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In re Adoption of E.B.F.

Court of Appeals of Indiana

July 7, 2017

In re Adoption of E.B.F., J.W., Appellant-Respondent,
v.
D.F., Appellee-Petitioner.

         Appeal from the Greene Circuit Court The Honorable Erik C. Allen, Judge Trial Court Cause No. 28C01-1501-AD-1

          Attorney for Appellant Mark Small Indianapolis, Indiana

          Attorney for Appellee Ashley Dyer Dyer Law, L.L.C. Linton, Indiana

          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.

         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 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 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. ยง 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 ...


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