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Trial court correctly ruled mother’s consent needed for adoption

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The Indiana Court of Appeals noted in a decision Monday that the state adoption statute is a bit of a “puzzle” before affirming the lower court’s decision to deny a woman’s attempt to adopt her fiancé’s child. But it found the fiancée may file another petition for adoption if she so chooses.

Fiancée R.S.P. filed a petition to adopt J.T.A., who is the son of her fiancé J.M.A. and S.S. The father was granted custody of the boy when the child was about 3 years old due to mother’s drug use, and S.S. was ordered to pay child support. R.S.P. and J.M.A. have two children together and R.S.P. wanted to adopt the boy because she was concerned if something happened to J.T.A., she would lose the child and his life would be turned upside down. The father consented to the petition. Jasper Circuit Judge John D. Potter denied the fiancée’s petition on the mistaken belief that because the couple was not married at the time of the hearing, if the adoption were granted then both the biological mother's and father’s parental rights would be severed.

In In the Matter of the Adoption of J.T.A.; R.S.P. v. S.S., 37A03-1212-AD-525, the Court of Appeals pointed to In re Adoption of K.S.P., 804 N.E.2d 1253, 1260 (Ind. Ct. App. 2004), to support its decision. Neither R.S.P. nor J.M.A. wanted to have his parental rights terminated by the adoption.

“… (I)t would be absurd and contrary to the intent of the legislature to divest Father of his parental rights where he would continue to live in a family unit with the Child and parent the Child. Father’s parental rights would not have been terminated had the adoption been granted,” Chief Judge Margret Robb wrote.

R.S.P. argued that the mother didn’t have to consent to the adoption because she had abandoned her child and/or failed to pay support. The record supports that mother had regular contact with her child in the six moths before the filing of the adoption petition and that she did not intend to relinquish all parental claims.

Robb also pointed out that the burden falls on R.S.P. to prove that the failure to support ground was met so that the mother’s consent was not required. The record is silent on her ability to provide during the six years that she was ordered to pay support and did not do so.

The COA also rejected R.S.P.’s claim that the mother’s consent was implied because she didn’t consent to the adoption within 30 days of receiving notice. But the adoption statute seems to have been written with the assumption that a mother would give up her child for adoption and that notice would be given to the father. The statute is not gender-neutral and appears on its face not to apply to the mother.

“However, we do not believe that it could be the intent of the legislature to have numerous and detailed requirements for notice to fathers and putative fathers but few or no notice requirements for mothers,” Robb wrote.

There’s no indication that S.S. was ever notified that she needed to consent to the adoption within 30 days or her consent would be implied. Without proper or complete notice, the clock never began ticking on any requirement for her to consent, the court concluded.

Nothing in this decision prevents R.S.P. from filing another petition to adopt the child, the court pointed out.

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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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