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Justices adopt COA adoption holding, invite attorney fee motions

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The Indiana Supreme Court has granted transfer on a St. Joseph County adoption case and fully adopted a holding by the state’s intermediate appellate court. In doing so, the state justices invited the prevailing biological mother to request attorney fees because of what it found to be possible frivolous or bad faith efforts.

Justices issued a unanimous order today in The Adoption of N.W., M.W. v. A.W., No. 71S04-1102-AD-87, which adopts the Court of Appeals decision from Sept. 16, 2010, that reversed a ruling by St. Joseph Probate Judge Peter Nemeth.

This case revolves around N.W., who was born in late 2001 to mother M.W. and father R.W. and lived with them until the parents’ separation in 2005. The parents agreed in a divorce settlement that they would share joint legal custody of N.W., and the father would retain physical custody.

The father married A.W. in early 2009. Stepmother A.W. filed an adoption petition after visitation ceased between mother and child and the biological parents disagreed about visitation, parenting time, and child support.

The trial judge in December 2009 granted the stepmother’s adoption petition and found the mother’s consent wasn’t required because she’d failed to support the child. Judge Nemeth later denied a motion to correct error or grant relief.

The Court of Appeals last year reversed, holding that mother’s adoption consent was required and that “there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.”

Since then, that ruling and holding has been cited in other appeals before the state’s appellate courts.

Deciding that the appellate panel correctly ruled on the issues, the Supreme Court granted transfer and adopted that opinion under Indiana Appellate Rule 58(A)(1). Reviewing the lower ruling and materials, the justices also determined more was required under Indiana Code 34-52-1-1.

That state statute permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: (1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.

“The record before us suggests one or more of these grounds may exist for an award of attorney fees,” the order says.

Supreme Court Public Information Officer Kathryn Dolan said that less than once a year the justices might grant transfer and fully adopt a Court of Appeals decision, but it’s even rarer for them to suggest the court might entertain a motion on attorney fees like this.

As the prevailing party, the mother has 60 days to file a request for attorney fees incurred at trial and on appeal under I.C. 34-52-1-1 if she chooses to do so.

Attorneys on the case are listed as South Bend lawyer Mark James for the stepmother A.W., and Michigan City lawyers Craig Braje and Elizabeth Flynn for the mother M.W.

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  1. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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