In re Adoption of E.B.F., J.W. v. D.F., 2017 Ind. App. LEXIS 291

Background

Child born 2003 to Mother (J.W.) and Father; Mother was primary physical custodian until 2013.
December 2013 custody order gave Father primary physical custody; Mother’s parenting time to be mutually agreed.
Mother had minimal contact with Child between Dec 25, 2013 and Jan 2, 2015 (period before adoption petition); she struggled with substance abuse and an abusive relationship but later stabilized.
Step‑Mother filed a contested adoption petition on Jan 2, 2015; trial court held consent not required and later found adoption in Child’s best interest.
Trial court found Mother made only minimal efforts to contact Child, had means to communicate, and was not actually prevented from contacting Child; court concluded Mother failed without justifiable cause to communicate significantly for one year.

Issues

Issue	Petitioner (Step‑Mother) Argument	Respondent (Mother) Argument	Held
Whether Mother’s consent is excused because she failed without justifiable cause to communicate significantly with Child for at least one year	Mother had minimal, insignificant contacts during the statutory year, knew means to reach Child, and was not prevented from communicating	Mother had hardships (substance abuse, abusive marriage) and alleges father/step‑mother thwarted communication; also points to long prior custody as mitigating	Court held Step‑Mother proved by clear and convincing evidence Mother failed without justifiable cause to communicate significantly for one year, so Mother’s consent not required
Whether incidental or fleeting encounters count as a "significant communication" to defeat adoption	Such chance or brief encounters do not qualify as significant communications	Mother argued certain encounters (e.g., baseball field incident) were significant	Court held those contacts were insubstantial; one incident resembled an attempted grab and was not a significant communication
Whether alleged obstruction by Father/Step‑Mother excused Mother’s lack of contact	No evidence that Mother actually attempted significant communication and was then thwarted; statements by Step‑Mother referred to period after the statutory year	Mother argued she was prevented and that third‑party contacts (e.g., Grandmother) showed interference	Court held Mother failed to show she made significant attempts that were actively blocked during the statutory year; any later refusal to allow visits did not excuse earlier minimal efforts
Whether a prior lengthy period of custody overcomes a subsequent one‑year statutory failure to communicate	The statutory one‑year inquiry focuses on the year immediately preceding the petition; past custody does not automatically excuse a recent one‑year lapse	Mother argued ten years as sole custodian should preclude finding consent unnecessary based on one year of poor contact	Court held past long‑term custody does not negate the statute’s one‑year requirement; deterioration immediately before the petition is dispositive

Key Cases Cited

In re Adoption of S.W., 979 N.E.2d 633 (Ind. Ct. App. 2012) (clarifies burden and standards after 2003 statutory amendments)
In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999) (statute aims to foster and maintain parent‑child communication; context‑specific significance inquiry)
In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 1990) (one significant communication in a year can be sufficient to defeat nonconsensual adoption)
In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (noncustodial parent must investigate reasonable means to communicate)
Rust v. Lawson, 714 N.E.2d 769 (Ind. Ct. App. 1999) (statutory inquiry is highly fact‑ and context‑specific)
In re Adoption of T.W., 859 N.E.2d 1215 (Ind. Ct. App. 2006) (no futility exception; speculative assertions that overtures would have been impeded insufficient)
E.W. v. J.W., 20 N.E.3d 889 (Ind. Ct. App. 2014) (evidence of custodial parent’s refusal to permit contact can be weighed in noncustodial parent’s favor when supported by attempts to communicate)