The Indiana Supreme Court has ruled that a putative father who files a paternity action in a court other than the court in which the adoption case is pending meets statutory requirements and doesn't imply his permanent consent to that adoption.

In a 4-1 decision June 26, justices decided the Bartholomew County case of In Re Adoption of Unborn Child of B.W., W.G. v. D.B. and J.B., No. 03S04-0810-CV-560, which is the first to come from the Indiana State Bar Association's pro bono appellate program. Four justices made up the majority, but the chief justice dissented while another justice concurred in result and wrote the debated statutes provide "multiple opportunities for confusion or even intentional obfuscation."

The adoption case revolves around the minor child T.B., who was born out of wedlock in late 2006. Since the biological father, W.G., was incarcerated at the time, the trial court granted temporary custody to the adoptive parents. The jailed father received notice of the pending adoption and filed a motion to establish paternity in Circuit Court, rather than in Superior Court where the adoption case was pending. He later filed a more expansive motion entitled, "Petition to Establish Paternity and Contest Adoption of Unknown Minor Child," in that same Circuit paternity action. The adoptive parents claim that his failure to file it in the proper court nullified the motion; Bartholomew Superior Judge Chris Monroe determined that W.G. had failed to follow the statutory requirements to contest that adoption in Superior Court in a timely fashion, and his consent was irrevocably implied because of that.

The father argued that Indiana Code Sections 31-19-4-5 and -9-12 are in conflict because they require the putative father to file a motion to contest the adoption or to initiate a paternity action within 30 days of being served with the petition for adoption and notice of named father. Also, that county's local court rules require all paternity cases be filed in Circuit Court.

In July 2008, the Court of Appeals ruled the statutes can be "harmonized and rationalized to give effect to both statutes, given the recognition of the named father's obligation" to consult Indiana's adoption statutes as is stated in the notice of pending adoption proceedings.

But a majority of justices disagreed, finding that the biological father's actions of filing a paternity action in a different county court didn't irrevocably imply his consent for an adoption despite his failure to file a motion to contest in adoption court.

"In sum, we hold that under Indiana Code § 31-19-9-12(1), to be deemed to have implied his irrevocable consent to an adoption, a putative father must fail to file both a paternity action and a motion to contest the adoption," Justice Brent Dickson wrote. "The appellant-father here undisputedly timely filed his paternity action. It is therefore unnecessary to decide whether his timely attempt to contest the adoption, filed in the Circuit Court rather than in the Superior Court where the adoption was pending, satisfied the adoption implied consent statute. The paternity action sufficed to preclude a finding of implied irrevocable consent to the adoption."

The majority reversed and remanded the Bartholomew Superior Court ruling, while Justice Ted Boehm concurred in result but has concerns about the statutes.

"The statutes should not permit a filing in another court to suspend the prompt resolution of an adoption," he wrote. "Dueling jurisdictions, or even the need for transfer and consolidation, are formulas for delay. Nor should there be any doubt what a putative father must do to preserve his rights. I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father."

Chief Justice Randall T. Shepard dissented, finding the majority's ruling sets a dangerous precedent for the future.

He wrote. "... it will also provide a very simple roadmap for obstructionists, a tool to use in preventing what my colleagues call the 'expeditious placement of eligible children.' In this instance, it prevents the expeditious placement of a child who has known only these adoptive parents during the entire 32 months since his birth."