Family Law Case Review 2/28/11

Case: In the Matter of the Adoption of M.B.; J.B. v. J.B.

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: The Court of Appeals affirmed the trial court’s denial of a petition to adopt child without parent’s consent because Stepfather did not show that Father had failed to provide support within the year that preceded the filing of the petition to adopt.  

FACTS AND PROCEDURAL HISTORY: Mother and Father became engaged approximately two months after the birth of Child (April of 2007), but never married.  During the first five months of Child’s life, Mother would leave Child at Father’s home when she went to work to avoid the cost of daycare.  After that initial period, Mother unilaterally decided to take the Child to daycare.  Mother then allowed Father to see Child one day per week.  Shortly thereafter, Mother began seeing Stepfather and they were married approximately one year later.

Since Child’s birth, Father was intermittently employed, generally in minimum wage or low-paying jobs.  He offered to arrange to pay child support, but Mother refused the offer.  Father exercised his informal visitation of one day per week until July of 2009, when Mother refused to allow Father to see Child from that point forward.  In September of 2009, Father filed a petition to establish paternity.  Stepfather filed a petition to adopt Child and a motion to proceed with the adoption without the consent of the Father in October of 2009.

The trial court conducted hearings on Stepfather’s petition in May and July of 2010.  The court found that Father provided substantial parenting time that avoided the need for daycare during the Child’s first 5 months, Mother refused Father’s offer of support, and that there was no court order for support in place.  Relying on Ind. Code 31-19-9-8, the court determined that Stepfather had not met his burden by “clear, cogent, and indubitable” evidence that he can proceed with the adoption without the consent of the Father.

The Court of Appeals examined the language of Ind. Code 31-19-9-8, which provides that Stepfather could proceed without the consent of Father if Father had “knowingly fail[ed] to provide for the care and support of [Child] when able to do so as required by law or judicial decree.”  Finding that even though Father had limited income and there was no formal support order, Father had a common law duty to provide support.  However, the trial court correctly determined that Father’s provision of childcare constituted support.

The trial court’s denial of Stepfather’s adoption petition was affirmed.

Though it had no bearing on the resolution of the case, the Court agreed with the reasoning of M.A.S. v. Murray that the correct burden of proof for an adoption without consent was the clear and convincing evidence standard, not the higher “indubitable” burden.

To view the text of this opinion in its entirety, click here: In the Matter of the Adoption of M.B.; J.B. v. J.B.

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