Court of Appeals of Indiana | Opinion 20A-AD-1241 | December 9, 2020 Page 1 of 10

ATTORNEY FOR APPELLANT

James A. McEntarfer

McEntarfer Law Office

Angola, Indiana

ATTORNEY FOR APPELLEE

Marylyn K. L. Ernsberger, Esq.

Ernsberger & Helmer, P.C.

Angola, Indiana

IN THE

COURT OF APPEALS OF INDIANA

M.M.,

Appellant-Respondent,

v.

A.C.,

Appellee-Petitioner

December 9, 2020

Court of Appeals Case No.

20A-AD-1241

Appeal from the Steuben Circuit 

Court

The Honorable Allen N. Wheat, 

Judge

Trial Court Cause Nos.

76C01-1911-AD-019

76C01-1911-AD-020

May, Judge.

[1] M.M. (“Mother”) appeals the trial court’s grant of petitions from A.C. 

(“Stepmother”) to adopt L.E. and I.E. (collectively, “Children”). Mother 

presents two issues for our review, which we consolidate and restate as whether 

Stepmother presented sufficient evidence to prove Mother was able to 

communicate with Children. We affirm.
Court of Appeals of Indiana | Opinion 20A-AD-1241 | December 9, 2020 Page 2 of 10

Facts and Procedural History

[2] Mother and N.E. (“Father”) divorced on August 14, 2015. Two children had 

been born of the marriage – I.E., born December 19, 2012, and L.E., born 

November 27, 2013. At the time of dissolution, the trial court awarded Father 

sole physical and legal custody and granted Mother parenting time. Children 

have been in Father’s care since the dissolution.

[3] Father married Stepmother on January 3, 2017. Mother has a substance abuse 

problem and mental health issues, and she attempted rehabilitation on multiple 

occasions. On November 8, 2019, Stepmother filed petitions to adopt Children. 

At a pretrial conference on January 8, 2020, Mother objected to the adoptions, 

and the trial court appointed her counsel.

[4] On June 1, 2020, the trial court held a hearing on Stepmother’s petitions for 

adoption. Mother did not attend the hearing, but her counsel was present. 

Stepmother presented evidence that Mother had not communicated with 

Children since Easter 2016 and that Stepmother and Father had not prohibited 

Mother from visiting Children. On June 4, 2020, the trial court entered orders 

granting Stepmother’s petitions to adopt Children.

Discussion and Decision

[5] Our standard of review for adoption determinations is well-settled:

“When reviewing adoption proceedings, we presume that the 

trial court’s decision is correct, and the appellant bears the 
Court of Appeals of Indiana | Opinion 20A-AD-1241 | December 9, 2020 Page 3 of 10

burden of rebutting this presumption.” We generally give 

considerable deference to the trial court’s decision in family law 

matters, 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.” We will not disturb the 

trial court’s ruling “unless the evidence leads to but one 

conclusion and the trial judge reached an opposite conclusion.” 

The trial court’s findings and judgment will be set aside only if 

they are clearly erroneous. “A judgment is clearly erroneous 

when there is no evidence supporting the findings or the findings 

fail to support the judgment.” “We will neither reweigh the 

evidence nor assess the credibility of witnesses, and we will 

examine only the evidence most favorable to the trial court’s 

decision.”

In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations omitted). 

Mother does not challenge any specific findings of the trial court, so we must 

accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) 

(“Because Madlem does not challenge the findings of the trial court, they must 

be accepted as correct.”).

[6] Generally, a trial court may grant a petition for adoption only if both the 

mother and father of the child consent. Ind. Code § 31-19-9-1(a)(2). However, 

Ind. Code § 31-19-9-8 provides consent to an adoption is not required from:

(2) A parent of a child in the custody of another person if for a 

period of at least one (1) year the parent:

(A) fails without justifiable cause to communicate 

significantly with the child when able to do so; or
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(B) knowingly fails to provide for the care and support of 

the child when able to do so as required by law or judicial 

decree.

[7] Regarding the level of Mother’s communication with Children, the trial court 

found and concluded:

A. FINDINGS OF FACT

* * * * *

19. [Mother] has had no personal contact with [L.E.], or 

attempted any other manner of communication with [L.E.], since 

Easter of 2016.

20. [Stepmother] has in no manner prevented [Mother] from 

contacting [L.E.]. 

* * * * *

B. CONCLUSIONS OF LAW

* * * * *

4. The Court concludes that [Stepmother] has proven by clear 

and convincing evidence that [Mother] without good cause has 

failed to communicate significantly with [L.E.] for a period of at 

least one (1) year.

5. There were no in-person visits. There was no written 

correspondence. There was no telephonic communication. 
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There was no electronic correspondence. There simply was no 

attempt by [Mother] to communicate with [L.E.] by any means.

(Appellant’s L.E.

1 App. Vol. II at 16-18) (formatting in original). While Mother 

does not deny that she did not communicate significantly with Children, 

Mother contends Stepmother did not present sufficient evidence that Mother 

was able to communicate significantly with Children.

[8] Mother likens the facts here to those in In re the Adoption of E.B.F., 93 N.E.3d 

759 (Ind. 2018). In E.B.F., the trial court granted the stepmother’s petition to 

adopt E.B.F. based, in part, on the mother’s failure to significantly 

communicate with the child without justifiable cause. Id. at 761. The child was 

born out of wedlock to the mother and the father, and the mother retained 

primary custody of the child for the first ten years of the child’s life. Id. Two 

years after the child’s birth, the father married the stepmother. Id. In 

November 2013, the mother and the father entered an agreed entry wherein 

mother relinquished physical custody to father because mother was struggling 

with substance abuse and an abusive relationship. Id.

[9] The mother saw E.B.F. on December 25, 2013, and “had no further meaningful 

contact with [E.B.F.] after that date.” Id. On January 2, 2015, the stepmother 

filed a petition to adopt E.B.F. and mother appeared in court to indicate she did 

1 There are two Appellant’s appendices, one for each child. The trial court issued orders for each child as 

well, and the relevant language is identical. We will quote from the order regarding L.E. unless otherwise 

specified.
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not consent to E.B.F.’s adoption. Id. at 762. The mother attended the two factfinding hearings regarding whether the mother’s consent was required for 

E.B.F.’s adoption. On November 25, 2015, the trial court issued an order 

concluding that mother’s consent was not required because the stepmother had 

“proven by clear, cogent, and indubitable evidence . . . mother . . . failed . . . to 

communicate significantly with the child for at least one year[.]” Id. (quoting 

record). On February 2, 2017, the trial court granted stepmother’s petition to 

adopt E.B.F. and the mother subsequently appealed. Id.

[10] Our Indiana Supreme Court granted transfer and considered the issue of 

whether the mother failed to significantly communicate with E.B.F. without 

justifiable cause. Id. at 763. The parties agreed, and our Indiana Supreme 

Court held, that mother did not communicate significantly with child during 

the relevant time period. Id. However, when examining the totality of the 

circumstances, our Indiana Supreme Court held that mother’s consent was 

required for E.B.F.’s adoption because “the case at bar illustrates a noncustodial parent’s justifiable cause to not communicate with her child.” Id. at 

765. To support its holding, the Court noted:

First, we highlight that Mother chose to relinquish custody on

[sic] 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
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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 

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 
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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.

Id. The Court also noted that the father and stepmother thwarted 

communication between mother and E.B.F. during the relevant time. Id.

[11] Mother contends the holding in E.B.F. supports her argument that “the trial 

court’s findings of Biological Mother having been for many years being [sic] 

plagued with being addicted to drug, reflect a justifiable cause for Biological 

Mother’s failure to communicate with [Children].” (Br. of Appellant at 14.) 

Mother’s addiction to drugs is the only similarity between the facts here and 

those in E.B.F. First, Mother did not attend the adoption hearing; the mother 

in E.B.F. attended all relevant hearings. Following the dissolution, Mother 

never had sole, primary custody of Children; the mother in E.B.F. had primary 

custody of E.B.F. for ten years. Stepmother presented evidence that Mother 

was “in and out of rehab and doesn’t stay there, very long.” (Tr. Vol. II at 15.) 

Mother admits in her brief that she “still has addiction and drug problems[.]” 
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(Br. of Appellant at 14.) In contrast, the mother in E.B.F. entered and 

successfully completed a drug rehabilitation program during the year she did 

not significantly communicate with E.B.F. Finally, here Stepmother testified 

that she was not “prohibiting [Mother] to be able to see the children . . . [or] 

any contact or phone calls . . with the children[.]” (Tr. Vol. II at 17.) E.B.F. 

does not control here.

[12] Stepmother presented evidence that Mother last saw Children on Easter 2016, 

and had not called, visited, or sent birthday or holiday cards or presents since 

that time. Stepmother testified that she and Father allowed Children to visit 

with their Maternal Grandmother, but Mother did not visit with Children at 

those times. Stepmother testified that she and Father were not prohibiting 

communication between Mother and Children. Based thereon, we conclude 

Stepmother presented sufficient evidence to prove that Mother failed without 

justifiable cause to communicate significantly with Children.2

 See In re Adoption 

of S.W., 979 N.E.2d 633, 641 (Ind. Ct. App. 2012) (father’s consent for child’s 

2 Mother’s argument makes much ado about whether Stepmother proved Mother was able to communicate 

with Children. Mother’s argument puts form before substance, as the case she relies upon equates “justifiable 

cause” with “ability to communicate.” See E.B.F., 93 N.E.3d at 767 (“[T]he totality of the circumstances . . . 

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 

agreed-upon custody modification order, frustrated Mother’s ability to communicate.”) (emphasis added). 

Further, Mother argues the trial court erred when it did not conclude that she was able to communicate with 

Children in its order. However, she did not cite any case law indicating that such language was a 

requirement, and thus that issue is waived. See Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 

52, 55 n.1 (Ind. Ct. App. 2002) (failure to present cogent argument on appeal can result in waiver of issue). 

We can see no other conclusion to be made from the evidence presented, and Mother has not demonstrated 

the trial court erred.
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adoption not required based on father’s failure without justifiable cause to 

communicate significantly with child during relevant time frame). 

Conclusion

[13] Stepmother presented sufficient evidence to prove Mother failed without

justifiable cause to communicate with Children during the relevant time period.

Therefore, Mother’s consent was not required for Stepmother’s adoption of

Children. Accordingly, we affirm the judgment of the trial court.

[14] Affirmed.

Kirsch, J. and Bradford, C.J., concur.