ILNews

Trial court correctly ruled mother’s consent needed for adoption

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

ADVERTISEMENT