Consent and Communications in Stepparent Adoptions

When is the biological parent’s consent not needed for a stepparent adoption?

The consent of both biological parents is required for an adoption of a child (IC 31-19-9-1(a)), with some exceptions (IC 31-19-9-8). One of the most common arguments for the consent of a biological parent to not be required is the parent has failed without justifiable cause to communicate significantly with the child when able to do so.

What does this mean exactly?

The Indiana Court of Appeals recently gave insight as to what does and does not qualify as “without justifiable cause” in In re I.B., 185 N.E.3d 428 (Ind. Ct. App. 2022). In this case, a child was born out of wedlock in 2009. The biological father’s paternity of the child was established in January 2010. The biological father (hereinafter referred to as “Father”) was granted parenting time with the child, which continued until 2017.

In April 2017, Father’s parenting time was reduced to exclude overnights, and he was required to “submit to an anger/psychological parenting time assessment and follow all recommendations.” Father’s parenting time was further limited to supervised visits only in July 2017, and he was ordered to submit to a hair follicle test. In July 2018, Father’s parenting time was suspended due to non-compliance with the anger management and drug screen. It was never reinstated.

The child’s stepfather (hereinafter “Stepfather”) filed a petition to adopt in August 2019. Stepfather and the child’s mother (hereinafter “Mother”) argued Father’s consent was not necessary due to failure to significantly communicate with the child for one year prior to the filing of the adoption petition. However, Father testified and presented evidence at the hearing he sent multiple text messages asking to speak to the child from July 2018 through June 2019, as well as attempted to call, but was sent straight to voicemail. Mother never responded to the messages nor returned any calls because the child “did not want to talk to her father.” Mother and Stepfather also relocated in July 2019 without filing a Notice of Intent to Relocate and testified she did not tell Father her new address because she was frightened of him knowing where she lived. The trial court granted Stepfather’s petition and determined Father’s consent was not necessary, but the Court of Appeals reversed.

The Court of Appeals found the trial court erred when it determined Father had failed without justifiable cause to communicate significantly with the child for at least one year. They found Mother did not take reasonable steps to encourage communication between Father and the child.

If you plan to file a petition for stepparent adoption and want to argue the other parent’s consent is unnecessary because they have failed to communicate significantly with the child for at least a year, consider whether you have unreasonably restricted communication in any way. The other parent should know where the child lives, how to contact the child, and be allowed to contact the child freely. If you have questions about filing a petition for stepparent adoption, contact our office and ask for a consultation with Attorney Abby Schneller.

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