FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KENDRA G. GJERDINGEN DARRYN L. DUCHON

Mallor Grodner LLP Indianapolis, Indiana

Bloomington, Indiana

MONTY K. WOOLSEY

Cross, Pennamped, Woolsey & Glazier, P.C.

Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

D.D., )

)

Appellant-Petitioner, )

)

vs. ) No. 49A02-1311-DR-1004

)

D.P., )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Theodore M. Sosin, Judge

Cause Nos. 49D02-0310-DR-1827 and 32D01-0911-AD-37

April 29, 2014

OPINION – FOR PUBLICATION

BAKER, Judge 
2

In this case, the parties are before this Court for the third time concerning 

essentially the same stepparent adoption proceedings. Appellant-petitioner D.D. 

(Stepfather) married K.D. (Mother) in 2007 and wanted to adopt her two children from a 

previous marriage. However, the children’s father, appellee-respondent D.P. (Father), 

resides in Washington D.C., and Mother could not convince him to consent to the 

adoption. Nevertheless, Stepfather’s petition for adoption was granted in 2010 but was 

vacated for lack of notice to Father. 

Another hearing on the adoption petition was scheduled and Stepfather alleged 

that Father’s consent was unnecessary because he had failed to significantly 

communicate with the children for a period of at least one year when able to do so. The 

trial court found that Stepfather had not met his burden, but a panel of this Court 

remanded after clarifying the correct burden of proof. After reviewing the evidence again 

and applying the correct burden of proof, the trial court entered findings of fact and 

conclusions of law in its order denying Stepfather’s petition to adopt the children. 

Perhaps the trial court’s most compelling finding was that Mother had thwarted Father’s 

attempts at communicating with the children. 

Stepfather now appeals, arguing that the trial court’s finding that Mother thwarted 

Father’s attempts at communication are clearly erroneous, insofar as Father never tried to 

directly communicate with the children. Concluding that the trial court did not err by 

denying Stepfather’s petition to adopt the children, we affirm the judgment of the trial 

court. 
3

FACTS

In 2004, Mother and Father had their marriage dissolved by the Marion Superior 

Court, and Mother was awarded sole legal and physical custody of their two children, JJP 

and JP, who were twenty-three months and four months old at the time. Father was 

awarded parenting time with no overnight visits and was ordered to pay $502 per week in 

child support, which he has consistently paid except for a short period when he was 

seeking employment. 

Father saw JJP and JP a few times during the pendency of the dissolution 

proceedings. In 2004, after the dissolution was granted, Father moved to Washington,

D.C. for work and currently resides in Arlington, Virginia. Father’s last visitation with 

the children was in 2004 before the trial court enforced parenting time in 2010. 

In 2007, Mother married Stepfather, and they currently reside with the children in 

Hendricks County. Father is also remarried and has three older children from a previous 

marriage. 

Following the dissolution and Father’s relocation, he made numerous efforts to 

establish parenting time in a manner that would be the least disruptive to the children. 

More particularly, Father repeatedly emailed and telephoned Mother, attempting to 

establish a parenting time schedule that would be agreeable to both of them. Father sent 

Mother over sixty emails requesting parenting time, of which Mother responded to five. 

Father continued to struggle with his concerns over his children’s well-being, 

wanting to be a part of their lives, and the effect that coming back into their lives would 
4

have on them. Rather than initiating litigation, Father continued to pursue his goal of 

gaining Mother’s cooperation in establishing a parenting time schedule. 

However, Mother did not want Father in the children’s lives, refused to address 

most of his communications, and led Father to believe that she thought that it would be 

traumatic for the children if Father had parenting time with them. From the time that the 

dissolution decree was granted, Mother’s position was that she wanted Father out of her 

and the children’s lives and quickly expressed her approval and cooperation in 

terminating Father’s parental rights, acknowledging that she could not pursue such action 

on her own. After Mother remarried, this evolved into requests that Father consent to 

Stepfather’s adoption of their children. 

On November 10, 2009, Stepfather filed a petition for adoption in the Hendricks 

Superior Court. The petition was not served on Father, and no summons was issued. A 

hearing on the adoption was held without any notice to Father, and a decree of adoption 

was entered on January 11, 2010, without Father’s knowledge or consent. 

On January 15, 2010, Mother moved to terminate the child support withholding 

order against Father’s income, which was granted on January 21. On January 27, 2010, 

Father moved to vacate the adoption in the Hendricks Superior Court, and on February 3, 

2010, Father filed an objection to Mother’s motion to terminate the child support 

withholding order and moved to establish parenting time with the children in the Marion 

Superior Court. 
5

On March 15, 2010, the Hendricks Superior Court vacated the adoption decree for 

lack of proper service on Father. However, Stepfather’s adoption petition was still 

pending and set for a contested adoption hearing before the Hendricks Superior Court. 

On March 23, 2010, Father filed a notice of vacation of adoption in the Marion 

Superior Court. Father requested that the Hendricks Superior Court proceeding be 

dismissed or consolidated with the Marion Superior Court proceeding. The Hendricks 

Superior Court took Father’s motion under advisement and stayed the case pending 

receipt of the Marion Superior Court Order. The Marion Superior Court issued an order 

on July 16, 2010, concluding that it had jurisdiction over the adoption proceeding, that 

Mother had failed to establish that Father’s consent was not required, and ordered Mother 

to provide Father with access to his children in response to his motion to enforce 

parenting time. 

Mother appealed a part of the Marion Superior Court’s decision. Specifically, 

Mother appealed its determination that it had jurisdiction over the adoption proceeding 

and that she had failed to establish that Father’s consent to the adoption was not required. 

Devlin v. Peyton, 946 N.E.2d 605 (Ind. Ct. App. 2011). In Peyton, a panel of this Court 

held that the Marion Superior Court did not have jurisdiction over the adoption 

proceeding because Stepfather’s adoption petition was still pending in the Hendricks 

Superior Court. Id. at 607. The panel reversed only the adoption portion of the ruling. 

Id. at 608. 
6

Father then filed a motion to dismiss or transfer with the Hendricks Superior 

Court, which granted the request, and the Marion Superior Court accepted transfer. On 

August 8, 2012, the Marion Superior Court (trial court), issued an order which addressed 

Father’s attempts to enforce his parenting time, set a hearing on the necessity of Father’s 

consent to the adoption, and set a hearing on the final adoption to determine the 

children’s best interests as they related to Stepfather’s adoption request. 

The trial court held a hearing on the consent issue and ruled on October 5, 2012, 

that Father’s consent to the adoption was required. Stepfather appealed, and a different 

panel of this Court remanded, directing the trial court to reconsider the evidence but 

noted that a new hearing was not required. D.D. v. D.P., No. 49A02-1211-DR-896, 

memo op. at 4 n.1 (Ind. Ct. App. June 27, 2013). In this opinion, the panel held that the 

trial court had used an incorrect standard when determining whether Stepfather had 

satisfied his burden to prove that Father’s consent to the adoption is not required. Id. at 2. 

Specifically, instead of using the “clear and convincing” standard, the trial court had used 

the “clear, cogent and indubitable” standard. Id. at 1. 

After reconsidering extensive evidence, on November 1, 2013, the trial court 

issued an order on remand that Father’s consent to Stepfather’s adoption was required. 

Specifically, under the clear and convincing standard, the trial court concluded that 

Stepfather had not proven that Father failed to communicate with the children for more 

than one year without justifiable cause. Stepfather now appeals. 
7

DISCUSSION AND DECISION 

Stepfather argues that the trial court erred in finding that he had not proved by 

clear and convincing evidence that Father’s consent was unnecessary for him to adopt the 

children. More particularly, Stepfather maintains that Father failed to communicate with 

the children for more than five years even though he was able to do so. 

I. Standard of Review

Where, as here, a trial court enters findings of fact and conclusions of law, this 

Court first determines whether the evidence supports the findings. In re Adoption of 

T.L., No. 02S03-1308-AD-528, slip op. 4 (Ind. March 11, 2014). Then, the Court 

determines whether the findings support the judgment. Id. The trial court’s findings of 

fact and conclusions of law will be set aside only if they are clearly erroneous, or, in 

other words, the record contains no facts or inferences to support them. Id. The trial 

court’s judgment is clearly erroneous when “‘it is unsupported by the findings of fact and 

the conclusions of law relying on those findings.’” Id. (quoting In re Adoption of T.W., 

859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)). 

II. Father’s Consent to Adoption 

Stepfather contends that the trial court erred, inasmuch as he proved by clear and 

convincing evidence that Father’s consent to adopt the children was not necessary 

because Father had failed to communicate with the children for five years, four more than 

the statutory minimum. Thus, according to Stepfather, the trial court’s finding that “[a]t 

best, Mother ignored/hampered Father’s inquiries regarding a mutually acceptable plan 
8

for visitation/communication, and at worst, thwarted Father’s attempts at arranging 

visitation/communication with the children,” appellant’s app. p. 29, is erroneous. 

Generally, “a petition to adopt a child who is less than eighteen (18) years of age 

may be granted only if written consent to adoption has been executed by . . . [e]ach living 

parent of a child born in wedlock . . . .” Ind. Code § 31-19-9-1. However, consent is not 

required if “[a] parent of a child in the custody of another person [] for a period of at least 

one (1) year . . . fails without justifiable cause to communicate significantly with the child 

when able to do so[.]” I.C. § 31-19-9-8(a)(2)(A) (emphasis added). If an adoption 

petition alleges that parent’s consent is unnecessary under Indiana Code section 31-19-9-

8(a)(2) and that parent files a motion to contest, “a petitioner for adoption has the burden 

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

convincing evidence. I.C. § 31-19-10-1.2.; In re Adoption of S.W., 979 N.E.2d 633, 640 

(Ind. Ct. App. 2012). 

Here, both children were less than two years old when Mother and Father 

dissolved their marriage. Pet. Ex. 4. Following the dissolution, Father moved to 

Washington, D.C. for work and experienced financial difficulties. Pet. Ex. 5 p. 1; Tr. p. 

52. In December 23, 2004, Father emailed Mother seeking her cooperation in 

establishing a parenting time schedule. Pet. Ex. 5 p. 1-2. However, even in early 2005, 

Mother was uncooperative in responding to Father’s emails. Id. at 4. And these were not 

the only emails that Father sent to Mother attempting to discuss with her the best way in 
9

which he could be integrated into the children’s lives. Indeed, as noted above, Mother 

responded to only five of Father’s sixty emails that he sent to her. Tr. p. 53-54. 

When Mother did respond to Father’s emails, she seemed interested only in 

terminating his parental rights or, after she married Stepfather, convincing Father that it 

was in the children’s best interests for Stepfather to adopt them. Pet. Ex. 3, 5. 

At the October 5, 2012 hearing on the adoption petition, Father testified about his 

goals regarding the children and his communications with Mother to achieve them: 

I would communicate with [Mother] and trying to figure out what can I do 

to become part of these kids’ lives? What can I do- how am I going to get 

involved? How are we going to integrate me? I had to move to 

Washington D.C. for work, and how do we navigate through this . . . and be 

a good parent. How do I get introduced to them as a good parent, and that 

was what I was trying to work through, and when you ask what I was trying 

to do, I was trying to understand how am I going to do this and what can I 

do to do the right thing about it. [Mother], on the other hand, would 

respond, I want you to, and I’m paraphrasing . . . I want you to let me adopt 

them, and I’ve always been pessimistic when she would say that, like, why 

is that in the best interests, was always my response. 

Tr. p. 52-53. 

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

finding that “Mother hampered and thwarted Father’s attempts to communicate with the 

children.” Appellant’s App. p. 29. Here, the trial court did not permit Mother’s 

interference with Father’s efforts to be a part of his children’s lives to operate to 

Stepfather’s benefit when determining whether Father’s consent was unnecessary. To do 

so would have had the effect of rewarding Mother’s refusal to work with Father 

concerning his contact with the children. 
10

Notwithstanding this conclusion, Stepfather places great emphasis on the lack of 

direct communication between Father and the children. As stated above, the trial court 

did not err in concluding that Mother thwarted Father’s attempts to communicate with the 

children. However, assuming solely for argument’s sake that Father was required to 

attempt to directly communicate with the children, we note that Father’s emails to Mother 

indicate that he tried to work with Mother to devise a plan to re-establish contact between 

himself and the children. Mother rarely responded to Father’s emails or attempt to 

cooperate with Father to re-establish contact with the children. Tr. p. 53-54. 

In light of these facts, Father sought to establish contact in a manner that would 

gain Mother’s approval and minimize any negative impact on the children, who were 

very young when Mother and Father dissolved their marriage. We would think that

under these circumstances, Mother, or any parent, would prefer that Father contact her 

regarding communications to determine how to proceed in the best interests of the 

children. Accordingly, under these circumstances, Father demonstrated justifiable cause 

for not initiating direct communication with the children. 

The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.