ILNews

Judges disagree on whether grandfather can adopt

Back to TopE-mailPrintBookmark and Share

Judges on the Indiana Court of Appeals disagreed as to whether a grandfather could adopt his biological granddaughter but allow the mother to retain her parental rights under Indiana law.

The majority concluded he could, finding it was in the best interests of the child for the grandfather to adopt. Because the primary concern in an adoption is the best interests of the child, preventing the adoption on the basis of Indiana Code Section 31-19-15-1 and -2 would cause an absurd result not intended by the legislature, wrote Judge Elaine Brown for the majority.

Grandfather M.M.’s uncontested petition to adopt his granddaughter was ultimately denied by the trial court. M.M.’s daughter, M.L.M., is the biological mother of granddaughter A.M. The grandfather’s petition stated that mother isn’t terminating or relinquishing her legal maternal rights; the biological father consented to the adoption.

The trial court denied the petition because there is no statutory authority allowing a biological parent to maintain parental rights following the issuance of a decree of adoption by a grandparent. Indiana caselaw allowing a biological parent to maintain parental rights all share the common issue of an adoptive parent and the consenting parent cohabitating. M.M. does not live with his daughter.

In Adoption of A.M.; M.M. v. M.M. & A.C. No. 53A05-1002-AD-71, M.M. wanted the holding in In Re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004), to be expanded to include grandparents who don’t live in the child’s home and who don’t provide primary care for the child every day. The K.S.P. court held that in the spirit of Indiana’s adoption laws, the legislature couldn’t have intended the “absurd result” that if the trial court granted Monica Polchert’s petition for adoption of her domestic partners’ children, that her partner Linda Lutz’s parental rights would be terminated. The court also held that where the prospective adoptive parent and biological parent are both acting in fact as parents, Indiana law doesn’t require a destructive choice between the two parents.

The majority in the instant case held that the grandfather is considered family under the statute, and while he doesn’t live with the biological mother, they live close to each other and the grandfather acts as a parent by providing financial support, taking A.M. to classes, and A.M. stays over at his house often.

Judge Edward Najam dissented because there is not statutory authority for a biological parent to maintain her parental rights after adoption by a grandparent. Indiana law requires except for a single-parent adoption, that the biological parent and the adoptive parent be married to each other. It doesn’t matter whether the parents live together and form a family unit with the child, he noted.

“It is the legislature’s prerogative to establish what policies are to be furthered under the adoption statutes, including whether an unmarried couple may adopt,” he wrote.
 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT