COA examines whole picture in finding for father in adoption fight

The Court of Appeals of Indiana found the “totality of the circumstances” required the denial of a petition to adopt even though the father had not paid child support in 13 months and state statute allows for adoption without parental consent when child support has not been paid for one year.

D.G., the stepfather, petitioned for adoption, telling the court the consent of the father, D.H., was not needed because the biological dad had not paid child support for more than a year. The father admitted to not paying support for 13 months, but he told the court he had been struggling with unemployment, mental health issues and homelessness.

About a month after the stepfather filed the adoption petition, the father borrowed money from family and made two payments of $1,000 each toward his child support arrearage. The father also told the court he regularly exercised his parenting time and he would buy things for the child when they were together in addition to buying the youngster birthday and Christmas gifts.

The Vanderburgh Superior Court denied the stepfather’s petition, concluding, “It may well be in the Child’s best interest to have Stepfather adopt, but that is not the standard under Indiana law.”

On appeal the stepfather argued the trial court’s order was not supported by sufficient evidence.

In a Friday opinion, the Court of Appeals affirmed in D.G. v. D.H., 21A-AD-1179.

Indiana Code § 31-19-9-8(2)(B) allows for adoption when the child support is one year in arrears. However, citing Matter of Adoption of E.M.L., 103 N.E. 3d 1110, 1116 (Ind. Ct. App. 2018), the appellate panel reiterated, “A determination regarding the ability to pay requires a consideration of the totality of the circumstances and not simply proof of income standing alone.”

The Court of Appeals declined to consider the stepfather’s assertions that the father took advantage of the situation and refused to stay current with his child support obligations. Instead, the appellate court found the trial court’s decision was supported by the evidence in the record and was not clearly erroneous.

“Stepfather’s argument requires us to reweigh the evidence and judge Father’s credibility, which we cannot do,” Judge Robert Altice wrote for the court. “The trial court clearly found Father’s testimony regarding his mental health and financial struggles credible and determined, based on the totality of the circumstances, that Stepfather had failed to prove by clear and convincing evidence that Father had the ability to pay support but failed without justifiable cause to do so for more than a year.”

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