ILNews

Grandparents lose adoption appeal in first-impression case

Back to TopCommentsE-mailPrintBookmark and Share

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."

 
 



 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Based on several recent Indy Star articles, I would agree that being a case worker would be really hard. You would see the worst of humanity on a daily basis; and when things go wrong guess who gets blamed??!! Not biological parent!! Best of luck to those who entered that line of work.

  2. I was looking through some of your blog posts on this internet site and I conceive this web site is rattling informative ! Keep on posting . dfkcfdkdgbekdffe

  3. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  4. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  5. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

ADVERTISEMENT