Adoption reversed after wrongful finding that mom’s consent not required

Editor’s note: This article has been updated to correct the findings of the trial court.

A Hamilton County adoption was reversed after a trial court wrongly found the biological mother’s consent to her child’s adoption was not required. The Indiana Court of Appeals on Monday found the trial court lacked evidence to support its findings.

The case involved a mother who had legal and physical custody of her now-9-year-old child from the time the parents divorced in May 2014 until July 2017. Father won legal and physical custody of the child after that time over mother’s alleged drug use and instability. The Hamilton Superior Court also ordered mother to pay child support and have supervised visitation.

Last July, father’s wife, V.B., filed a petition for step-parent adoption, alleging mother’s consent was not required under Indiana Code §31-19-9-8(a)(1), (2) and (11). The petition alleged mother had abandoned the child, failed to communicate with or pay support for the child for at least one year and was unfit to parent the child. After a hearing, the court last December ruled mother’s consent was not required and entered an adoption decree.

The trial court found mother had abandoned the child for at least six months before the adoption petition was filed and failed to pay child support for at least a year. Because the trial court found mother’s consent was not required due to her abandonment or failure to communicate and her failure to pay child support, it found it unnecessary to consider whether mother was unfit.

However, the COA found the trial court disregarded evidence that mother had called the child dozens of times over a span of months since she lost primary custody. “The only evidence in the record establishes that Mother spoke with Child multiple times by telephone during the relevant time periods, even as she participated in services to obtain sobriety,” Judge L. Mark Bailey wrote for the panel. “And V.B. presented no evidence that there was not one ‘significant’ communication in Mother’s admittedly multiple telephone calls to Child within the relevant six-month and one-year time periods. Therefore, the trial court’s finding to that effect is not supported by the evidence.”

Likewise, the trial court erred in finding that mother was able to pay child support, citing only brief periods of employment during the period in which she also took an online legal course through Purdue University. And though she testified to taking a student loan for the course, the COA noted there was no evidence the money could be used for anything other than education.

“V.B. did not provide clear and convincing evidence to support the trial court’s findings … .” Bailey concluded for the panel in reversing. “… And those unsupported findings do not support the trial court’s conclusions that Mother abandoned Child, failed without justifiable cause to communicate significantly with Child, and knowingly failed to pay child support when required and able to do so. The trial court clearly erred when it determined that Mother’s consent was not required for V.B.’s adoption of Child.”

The case is In the Matter of the Adoption of I.B. (Minor Child): J.P. v. V.B., 20A-AD-229.