David, J.
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.
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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. [Footnote omitted.] 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 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).
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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…
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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 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 of 2014, she had also ended her dependency on drugs and ha
d 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…
…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 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.
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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 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 agreed upon 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.
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.
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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..
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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.