In adoption case with no winners, SC offers suggestions to avoid similar situations

Back to TopCommentsE-mailPrintBookmark and Share

In reversing the adoption that could remove fraternal twins from the only family they have ever known, the Indiana Supreme Court noted the situation might have been avoided if more than “just the bare minimum” had been done.

The Supreme Court ordered the trial court to vacate the adoption decree and reset the adoption petition for a contested hearing as part of the high court’s ruling in In Re the Matter of the Adoption of Minor Children: C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., 37S03-1303-AD-159.

“There are no winners in some cases, and this is one of them,” Justice Loretta Rush wrote for the court. “Ruling in favor of the Adoptive Parents would violate the Natural Mother’s constitutional rights, while the opposite ruling would risk pulling the Twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the Twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions – and we must take a narrow view of the exceptions to the principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families.”

Two years after the twins, C.B.M. and C.R.M. were removed from their mother’s home in January 2006, the court granted a termination of parental rights petition. The mother appealed, but while the appeal was pending, the foster parents petitioned to adopt the twins.

During the adoption, the mother was given no notification of the proceedings because Indiana statute does not require the notice be sent to a parent whose rights have been terminated.

Two months after the adoption was finalized, the Indiana Court of Appeals reversed the termination judgment against the mother. It subsequently voided the adoption decree on the grounds that by consenting to the adoption and not giving the mother notice, the Indiana Department of Child Services acted “arbitrarily and capriciously” which deprived the mother of her due process right to meaningful appeal of the termination order.

The Supreme Court reached the same conclusion as the Court of Appeals but for a different reason. Here, the court found because the adoption was based solely on the termination judgment, the mother became entitled to having the adoption voided under Trial Rule 60(B)(7) when the TPR judgment was vacated.

“Since the only judicial determination that Natural Mother is unfit to retain her parental rights has been overturned on appeal, letting the adoption stand would be an overreach of State power into family integrity,” Rush wrote. “The adoption must be set aside.”

The Supreme Court then offered suggestions for avoiding a repeat of this situation.

In particular, the court said even though the foster parents were not obligated under Indiana law to notify the mother of the adoption, doing so voluntarily may well have prevented the adoption from being reversed. The mother would have at least been given the opportunity to appear in court and be heard. If she failed to appear, she then would have been properly defaulted.

Also, the Supreme Court chided the Indiana Department of Child Services for not keeping the underlying CHINS case open while the mother’s termination appeal was pending. Now, no means of support can be provided to the parties while the court reexamines the twins’ status.

“We strongly suggest that in the future, DCS’s best practice would be to leave underlying CHINS cases open until any related TPR appeal is complete,” Rush wrote.




Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?