Court of Appeals of Indiana | Memorandum Decision | 82A01-1409-AD-391 | May 13, 2015 Page 1 of 14

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

Patrick A. Duff

Evansville, Indiana

ATTORNEY FOR APPELLEE

Allyson R. Breeden

Ziemer Stayman Weitzel & Shoulders, 

LLP

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of 

L.M.Q.,

C. Q.,

Appellant-Respondent,

v.

J. G. and M. G.,

Appellees-Petitioners.

May 13, 2015

Court of Appeals Case No.

82A01-1409-AD-391

Appeal from the Vanderburgh 

Superior Court.

The Honorable Renee Ferguson, 

Magistrate.

Cause No. 82D07-1211-AD-167

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Respondent, C.Q. (Father), appeals the adoption of his minor son, 

L.Q. (Child), by Appellees-Petitioners, J.G. and M.G. (collectively, Adoptive 

Parents).

[2] We affirm.

ISSUE

[3] Father raises two issues on appeal, which we consolidate and restate as the 

following single issue: Whether the trial court erred in determining that 

Father’s consent to the Child’s adoption was not required.

FACTS AND PROCEDURAL HISTORY

[4] On February 8, 2010, the Child was born to J.F. (Mother)1 and Father in 

Newburgh, Warrick County, Indiana. Father was not present for the Child’s 

birth as he was serving an eighteen-month sentence in the Indiana Department 

of Correction (DOC) for a Class C felony conviction of stalking. While 

incarcerated, on March 12, 2010, Father executed a paternity affidavit claiming 

to be the Child’s biological father. No order for child support was ever entered.

[5] At birth, the Child was diagnosed with microcephaly, a neurological disorder 

that results in abnormal brain development. As a result of his condition, the 

 

1

 On November 27, 2013, the trial court entered a default judgment against Mother, finding that her consent 

was not necessary for the Child’s adoption. Mother is not a party to this appeal, but relevant facts with 

respect to her are included where appropriate.
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Child suffers from a number of developmental, cognitive, and behavioral issues 

for which he requires constant supervision, medication, and various types of 

therapy, among other special needs. For the first six months of his life, Mother 

was the Child’s sole custodian. During this time, Mother and the Child, along 

with the Child’s half-sister, C.F., lived with various relatives, including Father’s 

mother, D.S. (Paternal Grandmother). In May of 2010, Mother, C.F., and the 

Child moved in with Mother’s father and step-mother—i.e., Adoptive Parents.

[6] At some point, Mother left the Child in the care of Paternal Grandmother. 

Then, on August 8, 2010, Father was released from prison, and he moved in 

with Paternal Grandmother and the Child, eventually taking over the role of the 

Child’s primary caretaker. Three months later, on November 20, 2010, 

Mother—accompanied by several police officers—appeared at the Child’s 

doctor’s appointment and removed the Child from Father’s custody. When

Mother subsequently moved out of Adoptive Parents’ home, she left the Child 

in Adoptive Parents’ care.

[7] Adoptive Parents filed a petition for guardianship over the Child, and on July 1, 

2011, the trial court appointed them as temporary guardians. On July 6, 2011, 

Father appeared at a hearing on the guardianship, but he did not object to the 

Adoptive Parents’ appointment or request parenting time. On October 4, 2011, 

the trial court appointed Adoptive Parents as the Child’s permanent coguardians. For six months thereafter, per an informal agreement with Adoptive 

Parents, Father exercised parenting time with the Child every other weekend.
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[8] In March of 2012, Father was charged with battery with a deadly weapon. 

Before he could be arrested, Father absconded and remained “on the run” until 

he was apprehended in August of 2012 and confined to the Vanderburgh

County Jail. (Appellant’s App. p. 43). At the end of October of 2012, Father 

posted a $2,000 bond and was released from jail. During the seven-month 

period that Father was either a fugitive or incarcerated, he did not have any 

contact with the Child. Although he called Adoptive Parents a few times, 

Father did not speak to or inquire about the Child; rather, he demanded that 

Adoptive Parents pay him half of the tax refund that they received as the 

Child’s guardians.

[9] Shortly after bonding out of jail—just a few days prior to Halloween 2012—

Father appeared at Adoptive Parents’ apartment and waited until they brought

the Child outside. Father spent about twenty minutes visiting with the Child 

and requested that he be able to resume his prior parenting time schedule.

Adoptive Parents informed him that they would have to discuss the matter with 

their attorney, and at their counsel’s advice, Adoptive Parents notified Father 

that he could no longer have overnight visits with the Child. In response, 

Father became belligerent and shouted obscenities at Adoptive Father. Over 

the next few weeks, Father called Adoptive Parents between two and four times

to argue about the Child’s custody. Ultimately, Adoptive Parents indicated that 

the matter would have to be resolved in court, and Father stated that he would 

hire an attorney to sue for custody. Following these conversations, Adoptive 

Parents changed their home phone number; however, they maintained the same 
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cell phone number, which is the number that Father used to contact them. 

Since his brief visit in October of 2012, Father has not requested parenting time 

or otherwise attempted to visit or communicate with the Child by any means.

[10] On November 8, 2012, Adoptive Parents filed a verified petition to adopt the 

Child. In their petition, Adoptive Parents alleged that Father’s consent to the 

adoption was unnecessary based on his abandonment of the Child and his 

failure to communicate with or provide any support for the Child for more than 

one year. On November 28, 2012, Father filed his objection to the adoption.

[11] On December 9, 2013, and January 3, 2014, the trial court conducted a hearing 

on the matter of Father’s consent to Adoptive Parents’ adoption of the Child. 

On March 6, 2014, the trial court ruled that Father’s consent was not required

because Father “failed to communicate significantly with [the Child] for a 

period of at least one year[,]” and he “knowingly and voluntarily failed to 

provide for the care and support of [the Child] despite his ability to do so.” 

(Appellant’s App. pp. 49, 51). On August 28, 2014, the trial court granted 

Adoptive Parents’ petition to adopt the Child.

[12] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[13] In matters of family law, Indiana courts have long recognized that the trial 

court “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 
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relationship with the children.” E.W. v. J.W., 20 N.E.3d 889, 894 (Ind. Ct. 

App. 2014), trans. denied. Accordingly, in an adoption case, our court will not 

disturb the trial court’s 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). On review, we do not reweigh the evidence, and 

we consider the evidence and all inferences reasonably derived therefrom in a 

light most favorable to the trial court’s ruling. In re Adoption of K.S., 980 N.E.2d 

385, 387 (Ind. Ct. App. 2012). We presume that the trial court made the correct 

decision, and the appellant bears the burden of overcoming this presumption. 

In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012).

[14] In addition, because the trial court issued special findings of fact and 

conclusions thereon, our review is further governed by Indiana Trial Rule 

52(A), which provides that “the court on appeal shall not set aside the findings 

or judgment unless clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of the witnesses.” Thus, 

“we must first determine whether the evidence supports the findings and 

second, whether the findings support the judgment.” In re Adoption of T.L., 4 

N.E.3d at 662. Findings of fact “are clearly erroneous if the record lacks any 

evidence or reasonable 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. (alterations in original).
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II. Father’s Consent to the Adoption

[15] Father claims that the trial court erred when it determined that his consent to 

the Child’s adoption was not required. Indiana’s adoption statute provides, in 

pertinent part, that upon the finding that adoption would be in the best interest 

of a child and that “proper consent, if consent is necessary, to the adoption has 

been given[,]” the trial court shall grant a petition for adoption. Ind. Code § 31-

19-11-1(a)(1),(7). In any adoption proceeding, the natural parent is entitled to 

the most protected status. In re Adoption of K.S., 980 N.E.2d at 387. As such, if

paternity has been established, both parents must execute written consent for

the adoption to proceed. See I.C. § 31-19-9-1(a)(2)(B). However, consent is not 

required from the

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.

I.C. § 31-19-9-8(a)(2). The party petitioning for adoption bears the burden of 

proving that the parent’s consent to the adoption is unnecessary by clear and 

convincing evidence. In re Adoption of M.B., 944 N.E.2d 73, 77 (Ind. Ct. App. 

2011).2

 

2

 We note that both parties indicated that Adoptive Parents’ burden of proof in this case is that of clear, 

cogent, and indubitable evidence. However, our court has previously determined that the clear, cogent, and 

indubitable evidence standard “creates inconsistent burdens across the different statutory bases for adoption.” 

In re Adoption of M.B., 944 N.E.2d at 77. We have resolved “that the burden of proof for an adoption without 
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A. Failure to Communicate with the Child

[16] First, Father contends that the trial court erroneously found that he failed to 

communicate significantly with the Child for a period of at least one year. In 

order to dispense with parental consent, the petitioner for adoption must prove 

both a lack of communication for the statutory period and that the parent had 

an ability to communicate during that time. See Rust v. Lawson, 714 N.E.2d 

769, 772 (Ind. Ct. App. 1999), trans. denied. On appeal, we must consider the 

facts and circumstances of the particular case, including, for example, “the 

custodial parent’s willingness to permit visitation as well as the natural parent’s 

financial and physical means to accomplish his obligations.” Id. Furthermore, 

any efforts by the custodial party “to hamper or thwart communication between 

parent and child are relevant in determining the ability to communicate.” Id. 

The “significance of the communication is not measured in terms of units of 

visits[,]” so the natural parent must have made “more than ‘token efforts’” to 

communicate with his child. E.W., 20 N.E.3d at 896; Rust, 714 N.E.2d at 772

(quoting I.C. § 31-19-9-8(b)). The purpose of this provision “is to encourage 

non-custodial parents to maintain communication with their children and to 

discourage non-custodial parents from visiting their children just often enough 

to thwart the adoptive parents’ efforts to provide a settled environment for the 

children.” In re Adoption of C.E.N., 847 N.E.2d 267, 272 (Ind. Ct. App. 2006).

 

consent, under any of the subsections in [Indiana Code] section 31-19-9-8, is that of ‘clear and convincing 

evidence.’” In re Adoption of S.W., 979 N.E.2d at 640.
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[17] In this case, Father argues that the trial court failed to consider the fact that 

Adoptive Parents “acted as a road block to dismantle all communication 

between [him] and [the Child].” (Appellant’s Br. p. 11). In turn, Adoptive 

Parents assert that the trial court properly ruled that Father’s consent was not 

required because his “last meaningful communication and visit with [the Child] 

was sometime [in] March 2012 before he went ‘on the run’ seeking to avoid 

arrest on a felony charge.” (Appellees’ Br. p. 6) (footnote omitted). We find it 

unnecessary to address whether Adoptive Parents thwarted Father’s efforts to 

communicate with the Child because the evidence and findings do not support 

the trial court’s determination that Father failed to communicate for the 

requisite period of time.

[18] The trial court acknowledged—and the parties agree—that Father exercised

parenting time with the Child on alternating weekends from October of 2011 

through March of 2012. Thereafter, Father’s sole communication with the 

Child was a twenty-minute visit after he was released from jail. As the trial 

court found, “[t]he undisputed evidence demonstrates . . . that [Father] has 

failed to communicate significantly with [the Child] since March of 2012.” 

(Appellant’s App. p. 10).

[19] In determining whether a parent has failed to significantly communicate with 

his child for the statutory one-year period, our court has previously noted that a

“parent’s conduct after the petition to adopt was filed is wholly irrelevant.” In re 

Adoption of S.W., 979 N.E.2d at 640 n.3 (internal quotation marks omitted). 

Here, Adoptive Parents filed the petition for adoption on November 8, 2012—
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i.e., only eight months after Father’s last meaningful interaction with the Child. 

Therefore, the trial court erroneously concluded that Father failed to 

significantly communicate with the Child for at least one year. Nevertheless, 

because Indiana Code section 31-19-9-8(a)(2) is “framed in the disjunctive[,]” 

Adoptive Parents may still satisfy their burden by establishing that Father failed 

to provide for the Child’s care and support. In re Adoption of J.P., 713 N.E.2d 

873, 875 (Ind. Ct. App. 1999).

B. Failure to Provide for the Child’s Care and Support

[20] Father next contends that the trial court erred in finding that he failed to 

provide for the Child’s care and support for at least one year. Indiana law 

imposes a duty upon a parent to support his children, and “[t]his duty exists 

apart from any court order or statute.” Irvin v. Hood, 712 N.E.2d 1012, 1014 

(Ind. Ct. App. 1999). Approximately one month after the Child was born, 

Father signed a paternity affidavit acknowledging that he is the Child’s 

biological father, thereby establishing his legal duty to support the Child. See

I.C. § 16-37-2-2.1(j)(2) (stating that the execution of a paternity affidavit “gives 

rise to parental rights and responsibilities[,]” including child support).

[21] The evidence reveals that Father has never paid any monetary support on 

behalf of the Child. Nonetheless, our court has previously found “that a 

parent’s nonmonetary contribution to a child’s care may be counted as 

support.” E.W., 20 N.E.3d at 897. In accordance with his parenting time 

arrangement with Adoptive Parents, Father provided food, diapers, and other

necessary items while the Child was in Father’s care. Accordingly, Father now 
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insists that “[t]he record is clear that [he] was providing a constant and 

continuous means of both financial and emotional support for the [Child] up to 

the point that [Adoptive Parents] ended all contact [that Father] would have 

with the [Child].” (Appellant’s Br. p. 13). Because Adoptive Parents denied his 

weekend parenting time following his release from jail, Father posits that “he 

was not given the opportunity to continue providing support by the means that 

the parties[] had previously agreed upon.” (Appellant’s Br. p. 14). We 

disagree.

[22] Regarding the matter of child support, the trial court specifically found:

60. Since [the Child] has been in the care and custody of [Adoptive 

Parents], [Father] has never provided [Adoptive Parents] with any 

monetary support or other tangible property to help support [the 

Child].

61. Although [Father] testified that he provided [the Child] with food, 

diapers, and wipes during his parenting time when he was getting 

parenting time with [the Child] every other weekend, this parenting 

time schedule stopped in March 2012 and since then [Father] has 

provided no financial support to [Adoptive Parents] in any form for 

their care of [the Child].

62. Although [Father] claimed to have bought [the Child] a Christmas 

present in 2012 and to have prepared an Easter basket for him in 2013, 

neither of those gifts were ever given to [Adoptive Parents] to give to 

[the Child].

(Appellant’s App. pp. 46-47). Notwithstanding whether Father’s provision of 

food and diapers during his parenting time was sufficient to satisfy his support 

obligation, the trial court clearly found that Father did nothing to financially or 

emotionally support the Child since at least March of 2012. 
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[23] Adoptive Parents must demonstrate that Father “had the ability to provide for 

the support of the [C]hild and did not do so.” McElvain v. Hite, 800 N.E.2d 947, 

950 (Ind. Ct. App. 2003) (emphasis added). Proof of income, standing alone, is 

insufficient to establish an ability to provide support. See In re Adoption of 

M.A.S., 815 N.E.2d 216, 221 (Ind. Ct. App. 2004). Instead, “it is necessary to 

consider the totality of the circumstances.” Id. In addition to income, factors to 

consider include “whether that income is steady or sporadic and what the noncustodial parent’s necessary and reasonable expenses were during the period in 

question.” In re Adoption of M.S., 10 N.E.3d 1272, 1280 (Ind. Ct. App. 2014).

[24] Here, the trial court found that, since he was a child, Father has received Social 

Security-disability income based on his diagnosis of attention deficit 

hyperactivity disorder, for which he currently receives $710 per month. 

Father’s benefits were suspended for the duration of his incarceration in the 

DOC, but he continued to receive payments while he was held in the 

Vanderburgh County Jail. Relying on his disability income, Father has been 

unemployed for the majority of his adult life even though he is “allowed to 

work . . . [fifteen] to [twenty] hours a week” and still maintain eligibility for his 

disability benefits. (Tr. p. 14). In the summer of 2013, Father began a parttime, seasonal job earning $10.00 per hour, but he stated that he rarely worked 

more than ten hours per week. The trial court found that Father never offered 

any portion of his disability benefits or wages to Adoptive Parents for the 

Child’s support and further found that all of Father’s “earnings were not 

required to sustain” the residence he shares with his wife. (Appellant’s App. p. 
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50). Moreover, there is no evidence that Father sought any other employment 

in order to supplement his income so as to assist with the many special needs of 

his Child, yet he testified that he was able to pay $2,000 in cash for bail in 

October of 2012. From the evidence, it is apparent that Father’s “priority was 

not the support of [the Child].” (Appellant’s App. p. 51).

[25] According to Father, “[t]here was no evidence presented to the trial court that 

the parties ever[] had any other arrangement pertaining to . . . support.” 

(Appellant’s Br. p. 16). Additionally, Father asserts that Adoptive Parents 

never requested any support, and they were receiving the disability benefits paid 

on behalf of the Child. We find little merit in these contentions. First, the fact 

that Adoptive Parents did not demand child support does not negate Father’s 

legal duty to provide for his Child. In fact, our supreme court has declared that 

private agreements between parties are insufficient to nullify a child support 

obligation. See In re Adoption of T.L., 4 N.E.3d at 663. Second, the trial court 

found that Father never applied for the Child to receive Social Security benefits 

as the child of a parent with a disability; rather, Adoptive Parents took the 

initiative to apply for financial assistance on behalf of the Child.

[26] The relevant time period for determining whether a non-custodial parent has 

supported his or her child 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 J.L.J., 4 

N.E.3d 1189, 1194 (Ind. Ct. App. 2014) (emphasis added), trans. denied. 

Pursuant to Indiana Code section 31-19-15-1(b), Father’s obligation to support 

the Child “continue[d] until the entry of the adoption decree” on August 28, 
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2014. Because Father did not pay any child support between March of 2012 

and August 28, 2014, we find no error in the trial court’s determination that 

Father voluntarily failed to provide for the care and support of the Child for at 

least one year.

CONCLUSION

[27] Based on the foregoing, we conclude that the trial court erroneously found that 

Father failed to significantly communicate with the Child for at least one year; 

however, the evidence and findings clearly support the trial court’s 

determination that Father voluntarily failed to provide for the care and support 

of the Child for at least one year. Therefore, we affirm the trial court’s 

conclusion that Father’s consent to the Child’s adoption was not required.

[28] Affirmed.

[29] Barnes, J. concurs

[30] Bailey, J. concurs in result without separate opinion