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Trial Court Erred in Finding Mother’s Failure to Communicate with Her Children Was Justified

Family law Case Review: B.S. v. J.S. (Adoption Consent) Prepared by Michael R. Kohlhaas

HELD: Trial court erred when it found that biological Mother’s failure to communicate with her children was justified.

FACTS & PROCEDURAL HISTORY: Mother and Father had two children out of wedlock. Mother had recurring drug problems that resulted in a CHINS investigation. Father became incarcerated.

After Father’s release in 2015, he married Stepmother, established paternity of the Children, and was awarded custody of the Children, subject to Mother’s supervised parenting time.

Mother spent much of 2017 attempting to “get clean.” In September 2018, Stepmother filed a petition to adopt Children, reciting that Mother’s consent was not necessary because for a period of at least one year, Mother failed without justifiable cause to communicate significantly with the Children when able to do so.

Following hearings, the trial court concluded that Mother’s lack of significant communication with the Children was justified by her efforts to end her drug addiction. Stepmother appealed.

This is the latest in a string of Indiana appellate cases that grapple with the issue of adoption consent involving drug addicted parents who are in recovery. In reviewing this case, the Court of Appeals analyzed the previous E.B.F and D.H. cases. The records in those cases included significant evidence about the rehabilitative efforts undertaken by the mothers. “But here, we don’t know much about Mother’s rehabilitative steps other than she spent four months in Florida ‘get[ting] clean.’”

Also in E.B.F. and D.H., the mothers’ lack of communication with their children overlapped with their recovery. In the instant case, Mother was absent from the Children’s lives for two years, much of which was unaccounted for.

“Key to the E.B.F and D.H. cases was that both mothers ‘demonstrated that [they] made a good-faith effort at recovery, with significant progress within a reasonable amount of time.’ Here, Mother did not present such evidence.”

The trial court’s order requiring Mother’s consent for the adoption to proceed was reversed, and the case remanded to determine whether the proposed adoption would be in the best interests of the Children.


James A. Reed and Michael R. Kohlhaas represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Cross Glazier Reed Burroughs, PC, is the premiere boutique family law firm in the state of Indiana. Visit the firm’s website at .


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