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In re Adoption of E.M.L.

Court of Appeals of Indiana

May 25, 2018

In Re: The Matter of the Adoption of: E.M.L., (Minor)
v.
K.G., Appellee-Respondent. S.L., Appellant-Petitioner,

          Appeal from the Hamilton Superior Court The Honorable Steven R. Nation, Judge The Honorable William P. Greenaway, Magistrate Trial Court Cause No. 29D01-1608-AD-997

          ATTORNEY FOR APPELLANT Karen Celestino-Horseman Indianapolis, Indiana

          ATTORNEY FOR APPELLEE Alan D. Wilson Kokomo, Indiana

          Barnes, Judge.

         Case Summary

         [¶1] S.L. ("Father") appeals the granting of the adoption petition filed by K.G. ("Stepfather") for Father's biological child, E.M.L. ("Child"). We reverse.

         Issue

         [¶2] Father essentially raises two issues. We need only address the dispositive issue of whether the trial court properly concluded that Father's consent to Child's adoption by Stepfather was unnecessary.

         Facts

         [¶3] Child was born in 2009 to T.G. ("Mother"). Father, Mother, and Child lived together for about a year before Mother and Child moved out. Father established paternity in December 2011 and was ordered to pay child support. Mother and Father were granted joint physical and legal custody of Child. From the time of Child's birth, he spent approximately every other weekend with his paternal grandparents in Brown County. Father often visited with Child when he was at the grandparents' house. Mother and Stepfather married in 2012.

         [¶4] Between December 2011 and December 2012, Father paid about $620 of the $3, 380 he would have owed in child support. There is scant evidence in the record as to Father's employment situation during that time frame; evidently, Father was employed as a machinist when his child support obligation was calculated but lost that job sometime thereafter, according to Mother.

         [¶5] In March 2012, Father was arrested for dealing in methamphetamine. On July 1, 2013, Mother filed a motion to modify custody. On October 9, 2013, the trial court granted Mother sole legal and primary physical custody of Child. This order contained no requirement that Child's visitation with Father be supervised or otherwise placed any limitations on his visitation or contact with Child.

         [¶6] Father was convicted of dealing in methamphetamine in March 2013 and was incarcerated through July 2014. Father sought and was granted a complete abatement of his child support obligation to $0 while he was incarcerated.[1]Father frequently telephoned and spoke with Child when Child was visiting Father's parents.

         [¶7] After being released from incarceration, Father resumed frequent visitation with Child through Child's weekend visits with Father's parents. However, on June 9, 2015, Father filed a pro se "request" regarding parenting time and custody, alleging that Mother improperly refused to allow Child to continue visiting Father in Father's own home and refused to allow Father any unsupervised visitation with Child. App. Vol. II p. 113. A hearing on the matter originally was scheduled for August 6, 2015, but was continued to November, and then December, and finally to February 10, 2016.

         [¶8] Before a hearing was held, Father was arrested in November 2015 on a domestic battery charge for slapping a girlfriend in front of two children. He remained in jail until he pled guilty in February 2016, at which time he was released on probation. He moved in with his parents thereafter. Meanwhile, Father's June 2015 petition regarding parenting time was dismissed after he failed to appear at the February 2016 hearing on the matter, apparently held while he was still incarcerated. However, the trial court ordered an abatement of Father's support obligation while he was incarcerated.

         [¶9] Mother and paternal grandmother ("Grandmother") frequently communicated by text message regarding Child and Father, Child's visitation with paternal grandparents, and Child's sports activities in Noblesville that Mother invited paternal grandparents but not Father to attend.[2] After Mother learned of Father's domestic violence arrest in November 2015, she texted Grandmother, "I don't trust [Father's] judgement [sic] with his girlfriends that he affiliates himself with, which is why I never thought it was a good idea for [Child] to be around [Father] and his girlfriend." Ex. 8, p. 42.[3] On November 27, 2015, Mother texted Grandmother,

I wanted to let you know that [Child] knows that [Father] is in jail. Unfortunately with what I've learned about [Father's] behavior in the last year, that until [Father] and I talk to each other and get things resolved in court, that it's in [Child's] best interest for [Father] to not talk with [Child] over the phone. I know this is tough for you, but I'm trusting you to be sure that there's no communication going on between [Child] and [Father].

Id. at 44. Grandmother responded to this text,

I will respect your wishes, but I don't know what you mean about his behavior in the last year? The issues he had was between him and that girl. Nothing to do with [Child] at all. He has not been on any drugs and was doing good, until the incidents with her. I think it would hurt [Child] more by not being able to talk to his Dad. . . . Please answer the phone when [Father] tries to call you . . . .

Id.

         [¶10] On November 29, 2015, Grandmother texted Mother,

I told [Child] last night when [Father] called, that he couldn't talk to him, he buried his head in the couch with tears and asked why? I broke down and let him talk to him for a minute. I know I told you I wouldn't but he broke my heart when I seen him. I am sorry. I told [Child] when he asked why, he ...

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