In the Matter of the Adoption of T.G.: D.G. v. M.C.

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. Jan 30 2014, 6:21 am

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

MARK I. COX AMY K. NOE

The Mark I. Cox Law Office, LLC Richmond, Indiana

Richmond, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE ADOPTION OF T.G.; )

D.G., )

)

Appellant, )

)

vs. ) No. 89A04-1305-AD-260

)

M.C., )

)

Appellee. )

APPEAL FROM THE WAYNE SUPERIOR COURT

The Honorable Gregory A. Horn, Judge

Cause No. 89D02-1208-AD-23

January 30, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge

Case Summary

This Court accepted jurisdiction of an interlocutory appeal by D.G., the biological

father of T.G., challenging an order dispensing with his consent to the adoption of T.G. He

presents a single issue for review: whether there was sufficient evidence to support the trial

court’s determination that D.G.’s consent is not required, pursuant to Indiana Code Section

31-19-9-8(2), which obviates the necessity of consent by a parent who, when able to do so,

for at least one year, has failed to provide for the care and support of his child who is in the

custody of another person. We affirm.

Facts and Procedural History

M.R.C. (“Mother”) gave birth to T.G. in 2007. At that time, Mother and D.G. lived

together. They executed a paternity affidavit naming D.G. as T.G.’s biological father. The

couple separated in December of 2009 and reached an informal agreement that D.G. would

pay $70.00 weekly to Mother as child support for T.G.’s benefit. D.G. paid child support

sporadically, but regularly exercised parenting time with T.G.

Mother married and, on August 22, 2012, her husband (“Stepfather”) petitioned to

adopt T.G. D.G. contested the adoption. On January 9, 2013, the trial court heard evidence

relative to the necessity of D.G.’s consent to Stepfather’s adoption of T.G. At the hearing,

Mother testified that D.G. had failed to provide any support for T.G. during the entire

calendar year of 2010. At the conclusion of the hearing, the trial court entered an order

providing that D.G.’s consent to the adoption was not required.

D.G. successfully sought a stay of the proceedings and the trial court’s certification of

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its interlocutory order. On July 8, 2013, this Court accepted jurisdiction of the interlocutory

appeal.

Discussion and Decision

Standard of Review

Stepfather was required to prove by clear and convincing evidence that D.G.’s consent

was not required. In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006).

However, on appeal of a ruling in an adoption case, the appellant bears the burden of

showing that the decision was incorrect and “we will not disturb the ruling unless the

evidence leads to only one conclusion and the probate court reached an opposite conclusion.”

In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied. We do not

reweigh the evidence but will examine the evidence most favorable to the court’s decision

together with reasonable inferences drawn therefrom in order to determine whether sufficient

evidence exists to sustain the decision. Id.

Analysis

Stepfather alleged, and the court found, that D.G.’s consent was unnecessary pursuant

to Indiana Code Section 31-19-9-8(a), which provides that consent to 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.

Subsection (b) also provides: “If a parent has made only token efforts to support or to

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communicate with the child the court may declare the child abandoned by the parent.” Here,

the trial court also declared T.G. abandoned upon concluding that D.G. had “at best” made

token payments in 2010.

Because D.G. contested the adoption, Stepfather as the petitioner was required to

prove by clear and convincing evidence that Father’s consent was not required. In re

Adoption of D.C., 928 N.E.2d 602, 606 (Ind. Ct. App. 2010), trans. denied; In re Adoption of

M.A.S., 815 N.E.2d 216, 219 (Ind. Ct. App. 2004). The provisions of Indiana Code Section

31-19-9-8(a) are disjunctive; as such, either provides independent grounds for dispensing

with parental consent. Id. Regardless of which provision is relied upon, adoption is to be

granted only if it is in the best interests of the child. Ind. Code § 31-19-11-1(a).

A mere showing that a parent has a regular income, standing alone, is not sufficient to

indicate parental ability to provide support. In re Adoption of N.W., 933 N.E.2d 909, 913

(Ind. Ct. App. 2010), adopted on transfer, 941 N.E.2d 1042 (Ind. 2011). To determine the

ability to pay, it is necessary to consider the totality of the circumstances. In re Adoption of

M.A.S., 815 N.E.2d 216, 221 (Ind. Ct. App. 2004).

D.G. acknowledges that he had a common law duty to support his child, despite the

absence of a court order. See Boone v. Boone, 924 N.E.2d 649, 652 (Ind. Ct. App. 2010) (“it

is well-settled that parents have a common law duty to support their children”). He also

concedes that he did not regularly provide support to T.G. in the amount of $70.00 weekly as

contemplated by the parties’ agreement. However, he directs our attention to his testimony

that he paid $500 in 2010 (in contrast to Mother’s testimony that he paid nothing) and further

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suggests that the statutory year of nonsupport must have occurred in the time immediately

preceding the filing of the petition for adoption.

Recently, a panel of this Court has rejected the contention that the relevant timeline of

nonsupport found in Indiana Code section 31-19-9-8(a)(2)(B) is the year preceding the

hearing on the petition:

While the abandonment ground requires that the abandonment have occurred

in the time immediately preceding the filing of the petition for adoption, there

is no such requirement for the failure to support ground.

In fact, the plain language of the statute indicates that the relevant time period

is any one year period in which the parent was required and able to support the

child but failed to do so. See Ind. Dep’t of Human Servs. v. Firth, 590 N.E.2d

154, 157 (Ind. Ct. App. 1992) (“We presume words appearing in the statute

were intended to have meaning and we endeavor to give those words their

plain and ordinary meaning absent a clearly manifested purpose to do

otherwise.”) (citation omitted), trans. denied. While subsection (a)(1) of the

statute references the six months “immediately preceding the date of the filing

of the petition,” subsection (a)(2) only references “a period of at least one (1)

year.” Ind. Code § 31-19-9-8. Clearly, the legislature knows how to apply the

requirements to only a limited time period, but chose not to do so for the

failure to support ground.

In re Adoption of J.T.A., 988 N.E.2d 1250, 1254-55 (Ind. Ct. App. 2013) (emphasis in

original), trans. denied.

Mother testified that she received no money from D.G. in 2010; she further testified

that D.G. did not provide material items such as clothes. D.G. emphasizes his testimony that

he provided up to $500.00 in 2010. The trial court found Mother’s testimony credible, and

observed that, even if D.G. had paid $500.00 in 2010, it was a token amount.1

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On this basis, the trial court alternatively declared T.G. abandoned. However, the statutory criteria for

abandonment was not met, in that consent is obviated on abandonment grounds “if the child is adjudged to

have been abandoned or deserted for at least six (6) months immediately preceding the date of the filing of the

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As for D.G.’s ability to provide support, he testified that he was employed by Direct

TV, working alongside his father pursuant to a contract, in January of 2010. He lost that job

in February of 2010 and had thereafter acquired part-time work and “side jobs.” (Tr. 30.) He

further testified that he was trained as a firefighter and an EMT and “might make $200” for a

weekend event, out of which he was able to set aside $100 to give to Mother. (Tr. 41.) See

In re Adoption of K.F., 935 N.E.2d 282, 288 (Ind. Ct. App. 2010) (recognizing that parent’s

admission is evidence of ability to pay).

The evidence most favorable to the trial court’s determination is that D.G. made two

child support payments in 2009, paid no child support in 2010 – even when he was fully

employed in January – and thereafter made payments in 2011, first sporadically and then

regularly commencing in May. At the same time, D.G. was qualified to work on a fire-truck

and an ambulance. The evidence is sufficient to show, by clear and convincing evidence,

that D.G. knowingly failed to provide for the care and support of T.G. for one year, when he

was able to do so.

Stepfather met his burden of showing that D.G.’s consent to adoption was not

required.

Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.

petition for adoption.” Ind. Code § 31-19-9-8(a)(1). Stepfather’s petition for adoption was filed in 2012 and

D.G. allegedly made token payments in 2010.

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