Incarcerated Father’s Consent Not Needed in Guardianship Proceedings of Twins

Case: In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E. 
by Mike Kohlhaas, Bingham Greenebaum Doll  (with thanks to Tamara McMillian)

HELD: Trial court’s decisions denying that Father’s consent to the guardianship proceedings was required, denying Grandmother was entitled to notice of guardianship proceedings, and holding that Interstate Compact on the Placement of Children was inapplicable in the guardianship case, all were affirmed.

FACTS AND PROCEDURAL HISTORY: Mother and Father had Twins in 2011. Mother left the Twins with various family members and friends in South Bend, Indiana and in Benton Harbor, Michigan. Twins often resided with their paternal Grandmother in Benton Harbor. Father did not regularly or consistently exercise parenting time or provide for the Twins.

Guardian, a non-family member, approached Mother to adopt Twins in late 2011. Mother signed a consent form for Guardian to be the Twins’ guardian. Father was incarcerated and Guardian immediately took the Twins home with her to Bloomington, Indiana. Father received notice of the guardianship and adoption petitions. In November 2011, the trial court appointed Guardian as the Twins’ permanent guardian. Father objected and argued that the Twins should be placed with Grandmother.

In 2012, Grandmother intervened in both the guardianship and the adoption proceedings, petitioning to adopt the Twins. Grandmother argued that she should have received notice of Guardian’s attempts to adopt the Twins believing that she was one of the Twin’s primary caregivers. Guardian moved to dismiss Grandmother’s adoption petitions by alleging Grandmother failed to comply with Interstate Compact on the Placement of Children (“ICPC”). After the hearing, the trial court denied Father and Grandmother’s requests to place Twins with Grandmother and held Twins should remain with Guardian. Father and Grandmother appealed.

Under Indiana law, within one (1) year of the petition there is a two prong analysis to determine whether a parent’s consent is not required for an adoption. First, whether the parent failed to communicate with the child when able to. Second, whether the parent knowingly failed to provide care and support for the child.   The Court of Appeals agreed with the trial court’s conclusion that Father’s consent was not required for Guardian to initiate guardianship or adoption proceedings.  Father never paid his child support and wholly failed to support the Twins when he had the ability to do so.

Indiana notice statute states that notice is required to any person providing principal care and custody to a child with sixty (60) days preceding the petition’s filing date. The trial court held Grandmother was not the principal provider of the Twins.  Several related and unrelated people provided care to the Twins before Guardian filed a petition for guardianship. The trial court determined that the ICPC was inapplicable because Mother took the Twins from Michigan to Indiana and left the Twins with Guardian in Indiana. The Court of Appeals agreed in all respects.

The Court of Appeals noted the trial court’s discretion and determined that it was not in the Twin’s best interest to be placed with Grandmother. The trial court’s order was affirmed on all issues.

To view the text of this opinion in its entirety, click here: In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E.

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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