J.M. v. T.W. (In re B.D.H.)

• Decision Date: 07 May 2021
• Docket Number: Court of Appeals Case No. 20A-AD-788
• Citation: 171 N.E.3d 631 (Table)
• Court: Indiana Appellate Court
• Parties: IN RE the ADOPTION OF B.D.H., J.M., Appellant, v. T.W. and D.H., Appellees.

171 N.E.3d 631 (Table)

IN RE the ADOPTION OF B.D.H.,J.M., Appellant,

v.T.W. and D.H., Appellees.

Court of Appeals Case No. 20A-AD-788

Court of Appeals of Indiana.

FILED May 7, 2021

Attorneys for Appellant: Ryan H. Cassman, Brandi A. Gibson, Coots, Henke & Wheeler, P.C., Carmel, Indiana

Attorney for Appellees: Brian M. Pierce, Muncie, Indiana.

MEMORANDUM DECISION

Brown, Judge.

[1] J.M. appeals the trial court's decree of adoption. We affirm in part and remand.

Facts and Procedural History

[2] B.D.H. was born to J.M. and T.W. ("Mother") in March 2009. In October 2010, the trial court entered an order under cause number 33C01-1003-JP-12 ("Cause No. 12") establishing paternity, awarding Mother custody, ordering that J.M. have parenting time as agreed or pursuant to the Indiana Parenting Time Guidelines, and ordering J.M. to pay $86 per week in child support. In August 2017 Mother filed an emergency petition to modify parenting time, the following month J.M. filed a petition for citation, and in March 2018 the court granted Mother's motion. It noted J.M.’s continued use of methamphetamine and suspended J.M.’s parenting time until he provided verification that he successfully completed substance abuse treatment, completed the terms of supervised probation under cause number 33C02-1603-F6-84 ("Cause No. 84"), and passed all drug screens administered while on probation.

[3] Mother and D.H. were married in February 2019. Meanwhile, in October 2018, D.H. and Mother filed a petition for adoption under cause number 33C01-1810-AD-32 ("Cause No. 32"). In December 2018, J.M. filed a motion to contest the adoption. In April 2019, J.M. filed a petition to set visitation under Cause No. 12.

[4] On January 29, 2020, the trial court held a hearing under Cause Nos. 12 and 32. The court admitted pleadings and orders from Cause No. 84, text messages between Mother and J.M., Mother's voicemail log, a letter from Meridian Health Services, and Father's support payment history.

[5] With respect to Cause No. 84, J.M. was convicted of possession of methamphetamine as a level 6 felony and committed to the Henry County Jail for confinement for two years on June 16, 2016, and the court suspended 724 days to probation. The State filed a petition to revoke his suspended sentence in March 2017 alleging he tested positive for amphetamine and methamphetamine. The court issued an order on August 24, 2017, stating J.M. admitted to a violation, revoking 164 days of his suspended sentence, and stating that J.M. was entitled credit for days served in jail from March 17, 2017, through March 20, 2017, and from June 8, 2017, through August 24, 2017. An April 19, 2018 order states that he admitted to violating the terms of his probation, the court revoked 560 days of his suspended sentence to be served on home detention, and that probation was terminated as unsuccessful. On August 8, 2018, the State filed a petition to revoke J.M.’s placement on home detention. On September 14, 2018, the court entered an Order of Release from Lawful Detention for Purposes of Inpatient Treatment stating that J.M. shall travel to Meridian Services on September 17, 2018, and remain at the facility until released. A letter dated March 4, 2019, from Meridian Health Services states J.M. successfully completed an Addictions and Recovery Residential Treatment Program, was admitted on September 17, 2018, and was successfully discharged on October 15, 2018. An order on December 13, 2018, states J.M. admitted to violating the terms of his home detention and the court revoked 560 days to be served at the Henry County Jail. The admitted voicemail log shows J.M. left a voicemail of fourteen seconds on January 12, 2018. The admitted text messages show messages sent by J.M. to Mother on June 4, 2017, October 30, 2018, and March 18, 21, and 28, 2019.

[6] Mother testified that she lived with D.H., B.D.H., and her step-children and that, throughout B.D.H.’s life, she had been her physical custodian. She testified J.M. lived with his parents, he used to exercise visitation every other weekend, and he was arrested in 2016 for methamphetamine. She testified that J.M. told her in April 2017 that he would leave after B.D.H. went to sleep. She identified her phone number and J.M.’s phone number and indicated that to her knowledge the numbers were still the same. She indicated that she received a text message from J.M. on June 4, 2017, she sent him a text message on June 8, 2017, regarding whether he went to his revocation hearing, she did not receive a response, and she did not receive another text message from him until October 30, 2018.

[7] Mother further testified that she received one voicemail on her phone from J.M. on January 12, 2018, which stated "[m]y attorney instructed me to call you about my visitation with [B.D.H.]" and then the message ended. Transcript Volume II at 27. She indicated that J.M. did not call her before June 4, 2017. She indicated J.M. had been served with the petition for adoption before he sent his October 30, 2018 text message and she received three text messages since October 30, 2018. She indicated the court issued an order following a hearing on visitation and she never received any verification that J.M. had enrolled in and completed substance abuse treatment or that he successfully completed the terms of his probation. Mother also testified that she is a registered nurse, that D.H. had been in B.D.H.’s life for six years, and when asked about their activities, she testified that they make videos, make up funny songs, have inside jokes, and constantly want to be together. Mother further testified that D.H. takes B.D.H. to gymnastics, that they are very bonded, and that the court's order did not prohibit J.M. from sending gifts, attending gymnastics or school events, or calling.

[8] J.M. testified he was arrested for possession of methamphetamine in March 2016 and the State filed a petition to revoke in March 2017 because he failed a couple of drug screens. He indicated he was having his daughter over for the weekend while he was testing positive for methamphetamine on probation. He indicated the last text message he sent was on June 4, 2017, and he was in jail from June 8 through August 24, 2017, when he was released to probation. When asked "[w]e got jail logs of other phone calls you were capable of making," he said "[o]kay," and when asked "[y]ou made other phone calls from the jail, correct," he replied "I did yes," and he indicated he had money put on his commissary. Id. at 45. When asked if he had contacted Mother from jail, he testified "I think I did try to call once. She told me she wouldn't accept calls from the jail," and that he did not have evidence of the call. Id. at 46. When asked "[y]ou did not say thank god I am out because I haven't seen my daughter for three (3) months," he said "[i]f I recall I think I did try to get a hold of her. It doesn't show it in this record right here no, but I am pretty sure that I did try to get a hold of her." Id. When asked "[d]id you at any point of that time text or call mom according to those records," he answered "[n]ot according to these records no." Id. at 48.

[9] J.M. acknowledged that he left a voicemail for Mother on January 12, 2018, and said "I don't have any records of when I called, but I called multiple times. I don't have the exact dates. She has never once answered or called or text back or anything." Id. at 50. He agreed the record shows he did not text her until October 30, 2018. He testified that he "tested diluted" on January 11, 2018, that he called to ask for a visit on the 12th, and he was still using methamphetamine at that point. Id. at 51. He testified he did not successfully complete the terms and conditions of his supervised probation. He indicated he lived with his parents, and that the last time he was in jail was from December 4, 2018 through February 13, 2019. He indicated he was at the treatment center for twenty-eight days and he went back to jail after that in December 2018. He also testified he had been employed for "a year in June" and "I am not currently using drugs. I am working everyday full time. I am always trying to better myself." Id. at 65, 67.

[10] D.H. testified that he was employed full time as a Sheriff's Deputy and a K-9 officer, he had been filling the role of a father figure for B.D.H. for two and one-half to three years, he and B.D.H. are inseparable, he had never missed a gymnastics event, he takes her to private lessons, he had become her D.A.R.E. officer, and they have ice cream and rides bikes. He testified he was financially capable of raising B.D.H.

[11] On March 2, 2020, the trial court entered an order, which contained 133 numbered findings and conclusions, finding that J.M.’s consent to the adoption was not required due to his failure to communicate significantly with the child when able to do so for at least one year and because he is unfit to be a parent. The court found and granted the petition for adoption:

67. The Court waived the agency report (commonly referred to as the adoption home study) required by Ind. Code § 31-19-8-5(a).

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76. In this case, [Adoptive Parents] proved by clear and convincing evidence that there was an absence of significant communication between [J.M.] and [B.D.H.] for a period of at least a year.

77. [J.M.] last saw or communicated with [B.D.H.] on June 4th, 2017.

78. From June 5, 2017, until [Adoptive Parents] filed their adoption on October 12, 2018, [J.M.] attempted one (1) communication with [Mother] regarding [B.D.H.].

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88. [J.M.’s] sole communication for more than (16) months was a voicemail message about visiting with [B.D.H.] because his lawyer instructed him to do so.

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91. [J.M.] also cannot assert that his lack of communication was the fault of the order suspending his parenting time, being incarcerated, or mother's failure to initiate communication or return his single telephone call.

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98. The

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