INDIANAPOLIS — The Indiana Court of Appeals affirmed a ruling in which a Madison County trial court sided with a father in a dispute with maternal grandparents seeking to adopt their grandchild.
The nine-page memorandum decision authored by Judge LeAnna K. Weissmann upheld Madison Circuit Court 1 Judge Angela Warner-Sims’ finding that the father’s lack of contact and support for the child born in 2016 did not override his right to consent to the adoption.
“As Father’s consent was required but not granted, the trial court properly denied Maternal Grandparents’ petition to adopt Z.H.,” the appeals court said.
According to the appeals court’s opinion filed on Friday, the grandparents, who cared for and financially supported the child, petitioned the court for adoption one month after birth, with their daughter’s consent. However, they told the court the father’s identity was unknown.
When the child was 5 months old, her father petitioned the court to establish paternity and support obligations. The grandparents successfully sought to intervene in his court action and managed to have it consolidated with their petition for adoption.
The father objected to the grandparents’ petition to adopt.
“Maternal grandparents thereafter moved with Z.H., first to Fort Wayne and then to California, without informing Father or the trial court of their new address,” the appeals court’s opinion said.
In September 2018, the court agreed to a continuance to allow for a preliminary determination of the validity of the mother’s consent to adoption over the objection of the father. The court at that time also declined his request for parenting time pending the outcome of the mother’s consent issue.
“The court ultimately determined Mother’s consent would stand and that Father’s consent to the adoption was required,” the opinion said.
An adoption, in most instances, requires the written consent of both parents, the appeals court said. Exceptions include when a child has been in the custody of another for at least a year and the petitioner can demonstrate that the parents have not tried to communicate with the child and when the biological parents fail to provide care and support for a child.
“Each side blames the other for the lack of communication and support,” the opinion said.
However, the court pointed out, the father sought visitation and a support order when the child was 5 months old. Paternity was not established until she was 10 months old, and once paternity test results became available in 2017, he filed his objection to the adoption.
Once the grandparents moved, the appeals court said, they failed to follow through on their adoption petition, leading the court to order they show why their petition should not be dismissed.
Though the court agreed the father’s lack of communication is undisputed, the grandparents failed to provide clear and convincing evidence as required under the Indiana Code that he had the ability to do so.
“The trial court never granted Father parenting time or authorized him to have any other contact with Z.H. prior to its judgment, despite Father’s repeated requests,” the opinion said. “Maternal Grandparents did not reveal their whereabouts to Father for much of the case. Even if they had, nothing in the record suggests Maternal Grandparents would have allowed Father to visit with Z.H. absent a court order.”
The court said the grandparents also did not establish that the father failed to support the child. According to the father’s testimony, he had sent 36 checks, in envelopes that were admitted unopened to the trial court, to the address they provided between August 2018 and May 2019.
“Unaware that Maternal Grandparents had moved, Father thought Maternal Grandparents simply were rejecting his support,” the appeals court said. “He ultimately stopped sending the checks after the 36 failed attempts.”