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Mother’s failure to timely contest adoption dooms appeal

April 28, 2015

A woman who failed to give notice to the court within 30 days after learning her child’s stepmother sought to adopt the child could not convince the Indiana Court of Appeals that her due process was denied in the matter.

Mother B.C. learned on Jan. 9, 2014, that her ex-husband’s new wife filed a verified complaint for adoption of child K.M. The notice served to B.C. said she had to file a motion to contest the adoption in accordance with I.C. 31-19-10-1 no later than 30 days after she received notice.

B.C. never filed the notice, but instead visited the clerk’s office in person, contacted the trial court via telephone, and tried to ask how to contest the adoption by contacting the office of her attorney in an unrelated matter. At a February 24, 2014, hearing, the trial court ruled B.C. had been properly served but did not timely contest the adoption, so her consent to the adoption was irrevocably implied.

B.C. filed a motion to correct error, which was denied.

In In The Matter of The Adoption of: K.M.; B.M. v. J.R. and M.R., 26A01-1407-AD-294, B.C. argued I.C. 31-19-9-18 is unconstitutional because it violates her due process rights under the 14th Amendment and that her efforts constituted sufficient notice of her objection to the adoption petition as to allow equitable tolling of the 30-day timeframe.

She argued that a hearing should be held in all adoption cases, regardless of whether the parent timely appeals the petition for adoption. But there is nothing in the statutory language that requires a predicate hearing prior to a person’s consent being irrevocably implied, Judge Ezra Friedlander wrote.

The judges found the statute in question is a nonclaim statute because there is a legislative intent in the statute to not merely withhold a remedy, but to take away the right of recovery where a claimant fails to present his or her claim as provided in the statute.

“Mother is not entitled to equitable deviation from the thirty-day time limit and courts are not permitted to utilize equity to rectify an injustice even if warranted by the situation. Mother did not file a motion to contest Stepmother’s petition for adoption within thirty days after being served with notice thereof and consequently, Mother’s consent to the adoption was irrevocably implied,” Friedlander wrote.

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