Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE :

FREDERICK A. TURNER KEN DRA G. GJERDING EN Bloomington, Indiana Mallor Grodner LLP Bloomington, Indiana



## IN THE
COURT OF APPEALS OF IND IANA

IN THE MATTER OF THE ADOPTION OF )

D.M.B. ) ) D.P.B. (Father)

, ) ) Appellant

- Respondent

, ) )

vs. ) No. 53A01

- 1312

- AD

- 547 )

T.M.N

. (Stepfather)

, ) ) Appellee

- Petitioner

. )

APPEAL FROM THE MONROE CIRCUIT COURT

The Honora ble Stephen R. Galvin , Judge

Cause No. 53C07

- 1301

- AD

- 2

July 11, 2014

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge2 Case Summary

D.P.B. (“Father”) and L.H.N. (“Mother”) are the biological parents of D.M.B. Mother

and Father separat ed

. Mother married T.M.N. (“ Stepfather ”), who petition ed to adopt

D.M.B ., which Father contested. After a hearing, the trial court issued an order granting

Stepfather’s petition and concluding that Father’s consent was not required. On appeal

,

Father ar gues that the trial court erred in so concluding. We affirm.

Facts and Procedural History

The trial court ’s order contains the following factual findings:

1. [ Mother] was born in Vietnam. She was ad opted by United States

citizens as a child. She gradua ted from Bloomington South High

School in 2008.

2. [ Father] was incarcerated for R obbery in 2008.

3. [D.M.B.] was born September 14, 2009, to [Mother] and [Father].
[D.M.B.] was born in Bloomington Hospital. [Father] was present at

her birth.

4

. [Mother] and [Father] were living together in Indianapolis, Indiana at the time of the birth. [Mother] was attending I.U.P.U.I. and working to help support the family. [Father] worked as a tattoo artist, earning approximately $13,000 in cash in 2009. He also obtained a student loan for $7000. [Father] dropped out of school. He did not pay income tax on his earnings.

5. [Father] contributed nothing for the rent and utilities. [Mother’s] parents paid the rent. [Father] did not pay for food, diape rs, or cl oth[e]s for [D.M.B.] He did not pay for medical care or daycare. He contributed nothing for the care and support of [D.M.B.], although he

had means to do so.

6. After [D.M.B.] was born, [Father] took $500 from [Mother’ s] bank

account without her p ermission.3

7. In October, 2009, [Father] battered [Mother] during an argument over [his] infidelity. [Father] struck [Mother] in the face, dislocating her jaw. [ D.M.B. ] was present. [Mother] went to the hospital. [Father] was apologetic. The b attery was never reported to the police.

8. In January, 2010, [Mother] and [D.M.B. ] moved to her [ parent s ’ ] home in Bloomington, Indiana. After a brief stay with her parents, they moved to Canterbury Apartments in Bloomington. [Father] stayed in

India napolis. At this time, [Father] would visit periodically, but did not keep the child overnight. He would help with child care when he visited. He paid no support.

9. [Mother] allowed [Father] to have [D.M.B.] for four days in March, 2010. When [Fath er] returned [D.M.B.], she was suffering from severe diaper rash. [Mother] took the child to the doctor for treatment.

10. In June, 2010, [Father] came to [Mother’s] home in the middle of the night. An altercation ensued. [Father] admits that he slapp ed [Mother] during the fight. Again, he dislocated her jaw. He would not allow her to call the police. He was arrested and charged with Criminal Confinement, a class D felony; Domestic Batte ry, a class A misdemeanor; and Interference with the Reporting of a C rime, a class A

misdemeanor.

11. [Mother] continued to allow [Father] to see [D.M.B.] [Father] told [Mother] that he had changed. She believed him. She bailed [Father] out of jail.

12. On September 29, 2010, [Father] plead guilty to Domestic Battery and

Interference with the Reporting of a C rime. He was sentenced to 58 days in jail, with credit for time served.

13. In November, 2010, [Mother] and [Father] made arrangements to meet

at his apartment. [Father] did not appear at the appointed time. At 3:30 AM, [Mother] drove to a local bar to find [Father]. [D.M.B.] was in the back seat of her vehicle. [Father] was intoxicated when she found him. He became upset, punching the car window with his fist and shattering the glass. The police wer e called.

14. In August, 2010, [Mother] and [D.M.B.] moved to Colonial Crest Apartments in Bloomington. [Mother] returned to Bloomington around this time. [Father] had his first overnight visit with the child in 2010.4 He provided child care for the c hild on Tuesdays and Thursdays. He had approximately five overnights with [D.M.B

. ]

15. On December, 16, 2010, [Father] severely battered [Mother]. [Mother] had taken [D.M.B.] to [Father’s] apartment for a visit. When she found

that he had another woma n at the apartment, she became angry. She tried to confront the other woman. [Father] took [D.M.B.] from her. He struck [Mother] in the face, again dislocating her jaw. He pushed her down the stairs. He severely beat her on the legs with a broom.

The photographs introduced at the hearing provide graphic evidence of the nature and extent of the beating.

16. [Father] testified that he did not strike [Mother]. Rather, he states that he put her in a headlock to calm her down. The Court does not accep t this testimony as truthful.

17. At first, [Mother] was afraid to tell anyone about the beating. After approximately one week, she reported the battery to the Bloomington Police. A warrant was issued for [Father’s] arrest.

18. To avoid arrest, [Fathe r] went into hiding.

19. On May 11, 2011, [Father] was arrested. He has been incarcerated

since his arrest.

20. Following [Father’s] arrest, [Mother] received insulting and threatening text messages from [Father’s] brother. The text messages

refe r to [Mother] as a “bitch” and a “piece of shit.” They advise her to “go back to Vietnam.”

21. On December 15, 2011, [Father] plead guilty to Battery Committed by Means of a Deadly Weapon Resulting in Serious Bodily Injury , a class C felony. He was als o found to be a Habitual Offender. He was sentenced to 2 years for Battery, and 4 years as a Habitual Offender. The sentences were ordered to run consecutively. [Father] is scheduled to be released on October 5, 2014.

22. [Father] was ordered to have no contact with [Mother]. However, he lost good time credit for violating this protective order during his

incarceration.5

23. [Father] is not remorseful for his repeated acts of domestic violence. He blames [Mother] for causing fights between them. He states that he was only protecting himself.

24. [Father] testified that [D.M.B.] was his “best friend” prior to his incarceration. He testified that he was a good father. He testified that he paid for diapers, formula, cloth[e]s, and a portion of the rent while living with [Mother]. The Court does not accept these statements as

truthful.

25. [Father] has another child, [G.L.], born December 28, 2009. He does not pay support for this child. Paternity for this child has never been

established. Although the child’s mother reports that [Father] is a “loving” father to [G.L.], she never left the child in his care for more

than two hours.

26. [Mother] did not take [D.M.B.] to see [Father] in prison. She would not have allowed anyone to take the child to see him. [Father] did not seek an order for parenting time.

27. [Mother] and [Stepfather] began dating in December, 2011. They were married on January 5, 2013.

28. [Stepfather] is the father figure in [D.M.B.’s] life. [Stepfather] treat s [D.M.B.] as he would his own child. Indeed, he considers [D.M.B.] to be his child. [D.M.B.] looks to [Stepfather] as her father. She calls
him “Dad.” To [ D.M.B. ] , he is a caring, loving father.

29. [Stepfather] is 26 years of age. He has three chi ldren, ages 6, 4, and 1. He has joint legal custody of these children. He sees the children regularly. He pays support for these children. [ D.M.B. ] has a relationship with these children.

30. [D.M.B.] is also part of [Stepfather’s] extended family. This family includes [Stepfather’s] mother, stepfather, and sister.

31. In June, 2013, [Mother] and [Stepfather] briefly separated. [Stepfather ] stayed with his sister or slept in his car during this time. The couple

reconciled within a week . The Gua rdian ad Litem notes that, despite this single incident of marital discord, [they] have a stable marriage. The maternal grandmother also believes that [their] marriage is stable.6

32. [Mother] and [Stepfather] are now expecting their first child.

33. [Stepfather] and [Mother] are both employed. Although they still receive some financial assistance from [ Mother’s ] parents, they have

the financial resources to care for [D.M.B.]

34. The G uardian ad Litem found [D.M.B.] to be a happy, healthy child. She is very social and engaging. Her verbal skills are advanced for her

age. The G uardian ad Litem believes that it is in [D.M.B.’s] best interest to be adopted by [Stepfather].

Appellant’s App. at 8

- 11.

The trial court also made the following rel evant conclusions:

8. Given his history of violence and his lack of remorse, [Father] will continue to pose a danger to [Mother] on his release from incarceration. Further, his willingness to batter [Mother] in the presence of his daughter poses a danger to the child’s emotional well

- being. There is no reasonable probability that [Father] will take responsibility for his

actions.

9. [Stepfather] has established, by clear and convincing evidence, that [Father] is an unfit parent.

10. [Stepfather] and [M other] have established a safe and stable home f or [D.M.B.] The child is thriving in this home. She sees [Stepfather] as her father. [Stepfather] is a loving and caring father figure. Clearly, [D.M.B.’s] best interests are served by dispensing with [Fa ther’s] consent for adoption. Further, it is in the best interests of [D.M.B.] that she be adopted by [Stepfather].

11. Finally, [Stepfather] alleges that [Father] has made only token efforts to support or communicate with [D.M.B.] As previously noted, he has paid no [ child ] support. He had minimal contact with [D.M.B.] in 2010. From December 16, 2010 until his arrest in May, 2011, [Father] had no contact with the child. Since his incarceration, he did not attempt to seek a court order f or parenting time with [D.M.B.] He has not seen his daughter in 2 1⁄2 years. This evidence is sufficient to prove that [Father] has made only token efforts to communicate with [D.M.B.], and that [D.M.B.] should be declared an abandoned child.7

12. Under any of the the ories advanced by [Stepfather], the consent of [Father] to the adoption of [D.M.B.] is not required.

Id . at 13

- 14. Father now appeals

.

Discussion and Decision

When reviewing adoption proceedings

, we presume that the trial court’s decision is

correct, and the appellant bears the burden of rebutting this presumption. In re Adoption of

J.L.J.

, 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014)

, trans denied

. We generally give

considerable deference to the trial court’s decision in family law matters, as we recog nize

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 ). We will not disturb

the trial court’s ruling “unless the evidence leads to but one conclusion and the trial judge

r eached an opposite conclusion.” Rust v. Lawson , 714 N.E.2d 769, 771 (Ind. Ct. App. 1999),

trans denied

. The trial court’ s findings and judgment will be set aside only if they are clearly

erroneous. K.I. ex rel. J.I. v. J.H. , 903 N.E.2d 453, 457 (Ind. 2009)

. A judgment is clearly

erroneous when there is no evidence supporting the findings or the finding s fail to support

th e judgment. Id

. W e will neither reweigh the evidence nor assess the credibility of

witnesses, and we will examine only the evidence mo st favorable to the trial court’s decision.

In re Adoption of A.M. , 930 N.E.2d 613 , 6 16 (Ind. Ct. App. 2010)

.

Stepfat her alleged that Father’ s consent to the adoption was not required pursuant to

Indiana Code Section 31

- 19

- 9

- 8, which provides in relevant part as follows:8

(a) 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 ano ther 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 s o as required by law or judicial decree.

... .

(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

serve d if the court dispensed with the parent’ s consent.

... .

(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.

As the petitioner, Stepfather had the burden of pr oving by clear and convincing

evidence that Father’s consent was not required. In re Adoption of N.W. , 933 N.E.2d 909,

913 (Ind. Ct. App. 2010)

, adopted by 941 N.E.2d 1042 (Ind. 2011) ; Ind. Code § 31

- 19

- 10

-

0.5. The provisions of Ind iana Code Section 31

- 1 9

- 9

- 8 are written in the disjunctive;

therefore, they each provide independent grounds for di spensing with parental consent. In re

Adoption of M.L ., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012)

. “ Regardless of which9

provision is relied on, adoption is gran ted only if it is in the best interests of the child. ” Id.

(citing Ind. Code § 31

- 19

- 11

- 1(a)). Stepfather was required to prove that Father’s consent

was not required pursuant to only one of the paragraphs listed in Indiana Code Section 31

- 19

-

9

- 8 . Ther efore , we will only address Father’s arguments regarding his fitness and D.M.B’s

best interests under paragraph (11) of the statute.

As for his fitness to be a parent, Father contends that he is a competent parent and

that

, unlike his relationship with Mother, his relationship with D.M.B. was good. He also

contends that the violence agai nst Mother was in self

- defense. Here, the trial court found

Mother’s testimony to be more credible. Father’s argument is merely a request to reweigh

evidence and judge credibility

, which we may not do. As indicated in the findings, Father

has shown a history of violence agains t Mother and a lack of remorse for that violence

.

Father has been violent with Mo ther in the presence of D.M.B. The trial court also found

that Father poses a danger to Mother upon his release from incarceration. Father not only has

an issue with violence but also has a drug and alcohol problem. Father had mini mal contact

with D.M.B. in 2010 due to his incarceration as a result of battering Mot her

. Although

Father testified that he filed a petition for visitation while incarcerated, we note that there are

no details of this within the record and the trial court specifically found that he did not seek

an order for parenting time . Based on the f oregoing, we do not find the trial court’s

conclusion that Father is an unfit parent to be clearly erroneous.

We turn then to D.M.B.’ s best interests. Father argues that Mother and Stepfather do

not provide a stable household. He claims that they have an un stable relationship, infidelity10

and financial issues, and multip le jobs in different locations. The evidence most favorable to

the trial court’s order indicates that Mother and Stepfather’s current situation is not as

troubled as Father makes it seem

. Mother and Stepfather were separated for roughly a week

due to his infidelity

, which has been resolve d . Mother and Stepfather have since had a child

together and been committed to one another. Currently both Mother and Stepfather have jobs

and are abl e to be financially stable with some help from Mother’s family. Unlike Father,

Stepfather has no criminal history and is not violent. Stepfather has lived with D.M.B. for

half her life and has provided her with a stable, nurturing environment. Stepfathe r has

provided for D.M.B. while Father was incarcerated. Stepfather has a strong bond with

D.M.B. and is the father figure in her life. The g uardian ad l item stated that it is in D.M.B.’s

best interests to be adopted by Stepfather. We find no error in t he trial court’s conclusion

that D.M.B’s best interests would be served if the court dispensed with Father’s consent

.

Therefore, we affirm.

Affirmed.

BAKER, J., and BARNES, J., concur.