Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 1 of 5

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

Jared Michel Thomas, Esq.

Evansville, Indiana

ATTORNEY FOR APPELLEES

R. Jeff Dodson, Esq.

Dodson & Schaefer, LLC

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Matter of:

B.S.,

Child,

D.S.,

Appellant/Father,

v.

K.S. and M.S.,

Appellees/Adoptive Parents.

April 10, 2015

Court of Appeals Case No.

82A04-1406-AD-255

Appeal from the Vanderburgh 

Circuit Court; The Honorable René

A. Ferguson, Judge;

82D07-1311-AD-143

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A04-1406-AD-255 | April 10, 2015 Page 2 of 5

[1] D.S. (Father) appeals the trial court’s decision that his consent was not required 

for K.S. and M.S. (“Maternal Grandparents”) to proceed with the adoption of 

his child B.S. (Child). 

[2] We affirm.

Facts and Procedural History

[3] Child was born on April 10, 2010, to Br. S. (Mother) and Father. Since birth, 

Child lived with and was in the primary care of Maternal Grandparents due to 

Mother’s instability. Father did not try to visit Child while she was in Maternal 

Grandparents’ care, and although he testified to inconsistent patterns of alleged 

visitation while Child was temporarily in Mother’s care, he presented no 

evidence to corroborate his claim that he visited Child at the times he indicated.

[4] On November 25, 2013, Maternal Grandparents filed a petition to adopt Child. 

Mother consented but Father challenged the adoption. A consent hearing was 

held on May 5, 2014. Father appeared by telephone because he was 

incarcerated. After the hearing, the trial court determined Father’s consent was 

not necessary for the adoption petition to be granted because he did not have 

“meaningful” contact with Child during the year preceding the adoption 

petition pursuant to Ind. Code § 31-19-9-8(2)(A). (Appellant’s App. at 2.) 

[5] On June 4, 2014, Father filed a motion to certify the order for interlocutory 

appeal and to stay the proceedings pending the appeal. The trial court granted 

his motion the same day, and we accepted jurisdiction.
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Discussion and Decision

[6] Our standard of review of adoption proceedings is well-settled:

“When reviewing adoption proceedings, we presume that the trial 

court’s decision is correct, and the appellant bears the burden of 

rebutting this presumption.” We generally give considerable deference 

to the trial court’s decision in family law matters, because we 

recognize 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.” 

We will not disturb the trial court’s ruling “unless the evidence leads to 

but one conclusion and the trial judge reached an opposite 

conclusion.” The trial court’s findings and judgment will be set aside 

only if they are clearly erroneous. “A judgment is clearly erroneous 

when there is no evidence supporting the findings or the findings fail to

support the judgment.” “We will neither reweigh the evidence nor 

assess the credibility of witnesses, and we will examine only the 

evidence most favorable to the trial court’s decision.”

In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations omitted).

[7] Generally, a trial court may grant a petition for adoption only if both the 

mother and father of the child consent. Ind. Code § 31-19-9-1(a)(2). However, 

Ind. Code § 31-19-9-8 provides consent to an adoption is not required from:

(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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The trial court found Father did not “provide any meaningful contact with the 

child[.]” (Appellant’s App. at 2.)1

[8] Maternal Grandparents filed their petition on November 25, 2013. During the 

hearing to determine if Father’s consent to the adoption was required, Father 

testified he was not incarcerated from October 2012 until May 2013 and he saw 

Child “twice a week” for “three or four hours” at Mother’s apartment starting 

in January 2013. (Tr. at 26-7.) Father testified he had not had contact with 

Child since May 2013, when he was again incarcerated. 

[9] Father’s sporadic visitation with Child, long periods without communication, 

and the fact Father has not communicated with Child since May 2013 is 

sufficient to prove Father “fail[ed] without justifiable cause to communicate 

significantly with the child when able to do so.” See In re Adoption of J.P., 713 

N.E.2d 873, 876 (Ind. Ct. App. 1999) (“The significance of the communication 

is not measured in terms of units of visits. . . . [Mother’s] fairly consistent, but 

brief, monthly visits . . . were not meaningful.”). Father’s arguments to the 

contrary are invitations for us to reweigh the evidence, which we cannot do. 

See In re O.R., 16 N.E.3d at 973 (appellate court cannot reweigh evidence or 

judge the credibility of witnesses). Accordingly, we affirm.

 

1 The trial court also found Father did not support Child during the relevant time period. However, because 

the statute is written in the disjunctive, the trial court is required to find only one reason for waiver of a 

parent’s consent to an adoption. In re Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010), trans. 

denied. Thus we need not review the second basis found by the trial court. 
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Robb, J., and Mathias, J., concur.