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COA affirms child should be raised with half-siblings

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The Indiana Court of Appeals affirmed the petition to adopt a child by a couple who have already adopted her half-siblings. Although the couple temporarily dropped their petition to adopt, the judges agreed it is in the child’s best interests to be raised with her siblings.

M.H. was born in 2012 and removed from her mother’s care due to drug use. N.B. and R.B. filed a petition to adopt M.H. a month after her birth. They have five adopted children – including three biological half-siblings of M.H. and one biological cousin of M.H.  W.M. and her adult daughter, S.K., also filed a petition to adopt. W.M. is the maternal great aunt of the biological mother. She is in her 60s and lives alone, but still works. S.K. has two pre-teen aged children.

At a 2013 hearing to adopt M.H., Vanderburgh Superior Judge Brett Niemeier told the parties he had received an email from a fraternity brother that was in favor of N.B. and R.B. He said he stopped reading it as soon as he realized what it was about, and he gave the parties the option to ask him to recuse himself. W.M. and S.K. moved for his recusal, but he denied the motion.

Nearly a month later, N.B. and R.B. decided to stop pursuing the adoption, believing one of their children had cancer and they would need to direct their attention to that issue. The parents had each of their school-aged children write mean letters to W.M. and S.K., saying things like “shame on you,” and “you made kids and adults cry.”

M.H. went to live with W.M.

N.B. and R.B. later resumed their petition for adoption after learning their child did not have cancer. At a hearing, Niemeier said there was no doubt that both families could care for M.H. He cited, among other factors, W.M.’s age, that the children have to sit at separate tables to eat at N.B. and R.B.’s home, the financial situation of N.B. and R.B., and that the attachment factor favors W.M. But he found it important that M.H. grow up with her relatives near her own age, so he granted N.B. and R.B.’s petition to adopt.

In In the Matter of the Adoption of M.H., W.M. & S.K. v. N.B. & R.B., 82A01-1310-AD-449, the judges affirmed, finding that Niemeier did address the concerns that W.M. and S.K. raised on appeal, including R.B.’s health and the family’s financial situation.

The COA also affirmed Niemeier’s decision to not recuse himself. He fully complied with Judicial Conduct Rule 2.9(B) and he adequately explained his reasoning to the parties. He rarely sees the fraternity brother, the man has his email because of fraternity emails, and he can’t recall the last time he saw the man or his family. W.M. and S.K. did not overcome the presumption that the judge acted impartially, the COA ruled.

“Finally, we note our agreement with the trial court that the circumstances of this case are unfortunate and can be made worse were the Appellees to follow through on their statements to deny the Appellants a chance at having a relationship with M.H. W.M. has played an important role in M.H.’s formative years, and she clearly treasures her relationship with M.H. Although we acknowledge that it is beyond the scope of this court’s authority to mandate visitation between the Appellants and M.H., we echo the trial court’s words of encouragement that, as the stress and anger associated with litigation recede, the Appellees will allow for some degree of contact between them,” Judge Elaine Brown wrote.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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