Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 1 of 12

MEMORANDUM DECISION

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

R. Patrick Magrath

Madison, Indiana

ATTORNEYS FOR APPELLEE

Ann C. Coriden

Dominic W. Glover

Columbus, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

A.C.B.,

Appellant-Petitioner,

v.

D.E.,

Appellee-Respondent.

June 9, 2016

Court of Appeals Case No.

72A04-1511-AD-2034

Appeal from the Scott Circuit 

Court

The Honorable Roger L. Duvall, 

Judge

Trial Court Cause No.

72C01-1502-AD-4

Altice, Judge.

Case Summary

[1] D.D. (Mother) and D.E. (Father) are the biological parents of B.K.E. (Child), 

born in 2010. Mother married A.C.B. (Stepfather) in December 2012. About 

two years later, Father initiated a paternity action. Mother and Stepfather 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 2 of 12

responded with Stepfather filing a petition to adopt Child, and Father objected 

to the petition. Following a hearing, the trial court denied the adoption 

petition. Stepfather now appeals arguing that Father’s consent was not required 

because Father had not provided support for Child or communicated 

significantly with Child for the two years prior to the filing of the adoption 

petition.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father were in a relationship that resulted in the birth of Child in 

May 2010. The couple lived together off and on due to financial issues, but

they actively raised Child together until the relationship ended in February

2012, when Father was unfaithful. Thereafter, Mother began a relationship 

with Stepfather and married him in December 2012.

[4] Although bitter toward Father after the break up, Mother maintained a good 

relationship with Father’s parents (Grandparents) and would leave Child at 

their house at least once a week while she was at work. Through December 

2012, Mother allowed Father to see Child only at Grandparents’ home, which 

Father did regularly. Mother also made it clear to Father that he was not to 

contact her directly. For example, in response to a text message from Father, 

Mother wrote on June 2, 2012: “[Child] is perfect as always! Next time you 

want to know how she is doing I will let your parents know and you can ask 

them. I’m going to tell you ONE more time .. [sic] do not contact me you lying 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 3 of 12

piece of crap.” Exhibits at 52. Other text messages and calls were ignored by 

Mother, including a text from November 2012 in which Father sought 

information in order to continue covering Child on his insurance in 2013. 

[5] Father and his family celebrated Christmas with Child on December 23, 2012, 

just over a week after Mother married Stepfather. The following month, 

Mother met with Grandparents and “made it very clear to [Grandparents] that 

[Father] was not to be in physical contact anymore with [Child]”. Transcript at 

37. Grandparents were visibly upset by this request. While Mother did not 

directly threaten to withhold visits if they did not comply, Grandparents felt 

that this was implied and therefore honored her request in order to maintain a 

relationship with Child.

[6] Beginning in January 2013, Father no longer visited Child due to Mother’s 

request. His texts to Mother inquiring about visitation went unanswered. 

Father regularly asked Grandparents about Child and on at least two or three 

occasions spoke with Child directly while she was with Grandparents. Father 

also bought gifts for Child that were kept at Grandparents’ home and kept 

secret from Mother. On a few occasions, Father provided envelopes with 

money for Grandparents to give to Mother, which Mother refused. She 

consistently rejected anything from Father. 

[7] Father testified that he was devastated when Grandparents told him that 

Mother would no longer permit his visits. He believed this would be short term 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 4 of 12

and that once he got his finances in order1 he could hire a lawyer to go to court 

and establish parenting time and child support. He relied on indirect contact 

through Grandparents in the meantime and last spoke directly with Child in 

July 2014. 

[8] In the fall of 2014, Father learned that he could establish child support in 

coordination with the prosecutor’s office and without having to hire an 

attorney. Accordingly, on December 4, 2014, Father filed an application for 

Title IV-D child support services and initiated an action in January to establish

support for Child under cause no. 72C01-1501-JP-1 (the Paternity Action). 

[9] One month later, on February 17, 2015, Stepfather filed a petition to adopt 

Child, who was four years old at the time. Mother consented to the stepparent 

adoption, and Father filed an objection to the petition. Around this same time, 

Mother stopped Child’s visits with Grandparents.

[10] The trial court held an evidentiary hearing on July 17, 2015. At the beginning 

of the hearing, the trial court noted the pending Paternity Action but indicated, 

with agreement of the parties, that the instant adoption case should be 

addressed first due to its potentially determinative effect. Mother, Father, 

Stepfather, and Grandparents testified at the hearing. The trial court then took 

the matter under advisement and issued its order on October 30, 2015, denying 

Stepfather’s petition for adoption. In its order, the trial court issued detailed 

 

1

Father filed bankruptcy in 2014.
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 5 of 12

findings and ultimately found that for the two years prior to the filing of the 

adoption petition, Father had no significant contact with Child and made no 

significant effort to support her. The court further found it apparent that after 

December 2012 Mother wanted to end all involvement by Father in her and 

Child’s lives. In determining whether Father’s consent to the adoption was 

required, the court indicated that the “critical issue [was] whether Mother’s 

actions thwarted Father’s communication with the child and the effect of her 

refusal to accept any offered support.” Appendix at 19. The court continued:

26. It is not sufficient for Mother to maintain that Father 

could have physically come over to [Grandparents’] house or that 

she never explicitly stated that [Grandparents’] visitation would 

be cut off if Father visited. The fact is that over the period from 

Christmas, 2012 until [Stepfather] filed his petition for adoption, 

the Mother made very clear that she wanted Father to stay away 

from the child and insisted that Father stay away from the Child.

27. The parties and family fell into a routine where the 

grandparents could visit, Father would stay away and Mother 

was content with Father having nothing to do with the child and 

refused the limited offers of support and insurance.

28. Father certainly could have been more attentive to his 

parental duties and should not have taken what the Court would 

characterize as the easy way out by acquiescing to this 

arrangement. But, the burden is upon [Stepfather] and Mother to 

show that Father’s consent is not required and it is a very high 

burden.

29. This Court on other occasions has found that a noncustodial parent’s consent is not required even when the custodial 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 6 of 12

parent and adopting step parent have interfered with the efforts of 

communication. Those cases, however, have been characterized 

with behavior by the non-custodial parent that justified that 

interference such as drug use or criminal activity.

30. Mother’s anger over Father’s affair and the breakup of the 

relationship, no matter how understandable on Mother’s part or 

inexcusable on Father’s part, do not constitute a reason to sever 

from the Father his relationship with his child.

31. It is somewhat ironic that when Father finally takes the 

steps to assert his rights with his daughter in December, 2014, 

which [sic] fact then prompted the adoption action a month later.

32. The Court finds that Mother’s actions to restrict Father’s 

contact with the Child and her refusal to accept the few offers of 

support and insurance benefits are such that Father’s consent to 

the adoption may not be dispensed with and is required. The 

petition for adoption is denied.

Id. at 19-20. Stepfather now appeals, arguing that the trial court erroneously 

determined that Father’s consent was required.

Standard of Review

[11] We will not disturb a trial court’s ruling in an adoption proceeding unless the 

evidence leads to but one conclusion and the trial court reached an opposite 

conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). On review, 

we presume the trial court’s decision is correct and consider the evidence in the 

light most favorable to that decision. Id. Where, as here, a trial court enters 

findings of fact and conclusions of law, we determine whether the evidence 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 7 of 12

supports the findings and then whether the findings support the judgment. Id.

We will not set aside the findings or judgment unless clearly erroneous. Id. 

Factual findings are clearly erroneous only where the record contains no facts 

or inferences to support them and a judgment is clearly erroneous when it is 

unsupported by the findings of fact and the conclusions relying on those 

findings. Id. 

Discussion & Decision

[12] Stepfather argues that it was erroneous for the trial court to require Father’s 

consent where Father had only three phone calls with Child and provided no 

support for her during the two years prior to the filing of the adoption petition. 

While acknowledging that actions by the custodial parent to thwart or rebuff a 

non-custodial parent’s communication and support efforts are a relevant 

consideration, Stepfather argues that Father had the opportunity for direct 

access to Child at all times through Grandparents and, further, that Father only 

made a few offers of support.

[13] In Indiana, the consent of a biological parent to the adoption of their child is 

not required under certain exceptions enumerated in Ind. Code § 31-19-9-8. 

The exceptions relevant here provide 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:

(A) fails without justifiable cause to communicate 

significantly with the child when able to do so; or
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 8 of 12

(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.

I.C. § 31-19-9-8(a)(2). As this provision is written in the disjunctive, consent is 

not required if either failure to communicate or failure to provide support is 

established. In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App. 2007). 

The burden rests squarely upon the petitioner seeking to adopt, here Stepfather, 

to prove the statutory criterion by clear and convincing evidence. See In re 

Adoption of T.L., 4 N.E.3d at 662. 

[14] On appeal, Stepfather expresses agreement with the vast majority of the trial 

court’s findings of fact and indicates disagreement with only one. Specifically, 

he disagrees with the trial court’s view that Mother’s statement to Grandparents 

was an effort to thwart Father’s contact with Child via an implied threat to 

Grandparents. Stepfather, however, does not ask us to review this finding 

because he recognizes that would constitute an improper request to reweigh the 

evidence. Rather, he argues that a single statement made by Mother in early 

2013 cannot constitute a sufficient justification for Father’s two years of failure 

to communicate significantly with Child. 

[15] As recognized by Stepfather, “[e]fforts of a custodial parent to hamper or thwart 

communication between a parent and child are relevant in determining the 

ability to communicate.” In re Adoption of A.K.S., 713 N.E.2d 896, 899 (Ind. Ct. 

App. 1999) (trial court incorrectly determined that father’s consent for 

stepparent adoption was not required where evidence showed that mother 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 9 of 12

refused out-of-state father’s attempts to communicate with son via letters), trans. 

denied. See also D.D. v. D.P., 8 N.E.3d 217, 221 (Ind. Ct. App. 2014) (trial court 

did not err by finding that mother hampered and thwarted father’s attempts to 

communicate where over a six-year period mother ignored almost all of father’s 

emails and seemed interested only in terminating father’s parental rights).

[16] Contrary to Stepfather’s assertion on appeal, Mother’s attempts to hamper and 

thwart communication between Father and Child went beyond a single 

statement and began well before January 2013. When Mother and Father’s 

relationship ended before Child’s second birthday, Mother placed significant 

limitations on Father’s time with Child, allowing him to see his daughter only 

during her weekly visits at Grandparents’ home. Further, in 2012, Mother 

angrily rebuffed Father’s attempts to directly communicate with her regarding 

their young child and, on other occasions, simply ignored his communications. 

After marrying Stepfather, Mother met with Grandparents and made it clear to 

them that Father was not to be in physical contact with Child anymore and 

could not visit during their time with Child. Grandparents regretfully complied 

with this request because they believed that their visits would be cut off if they 

did not.2 Thereafter, Mother ignored Father’s texts regarding seeing his child. 

As the trial court observed, it was apparent that “Mother wanted to end all 

involvement by Father in her and the child’s life.” Appendix at 16. 

 

2

In fact, Mother ceased visits with Grandparents after the adoption petition was filed because Grandparents 

indicated that they should have just let Father come over all along.
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 10 of 12

[17] Despite Mother’s efforts, Father continued to maintain some minimum contact 

with Child through his parents. He spoke with her on at least three occasions 

while in Grandparents’ care, sent her gifts for use at Grandparents’ home, and 

regularly checked in with Grandparents regarding Child’s wellbeing. 

[18] With respect to support, the record establishes that Mother similarly rebuffed all 

efforts by Father. He attempted to send money through his parents, but Mother 

refused the envelopes and indicated that she did not want anything from him. 

Father sent a text to Mother seeking information to continue to cover Child on 

his insurance in 2013, but she did not respond. Mother emphasized at the 

hearing that she did not want or need his money.

[19] Without Mother’s knowledge, however, Father did give gifts to Child on her 

birthday and holidays to keep and use at Grandparents’ house. During this 

time, Father worked on getting his finances in order and in late 2014 began 

efforts to establish child support and parenting time through the court. This 

endeavor was then met with Stepfather’s petition to adopt Child.

[20] Under these facts and circumstances, we cannot say that the trial court erred by 

concluding: “Mother’s actions to restrict Father’s contact with the Child and 

her refusal to accept the few offers of support and insurance benefits are such 

that Father’s consent to the adoption may not be dispensed with and is 

required.” Id. at 20. While Father certainly could have done more, it was 

within the trial court’s discretion to determine that Mother’s interference and 

outright refusal to work with Father should not be rewarded by dispensing with 
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 11 of 12

his consent. Accordingly, the trial court did not err in denying Stepfather’s 

petition for adoption. 

[21] Father asks that in affirming the trial court we also award appellate attorneys’

fees to him. He argues that Stepfather’s appeal was a “frivolous effort to ‘out 

litigate’ Father” and, therefore, fees are appropriate under Indiana Appellate 

Rule 66(E). Appellee’s Brief at 12. 

[22] Appellate Rule 66(E) provides, in pertinent part, that an appellate court “may 

assess damages if an appeal...is frivolous or in bad faith. Damages shall be in 

the Court’s discretion and may include attorneys’ fees.” Our discretion to 

award attorneys’ fees under this rule is limited to “instances when an appeal is 

permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or 

purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 

2003). We must use extreme restraint when exercising our power under the 

rule because of the “potential chilling effect upon the exercise of the right to 

appeal.” Id. Further, with respect to claims of substantive bad faith, as asserted 

here by Father, the party seeking attorneys’ fees “must show that the appellant’s 

contentions and arguments are utterly devoid of all plausibility.” Id. Father 

has not made such a showing here, and we decline his request for an award of 

appellate attorneys’ fees under Appellate Rule 66(E).

[23] Alternatively, Father asks that we remand with instructions for the trial court to 

determine an award of appellate attorneys’ fees pursuant to Ind. Code § 31-14-
Court of Appeals of Indiana | Memorandum Decision 72A04-1511-AD-2034 | June 9, 2016 Page 12 of 12

18-2.3 His argument is not well developed. Moreover, because Father appears 

to have never requested an award of attorneys’ fees below, we agree with 

Stepfather that the issue is not properly before us.

[24] Judgment affirmed.

[25] Bailey, J. and Bradford, J., concur.

 

3

I.C. § 31-14-18-2(a) provides that a trial court may order a party to pay:

(1) a reasonable amount for the cost to the other party of maintaining an action under this 

article; and

(2) a reasonable amount for attorney’s fees, including amounts for legal services provided and 

costs incurred, before the commencement of the proceedings or after entry of judgment.