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

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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.


 

 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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