COA reverses adoption petition after mother ‘thwarted’ father’s communication efforts

An Indiana woman’s efforts to keep her child’s biological father from communicating with their daughter for a year has resulted in a reversal by the Court of Appeals of Indiana on a petition to adopt.

I.B. was born in 2009 to father A.B. and mother S.B., who never married. The mother was awarded primary custody of the child while the father was granted parenting time and ordered to pay child support.

But in April 2017, the St. Joseph Probate Court entered, “[b]y agreement of the parties,” an order reducing the father’s parenting time to exclude overnights and requiring A.B. to “submit to an anger/psychological parenting time assessment and follow all recommendations.” Three months later, the trial court entered an order requiring A.B.’s parenting time to be supervised because he had not followed the previous order.

S.B. married B.B. in September 2017. The trial court suspended A.B.’s parenting time in 2018, noting pending criminal charges against him for possession of marijuana and “Father’s non-compliance regarding anger management and drug screens.” His parenting time has never been reinstated.

Stepfather B.B. petitioned to adopt I.B. in 2019, and S.B. filed her consent. But A.B. filed a motion to contest the adoption, and an evidentiary hearing was held on the issue in June 2020.

During that hearing, A.B. presented evidence that from July 2018 until approximately June 2019, he sent S.B. multiple text messages asking to speak to their child. The father also testified he attempted to call the child, but all his calls would go “straight to voicemail.”

S.B. did not respond to the text messages and testified that I.B. did not call her father because “[s]he would have refused the call. She does not want to talk to her father.” Additionally, when S.B. and B.B. relocated to a new residence with the child in July 2019, the mother did not file a notice of intent to relocate in the paternity action and did not tell A.B. her new address because “it’s too scary for him to know where I live.”

A.B. sent gifts for his daughter to her maternal grandmother’s address in 2019, but they were returned unopened. He also provided evidence that he paid $49,502.96 in child support payments from October 2009 to June 2020. A.B. maintained health insurance for I.B. during that time, as well.

In October 2020, the trial court issued its order finding A.B.’s consent to the child’s adoption by B.B. wasn’t required because A.B. hadn’t significantly communicated with his child for one year prior to the date B.B. had filed the adoption petition. After hearing evidence in May 2021, the trial court granted the petition.

But pointing to the Indiana Supreme Court decision in J.W. v. D.F., 93 N.E.3d 759 (Ind. 2018), which addressed a custodial parent’s efforts to thwart a noncustodial parent’s communication with a child when the child reportedly refused to speak to the noncustodial parent, the Court of Appeals reversed Wednesday, finding A.B.’s consent was required.

“Mother relocated without filing a request to relocate in the paternity action as required by Indiana Code section 31-17-2.2-1 and without informing Father of her and Child’s new home address. Father sent Mother multiple text messages asking to speak with Child, called Mother and was sent to her voicemail, and sent Child gifts that were returned unopened,” Judge Melissa May wrote. “It was Mother’s responsibility as Child’s custodial parent to take reasonable steps to encourage communication between Child and Father, regardless of her feelings about Father or Child’s alleged wishes.

“Therefore, we conclude the trial court erred when it determined Father had ‘fail[ed] without justifiable cause to communicate significantly’ with Child for at least one year prior to August 2019 when Stepfather’s adoption petition was filed,” May continued.

The case is In re the Matter of the Adoption of I.B., A.B. (Father) v. B.B. (Stepfather), 21A-AD-1792.

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