FILED
Jul 07 2017, 6:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark Small Ashley Dyer
Indianapolis, Indiana Dyer Law, L.L.C.
Linton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Adoption of E.B.F., July 7, 2017
J.W., Court of Appeals Case No.
28A05-1702-AD-257
Appellant-Respondent,
Appeal from the Greene Circuit
v. Court
The Honorable Erik C. Allen,
D.F., Judge
Trial Court Cause No.
Appellee-Petitioner.
28C01-1501-AD-1
Mathias, Judge.
[1] In this contested adoption case, we consider whether the trial court clearly erred
in ruling that the adoptive child’s genetic mother failed without justifiable cause
to communicate significantly with the child for one year when she was able to
do so. Concluding it did not err in coming to that conclusion, we affirm.
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Facts and Procedural Posture
[2] E.B.F. (“Child”) was born to J.W. (“Mother”) and M.F. (“Father”) in 2003 in
Sullivan County, Indiana. Mother and Father were never married. In 2005,
Father married D.F. (“Step-Mother”). Mother was Child’s primary physical
custodian for the first ten years of Child’s life.
[3] In 2013, Father brought a paternity action in Greene Circuit Court. On
December 12, 2013, that action resulted in an agreed order modifying custody,
whereby Mother and Father would continue to share legal custody, Father
would assume primary physical custody, and Mother would pay $0.00 for
Child’s support. Mother was to be given parenting time “at such times and
upon such conditions as the parties are able to mutually agree.” Appellant’s
App. p. 10.
[4] Mother saw Child on Christmas Day, December 25, 2013. The instant adoption
petition was filed by Step-Mother almost exactly one year later, January 2,
2015. Between December 25, 2013, and January 2, 2015, Child lived with
Father and Step-Mother in Linton, Greene County, Indiana, and had little
contact with Mother. Mother’s mother (“Grandmother”) at first had some
contact with Child, but that too eventually waned. For some part of this period,
Mother struggled with dependence on opioids, methamphetamine, and
marijuana; was unemployed; was in a physically abusive marriage; and moved
frequently around Greene County, though never more than an hour away from
Linton. Eventually, however, Mother divorced her abuser and was able to find
stable housing, employment, and a measure of control over her drug
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dependencies. She still wished to parent Child and opposed Step-Mother’s
adoption petition when it was filed.
[5] On August 20, 2015, and October 2, 2015, the trial court held a consent hearing
to determine whether Mother’s consent to adoption was required by statute. On
November 25, 2015, the trial court ruled that Mother’s consent was not
required. Mother appealed that ruling and then voluntarily dismissed her appeal
on the authority of this court’s decision in Adoption of S.J., 967 N.E.2d 1063,
1066 (Ind. Ct. App. 2012) (dismissing appeal from similar ruling sua sponte
because taken neither from final judgment nor from appealable interlocutory
order). On November 3, 2016, and December 21, 2016, the trial court held a
best-interest hearing to determine whether adoption by Step-Mother would be
in Child’s best interest. On January 13, 2017, the trial court ruled that adoption
would be in Child’s best interest and granted Step-Mother’s petition.
[6] Mother now appeals, again challenging the trial court’s ruling that her consent
to adoption was not required.
Standard of Review
[7] In the hearing at issue in this appeal, it was Step-Mother’s burden to prove by
clear and convincing evidence that Mother’s consent to adoption was not
required. In re Adoption of S.W., 979 N.E.2d 633, 640 (Ind. Ct. App. 2012).
Mother contends (and the trial court agreed) that Step-Mother’s burden was
proof by “clear, cogent, and indubitable evidence[,]” In re Adoption of
Augustyniak, 505 N.E.2d 868, 870 (Ind. Ct. App. 1987), but this standard has
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been abrogated. S.W., 979 N.E.2d at 640; In re Adoption of M.A.S., 815 N.E.2d
216, 219 (Ind. Ct. App. 2004) (interpreting 2003 statutory amendments).
[8] We will not set aside the trial court’s judgment in an adoption matter unless it is
clearly erroneous. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). A
judgment is clearly erroneous if the evidence fails to support the court’s
findings, or if the findings fail to support the court’s judgment. Id. We will not
impose our own view of whether the evidence was clear and convincing.
M.A.S., 815 N.E.2d at 220. Rather, without weighing the evidence or assessing
credibility of witnesses, and considering only the probative evidence and
reasonable inferences therefrom in support of the judgment, we ask whether a
reasonable trier of fact could have concluded that the judgment was supported
by clear and convincing evidence. Id.
Discussion and Decision
[9] Generally, a noncustodial genetic parent’s consent to adoption is required
before an adoption petition may be granted. Ind. Code § 31-19-9-1(a)(2).
However, the parent’s consent is not required “if for the period of at least one . .
. year the parent . . . fails without justifiable cause to communicate significantly
with the child when able to do so[.]” Id. § 8(a)(2)(B). Thus, the petitioner in a
contested adoption bears the burden of proving several elements under this
subsection: a period of at least one year; absence of significant communication
during that period; ability to communicate during that period; and absence of
justifiable cause for failure to communicate during that period.
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[10] The inquiry under the statute is highly fact- and context-specific. Rust v. Lawson,
714 N.E.2d 769, 772 (Ind. Ct. App. 1999), trans. denied. The inquiry is guided
by the statute’s purpose: to “foster and maintain” communication between a
noncustodial parent and her child, “not to provide a means for parents to
maintain just enough contact to thwart potential adoptive parents’[] efforts to
provide a settled environment [for] the child.” In re Adoption of J.P., 713 N.E.2d
873, 876 (Ind. Ct. App. 1999).
[11] Whether communication was significant is not to be measured merely in units.
Id. “One significant communication in a year would [be] sufficient” to bar
nonconsensual adoption. In re Adoption of Subzda, 562 N.E.2d 745, 749 (Ind. Ct.
App. 1990). However, even multiple, “fairly consistent” contacts may not be
found significant in context. J.P., 713 N.E.2d at 876 (not error to conclude
mother’s “short, not-quite-monthly visits” not significant); see also S.W., 979
N.E.2d at 640 (not error to conclude “infrequent and sporadic communication”
not significant).
[12] While the burden of proof in an adoption proceeding rests with the petitioner,
the law holds a noncustodial parent responsible for maintaining a relationship
with her child if she is to successfully resist an adoption petition. Circumstances
that make significant communication difficult or inconvenient for a parent, such
that the parent “ha[s] trouble” communicating with the child, Subdza, 562
N.E.2d at 749, do not justifiably excuse absence of communication or constitute
an inability to communicate. Id.; see also J.P., 713 N.E.2d at 876 (“hardship” of
Tennessee-Indiana travel not justifiable cause); In re Adoption of T.H., 677
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N.E.2d 605, 607 (Ind. Ct. App. 1997) (father’s “difficult time emotionally,”
child’s often changing whereabouts, and general inconvenience involved in
contacting child all insufficient to establish justifiable cause or inability to
communicate). If means of communication are not immediately apparent, it is
the noncustodial parent’s duty “to investigate reasonable means” of
communicating. O.R., 16 N.E.3d at 974. These means may include indirect
communication through a family member, see Matter of Adoption of Thomas, 431
N.E.2d 506, 515 (Ind. Ct. App. 1982); In re Adoption of Anonymous, 158 Ind.
App. 238, 302 N.E.2d 507, 508-09 (1973), but a noncustodial parent does not
per se communicate with her child merely because her parents do. S.W., 979
N.E.2d at 641 (communication with child by father’s mother not weighed in
father’s favor); T.H., 677 N.E.2d at 607 (communications with child by father’s
parents not weighed in father’s favor).
[13] Efforts of the custodial parent or prospective adoptive parent to thwart
communication between the noncustodial parent and her child are relevant to
determining ability to communicate and should be weighed in the noncustodial
parent’s favor. E.W. v. J.W., 20 N.E.3d 889, 896-97 (Ind. Ct. App. 2014) (not
error to weigh in mother’s favor father’s refusal to permit communication for
one year, where prior to refusal mother visited weekly and continued to buy
gifts for child while blocked from visitation), trans. denied; In re Adoption of
A.K.S., 713 N.E.2d 896, 899 (Ind. Ct. App. 1999) (error to conclude out-of-state
father’s consent not required where father sent letters to child and attempted to
arrange visit with child, but mother returned letters unread and blocked visit).
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However, the noncustodial parent must actually attempt significant
communication before she is entitled to rely on the custodial parent’s efforts to
thwart her as a justifiable excuse; there is no futility exception to the statute. See
In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct. App. 2006) (“[Father’s]
arguments that his overtures ‘would have’ been impeded is speculative.”). The
custodial or prospective adoptive parents are under no obligation to arrange or
facilitate the noncustodial parent’s communication, or to serve her
convenience. S.W., 979 N.E.2d at 641 (prospective adoptive parents’ “frequent
and sometimes lengthy trips to Arizona” not evidence of hiding child from
noncustodial parent and did not make communication “unduly burdensome or
impossible”); T.H., 677 N.E.2d at 607 (mother’s failure to keep father informed
of developments in child’s life does not establish justifiable cause or inability to
communicate).
[14] In this case, the trial court found as follows:
[Mother] has not sent [Child] any letters or birthday cards since
December 2013, and . . . has not met with any of [Child’s]
teachers. . . .
[Child] occasionally visited with [Grandmother] until around
April 2014, and [Grandmother] says her calls and messages were
not returned or answered [after that, the only change being] that
she and [Mother] were again getting along. [Mother] claims she
made some phone calls and sent text messages that were not
returned or answered. Although [Step-Mother’s] cell number
changed at some point, [Father’s] home number and [Step-
Mother’s place of employment, known to Mother,] remained
unchanged. . . . [Step-Mother] denies telling [Mother] that she
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cannot see [Child], and further denies ever avoiding [Mother] or
keeping [Child] from seeing or communicating with [Mother].
[Mother] alleges that she has been denied contact with [Child],
and her last contact with [Child] was a chance encounter at a gas
station in May or June 2014, and [Father] provided [Mother]
with his phone number at that time. [Mother] testified that she
made several calls to [Father] that were not answered, that she
made several attempts to see [Child] at the baseball fields, and
that she would see [Step-Mother] at [her place of employment]
and ask about [Child]. [Mother did not pursue] any Court
proceedings to enforce her parenting time . . . .
The Court concludes the testimony is credible from [Step-
Mother] that [Mother] has not been denied contact and that there
has been minimal effort from [Mother] to contact [Child].
Appellant’s App. p. 11. We next examine whether the court’s findings support
its judgment and whether the evidence supports the findings.
[15] The findings that, from December 2013 to January 2015, Mother was aware of
ways to communicate with Child, Mother was not denied contact with Child by
Step-Mother or Father, and that Mother put forward minimal effort to
communicate with Child sufficiently support the judgment that Mother failed
without justifiable cause to communicate significantly with Child for one year
when she was able to do so. Grandmother did have apparently significant
communication with Child for part of the one-year period, but Mother was not
per se entitled to have that communication treated as her own, and
Grandmother made clear that, when she asked to see Child during that period,
she asked “on [her] own behalf[.]” Tr. Vol. I, p. 104.
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[16] Mother argues that this one-year period should not be permitted to overcome
ten years of parenting Child as his sole physical custodian. She analogizes her
case to E.W. There, on appeal from denial of a petition to adopt, we said that,
even if[, contrary to the trial court’s findings,] communication
between [the noncustodial mother] and [her child] did appear
insignificant between May 2010 and May 2011, [during which
time mother had weekly three-hour visits,] . . . [i]t is undisputed
that [the mother’s] communication with [her child] increased in
the two years after May 2011 [before the adoption petition was
filed in September 2013]. It would defy logic to allow a long-past, one-
year period of poor communication to overcome a lengthy period of
significant communication that immediately precedes the adoption
petition.
20 N.E.3d at 896 (emphasis added). Mother’s analogy is not well taken because
the situation here is precisely the reverse: Mother’s communication with Child
has not improved but deteriorated over time, and the one-year period of poor
communication immediately preceded the instant adoption petition. We have
said that the purpose of the statute is “to foster and maintain” parent-child
communication. J.P., 713 N.E.2d at 876. It would be entirely contrary to this
purpose, and would tend to nullify the statutory one-year time requirement, to
excuse a parent from fostering and maintaining communication with her child
simply because, before the one-year period, her communication was not poor.
[17] Concluding that the findings sufficiently support the judgment, we proceed to
examine whether the evidence supports the findings.
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[18] Mother does not seriously contest that her only contacts with Child over the
period in question were few, fleeting, and sometimes even unintended, i.e.,
were not significant. See, e.g., Tr. Vol. I, p. 23 (Mother “ran into” Child, Father,
and Step-Mother while shopping). Even her proposed communications with
Child were not significant. See, e.g., id. p. 18 (when seeing Child with Father
and Step-Mother in public, Mother approached “just to say hi, let [Child] know
that I am getting back on my feet and everything is going to go back to
normal”). Outside of chance public run-ins, Mother’s only attempted contacts
were phone calls that for various alleged reasons were not connected. See, e.g.,
id. p. 21 (after receiving phone number from Father in May, phone was
“disconnected . . . in October and November”). Mother never attempted to
write, participate in Child’s school life, seek court enforcement of her parenting
time, or investigate other reasonable means of communication.
[19] Mother argues that she did in fact have one significant communication with
Child when she expressed a desire to continue parenting Child after she
encountered Child, Father, and Step-Mother at the local baseball fields.
Appellant’s Br. at 13. A witness for Step-Mother recalled the incident as
follows:
I do remember [Mother] saying, he is my son, I can do what I
want[,] he needs to come with me right now[,] and . . . [Child]
was standing behind [Father] and like holding on to the left side
of his arm and [Mother] was trying to reach around [Father] to
grab ahold of [Child] and [Child] was like no I don’t want to go
right now.
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Tr. Vol. I, p. 71. We cannot allow Mother to convert what appears to be an
attempted kidnapping into a significant communication with her son. At best,
this incident manifested Mother’s desire to have significant communication
with Child — but that is not the same as having one.
[20] Mother’s chief argument is that the evidence did not support the trial court’s
finding that Mother had no justifiable cause for her failure to communicate
significantly with Child, particularly with respect to Step-Mother’s and Father’s
alleged efforts to thwart Mother’s communication. To the extent that Mother
and Step-Mother gave conflicting testimony on this point, it was well within the
province of the fact-finder to credit Step-Mother’s testimony and to discredit
Mother’s; we will not revisit that assessment on appeal.
[21] However, Mother argues further that Step-Mother herself admitted in open
court that she denied Mother the opportunity to communicate with Child and
improperly introduced Child’s wishes into the consent proceeding:
[Mother:] You told [Mother] that she can’t see [Child]
before?
[Step-Mother:] No.
[Mother:] You never told her that she can’t see him?
[Step-Mother:] No I said that he doesn’t want to see her.
[Mother:] Not even after the last hearing [on August 20,
2015,] when we were standing in this
Courtroom you didn’t say that you can’t see
[Child], he doesn’t want to so I am not going
to let him if he doesn’t want to go back to
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that, I mean she was welcomed to call and
start out that way and that never happened.
[Mother:] You just said he doesn’t want to so I am not
going to let him is that correct that is what
you just said?
[Step-Mother:] If he would want to I would let him.
[Mother:] Okay you just said that if he doesn’t want to
then I am not going to let him?
[Step-Mother:] Yes.
[Mother:] After the last hearing I stated to your
husband that if [Mother] wants to see the
child they have to let her actually see the
child and he said here in this Courtroom I
refuse to let her see the child is that not
correct?
[Step-Mother:] Yes.
Tr. Vol. I, pp. 91-92.
[22] The ambiguities created by this jumbled back-and-forth in the transcript
notwithstanding, nothing about this exchange undermines the trial court’s
findings. First, the exchange appears to refer to statements made while the
adoption petition was pending, not during the one-year period at issue for
statutory purposes. Second, it is not enough to show that Step-Mother would
have rejected Mother’s attempts at significant communication had Mother made
them. Mother must have actually attempted significant communication and
then been actually thwarted by Step-Mother or Father in order to establish
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justifiable cause — but the trial court found that Mother did not make more
than “minimal effort[s]” to communicate significantly with Child. Appellant’s
App. p. 11. Finally, to the extent that Step-Mother’s statements in the above
passage conflicted with her other testimony, it was still well within the fact-
finder’s province to credit the other testimony and to discredit the muddled
testimony elicited above.
[23] It is extremely important to remember that burdens of proof in child-related
hearings have been established through the years in order to determine and
protect the best interests of the child, not the child’s parents. We do not deny the
difficulties Mother faced and overcame in 2014 in freeing herself from an
abusive marriage and from her drug dependencies. We also acknowledge that it
may seem unfair to Mother that, as a result of taking a year to “get[] back on
[her] feet,” Tr. Vol. I, p. 18, she has now lost the opportunity to continue
parenting her son. However, our law puts the burden on Mother to continue to
foster and maintain her relationship with Child, no matter the inconvenience to
her in doing so, and does not permit her simply to take a one-year hiatus from
parenting without consequence, no matter that she used that year to improve
her circumstances. See J.P., 713 N.E.2d at 876.
Conclusion
[24] Sufficient evidence supported the trial court’s findings, and those findings
supported the trial court’s conclusion that Mother failed without justifiable
cause to communicate significantly with Child when she had the ability to do
so. The judgment of the trial court is therefore affirmed.
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[25] Affirmed.
Kirsch, J., and Altice, J., concur.
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