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Sunday, April 12, 2009

Ind. Decisions - More on: "Ind. Supreme Court orders review of adoption: N.J. man has custody of twins, now 4, born in Indy via a surrogate"

Updating this ILB entry from last Thursday, April 9th, Jon Murray of the Indianapolis Star has a long story today headed: "Ruling revives controversy over Melinger twins' 2006 adoption." A few quotes:

The blond, blue-eyed twin girls who started life in an Indianapolis intensive care unit could hardly have known they would become the focus of a years-long interstate adoption battle.

As they took their first steps and reached other milestones under the care of the only father they have known, Indiana child welfare officials challenged the legality of their adoption.

Last week, on the twins' fourth birthday, the Indiana Supreme Court issued a ruling that threw their family into limbo by reversing the final adoption decree and ordering a new review.

Karen Zaria and Kathy Zee Melinger again are stuck in uncertainty rooted in an adoption that legal experts say should never have been granted to Stephen Melinger. The New Jersey man enlisted Monrovia attorney Steve Litz, and his company, Surrogate Mothers Inc., to arrange a surrogate mother from South Carolina.

But as the case heads to court for new hearings, several experts say Melinger, now 62, stands a good chance of prevailing -- if only because the courts also must weigh the potential harm to the girls of removing them from his care.

"In this kind of case, which admittedly is very unusual, typically the courts strive to cause as little disruption in children's lives as possible," said Steven M. Kirsh, a Hamilton County adoption attorney and past president of the American Academy of Adoption Attorneys. * * *

Hamilton Superior Court Judge William J. Hughes approved the adoptions in October 2006, without the consent of Indiana's Department of Child Services. * * *

After Marion County's juvenile court judge issued an unusual order opening records in the child welfare case, The Indianapolis Star first reported on it in July 2005. Another judge later resealed the case, and further proceedings likely will remain secret.

DCS moved to fight the adoption, arguing Indiana courts were not legally allowed to consider it. The children likely wouldn't be considered "hard to place" under Indiana law, a requirement for nonresidents to adopt.

Here is a long list of ILB entries, including those involving the Star's challenge seeking to open the records.

The Star's Murray today also has prepared a side-bar outlining the legal process:

The state Supreme Court has ordered the adoption court to review the case of Karen Zaria and Kathy Zee Melinger again. For now, their adoptive father, Stephen Melinger, will retain custody.

Now the judge must abide by an interstate compact that requires a notice from New Jersey authorities that a placement with Melinger would not be against the interests of the children. Melinger resides in New Jersey.

Hamilton Superior Court Judge William J. Hughes had waived some of those rules and instead relied on an insufficient home study obtained by a court-appointed guardian, the Supreme Court's decision says.

New Jersey officials did try to evaluate Melinger's suitability as a parent at one point, but he declined to participate by claiming he was an Indiana resident, the opinion says.

Under the Interstate Compact on the Placement of Children, the state where the adoptive parent will reside is supposed to provide the state granting the adoption with an evaluation of the placement's appropriateness.

Steven M. Kirsh, an adoption attorney, said the typical process in Indiana is to appoint an individual or a licensed agency to serve as the child's guardian throughout the proceedings. A licensed agency in the adoptive parent's state is then found to perform a home study and provide a report back to the other state.

It's not clear yet what role the Indiana Department of Child Services will play in the new hearings or whether it will take a position on the adoption, though spokeswoman Ann Houseworth said agency officials are aware of the delicate issues at play.

"There's a general acknowledgment with regard to a placement that the longer a child is allowed to bond with an adult, the more detrimental it is to remove the child from the care of that adult," Houseworth said.

Still unclear is whether Hughes will transfer the case elsewhere, possibly Marion County. The Supreme Court noted in its opinion that since none of the participants in the Melinger case was a resident of Hamilton County, it was an improper venue.

Several years have passed. As the ILB noted at the end of its April 8th entry, the twins are now four years old. Murray's story today makes the point that "Melinger, now 62, stands a good chance of prevailing -- if only because the courts also must weigh the potential harm to the girls of removing them from his care."

Here is the current docket for the Court of Appeals proceedings, and the docket for the actions before the Supreme Court. These are provided to give context to this note from a reader re the time it has taken these appeals to move through the system:

The more troubling issue for me involves Appellate Rule 21(A). This case involved an adoption and should have been expedited. Parties are not allowed extensions for their briefs except "in extraordinary circumstances." App. R. 35(D). The court of appeals, however, took six months to issue and opinion, and the supreme court took over a year. I don't see how that could be considered expedited when the court's averages for all cases is much shorter.

Posted by Marcia Oddi on April 12, 2009 10:27 AM
Posted to Ind. Sup.Ct. Decisions