# Matter of Adoption of Thomas

> Indiana Court of Appeals · February 16, 1982 · 431 N.E.2d 506

URL: https://www.frixlaw.com/law-library/cases/9526558

## Case

- **Full name:** In the Matter of the ADOPTION of Chris Delayne THOMAS, Jr., and Carl David Thomas. Chris D. Thomas, Respondent-Appellant, Thomas H. Lee, Petitioner-Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** February 16, 1982
- **Citations:** 431 N.E.2d 506; 1982 Ind. App. LEXIS 1084
- **Precedential status:** Published
- **Opinion:** Concurrence by Miller
- **Judges:** Conover, Miller, Young
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Bowlers Country Club, Inc. v. Royal Links USA, Inc..
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9526558

## Opinion text

MILLER, Presiding Judge,
concurring.
I concur in the result. The pertinent evidence disclosed by the parties in their “Agreed Statement” of facts submitted pursuant to Ind. Rules of Procedure, Trial Rule 7.3 is as follows:
(1) Chris Delayne Thomas, respondent herein, was married to Charlotte Ann Thomas (Lee) in 1970 and was divorced from her on October 16, 1978, in Vernon Parish, Louisiana. Their marriage produced two children: Chris Delayne Thomas, Jr., born November 27, 1970, and Carl *516 David Thomas, born August 19, 1972. Charlotte Ann Thomas (Lee) was awarded custody of the children in the divorce decree; Chris Delayne Thomas was not awarded any specific rights of visitation.
(2) Thomas Henry Lee, petitioner herein, was married to Charlotte Ann Lee on October 22,1978. Charlotte Ann Lee left Vernon Parish, Louisiana, in November, 1978, and moved with her husband and her two sons to Bloomington, Indiana. Chris Delayne Thomas has resided in Colorado and Louisiana since 1978.
(3) Thomas Henry Lee filed his Petition to Adopt Chris Delayne Thomas, Jr., and Carl David Thomas on May 8, 1980, in the Monroe Circuit Court, Nat U. Hill, Judge.
(4) Charlotte Ann Lee consented to the adoption of her two sons. Chris Delayne Thomas did not consent to the adoption.
(5) Lacking the consent of the natural father of Chris Delayne Thomas, Jr., and Carl David Thomas, the petitioner relied on the provisions of Indiana Code 31-3-l-6(g) in alleging that such consent was not required.
(6) In her report to the Court, which was admitted by stipulation of the parties, Suzanne Pauwels of the Monroe County Department of Public Welfare stated that “[t]here does not appear to be any reason that this adoption should not take place.” Ms. Pauwels further stated that Mr. Thomas had not paid child support for six months. Mr. Thomas disputed those statements.
(7) The hearing of the Petition to Adopt was held on July 14, 1980, before Judge Hill. Both petitioner and respondent were present at the hearing and waived the taking of testimony. Testimony given at the hearing which is pertinent to the appeal of this case was:
(a)Mr. Thomas stated that he had paid support of $150.00 per month for his two sons since May, 1978, with only one interruption of at least two months which immediately preceded the filing of the Petition to Adopt. Mr. Thomas subsequently sent payments for arrears, which payments were received but not cashed by Mrs. Lee at the time of the hearing. The divorce decree did not require Mr. Thomas to pay child support.
(b) Mr. Thomas stated that he had talked with his sons by telephone in April and December of 1979, and in March, 1980. Mr. Thomas also stated that he had attempted to talk to the boys on many other occasions but was refused by Charlotte Ann Lee. Mrs. Lee disputed this statement, stating that Mr. Thomas had attempted to communicate with his sons no more than four times between January, 1978, and the date of the hearing in July of 1980.
(c) Mr. Thomas stated that on holidays and on his sons’ birthdays, he sent greeting cards, money and other gifts to them in Bloomington, Indiana, which allegation Mrs. Lee disputed.
(d) Different members of Mr. Thomas’ family visited his sons in Bloomington, Indiana, specifically, Mr. Thomas’ mother had visited them in April, 1979, and March, 1980.”
As revealed by the “Agreed Statement,” Thomas Lee’s adoption petition (as well as the trial court’s ultimate judgment in his favor) relied upon the provisions of Ind. Code 31-3-l-6(g) in seeking to terminate the parental rights of Chris Thomas. That statute provides in relevant part that:
“(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 knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree (when the parent or parents have made *517 only token efforts to support or to communicate with the child, the court may declare the child abandoned by the parent or parents); . ..(Emphasis added.)
Our Courts have held that where a petitioner seeks to terminate the rights of a child’s natural parent, it is incumbent upon him to prove the material allegations of his petition by “clear, cogent and indubitable evidence.” Graham v. Starr, (1981) Ind. App., 415 N.E.2d 772 ; Matter of Lockmondy’s Adoption, (1976) 168 Ind.App. 563 , 343 N.E.2d 793 ; In re Adoption of Bryant, (1963) 134 Ind.App. 480 , 189 N.E.2d 593 . As explained by Judge Hunter in In re Adoption of Bryant, supra at 492-93, 189 N.E.2d at 599-600 (in holding, inter alia, the mere lack of support payments does not necessarily constitute a “failure” of support within the meaning of the statute then in effect):
“The petitioner must be prepared to prove that the living parents of the child have so violated their natural and legal obligations to the child that they come within the terms of the statute authorizing waiver of consent of the natural parents. Thus the parties should not approach the court in equal status. Courts have not hesitated to build a ‘strong fortress’ around the rights of natural parents to their children; for this fortress to be vulnerable to encroachment, the one seeking to sever the parent-child relationship should not only present a preponderance of proof but such proof should be established ‘by clear and indubitable evidence.’ ” (Citations omitted.)
Applying these principles to the statute here at issue the petitioner, Lee, “not only had the burden of proving a lack of communication,” but also that the natural father, Thomas, “was able to communicate,” In re Adoption of Anonymous, (1973) 158 Ind. App. 238, 242 , 302 N.E.2d 507, 510 , whether this burden has been met is necessarily dependent upon the facts and circumstances of each particular case, including, for example, the custodial parent’s willingness to permit visitation, Adoption of Anonymous, supra, as well as the natural parent’s financial and physical means to accomplish his obligations. See Burris v. State, (1978) Ind. App., 382 N.E.2d 963 .
In the case at bar, involving children living a considerable distance from their natural father, I cannot conclude the agreed facts submitted to this Court “indubitably” exhibit the father’s ability and failure to achieve significant communication, as required by our statute. As noted above, the “Agreed Statement” recites that Thomas “has resided in Colorado and Louisiana since 1978” and that during that period the children were living with their mother in Bloomington, Indiana. Significantly, however, the statement is silent as to Thomas’s financial or physical ability to visit with his children, although it is undisputed he telephoned on a number of occasions and that he made support payments, voluntary in nature. Without attempting to formulate any universal rule as to when a parent’s communications may be deemed “significant” or merely “token,” it is apparent, I believe, the facts adduced in the instant appeal provide an insufficient basis 1 for the *518 trial court, or this Court, to conclude Thomas had the requisite ability to significantly communicate with his children and then unjustifiably failed to do so. To assault the “strong fortress” of a parental relationship, the record must reveal “clear and indubitable evidence” the parent, without justifiable cause, has violated his “natural and legal obligations” to his children. In re Adoption of Bryant, supra. Such evidence is not present here. Petitioner Lee failed to meet his burden of proof.
I concur with Judge Conover that the judgment be reversed and the cause remanded to the trial court for entry of judgment in favor of Thomas.
. For example, although the agreed statement recites that Mrs. Lee testified Thomas “had attempted to communicate with his sons no more than four times between January 1978, and the date of the hearing in July of 1980,” it does not disclose the precise nature of these attempts, when they were successful, or if they were not successful, why they were not. See In re Adoption of Anonymous, supra 158 Ind. App. at 242—43, 302 N.E.2d at 510 , where this Court noted, in upholding a trial court’s refusal to terminate parental rights, that “[i]n their testimony appellants have not denied that they made some attempts to block communication,” and the record in that case revealed no evidence the appellants had thereafter “invited or encouraged communication.” The Court concluded:
“If it be granted arguendo that the evidence is sufficient to sustain an inference that the mother could have succeeded in communicating with the children if she tried harder, that is certainly not the only inference reasonably to be drawn from the evidence.”
Id. See also In re Bryant's Adoption, supra 134 Ind.App. at 492 , 189 N.E.2d at 599 (parental rights may not be terminated “at will” by a custodial parent by the latter’s refusal to accept tendered support payments.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9526558. Public record. Not legal advice.