Trial court must revisit adoption petition that was already granted

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An Indiana trial court that has already granted the petition to adopt a Vanderburgh County child must revisit the adoption proceedings after the Indiana Court of Appeals determined the court erroneously concluded the father’s consent to the adoption was implied.

After being removed from A.W. and J.O.’s care, J.R.O. was made a ward of the Department of Child Services as part of a child in need of services proceeding. Meanwhile, in a separate proceeding, the child’s paternal grandparents petitioned for guardianship of J.R.O., and both parents consented.

A third proceeding was also ongoing in which A.T. and M.H., the child’s great aunt and her wife, petitioned to adopt J.R.O. The women alleged the parents’ consent to the adoption was not required under Indiana Code section 31-19-9-8.

J.O., the father, failed to appear at a subsequent hearing because he was incarcerated, and the attorney who had represented him in the CHINS proceeding, Jacob Warrum, objected to the filing of the adoption petition because it went against the permanency plan and would terminate all parental rights. A consent and adoption hearing were then consolidated into one hearing, at which the mother signed a consent to the adoption, while Warrum appeared by phone for J.O.

The Department of Child Services then moved for the involuntary termination of both parents’ parental rights. J.O. was still incarcerated at that time, so his court-appointed attorney, Thomas Krotcha, entered a denial on his behalf.  

Then, at a consolidated adoption and TPR hearing, A.T. and M.H. moved to determine J.O.’s consent was irrevocably implied under I.C. 31-19-9-18 because he did not file a written motion to contest the adoption. The Vanderburgh Superior Court agreed and later issued an order granting A.T. and M.H.’s adoption petition.

J.O. then filed a consolidated appeal related to the adoption and TPR proceedings and argued, among other things, that the court erred in determining his consent was irrevocably implied. In a Thursday opinion, the Indiana Court of Appeals addressed only that issue, with Judge Terry Crone noting it was a question of first impression requiring interpretation of I.C. 31-19-9-18.

The appellate panel ruled against the trial court’s decision, finding that Warrum’s initial oral objection to the filing of the adoption petition was sufficient to defeat the exception to consent laid out in that statute.

“The legislature chose not to require the filing of a written motion to contest an adoption in Indiana Code Section 31-19-9-18, and we ‘will not read into a statute that which is not the expressed intent of the legislature,’” Crone wrote. “Moreover, we have often held that where the purpose of a rule is satisfied, this Court will not elevate form over substance.”

Find the purpose of the statute was satisfied by Warrum’s oral objection, the appellate panel reversed the ruling that J.O.’s consent was irrevocably implied and remanded the case for further proceedings, which could include reinstatement of the CHINS, guardianship and/or TPR proceedings.

“We acknowledge the disruption that our holding will cause to all parties involved, especially (A.T. and M.H.) and J.R.O.,” Crone wrote. “But as our legislature has acknowledged, it is the policy of this state and the purpose of Indiana Code Title 31 to recognize and enforce the legal rights of children and their parents, … and our interpretation of Indiana Code Section 31-19-9-18 is entirely consistent with that policy and purpose.”

The case is In the Matter of the Adoption of J.R.O. (Minor Child), J.O. (Father) v. A.T. and M.H., 82A05-1706-AD-1331.

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