Father must consent to stepfather’s adoption of children, appellate court rules

The adoption of two children by their stepfather after their mother died cannot proceed without their father’s consent, the Indiana Court of Appeals ruled Thursday, reversing a trial court order.

Mother C.M. and Father W.K. III were married while both were on active duty in the military, and the couple had two children. Father left the military in 2011 and moved from Japan to Texas, while mother left the military in 2013 and moved from Japan to California with the kids.

After their divorce in March 2014, mother and father shared legal custody of their children, with father getting parenting time and mother having physical custody. The mother and children eventually settled in Indiana and the kids began spending their summers with their father in Texas.

Father had been informally paying child support since 2014, but in 2016 he was officially ordered to make regular support payments. Also in 2016, mother married T.M. However, C.M. died in March 2019.

After C.M.’s death, T.M. moved to adopt the children. Meanwhile, the children moved to Texas with their father, but T.M. petitioned the Hamilton Superior Court to order the children’s return. The court agreed but the father refused to comply, leading to his arrest on felony charges of interference with custody.

The case proceeded to a hearing on whether the father’s consent to adoption was necessary. During the hearing, a guardian ad litem testified about father drinking, smoking, using corporal punishment and committing acts of domestic violence against C.M. while she was alive.

The trial court ultimately determined the father’s consent to the adoption was not necessary, finding that he had failed to communicate or support the children in 2013 and 2014 and that he was unfit.

Father appealed, and the Indiana Court of Appeals reversed in In re: The Adoption of W.K. IV and I.K., W.K. III v. T.M., 20A-AD-1455.

Citing to E.W. v. J.W., 20 N.E.3d 889 (Ind. Ct. App. 2014), trans. denied, Judge Nancy Vaidik wrote, “It would defy logic to allow Father’s alleged one-year period of no communication in 2013 to overcome his more recent regular exercise of parenting time with the children, including from 2014 to 2019.” The appellate court reached the same holding on the issue of father’s alleged failure to support and care for the children in 2013 and 2014.

“… Father started exercising summer parenting time with the children in 2014, and he supported the children while they were with him,” Vaidik wrote. “In addition, Father started informally paying child support in 2014 and was ordered to pay child support in late 2016. Similar to above, it would defy logic to allow Father’s alleged one-year period of not supporting the children in 2013 and 2014 to overcome his more recent support of the children, including from 2014 to 2019.”

As for the finding that the father was unfit under Indiana Code § 31-19-9-8(a)(11), the COA noted the felony charges against him “are wrapped up with the merits of this case.”

Specifically, Vaidik said T.M.’s motion to return the children to Indiana was based on the premise that the children were only supposed to spend the summer in Texas, but “the court’s April 2019 order says nothing of the sort.”

“Although keeping the children in Texas despite the court’s order was a stupid thing for Father to do,” she wrote, “under these circumstances it does not make him unfit.”

What’s more, Vaidik continued, the guardian ad litem never relayed the concerns she shared in court to authorities in Texas or Indiana.

“While Father is not perfect, none of the concerns relayed by the GAL rise to the level of unfitness required to essentially terminate Father’s parental rights to the children. And tellingly, the only cases Stepfather cites to support the finding that Father is unfit under Section 31-19-9-8(a)(11) are cases where the parents had a significant criminal history and were serving lengthy sentences,” Vaidik concluded.

“… The trial court erred in finding Father is unfit. We therefore reverse the court’s determination Father’s consent is not required for Stepfather’s adoption of the children.”