Court of Appeals of Indiana | Memorandum Decision 02A04-1603-AD-631 | November 28, 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

Thomas C. Allen

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Nicholas J. Hursh

Shambaugh, Kast, Beck & 

Williams, LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re: The Adoption of: 

K.A.M.

J.A.M,

Appellant-Respondent,

v.

P.E.U.,

Appellee-Petitioner.

November 28, 2016

Court of Appeals Case No.

02A04-1603-AD-631

Appeal from the Allen Superior 

Court

The Honorable Charles F. Pratt, 

Judge

Trial Court Cause No.

02D08-1405-AD-73

Robb, Judge.
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Case Summary and Issue

[1] J.M. (“Father”) and L.U. (“Mother”) share one child together, K.M. In 2012, 

Mother married P.U. (“Stepfather”). Two years later, Stepfather filed a verified 

petition to adopt K.M. Father objected and filed a motion to contest the 

adoption, which the trial court denied. Father appeals the trial court’s order 

denying his petition to contest the adoption and raises one issue for our review, 

which we restate as whether there was sufficient evidence to support the trial 

court’s finding that Father’s consent to the adoption was not required. 

Concluding there is sufficient evidence to support the trial court’s finding 

consent to the adoption was not required, we affirm.

Facts and Procedural History

[2] K.M. was born in 2005 to Mother and Father. Following K.M.’s birth, Mother 

and Father lived together in Greencastle, Indiana, until July of 2006. Their 

relationship eventually ended, and for a short period, Mother moved to Fort

Wayne to live with K.M.’s maternal grandfather. In December of 2006, 

Mother and Father rekindled their relationship for a brief period, but they 

separated again in March of 2007. 

[3] Following their second separation, Mother moved out of Indiana. For about 

nine months following their separation, Mother lived in Grand Rapids, 

Michigan, with K.M.’s maternal grandmother; Father saw K.M. once during 

this period. Mother then moved to Camillus, New York, for nine months to 
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live with her sister. While she lived in New York, Mother established paternity 

for K.M. and was granted sole custody. Father drove to New York to visit 

K.M. on at least two occasions and would call sporadically to talk to Mother 

and K.M. on the phone.

[4] In 2008, Mother moved back to Fort Wayne. With Mother now living closer, 

Father had more opportunities to visit K.M. In 2008 and 2009, Mother and 

Father worked together and made arrangements for Father to visit K.M. on 

numerous occasions, with Mother driving K.M. to Indianapolis at least seven

times. In addition, Father called Mother and K.M. a few times each month. In 

2010, Mother began dating Stepfather and eventually moved in with him. 

Father visited K.M. a “handful of times, . . . maybe six . . . times” in 2010. 

Transcript at 17-18.

[5] In July of 2011,

1 Father visited K.M. for a few hours and they played laser tag 

together. A few months later, Father spoke with K.M. on the phone. Father 

has had no contact, in person or otherwise, with K.M. since 2011. Father 

asserts he has not communicated with K.M because Mother would not allow it. 

Father claims that since Mother moved in with Stepfather, her willingness to 

allow communication with K.M. has slowly diminished. For example, in 2011 

Mother blocked Father’s cell phone number from her phone, and blocked him

 

1

Father’s deposition states his last visit with K.M. was in January of 2011. However, at trial, both Father 

and Mother testified his last visit with K.M. was in July of 2011.
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and his mother from contacting her via Facebook.2 Further, Father testified 

since Mother blocked him from her Facebook account, and his e-mail account 

is linked to his Facebook account, Mother’s e-mail contact was subsequently 

blocked as well. He also testified Mother refused to provide him with her 

address since she moved in with Stepfather, and she instructed him that if he 

ever wished to send a gift to K.M. he must send it to K.M.’s grandparent’s

house first.

[6] In response, Mother testified she did not stop Father from contacting K.M., he 

just stopped making the effort and his already sporadic communication began 

occurring less frequently. While she admitted she blocked Father from 

contacting her via her cell phone and Facebook account, she testified the cell 

phone block was temporary, only lasting for forty days in 2011. Further, 

Mother testified Father called her cell phone in 2012 to congratulate her on her 

marriage to Stepfather. The conversation lasted about an hour, and they talked 

about K.M. for about ten minutes. Father admits they spoke in 2012, but 

testified the conversation took place over Mother’s home telephone.

[7] In October of 2012, Father drove to Fort Wayne and lived in a hotel for a 

month while seeking employment. Father stated he intended to relocate to Fort

Wayne to be closer to K.M. However, because Father was unable to locate 

 

2

Father testified Mother’s cell phone block lasted until Stepfather filed his petition for adoption in May of 

2014, and that he is still blocked from contacting Mother via Facebook.
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K.M. or find employment, he returned to Indianapolis. Father admits that he 

had no contact with K.M. in 2012, 2013, or 2014.

[8] On May 29, 2014 Stepfather filed a verified petition to adopt K.M. Father 

subsequently filed a motion to contest the adoption, arguing he did not consent 

to the adoption. Stepfather countered that Father’s consent was not required 

because Father lacked prior communication with K.M. for a period of more 

than one year. Following an evidentiary hearing on the matter, the trial court 

denied Father’s motion to contest the adoption. The trial court issued findings 

of fact and conclusions, which read, in relevant part:

[T]he Court finds that:

* * *

15. Between 2010 and 2011, [Mother] maintained Facebook 

communication with [Father]. During their exchanges [Mother]

encouraged [Father] to visit [K.M.]. Often plans could not be 

completed because [Father’s] cell phone was turned off. From a 

review of [Stepfather’s] Exhibit 2 the Court finds that [Mother] 

would become irritated with [Father]. They would argue, she 

would deny a visit, and, then, she would relent. This pattern 

followed until she blocked him on Facebook on or about June 

2011.

16. [Father] was present for [K.M.’s] first day in kindergarten 

and knew that he was enrolled in Haverhill Elementary School. 

He claims that he was not able to enter the school and that the 

school officials did not have him listed as a contact.

17. [Father’s] last personal visit with [K.M.] was on January 7, 

2011. He had a few telephone contacts thereafter until 

September or October 2011 when [Mother] blocked him from

calling her cell phone.
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18. From [Mother’s] deposition testimony the Court finds that 

[Mother] blocked [Father] from her cell phone because he called 

“over and over in the middle of the night[.]”

19. The parties dispute the length of time that [Father] was 

blocked from [Mother’s] cell phone . . . . Another number was 

not blocked. [Mother] asserts that the block was for a period of 

forty (40) days. [Father] testified that the block continued until 

the date of the filing of the petition for adoption. [Father] 

acknowledges that he talked to [Mother] by cell phone in 2012. 

Thus, the evidence supports [Mother’s] testimony.

20. Texting to [Mother’s] cell phone and Facebook were the two 

primary means of communication between [Father] and 

[Mother].

21. Notwithstanding the block to [Mother’s] cell phone and 

Facebook, [Father] was able to call [Mother] and [K.M.] through 

[Stepfather’s] home phone, a land line that was also connected to 

a facsimile machine. [Father] telephoned [Mother] several times 

in 2012.

22. Shortly after her marriage to [Stepfather] (September 8, 

2012), [Father] called [Mother] on her cell phone to congratulate 

her. They talked for about an hour. In his deposition testimony 

he estimated that only about ten-minute[s] of the conversation 

involved the child[.]

23. At or about the same time that she blocked the cell phone 

and Facebook communication [Mother] acknowledges that she 

discontinued her efforts to involve [Father] in [K.M.’s] life.

24. In October 2012 [Father] stayed in a hotel in Fort Wayne for 

a month. He sought temporary employment. He asserts that 

because he was not able to locate his son he returned to live in 

the Indianapolis area. However, [Father] knew the maternal 

grandfather’s address and telephone number. He also knew, at 

that time, the location and name of the school the child attended 

for Kindergarten. Given the fact that he had recently spoken 

with [Mother] to congratulate her on her marriage (September 8, 
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2012), the Court cannot find that he made a diligent search for 

[K.M.].

* * *

Accordingly, the Court further finds and concludes that:

* * *

2. Pursuant to I.C. 31-19-9-8(a)(2), 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 . . . .

* * *

7. In the present case [Father’s] last contact with [K.M.] of any 

significant duration was on or about January 7, 2011. This Court 

finds and concludes that [Father] has not had any significant 

contact with [K.M.] after January 7, 2011.

8. In addition to the foregoing, the evidence must demonstrate 

that [Stepfather] and/or [Mother] have not acted to “hamper or 

thwart” [Father’s] efforts to see his son. In making that 

determination the court may consider [Mother’s] willingness to 

allow visitation as well as [Father’s] financial and other resources 

needed for his exercise of visitation.

9. [Father] acknowledged that he had the means to visit [K.M.].

10. [Mother] did not preclude [Father] from contacting [K.M.] 

when she lived in New York nor upon her return to Indiana. It 

was only in 2011 that, by her own acknowledgement, she 

discontinued her efforts to involve [Father] in [K.M.’s] life. The 

Court finds and concludes that the suspension of her active 

efforts to involve [Father] [in K.M.’s life] is not equivalent to 

hampering or thwarting [Father’s] contact.

* * *
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12. [Mother] has acknowledged that she blocked [Father] from 

her Facebook account and a cell phone in September or October 

2011. She did provide him with other means of communication. 

The other means she offered included a land line that was 

operative into 2012. Although the answering machine was later 

disconnected, [Father] was able to communicate with [Mother] 

by cell phone. He acknowledged that he had an over one hour 

cell phone call with her in September 2012. . . .

* * *

14. In his deposition testimony [Father] stated that he never 

heard of [Mother’s] address . . . [in] Fort Wayne, Indiana. He 

testified that he did not know in October 2012 where to find 

[Stepfather’s address]. However, [Stepfather’s] address is the 

address [Mother] occupied with [K.M.] from October 2010 until 

November 2014; a period of time during which he had 

communication with [Mother] and visited [K.M.].

15. From the totality of the circumstances this Court does not 

find that [Mother] or [Stepfather] hampered or thwarted 

[Father’s] contact with his son.

Appendix of Appellant at 10-15 (citations omitted). Based on the foregoing, the 

trial court determined Father’s consent to adoption was not required, and 

denied his motion to contest the adoption. Father filed a motion to correct 

error, which the trial court also denied. Father now appeals the denial of his 

motion to contest the adoption.

Discussion and Decision

I. Standard of Review

[9] When we review a trial court’s ruling in an adoption proceeding, the ruling will 

not be disturbed unless the evidence leads to only one conclusion and the trial 
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court reached the opposite conclusion. In re Adoption of M.L., 973 N.E.2d 1216, 

1222 (Ind. Ct. App. 2012). We do not reweigh evidence, and we consider the 

evidence most favorable to the decision together with reasonable inferences 

drawn from that evidence. Id. Further, 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.” Id.

[10] Where, as here, the trial court issued findings of fact and conclusions thereon 

pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review: 

(1) we determine whether the evidence supports the findings of fact and (2) 

whether the findings support the judgment. In re Adoption of A.S., 912 N.E.2d 

840, 851 (Ind. Ct. App. 2009), trans. denied. The trial court’s findings or 

judgment will be set aside only if they are clearly erroneous. Id. A finding of 

fact is clearly erroneous if the record lacks evidence or reasonable inferences 

from the evidence to support it. Id.

II. Lack of Significant Communication

[11] Generally, a petition to adopt a minor child may be granted only if written 

consent to adopt has been provided by the biological parents. See Ind. Code § 

31-19-9-1. However, written consent is not required by both parents if the 

petitioner can show by clear and convincing evidence the biological parent 

objecting to the adoption lacks significant communication with the child for a 

period of more than one year. See Ind. Code § 31-19-9-8(a)(2)(A); In re Adoption 
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of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012). To do so, the petitioner for 

adoption must prove both a lack of communication for the statutory period and 

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. 

[12] 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 parent “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[,]” E.W. v. J.W., 20 N.E.3d 889, 896 (Ind. 

Ct. App. 2014), trans. denied, so the natural parent must have made “more than 

token efforts” to communicate with his child, Rust, 714 N.E.2d at 772 (internal 

quotation omitted). The purpose of this provision “is to encourage noncustodial 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).

[13] In this case, there is no question Father did not communicate with K.M. for the 

prescribed statutory period. Father and Mother both testified Father has had no 

contact with K.M. since 2011, a period of more than one year. However, 

Father argues there is insufficient evidence his consent to the adoption was not 

required because his ability to communicate with K.M. was thwarted by 
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Mother. Thus, he asserts his lack of communication with K.M. was justified

and his consent to adoption is required.

[14] The evidence most favorable to the trial court’s decision supports its finding 

that Father had the ability to communicate with K.M., but failed without 

justifiable cause to do so. While Mother’s actions raise serious concerns and 

are relevant factors in determining Father’s ability to communicate, we agree 

with the trial court there were significant periods of time when she was not 

thwarting his communication with K.M. Ultimately, Father’s argument invites

us to reweigh evidence and reassess witness credibility, which we will not do. 

In re Adoption of M.L., 973 N.E.2d at 1222. We acknowledge Father testified his 

cell phone number was blocked from Mother’s cell phone from 2011 until the 

filing of the petition for adoption, and that his 2012 phone conversation with 

Mother took place over the home phone, rather than by cell phone. However, 

Mother testified she only blocked Father’s number from her cell phone for forty 

days in 2011 and that she spoke with Father by cell phone in September of

2012. Clearly, the trial court found Mother’s testimony of a temporary cell 

phone block to be credible, and concluded Father had the ability to contact 

Mother and K.M. by cell phone. In addition to a cell phone, Mother possessed 

a land line phone in her home which Father could have used to contact Mother. 

Mother testified other than temporarily blocking Father’s number on her cell 

phone and from her Facebook account, she did not preclude Father from 

communicating with K.M. Rather, Father’s attempts to communicate with 

K.M. began occurring less frequently, and eventually stopped altogether.
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[15] Further, Father testified he had the financial means and ability to drive to Fort 

Wayne and visit his son, and did visit Fort Wayne in October of 2012 but left 

without seeing K.M. Other than this visit, Father made no other effort to visit 

K.M. Moreover, this court has found the consent statute does not contemplate 

“regular” communication, but rather that one significant communication 

(provided that this single communication does not amount to a token effort to 

contact the child) in a year would have been sufficient, In re Adoption of Subzda, 

562 N.E.2d 745, 749 (Ind. Ct. App. 1990), and we find it difficult to believe that 

Father was incapable of communicating even once with K.M. in a period of 

almost thirty-one months. Therefore, we conclude the evidence is sufficient to 

support the trial court’s finding that Father failed without a justifiable cause to 

significantly communicate with K.M. for at least one year when he had the 

opportunity to do so, and that Father’s consent to the adoption of K.M. was not 

required.

Conclusion

[16] We conclude there was sufficient evidence to support the trial court’s finding 

Father’s consent to K.M.’s adoption was not required. Therefore, we affirm the 

trial court’s denial of Father’s motion to contest K.M.’s adoption and of his 

subsequent motion to correct error.

[17] Affirmed.

Mathias, J., and Brown, J., concur.