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Tuesday, December 23, 2014

Ind. Decisions - Supreme Court decides one today, re significance of "lawful custody" in adoption statutes

In In Re the Adoption of B.C.H., a 12-page, 5-0 opinion, Justice David writes:

For the first forty-five months of her life, B.C.H. remained in the primary care, custody, and control of her maternal grandparents T.H. and C.H. (“Grandparents”). Unmarried at the time of B.C.H.’s birth, her mother R.H. (“Mother”) would visit her daughter about once a week. Later, Mother began keeping B.C.H. at her apartment one day and night per week, and when Mother married K.J. (“Stepfather”), these visits increased to twice weekly. In November 2010, Stepfather, with Mother’s consent, filed a petition to adopt B.C.H. The Grandparents were not served with legal notice nor given an opportunity to give or withhold their consent to her adoption. B.C.H.’s adoption was granted in August 2011, and a month later Mother removed the child from the Grandparents’ home and refused to allow them any further contact with their granddaughter. Subsequently, the Grandparents filed a motion to reopen B.C.H.’s adoption and to intervene. In their motion, the Grandparents argued that under Indiana’s adoption statutes they had “lawful custody” of their granddaughter when the court granted Stepfather’s adoption petition, thus entitling them to legal notice of and the opportunity to consent to her adoption.

IC 31-19-2.5-3 (effective 2012) requires that legal notice of an adoption petition be given to a “person whose consent to adoption is required under I.C. 31-19-9-1.” Under IC 31-19-9-1(a) (effective 2012), “a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by . . . (3) [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.” (Emphasis added.) Neither the adoption statutes nor case law defines “lawful custody” in this context. Therefore, we must interpret the term “lawful custody” and resolve whether B.C.H.’s maternal grandparents had lawful custody of her at the time the adoption petition was filed, thus requiring them to be given legal notice of the adoption petition and an opportunity to withhold consent to her adoption. * * *

Based on these circumstances, we believe that the Grandparents were exactly the type of caregivers the General Assembly had in mind when they chose the term “lawful custody” over “legal custody” in IC 31-19-9-1(a)(3). They were exactly who the legislature thought would be in the best position to tell a judge presiding over an adoption proceeding about the child in question and about the child’s best interests. Though only the trial court has the authority to ultimately decide whether the adoption is in the child’s best interests, lawful custodians like B.C.H.’s Grandparents have the right to present testimony to aid in the court’s often difficult decision.

But in this case, the Grandparents were given neither formal legal notice of the pending adoption nor an opportunity to voice their concerns and be heard. They will have that opportunity now. We vacate the Superior Court’s grant of the adoption petition and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption. As her lawful custodians, the Grandparents must be given the opportunity to give or withhold their consent to Stepfather’s adoption of their granddaughter.

However, the Grandparents’ opportunity to withhold consent to B.C.H.’s adoption is not the same as an opportunity to veto her adoption for any reason they see fit. Should the Grandparents withhold their consent at the hearing for reasons the Superior Court finds not to be in B.C.H.’s best interests, then IC 31-19-9-8(a)(10) enables the court to grant the adoption if it finds that doing so is in the girl’s best interests. Thus, IC 31-19-9-1(a)(3) grants lawful custodians like the Grandparents the right to present testimony at an adoption hearing to aid the trial court’s decision, and to withhold consent to an adoption, but does not entitle them to override the trial court’s ultimate determination of the child(ren)’s best interests in the adoption should their failure to consent be for reasons found not to be in the best interests of the child(ren).

Posted by Marcia Oddi on December 23, 2014 11:09 AM
Posted to Ind. Sup.Ct. Decisions