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.
VAIDIK, Chief Judge.
J.S. (Father) appeals the trial court's order granting the petition of C.A.K. (Stepfather) to adopt Father's daughter. Father argues that the evidence is insufficient to support the trial court's conclusions that his consent was not required and that the adoption was in his daughter's best interests. Finding no error, we affirm.
E.J.K. (Mother) and Father were married in February 2004. Father has an extensive criminal record dating back to 1999, including seven felony convictions and nine misdemeanor convictions. See Appellant's App. p. 8-10 (General Finding No. 9). He has also struggled with drug addiction. Mother and Father have one child, A.Y.S. (Child), who was born May 13, 2005. Mother and Father separated when Child was about ten months old and then divorced in February 2008. Mother was granted full custody of Child, and Father was given eight hours of supervised visitation with Child each Sunday, which was later increased.
In August 2008, Mother and Child moved in with Stepfather and his two children. Mother and Stepfather later married.
Since Mother and Father's marriage, Father has spent a lot of time either incarcerated, on work release, or on home detention. As a result, Mother has agreed—on numerous occasions—to modify Father's parenting time with Child in order to accommodate his availability.
In June 2013, Father helped Mother and Stepfather move into a new home in Jasper. Because Father was having marital problems with his then-wife, Mother and Stepfather gave him $600 and offered to let him stay at their house "until he got back on his feet." Tr. p. 81. Father rejected the offer. In the meantime, Father continued his every-other-weekend, overnight parenting time with Child, which he exercised sporadically. Id. at 76.
The last time Father saw Child was October 25, 2013.
After October 25, 2013, Father never called to speak with Child. See Tr. p. 80 (Mother explaining that she did not "actually" block phone calls from Father after October 25 and that Father could have called Child if he wanted to do so but he did not).
In May 2014, Father was charged with Class B felony dealing in methamphetamine and being a habitual offender; he was jailed on these charges on June 5. The GAL issued her report in August, while Father was in jail awaiting trial. In her report, the GAL explained that she consulted an earlier GAL report regarding these parties:
Appellee's App. Vol. III, p. 49-50.
A month after the GAL filed her report, Father pled guilty to Class B felony dealing in methamphetamine and was sentenced to ten-and-a-half years. Father's earliest possible release date is June 1, 2018.
Stepfather filed a petition to adopt Child on May 12, 2015. After Stepfather filed the adoption petition, Father sent letters to Child from prison. According to Father, he also sent a few letters to Child before Stepfather filed the adoption petition; however, Mother claimed she never received these letters.
The trial court held a hearing on Stepfather's adoption petition. At the time, Father was nearly $20,000 behind in child support. In May 2016, when Child was eleven years old, the trial court issued an order granting Stepfather's petition to adopt Child, finding that (1) Father's consent to the adoption was not required because for a period of at least one year he failed without justifiable cause to communicate significantly with Child although he was able to do so and (2) the adoption was in Child's best interests. The court concluded, in relevant part:
Appellant's App. p. 17, 25.
Father now appeals.
Father contends that the trial court erred in granting Stepfather's petition to adopt Child. He argues that the evidence is insufficient to support the trial court's conclusions that his consent was not required and that the adoption was in Child's best interests.
Our standard of review in adoption cases is well established.
When, as in this case, the trial court has made findings of fact and conclusions, we apply a two-tiered standard of review: 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 658, 662 (Ind. 2014). Factual findings are clearly erroneous if the record lacks any evidence or reasonable inferences to support them,
Generally, a petition to adopt a minor child may be granted only if written consent has been provided by the biological parents. See Ind. Code § 31-19-9-1. However, written consent is not required from, among others, the following:
Ind. Code § 31-19-9-8(a).
The test for communication is not whether the noncustodial parent had
Here, the record shows that the last time Father saw or spoke to Child was October 25, 2013; Father was incarcerated on June 5, 2014; and the adoption petition was filed on May 12, 2015. Thus, Father had no contact with Child between October 25, 2013, and his incarceration on June 5, 2014—a period of over seven months.
As for the fact that Father was incarcerated from June 5, 2014, until the adoption petition was filed on May 12, 2015—a period of over eleven months— the trial court found that he still could have had meaningful contact with Child by sending her letters or gifts. See Appellant's App. p. 13 (Finding No. 18: "[T]here was no one keeping [Father] from writing to his daughter on a regular basis while he was in prison. He could have sent her birthday cards or cards or gifts at Christmas and other holidays. He did not."). The court noted that while Father was incarcerated and before the adoption petition was filed, he mailed only three letters to Child, which Mother never received. See id. at 14 (Finding No. 19(o): "The most favorable evidence for . . . Father was that he mailed Exhibits C, D and E prior to the filing of the petition for adoption. . . . [Mother] denied ever getting any of these. . . . [T]he Court believes [Mother] when she said she did not receive Father's C, D and E."). To the extent Father claims that Mother destroyed letters from Father, this is simply a request for us to reweigh the evidence. Finally, Father claims on appeal that Mother was uncooperative in his efforts to see Child. However, the trial court, noting that Mother agreed on at least five occasions to modify Father's parenting time because of his criminal behavior, specifically rejected this claim. See id. at 16 (Finding 20(b)(ix): "This record does not reflect a mother who was uncooperative. In fact, she was very cooperative, while at the same time trying to protect her daughter from the dangers in which [Father] often found himself. The Court does not give any credibility to [Father's] contention that [Mother] was uncooperative with him regarding parenting time.").
In sum, in the eighteen months leading up to Stepfather's filing of the adoption petition, Father did not see or speak to Child and mailed her only three letters (which Mother never received). Although Father was incarcerated for a large part of this time (and remains incarcerated today), there was nothing that prevented him from sending letters to Child on a more regular basis. We therefore find that Stepfather has proven by clear and convincing evidence that for a period of at least one year, Father failed without justifiable cause to communicate significantly with Child when able to do so. See O.R., 16 N.E.3d at 973-75 (holding that incarcerated father failed without justifiable cause to communicate significantly with his daughter by calling her only once in six years and not attempting mail communication with her through the adoptive parents or the court); In re Adoption of E.A., 43 N.E.3d 592, 598-99 (Ind. Ct. App. 2015) (holding that incarcerated father failed without justifiable cause to communicate significantly with his son by sending mother a few letters in which his son was mentioned and by sending his son a birthday card on his second birthday and by not sending any communication for two years), trans. denied; cf. Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986) (holding that incarcerated parent communicated significantly with his daughter by writing her weekly and seeing her every other week during the first nine months of his incarceration and thereafter writing her two to three times a year and sending her cards and gifts at Christmas, Easter, and birthday). Accordingly, Father's consent to adopt Child was not required.
Even if a court determines that a biological parent's consent is not required for an adoption, the court must still determine whether adoption is in the child's best interests. Ind. Code § 31-19-11-1(a); O.R., 16 N.E.3d at 974. Father appears to argue that adoption is not in Child's best interests because he has bettered himself since he has been in prison this time. See Appellant's Br. p. 17.
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. In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). 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. Id. Relevant factors include, among others, a parent's historical and current inability to provide a suitable environment for the child; the recommendations of the child's case worker or guardian ad litem; and the child's need for permanence and stability. Id. at 1281-82.
Here, the record shows that Father has sixteen convictions (seven felonies and nine misdemeanors), ten since Child was born. As a result, he has been incarcerated for "much" of Child's life and continuously since June 5, 2014. Appellant's App. p. 24. In fact, he will be incarcerated until at least June 1, 2018, at which point Child will be a teenager. Because of his convictions, Father has not been able to keep up with his child-support payments and was nearly $20,000 in arrears at the time of the hearing in this case. As the trial court found, "[Child] has been disappointed all her life because [Father] would promise to stay out of trouble and be a father, only to be followed with more episodes of incarceration." Id. In the meantime, since Child was three years old, Stepfather has been acting as Child's father by providing her with food, shelter, clothing, love, and support. The trial court recognized that Father claimed to have learned his lesson this time; however, the court noted that he told the GAL this very same thing back in 2011: "Despite the possible good intentions of [Father], he has failed time and again as a father." Id. Accordingly, the court concluded that Child deserved the "consistency, continuity and love" that Stepfather has provided over the past eight years. Id. at 25. The trial court did not err in determining that adoption was in Child's best interests. Accordingly, the court did not err in granting Stepfather's petition to adopt Child.
Affirmed.
Bradford, J., and Brown, J., concur.