In re Infant Girl W., 55A01-0506-JV-289.

• Decision Date: 13 April 2006
• Docket Number: No. 55A01-0506-JV-289.,55A01-0506-JV-289.
• Citation: 845 N.E.2d 229
• Parties: In the Matter of INFANT GIRL W., A Child in Need of Services, R.K.H. and K.A.B., on behalf of themselves and their minor child M.A.H., Appellants-intervenors, v. Morgan County Office of Family and Children, Appellee-petitioner. In re; the Matter of the Adoption of M.W. Morgan County Office of Family and Children, Appellant, v. R.K.H. and K.A.B., Appellees-petitioners.
• Court: Indiana Appellate Court

845 N.E.2d 229

In the Matter of INFANT GIRL W., A Child in Need of Services,

R.K.H. and K.A.B., on behalf of themselves and their minor child M.A.H., Appellants-intervenors, v. Morgan County Office of Family and Children, Appellee-petitioner.

In re; the Matter of the Adoption of M.W.

Morgan County Office of Family and Children, Appellant, v. R.K.H. and K.A.B., Appellees-petitioners.

No. 55A01-0506-JV-289.

Court of Appeals of Indiana.

April 13, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patricia M. Logue, Lambda Legal Defense, and Education Fund, Inc., Chicago IL, Barbara J. Baird, Law Office of Barbara J. Baird, Indianapolis, for Appellants.

Steve Carter, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

This is a consolidated appeal, and all of the issues presented herein involve M.A.H., an eighteen-month-old girl, and the desire of her foster parents, who have cared for M.A.H. since she was two days old, to adopt her and become a legally-recognized family unit. M.A.H.'s foster parents, R.K.H. and K.A.B., are an unmarried couple. Everyone involved in this case, including the Morgan County Office of Family and Children (OFC) and the judge who has blocked the adoption, believes that R.K.H. and K.A.B. have provided a loving, supportive, healthy, and happy home for M.A.H., and everyone except the Morgan County Juvenile Court believes that it is in the best interests of M.A.H. that the adoption proceed. Although this appeal presents a number of issues, the primary question we must resolve is one of statutory interpretation, namely, whether the Indiana Adoption Act¹ permits an unmarried couple—any unmarried couple, regardless of gender or sexual orientation— to file a joint petition for adoption.

The first set of issues concerns M.A.H.'s adoption in Marion County (the adoption case). In the adoption case, appellant OFC argues that the Marion Probate Court erred in granting the joint adoption petition of appellees-petitioners R.K.H. and K.A.B. (the Parents) because the Morgan Circuit Court opposed it and because Indiana law limits adoption to married couples and to individuals. Concluding that the Probate Court properly exercised jurisdiction over the Parents' joint petition and that petition was properly granted, we affirm the judgment of the Probate Court.

The second set of issues surrounds M.A.H.'s Child In Need of Services (CHINS) proceedings in Morgan County (the CHINS case). In the CHINS case, appellants-intervenors the Parents argue that the Morgan Juvenile Court erred in refusing to dismiss the CHINS action and in voiding the Probate Court's adoption decree. Specifically, the Parents argue that these orders were erroneous because the adoption satisfied M.A.H.'s dispositional goal and because the Juvenile Court was not entitled to treat the final judgment of a sister court as void. Concluding, among other things, that the Juvenile Court improperly refused to dismiss the CHINS proceeding, we reverse the judgment of the Juvenile Court.

FACTS²

M.A.H. was born on September 22, 2004, in Morgan County. Her biological father is unknown and has never registered with Indiana's putative father registry. M.A.H.'s biological mother decided to have the baby placed for adoption. When M.A.H. was two days old, OFC placed her with the Parents, who are licensed foster parents, and she has lived continuously in their home since that time. The Parents are both in their mid-thirties and have lived together in a committed relationship in Indiana for over eleven years.

The CHINS Case

As the result of M.A.H.'s birth mother giving her up for adoption, M.A.H. was adjudicated a CHINS on September 28, 2004, in the Morgan Juvenile Court. Additionally, the related but separate proceeding regarding the termination of the parental rights of M.A.H.'s biological mother and father (the TPR case) was on the docket of the Morgan Juvenile Court.

On November 19, 2004, the Morgan Juvenile Court conducted a hearing in the TPR case³ on its own motion. Following the hearing, Judge Hanson entered an order providing, among other things, as follows:

3) That the OFC (Petitioner) has filed a petition to voluntarily terminate the mother's parent-child relationship pursuant to I.C. 31-35-1-4.

4) That two of the allegations necessary in such a petition include that:

a) Termination of the parent-child relationship is in the child's best interest; and

b) That Petitioner has developed a satisfactory plan of care and treatment for the child.

5) That in the petition in this case, the OFC has forwarded a plan for adoption for infant [M.A.H.].

6) That the OFC informed the Court after a prior hearing ... that in fact an individual and not a couple would be adopting this child.

7) That the Court defines "couple" as a man and a woman that are married.

8) That the Court defines "individual" as any person not married and considers persons cohabiting with one another to be individuals.

9) That during this hearing, Fran Austin, the OFC representative testified regarding how children are placed in foster homes and discussed what a hard to place child⁴ is.

10) That Fran Austin testified that this child, infant [M.A.H.], is not a hard to place child.

11) That Fran Austin has worked the past few years for the local OFC and also worked for the same OFC in the late 1990s for several years.

12) That Fran Austin was asked that [sic] if he knew if any non-hard to place child was ever placed with an individual, rather than a couple for adoption.

13) That Fran Austin was unable to recall any case where a non-hard to place child was given to an individual to adopt.

14) That Fran Austin did testify that he was aware of two (2) occasions where individuals were allowed to adopt a child, but when further questioned, both of those cases involved a hard to place child.

* * * * * *

18) That the Court may fairly assume that in all past cases in Morgan County, a non-hard to place child has never been placed with an individual rather than a couple for adoption.

19) That this non-hard to place child must be adopted by a couple, if possible.

20) That the Court finds the OFC's plan to place this non-hard to place child up for adoption with an individual rather than a couple is not a satisfactory plan as required by statute.

21) That the Court finds that the OFC's plan is also not in the child's best interest to place this child with an individual, rather than a couple as they have in every other case where the child is not hard to place.

22) That the Court will further take the matter of terminating the mothers' [sic] rights under advisement awaiting further information on the unknown father in this case and on the compliance with this order.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:

1) The OFC is ordered to develop a satisfactory plan for care and treatment that includes a plan to adopt this non-hard to place child with a couple, rather than an individual.

2) That the OFC shall publish notifications as necessary and as discussed in Court in attempts to find the unidentified father.

3) That the attorney for the unknown father shall attempt to discover who the father is with the information gleaned from this hearing.

OFC's App. p. 25-27. Previously, on November 3, 2004, the Morgan, Juvenile Court had voluntarily terminated the biological mother's parental rights in the TPR case, but the November 19 order, as noted above, took the matter of terminating her parental rights "under advisement . . . ." Id. at 27. Judge Hanson decided not to disturb M.A.H.'s foster care placement with the Parents until a licensed pre-adoptive married couple could be found.

At a hearing on December 20, 2004, Judge Hanson clarified that his November 19 order directed OFC to find a married couple to adopt M.A.H. because he believed that was in her best interests. Judge Hanson also specifically stated that his decision had nothing to do with the fact that the Parents are a same-sex couple, emphasizing that his decision turned on the fact that they are an unmarried couple. On March 22, 2005, the Morgan Juvenile Court issued a nunc pro tunc dispositional decree in the CHINS case, which stated that "the permanency plan for [M.A.H.] is Adoption." Parents' App. p. 90.

The Adoption Case

On January 28, 2005, the Parents filed a joint petition for adoption in the Marion Probate Court. Their petition acknowledged that M.A.H. was a ward of OFC. On March 15, 2005, M.A.H.'s biological mother consented to the adoption in writing. On April 21, 2005, the Probate Court held a hearing on the Parents' petition for adoption. At the hearing, the following evidence was introduced:

• A licensed child placement agency, Paralegal On Call, Inc., conducted a home study and provided a favorable report to the Probate Court regarding the Parents and their care for and relationship with M.A.H.

• Barbara Witze, the Court-Appointed Special Advocate (CASA) for M.A.H., who had met frequently with the family, recommended that the adoption go forward. She testified regarding her opinion that M.A.H. "needs to stay in a safe, loving, nurturing home that she's been in since, almost since she was born." OFC App. p. 19.

• OFC, while objecting to the adoption and withholding its consent solely because it believed it was compelled to do so by Judge Hanson's November 19 order, told the Probate Court that "the only objection we would have, is that our court will not allow us to use these two people as our satisfactory plan of care and treatment. We do admit that they are wonderful parents, and we have absolutely no problem with them, but we have a Judge's order that prevents us from consenting at this time." Parents' App. p. 159-60 (emphasis added).

No other objections were raised to the adoption and no one offered any other evidence against the adoption.

The Marion Probate Court granted the joint adoption the same day,...