I N THE

Indiana Supreme Court

Supreme Court Case No. 18S-AD-167 

In re the Adoption of E.B.F.,

J.W.,

Appellant (Respondent below),

–v–

D.F.

Appellee (Petitioner below)

Decided: March 23, 2018 

Appeal from the Greene Circuit Court, No. 28C01-1501-AD-1 

The Honorable Erik C. Allen, Judge 

On Petition to Transfer from the Indiana Court of Appeals, 

No. 28A05-1702-AD-257

Opinion by Justice David

Chief Justice Rush and Justice Goff concur.
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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”).
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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 
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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 
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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 

 1 Given that Mother does not challenge the “best interest of the child” determination, we 

consider only the evidence available to the trial court as a result of testimony taken during the 

“consent” hearing held on August 20, 2015 and October 2, 2015. Later testimony from the 

“best interest of the child” hearing was not available to the trial court when it made its 

consent determination.
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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(a)(2)(A).

A determination on the significance of the communication is not one 

that can be mathematically calculated to precision. Our Court of Appeals 

was correct in stating that significance of the communication cannot be 

measured in terms of units per visit. In re Adoption of J.P., 713 N.E.2d 873, 

876 (Ind. Ct. App. 1999). Even multiple and relatively consistent contacts 

may not be found significant in context. Id. But a single significant 
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communication within one year is sufficient to preserve a non-custodial 

parent’s right to consent to the adoption. In re Adoption of Subzda, 562 

N.E.2d 745, 749 (Ind. Ct. App. 1990).

Our Court of Appeals correctly determined that Mother’s “few, 

fleeting, and sometimes unintended” contacts with Child were not 

significant. It is undisputed that on December 25, 2013, Mother spent 

significant time with Child. However, the record indicates Mother had no 

encounters with Child of any significance in 2014. Mother was within 

Child’s vicinity during a May 2014 baseball game, but testimony makes 

clear Mother did not have an opportunity to communicate with Child in 

any significant way during that encounter. Rather, Mother’s 

communication was with Father, whom she repeatedly, and according to 

some witnesses, belligerently, screamed at. Child hid behind his father 

and held on to Father’s left side as Mother tried to reach around Father to 

grab ahold of Child.

Mother’s other alleged encounters in 2014—the gas station rendezvous, 

the encounter at the doctor’s office, and the visits to Stepmother’s job—all 

involved either Father or Stepmother, not Child. And the encounter at

Walmart, where Mother briefly spoke to Child telling him there were 

things he did not understand, occurred in August 2015, after Stepmother’s 

Petition for Adoption was filed.2 The record also indicates that Mother 

failed throughout 2014 to send letters, birthday cards, valentine’s day 

cards, or any other form of communication that may have been deemed 

significant. She did not attend Child’s 5th grade graduation and seemed 

unaware of the various activities Child was involved with in school.

Given the evidence, we cannot say that Mother had significant 

communication with Child during the one-year period following her 

December 25, 2013 visit.

 2 The trial court admitted the testimony on this encounter for the sole purpose of showing that 

a pattern of continued reluctance to allow Mother parenting time existed even after the 

petition was filed.
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II. The totality of the circumstances, including the 

reasons for the initial modification, Mother’s ongoing 

battle with addiction, and her good-faith effort at 

recovery, constitute justifiable cause for the failure to 

communicate significantly.

With the first part of our inquiry complete, we resolve whether, despite 

her failure to communicate significantly with Child during a one-year 

period, Mother had justifiable cause to forgo communication. We find 

that she did.

Our case law is devoid of helpful instruction on this particular 

question; we have yet to address precisely what constitutes a noncustodial parent’s justifiable cause to not communicate with Child. In In 

re Adoption of O.R., 16 N.E.3d at 965, we came close to providing some 

guidance, but we did not quite reach the question presented: whether 

unfamiliarity with the judicial system could be deemed a justifiable cause

for a father’s failure to communicate. Instead, we found that the record 

lacked support for father’s claim; he was a habitual offender who was 

more than familiar with the court system through his various contacts 

with it over the years.

Our Court of Appeals’ treatment of the issue is marginally more 

extensive. Several cases have addressed the justifiable cause question. See

In re Adoption of T.W., 859 N.E.2d 1215 (Ind. Ct. App. 2006); Rust v. Lawson, 

714 N.E.2d 769 (Ind. Ct. App. 1999); In re adoption of Subzda, 562 N.E.2d 745 

(Ind. Ct. App. 1990); and In re Adoption of Augustyniak, 505 N.E.2d 868 

(Ind. Ct. App. 1987). But, while these cases are helpful, they do not 

address the full spectrum of justifiable causes available to a non-custodial 

parent who fails to communicate with her Child. We think the case at bar 

offers an opportunity to do the right thing as to this particular mother and 

child, while also providing our trial courts additional instruction on 

justifiable cause.

Recognizing that a determination on whether a petitioner’s burden to 

prove non-custodial parent’s failure to communicate is met is highly 

dependent upon the facts and circumstances of each particular case, In re 
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Adoption of Augustyniak, 505 N.E.2d at 871, we look to the totality of the 

circumstances to conclude that the case at bar illustrates a non-custodial 

parent’s justifiable cause to not communicate with her child.

First, we highlight that Mother chose to relinquish custody on her own 

free will, in good-faith, and without representation of counsel. The record 

demonstrates that Mother maintained primary custody of Child for the 

first ten years of his life—a significant length of time by any measure. 

Mother relinquished custody only after recognizing the harm that her 

personal problems were having on her son. By the end of 2013, Mother’s 

life had spun out of control. She was dependent on various substances, 

including marijuana, methamphetamine, and oxycodone. Her personal 

relationships also deteriorated; Mother found herself enthralled once 

again in an abusive relationship and her two daughters were subject to a 

CHINS case stemming from sexual abuse by their biological father. She 

described this period in her life as “[a] nightmare.” (Tr. Vol. I at 19). 

Around November 2013, Mother made a difficult decision to let Child stay 

with Father, hoping that time away from her would shield him from the 

destructiveness of her vices. Then, at a December 2013 hearing, Mother

took it a step further and agreed to modify custody, giving Father primary 

custody while retaining legal custody with visitation. Mother was not 

represented by counsel at that hearing and later testified that she fully 

expected this to be a temporary arrangement; she figured that when she 

got back on her feet and got back to the person she was before, she would 

be able to arrange for split parenting time. We take into account that 

Mother wanted the best for her child and nothing in the record indicates 

she intended to abandon him. If she gave up custody, it was only because 

she understood that, given her circumstances, continued custody and 

even regular contact would be damaging to Child’s welfare.

Also important to a justifiable cause finding in this case is evidence that 

Mother made a good-faith effort at recovery during the period that she 

failed to communicate with Child. Mother not only focused on her 

recovery during that period, she also made significant strides to end the 

destructive habits that led her to give up custody in the first place. Shortly 

after giving up custody, Mother ended her abusive relationship, found a 

job, and secured adequate housing for her and her daughters. By the end 
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of 2014, she had also ended her dependency on drugs and had a good and 

stable home-life. Mother turned her life around in what we find was a 

reasonable amount of time—less than one year. Before the one-year 

anniversary of the custody modification, Mother seemed on the cusp of 

being ready to, once again, be a significant part of Child’s life, but that 

possibility was cut short when Stepmother’s adoption petition was 

granted. We are sensitive to Mother’s predicament: returning to Child’s 

life too early during her addiction recovery process could have derailed 

both her own recovery and the child’s stability. We, therefore, do not 

fault Mother for taking a reasonable amount of time to focus on her 

recovery, even if that effort resulted in a temporary failure to 

communicate significantly with her child.

Because being around a child while recovering from drug dependency 

and an abusive relationship may not be in the best interest of either the 

child or the recovering mother, and because Mother demonstrated that 

she made a good-faith effort at recovery, with significant progress within 

a reasonable amount of time, we find that Mother had justifiable cause to 

not communicate with Child during that one-year period.

III. Father and Stepmother thwarted communication 

between Mother and Child.

We’re also convinced that Mother’s ability to communicate with Child 

was made impossible when Father and Stepmother, whether intentionally 

or unintentionally, frustrated Mother’s occasional attempts to 

communicate during her addiction recovery. A custodial parent’s efforts 

to thwart communication between the non-custodial parent and her child 

are relevant to determining the non-custodial parent’s ability to 

communicate and should be weighted in the non-custodial parent’s favor. 

E.W. v. J.W., 20 N.E.3d 889, 896–97 (Ind. Ct. App. 2014). While it is true 

that the custodial or prospective adoptive parents are ordinarily under no 

obligation to arrange or facilitate the non-custodial parent’s 

communication, In re Adoption of S.W., 979 N.E.2d 633, 641 (Ind. Ct. App. 

2012), Father assumed the obligation to put forth a good-faith effort in 

arranging communication when he agreed that Mother was allowed 
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parenting time “at such times and upon such conditions as the parties

[were] able to mutually agree.” (Appellant’s App. Vol. I at 8) (emphasis 

added). If the modification agreement is to have any meaning, Father’s 

good-faith effort to arrange communication was necessary.

The evidence indicates that neither Father, nor Stepmother, made a 

good-faith effort to arrange communication between Mother and Child; in 

fact, they thwarted the few attempts that Mother made at communication. 

The record shows Mother told Father and Stepmother various times that 

she wanted to see Child. In May 2014, Mother encountered Father at a gas 

station and was given a phone number to arrange visitation, but Mother’s 

repeated phone calls were not returned. Then, at the end of May 2014, 

Mother unsuccessfully tried to communicate with Child at a baseball 

game. While we do not condone Mother’s behavior at the game—she was 

reportedly irate—we cite this incident to the extent that it put Father on 

notice that Mother was trying to communicate with Child. There were at 

least two other encounters between Mother and Stepmother: one at a 

doctor’s office and the other at Stepmother’s job. The precise timing of 

these encounters is not clear, but we know they occurred in 2014 and it is 

apparent that Mother communicated her desire to see Child at each 

encounter. Both Father and Stepmother knew of their obligation to allow 

Mother to see Child at mutually agreed-upon times, yet they were less 

than cooperative in arranging those meetings.

Stepmother argues that she and Father did not thwart Mother’s ability 

to communicate because it was Child, not her or Father, who did not want 

to communicate. Stepmother’s argument is unpersuasive. Custodial 

parents cannot defer to a child’s decision to forgo communication and 

then claim that they did not technically thwart communication efforts. In 

acquiescing to Child’s whims to not communicate, the custodial parents 

serve as the vehicle to thwart communication. A child is not in a position 

of authority to make that decision on his own and we expect custodial 

parents to instruct children to meet with their non-custodial parents, even 

if, for whatever reason, they are displeased. Accordingly, if the noncustodial parent makes a significant attempt to communicate with Child, a 

custodial parent must take reasonable steps to facilitate that 

communication, regardless of a Child’s desires. By requiring such 
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reasonable steps, we guard against the risk that a custodial parent will 

place undue influence on a child to reject the non-custodial parent’s 

communication as a way to circumvent their obligation to not thwart 

significant communication attempts.

Furthermore, the record indicates that both Father and Stepmother 

contributed to frustrating Mother’s attempts at communication. 

Stepmother admitted that Father “refused to let [Mother] see the child.” 

(Tr. Vol. I at 91–92). Stepmother also admitted that “if [Child didn’t] want 

to then [she was] not going to let him” see his mother. (Tr. Vol. I at 91). 

We cannot allow a custodial-parent to fend off a non-custodial parent’s 

attempts to communicate with her child just long enough to wipe away 

the non-custodial parent’s right to withhold consent to an adoption. 

Accordingly, we also find that Father and Stepmother’s thwarting 

effectively impeded Mother’s ability to communicate with Child.

We make today’s decision cognizant that the statute’s design tries to 

limit an absent parent’s ability to thwart potential adoptive parents’ 

efforts to provide a settled environment, In re Adoption of J.P., 713 N.E.2d 

873, 876 (Ind. Ct. App. 1999), but that is not what is happening here. 

We’re not dealing with a mother who purposefully sought to abandon her 

child. She maintained primary custody of her child for nearly all of his 

life—ten years—when she realized that her life had taken a turn for the 

worst and recognized that continued custody would be detrimental to the 

child’s well-being. She voluntarily agreed to let Father take the “driver’s 

seat” while she focused on recovery, hoping that she may, in the future, 

continue being a meaningful part of her child’s life. She made a tough 

choice; one that was made voluntarily, with the best interest of the child in 

mind, and with no intent to abandon Child.

With today’s decision, Child remains where he should be: in Father’s 

custody. Father and Stepmother’s tremendous work rehabilitating a child 

who undoubtedly suffered the impact of his mother’s addiction does not 

go unnoticed. By all accounts, Child made appreciable and much-needed 

progress while in Father and Stepmother’s care. He is no longer the shy, 

nervous, or skittish boy he once appeared to be. He is happy, excelling in 

school, and has every resource available to ensure his success into young 
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adulthood. Father and Stepmother took excellent care of Child’s needs 

when he needed it most and will continue to be an integral and necessary 

part of Child’s life, providing care in the foreseeable future. Today, we 

merely preserve Mother’s opportunity to reestablish her relationship with 

her child, which we are certain is in the best interest of both child and the 

recovering mother.

Conclusion

In sum, we find that the totality of the circumstances—Mother’s 

struggles with addiction, her willingness to give up custody after ten 

years of caregiving, and her good-faith recovery efforts—justify Mother’s 

failure to communicate with her child during that one-year period. We 

further find that Father and Stepmother’s thwarting of Mother’s 

occasional attempts to communicate with Child, in violation of the agreedupon custody modification order, frustrated Mother’s ability to 

communicate. Accordingly, we hold that Mother’s consent was necessary 

to grant Stepmother’s adoption petition. We reverse the trial court on its 

consent determination and remand for further proceedings.

Rush, C.J., and Goff, J., concur.

Slaughter, J., dissents with separate opinion in which Massa, J., joins.

ATTORNEY FOR APPELLANT

Mark Small

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Ashley M. Dyer

Dyer Law, LLC

Linton, Indiana
Slaughter, Justice, dissenting.

I respectfully dissent from the Court’s decision to grant transfer in this 

contested-adoption case and from its resolution of the merits. 

The Court holds that Mother was justified in not communicating with 

Child for more than a year because (1) Father and Stepmother made it 

impossible for Mother to do so and (2) Mother was preoccupied during

that time as she was recovering from drug dependency and breaking free 

of an abusive relationship. As explained below, I am unable to join the 

Court’s opinion because I believe both its grounds for reversal lack merit. 

On the first issue, there was no clear error below that warrants this 

Court’s reversal. The evidence adduced in the trial court amply supports 

that court’s findings, and its findings amply support its judgment. The 

trial court specifically considered Mother’s allegation that the custodial 

parents were interfering with her access to Child. After considering that 

allegation and competing evidence and weighing witness credibility, the 

trial court found otherwise—a quintessential fact-finding exercise well 

within its prerogative. 

Could the trial court have reached a different conclusion based on the 

evidence it heard? Certainly. But that is the wrong question for a reviewing court to pose. Under the applicable standard of review, it is immaterial 

whether the evidence might have supported the factfinder’s reaching a 

different result. The right question is whether the record entitled the factfinder to reach the result it did. In my view, the Court of Appeals asked 

the right question and, in so doing, got the right answer—that ample 

evidence supports the trial court’s three key findings:

• Mother knew how to communicate with Child.

• Neither Father nor Stepmother denied Child contact with Mother.

• Mother made minimal efforts to communicate with Child for over a 

year.

These findings, in turn, support the trial court’s conclusion that Father and 

Stepmother did not impede communication between Mother and Child.
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Under the controlling statute, Mother’s lack of “justifiable cause to 

communicate significantly with the child” for at least a year “when able to 

do so”, Ind. Code § 31-19-9-8(a)(2)(A), deprived her of the legal right to 

consent to Child’s adoption. That was the trial court’s considered judgment. I would affirm that judgment and not disturb the Court of Appeals’ 

decision upholding it.

On the second issue, the Court sua sponte decides a new question of law 

that Mother did not raise below and thus was never briefed: Does 

attending to personal circumstances to rehabilitate one’s suitability as a 

parent justify the lack of significant communication with one’s child for 

more than a year? There may be good reason for concluding, on an 

adequately developed record and after full briefing by the parties, that the 

answer should be yes. But I would not hold that the trial court abused its 

discretion here based on a legal argument the trial court never heard. 

Because Mother did not present this argument to the trial court, I would 

not afford her relief under it.

For these reasons, I respectfully dissent from the Court’s decision.

Massa, J., concurs.