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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. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

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