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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT