COA reverses for stepmother in denied adoption petition case 

A stepmother who was denied her petition to adopt her husband’s children will be given a second chance, after the Indiana Court of Appeals reversed and found the children’s biological mother’s failure to communicate with her children was not justifiable.

In Br.S. v. J.N.S., 20A-AD-01790, stepmother Br.S. filed a petition to adopt her two stepchildren, alleging that their biological mother’s consent wasn’t required because, for at least one year, she failed without justifiable cause to communicate significantly with the children when able to do so.

Biological mother J.N.S. struggled with a drug addiction and when one of her children was born addicted to heroin, both kids were the subject of a child in need of services investigation. The children’s father, after being released from incarceration, married Br.S. and was then granted custody of the children.

Although J.N.S. had supervised parenting time, she moved to Florida to “get clean” for a period of time. Upon her return to Indiana, there was no contact between her and the children. Nine months later, she filed a petition to modify custody, parenting time, and child support, while Br.S. filed a petition to adopt the children.

The petition alleged J.N.S.’s consent to the adoption wasn’t required because, for at least one year, she failed without justifiable cause to communicate significantly with the children, but the petition was ultimately denied. The trial court concluded that the biological mother had justifiable cause for not communicating with her children for more than two years because she was recovering from drug addiction.

But in reversing the trial court’s decision, the Indiana Court of Appeals noted that unlike the circumstances in (In re the Adoption of E.B.F. (J.W. v. D.F.), 93 N.E.3d 759 (Ind. 2018)) and (In re Adoption of D.H., 135 N.E.3d 914 (Ind. Ct. App. 2019)) where the record contained evidence about the rehabilitative steps taken by the mothers, similar evidence was not present in J.N.S’s case.

“The court found Mother had achieved stability, but as Stepmother points out, there is no evidence in the record about whether Mother has suitable housing or a job. Instead, the record reveals that, at the time of the August 2019 hearing, Mother had been arrested earlier that month, had outstanding arrest warrants in Ohio, and had pending driving-while-suspended cases,” Judge Nancy Vaidik wrote for the appellate court.

“Also, in both E.B.F. and D.H., the parents’ rehabilitative efforts were made concurrently with their absences from their children. In E.B.F., the mother spent the year she did not communicate with her child ‘focus[ing] on her recovery.’ Likewise, in D.H., the mother spent about eighteen months away from her child ‘working to achieve sobriety.’ But again, the same cannot be said here. As the trial court recognized, there are a lot of unanswered questions. We know Mother spent four months ‘get[ting] clean’ in Florida, but other than that we know of no rehabilitative efforts Mother made during the remaining two years she was missing from the children’s life,” it wrote.

Lastly, the appellate court noted that while there can be no bright line as to how much time is reasonable for recovery, the longer the parent is absent, the more likely the failure to communicate is indefensible. Finding that the children’s stepmother met the burden of proving J.N.S.’s failure to communicate significantly with the children was not justifiable, the appellate court concluded that the findings do not support the trial court’s judgment.

“These findings lead to one conclusion—Mother did not have justifiable cause for not communicating with the children; consequently, her consent to the adoption is unnecessary. We reverse the trial court and remand this case,” it wrote.

On remand, the appellate panel ordered that the trial court must determine, among other things, whether adoption is in the best interests of the children. Additionally, it found that the trial court should consolidate the paternity case with the adoption case.