Tuesday, April 5, 2011

An Important Note on Stepparent Adoption

A panel of the Indiana Court of Appeals issued a ruling today in J.M. v Adoption of O.M., a strangely captioned case, which upheld a trial court's finding that Father's consent to adoption was not necessary.

This case raises one often missed but important exception in the adoption rule. This is when the natural parent "fails without justifiable cause to communicate significantly with the child when able to do so" for at least one year.

Indiana Code section 31-19-9-8(a)(1)(2)(A) provides that consent to adoption is not required from the parent of a child in the custody of another person if, for a period of at least one year, the parent “fails without justifiable cause to communicate significantly with the child when able to do so[.]”

[A] party petitioning to adopt without parental consent has the burden of proving both a lack of communication for the statutory period and that the ability to communicate during that time period existed. Whether this burden has been met is necessarily dependent upon the facts and circumstances of each particular case, including, for example, the custodial parent‟s willingness to permit visitation as well as the natural parent‟s financial and physical means to accomplish his obligations. Efforts of a custodial parent to hamper or thwart communication between parent and child are relevant in determining the ability to communicate. However, in order to preserve the consent requirement for adoption, the level of communication with the child must be significant, and also must be more than “token efforts” on the part of the parent to communicate with the child. The reasonable intent of the statute is to encourage non-custodial parents to maintain communication with their children and to discourage non-custodial parents from visiting their children just often enough to thwart the adoptive parents‟ efforts to provide a settled environment for the children.
In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal citations omitted).

The standard of review in granting a petition for adoption without parental consent can be found in HNPG - When we review a probate court's ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial court reached an opposite conclusion. “We will not reweigh the evidence but instead will examine the evidence most favorable to the [probate] court‟s decision together with reasonable inferences drawn therefrom to determine whether sufficient evidence exists to sustain the decision.” The [probate] court's decision is presumed to be correct, and it is the appellant‟s burden to overcome that presumption.
In re Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008) (internal citations omitted), trans. denied.

The record shows that O.M. has been in Mother‟s care and custody since his birth on April 12, 2002. Father last visited O.M. in June of 2005 and last telephoned him in December of 2005, prior to his incarceration. Over the next four years, at least nineteen months of which he was not incarcerated, Father made no attempt to pay child support, write, telephone, or visit O.M.3 Father admittedly only “assum[ed]” that Mother would not accept letters or telephone calls from him during this time.

The often overlooked standard established by Indiana Code section 31-19-9-8(a)(1)(2)(A) is failure to communicate for any one year period. When a petition for adoption is filed by a step-parent in which it is alleged that the natural parent failed to communicate for a period of one year I sometimes hear 'but I have seen my child like at least five times in the past year."

In Adoption of J.P. the court stated that the one-year period need not immediately precede the filing of the petition. This is where some people fail to understand the law as written. There is no requirement that the failure to communicate for at least one year immediately precede the petition for adoption. As said in the immediate case "Father's attempt to contact Mother in 2009 does not vitiate the lack of significant communication." See In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999).

There is a legitimate and necessary reason for this. Permanence and stability in child custody arrangements are presumed to be in the child's best interest. Likewise, having continuing and regular contact with a non-custodial or absent parent is also considered to be in the child's best interest.

It is important for children to have this contact with their parents. If you have failed to communicate with your child for a period of at least one year when able to do so then you are doing a disservice to your child. Don't complain to me if someone else comes along and wants to step-in and provide that necessary contact and support.

If you need assistance in assuring that you can maintain contact with your child or a petition to adopt your child has been filed and you want to oppose it then please contact me.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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