Browder v. Harmeyer
| Citation | 453 N.E.2d 301 |
| Decision Date | 31 August 1983 |
| Docket Number | No. 4-882A257,4-882A257 |
| Parties | Carolyn BROWDER, Appellant (Petitioner Below), v. Alvin and Mary HARMEYER Indiana Department of Public Welfare and Ripley County Department of Public Welfare, Appellees (Respondents Below). |
| Court | Court of Appeals of Indiana |
Larry L. Eaton, Eaton & Taylor, Versailles, for appellant.
Douglas C. Wilson, Greeman, Kellerman & Wilson, Batesville, for appellees.
The adoption of Nathanial Browder, currently four years old, is the focus of this controversy between his maternal grandparents, Alvin and Mary Harmeyer, and his paternal grandmother, Carolyn Browder. Browder, while recognizing the language of the adoption statute (Ind.Code 31-3-1-1) requires spouses to petition jointly, alleges she was denied equal protection when the trial court dismissed her adoption petition because her husband, Nathanial's paternal grandfather, had withdrawn from the proceedings. She claims the statute discriminates against her because, under its terms, she would have been permitted to seek Nathanial's adoption had she not been married. She further complains the court improperly granted the adoption petition of the Harmeyers, claiming both it was not in Nathanial's best interest and that removing Nathanial from her home without a specific finding of her unfitness infringed, without due process, on her fundamental right to family integrity--an in loco parentis relationship arising from her custody of Nathanial just prior to the adoption proceedings. We perceive no error in the trial court's actions and affirm.
Nathanial was born November 29, 1978, the son of Russell Browder (father) and Judy Harmeyer Browder (mother). Father and mother divorced in 1980, and since then, Nathanial has been bundled from one relative to another while mother and father's parental rights were terminated. Nathanial was eventually placed with grandmother Browder, five months before adoption proceedings were initiated, in September, 1981.
On February 16, 1982, both grandparents Browder petitioned to adopt Nathanial as husband and wife even though they had been living apart since 1980. Shortly thereafter Browder is forty-nine years old and the mother of seven children, only one of whom is still at home. She and her husband have lived apart since 1980, for undisclosed reasons, but divorce is not contemplated and their relationship is friendly. Her health is currently fairly good, but she underwent surgery in 1980, to remove her gall bladder and appendix, and was hospitalized in 1981, for pneumonia and bronchitis, with signs of emphysema. She is a Nurse's Aide at a local nursing center but had been laid off from a prior job with a nursing home as a result of accusations she was abusive to patients and did not care for their needs. While Nathanial lived with her, she worked the 11:00 P.M. to 7:00 A.M. shift while Jerry, her then thirteen-year-old son, cared for Nathanial. Social workers, even during scheduled visits, observed a great deal of clutter in Browder's home, including stacks of dirty dishes in the kitchen and heaps of dirty clothes strewn in the bedroom and bathroom. During one particular department visit, Browder's landlord demanded she quit the premises because of nonpayment of the $250 rent (despite net monthly income of $724 and $320 in expenses), the living conditions in the apartment, and water damage causing the ceiling below to fall in. (At the time of the hearing, Browder, Jerry and Nathanial had moved to a two-bedroom rental house.) While residing with Browder, Nathanial was psychologically and physically tested. As a result, he was enrolled in a pre-school program, but Browder did not follow through on medical recommendations concerning a hearing problem. Nathanial is well-adjusted, and there is no doubt of the affection between grandmother and grandson. However, two of Browder's four references did not believe it would be in Nathanial's best interest for Browder to adopt him. The Ripley County Department of Public Welfare recommended a new adoptive home, mainly because of concern over Browder's financial stability, supervision and discipline of Nathanial, housing stability, health, and maturity of decision-making and "prioritizing." In addition, the department expressed concern that Nathanial would be in contact with father whom Browder had continually provided for throughout his adult years until Nathanial was put in her home.
the grandparents Harmeyer submitted their own petition, and the two actions were consolidated. The Ripley County, Decatur County, and Franklin County Departments of Public Welfare gathered information regarding the petitioners for their reports to court. These sources, in addition to in-court testimony at the hearing, revealed the following about the petitioners:
The Harmeyers, Alvin (71) and Mary (62), have raised twelve children and live on a 213-acre farm. Mr. Harmeyer is a retired farmer, and Mrs. Harmeyer is a housewife. Their yearly income is in excess of $25,000, and they own their home and two farms. Nathanial had lived with the Harmeyers for awhile after his mother and father divorced, but at that time the Harmeyers felt it would be better for him to reside with a younger couple so the Department placed him elsewhere (with a maternal uncle). Since then, and because no younger couple had come forward, the Harmeyers decided they would like to adopt him. All five of their references and the family doctor believed the Harmeyers would be good adoptive parents. There is some concern in the Ripley County Department of Public Welfare that Nathanial's mother, currently living in Texas, would have sporadic contact with Nathanial, but Franklin County stated the Harmeyers, despite their age, would be an excellent placement choice .
The record is not entirely clear, but evidently after Browder presented her testimony, the trial court dismissed her adoption petition 1 because her estranged husband had withdrawn his name from the petition. The Harmeyers presented their evidence,
and the trial court subsequently granted their petition. Browder now appeals the dismissal of her petition and the granting of the Harmeyers'.
Browder claims IC 31-3-1-1 is unconstitutional because it denies her equal protection of the laws by requiring spouses to join in a petition to adopt a person under eighteen years old while the consent or approval of another adult is not required when the petitioner is unmarried. The statute in question reads:
IC 31-3-1-1 (Emphasis added.) Thus, under the provisions of this statute, an unmarried person may, but a married person cannot, adopt as a single parent in Indiana. This distinction, Browder complains, punished her wrongfully, caused the trial court to dismiss her petition, and constituted a denial of her equal protection rights.
In addressing this equal protection claim, we first observe there is no dispute that "the right to marry is a fundamental liberty protected by the Due Process Clause and that it is among the personal decisions protected by the right of privacy." Miller v. Morris, (1979) 270 Ind. 505, 386 N.E.2d 1203, 1204; Zablocki v. Redhail, (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618. It is further without dispute that potential adoptive parents are classified by our statute as either unmarried or married and are thereby treated differently in the requisites of their respective petitions. It is therefore incumbent upon us to determine whether our statute unlawfully impaired Browder's fundamental right to marry .
Generally, Rohrabaugh v. Wagoner, (1980) Ind., 413 N.E.2d 891, 893. However, Zablocki v. Redhail, supra, the 1978 Supreme Court case proclaiming marriage as a fundamental right, did not employ the strict scrutiny level of review in overturning a statute preventing marriage where one of the affianced had failed to fulfill support obligations of noncustodial children. The Court's actual standard of review as set out in that case is less than clear. See J. NOWAK, R. ROTUNDA, & J. YOUNG, HANDBOOK ON CONSTITUTIONAL LAW 162-64 (1982 Supp.) Justice Marshall stated, in the majority opinion:
Zablocki v. Redhail, supra, 434 U.S. at 386, 98 S.Ct. at 681 (emphasis added). In relation to this analysis, we find Judge Buchanan's opinion in Indiana High School Athletic Association [IHSAA] v. Raike, (1975) 164 Ind.App. 169, 329 N.E.2d 66, an enlightened harbinger of the Supreme Court's later decision in Zablocki. In IHSAA v. Raike, a married high school student successfully challenged IHSAA and school regulations, which prevented him from participation in high school...
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