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1st pro bono appeals program case gets transfer

October 17, 2008

The Indiana Supreme Court granted has granted transfer to two cases, including the first case from the Indiana State Bar Association's pro bono appellate program.

The case In the Matter of the Adoption of the Unborn Child of B.W., Wilfrido Garcia v. David Heine Bos and Janae Herbst Bos, No. 03A04-0802-CV-107, is the first case from the state bar's pro bono appellate program, which began in January 2007, to reach the Indiana Supreme Court, said Bose McKinney & Evans attorney Bryan Babb, who is representing Wilfrido Garcia in the appeal.

The Indiana Court of Appeals affirmed the trial court's decree of adoption of Garcia's child, T.B. The appellate court found Garcia failed to follow the statutory requirements to contest the child's adoption, so his consent to the adoption is irrevocably implied.

Garcia argued Indiana Code Sections 31-19-4-5 and -9-12 are in conflict because -9-12 requires the putative father to file a motion to contest the adoption or to initiate a paternity action within 30 days of being served with the petition for adoption and notice of named father. The Court of Appeals ruled the statutes can be "harmonized and rationalized to give effect to both statutes, given the recognition of the named father's obligation" to consult Indiana's adoption statutes as is stated in the notice of pending adoption proceedings.

The high court also granted transfer to Byron Breaston v. State of Indiana, No. 20A04-0802-PC-113, in which the Court of Appeals reversed the post-conviction court's ruling to vacate Breaston's habitual offender enhancement and reinstated the enhancement because the state showed he had another felony conviction that could support the habitual offender enhancement. The appellate court affirmed the post-conviction court's rulings on all other grounds, including that the state didn't waive all arguments because it failed to respond to his petition for post-conviction relief, the denial of Breaston's motion to consolidate his post-conviction case with a civil suit against several public defenders, and his conviction of escape stands because he wasn't on probation at the time he was arrested for failing to return to detention while on work release.

The cases were granted transfer Oct. 15 but details weren't released until late afternoon Oct. 16.

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