E.B.F. v. D.F.

• Decision Date: 23 March 2018
• Docket Number: Supreme Court Case No. 18S–AD–167
• Citation: 93 N.E.3d 759
• Parties: In re the Adoption of E.B.F., J.W., Appellant (Respondent below), v. D.F., Appellee (Petitioner below)
• Court: Indiana Supreme Court

93 N.E.3d 759

In re the Adoption of E.B.F., J.W., Appellant (Respondent below),

v.D.F., Appellee (Petitioner below)

Supreme Court Case No. 18S–AD–167

Supreme Court of Indiana.

Filed March 23, 2018

ATTORNEY FOR APPELLANT: Mark Small, Indianapolis, Indiana

ATTORNEY FOR APPELLEE: Ashley M. Dyer, Dyer Law, LLC, Linton, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 28A05–1702–AD–257

David, Justice.

As the destructive tentacles of the substance abuse epidemic continue to reach every corner of our State, Hoosier parents ravaged by addiction—particularly victims of opioid dependency—face difficult decisions to safeguard their children's welfare. Here, a child's quality of life was adversely impacted when addiction afflicted his mother. Hoping to spare her son the impact of her unfortunate circumstance, mother voluntarily agreed to modify custody. Under the agreement, she relinquished primary physical custody and the trial court awarded it to the child's biological father. Mother retained legal custody with some parenting time, but during a period of more than one year, she failed to communicate significantly with her son. As a result, the child's stepmother's petition to adopt was granted without the mother's consent.

We are now asked to determine whether mother's consent was necessary to grant the petition. Finding that the totality of mother's circumstances—her struggles with addiction, her willingness to give up custody, and her good-faith recovery efforts—justified her failure to communicate with her child during that one-year period, and further finding that both father and stepmother's unwillingness to abide by the agreed-upon modification order frustrated mother's limited ability to communicate, we hold that mother's consent was necessary to grant the adoption petition. Accordingly, we reverse the trial court on the consent determination and remand for further proceedings.

Facts and Procedural History

On November 25, 2003, E.B.F. ("Child") was born out-of-wedlock to J.W. ("Mother") and M.F. ("Father"). Mother and Father were never married, but were in a relationship that ended shortly after Child was born. The separation occurred, in part, due to an incident where Father broke Mother's nose. Mother retained primary custody of Child for the next ten years and Father exercised regular and consistent parenting time, pursuant to the Indiana Parenting Time Guidelines ("IPTG").

In 2005, Father married D.F. ("Stepmother"). Initially, the pattern of abuse continued toward Father's new partner, but to Father's credit, his home-life improved drastically over time. Mother, on the other hand, increasingly had trouble keeping her life together. By 2013, she found herself unemployed and was once again the victim of an abusive relationship. She also struggled with substance abuse and dependence.

Around November 2013, in an effort to minimize Child's exposure to adverse conditions in Mother's home, Child began staying more frequently with Father. On December 12, 2013, Mother and Father filed an Agreed Entry of the Parties, whereby Father was awarded primary custody of Child while Mother retained shared joint legal custody. The agreed-upon modification also awarded Mother parenting time "at such times and upon such conditions as the parties are able to mutually agree." (Appellant's App. Vol. I at 8). Father did not seek Mother's financial support due to her poor financial circumstances. Accordingly, Mother had a $0.00 support obligation. Mother later testified that, at the time of the modification, she "felt it was necessary for [the child's] well-being that he would be at his dad's instead of in the situation that [she] was in." (Tr. Vol. I at 20).

Mother spent meaningful time with Child on Christmas Day 2013, but had no further meaningful contact with Child after that date. She did not send Child letters or birthday cards and was not otherwise involved in Child's scholastic activities. Mother did, however, occasionally run into Child, Father, and Stepmother around town. These encounters included one at a grocery store and another at a school baseball game.

Mother dedicated much of 2014 to recovering, which yielded excellent results. By the fall of that year, Mother had left her abusive partner, gained stable employment, found decent housing, and successfully addressed her drug dependency. Child experienced positive changes too; his behavior, appearance, cleanliness, and school performance all improved substantially.

On January 2, 2015, one year and seven days after Mother's last significant contact, Stepmother filed a Petition for Adoption of E.B.F. Father consented to the adoption, but Mother did not. On August 20, 2015 and October 2, 2015, the trial court held a hearing on whether Mother's consent was required to grant the adoption petition. The trial court issued its ruling on November 25, 2015, finding that Mother's consent was not required because Stepmother had "proven by clear, cogent and indubitable evidence that ... mother ... failed ... to communicate significantly with the child for at least one year from December 25, 2013 until the date [the] Petition was filed." (Appellant's App. Vol. I at 10).

The trial court then held hearings on November 3 and December 21, 2016, to determine whether adoption was in the best interest of the child. On January 13, 2017, the trial court issued its ruling, granting the petition and finding that adoption was, indeed, in the best interest of the child. On February 2, 2017, the trial court issued the Adoption Decree, granting Stepmother's adoption petition and terminating Mother's parental rights. Mother appealed.

In a published opinion, the Court of Appeals affirmed the trial court, finding that "[s]ufficient 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." Adoption of E.B.F. v. D.F. , 79 N.E.3d 394, 401 (Ind. Ct. App. 2017).

Thereafter, Mother sought transfer to this Court. We now grant transfer, thereby vacating the Court of Appeals' opinion. Ind. Appellate Rule 58(A).

Standard of Review

In family law matters, we generally give considerable deference to the trial court's decision because we recognize that the trial judge is in the best position to judge the facts, determine witness credibility, "get a feel for the family dynamics," and "get a sense of the parents and their relationship with their children." MacLafferty v. MacLafferty , 829 N.E.2d 938, 940 (Ind. 2005). Accordingly, when reviewing an adoption case, we presume that the trial court's decision is correct, and the appellant bears the burden of rebutting this presumption. In re Adoption of O.R. , 16 N.E.3d 965, 972–73 (Ind. 2014).

The trial court's findings and judgment will be set aside only if they are clearly erroneous. In re Paternity of K.I. , 903 N.E.2d 453, 457 (Ind. 2009). "A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment." Id. We will not reweigh evidence or assess the credibility of witnesses. In re Adoption of O.R. , 16 N.E.3d at 973. Rather, we examine the evidence in the light most favorable to the trial court's decision. Id.

Discussion and Decision

The overarching question we address is whether Mother's consent was required to grant Stepmother's adoption petition. Stepmother argues that Mother forfeited her right to consent when she failed to communicate with Child for more than one year. Stepmother claims that, given Father's consent, only "a best interest of the child" determination was necessary to grant the petition. The trial court agreed and granted the petition, finding that adoption was in the best interest of the child.

Mother does not challenge the trial court's "best interest" determination.¹ Instead, she argues that she had justifiable cause to not communicate with Child because Father and Stepmother prevented her from doing so. Stepmother responds by arguing that the statute's justifiable excuse clause is inapplicable here because she never frustrated Mother's ability to communicate with Child; rather, Child decided on his own that he did not care to communicate with Mother. Stepmother reminds us that it is not a custodial parent's obligation to facilitate communication with the non-custodial parent.

We reverse the trial court and find that Mother's consent was necessary to grant the adoption on two grounds: First, although Mother failed to have significant communication with Child for a period of more than one year, her willingness to shield her son from the adverse effects of her addiction, coupled with her good-faith attempt at recovery and noticeable progress, constitute justifiable cause for her failure to communicate. Moreover, Father and Stepmother thwarted whatever occasional attempts Mother made to communicate with Child, in violation of the agreed-upon custody modification order, thus further impeding Mother's ability to communicate with Child.

I. Mother did not have significant communication with Child for a period of one year.

Although the parties seem to agree on this threshold matter, we briefly address whether Mother's sparse contact with Child throughout 2014 constituted significant contact. We find that it did not.

Indiana law generally provides that a petition for adoption of a child born out of wedlock requires written consent from the mother of the child and, if paternity had been established by a paternity affidavit, written consent from the father is required too. Ind. Code § 31–19–9–1. Parental consent may, however, be dispensed with under certain enumerated circumstances. One such circumstance is where, for a period of at least one year, "[a] parent of a child in the custody of another person ... fails without justifiable cause to communicate significantly with the child when able to do so ...." Ind. Code § 31–19–9–8...