J.W. v. D.F. (In re E.B.F.)
| Decision Date | 07 July 2017 |
| Docket Number | Court of Appeals Case No. 28A05-1702-AD-257 |
| Citation | 79 N.E.3d 394 |
| Parties | In re ADOPTION OF E.B.F., J.W., Appellant-Respondent, v. D.F., Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Mark Small, Indianapolis, Indiana
Attorney for Appellee : Ashley Dyer, Dyer Law, L.L.C., Linton, Indiana
[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.
[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 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) (). 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.
[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 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) ( 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.
[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.
[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 (); see also S.W. , 979 N.E.2d at 640 ().
[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, Subz d a , 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 (); In re Adoption of T.H. , 677 N.E.2d 605, 607 (Ind. Ct. App. 1997) (). 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 (); T.H. , 677 N.E.2d at 607 ().
[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) (), trans. denied ; In re Adoption of A.K.S. , 713 N.E.2d 896, 899 (Ind. Ct. App. 1999) (). 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) (). 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 (); T.H. , 677 N.E.2d at 607 ().
[14] In this case, the trial court found as follows:
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E.B.F. v. D.F.
...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' o......