COA Says Adoption Order Erroneously Issued by Trial Court

Case: In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erroneously issued an adoption order when it dispensed with the statutorily required background check, and did not consolidate a pending paternity action involving the same children with the adoption proceeding.

HELD: An adoption court is required to consolidate any paternity cases involving the child before ruling on the adoption petition.

FACTS AND PROCEDURAL HISTORY:
Father and Biological Mother had three children together, out of wedlock. Father’s paternity was established in 2012; as part of that proceeding, Father did not know Biological Mother’s address, so she was served by publication and did not attend the hearing. The paternity matter awarded Father physical and legal custody of the children, as well as a child support and parenting time order for Biological Mother.

Biological Mother would go on to have limited involvement with the children, seeing them roughly once a month when they were at her mother’s home. She also gave them birthday presents.

Father remarried in 2009, and, in 2015, his wife, Adoptive Mother, filed a verified petition to adopt the children. Biological Mother learned of this, and filed both an objection in the adoption court, and a motion to set aside the paternity order in the paternity court – citing lack of personal jurisdiction over her.

After a hearing, the adoption court granted Adoptive Mother’s petition to adopt the children, concluding that Biological Mother’s consent was unnecessary because she failed to support the children in a meaningful way for over a year. Biological Mother appealed.

The Court of Appeals had various issues with how this adoption was handled, but found one to be dispositive: Ind. Code 31-9-2-22.5 requires a particular background check for any would-be adoptive parent. The Court concluded that the limited check in this case did not substantially comply with the statute and, because the underlying policy for the background check is the safety of the children, Father’s argument that Biological Mother invited this error was unpersuasive.

The Court also decided, in a matter of first impression, that any paternity case involving a child must be consolidated into an adoption proceeding involving the child. When an adoption case and paternity case involving the same child are pending at the same time, the adoption court acquires exclusive jurisdiction. If the paternity matter were not consolidated into the adoption matter, then the adoption could be granted and then closed, leaving the paternity matter open but in limbo because of its lost jurisdiction over the child. If the adoption court always consolidates the paternity matter into it, it can issue consistent orders that resolve both adoption and paternity.

The trial court’s adoption order was reversed, and remanded with instructions to consolidate the paternity matter and to undertake a statutorily compliant background check.

To view the text of this opinion in its entirety, click here:
In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O.

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

New Indiana e-File Rules Put More Responsibility on Filers

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Effective July 1, 2016, the Indiana Supreme and Appellate Courts along with Hamilton County, Indiana Circuit and Superior Courts, go to mandatory e-filing for attorneys. Trial court filers should familiarize themselves with the new Rule 86 of the Indiana Rules of Trial Procedure effective for filings after June 30, 2016.

At the trial court level, attorneys now will need a few more forms in their bank of forms. The new rule now calls for 4 additional forms. The first form identified is the Acknowledgement of Service under Rule 86(G)(2)(ii) which is similar to the form used in the US District Courts. This occurs if the filer personally serves the complaint and summons or mails the summons and complaint by first class mail. The filer prepares the summons and transmits the summons to the clerk. The clerk will then stamp, add the cause number, seal, and sign the summons and return it to the filer. The rule requires the filer to file the Acknowledgement of Service with the clerk. If the respondent or defendant refuses to sign the form, the filer shall then immediately file an Affidavit of Service with the clerk. If the filer files by copy service, the filer shall leave a copy at the proper address, mail a copy of the summons and file with the clerk the Affidavit of Service, similar to the method used by a sheriff in copy service.

Also, under Rule 86, now if the filer is serving the respondent or defendant by certified or registered mail, the filer prepares the summons and transmits the summons to the clerk. The clerk will then stamp, add the cause number, seal, and sign the summons and return it to the filer. The filer will then send the summons by certified or registered mail, and then promptly file with the clerk the Certificate of Issuance of Summons which must contain the method of service with respect to each party, the date of mailing, address of each party, and tracking or identifying number for each summons under Rule 86(G)(2)(c). Once service has occurred then the filer must file with the clerk an Affidavit of Service setting forth the date of service, the person served, and the address served. Since the name may not be legible on the receipt from the post office, we believe the best practice until directed otherwise would be to attach a copy of the receipt.

For service by publication under Rule 86(G)(2)(e), the filer prepares the summons and transmits the summons to the clerk along with an Affidavit for Service by Publication to the Clerk as provided in Trial Rule 4.13. The clerk will then stamp, add the cause number, seal, and sign the summons and Affidavit for Service by Publication and then return them to the filer. The filer shall deliver the summons to the publication authorized by Trial Rule 4.13(C), with instructions that after the completion of the period of publication the return shall be sent to the Clerk.

Another form you should add is the new E-Filing Appearance By Attorney In Civil Case. This has many changes.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in News0 Comments

The Basics of Bankruptcy: 7-Part Vignettes Series, July – September

ICLEF Presents a no-frills, low cost, high caliber continuing legal education, The Basics of Bankruptcy: 7-Part Vignettes Series. Bringing you experienced attorneys and jurists to discuss seven specific Bankruptcy topics.

Now, at your convenience, in one and two-hour live “nuts and bolts” presentations, you may gather the latest information while gaining valuable insight in a variety of Bankruptcy practice areas…. All arranged for your advantage.
___________________________

SEMINARS:
Affects of Bankruptcy on Divorce
1 CLE – Tuesday, July 19, 12:15 P.M. – 1:15 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Individual Webcast: From your home or office computer

Mysteries of the Means Test Revealed
2 CLE – Tuesday, July 26, 11:00 A.M. – 1:00 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Group Webcast: Taft Law Office, Indianapolis
Live Individual Webcast: From your home or office computer

Ethics in Bankruptcy
1 CLE / 1 E – Tuesday, August 2, 12:15 P.M. – 1:15 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Group Webcast: Ice Miller Law Office, Indianapolis
Live Individual Webcast: From your home or office computer

How to Avoid Common Mistakes in Bankruptcy
1 CLE – Tuesday, August 9, 12:15 P.M. – 1:15 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Individual Webcast: From your home or office computer

Dealing with Student Loan Debt in Bankruptcy
1 CLE – Tuesday, August 16, 12:15 P.M. – 1:15 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Group Webcast: Ice Miller Law Office, Indianapolis
Live Individual Webcast: From your home or office computer

Chapter 7 Bankruptcy Proceedings
2 CLE – Wednesday, August 31, 11:00 A.M. – 1:00 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Individual Webcast: From your home or office computer

Litigation in Bankruptcy
1 CLE – Wednesday, September 14, 12:15 P.M. – 1:15 P.M.
Live In-Person: ICLEF Conference Facility, Indianapolis
Live Individual Webcast: From your home or office computer
___________________________

FACULTY:
Mark S. Zuckerberg – Series Chair
Bankruptcy Law Office of Mark S. Zuckerberg, P.C., Indianapolis, IN

Honorable Jeffrey J. Graham
United States Bankruptcy Court, Indianapolis, IN
Seminars: Chapter 7 Bankruptcy Proceedings & How to Avoid Common Mistakes in Bankruptcy

Michael J. Hebenstreit
Whitham Hebenstreit & Zubek, LLP, Indianapolis, IN
Seminar: Affects of Bankruptcy on Divorce

Joseph F. McGonigal or a Representative from the Office of the United States Trustee
Office of the United States Trustee, Indianapolis, IN
Seminars: Chapter 7 Bankruptcy Proceedings, Ethics in Bankruptcy & How to Avoid Common Mistakes in Bankruptcy

Ronald J. Moore or a Representative from the Office of the United States Trustee
Assistant United States Trustee, Office of the United States Trustee, Indianapolis, IN
Seminar: Mysteries of the Means Test Revealed

Sally J. O’Connor
Bankruptcy Law Office of Mark S. Zuckerberg, P.C., Indianapolis, IN
Seminar: Dealing with Student Loan Debt in Bankruptcy

James E. Rossow, Jr.
Rubin & Levin, P.C., Indianapolis, IN
Seminar: Litigation in Bankruptcy

Gregory K. Silver
Attorney and Trustee, Indianapolis, IN
Seminar: Chapter 7 Bankruptcy Proceedings

Stacy M. Wissel
Chapter 7 Trustee, Decker, IN
Seminar: Chapter 7 Bankruptcy Proceedings

 

ICLEF • Indiana Continuing Legal Education Forum, Indianpolis, IN

Posted in Highlighted Seminars0 Comments

Are You or Your Clients Incurring Liability for Your Children Under the Affordable Care Act (ACA)?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

One of the issues the new proposals to the Indiana Child Support Guidelines attempt to address are new requirements of the ACA. The ACA requirements actually have existed for tax years 2014 and after. In drafting custody and support agreements, parties should address tax exemptions, health insurance coverage for children and uninsured medical. Under the ACA if one party is to carry health insurance on the child and the other party claims the exemption, the party who claims the exemption can be penalized and for each month in which there is not insurance coverage for the child which meets the requirements of the ACA. Many orders contain language that Party X must maintain insurance if the insurance if available at a reasonable cost through their employer and is reasonable accessible to the child. The ACA does not limit the coverage to that reasonably available through the employer. The ACA requires the party to obtain private insurance, insurance through the Healthcare Exchange or one of the taxpayer subsidized plans. One place to start to look as to whether a person is required to carry the insurance even if not required by the order they should look here. http://www.irs.gov/uac/Am-I-required-to-make-an-Individual-Shared-Responsibility-Payment%3F

Your client should also look here for additional information. http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/ACA-Individual-Shared-Responsibility-Provision-Calculating-the-Payment

To see the penalties for not having coverage look here. https://www.healthcare.gov/fees-exemptions/fee-for-not-being-covered/

________________________________________________________________________

Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in News0 Comments

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