                                                                               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.




      Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017                     Page 1 of 14
                                  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
      Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017   Page 2 of 14
      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

      Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017    Page 3 of 14
      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.


      Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017     Page 4 of 14
[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

       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017    Page 5 of 14
       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).

       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017       Page 6 of 14
       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


       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017      Page 7 of 14
               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.


       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017     Page 8 of 14
[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.




       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017         Page 9 of 14
[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.


       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017    Page 10 of 14
       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

       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017            Page 11 of 14
                                          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


       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017           Page 12 of 14
       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.
       Court of Appeals of Indiana | Opinion 28A05-1702-AD-257 | July 7, 2017   Page 13 of 14
[25]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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