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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. 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.

  4. 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?

  5. 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

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