COA affirms denial of foster parents’ petition for adoption

September 23, 2016

A set of foster parents do not have the right to adopt two children without their father’s consent despite the fact that the father does not have visitation with the children, the Indiana Court of Appeals found Friday.

In the case of In Re: The Adoption of J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S., 02A04-1603-AD-545, two children, J.S.S. and K.N.S., were considered children in need of services and were in the custody of the Department of Child Services. Their mother was incarcerated, and their father, M.S., was unaware of their location until an Allen County Department of Child Services caseworker informed him of their location in November 2012.

That month, the CHINS court found that M.S., who regularly paid child support, could have visitation with the children if their therapist thought visitation would be in their best interest. However, M.S. did not contact the therapist until April 2014. After that contact, the therapist recommended that visitation not be allowed, so the CHINS court ordered in June 2014 that DCS could petition for M.S.’ parental rights to be terminated.

Foster parents B.R. and R.R. subsequently filed a petition to adopt the children; their mother consented, but M.S. filed an objection. The Allen Superior Court found that the foster parents had failed to produce enough evidence to show that M.S.’ consent to the adoption was unnecessary and dismissed the adoption petition. The foster parents filed a motion to correct, which was denied.

B.R. and R.R. appealed, arguing that although M.S. was able to communicate with his children, he failed to do so. Although the CHINS court ultimately ordered that M.S. not be granted visitation with his children in 2014, proceedings before that time would have allowed visitation had the father contacted the children’s therapist in a timely manner, as he was instructed to do.

But in its affirmation of the denial of the adoption petition and the motion to correct error, the Indiana Court of Appeals wrote Friday that there was evidence that M.S. never gained the ability to contact the children. Even if he had contacted the children’s therapist promptly, the therapist was not required to authorize visitation, the court wrote. Even after M.S. contacted the therapist, visitation with the children was not recommended.

Further, the court pointed to the testimony of Dwila Lewis-Hess, a DCS caseworker who testified that a referral for M.S.’ visitation with his children was never made.

Based on that evidence, the Court of Appeals wrote that the foster parents failed to prove that M.S. did not contact his children when he had the ability to do so. Thus, the court wrote that the trial court was correct when it found that M.S.’ consent would be necessary to support the adoption petition.


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