ILNews

Attempted murderer may adopt under statute

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Under Indiana statute for adoption, attempted murder isn't listed as a conviction that would prohibit a court from granting the adoption, but aggravated battery is. Because a man was ultimately only convicted and sentenced for his attempted murder charge and the trial court didn't enter a conviction against him for aggravated battery, his adoption of his nephew should be allowed to proceed, ruled the Indiana Court of Appeals.

In the case In Re the Matter of the adoption of J.L.S., a minor child,  No. 45A03-0811-CV-572, J.L.S.'s maternal uncle, W.S., filed a petition to adopt his nephew in Lake County. His niece made arrangements for her uncle and his wife to adopt her baby and terminated her and the baby's father's parental rights.

The trial court learned of the uncle's 1996 conviction of attempted murder in Illinois and allowed the proceedings to continue. A home study recommended the court allow W.S. to adopt his nephew, saying W.S. appeared to better his life after leaving prison, is a family man now and is bonded with the child.

The referee in Lake County requested W.S.'s records from Illinois because she wanted to see what he was charged with in case a conviction precluded him from adopting in Indiana. The referee also appointed a guardian ad litem for the child, who believed the child should be placed with his uncle and, if the statute prohibited W.S. from adopting, his due process rights would be violated.

The Illinois records showed a jury convicted W.S. of attempted murder and aggravated battery, but the trial court only entered a conviction and sentence on attempted murder. The referee denied the adoption based on the jury conviction of the aggravated battery, since someone convicted of that is prohibited from adopting in Indiana under Indiana Code Section 31-19-11-1(c). She then encouraged the uncle to appeal in the hopes the Court of Appeals would agree with the GAL and allow the adoption to go forward.

The appellate court did allow the adoption to proceed and reversed the referee's decision. I.C. Section 31-19-11-1(c) makes clear that if a petitioner has been convicted of one of the felonies listed, the court is prohibited from granting the adoption. The Court of Appeals examined W.S.'s criminal history and because the records show there were no judgments of conviction entered against the uncle except for attempted murder and he was only sentenced for that charge, he was only "convicted" of attempted murder, despite the jury convicting him of aggravated battery.

"Although Indiana Code § 31-19-11-1(c) lists several felonies that prohibit a court from granting an adoption, attempted murder is not one of them," wrote Judge Nancy Vaidik. "While this appears to be an oversight by our legislature in light of the fact that felony battery and aggravated battery are listed, it is not the role of the judiciary to rewrite a statute."

The appellate court reversed and remanded to determine whether adoption is still in the best interests of the child and whether the prospective parents are of sufficient ability to raise him pursuant to I.C. Section 31-19-11-1(a)(1) and (2).

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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