tigger22472
Senior Member
What is the name of your state? Indiana
It seems that we may have been incorrect at least in the state of Indiana when it comes to the 'abandonment' rule. Indiana requires that there be one year without contact or support. Now, our theory has been that after that time if contact is made that the 1 year starts over and basically you are SOL. This is not true.
Rosell v. Dausman, 175 Ind. App. 618
PRIOR HISTORY: [***1]
Appeal from a decree granting an adoption.
From the St. Joseph Probate Court, Frank X. Kopinski, Judge.
DISPOSITION: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant natural mother challenged the judgment of the St. Joseph Probate Court (Indiana), which granted appellee step-mother's petition to adopt the two minor sons in spite of the natural mother's lack of consent.
OVERVIEW: After the natural father was granted a divorce from the natural mother, he was granted the custody of his two minor sons. Later, the natural father remarried and the step-mother petitioned to adopt the sons. The natural father gave his consent to the adoption, but the natural mother refused. On appeal the natural mother argued that because she was in communication with the children during the year immediately preceding the filing of the petition for adoption, her consent was necessary. The court disagreed and held Ind. Code § 31-3-1-6(g)(1) (Supp. 1976) stated that if for a period of at least one year a non-custodial parent failed without justifiable cause, to communicate significantly with the child when able to do so, consent to adoption was not required of that non-custodial parent. The natural mother did not communicate significantly with the children for at least one year, was able to do so, and contributed nothing to their general well-being. There was clear, cogent, and indubitable evidence that there was a period of at least one-year in which the natural mother failed to communicate with her children, and the trial court did not err in dispensing with her consent.
OUTCOME: The court affirmed the judgment of the trial court.
Consent Required?
IC 1971, 31-3-1-6(g) (Burns Supp. 1976) provides in pertinent part that,
HN1"(g) Consent to adoption is not required of:
(1) a parent or parents if the child is adjudged to have been abandoned or deserted for six [6] months or more immediately preceding the date of the filing of the petition; or a parent of a child in the custody of another person, if for a period of at least one [1] year he fails without justifiable cause, to communicate significantly with the child when able to do so or he wilfully fails to provide for the care and support of the child when able to do so as required by law or judicial decree, or if the parent or parents have made only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents; . . ." n2
Rosell argues that since she was in communication with the children during the year immediately preceding the filing of the petition for adoption, her consent was necessary for the granting of the adoption. n3
Since the trial court found that Rosell failed to communicate significantly with the children, her argument that the relevant time period is one year immediately preceding the filing of the petition is immaterial herein. When the child is in the custody of another person, as is the case with Jeffery and Charles, the statute clearly indicates that "if for a period of at least one year he [non-custodial [*620] parent] fails without justifiable cause, to communicate significantly with the child when able to do so . . ." consent to adoption is not required of that non-custodial parent. The court specifically found that Rosell did not communicate significantly with the children for at least one year, was able to do so, and contributed nothing to their general well-being.
The record discloses that Rosell visited the children intermittently between the date of the divorce decree (April 10, 1970) and the date of the filing of the petition (April 21, 1975). [***4] There was evidence that from January 26, 1973, to August 28, 1974, a period of over eighteen months (1-1/2 years), she failed to have any contact with the children at all. Under the statutory guidelines, Rosell's consent was unncessary for a valid adoption to take place. n4
This ruling was cited in:
J.P. C.H. v. E.W., 713 N.E.2d 873
The thrust of the statute is to foster and maintain communication between non-custodial parents and their children, not to provide a means for parents to maintain just enough contact to thwart potential adoptive parents's efforts to provide a settled environment to the child. Rosell v. Dausman, 175 Ind. App. 618, 373 N.E.2d 185 (1978). The significance of the communication is [**8] not measured in terms of units of visits. Id. Thus, C.H.'s short, not-quite-monthly visits with J.P., that commenced about four months after J.P. was returned to Indiana, do not establish significant communication. Moreover, that C.H. eventually increased the length of her visits with J.P. after C.H. moved back to Indiana, and just prior to E.W.'s petition for adoption, does not vitiate the lack of significant communication for the one-year period commencing in September 1996 when J.P. was returned to Indiana from Tennessee. See In re Adoption of Subzda, 562 N.E.2d at 750 n.3 (HN7when gauging significant communication, the one-year period need not immediately precede the filing of the petition).
In re Adoption of L., 435 N.E.2d 624
We note some additional points about Christopher's argument. First, he argues that he did visit with his son after going to court to enforce his visitation rights in October, 1980. This argument misses the essential point that the one year period of non-communication had already expired. HN4It is not necessary that the period of non-communication be the year immediately prior to the filing of an adoption-termination [**7] petition. Matter of Adoption of Herman, supra; Rosell v. Dausman, (1978) Ind.App., 175 Ind. App. 618, 373 N.E.2d 185. He also contends that he made numerous telephone calls to arrange visits, that he pursued court action in the form of a petition to modify the dissolution decree and an action to enforce visitation, and that he ultimately paid support. We have dealt with the calls supra. They did not result in visits. Court action does not constitute communication. Adoption of Thornton, (1976) 171 Ind.App. 457, 358 N.E.2d 157. HN5Payment or nonpayment of support is a separate basis for termination of parental rights under IC 31-3-1-6(g)(1) and is irrelevant to the issue of communication.
It seems that we may have been incorrect at least in the state of Indiana when it comes to the 'abandonment' rule. Indiana requires that there be one year without contact or support. Now, our theory has been that after that time if contact is made that the 1 year starts over and basically you are SOL. This is not true.
Rosell v. Dausman, 175 Ind. App. 618
PRIOR HISTORY: [***1]
Appeal from a decree granting an adoption.
From the St. Joseph Probate Court, Frank X. Kopinski, Judge.
DISPOSITION: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant natural mother challenged the judgment of the St. Joseph Probate Court (Indiana), which granted appellee step-mother's petition to adopt the two minor sons in spite of the natural mother's lack of consent.
OVERVIEW: After the natural father was granted a divorce from the natural mother, he was granted the custody of his two minor sons. Later, the natural father remarried and the step-mother petitioned to adopt the sons. The natural father gave his consent to the adoption, but the natural mother refused. On appeal the natural mother argued that because she was in communication with the children during the year immediately preceding the filing of the petition for adoption, her consent was necessary. The court disagreed and held Ind. Code § 31-3-1-6(g)(1) (Supp. 1976) stated that if for a period of at least one year a non-custodial parent failed without justifiable cause, to communicate significantly with the child when able to do so, consent to adoption was not required of that non-custodial parent. The natural mother did not communicate significantly with the children for at least one year, was able to do so, and contributed nothing to their general well-being. There was clear, cogent, and indubitable evidence that there was a period of at least one-year in which the natural mother failed to communicate with her children, and the trial court did not err in dispensing with her consent.
OUTCOME: The court affirmed the judgment of the trial court.
Consent Required?
IC 1971, 31-3-1-6(g) (Burns Supp. 1976) provides in pertinent part that,
HN1"(g) Consent to adoption is not required of:
(1) a parent or parents if the child is adjudged to have been abandoned or deserted for six [6] months or more immediately preceding the date of the filing of the petition; or a parent of a child in the custody of another person, if for a period of at least one [1] year he fails without justifiable cause, to communicate significantly with the child when able to do so or he wilfully fails to provide for the care and support of the child when able to do so as required by law or judicial decree, or if the parent or parents have made only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents; . . ." n2
Rosell argues that since she was in communication with the children during the year immediately preceding the filing of the petition for adoption, her consent was necessary for the granting of the adoption. n3
Since the trial court found that Rosell failed to communicate significantly with the children, her argument that the relevant time period is one year immediately preceding the filing of the petition is immaterial herein. When the child is in the custody of another person, as is the case with Jeffery and Charles, the statute clearly indicates that "if for a period of at least one year he [non-custodial [*620] parent] fails without justifiable cause, to communicate significantly with the child when able to do so . . ." consent to adoption is not required of that non-custodial parent. The court specifically found that Rosell did not communicate significantly with the children for at least one year, was able to do so, and contributed nothing to their general well-being.
The record discloses that Rosell visited the children intermittently between the date of the divorce decree (April 10, 1970) and the date of the filing of the petition (April 21, 1975). [***4] There was evidence that from January 26, 1973, to August 28, 1974, a period of over eighteen months (1-1/2 years), she failed to have any contact with the children at all. Under the statutory guidelines, Rosell's consent was unncessary for a valid adoption to take place. n4
This ruling was cited in:
J.P. C.H. v. E.W., 713 N.E.2d 873
The thrust of the statute is to foster and maintain communication between non-custodial parents and their children, not to provide a means for parents to maintain just enough contact to thwart potential adoptive parents's efforts to provide a settled environment to the child. Rosell v. Dausman, 175 Ind. App. 618, 373 N.E.2d 185 (1978). The significance of the communication is [**8] not measured in terms of units of visits. Id. Thus, C.H.'s short, not-quite-monthly visits with J.P., that commenced about four months after J.P. was returned to Indiana, do not establish significant communication. Moreover, that C.H. eventually increased the length of her visits with J.P. after C.H. moved back to Indiana, and just prior to E.W.'s petition for adoption, does not vitiate the lack of significant communication for the one-year period commencing in September 1996 when J.P. was returned to Indiana from Tennessee. See In re Adoption of Subzda, 562 N.E.2d at 750 n.3 (HN7when gauging significant communication, the one-year period need not immediately precede the filing of the petition).
In re Adoption of L., 435 N.E.2d 624
We note some additional points about Christopher's argument. First, he argues that he did visit with his son after going to court to enforce his visitation rights in October, 1980. This argument misses the essential point that the one year period of non-communication had already expired. HN4It is not necessary that the period of non-communication be the year immediately prior to the filing of an adoption-termination [**7] petition. Matter of Adoption of Herman, supra; Rosell v. Dausman, (1978) Ind.App., 175 Ind. App. 618, 373 N.E.2d 185. He also contends that he made numerous telephone calls to arrange visits, that he pursued court action in the form of a petition to modify the dissolution decree and an action to enforce visitation, and that he ultimately paid support. We have dealt with the calls supra. They did not result in visits. Court action does not constitute communication. Adoption of Thornton, (1976) 171 Ind.App. 457, 358 N.E.2d 157. HN5Payment or nonpayment of support is a separate basis for termination of parental rights under IC 31-3-1-6(g)(1) and is irrelevant to the issue of communication.
