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High court rules on putative father adoption case

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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."

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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