In Re: The Adoption of D. H., K.W. v. B.H. ( 2019 )

FILED
Oct 17 2019, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Amy Karozos Karen R. Swopes
Greenwood, Indiana Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Adoption of D. H., October 17, 2019
K.W., Court of Appeals Case No.
19A-AD-707
Appellant-Respondent,
Appeal from the Greene Circuit
v. Court
The Honorable Erik Allen, Judge
B.H., Trial Court Cause No.
28C01-1804-AD-9
Appellee-Petitioner.
Tavitas, Judge.
Case Summary
[1] K.W. appeals the entry of a decree of adoption in favor of B.H. (“Stepmother”),
upon a finding that K.W.’s consent was not required for Stepmother’s petition
to adopt K.W.’s minor child, D.H. (the “Child). We reverse and remand.
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Issue
[2] K.W. raises three issues on appeal; however, we address only the following
dispositive question: whether the trial court’s finding that K.W.’s consent was
not required for Stepmother’s adoption of the Child is clearly erroneous.
Facts
[3] K.W. and J.H. (“Father”) are the biological parents of the Child, who was born
in April 2015. 1 K.W. and Father never married, but they lived together for over
one year in Greene County, Indiana. At birth, the Child’s meconium tested
positive for hydrocodone, and K.W. tested positive for opiates and
benzodiazepines. On May 7, 2015, the Greene County Office of the
Department of Family and Children (“DCS”) entered an informal adjustment 2
and assessed K.W. for substance abuse.3 On July 22, 2015, DCS filed a petition
alleging that the Child was a child in need of services (“CHINS”) due to K.W.’s
noncompliance with the informal adjustment. During the pendency of the
1
In addition to the Child, K.W. has three older children who live with her ex-husband, C.B. The three older
children tested positive for opiates and/or narcotics at birth. K.W. has another child, born November 20,
2016, who resides with K.W. and her boyfriend.
2
An informal adjustment is a voluntary program wherein the family of the child(ren) at issue must “maintain
communication with DCS and show that [the family is] willing to work services.” Tr. Vol. I p. 24.
3
K.W. advised her DCS caseworker that hydrocodone and Xanax were prescribed to her during her
pregnancy. Although K.W. was, in fact, prescribed both medications, DCS later determined that one
prescription was written before K.W. was pregnant, and the other prescription was not written with
knowledge of K.W.’s pregnancy.
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CHINS action, K.W. tested “positive for various substances, including THC,
Tramadol, and Hydrocodone.” Appellant’s App. Vol. I p. 16.
[4] K.W. and Father lived together until September 2015, when K.W. moved out
and left the Child with Father following a domestic violence incident. On two
occasions in October 2015, K.W. asked Father to bring the Child to visit K.W.
at work and at her sister’s home, and Father obliged. In the parties’ ensuing
paternity action, “the parties were granted joint legal custody and the father was
awarded primary physical custody, and [K.W.] had parenting time pursuant to
the guidelines with the requirement that her parenting time be supervised [by
the Child’s maternal grandfather].” Id. at 17.
[5] Father and Stepmother began dating in November 2015. 4 On December 16,
2015, the trial court approved Father’s and K.W.’s joint stipulated order
(“Agreement”) regarding custody and parenting time, 5 which provided:
[K.W.] would pick up the child to begin her parenting time and
the father would pick up the child at the end of [K.W.]’s
parenting time, that a review hearing would be conducted to
address child support, and whether any adjustment was
appropriate to [K.W.]’s parenting time.
Id. K.W.’s visits were ordered supervised by maternal grandfather; however,
paternal grandmother began supervising the visits due to concerns about
4
Stepmother moved into Father’s residence in mid-March 2016; they married in March 2018.
5
DCS subsequently dismissed the CHINS action.
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maternal grandfather’s alcohol consumption. The issue of child support was to
be addressed during a subsequent review hearing, but K.W. did not appear;
accordingly, no child support order was entered.
[6] In December 2015, K.W. moved approximately ninety miles away to Johnson
County, Indiana. After K.W. moved, her contact with the Child was sporadic
and inconsistent. 6 K.W. participated in a supervised visit with the Child on
6
K.W.’s contacts with the Child, before the filing of the notice of adoption, were as follows:
• February 2016 – K.W. visited with the Child but arrived late.
• April 2016 – Father invites K.W. to the Child’s birthday party. K.W. testified that she was
present; Father and paternal grandmother testified that K.W. did not attend.
• June 2016 – K.W. and the Child had a supervised park visit.
• September 11, 2016 – K.W. and the Child had a supervised park visit.
• September 15, 2016 – No call, no show by K.W.
• June 23, 2017 – K.W. sends a text to Father to supply her new phone number. Ex. Vol. p. 79.
• June 25, 2017 – K.W. sends a text to Father stating, “Tell [the Child] mom loves her, misses
her, and goodnight please.” Id.
• July 4, 2017 – K.W. sends a text to Father asking, “Did [the Child] have a good 4th of July?” Id.
• July 12, 2017 – K.W. sends a text to Father stating, “tell [the Child] I love her and good night.”
Id. at 80.
• February 3, 2018 – K.W. and the Child engaged in a supervised visit at paternal grandmother’s
home. The Child did not recognize K.W.
• February 25 and 26, 2018 – K.W. sends texts requesting visits with Child. Father responds,
“This weekend is no good[.]” Id. at 92.
• March 14, 2018 – K.W. sends text to Father asking for a weekend visit. Father agrees, but
K.W. cancels, citing car trouble.
• March 18, 2018 – K.W. cancelled the scheduled visit.
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September 11, 2016, and did not again visit with the Child until February 3,
2018. During this period, K.W. appears to have worked to achieve sobriety.
The record reveals that K.W. passed drug screens to secure employment;
maintained gainful employment; secured stable housing; and obtained means of
transportation. Thereafter, K.W. resumed her requests to schedule supervised
visits with the Child. See footnote 6.
[7] On April 2, 2018, Stepmother filed a petition to adopt the Child and alleged
that K.W.’s consent to the adoption was not required: (1) “pursuant to IC 31-
19-9-8(a)(2) because [K.W. had] not financially supported the child in any way
since . . . [K.W.] separated from [Father]”; (2) pursuant to IC 31-19-9-8(a)(2)
because [K.W.] [ ] had only one contact with the child since September 11,
2016”; and (3) “pursuant to IC 31-19-9-8(a)(1) and IC 31-19-9-8(b) because
[K.W.] [ ] abandoned or deserted the child for at least six (6) months
immediately preceding the date of the filing of [the adoption] petition.” Id. at.
29. Stepmother further alleged that K.W. was “unfit” to parent the Child and
that “the best interest of the child would be served if the Court dispensed with
[K.W.]’s consent[.]” Id.
• March 28, 2018 – K.W. sends a text to Father asking for a weekend visit. Father responds that
the family has other plans.
• April 1, 2018 – K.W. sends a text to Father asking to schedule a visit. Father responds, “I’ll let
y[ou] know.” Id. at 109.
• April 2, 2018 – Stepmother files petition to adopt the Child.
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[8] On April 12, 2018, K.W. filed an objection to the petition for adoption wherein
she alleged that her efforts to achieve sobriety provided justifiable cause for her
failure to maintain significant contact with the Child. Id. at. 34. The trial court
conducted a hearing on the issue of the necessity of K.W.’s consent on
September 10 and October 17, 2018.
[9] At the hearing, K.W. testified to the foregoing facts. Father testified that
“[K.W.] has never ever called my phone ever, the only thing [he] ever received
from [K.W.] is text messages telling [him] to tell [the Child] that [K.W.] loved
[the Child] . . . .” Tr. Vol. II p. 85. Father testified further that K.W. has
“[n]ever” telephoned the Child. Id. Father and Stepmother testified that the
Child is closely-bonded with Stepmother, regards Stepmother as her “mom,”
and lacks a comparable bond with K.W. Id. at 59. Father also testified that he
denied K.W. parenting time after the April 2018 filing of the adoption petition.
[10] The trial court issued findings of fact and conclusions of law on February 1,
2019, and found that K.W.: (1) provided no meaningful support for the child
from 2016 through the filing of the petition for adoption on April 2, 2018; (2)
“abandoned or deserted” the Child; and (3) lacked justifiable cause for her lack
of communication with the Child. Id. at 20-21. The trial court, thus, concluded
that K.W.’s consent was not required for Stepmother’s adoption of the Child.
The decree of adoption was entered on March 12, 2019. K.W. now appeals.
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Analysis
[11] K.W. challenges the trial court’s finding that her consent was not required for
Stepmother’s adoption of the Child. In her brief, K.W. argues:
[K.W.] agreed to relinquish physical custody. . . at a time when
[K.W.] was addicted to opiates. The agreement [provided] that
K.W. would not pay support and included [ ] supervised
visitation. K.W. struggled and succeeded in getting her life back
together, and when she had been drug free for two years, and had
a full-time job, she asked for regular visits. It was only at this
point, that Father and [Stepmother] filed a Petition for Adoption
alleging K.W. had abandoned the[ ] child and that her consent
was not needed for the adoption.
K.W.’s Br. p. 16.
[12] When reviewing adoption proceedings, we presume that the trial
court’s decision is correct, and the appellant bears the 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.
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In re Adoption of O.R., 16 N.E.3d 965, 972-73 (Ind. 2014) (citations and
quotations omitted). When the trial court makes findings of fact and
conclusions of law, we apply a two-tiered standard of review: “we [ ] first
determine whether the evidence supports the findings and second, whether the
findings support the judgment.” In re T.L., 4 N.E.3d 658, 662 (Ind. 2014).
Factual findings “are clearly erroneous if the record lacks any evidence or
reasonable inferences to support them [and] . . . a judgment is clearly erroneous
when it is unsupported by the findings of fact and the conclusions relying on
those findings.” Id. (internal quotation omitted).
[13] The purpose of our adoption statutes is to protect and promote the welfare of
children by providing them with stable family units. In re Adoption of K.F., 935
N.E.2d 282, 289 (Ind. Ct. App. 2010), trans denied. The relationship between
parent and child is of such fundamental importance that adoption statutes,
being in derogation of the common law, are “strictly construed in favor of a
worthy parent and the preservation of such relationship.” Id. In evaluating the
parent-child relationship, however, the best interest of the child is paramount,
and “our main concern should lie with the effect of the adoption on the reality
of the minor child’s life.” Id.[14] As to biological parents, we have opined that “[t]he most protected status in
any adoption proceeding is that of the natural parent. Recognizing the
fundamental importance of the parent-child relationship, our courts have
strictly construed the adoption statute to preserve that relationship.” In re
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Adoption of N.W., 933 N.E.2d 909, 913 (Ind. Ct. App. 2010) (citation omitted),
adopted by 941 N.E.2d 1042 (Ind. 2011).
[15] Generally, a parent’s consent to adoption of a child under the age of eighteen is
required. Ind. Code § 31-19-9-1. Indiana Code Section 31-19-9-8 enumerates
circumstances under which a trial court may dispense with the consent of an
absent parent in order to grant a potential adoptive parent’s petition to adopt.
Our Supreme Court has stated that “the statute’s design tries to limit an absent
parent’s ability to thwart potential adoptive parents’ efforts to provide a settled
environment[,]” where that absent parent has previously “purposefully sought
to abandon her child.” In re Adoption of E.B.F. v. D.F., 93 N.E.3d 759, 767 (Ind.
2018).
[16] Pursuant to Indiana Code Section 31-19-9-8(a), consent to adoption is not
required, inter alia, from:
(1) A parent or parents if the child is adjudged to have been
abandoned or deserted for at least six (6) months immediately
preceding the date of the filing of the petition for adoption.
(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
(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.
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*****
I.C. § 31-19-9-8 (emphasis added). Indiana Code Section 31-19-9-8(b) further
provides that “[i]f a parent has made only token efforts to support or to
communicate with the child[,] the court may declare the child abandoned . . . .”
[17] The consent analysis in this case pertained to a drug-addicted, absentee parent.
We cannot overstate the ravaging effects of drug addiction on families and
children in Indiana. As our Supreme Court has stated, “[T]he destructive
tentacles of the substance abuse epidemic continue to reach every corner of our
State, [and] Hoosier parents ravaged by addiction—particularly victims of
opioid dependency—face difficult decisions to safeguard their children’s
welfare.” E.B.F., 93 N.E.3d at 760. Drug-addicted parents confront a double-
edged sword—they can either: (1) retain custody of their child(ren) and,
thereby, risk exposing the child(ren) to unsafe and unstable environments,
inadequate supervision, and conditions in which the child(ren)’s basic needs
may not be met; or (2) relinquish custody in concern for the child(ren)’s well-
being and, thereby, risk the possibility of being deemed an absent parent who
has abandoned the child(ren).
[18] In E.B.F., our Supreme Court seized a timely “opportunity to do the right thing
as to th[e] particular mother and child [at issue in that case], while also
providing [ ] additional instruction on justifiable cause.” Id. at 764. The
mother in E.B.F., who was battling addiction and domestic violence at the
father’s hand, agreed to relinquish primary physical custody of the child to the
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father. Id. at 761. The mother retained joint legal custody with supervised
visits, and no child support obligation was imposed due to her indigency.
Subsequently, for a period exceeding one year, the mother failed to make
significant contacts with the child as she worked toward sobriety. The child’s
stepmother then filed a petition for adoption, which the trial court granted upon
a finding that the mother’s consent was not necessary for the grant of the
adoption petition.
[19] In reversing the trial court, our Supreme Court found:
Although Mother failed to have significant communication with
[the 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.[ 7]
Id. at 763. Our Supreme Court acknowledged that the mother’s contact with
the child was “not significant” after Christmas 2013 and the stepmother’s
August 2015 filing of her adoption petition, but found that “a single significant
communication within one year is sufficient to preserve a non-custodial parent’s
right to consent to the adoption.” Id. at 763.
7
The E.B.F. Court also found that the 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.” Id.
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[20] Additionally, the E.B.F. Court considered whether, “despite [the mother’s]
failure to communicate significantly with [the child] during a one-year period,
the mother had justifiable cause to forgo communication” and concluded that
justifiable cause existed under the unique facts and circumstances of the case.
Id. at 764. As evidence of justifiable cause, the Supreme Court first cited the
mother’s voluntary relinquishment of custody “after recognizing the harm that
her personal problems were having on her son.” Id. at 765 (“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.”). The E.B.F. Court
further cited the mother’s “good-faith effort at recovery during the period that
she failed to communicate with Child” and stated:
. . . 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 . . . . [M]other ended her abusive
relationship, found a job, and secured adequate housing . . . . 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 [the 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 [the
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
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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 [the child] during that one-year period.
Id. at 765. We find that such is the case here.
[21] The trial court found, on three bases, that K.W.’s consent was not required for
Stepmother’s adoption of the Child. We address E.B.F.’s applicability to each
of these bases.
I. Abandonment
[22] First, the trial court found that K.W.’s consent was unnecessary for
Stepmother’s adoption of the Child because K.W. abandoned or deserted the
Child. Pursuant to Indiana Code Section 31-19-9-8(a), consent to adoption is
not required from “[a] parent or parents if the child is adjudged to have been
abandoned or deserted for at least six (6) months immediately preceding the
date of the filing of the petition for adoption.” I.C. § 31-19-9-8(a)(1).
[23] With respect to abandonment, the trial court’s pertinent findings are as follows:
25. Pursuant to I.C. 31-19-9-8(a)(1), consent to adoption is not
required from a parent or parents if the child is adjudged to have
been abandoned or deserted for at least 6 months immediately
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preceding the date of filing the petition for adoption. Further,
pursuant to I.C. 31-19-9-8(b), if a parent has made only token
efforts to support the child the Court may declare the child
abandoned by the parent. The petition for adoption was filed on
April 2, 2018. In the 6 months preceding the filing of the petition
for adoption, [K.W.] sent the father a text on January 23, 2018
and asked if the father needed anything for the child and he
declined, and on [K.W.]’s only visit on February 3, 2018 (only
visit since [K.W.] visited the child on September 11, 2016), she
brought the child a small stuffed toy. [K.W.] was late to this visit
and the child did not know who she was, and the child elected to
call her [K.] instead of mom. On March 17, 2018, [K.W.]
cancelled her visit scheduled for March 18, 2018. [K.W.] only
had one visit with the child and did not actually provide any
meaningful support for the child for the 6 months immediately
preceding the filing of the petition; therefore, the Court concludes
that [K.W.] abandoned or deserted the child.
Appellant’s App. Vol. II p. 20.
[24] The record reveals the following: first, K.W. testified that she never intended to
abandon the Child, and the circumstances of K.W.’s breakup with Father tend
to support K.W.’s claim that she did not intend to abandon the Child. K.W.
testified that she left Father after Father “picked up [the Child’]s formula can
and threw it at [K.W.’s] head full force and busted [K.W.’s] head open” in an
argument over K.W.’s drug abuse. Tr. Vol. II p. 166. K.W. testified that she
attempted to take the Child with her when she left Father; and, that when
Father prevented her from doing so, she enlisted assistance from the police,
who declined to intervene.
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[25] Further, K.W.’s visitation record with the Child, though admittedly sparse,
indicates that she did not intend to abandon the Child. The record reveals that,
after K.W. left Father in September 2015, Father brought the Child—at K.W.’s
request—to visit K.W. on two occasions in October 2015. In the same vein,
K.W.’s text messages to Father, in which K.W. stated she missed the Child and
asked Father to tell the Child that K.W. loved the Child, indicate K.W.’s
intention to maintain a connection with the child. Based on E.B.F., we
conclude that the trial court’s finding that K.W. abandoned or deserted the
Child is clearly erroneous.
II. Failure to Communicate
[26] Next, the trial court found that K.W.’s consent was unnecessary for
Stepmother’s adoption of the Child because of K.W.’s failure to communicate
significantly with the Child. Indiana Code Section 31-19-9-8(a) provides that
consent to adoption is not required from: “A parent of a child in the custody of
another person if for a period of at least one (1) year the parent . . . fails without
justifiable cause to communicate significantly with the child when able to do so
. . . .” I.C. § 31-19-9-8(a)(2)(A).
[27] The trial court’s pertinent findings were as follows:
26. Pursuant to I.C. 31-19-9-8(a)(2)(A), consent to adoption is
not required from a parent of a child in the custody of another
person if, for a period of at least one year, the parent fails without
justifiable cause to communicate significantly with the child
when able to do so. After the mother’s visit on September 11,
2016, the mother did not call, video chat, or in any way directly
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communicate with the child until she next visited on February 3,
2018, and there is no credible evidence that the mother made any
effort to communicate with the child that was thwarted by the
father or anyone else. The mother did not send the father any
texts or otherwise communicate with him in any way between
October 2016 and June 2017. The mother sent a few texts to the
father in June and July 2017, but then did not again
communicate with him until December 2017. These messages to
the father were not significant communications and were not
communications with the child. The evidence is clear that the
mother did not have any communication with the child between
September 11, 2016 and February 3, 2018, and did not have
significant communication with the child from the lone visit on
February 3, 2018 through the date the petition for adoption was
filed.
The Court concludes the mother’s lack of communication with
the child was without justifiable cause. The mother in part
claims a lack of transportation and, although this may have merit
for a relatively short period of time, this claim does not have
merit based upon the distance between the mother’s community
of residence and the child’s community of residence, and the
period of time that the mother had no communication of any
nature with the child. The mother elected to move
approximately 75 miles from the child and to remain in that
location. Further, the evidence shows that the mother did not
communicate to the father that transportation was an issue until
December 2017.
The mother’s claim of rehab being a basis for not communicating
with the child is also without merit. In addition to this being
contrary to the statements in the mother’s text messages to the
father prior to the filing of the petition for adoption, the mother
only attended five meetings between December 23, 2015 and
January 19, 2016, and the mother was discharged from rehab for
non-compliance. The mother continued to have some visits with
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the child after she was discharged from rehab in 2016 until her
last visit on September 11, 2016.
The mother also claims that the father thwarted her efforts to
communicate with the child. At the most basic level, there is no
evidence that the mother made any significant effort to
communicate with the father or the child between September 11,
2016 and February 3, 2018, therefore, the father cannot thwart an
effort that is not made. Further, the mother’s few
communications to the father indicate it is her circumstances and
life choices that caused her to not communicate, and
acknowledged in a text in December 2017 that “. . . I did not say
it was your fault.” The father’s text responses in December 2017
or January 2018, indicate his willingness to allow the mother to
visit and communicate with the child if she will follow through,
and his frustration with her failure to communicate with the child
for an extended time. The father’s willingness to allow the
mother to visit with the child is corroborated by the mother
having a visit on February 3, 2018, and scheduling another visit
on March 18, 2018, which the mother cancelled the day prior to
the scheduled visit. The Court finds no merit or credibility to any
of the mother’s claims of justifiable cause for not communicating
with the child.
Appellant’s App. Vol. II p. 21.
[28] We find that the instant case is factually akin to E.B.F. with respect to the
acuteness of K.W.’s addiction, K.W.’s reasons for moving away, and the
resulting justifiable cause analysis. Regarding her reasons for moving nearly
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two hours away from the Child, K.W. testified that she was acutely 8 addicted to
narcotics and opiates from 2008 to 2015, after becoming dependent on
medications initially prescribed by a dentist. K.W. testified that “[she] left town
to get [her] life together”—namely, to get sober; for distance from family
members who were abusing drugs and alcohol; to secure employment and
stable housing; and to mend her finances. Id. at 123.
[29] When counsel for Father asked K.W. why she failed to consistently visit and
engage with the Child, K.W. testified, “[her] drug problem was not the only
aspect of [her] life that was bad”; “[i]t takes much more than [drug]
rehab[ilitation] to overcome a drug problem . . . it is something that takes time”;
“[d]rug wise yes, [she] was okay [and] knew that [she] was never going to use
again, but in other areas of [her] life financially especially [she] was not in a
good position.” Id. at 147. The following colloquy ensued:
Q: . . . [I]f you don’t show up, if you don’t have contact with
[the Child] or your contacts are so sporadic, do you understand
that affects [the Child]?
A: . . .[I]t affects the child to have an unstable mother in their
life, someone that was addicted to drugs and that was not
financially stable, had no vehicle,[ 9]that is not good for a child.
8
K.W. testified that she routinely lied about her drug use. Father testified that K.W. “stole” prescription
medications from him and hid and locked herself in rooms to crush and “snort[ ] pills.” Tr. Vol. II pp. 231,
234.
9
K.W. also testified that she was without transportation from September 2016 to December 2017.
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Id. at 157. K.W. testified further, “I wanted to be in a good place like I am
today before I attempted to be in her life.” Id. at 153.
[30] First, here—as in E.B.F.—although K.W.’s contacts with the Child were
inconsistent and sporadic prior to the April 2018 filing of the adoption petition,
we find that the February 13, 2018 visit, coupled with K.W.’s other contacts, 10
suffices for purposes of preserving K.W.’s right to consent to the adoption. As
the E.B.F. Court found:
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.
Even multiple and relatively consistent contacts may not be
found significant in context. But a single significant
communication within one year is sufficient to preserve a non-
custodial parent’s right to consent to the adoption.
93 N.E.3d at 763.
[31] Next, we find that, based on E.B.F., K.W.’s efforts to achieve sobriety supply
justifiable cause for her failure to maintain significant contact for over one year.
The record reveals that, at the time of the evidentiary hearing, K.W. testified
that her addiction issue was “under control” and she had “gotten [her] life
together[;] that is what has changed.” Id. at 142, 171. K.W. testified that “[she]
ha[d] been clean for almost three years”; that “[she] was drug tested a couple of
10
See footnote 6.
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weeks” before the evidentiary hearing amid court proceedings relating to her
three oldest children; and that she “would always, always be willing to take any
drug test.” Id. at 152, 153.
[32] K.W. testified further that she: (1) is gainfully employed with a perfect
attendance work history spanning two and one-half years, has passed periodic
drug screens at work, and earned workplace accolades; (2) has begun to
establish a consistent record of visitation with her three oldest children, as
corroborated by her ex-husband C.B.’s testimony, pays court-ordered child
support and health insurance and has progressed from supervised visits to
partially-unsupervised visits with the three oldest children; (3) has secured
reliable means of transportation; (4) has not been arrested or convicted of a
criminal offense; and (5) successfully passed a DCS home inspection and drug
test following the birth of her youngest child (born on November 20, 2016).
[33] Guided by E.B.F., we find, under the totality of the circumstances that K.W.’s:
(1) progress toward achieving sobriety after seven years of acute drug
dependency; (2) employment record; (3) stable home environment; (4) lack of
contacts with law enforcement; (5) favorable assessment from DCS regarding
her youngest child; and (6) record of consistently visiting and paying child
support for her other three children, provide justifiable cause for her failure to
communicate with the Child for a time exceeding one year, such that it was
clear error to dispense with her consent for purposes of Stepmother’s adoption
petition.
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III. Failure to Support
[34] Lastly, the trial court found that K.W.’s consent was not necessary for
Stepmother’s adoption of the Child because K.W. failed to support the Child.
Indiana Code Section 31-19-9-8(a) provides that consent to adoption is not
required from “[a] parent of a child in the custody of another person if for a
period of at least one (1) year the parent . . . knowingly fails to provide for the
care and support of the child when able to do so as required by law or judicial
decree.” I.C. § 31-19-9-8(a)(2)(B).
[35] The trial court’s pertinent findings are as follows:
24. Pursuant to I.C. 31-19-9-8(a)(2)(B), consent to adoption is not
required from a parent of a child in custody of another person if,
for a period of at least one year, the parent knowingly fails to
provide for the care and support of the child when able to do so
as required by law or judicial decree. Every parent has a legal
duty to support their child. The lack of a Court order to pay
support did not relieve the mother from her obligation to provide
support for the child when she had the ability to do so. The
evidence is clear that the mother’s income, along with the
contribution to household expenses from her significant other,
was sufficient to provide some meaningful support for the child
during 2016, 2017, and 2018. The mother provided no
meaningful support for the child from 2016 through the date the
petition for adoption was filed on April 2, 2018, and beyond.
Appellant’s App. Vol. II p. 20. Here, K.W. testified, and Father confirmed in
his testimony, not only that no child support order was in effect, but also that
K.W. offered financial assistance that was refused by Father. See Tr. Vol. II p.
117. We disagree with the trial court that K.W.’s failure to provide support for
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the Child justifies dispensing with her consent for purposes of Stepmother’s
adoption petition. Based on E.B.F., this finding is clearly erroneous.
IV. Summary
[36] Further, we note that we would be hard-pressed, in the context of a proceeding
for termination of parental rights, to proceed to termination of K.W.’s parental
rights here, given the progress she displayed regarding the conditions that led to
the Child’s removal from her care. 11
[37] To be clear, this opinion does not foreclose the possibility of Stepmother’s
adoption of the Child in the future, but the statutes dispensing with K.W.’s
consent do not apply at this time. Father and Stepmother remain the pillars in
the Child’s life, having supplied day-to-day care, support, and guidance in the
Child’s formative years when K.W. was absent. To echo the E.B.F. Court:
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. * * * * * 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.
11
As discussed above, K.W. demonstrated progress on the various fronts: (1) achieving sobriety after seven
years of acute drug dependency; (2) maintaining a record of consistent employment; (3) establishing a stable
home environment; (4) lacking contacts with law enforcement; (5) obtaining a favorable assessment from
DCS regarding her youngest child; and (6) visiting and paying child support for her other three children
consistently.
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E.B.F., 93 N.E.3d at 767. As in E.B.F., we intervene here “merely [to] preserve
[K.W.]’s opportunity to reestablish her relationship” with the Child. Id. We
commend Father for stating, at the evidentiary hearing that, if Stepmother’s
adoption was not granted, he would “never” bar K.W. from exercising her
parenting time with the Child. See Tr. Vol. III p. 3. We believe this to be in the
best interest of the Child. See E.B.F., 93 N.E.3d at 767 (finding, under the
totality of the circumstances, that “we are certain [it] is in the best interest of
both child and the recovering mother” to allow the mother an opportunity to
reestablish her relationship with the child).
[38] Under the unique facts and circumstances of this case, we reverse the trial
court’s finding that K.W.’s consent is not required for Stepmother’s adoption of
the Child. We remand with instructions to vacate the entry of the adoption
decree. 12
Conclusion
[39] Based upon E.B.F., K.W.’s consent was necessary to grant Stepmother’s
adoption petition. We reverse the trial court’s consent determination and entry
of the adoption decree. We reverse and remand with instructions.
[40] Reversed and remanded.
12
In light of our reversal of the trial court’s consent determination, we do not reach the merits of K.W.’s
claims that she was denied due process and that adoption is not in the Child’s best interests.
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Brown, J., and Altice, J., concur.
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