Monday, April 6, 2015

Trial Court denies adoption petition based upon thwarted communication - Court of Appeals reverses

As a general rule a petition to adopt a child will be granted only if written consent to the adoption has been executed by the child’s parents.[en1] However, consent to adoption is not required if a parent of a child in the custody of another person for a period of at least one year fails, without justifiable cause, to communicate significantly with the child when able to do so.[en2]

The purpose of the exemption is to facilitate establishing continuity and stability in the child’s life when a parent has abandoned his or her responsibilities for the child. In seeking an adoption without consent by the parents, the petitioner must meet the burden of proof by clear and convincing evidence.[en3]

The Indiana Court of Appeals [“Court”] has discussed the evidence that is required to satisfy the above statutory exception to the general consent rule:
”Initially, we note that 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.” [en4]

In the immediate case [en5] the Paternal Grandparents [“Grandparents”] filed a petition seeking to adopt the child that had been in their custody and under their care for approximately four years. Grandparents filed a petition to adopt Child one year and one day after Mother last exercised parenting time. The Honorable William C Fee of the Steuben Superior Court held a hearing to determine whether Mother’s consent was needed. Although Mother had not exercised parenting time she did attempt phone or text contact two or three times during the year but Grandparents did not respond or have the child contact Mother. Judge Fee found that Grandparents had thwarted Mother’s attempts to communicate with the child and that Mother’s consent was therefore necessary for the adoption to proceed. Consequently the adoption petition was dismissed.

The Court found that Judge Fee had erred as a matter of law and reversed the judgment. I agree with the Court’s conclusion;
“We find that the evidence in this case leads to but one conclusion—that, in the year prior to the filing of the adoption petition, Mother failed without justifiable cause to communicate with Child despite having the opportunity to do so. Consequently, her consent to the adoption was not required and it was erroneous to dismiss the adoption petition.”

The Supreme Court recently clarified the standard of review that the Court applies when examining the trial court’s decision;
“When reviewing the trial court’s ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial judge reached an opposite conclusion.”[en6]
Thus, the Court must find that Judge Fee’s ruling was the opposite of what the law requires.

In this instance the law required that Grandparents must demonstrate by clear and convincing evidence [en7] that Mother had failed to communicate with the child for a period of at least one year without justification. Judge Fee found that Grandparents had thwarted Mother’s attempts by not returning her two or three calls during the year. Simply stated, Mother’s two or three calls were nothing but token attempts. If Mother felt that her parenting time rights were being violated she had recourse available. The parties had entered into a mediated agreement which provided for resolution of disputes;
”All parties agree that the question of Mother’s reasonable fulfillment and completion of the above first step, or any subsequent steps outlined below, will be at Paternal Grandparents’ discretion, but contestable by Mother if she believes they are being unreasonable . . . , first through an appeal privately in mediation, but, if needed thereafter, to the Court.

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Finally, all parties agree that, should any future private efforts at conflict resolution not prove successful, they will return to mediation at the unilateral request of either Paternal Grandparents or Mother as their first step towards formal conflict resolution before filing any future petition with the court . . . .”

The first step was;
”Mother will have predictable and consistent visitation with [Child] on alternate weekends or at such times and places as she and Paternal Grandparents shall agree.”

Additionally, per the agreement, Mother was to maintain stability in housing and complete a parenting class. At some point Grandparents discovered that while Mother was living with her mother there were also two individuals living there facing charges relating to methamphetamine for which they were later convicted pursuant to a plea agreement. The charging information also alleged the presence of a handgun among other offenses. Grandparents decided that the child would not be allowed to have overnights with Mother at Maternal Grandmother’s home but did allow daytime visits based upon Grandmother’s assertion that the two individuals would no longer be there. At some point, however, Mother posted a picture on Facebook of one of the people convicted of drug offenses sleeping on a couch next to Child at Maternal Grandmother’s home.

After seeing that picture, Grandparents stated that parenting time would have to occur at a public location rather than in Maternal Grandmother’s home. Mother selected the location for those visits. At some point, Mother failed to show for one of the visits. On another occasion, Maternal Grandmother came with Mother to the visit and engaged Grandparents in a verbal altercation in front of Child when they refused her request to have Child spend Christmas at her home.

Grandparents sent Mother a letter stating that they planned to have her visits at an agency which is able to supervise parenting time. They provided Mother with the agency’s phone number and the name of the contact person to call to set up the visits. In the letter, Grandparents also stated that Mother could take Child to her family’s Christmas party on Christmas Eve.

Mother did not call the agency nor did she take Child to her family’s Christmas party because “somethin’ came up.” Additionally, Mother had failed to complete a parenting class despite having over three years to do so. She had failed to obtain stable housing, instead living in multiple states and cities with different boyfriends, at times actively concealing her location from Grandparents. Mother essentially gave up on seeing her son when minimal efforts were required of her to maintain a relationship. If she didn’t want to place a call to set up parenting time or exercise it anywhere but at her mother’s apparently unsafe home then she had due process options.

Not surprising though, Mother never sought mediation pursuant to the Mediation Agreement that established physical and legal custody in Grandparents, gave them discretion over facilitating parenting time, and required Mother to perform some simple tasks. In short, Mother failed to comply with portions of the Agreement that would have demonstrated an effort to be involved in parenting her child.

In conversations that I have had with Judge Fee it is clear that he embraces the parent-child relationship and is reticent to stand between a parent and child. In this matter though I feel that he let his reverence for the parent-child relationship subvert what would be best for this child. I would be cautious in granting favour to litigants who rushed to court on the first day possible to circumvent Mother’s consent. This strategy was likely done to avert contentious litigation and out of frustration from not having Mother be a stable force in Child’s life. I would rather have seen Grandparents file sooner and make the evidentiary presentation that Mother had abandoned her parenting obligations. If such had happened I am confident that Judge Fee would have clearly seen and then admonished Mother for her abandonment of her son, something that may induce her into accepting a greater role in her son’s life.

I recognize that it is necessary to protect the parent-child relationship as that is a precious right protected by our Federal and State constitutions.[en8] When that right has deteriorated to the point of only being exercised in a token manner, such as two or three phone calls or text messages in one year, then a statutory provision exists to create a new relationship in another parent figure without the parent’s consent. That should be done for the benefit of the child and the Court was correct in remanding for such to occur.


[1] Ind. Code § 31-19-9-1(a)
[2] Indiana Code section 31-19-9-8
[3] In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012)
[4] In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal citations omitted)
[5] In Re the Adoption of H.J.S., Indiana Court of Appeals, decided 31 March 2015
[6] In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) citing Rust v. Lawson, 714 N.E.2d 769, 771 (Ind. Ct. App. 1999)
[7] In seeking an adoption without consent from the parents, the petitioner must meet the burden of proof by clear and convincing evidence. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012)
[8] In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013)

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