the Adoption Decree entered by this Court on March 11, 2025, which Decree was reversed and remanded by the Indiana Court of Appeals on grounds unrelated to the merits of the Petition to Adopt. A child support arrearage calculation was admitted into evidence as Exhibit 12.

7. [D.P.] was awarded parenting time in the JP Case by Order dated July 2, 2013 (the “Parenting Time Order”).

8. After the issuance of the Parenting Time Order, [D.P.] visited with [Child] initially on Saturdays for a few hours with supervision. The visits progressed to include one overnight every other weekend, but did not last long before there were disruptions. Mother testified that [D.P.] only visited “a handful of times” before the visits stopped altogether. The evidence appeared to establish that there might have been closer to a dozen total visits, the most recent of which was when the child was 2 years old.

9. [D.P.] has not exercised parenting time or any meaningful contact whatsoever with [Child] since August of 2014, which [D.P.] does not dispute.

10. That visit in August of 2014 occurred because [D.W.] and Mother brought [Child] to [D.P.] at his Jennings County residence because [D.P.] lacked transportation. [D.W.] and Mother invited him to [Child's] second birthday party the following day and offered to transport him and [D.P.] declined the invitation.

11. [D.P.] only made one additional attempt to see [Child]. When he appeared on the wrong weekend at the wrong time at Mother's home in October of 2014, a verbal altercation ensued between [D.P.] and [D.W.], and [D.P.] left, filed a police report, and no charges were ever filed against either party. [D.P.] describes [D.W.] as the aggressor. [D.W.] claims that he was not aggressive but that he was assertive about [D.P.] leaving because it was the wrong date, the wrong time, he had or attempted to enter the residence without permission, and the children in the home were visibly upset and alarmed.

12. [D.P.] filed a (pro se) Verified Motion for Contempt Regarding Parenting Time (Visitation) Order on January 27, 2016, which the Court set for hearing on April 14, 2016.

13. [D.P.] failed to appear at the Hearing on April 14, 2016, and the Court set another hearing on July 19, 2016, which included pleadings for modification relief filed by Mother. [D.P.] again failed to appear at the hearing and the Court proceeded in his absence, after which the Court entered an Order temporarily suspending [D.P.’s] parenting time “at least until such time as one of the parties hereto filed a proper request to set a hearing on [D.P.’s] parenting time, and the Court conducts a hearing to determine what is in the Minor Child's best interest regarding [D.P.’s] parenting time.”

14. There were numerous hearings conducted in the JP Case after July 19, 2016, all of which appear to have been in regard to [D.P.’s] compliance (or lack thereof) with the Court's Child Support Orders. [D.P.] attended a number of these hearings and never again filed pleadings related to re-establishing parenting time until September 11, 2024.

15. [D.P.] testified that the initial, extended period of absence from the child's life was based on confusion over the criminal investigation/report of the altercation between [D.W.] and himself from the incident at [D.W.’s]/Mother's home in October of 2014. The decade-long absence from [Child's] life thereafter he blames primarily on a purported lack of contact information for the Mother.

16. Mother has resided at her current residence for approximately seven years, and her address was listed on the Chronological Case Summary in the JP Case during that period.

17. [D.W.’s] [m]other and [s]ister both testified to [Child's] strong bond with ․ [D.W.’s] extended family, the frequent family gatherings [Child] attends, the peers with whom he has established cousin-like bonds, and [D.W.’s] family's deep love and acceptance of [Child] as a member of the family.

18. Mother testified that [D.W.] has been a father figure and mentor to [Child] for virtually [Child's] whole life. [Child] enjoys spending time with him, playing sports with him, learning valuable skills from him, has called [D.W.] “Dad” for as long as he could speak, and is thriving with [D.W.] acting in the role of father for him, which is all he has ever known and all he remembers. [D.P.] is essentially a stranger to [Child].

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23. [D.P.’s] criminal history includes a D Felony conviction for Auto Theft in Case 47D01-1312-FD-1509; a D Felony conviction for Theft in Case 47D01-1402-FD-216; a D Felony Non-Support of Child (involving a paternal sibling of this child with whom this child has no bond or relationship); and a Level 6 Felony Synthetic Identity Exception, Knowingly Obtains, Possesses, Transports Firearms in Case 41D02-2010-F6-1731.

24. [D.P.] currently is employed and has stable housing. He claims no disability and no extended periods of unemployment (other than his 2021 incarceration) that contributed to his abysmal child support payment record. There is no evidence of any criminal history post-dating his 2020 Level 6 Felony from which he was released from incarceration in 2021.

25. [D.P.] has restored parenting time with the child referenced above for whom [D.P.] was convicted of Felony Non-Support, and has a regular role in parenting two step-children and his youngest child. None of these paternal siblings have any existing or established bond or relationship with [Child].

26. On request of [D.W.] and without objection from [D.P.], the Court takes judicial notice of the prior pleadings and record within this Adoption cause of action.

Appellant's Appendix Volume II at 8-11. The court found that D.W. established that D.P.’s consent to the Petition to Adopt is not required pursuant to Ind. Code § 31-19-9-8(a)(1), (2), and (11) and that it is in Child's best interests that the Petition to Adopt be granted. The trial court granted D.W.’s Petition to Adopt.

Discussion

[4] D.P. argues the evidence is insufficient to show that his consent was not needed under subsections (1), (2), or (11) of Ind. Code § 31-19-9-8(a). With respect to subsection (1) of the statute, he argues that his “lack of knowledge of his child's current address is an understandable barrier to communication with the child,” “there is no evidence Mother informed [him] of their current address,” and “there was a lack of sufficient evidence that D.P.’s apparent abandonment or lack of communication was voluntary.” Appellant's Brief at 13. With respect to subsection (2), he asserts the evidence does not show that he “had the ability to pay during the time period in which the arrearage was accruing.” Id. at 14-15. As for subsection (11), he argues the evidence does not “prove a sufficient nexus between” his prior convictions and parental unfitness. Id. at 15.

[5] 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, and obtain a feel for the family dynamics and a sense of the parents and their relationship with their children. E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018). 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. Id.

[6] When reviewing the trial court's ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). The trial court's findings and judgment will be set aside only if they are clearly erroneous. E.B.F., 93 N.E.3d at 762. 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. E.B.F., 93 N.E.3d at 762.

[7] Ind. Code § 31-19-11-1 provides that the trial court shall grant a petition for adoption if it hears evidence and finds that the adoption requested is in the best interest of the child and proper consent, if consent is necessary, to the adoption has been given. A petition to adopt a child may be granted if written consent to the adoption was executed by the father whose paternity was established. See Ind. Code § 31-19-9-1. However, Ind. Code § 31-19-9-8(a) provides:

Consent to adoption, which may be required under section 1 of this chapter, 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.

[8] Ind. Code § 31-19-9-8(b) provides: “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.” If a petition for adoption alleges that a parent's consent to adoption is unnecessary under Ind. Code § 31-19-9-8(a)(1) or (2) and the parent files a motion to contest the adoption, the petitioner for adoption has the burden of proving that the parent's consent to the adoption is unnecessary under Ind. Code § 31-19-9-8. Ind. Code § 31-19-10-1.2(a). Ind. Code § 31-19-10-0.5 provides: “The party bearing the burden of proof in a proceeding under this chapter must prove the party's case by clear and convincing evidence.” The clear and convincing evidence standard is an intermediate standard of proof greater than a preponderance of the evidence and less than proof beyond a reasonable doubt. T.D. v. Eskenazi Health Midtown Cmty. Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear and convincing, the existence of a fact must be highly probable. Id.

[9] We have held that “ ‘the relevant time period’ for determining whether a noncustodial parent has supported his or her child, ‘is not limited to either the year preceding the hearing or the year preceding the petition for adoption, but is any year in which the parent had an obligation and the ability to provide support, but failed to do so.’ ” In re Adoption of M.S., 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014) (quoting In re Adoption of J.T.A., 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013), reh'g denied, trans. denied) (emphasis added in In re Adoption of M.S.).

[10] The trial court found that, after the Parenting Time Order was issued in July 2013, D.P. initially visited with Child on Saturdays with supervision and then overnight every other weekend, there may have been a dozen visits in total, the most recent visit occurred when Child was two years old, and D.P. has not exercised parenting time or had any meaningful contact with Child since August of 2014, which D.P. does not dispute. It found that D.P. made only one additional attempt to see Child when he appeared on the wrong weekend at Mother's home in 2014 and had a verbal altercation with D.W. It found that D.P. filed a motion regarding visitation in January 2016 but failed to appear at hearings scheduled in April and July 2016, and the court suspended his parenting time. The court found that D.P. blamed his decade-long absence from Child's life primarily on a lack of contact information for Mother but that Mother resided at her current residence for approximately seven years and her address was listed on the chronological case summary in the JP Case. The court found that D.P. “is essentially a stranger to [Child].” Appellant's Appendix Volume II at 10. The court further found that there was testimony that D.P.’s child support arrearage was $11,787.29 as of February 2025, there were numerous hearings in the JP Case after July 2016 which appeared to relate to D.P.’s non-compliance with the court's support orders, D.P. is employed, and D.P. claims no disability or extended periods of unemployment other than his incarceration in 2021 that contributed to his support payment record.

[11] To the extent that D.P. does not challenge the trial court's factual findings, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge trial court's findings results in waiver of argument the findings were clearly erroneous), trans. denied. Deedra Matthews, a child support case manager with the prosecutor's office, testified that D.P.’s child support arrearage was $11,787.29, and the court admitted exhibits showing the arrearage calculation and a ledger showing his support payments. Mother testified that she contacted the court in 2014 because D.P. “had failed to show up for his visitation more than one time” and “had only seen [Child] a handful of times, and then there was no communication.” Transcript Volume II at 38. She testified that, on one occasion, D.P. “showed up to the house” and “tried to push himself into the door while we weren't home to get [Child],” “[her] aunt was there watching him,” D.W. “ended up coming home,” and D.P. “took off, and we never s[aw] him again.” Id. at 40.

[12] D.P. testified that the last time he saw Child was in 2014. He indicated that the last time he tried to see Child, D.W. “was trying to fight [him] and everything.” Id. at 58. He agreed that he last saw Child when he was two years old and he was thirteen years old at the time of the hearing. He also agreed that he did not attend a hearing in July 2016, he informed the court that he was unable to attend “because [he] had a job,” and the court suspended his visitation. Id. at 60. He further indicated that, during the prior ten years, he did not try to call or reach out to Mother. He stated, “I haven't had an address. I haven't had a chance to be able to communicate with my son.” Id. at 68.

[13] The trial court was in the best position to judge the facts, and we will not reweigh the evidence or assess the credibility of the witnesses. The unchallenged findings and evidence support the determination that, pursuant to Ind. Code § 31-19-9-8(a)(2), D.P.’s consent to D.W.’s adoption of Child was not required. We cannot say that the evidence leads to but one conclusion and the trial court reached the opposite conclusion.³

[14] For the foregoing reasons, we affirm the judgment of the trial court.

[15] Affirmed.

FOOTNOTES

1.   The trial court stated that D.P.’s paternity was established in cause number 47C01-1302-JP-66 (the “JP Case”).

2.   D.P. appealed the March 11, 2025 order, he later filed a motion to dismiss the appeal after the trial court appointed a special judge, and this Court granted the motion to dismiss the appeal.

3.   Because we conclude the trial court did not err in finding that D.P.’s consent was not required pursuant to Ind. Code § 31-19-9-8(a)(2), we do not address whether his consent was not required under subsections (1) and (11).

Brown, Judge.

Bailey, J., and Weissmann, J., concur.