MEMORANDUM DECISION
Weissmann, Judge.
[1] B.S. (Father) challenges the adoption of his 5-year-old daughter (Child) by her guardian and maternal grandmother, N.G. (Grandmother). The adoption court found that Fathers consent to the adoption was unnecessary because Father had not had contact with Child for more than a year. Rejecting Fathers claim that his lack of contact with Child was not his fault, we affirm.
Facts
[2] Father and M.G. (Mother) were the parents of Child, who was born in April 2018 when Father was serving a criminal sentence in a work release facility. When Father was released about two months later, he began living with Mother, Child, and Grandmother in Grandmothers home. After asking Father to leave because he was using drugs in the home, Grandmother called police to assist in his removal. Grandmother briefly allowed Father to return later, but she kicked him out of her home for good in late December 2018.
[3] Mother and Child lived with Father during part of 2019, but Grandmother continued to routinely care for Child. In March 2020, Mother asked Grandmother to take care of Child while Mother tried to improve her circumstances. Mother never took custody of Child again, and Father was not active in Childs life. Since March 2020, Grandmother has been Childs primary caregiver. By Fathers own admission, his financial support for Child ended in June 2020.
[4] In August 2020, when Child was two years old, Grandmother successfully petitioned to be Childs guardian. Around that same time, Father exchanged gunfire with another man, who was killed in the incident. While recuperating from his own injuries, Father stopped by Grandmothers house to visit with Child. Grandmother, who previously had described Father as unworthy of visitation with Child, refused the visit on the advice of her counsel. Father never again contacted Grandmother about Child.
[5] On September 24, 2020, Father and Mother both participated in the first guardianship hearing, at which the court granted temporary guardianship to Grandmother and awarded Father supervised parenting time. In late October 2020, Father was charged in St. Joseph County with murder in connection with the earlier shooting in which he had been injured. Father was immediately arrested and has been incarcerated continuously since then.
[6] In December 2020, after a hearing on the permanent guardianship in which Father did not participate, the court granted Grandmother permanent guardianship. The guardianship court declined to grant parenting time to Father due to his drug use. Instead, the court ordered that Father could file a written request for parenting time if he provided a hair follicle test that was negative for drugs and proof that he was engaged in a substance abuse treatment program. Father never did so. Though ultimately acquitted of murder after a jury trial in 2022, Father remained in jail as a result of pending criminal charges in both Indiana and Michigan.
[7] In May 2023, Grandmother petitioned to adopt Child, then five years old. The adoption petition alleged that Mother and Fathers consent to the adoption was unnecessary because both parents had “knowingly failed without justifiable cause to provide for the care and support of [Child] when able to do so as required by law or judicial decree.” App. Vol. II, p. 11. Mother ultimately consented to the adoption.
[8] Father wrote to the adoption court to request a hearing and appointment of counsel to represent him in contesting the adoption. The trial court appointed both counsel for Father and a guardian ad litem for Child.
[9] Shortly after the filing of the adoption petition, Father pleaded guilty in the Marshall County prosecution to burglary and five counts of theft of a firearm in exchange for the dismissal of 13 other criminal counts. He was sentenced to eight years imprisonment, with two years suspended to probation. Father had an outstanding warrant from Michigan that remained active at the time of the adoption.
[10] Early in the adoption proceedings, the guardian ad litem wrote to Father in jail. Father did not respond and eventually reported that he had not received the letter. Before learning this, the guardian ad litem issued her report to the adoption court. In the guardian ad litems view, it was in Childs best interests “to remain in the care of her grandmother who has provided [Child] with a loving, safe and stable home when her parents were unable to.” Id. at 23.
[11] Due to his incarceration, Father appeared by video at the adoption hearing. He claimed he was not able to contact or visit Child for the previous three years because Grandmother would not allow it. Father did not petition any court for assistance in obtaining parenting time or other contact with Child, although Father had exercised video visits with his older daughter from another relationship while he was incarcerated.
[12] The trial court declined to find that Father had willingly failed to support Child. But the court concluded that Fathers consent to the adoption was unnecessary because Father had knowingly failed to contact Child for more than a year when he had the ability to do so. The court granted Grandmothers petition to adopt Child—a judgment from which Father appeals.
Discussion and Decision
[13] Father challenges the trial courts finding that his consent to Childs adoption was unnecessary. When reviewing an adoption ruling, we presume the trial courts decision is correct. In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). The party challenging a trial courts adoption ruling bears the burden of overcoming this presumption. In re Adoption of S.W., 979 N.E.2d 633, 639 (Ind. Ct. App. 2012). Without reweighing the evidence or assessing the credibility of witnesses, we will consider the evidence and all reasonable inferences in the light most favorable to the trial courts decision. O.R., 16 N.E.3d at 973. “We will not disturb the trial courts ruling unless the evidence leads to but one conclusion and the trial judge reaches an opposite conclusion.” Id.
[14] Given the fundamental importance of the parent-child relationship, the written consent of biological parents to an adoption of their child generally is required. Ind. Code § 31-19-9-1. Parental consent is not required, however, under certain circumstances when the child has been in the custody of another person for at least a year. Ind. Code § 31-19-9-8(a). For instance, a parents consent is unnecessary when clear and convincing evidence establishes that the parent for at least one year “fails without justifiable cause to communicate significantly with the child when able to do so.” Ind. Code § 31-19-9-8(a)(2)(A).
[15] Father does not dispute that he had no contact with Child from September 2020 through the date of the adoption hearing on January 12, 2024. Instead, Father contends that his lack of contact was justified because it was caused by his incarceration, his related poverty, and Grandmothers opposition to his presence in Childs life. See generally E.B.F. v. D.F., 93 N.E.3d 759, 766-67 (Ind. 2018) (recognizing that the non-custodial parents consent to adoption may still be required where the lack of contact is caused by the custodial parents thwarting of visitation and communications).
[16] The trial court did not err in rejecting these claims. It noted that Father, prior to his incarceration, could have exercised supervised visitation with Child if he had simply filed a written petition and showed that he was drug free and receiving substance abuse treatment. Father did not pursue that option. Nor did he ever enlist help from any court to ensure he could at least communicate with Child.
[17] Grandmother testified that Father only requested contact with Child once and that was during the guardianship proceedings when the supervised visitation ordered by the trial court had not yet been established. She denied the visit because her counsel advised her to do so. Yet Father never reached out to her or to the court to allow him to write to, phone, or video chat with Child. The record does not support Fathers claim that he would have visited with Child but for Grandmother thwarting those efforts.
[18] The evidence also shows that Fathers incarceration and resulting poverty also did not render Father unable to contact Child. To begin with, a parents incarceration alone is not justifiable reason for lack of significant communications with his child. K.H. v. M.M., 151 N.E.3d 1259, 1267 (Ind. Ct. App. 2020). Father knew that video visits with children were possible from prison because he already was exercising them with his older child. By his own admission, Father was entitled to 60 minutes of free video visits while incarcerated, although the record is unclear whether that amount was per week or within some other period.
[19] Even if his financial circumstances prevented him from using various forms of communication from prison, Father could have sought the courts intervention. He knew how to petition a court for assistance because he had done so previously in the guardianship and adoption proceedings. Father had the means to maintain contact with Child, despite any obstacles he faced, but simply failed to make the effort.
[20] For that reason, the appellate decisions that Father relies on are unavailing to him. See, e.g., D.D. v. D.P., 8 N.E.3d 217, 221-22 (Ind. Ct. App. 2014) (ruling that in stepparent adoption, biological fathers lack of significant contact with his children for five years did not render his consent to their adoption unnecessary, given that the biological father lived far away, had financial difficulties, and had emailed the biological mother 60 times to arrange contact that she never allowed); Lewis v. Roberts, 495 N.E.2d 810, 812-13 (Ind. Ct. App. 1986) (finding that incarcerated fathers “persistence” in writing to, sending gifts, and seeking visitation with his child meant that his consent to the childs adoption was necessary); In re Adoption of Anonymous, 302 N.E.2d 507, 508 (Ind. Ct. App. 1973) (affirming denial of adoption when mother had not had contact with children in four years but evidence reasonably showed that any efforts that she could have made would not have succeeded in light of petitioners’ conduct).
[21] As the trial court found, clear and convincing evidence establishes that Father for more than one year “fail[ed] without justifiable cause to communicate significantly with the child when able to do so.” Ind. Code § 31-19-9-8(a)(2)(A). We therefore affirm the trial courts judgment finding Fathers consent unnecessary and granting Grandmothers adoption petition.
Memorandum Decision by Judge Weissmann
Judges Vaidik and Foley concur.
Vaidik, J., and Foley, J., concur.