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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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