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D.T. v. J.M.

Court of Appeals of Indiana

December 11, 2019

D.T., Appellant-Respondent,
v.
J.M., Appellee-Petitioner

          Appeal 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.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 ...

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