Adoption decree reversed over finding that mom’s consent not required

The Indiana Court of Appeals on Thursday reversed and vacated an adoption petition for a 4-year-old Greene County child, finding the trial court erred in determiningthe mother’s consent to the adoption by the child’s stepmother was not required.

The case, In Re: The Adoption of D. H., K.W. v. B.H., 19A-AD-707, involves mother K.W. and father J.H., who were never married but lived together briefly and are the biological parents of child D.H. The child tested positive for opiates after birth in April 2015, and mother tested positive for substances including opiates and THC, ultimately prompting the Department of Child Services to file a child in need of services petition.

The parents separated after a domestic violence incident, and mother left the baby in the care of father in September 2015. But shortly thereafter, mother was granted supervised visitation.

Mother continued to have regular contact with the child until moving 90 miles away to Johnson County in December 2015, according to the record, after which Judge Elizabeth Tavitas wrote that her contacts were “sporadic and inconsistent.”

From September 2016 until February 2018, there were no visits between mother and child. “During this period, K.W. appears to have worked to achieve sobriety,” Tavitas wrote. “The record reveals that K.W. passed drug screens to secure employment; maintained gainful employment; secured stable housing; and obtained means of transportation. Thereafter, K.W. resumed her requests to schedule supervised visits with the Child.”

Stepmother B.H. filed an adoption petition in April 2018 and alleged that under Indiana Code § 31-19-9-8, mother’s consent to the adoption was not required because she had provided no child support, had abandoned the child for at least six months immediately before the petition was filed, and was unfit. She also argued adoption without mother’s consent was in the child’s best interest.

Mother objected, but after a hearing, the court ruled mother’s consent was not required and granted the adoption decree in March 2019, prompting mother’s appeal.

In reversing the adoption decree, the COA relied on In re Adoption of E.B.F. v. D.F., 93 N.E.3d 759, 767 (Ind. 2018), another case involving addiction, domestic violence and recovery in which an adoption decree was overturned on appeal.

There, Tavitas wrote, “Our Supreme Court acknowledged that the mother’s contact with the child was ‘not significant’ after Christmas 2013 and the stepmother’s August 2015 filing of her adoption petition, but found that ‘a single significant communication within one year is sufficient to preserve a non-custodial parent’s right to consent to the adoption.’ … We find that such is the case here.”

The COA proceeded to find that the trial court’s findings that K.W. abandoned or deserted her child, failed to communicate and failed to support her child were clearly erroneous. “Guided by E.B.F., we find, under the totality of the circumstances that K.W.’s: (1) progress toward achieving sobriety after seven years of acute drug dependency; (2) employment record; (3) stable home environment; (4) lack of contacts with law enforcement; (5) favorable assessment from DCS regarding her youngest child; and (6) record of consistently visiting and paying child support for her other three children, provide justifiable cause for her failure to communicate with the Child for a time exceeding one year, such that it was clear error to dispense with her consent for purposes of Stepmother’s adoption petition.

“…Further, we note that we would be hard-pressed, in the context of a proceeding for termination of parental rights, to proceed to termination of K.W.’s parental rights here, given the progress she displayed regarding the conditions that led to the Child’s removal from her care. … To be clear, this opinion does not foreclose the possibility of Stepmother’s adoption of the Child in the future, but the statutes dispensing with K.W.’s consent do not apply at this time.”

Because the panel found the trial court clearly erred in determining mother’s consent was not required, the appellate could did not reach the merits of mother’s claims that she was denied due process or that the adoption is not in the child’s best interests.

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