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Trial court ‘clearly erred’ in granting adoption petition

May 25, 2018

A Hamilton County judge’s ruling that a father’s consent was not required for a stepfather to adopt his child was clearly erroneous, the Indiana Court of Appeals ruled Friday, reversing the adoption.

In Re: The Matter of the Adoption of: E.M.L., (Minor) S.L. v. K.G., 29A05-1710-AD-2250, involved an adoption to which father S.L. objected. He is the father of E.M.L, who was born in 2009. The family lived together for a year before mother and child moved out, according to the record.

Father subsequently ran into trouble with the law. He was convicted of dealing methamphetamine in 2013 and incarcerated for more than a year. He pleaded guilty to a domestic battery charge in 2016 after slapping a girlfriend in front of children.

Meanwhile, mother T.G. and the child’s paternal grandparents, who lived in Brown County, kept in touch, and the child often spent weekends with them. Father often would talk to his child by phone and visit when the child stayed with grandparents.

After his domestic violence incident, though, mother sought to curtail E.M.L.’s contact with S.L., and eventually, the child’s grandparents. At the same time, father had been working steadily and significantly catching up on his child support obligations.

After stepfather K.G. moved to adopt the child, father objected. At a hearing, Hamilton Superior Judge Steve Nation granted mother and stepfather’s motion to exclude father from the proceedings over father’s objection. The trial court granted the adoption petition with findings that father’s consent was not required, that father had failed to pay child support including during periods of incarceration, and that father failed to significantly communicate with his child in the year before the adoption petition was filed.

Those rulings were clearly erroneous, Judge Michael Barnes wrote for the panel.

“(T)he trial court’s decision to effectively impose a retroactive child support obligation upon Father while incarcerated put the ultimate strain upon a family relationship, as it was used as partial justification to terminate his parental rights,” Barnes wrote. “Its finding that Father’s nonpayment of support while incarcerated obviated the need for his consent to Child’s adoption is clearly erroneous, as there is insufficient evidence he had the ability to pay during that time.”

Father also should not have been penalized for child support paid through tax intercepts rather than voluntarily when he returned to work, the court ruled. “The trial court’s finding that Father knowingly failed to provide for Child’s support during this time period is clearly erroneous,” the panel held.

Regarding lack of communication, the panel noted it was mother who sought to limit communication between her child and the child’s father, so the trial court’s ruling in this instance also was clearly erroneous.

“After Father’s release from incarceration, Mother terminated the previous arrangement — in place since Child’s infancy — whereby Child frequently spent weekends with Grandmother, which facilitated visitation between Father and Child even when Mother refused to allow Child to spend time alone with Father at his own residence,” Barnes wrote. “On occasion, Father did phone Mother to attempt to arrange some communication or visitation with Child. Unfortunately, these phone calls would disintegrate into arguments when Mother insisted that Father had to, for example, undergo counseling before he could see or talk to Child.

“Mother and the trial court discounted her clear efforts to hamper communication between Child and Father by essentially claiming that he should have expended more effort to force such communication, through legal channels or by simply, for example, showing up at Child’s sporting events in Noblesville unannounced and without Mother’s invitation and in contravention of Mother’s clearly-expressed desire that Father have no contact with Child. We conclude, however, that Father’s failure to fight Mother more aggressively with respect to communicating with Child does not mean he lacked justifiable cause for failing to communicate or that he was practically able to communicate.

“Father’s parenting time rights were never curtailed by any court order. We do not wish to be overly critical of Mother’s natural desire to protect Child, and there is no question that Father has been far from an ideal parent. However, there are established legal procedures to follow if a custodial parent believes restriction or complete cessation of a noncustodial parent’s parenting time is warranted. ... Those procedures were not followed here. A custodial parent should not be able to unilaterally limit, place conditions on, or completely terminate a noncustodial parent’s parenting time, and then successfully assert in an adoption proceeding that the noncustodial parent was able to communicate with the child but failed to do so without justifiable cause.”

The adoption petition was therefore reversed.

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