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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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