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Judges disagree on whether grandfather can adopt

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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.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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