In re Adoption of KSP

• Decision Date: 23 March 2004
• Docket Number: No. 56A03-0309-CV-375.,56A03-0309-CV-375.
• Citation: 804 N.E.2d 1253
• Parties: In the Matter of the ADOPTION OF Infant K.S.P. and Infant J.P.
• Court: Indiana Appellate Court

804 N.E.2d 1253

In the Matter of the ADOPTION OF Infant K.S.P. and Infant J.P.

No. 56A03-0309-CV-375.

Court of Appeals of Indiana.

March 23, 2004.

R. Steven Ryan, Barce & Ryan, Kentland, IN, Attorney for Appellant.

OPINION

FRIEDLANDER, Judge.

Monica J. Polchert appeals the denial of her uncontested petition to adopt K.S.P. and J.P., the biological children of her domestic partner, Linda L. Lutz. She presents the following consolidated and restated issue for review: Did the trial court err in denying her petition to adopt the children as a second parent?

We reverse and remand.

J.P., born May 21, 1990, and K.S.P., born January 8, 1993, are the biological children of Linda Lutz (Mother) and John Potat (Father). Mother and Father were legally divorced in October 1994. Mother has retained legal custody of the children since the divorce. While Father has maintained visitation with the children, he has not consistently paid child support and, in addition to being an alcoholic, has been in and out of jail for several years.

On March 5, 2003, Polchert filed an adoption petition with the trial court. Along with the petition, Mother and Father each filed written consents to said adoption. Father's consent expressly provided, in part: "I hereby relinquish all paternal rights with regard to said children and fully acknowledge and understand the legal consequences of my actions and the consent which I have given herein, whereupon the adoption being finalized, my parental rights will be terminated." Appendix at 8.

Thereafter, on May 28, 2003, as required by statute, the Newton County Office of Family and Children (the OFC) filed with the trial court an Adoptive Family Preparation Summary regarding the proposed adoption. An adoption specialist with the OFC had prepared this report following a home study. The OFC endorsed the proposed adoptions. At the conclusion of its detailed report, the OFC provided the following summary assessment:

Monica Polchert has been an immediate member of the family of Linda Lutz and her two children, [J.P. and K.S.P.], for seven years. Monica has provided the love, support, and day-to-day care that any involved parent would. Monica and Linda want this adoption to ensure that all of these things will continue in the event that any unforeseeable happening would leave the children without their mother. The adoption would also allow the children to be insured through Monica.

It is evident that the decision to petition for the adoption of these children has been made with the best interest of the children in mind and with serious thought and planning on the part of their mother, Linda Lutz and her partner, Monica Polchert.

Id. at 17.

The trial court held a final hearing on the uncontested adoption petition on July 9, 2003. Polchert and Mother testified at the hearing, explaining that they wished to share parental rights. They expressed that the children needed stability, which they had not received from their relationship with Father. Polchert and Mother also urged that the adoption was necessary for legal and medical reasons. In particular, Polchert noted that the adoption would allow the children to receive medical insurance coverage through her employer.¹ At the conclusion of the hearing, the trial court took the matter under advisement. The following day, the trial court denied Polchert's petition in an order reading in relevant part as follows:

Comes now the Court, having previously taken this matter under advisement, now finds and Orders as follows:

1. I.C. XX-XX-XX-X provides, in pertinent part, that if the biological parents of a person are alive the biological parents are divested of all rights with respect to the child after the adoption.

2. I.C. XX-XX-XX-X provides that if the adoptive parent of a child is married to a biological parent of the child, the parent child relationship of the biological parent is not effected [sic] by the adoption as the same is set out in I.C. XX-XX-XX-X.

3. In this cause, Petitioner is not married to either the biological mother or biological father.

4. From the testimony of the Parties, it is clear that all Parties are desirous of Petitioner adopting the children here at issue without effecting [sic] the parental rights of the biological mother.

5. Since I.C. XX-XX-XX-X protects the rights of the biological mother only if she is married to Petitioner, the Court cannot grant the relief requested by Petitioner.

THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Adoption filed by Petitioner is hereby DENIED.

Appendix at 3. Polchert filed a motion to correct error on August 7, 2003, which the trial court subsequently denied. Polchert now appeals, arguing that the trial court erred in denying her petition to adopt J.P. and K.S.P. as a second parent.

On review, we will not disturb a trial court's ruling in adoption proceedings unless the evidence would lead to but one conclusion and the trial court reached the opposite conclusion. Adoption of M.M.G.C., 785 N.E.2d 267 (Ind.Ct.App. 2003). We owe no deference, however, to a trial court's legal conclusions. Id.

In Adoption of M.M.G.C., 785 N.E.2d 267, we recently confronted the issue of second-parent adoption in a slightly different context. In that case, the petitioner sought to adopt the adoptive children of her domestic partner. We observed that Indiana statutory law does not require that the rights of an adoptive parent with respect to the child be divested in the event of a second-parent adoption. We contrasted this with a situation involving a biological parent, noting that Ind.Code Ann. § 31-19-15-1 (West 1998) provides that an adoption divests all rights of a biological parent with respect to a child except in the case of a stepparent adoption. Concluding that statutory law did not specifically address the issue presented,² we proceeded to look to the common law:

The right of adoption was unknown at common law. Our General Assembly has since enacted statutes permitting adoptions by married couples, stepparents, and single adults. With respect to these statutes, we have noted that the primary concern in every adoption proceeding is the best interest of the child. "The state has a strong interest in providing stable homes for children. To this end, early, permanent placement of children with adoptive families furthers the interests of both the child and the state." A two-parent adoption enables a child to be raised in a stable, supportive, and nurturing environment and precludes the possibility of state wardship in the event of one parent's death. Such an adoption also legally entitles the child to both parents' employer-and/or government-sponsored health and disability insurance; education, housing, and nutrition assistance; and social security benefits. Undoubtedly, it would be in the best interest of the three children in the instant case to be entitled to the legal protections and advantages that a two-parent adoption provides.

"The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs." "We cannot close our eyes to the legal and social needs of our society, and this Court should not hesitate to alter, amend, or abrogate the common law when society's needs so dictate." We note, however, that "such determinations should be consonant with the evolving body of public policy adopted by the General Assembly." Consonant with our General Assembly's policy of providing stable homes for children through adoption, we conclude that Indiana's common law permits a second parent to adopt a child without divesting the rights of the first adoptive parent. Allowing a second parent to share legal responsibility for the financial, spiritual, educational, and emotional well-being of the child in a stable, supportive, and nurturing environment can only be in the best interest of that child.

Adoption of M.M.G.C., 785 N.E.2d at 270-71 (citations omitted) (emphasis supplied).

We expressly limited our holding in Adoption of M.M.G.C., noting that we were not reaching "the question of whether a second-parent adoption would divest all rights of a biological parent with respect to the child where the child's prospective adoptive parent and the child's biological parent are not married to each other." Id. at 270 n. 1. We are now squarely presented with this issue.

In denying the adoption petition in this case, the trial court relied on two statutory provisions concerning the effect of adoption on biological parents. The first, I.C. § 31-19-15-1 (the divesting statute), provides:

Except as provided in section 2 of this chapter or IC-31-19-16, if the biological parents of an adopted person are alive, the biological parents are:

(1) relieved of all legal duties and obligations to the adopted child; and

(2) divested of all rights with respect to the child; after the adoption.

This statute provides two specific exceptions to the general rule that an adoption divests all parental rights of a living biological parent. One such exception is where postadoption visitation privileges have been granted to the birth parent pursuant to I.C. § 31-19-16-1 et seq. (West 1998).³ The other exception, which is particularly relevant here, addresses stepparent adoptions and provides:

(a) If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of the biological parent is not affected by the adoption.

(b) After the adoption, the adoptive father or mother, or both:

(1) occupy the same position toward the child that the adoptive father or the adoptive mother, or both, would occupy if the adoptive father or adoptive mother, or both, were the biological father or mother; and

(2) are jointly and severally liable for the maintenance and education of the person.

A strict literal reading of these two statutes would seem to support the trial court's determination that if it were to grant Polchert's...