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Justices criticize attorney's decision making on publication

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State statutes about adoption and grandparent visitation may be important for Indiana trial courts when considering custody issues, but courts have long held that foundational due process rights still apply and can’t be sacrificed.

The Indiana Supreme Court is analyzing the lines between those statutory mandates and constitutional due process guarantees, asking what kind of notice parties must give each other for adoption or custody hearings.

While it centers on legal notice requirements, the case presents a complicated intersection between adoption law, grandparent visitation rights, due process rights, and trial rules that all delve into the publication aspects in their own way.

The Indiana Court of Appeals stumbled across the inequity in the adoption statute and Grandparent Visitation Act earlier this year in In Re: Adoption of L.D.; A.B. and N.E. v. Jo.D and Ja.D., No. 49S021006-CV-00330, which involves a lack of biological relationships between the parents and grandparents involved. The biological mother, A.B., gave birth in March 2003 to her son L.D. while incarcerated. Paternal grandparents, Jo.D. and Ja.D., filed for adoption of their adopted son’s child, L.D. Meanwhile, the mother’s co-worker N.E. cared for the boy while the mom was incarcerated and later adopted the biological mom as her own daughter, securing maternal grandparent visitation rights that also allowed supervised visitation with the biological mom. The paternal grandparents pursued the adoption in 2007 and at one point alleged they didn’t have any contact information to reach mother in order to notify her of the adoption proceedings.

To meet the requirements of adoption law, the paternal grandparents publicized notice in the African-American newspaper The Indianapolis Recorder, despite the fact that all of the parties in this case are white. The record shows testimony that they didn’t inform N.E. because they felt it didn’t concern her. Once the Marion Superior Court finalized the adoption, the newly adoptive grandparents informed N.E. that her visitation rights would be phased out.

Less than two weeks after that finalized adoption, the biological mom and N.E. filed a Trial Rule 60(B) motion opposing the adoption and asking the court to set aside the adoption decree. Marion Superior Judge Cynthia Ayres – who’d taken over the combined family law cases and adoption matter that had previously been before Judge Charles Deiter – heard testimony and ruled against A.B. and N.E. The women appealed on several issues, including N.E.’s rights as a grandparent and the procedural fault of the adoption itself because of “faulty” notice.
 

Mary Norman Norman

In a Feb. 25 ruling, a three-judge appellate panel found in favor of the paternal grandparents and held that N.E.’s visitation can’t continue now that the child has been adopted. Visitation rights survive adoption by a stepparent or person who is biologically related to the child, but because the paternal grandparents aren’t biologically related to L.D., then N.E. isn’t entitled to visitations as a matter of law under the act, the panel concluded. The court also noted that if N.E. had been the one to adopt the boy, then the paternal grandparents wouldn’t have had any rights under the act because N.E. isn’t biologically related to the boy.

“Whether this consequence was intended or should be rectified we leave for the Legislature to decide,” Judge Edward Najam wrote.

But what’s become a central point in the appeal is the public notice. The appellate court found the biological mother failed to show that the service of process by publication in a newspaper she was unlikely to read was inadequate. N.E. didn’t show that the adoption statute’s failure to require that she, as a grandparent, receive notice of the adoption proceeding violates her due process rights in that a grandparent does not have a liberty interest in visitation with grandchildren.

Justices granted transfer earlier this year and heard arguments Aug. 26 from the biological mother’s attorney Kelly Eskew of Indianapolis and the paternal grandparents’ attorney Mary Jane Norman of Speedway. Both declined to talk about this case outside of what they said in court and filed in their appellate briefs. Neither attorney contends that their clients don’t love the now 7-year-old boy who’s been in the paternal grandparents’ custody.

“One issue is before the court, whether her parental rights were terminated in violation of the Due Process Clause of the 14th Amendment and of the Indiana Trial Rules, and whether the paternal grandparents failed to make reasonably diligent efforts of actual notice,” Eskew said during her arguments. “There was one person in the world who had regular contact and court-ordered visitation, but the paternal grandparents didn’t tell her what was going on.”

Attorneys disagree about what’s required by the various statutes and rules, noting that Indiana Trial Rule 4.1 doesn’t expressly require service at a “last known” mailing address, but Trial Rule 4.13 requires a “diligent search” that the attorneys debate about requiring constitutional principles of due process.
 

Kelly Eskew Eskew

All five justices expressed concern about how Norman tried to notify the biological mom about the adoption hearing. Specifically, Chief Justice Randall T. Shepard and Justices Brent Dickson and Robert Rucker criticized the lawyer for her methodology, including her choice to publish the notice in The Indianapolis Recorder that’s circulated mainly in the African-American community.

Justice Dickson said the decision made it look like gamesmanship, or an intentional attempt to avoid having the mother receive notice. Norman said she used a practice that many lawyers use in publishing all her adoption notices in that newspaper because it’s efficient and accurate, and that the parties’ race didn’t cause her to think differently about it.

Chief Justice Shepard took issue with that.

“If we had African-American parties, even one, in this litigation, I wouldn’t give this a second thought,” he said. “But I have wondered what my colleagues have wondered, whether you as counsel calculated a set of actions here to make sure mother couldn’t be heard.”

Pointing out the “vastly difference readership” between that paper and more mainstream publications like The Indianapolis Star, the chief justice told Norman a fair reading or inference of her actions was that she didn’t think about this or didn’t want to.

When she countered that all of her adoption notices appear in this paper, Chief Justice quickly responded, “Well, I’d put it to you that that’s a mistake, and it hasn’t gone down very well with me.”

Justice Rucker echoed those concerns and also wondered about the paternal grandmother’s questioning of N.E. about locating the mother, and then stopping without trying more diligently. He wondered what the standard for “due diligence” is when serving notice of a pending adoption.

“This entire set of facts just doesn’t pass the straight-face test, that there was an effort to let mom know what was going on,” he said. “Instead, everything that was done suggests just the opposite.”

Norman pressed to defend her decision for using that newspaper, one that other attorneys who must serve legal notices say they also use for that publication.

“The real-life scenario is that very rarely, people with mother’s lifestyles read any paper, especially (one for) legal notices,” she said.

Justice Theodore Boehm also wondered why the paternal grandparents hadn’t tried to notify N.E. or A.B. about the hearings ahead of time, despite N.E. having court-ordered visitation rights still in place.

Justice Frank Sullivan questioned how the mother, described as someone who couldn’t be located prior to the adoption, was able to quickly hire an attorney and file a Trial Rule 60(B) motion within two weeks of the adoption being finalized.

On her end, Norman argued that the parental grandparents technically complied with the statues and trial rules, and that the trial court should receive deference because it heard the facts and testimony on the case. She argued that A.B. also didn’t present a meritorious defense as required, but Eskew noted that the trial court had informed the mom it wouldn’t hear evidence on that meritorious defense during the 2007 hearing and that the lower court’s adoption proceedings didn’t get to that stage prior this appeal beginning.

“She wants what’s best for her child, to be a part of her child’s life and to have a relationship with him,” Eskew said. “She simply asks for the right to be heard in a court and to have her story told, then to have a court consider what’s in the best interests of this child, not only with just hearing from paternal grandparents but also from her.”•
 

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