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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

ADVERTISEMENT