Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 1 of 18

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

Matthew C. Maples

Hocker & Associates, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Christine Riesner Bond

McNeely Stephenson

Shelbyville, Indiana

I N THE

COURT OF APPEALS OF INDIANA

In re the Adoption of C.F.,

J.F.,

Appellant-Respondent,

v.

A.R.,

Appellee-Petitioner.

November 17, 2015

Court of Appeals Case No.

49A04-1505-AD-408

Appeal from the Marion Superior 

Court

The Honorable Evan D. 

Goodman, Judge

Trial Court Cause No.

49D08-1405-AD-15328

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-AD-408| November 17, 2015 Page 2 of 18

Statement of the Case

[1] J.F. (“Father”) appeals the trial court’s order granting A.R.’s petition to adopt 

Father’s minor child C.F. (“Child”). Father raises two dispositive issues for our 

review:

1. Whether the trial court erred when it concluded that 

Father knowingly had failed to provide for the care and 

support of Child as required by judicial decree for a period 

of at least one year when he was able to do so.

2. Whether the trial court erred when it concluded that the 

adoption is in Child’s best interests.

[2] We affirm.

Facts and Procedural History 

[3] Father and L.R. (“Mother”) were married, and Child was born in January 

2011. When Father and Mother divorced on January 22, 2013, the trial court 

gave Mother custody of Child and ordered Father to pay child support of $250 

per week. Father was employed and earning approximately $40,000 per year at 

that time. In early 2013, Father quit that job without first having secured other 

employment. Thereafter, Father worked intermittently in sales positions and 

delivering pizzas. The trial court explained the remaining facts and procedural 

history as follows:

7. [Sometime in 2013,] Father was arrested and convicted of an 

OWI. He was incarcerated from January 2014 through early 

April 2014 due to that conviction.
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8. Even after his incarceration, [Father] admitted to continuing 

to drink alcoholic beverages. He is not currently attending AA 

meetings. He is not currently attending any other counseling for 

substance abuse.

* * *

12. [Father] is currently dependent on his current significant 

other for housing as well as all living expenses. She has also paid 

for them to go on various vacations throughout 2013 and 2014, 

some of which occurred during the traditional work week.

13. [Father] did not pay Mother any child support throughout 

2013. [Father] did not provide any other support to Mother 

during 2013 or 2014 before the filing of the Petition for Adoption, 

in any form of clothes, toys, diapers, Christmas presents, 

birthday gifts, or gift cards.

14. Mother testified that when she asked [Father] for 

information about his employer, he refused and stated he did not 

want her to garnish his wages for child support.

15. During 2013, [Father] had parenting time provision [sic] 

pursuant to the divorce decree that was unsupervised, yet failed 

to exercise it.

16. While he was incarcerated, [Father] sent three letters to the 

minor child, one (1) of which was received by Mother and read 

to the minor child due to the child’s young age.

17. In April of 2014, [Father] contacted Mother to see the minor 

child a couple of weeks after he was released from jail. [Father] 

requested to see the child that day. Since it was a weekday, 

Mother told him he could not see him that day. During that 

same conversation, Mother also informed [Father] of her new 

husband’s intent to adopt the minor child and requested his 

consent.
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18. [Father] then retained counsel and filed several motions 

regarding parenting time and child support in Marion County 

Superior Court Number 5. Mother filed a motion request[ing] 

those matters be stayed due to the pending adoption proceedings. 

Said motion was denied.

19. Mother and [Father] then agreed, through the Court-ordered 

Access Program, for [Father] to have supervised visits every 

other weekend one hour on Saturday and one hour on Sunday. 

Prior to each visitation weekend, [Father] was to submit to drug 

and alcohol testing.

20. Out of the 24 possible visits [Father] could have exercised in 

2014 prior to the hearing on this adoption, [Father] only 

exercised 7. Each visit coincided in time with when a hearing 

was scheduled in either the Marion County Probate Court or 

Marion County Superior Court Number 5.

21. Mother testified that [A.R.] is the only father known to the 

minor child, and that [sic] the minor child does not remember 

[Father] due to his young age at the time of the dissolution.

22. [Father] paid a total of $160.00 to Mother in child support 

payments in 2014, all of which occurred after the petition for 

adoption was filed in this court. As of the date of the adoption 

hearing, [Father] had a child support arrearage of $18,600.00.

23. In May of 2014, [Father] withdrew $6,000 from his 401(k) 

account from a prior employer. None of that money was given 

to Mother in [the] form of child support.

24. The petition for adoption was filed on May 7, 2014[,] by 

[A.R.] [A.R.] and Mother were married on February 14, 2014[,] 

and have resided together with the minor child since January 31, 

2013.
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25. [A.R.] and the minor child have a close relationship. Every 

morning when the child wakes up, [A.R.] and child make 

breakfast together. He helps the child get ready for daycare and 

oftentimes takes and picks up the child from daycare. He helps 

the child practice soccer. He attends all of the child’s doctors’ 

appointments. He discusses the child’s development and status 

with his teachers. [A.R.]’s family is actively involved in the 

child’s life.

26. Mother has consented to this adoption, and said consent is 

properly filed with the Court.

Appellee’s App. at 7-8.1 After A.R. filed his adoption petition, Father filed a 

motion contesting the adoption. Following a final hearing on the adoption 

petition on December 23, 2014, the trial court granted A.R.’s adoption petition. 

In its order, the trial court concluded in relevant part as follows:

Consent of the Natural Father

32. Indiana Code [Section] 31-19-9-8(a)(2) is the controlling 

statute in this case as to whether [Father’s] consent is required for 

[the] petition to adopt the minor child.

33. I.C. [§] 31-19-9-8(a)(2) states:

(a) Consent to adoption, which may be required under section 1 

of this chapter, is not required from any of the following:

* * *

 

1

 Appellant’s appendix is not paginated.
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(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.

34. The provisions of Indiana Code [Section] 31-19-9-8 are 

written in [the] disjunctive providing independent grounds for 

dispensing with parental consent. In re the Adoption of M.L., 973 

N.E.2d 1216 (Ind. Ct. App. 2012).

35. In this case, there is sufficient evidence to determine that 

[Father’s] consent is not required by applying either subsection 

(2)(A) or subsection (2)(B).

Communication

36. With regard to subsection (A) supra, the evidence presented 

is sufficient to conclude that [Father] failed to have significant 

contact with the minor child for one (1) year prior to the petition 

for adoption being filed.

37. [Father] lived in the greater Indianapolis area from the date 

of the divorce decree, January 22, 2013, until the filing of the 

petition for adoption in May of 2014.

38. During that seventeen (17)[-]month time period, [Father] 

only saw the minor child five (5) times, all of which occurred 

during the first couple of months in 2013. The evidence 

presented was that all of those visits were prompted by Mother, 
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at which time she coordinated the visits and provided [Father] 

with all the supplies he would need to see his child, including a 

pack and play, membership to the Children’s Museum, diapers, 

and even food. Once Mother ceased facilitating the visits, the 

visits stopped.

39. The last time [Father] saw the minor child prior to the 

petition for adoption being filed was in April of 2013. He visited 

Mother’s home for one (1) hour. During that time period, 

Mother discovered Father smelled of alcohol. He spilled a glass 

of water.

40. During the remainder of 2013, [Father] did not see his minor 

child despite the fact that he lived in central Indiana and had the 

ability to do so. During that time period, he had an unsupervised 

parenting time schedule through the divorce, yet failed to 

exercise any parenting time.

41. From January 2014 through the beginning of April of 2014, 

[Father] was incarcerated after being convicted of an OWI. 

[Father’s] argument that he was unable to see his child due to his 

incarceration, and therefore this time period should not be 

considered, is unfounded. [Father’s] incarceration was a result of 

his own actions, and therefore any lack of communication during 

that time should be considered for purposes of determining 

consent under the statute. In re the Adoption of M.S., 10 N.E.3d 

1272 (Ind. Ct. App. 2014).

42. After the petition for adoption was filed, [Father], through 

counsel, filed several motions in the divorce court resulting in 

him participating in supervised parenting time during the 

pendency of this adoption action. Any actions made after the 

filing of a petition for adoption are irrelevant to a determination 

of whether the parent failed to significantly communicate with 

the child for any one-year period. In re the Adoption of S.W., 979 

N.E.2d 633 (Ind. Ct. App. 2012).
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43. The purpose of the statute is to promote and maintain 

communication between the non-custodial parent and the child. 

It is not a means for a parent to maintain just enough contact to 

thwart a potential adoption. In re the Adoption of S.W., 979 

N.E.2d 633 (Ind. Ct. App. 2012). In order for consent to not be 

required, petitioner does not have to prove that no 

communication occurred, just that no significant communication 

occurred. In re the Adoption of S.W., 979 N.E.2d 633 (Ind. Ct. 

App. 2012).

44. The evidence in this case is sufficient to conclude that 

[Father] failed to have significant contact with the minor child for 

a one[-]year period of time so that his consent is not required for 

this adoption.

Support

45. [Father’s] consent can also be dispensed [with] in accordance 

with section (2)(B) of the statute.

46. The evidence presented showed that at the time of the 

parties’ divorce, [Father] was making $40,000 per year. The 

divorce decree ordered [Father] to pay $250 per week in child 

support.

4[7]. [Father] did not pay any child support during the calendar 

year 2013. He testified that he had several jobs that he 

voluntarily quit without having a new job secured. Mother 

testified that when she asked for the information regarding one of 

his employers, he refused to give it to her because she might try 

to garnish his wages for child support.

48. From January 2014 through the beginning of April of 2014, 

[Father] was incarcerated after being convicted of an OWI. 

[Father]’s argument that he was unable to pay child support due 

to his incarceration, and therefore this time period should not be 

considered, is unfounded. [Father]’s incarceration was a result of 
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his own actions, and therefore any lack of payment of support 

during that time should be considered for purposes of 

determining consent under the statute. In re Adoption of T.L., 4 

N.E.3d 658 (Ind. 2014).

49. He has paid Mother a total of $160.00 from January 2013 

until the date of the hearing on December 23, 2014, all of which 

was paid after the filing of the petition for adoption. He has not 

provided any other support to the minor child during that time in 

the form of clothes, toys, gift cards, or Christmas presents. 

[Father]’s child support arrearage as of the date of the hearing 

was $18,600.00.

50. In May of 2014, he withdrew $6,000.00 from his 401(k) from 

his previous employment. None of that money was given to 

Mother in the form of child support.

51. [Father] has been living with his girlfriend since August of 

2013. She has paid for them to go on various vacations 

throughout 2013 and 2014, some of which occurred during the 

traditional work week.

52. This constitutes sufficient evidence that [Father] had the 

ability to obtain employment and pay child support, but 

voluntarily failed to do so. See In re the Adoption of J.L.J., 4 

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

53. The monies paid by [Father] since the filing of the petition 

for adoption amount to “token payments.” The Indiana Court of 

Appeals has held that to allow token payments to thwart the 

ability of a willing parent to adopt “would permit an unworthy 

parent, in complete disregard of his obligation to his child, to 

prevent an adoption which might be in the best interest of the 

child . . . such strict construction would lead to absurd 

consequences and make the statute meaningless and 

ineffective.[”] In re the Adoption of M.S., 10 N.E.3d 1272 (Ind. Ct. 

App. 2014).
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Best Interest of the Child

54. There is sufficient evidence to support a finding that the 

granting of this adoption is in the best interest of the minor child.

55. [A.R.] has met the statutory requirements necessary for the 

granting of this adoption.

56. [A.R.] has been the only father the minor child has known 

for the past two (2) years. [A.R.] and the minor child have an 

established bond, and [A.R.] is greatly involved in the child’s 

day-to-day activities including soccer, school, cooking, and 

shopping. [A.R.] has financially supported the child and 

provided health insurance for the child for that period of time as 

well.

57. [A.R.]’s family is equally bonded to the minor child acting as 

grandparents and aunts and uncles.

58. [Father] and Mother were divorced when the child was just 1 

1/2 years old. Since the filing of the petition for adoption, 

[Father] has seen the minor child for a total of 7 hours. The 

minor child does not know [Father], and there is no established

bond between [Father] and the minor child.

59. [Father] has not established that he has the ability to provide 

a suitable environment for the child. He was incarcerated for a 

felony OWI, which was later reduced to a misdemeanor. 

Despite that, he continues to drink alcoholic beverages and is not 

attending AA or any other substance abuse counseling.

60. [Father] is not currently employed and has been employed 

sporadically since the dissolution due to his voluntarily leaving 

positions without new positions becoming available.
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61. [Father] is currently dependent on his current significant 

other.

62. Despite agreeing to supervised visitation, [Father] has failed 

to attend the majority of the possible visits during the pendency 

of this adoption action.

63. [Father] made no effort to communicate with the child or 

financially support the child until after he learned of petitioner’s 

intention to file this step-parent adoption action. It has now been 

a total of two (2) years of insignificant contact.

Appellee’s App. at 9-13. Thus, the trial court concluded that Father had not 

“seen, supported or communicated with [Child] for over a one (1)[-] year 

period” and Father’s consent was not required under either prong of Indiana 

Code Section 31-19-9-8(a)(2). Id. at 13. The trial court also concluded that 

adoption was in Child’s best interests, and the court granted A.R.’s adoption 

petition. This appeal ensued.

Discussion and Decision

Standard of Review

“When reviewing the trial court’s ruling in an adoption 

proceeding, we will not disturb that ruling unless the evidence 

leads to but one conclusion and the trial judge reached an 

opposite conclusion.” Rust v. Lawson, 714 N.E.2d 769, 771 (Ind.

Ct. App. 1999). We presume the trial court’s decision is correct, 

and we consider the evidence in the light most favorable to the 

decision. Id. at 771-72.

When, as in this case, the trial court has made findings of fact 

and conclusions of law, we apply a two-tiered standard of review:
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“we must first determine whether the evidence supports the 

findings and second, whether the findings support the judgment.”

[White v. Silbernagel (]In re Adoption of T.W., 859 N.E.2d 1215, 

1217 (Ind. Ct. App. 2006); see also Ind. Trial Rule 52(A) 

(providing that where the trial court has made findings of fact 

and conclusions of law, “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.”). Factual findings “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.” [In re ]T.W., 859 N.E.2d 

at 1217.

In re T.L., 4 N.E.3d at 662.

Issue One: Care and Support of Child

[4] Father first contends that the trial court erred when it found that he had failed 

to provide for the care and support of Child for one year when able to do so. 

Indiana Code Section 31-19-9-8(a)(2) provides that consent to adoption is not 

required from a parent of a child in the custody of another person if for a period 

of at least one 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.

The burden to prove these statutory criteria by clear and convincing evidence 

rests squarely upon the petitioner seeking to adopt. Id.
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[5] Here, the trial court found that Father’s consent was not required under either 

Indiana Code Section 31-19-9-8(a)(2)(A) or -8(a)(2)(B). Because the statute is 

written in the disjunctive, however, we need only address Father’s contention 

that the trial court erred when it found that he had knowingly failed to provide 

for the care and support of Child when able to do so as required by the 

dissolution decree.

[6] The time period relevant to a determination under Indiana Code Section 31-19-

9-8(a)(2)(B) is not limited to either the year preceding the hearing or the year 

preceding the petition for adoption but, rather, is any year in which the parent 

had an obligation and the ability to provide support, but failed to do so. R.S.P. 

v. S.S. (In re Adoption of J.T.A.), 988 N.E.2d 1250, 1255 (Ind. Ct. App. 2013), 

trans. denied. Further, in In re M.S., 10 N.E.3d at 1280, we observed as follows:

“A petitioner for adoption must show that the non-custodial 

parent had the ability to make the payments which he failed to 

make. This ability cannot be adequately shown by proof of 

income standing alone. To determine that ability, it is necessary 

to consider the totality of the circumstances. In addition to 

income, it is necessary to consider whether that income is steady 

or sporadic and what the non-custodial parent’s necessary and 

reasonable expenses were during the period in question.”

(Quoting Bruick v. Augustyniak (In re Adoption of Augustyniak), 508 N.E.2d 1307, 

1308 (Ind. Ct. App. 1987), trans. denied).

[7] Father’s child support obligation began on January 22, 2013, the date of the 

dissolution decree. Father does not challenge the trial court’s finding that he 
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“did not pay any child support during the calendar year 2013.” Appellee’s 

App. at 11. And Father concedes that he did not pay any child support in 2014 

until April 30. Thus, Father did not pay child support for more than one year 

beginning January 22, 2013. But Father maintains that, after the divorce, he 

“fell on hard times financially” because he was unable “to find stable 

employment” and was incarcerated for approximately three months in early 

2014. Appellant’s Br. at 8. Father asserts that he was not able to pay child 

support during that time and the trial court erred when it found that he 

knowingly failed to support Child.2

[8] Father’s contention amounts to a request that we reweigh the evidence, which 

we will not do. Father does not contest the trial court’s findings that he: has 

had periods of unemployment solely because he voluntarily quit several jobs 

without first securing other employment; moved in with his girlfriend in August 

2013 and is dependent on her for housing and living expenses; and withdrew 

$6,000 from a 401(k) account in May 2014, but used none of that money for 

child support. Father has not demonstrated that he was involuntarily 

unemployed at any time from January 22, 2013, until his incarceration in 

January 2014. And given that he withdrew $6,000 from his 401(k) account in 

May 2014, Father has not demonstrated that he could not have paid child 

support during periods of unemployment or during his incarceration. See, e.g., 

 

2

 We note that Father does not direct us to anything in the record showing that he moved the dissolution 

court to modify his child support obligation at any time.
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In re T.L., 4 N.E.3d at 663 (adopting the “non-imputation” approach to 

determine the child support obligation of incarcerated parents which requires 

that child support orders reflect the “real financial capacity of a jailed parent.”). 

The trial court did not err when it concluded that Father knowingly failed to 

pay child support for one year and that Father’s consent to the adoption was 

unnecessary.

Issue Two: Best Interests of Child

[9] Father next contends that the trial court erred when it concluded that adoption 

is in Child’s best interests. The primary concern in every adoption proceeding 

is the best interests of the child. In re M.S., 10 N.E.3d at 1281. Even if, as here,

a court determines that a natural parent’s consent is not required for an 

adoption, the court must still determine whether adoption is in the child’s best 

interests. N.R. v. K.G. (In re Adoption of O.R.), 16 N.E.3d 965, 974 (Ind. 2014).

The adoption statute does not provide guidance for which factors 

to consider when determining the best interests of a child in an 

adoption proceeding, but we have noted that there are strong 

similarities between the adoption statute and the termination of 

parental rights statute in this respect. See In re [M.L.], 973 N.E.2d 

[at] 1224 . . . (holding that the adoption statutes and the 

termination statutes provide similar balances between parental 

rights and the best interests of the children; also holding that 

termination cases provide “useful guidance as to what makes a 

parent ‘unfit’”). In termination cases, we have held that the trial 

court is required to look to the totality of the evidence to 

determine the best interests of a child. In re I.A., 903 N.E.2d 146, 

155 (Ind. Ct. App. 2009). Relevant factors include, among 

others, a parent’s historical and current inability to provide a 

suitable environment for the child, In re J.C., 994 N.E.2d 278, 290 
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(Ind. Ct. App. 2013); the recommendations of the child’s case 

worker or guardian ad litem; and the child’s need for permanence 

and stability, see A.J. v. Marion Cnty. Office of Family and Children, 

881 N.E.2d 706, 718 (Ind. Ct. App. 2008).

In re M.S., 10 N.E.3d at 1281-82.

[10] Again, in concluding that adoption is in Child’s best interests, the trial court 

concluded as follows:

56. [A.R.] has been the only father the minor child has known 

for the past two (2) years. [A.R.] and the minor child have an 

established bond, and Petitioner is greatly involved in the child’s 

day-to-day activities including soccer, school, cooking, and 

shopping. Petitioner has financially supported the child and 

provided health insurance for the child for that period of time as 

well.

57. Petitioner’s family is equally bonded to the minor child 

acting as grandparents and aunts and uncles.

58. [Father] and Mother were divorced when the child was just 1 

1/2 years old. Since the filing of the petition for adoption, 

[Father] has seen the minor child for a total of 7 hours. The 

minor child does not know [Father], and there is no established 

bond between [Father] and the minor child.

59. [Father] has not established that he has the ability to provide 

a suitable environment for the child. He was incarcerated for a 

felony OWI, which was later reduced to a misdemeanor. 

Despite that, he continues to drink alcoholic beverages and is not 

attending AA or any other substance abuse counseling.
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60. [Father] is not currently employed and has been employed 

sporadically since the dissolution due to his voluntarily leaving 

positions without new positions becoming available.

61. [Father] is currently dependent on his current significant 

other.

62. Despite agreeing to supervised visitation, [Father] has failed 

to attend the majority of the possible visits during the pendency 

of this adoption action.

63. [Father] made no effort to communicate with the child or 

financially support the child until after he learned of petitioner’s 

intention to file this step-parent adoption action. It has now been 

a total of two (2) years of insignificant contact.

Appellee’s App. at 12-13.

[11] On appeal, Father asserts that his failure to maintain consistent visitation with 

Child after the divorce was due to the loss of his driver’s license and that he 

failed to pay child support because of his “financial hard times.” Appellant’s 

Br. at 9. Father points out that “he wrote his son letters” while he was 

incarcerated. Id. And Father maintains that the trial court should have given 

more weight to the report prepared by Michelle McGrotty, who supervised 

seven one-hour visitations between Father and Child from September 2014 

through November 2014. In particular, Father points out that McGrotty 

concluded that Father “continues to nurture a bond with his child, who climbs 

onto his lap at the start of every visit, remaining there until it’s time to play on 

the floor or go home.” Appellant’s App. at 20. But, again, Father’s contentions 

on appeal amount to a request that we reweigh the evidence, which we will not 
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do. The trial court did not err when it concluded that adoption is in Child’s 

best interests.

[12] Affirmed.

Kirsch, J., and Barnes, J., concur.