In Re The Adoption Of A.M.

• Decision Date: 21 July 2010
• Docket Number: No. 53A05-1002-AD-71.,53A05-1002-AD-71.
• Parties: In re The ADOPTION OF A.M.
• Court: Indiana Appellate Court

930 N.E.2d 613

In re The ADOPTION OF A.M.

No. 53A05-1002-AD-71.

Court of Appeals of Indiana.

July 21, 2010.

Donald W. Francis, Jr., Bloomington, IN, Attorney for Appellant.

OPINION

BROWN, Judge.

M.M. (“Grandfather”) appeals the denial of his uncontested petition to adopt A.M., Grandfather's biological granddaughter. Grandfather raises one issue, which we revise and restate as whether the trial court erred in denying Grandfather's uncontested petition to adopt A.M. We reverse and remand.¹

The relevant facts follow. M.L.M. (“Mother”), who is the daughter of Grandfather, and A.C. (“Father”) are the biological parents of A.M., who was born on September 8, 2005. On April 24, 2009, Grandfather filed a petition for adoption of A.M. The petition stated in part:

[Mother] is the natural mother of said [A.M.] and she consents to said adoption and joins in this Petition for Adoption for purposes of maintaining her maternal rights and that she consents to said adoption by joining in this Petition for Adoption. [Mother] is not terminating or relinquishing her legal maternal rights.

Appellant's Appendix at 54. Father filed a consent to adoption.

On September 30, 2009, the trial court entered a decree of adoption which granted Grandfather's petition for adoption. The decree stated in part: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the above-entitled petition for the adoption of [A.M.] is hereby approved and granted and that by this order, [Mother] is not divested of her maternal rights due to the fact that she and [Grandfather] are not married.” Id. at 59. On October 26, 2009, the trial court entered an Order Vacating Decree of Adoption, which stated:

The Court, on its own motion, now finds that the Decree of Adoption signed September 30, 2009 purports to terminate the parental rights of the [Father] and to permit the maternal grandfather to adopt. This order was entered in error.

It is therefore Ordered, Adjudged and Decreed that the Decree of Adoption entered September 30, 2009 is vacated, and this matter is set for further hearing on the 7th day of January, 2010 at 2:00 p.m. [Father] is ordered to appear at this hearing. The Petitioner shall provide notice to [Father] of the hearing.

Id. at 60.

On November 17, 2009, Grandfather filed a motion to correct error and argued that Father's “attendance at any hearing under this cause is neither required nor necessary.” Id. at 61. After a hearing on December 2, 2009, the trial court stated that there was one issue: whether or not the adoption could be done under Indiana law. The court stated that “if the Court finds that this is an acceptable practice under Indiana Law the Court will grant the adoption.” Transcript at 43.

On December 23, 2009, the trial court denied Grandfather's motion to correct error and denied Grandfather's petition for adoption. The trial court's order stated:

4. [Grandfather] concedes that there is no statutory authority that would allow a biological parent to maintain their [sic] parental rights following the issuance of a decree of adoption by a grandparent. Indeed, I.C. 31-19-15-1 appears to preclude this outcome.

* * * * * *

5. However, [Grandfather] correctly notes that, in certain narrowly defined situations, a biological parent has been allowed to maintain their parental rights following an adoption by a third party. See [ In re Adoption of K.S.P.], 804 N.E.2d 1253 (Ind.Ct.App.2004). See also [ In re Adoption of M.M.G.C.], 785 N.E.2d 267, 270 (Ind.Ct.App.2003); [ In re Infant Girl W.], 845 N.E.2d 229 (Ind.Ct.App.2006) [ trans. denied ]; [Mariga v. Flint], 822 N.E.2d 620 (Ind.Ct.App.2005).

6. The above-cited cases are highly fact specific. They do share a common component: The adoptive parent and the consenting parent cohabitate. The adults and the child form a cohesive family unit. The adoptive parent provides primary, day-to-day care for the child.

7. [Grandfather] concedes that he does not live in the same house as [A.M.], but argues that he provides significant emotional and financial support for the child. [Grandfather] does see [A.M.] 3 to 4 times per week. The child regularly visits his home. [Grandfather] is the primary male figure in [A.M.]' s life. He also provides significant financial support for the child. However, it cannot be said that [Grandfather], [Mother], and [A.M.] form a family unit as contemplated by the Appellate Court in [ K.S.P.].

8. [Grandfather] argues that the holding in [ K.S.P.] should be expanded to include grandparents who do not reside in the child's home and who do not provide primary care for the child on an everyday basis. This may indeed be desirable. However, it is beyond the authority of the trial court to grant this relief. Modification of the Indiana adoption statutes, as urged by the petitioner, requires legislative, and not judicial, action.

Appellant's Appendix at 5-6.

The issue is whether the trial court erred in denying Grandfather's petition to adopt A.M.² Grandfather argues that he and M.L.M. “are not proposing a ‘new adoptive family’ for A.M. To the contrary, all the evidence showed that they fully intend that nothing at all should change in [A.M.'s] life.” Appellant's Brief at 6. Grandfather also argues that “[f]rom the child-centric point of view of [A.M.], everything would go on as before in that both [Grandfather] and [Mother] will continue to act as [A.M.'s] parents.” Id.

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 will neither reweigh the evidence nor assess the credibility of witnesses, and we will examine only the evidence most favorable to the trial court's decision. Id. We owe no deference, however, to a trial court's legal conclusions. Id.

The Indiana Supreme Court has held that the best interests of the child is the primary concern in an adoption proceeding. Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1058 (Ind.1992). “[T]the adoption statute creates a statutory proceeding unknown at common law,” and we “must strictly construe the statute in favor of the rights of biological parents.” In re B.W., 908 N.E.2d 586, 592 (Ind.2009) (citing Adoptive Parents of M.L.V., 598 N.E.2d at 1056). Although the adoption statute is to be strictly construed, the statute is not to be so strictly construed as to defeat its purposes. Emmons v. Dinelli, 235 Ind. 249, 260-261, 133 N.E.2d 56, 61 (1956).

We will first consider In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind.Ct.App.2003), and In re Adoption of K.S.P., 804 N.E.2d 1253, 1256 (Ind.Ct.App.2004), which are cited by the trial court and by Grandfather. In In re Adoption of M.M.G.C., the court addressed whether a second adoptive parent may adopt a child without divesting the rights of the first adoptive parent. The court observed that the then existing Indiana statutory law did “not expressly divest the rights of an adoptive parent in the event of a second-parent adoption,” and “neither [did] it expressly permit two unmarried adults to simultaneously exercise these rights with respect to an adopted child.” 785 N.E.2d at 270. The court stated that “[h]aving determined that the adoption statutes do not specifically address the issue in this case, we must look to the common law.” Id.

The court held:

The right of adoption was unknown at common law. In Re Perry, 83 Ind.App. 456, 464-65, 148 N.E. 163, 166 (1925). 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. B.G. v. H.S., 509 N.E.2d 214, 217 (Ind.Ct.App.1987) [ reh'g denied ]. “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.” Id. 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.” Brooks v. Robinson, 259 Ind. 16, 22-23, 284 N.E.2d 794, 797 (1972). “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.” Sandy Ridge Oil Co. v. Centerre Bank Nat'l Assoc., 510 N.E.2d 667, 670 (Ind.1987). We note, however, that “such determinations should be consonant with the evolving body of public policy adopted by the General Assembly.” Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 7 (Ind.1993). 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.

Id. at 270-271 (emphasis added). The court expressly limited its holding by noting that it did not “reach the question of whether a second-parent adoption would divest all rights of a biological parent with respect to the...