Divided Supreme Court: Mother was justified in not communicating with child for a year

Despite her failure to significantly communicate with her child for a one-year period, a Greene County mother’s consent to the child’s adoption was required because she spent that year working toward recovery from a drug addiction, a majority of Indiana Supreme Court justices have ruled.

After ending her relationship with M.F., J.W. retained primary physical custody of their child, E.B.F., for 10 years. But when J.W. developed a drug addiction and became unemployed, she willingly gave M.F. primary custody of 10-year-old E.B.F. in 2013 while retaining joint legal custody and parenting time privileges.

Though she spent time with E.B.F. on Christmas Day 2013, she failed to have any meaningful contact with the child during the following one-year period. During that year, J.W. left her abusive boyfriend, found a job and housing and undertook drug dependency recovery efforts, but because of her limited contact with E.B.F., M.F.’s new wife, D.F., filed for adoption of the child in early 2015.

J.W. did not consent to the adoption, but the Greene Circuit Court granted D.F.’s petition after finding J.W.’s failure to communicate with E.B.F. meant her consent was not required. The Indiana Court of Appeals affirmed the trial court’s ruling in July, but a majority of the Indiana Supreme Court reversed after granting transfer to In re the Adoption of E.B.F., J.W. v. D.F., 18S-AD-167.

Justice Steven David — writing for the majority joined by Chief Justice Loretta Rush and Justice Christopher Goff — first wrote in a March 23 opinion that J.W.’s desire to shield her son from her addiction and her efforts toward recovery were justifiable causes of her failure to significantly communicate with him.

“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,” David wrote. “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.”

Further, David wrote that M.F. and D.F. frustrated what efforts J.W. did make to communicate with E.B.F. during the one-year period by ignoring her repeated requests to see E.B.F. and failing to return her phone calls. Additionally, thought D.F. claimed E.B.F. did not want to see his mother, David said custodial parents are expected to “instruct children to meet with their non-custodial parents, even if, for whatever reason, they are displeased.”

“Accordingly, if the non-custodial 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,” he wrote.

Thus, the majority reversed the trial court’s ruling on the consent determination and remanded the case for further proceedings. But in a dissenting opinion, Justice Geoffrey Slaughter wrote there was ample evidence to support the trial court’s findings that J.W. knew how to communicate with E.B.F., but did not try to do so. Slaughter also wrote in his dissent – which was joined by Justice Mark Massa – that he disagreed with the majority’s sua sponte determination that J.W.’s efforts toward recovery and rehabilitation justified her lack of significant communication.

“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,” Slaughter wrote, referencing the question of whether J.W.’s personal efforts justified her lack of communication. “But I would not hold that the trial court abused its discretion here based on a legal argument the trial court never heard.”