from the St. Joseph Probate Court The Honorable Jason
Cichowicz, Judge Trial Court Cause No. 71J01-1711-AD-111
ATTORNEY FOR APPELLANT Scott H. Duerring Duerring Law Offices
South Bend, Indiana
ATTORNEY FOR APPELLEE Vincent M. Campiti Nemeth, Feeney,
Masters & Campiti, P.C. South Bend, Indiana
Vaidik, Chief Judge.
D.T. ("Biological Father") appeals the trial
court's order granting the adoption of his two children
by J.M. ("Adoptive Father"). Specifically,
Biological Father argues that the trial court failed to make
any findings that would allow for his consent to be dispensed
with. We agree with Biological Father and therefore remand
this case to the trial court.
and Procedural History
L.M. ("Mother") and Biological Father have two
children, J.A.T.-R. (born in August 2008) and J.A.T. (born in
December 2009). Mother and Biological Father got married
sometime in 2009. In late 2010 or early 2011, Mother and
Biological Father separated. In April 2011, Biological Father
was arrested and charged with Class A felony dealing in
methamphetamine. He later pled guilty and was sentenced to
forty years in the Indiana Department of Correction.
See 20D03-1104-FA-7. Biological Father's current
release date is November 12, 2029.
After Biological Father was arrested, Mother filed a petition
to dissolve her marriage to him. The divorce was final in
June 2011. See 20D06-1104-DR-117, 20D06-1102-DR-64.
According to the decree of dissolution of marriage, Mother
was awarded sole legal and physical custody of the children
with any visitation by Biological Father subject to her
approval. Biological Father was not ordered to pay any child
support while he was incarcerated. See Tr. p. 44.
When Biological Father was first incarcerated, Mother brought
the children to visit him. But after Mother met Adoptive
Father, the visits stopped. Mother and the children moved in
with Adoptive Father in 2013, and Mother and Adoptive Father
got married in September 2014. Nevertheless, Biological
Father tried to stay in contact with the children. He sent
them cards and letters and called Mother's phone, but
Mother did not give the cards and letters to the children or
answer his phone calls.
In October 2017, Biological Father filed a petition for
visitation with the children, which the trial court denied
"based upon the representation that the child's
therapist does not recommend contact with [Biological
Father]." See 20D06-1102-DR-64.
The next month, Adoptive Father filed a petition to adopt the
children. The petition alleged that Biological Father's
consent to the adoption is not required as follows:
10. The consent of [Biological Father] is not required
because while the children were in the custody of another
person, he, for a period of at least one year, failed without
justifiable cause to communicate significantly with the
children when able to do so or knowingly failed to provide
for the care and support of the children when able to do so
as required by law or judicial decree.
11. The consent of [Biological Father] is not required
because [he] is presently incarcerated with the Indiana DOC
following a methamphetamine manufacturing conviction. He is
serving a sentence of more than twenty years. He has not had