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Grandparents lose adoption appeal in first-impression case

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Grandparents who filed late motions challenging a stepfather’s adoption of a 6-year-old are not entitled to relief based on their argument they didn’t receive legal notice, the Indiana Court of Appeals ruled Tuesday in a family law case raising two issues of first impression.

The grandparents had been almost sole caregivers for B.C.H. from the time she was a newborn until she was about 27 months old, according to the record, during which time B.C.H’s teenage mother visited about once a week.

In 2010, mother married the father of her second child, and the couple adopted B.C.H. Grandparents didn’t receive legal notice of the adoption or consent, but they were aware stepfather had filed the adoption petition, which was granted in August 2011. But the grandparents continue to seek custody in ongoing proceedings.

In In the Matter of the Adoption of B.C.H., a Minor, 41A04-1308-AD-388, the Court of Appeals panel affirmed trial court orders denying the grandparents’ motions for relief from judgment and motions to correct error that aimed to set aside the trial court’s adoption decree.

Judge Rudy R. Pyle III noted the issues of first impression in this case: “(1) whether the phrase 'lawful custody' is equivalent to the phrase 'legal custody' for purposes of Indiana Code § 31-19-9-1, such that a lawful custodian must be court ordered; and (2) whether Grandparents qualified as lawful custodians by meeting the statutory qualifications for being de facto custodians.”

"In light of ... common law history of disfavoring the right of any party other than a child’s parents to object to an adoption, we hold that the adoption statute’s use of the phrase “lawful custody” under Ind. Code § 31-19-9-1(a)(3) is equivalent to “legal custody,” that is, court-ordered custody. Absent clear language from the Legislature, it is not our place to create a right where it has never before existed.

"Likewise ... we also will not create a right for parties without legal custody of a child to receive notice of adoption proceedings," Pyle wrote in an opinion joined by Judge Cale Bradford, holding that the grandparents do not qualify as legal guardians or lawful custodians.

Judge Paul Mathias in a separate opinion wrote that he would have required stepfather to obtain grandparents’ consent for the adoption, but because grandparents had actual notice of the proceedings and didn’t attempt to contest the adoption, he concurs with the majority.

Mathias disagrees with the majority’s equivalence of the statutory terms “lawful custody” and “legal custody.”

“Mother voluntarily relinquished custody of B.C.H. to Grandparents shortly after the child was born. Because Grandparents were B.C.H.’s primary caregivers, lived with and financially supported her, the Johnson Juvenile Court determined that Grandparents qualified as B.C.H.’s de facto custodians. Under these circumstances, and under the plain meaning of the term “lawful,” I would conclude that Grandparents had “lawful” custody of B.C.H., and therefore, notice of Stepfather’s adoption petition and Grandparent’s consent to B.C.H.’s adoption was required," Mathias wrote.

That said, circumstances here didn’t warrant such determinations, Mathias concluded.

"Although Grandparents’ consent to the adoption was not sought, Grandparents had actual notice that Stepfather had initiated adoption proceedings. But Grandparents failed to intervene in or to contest the adoption proceedings; therefore, I would hold that Grandparents cannot challenge the decree of adoption at this late date. For this reason, I concur in the result reached by the majority."

 
 



 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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