Tag Archive | "adoption"

“Unfit” Father’s Consent Not Required in Adoption Proceeding

Family Law Case Review

Case: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In an adoption proceeding, the trial court’s determination that Father’s consent to the adoption was not required was affirmed based upon a finding that Father was an “unfit” parent. Father was previously convicted of molesting Child’s half-sister and served several years in prison prior to the initiation of the adoption proceedings.

FACTS AND PROCEDURAL HISTORY:  Child was born to Father and Mother in 2010. Mother’s daughter from a previous relationship also lived part-time with them. In 2012, Father was arrested for molesting Child’s half-sister. He later pled guilty to a class C felony and was sentenced to sixteen years with eight suspended. Mother divorced Father concurrent with the criminal proceedings.

Mother began dating Step-Father in 2013, and they married in 2016. Step-Father filed a petition for adoption, and Father filed an objection. After a hearing, the trial court determined that this matter involved one of the exceptions for the requirement that a parent consent to adoption. Specifically, consent is not needed where it is proven by clear and convincing evidence that the natural parent is “unfit to be a parent” and the best interests of the child would be served by dispensing with the parent’s consent.

On appeal, much of the discussion focused on the meaning of “unfit.” A primary argument of Father was that he was convicted of a class C felony, and that another subpart of the consent statute states that only class A or class B convictions trigger a potentially automatic dispensing of the need for consent. The Court of Appeals found this argument unpersuasive, in that rendering a class A or a class B conviction a potentially automatic waiver of consent, it does not follow that the circumstances underlying a class C conviction cannot lead a determination of unfitness.

Determining that the evidence most favorable to the trial court’s decision did not contradict its conclusion, the trial court’s decree of adoption was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver

 

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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 www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Court Concludes Mother’s Consent Unneeded in Adoption Proceeding

Family Law Case Review

Case: In re Adoption of E.B.F., J.W. v. D.F.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In an adoption case, the trial court properly concluded that Child’s genetic mother failed without justifiable cause to communicate significantly with Child for one year when she was able to do so – thus dispensing with the need for her consent as part of adoption proceedings.

FACTS AND PROCEDURAL HISTORY:  A genetic parent’s consent is generally required before an adoption petition may be granted. An exception to that rule is: “if for the period of at least one  . . . year the parent . . . fails without justifiable cause to communicate significantly with the children when able to do so[.]”

Here, Mother and Father had Child in 2003 and never married. Mother was Child’s primary custodian for Child’s first 10 years of life.

In 2013, Father initiated a paternity action. As part of those proceedings, Father assumed primary physical custody of Child. Mother was given parenting time “at such times and upon such conditions as the parties are able to mutually agree.”  After seeing Child on Christmas Day of 2013, Mother withdrew from Child, apparently due to Mother’s opioid dependency and other personal problems. Just over a year later, Father’s wife of nine years initiated a step-parent adoption of Child. After a hearing, the trial court concluded that, based upon Mother’s absence for a year, Mother’s consent was not required to proceed with the adoption and, later, the trial court granted step mother’s adoption of Child. Mother appealed.

The Court of Appeals focused on the fact that, during a 13-month period, Mother was aware of ways to communicate with Child, she was not denied contact with Child by Father, yet Mother put forth minimal effort to maintain any communication with Child during this period. Mother did see Child occasionally, but mostly as a result of chance interactions at stores or other public places, not because Mother initiated an effort to see Child. The Court was unpersuaded by Mother’s argument that her ten years of custodial parenting of Child should have been factored into the trial court’s analysis; the statute focuses on the year leading up to the petition.

Mother offered an alternative argument that it was unfair that, because she took a year to “get back on her feet,” she is now being punished by losing Child. However, the Court stressed that the analysis is focused on the best interests of the child, not of the best interests of the parent.

The trial court’s adoption order was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of E.B.F., J.W. v. D.F.

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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 www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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The Court of Appeals Remands for a New Consent Hearing, Noting Trial Court Erred by Denying Mother’s Due Process Rights.

Family Law Case Review

Case: SR v. MJ
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred by denying Mother her due process rights when, at the beginning of a hearing to determine whether Mother’s consent was required for an adoption of her child, the trial court did not afford Mother with her right to counsel, or to ensure that Mother was knowingly and voluntarily waiving same.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child together in 2009. Paternity was established, and orders were issued for custody, parenting time, and child support. Father was awarded custody. Mother apparently had a problematic relationship with alcohol that resulted in legal and other problems. There was some dispute about the amount of contact Mother had with Child thereafter.

In 2013, Father remarried Stepmother, who became the primary caretaker of Child. Stepmother later filed a petition to adopt Child, reciting that Mother’s consent was unnecessary due to Mother’s abandonment and failure to support. When Mother received notice of the adoption proceeding, she filed a pro se objection.

In 2015, the adoption court held a consent hearing. At the outset, Mother requested counsel. After inquiring as to Mother’s financial condition, the adoption court determined that Mother, who made $10/hr at one job and $7.50/hr at another, had sufficient income to pay for an attorney and therefore Mother had made a “voluntary choice” to proceed without counsel. The hearing proceeded. Stepmother presented her case, including testimony from Stepmother and Father. Mother made no cross-examination.

At some point during Mother’s case-in-chief and testimony, Stepmother expressed an objection that the trial court, from Stepmother’s perspective, was asking questions and participating in the hearing as though advocating for Mother. As a result, the court continued the hearing and appointed counsel for Mother.

The adoption court began the next hearing, at which Mother appeared with appointed counsel, by announcing that this was not a “new hearing,” but would pick up where the earlier hearing left off. Mother offered more of her own testimony.

After the hearing, the adoption court concluded that Mother’s consent was not necessary for the adoption, citing Mother’s insufficient contact with Child. The court later granted Stepmother’s adoption as in the best interests of Child. Mother appealed.

The Court of Appeals noted that a parent whose parental rights are subject to termination in an adoption proceeding has three rights: (1) the right to be represented by counsel; (2) the right to have counsel provided if the parent cannot afford counsel; and (3) the right to be informed of the first two rights.

The Court of Appeals disagreed that Mother had voluntarily proceeded without counsel, as she requested counsel as soon as she learned that court-appointed counsel was a possibility. And, despite finding Mother was able to afford counsel, the trial court did not afford Mother an opportunity to acquire counsel or encourage her to do so. The adoption order was reversed and remanded for a new consent hearing, for which Mother should have counsel for its entirety, absent a knowing and voluntarily waiver by Mother of that right.

To view the text of this opinion in its entirety, click here: SR v. MJ

 

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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 www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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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.

FACTS AND PROCEDURAL HISTORY:
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.

 

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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 www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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