Foster Parents Fail to Meet Burden that Father Failed to Communicate with the Children “when able to do so.”

Family Law Case Review

In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In adoption proceedings, one basis for dispensing with the consent of a natural parent is that the parent failed to communicate significantly with the children for a period of one year “when able to do so.” However, the Court of Appeals held this provision is not triggered when the parent is unaware of the children’s whereabouts, or prohibited by Court order from communicating with the children, as those are not circumstances where the parent is “able” to communicate with the children.

HELD: Even if the parent could have communicated with the children through the exercise of greater diligence that does not alter the analysis for purposes of determining whether consent to adoption is required.

Children were born to Mother and Father in 2006 and 2008, respectively. When Mother and Father divorced, Mother moved away with the children without advising Father of their whereabouts. Mother apparently led the children to believe that her boyfriend was their biological father. At some point in 2010, Father learned that Mother and Children were living in Fort Wayne, but he had no specifics or address.

In 2012, CHINS proceedings were initiated for Children. The CHINS court learned Father had been paying support but had not seen the children since 2009. The court further precluded any parenting time for Father, for the indefinite future, determining it would be contrary to Children’s best interests pending a reunification plan.

Father continued to have no contact with Children. In 2014, Foster Parents filed a petition to adopt Children. Mother consented. Father filed his objection. After a hearing, the trial court concluded that Foster Parents failed to prove by clear and convincing evidence that Father’s consent was unnecessary, and dismissed the adoption. Foster Parents appealed.

Under Indiana law, the adoption of a child generally requires the consent of the child’s parents. However, by statute, consent is not required if it is shown either that, for a period of one year or more: (a) the parent fails without justifiable cause to communicate significantly with the child when able to do so; or (b) knowingly fails to provide for the care and support of the child when able to do so as required by law or a judicial decree.

Here, it was uncontroverted, between not knowing the Children’s location, followed by the Court no-visitation order that Father went over a year without significantly communicating with Children. The issue, then, was whether Father did not communicate with Children for this period of time “when able to do so.”

Foster Parents argued that, with an exercise of minimal diligence, Father could have either located the children’s whereabouts or, later, pursuant a reunification plan through the CHINS court. However, the Court of Appeals declined to impose upon a parent an expectation of any particular diligence. Here, at one point, Father did not know the whereabouts of the Children and, later, the Court ordered him not to visit with them. As a result, the Foster Parents failed to meet there burden that Father failed to communicate with the children “when able to do so.”

The trial court’s dismissal of the Foster Parents’ adoption was affirmed.

To view the text of this opinion in its entirety, click here: In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.



James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

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