Indiana Supreme Court determined Mother’s consent was not required in adoption.
JP v. VB (March 2, 2021)
HELD: In an adoption case, the Indiana Supreme Court affirmed the trial court’s determination that the biological Mother’s consent was not required for the adoption because, for a period of one year, Mother failed to communicate significantly with her child and failed to support her child when able and required to do so.
FACTS AND PROCEDURAL HISTORY:
Please see the detailed factual digest, below, from the 2020 Court of Appeals case.
In its review, the Indiana Supreme Court recited that the petitioner seeking an adoption carries the burden of proving the natural parent’s consent is unnecessary, and must do so by clear and convincing evidence. Various circumstances can dispense with the need for a natural parent’s consent, three of which were at issue in this case:
- The child is adjudged to have been abandoned or deserted for six months or more immediately preceding the date of the filing of the petition for adoption;
- For at least one year, the natural parent fails without justifiable cause to communicate significantly with the child when able to do so; or
- The natural parent knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
The Supreme Court reviewed three recent cases that addressed determinations of these conditions, which the Court summarized as follows:
“A parent who meets society’s expectations by maintaining a connection with her child and by financially supporting her child cannot have her legal relationship with the child severed without her consent. Conversely, when a parent fails to maintain a meaningful relationship with, or fails to financially support, that child, she loses her right as a natural parent to withhold consent to adoption.”
Applying these standards to the facts of the instant case, the Supreme Court found sufficient evidence that Mother failed to communicate significantly with Child without justifiable cause for at least one year, and that Mother failed to support Child when able and required to do so. The Court did not address the issue of abandonment, since the trial court’s order was properly based on these other grounds.
Clearly, the challenge of these cases is the highly fact-sensitive determination of what constitutes “significant” communication with the child, and/or whether a natural parent has the ability to support the child, but fails to do so.
The trial court’s order that Mother’s consent was not required for the adoption was affirmed.
Digest of the now-vacated Court of Appeals opinion in 2020:
J.P. v. V.B. (In re: I.B.), 2020 Ind. App. LEXIS 306 (Ind. Ct. App. July 20, 2020)
HELD: Trial court erred when it issued a stepparent adoption order without Mother’s consent. Stepmother failed to establish, by clear and convincing evidence, that Mother had either failed to communicate with Child significantly, or that Mother was able to pay support but did not, in the period prior to the filing of the adoption petition.
FACTS AND PROCEDURAL HISTORY:
Mother and Father were married and had Child together in 2010. They divorced in 2014, pursuant to which Mother was awarded legal and primary physical custody of Child. In 2017, Father petitioned to modify custody based upon Mother’s substance abuse and instability, as a result of which the trial court granted legal and physical custody to Father, subject to Mother’s supervised parenting time.
In 2019, Father’s new wife (“Stepmother”) filed a petition for stepparent adoption. It was alleged that Mother’s consent was not needed because, per statute, Mother had abandoned Child, and failed to communicate with Child or pay support for at least one year. Mother filed a letter with the trial court contesting the adoption.
Following a hearing, the trial court concluded that Mother’s consent was not required, and issued its adoption order in favor of Stepmother. Mother appealed.
On appeal, it was uncontroverted that there had been some measure of communication between Mother and Child in the period prior to the petition being filed. At issue was whether the level of communication was token or significant. The Court of Appeals underscored that the burden was on Stepmother to prove the facts that would dispense with the need for Mother’s consent by clear and convincing evidence.
The trial court’s order relied largely upon a review of phone records between Mother and Child. In the 6 months prior to the petition, the records showed 11 calls totaling 83 minutes. The Court of Appeals referenced Indiana Supreme Court precedent that a single significant communication within one year is sufficient to preserve the parent’s right to consent. Stepmother failed to present evidence that none of the subject phone calls were significant. (The Court also noted that the phone records were offered into evidence, but never formally admitted.) Thus, Stepmother failed to carry her burden.
As to child support, it was also uncontroverted that Mother had not paid child support, despite being ordered to do so, for more than one year prior to the filing of the petition. Critically, the burden was on Stepmother to further prove that Mother had the ability to pay child support during this period. Uncovering no evidence in the record to support a finding that Mother had the ability to pay support during the relevant period, the trial court’s related finding was unsupported and erroneous.
The trial court erred when it concluded that Mother’s consent was not required for the adoption, and the resulting adoption order was reversed.
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