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.