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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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