In re the Adoption of E.B.F., J.W., Appellant (Respondent below),
D.F. Appellee (Petitioner below)
from the Greene Circuit Court, No. 28C01-1501-AD-1 The
Honorable Erik C. Allen, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Mark Small Indianapolis, Indiana
ATTORNEY FOR APPELLEE Ashley M. Dyer Dyer Law, LLC Linton,
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.
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.
and Procedural History
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").
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.
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).
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.
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
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).
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.
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).
Mother sought transfer to this Court. We now grant transfer,
thereby vacating the Court of Appeals' opinion. Ind.
Appellate Rule 58(A).
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.
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
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