Father’s Due Process Rights Violated in Proceeding That Would Terminate His Parental Rights

Case: In Re the Adoption of K.W.: M.W. v. S.L. and T.L.
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Father’s due process rights were violated when the trial court failed to rule on Father’s request for appointed counsel in an adoption proceeding that would terminate Father’s parental rights.

FACTS AND PROCEDURAL HISTORY:
Child was born to Mother in 2004. In 2008, Mother was diagnosed with Crohn’s disease. Mother died in 2009 as a result of a lethal dose of pain medication administered by Father, who was an EMT. Father was arrested and Child’s maternal grandmother (“Grandmother”) acquired guardianship of Child. Father later pleaded guilty to charges related to Mother’s death, and was sentenced to 12 years.

In 2013, Grandmother and her husband (“Grandparents”) filed a petition to adopt Child, and notice of same was issued to Father. Father responded with a pro se appearance, as well as a motion to have counsel appointed for him based upon indigence. The trial court never ruled on this motion.

At a subsequent hearing on Grandparents’ adoption petition, Grandparents appeared and Father appeared pro se telephonically. The trial court determined that Father’s consent to the adoption was not required, and granted the adoption in favor of Grandparents, thereby terminating Father’s parental rights. Father appealed.

The Court of Appeals noted that Ind. Code 31-32-2-5 provides that a parent is entitled to counsel in a proceeding that terminates parental rights. Thus, Father was entitled to counsel in the Grandparents’ adoption matter.

The trial court’s adoption order was reversed, and remanded with instructions to determine whether Father is indigent and, if so, to appoint counsel to represent Father at a new adoption hearing.

To view the text of this opinion in its entirety, click here: In Re the Adoption of K.W.: M.W. v. S.L. and T.L.

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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

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Indiana Court of Appeals Affirmed Trial Court’s Ruling That It Had Jurisdiction to Modify Custody

Case: In re the Paternity of: J.G. (Minor Child), H.G. v. T.C. III 
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll (with thanks to Tamara McMillian)

HELD: The Indiana Court of Appeals affirmed the trial court’s ruling that it had jurisdiction to modify custody, and that the evidence supported the order granting Father primary physical custody of the minor child.

FACTS AND PROCEDURAL HISTORY:
In 2005, Child was born out-of-wedlock to Mother and Father. After Child’s birth, Mother moved several times with Child to a number of states and residences while Father and his family remained residents of Crawford County. In 2008, Mother requested food stamps in Kansas. The State of Kansas send a request to Crawford County under the Uniform Interstate Family Support Act (UIFSA). Ultimately, Crawford County Circuit Court opened a paternity action.

In 2009, Father’s paternity of the minor child was established and the court ordered Father to pay support of $53/wk. The trial court also awarded Mother primary physical custody of the minor child and awarded Father parenting time and telephone contact according to an agreed upon schedule. Between 2010-2012, Father exercised sporadic parenting time due to Mother’s frequent moves.

In 2012, Mother returned with Child to reside in Indiana. Father enrolled Child in school. During the 2012 winter break, Mother relocated to Nevada with Child without informing Father or filing a notice of intent to relocate with the trial court.

In 2013, the trial court conducted an evidentiary hearing and concluded that Mother’s unauthorized move to Nevada interfered with Father’s parenting time, was inappropriate, and in contempt of the court’s order. The trial court also ultimately awarded Father physical custody of the minor child, restricted Mother’s parenting time, and ordered Mother to pay support of $53/wk. Mother appealed.

The Court of Appeals concluded that the trial court had subject matter jurisdiction to rule on any custody and parenting time issues. It also affirmed the trial court’s decision that it was in Child’s best interest for a change of physical custody from Mother to Father. Mother argued that because this case initially opened in Crawford Circuit Court as a UIFSA paternity action, the trial court only had the authority to rule on paternity and child support issues. Mother asserted that the trial court could not address custody and parenting time issues without her and Father’s explicit consent. The Court of Appeals disagreed with Mother. The Court of Appeals reasoned that Mother and Father implicitly agreed to the trial court hearing and ruling on custody and parenting time issues when the parties entered into an agreement regarding custody and parenting time issues as a part of the paternity case.

Regarding the custody modification, the Court of Appeals upheld the trial court’s ruling that it was in Child’s best interest for a change of custody and there was a substantial change of circumstances. Mother was often transient and unstable. In 2012, Child suffered from multiple ringworm sites and bedbug bites while with Mother for summer parenting time. Father had stable employment and familial support in Indiana. The Guardian Ad Litem also supported the trial court’s conclusion that Father should have primary physical custody of Child. The trial court’s evidentiary findings support the trial court’s modification ruling.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: In re the Paternity of: J.G. (Minor Child), H.G. v. T.C. III

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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

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Arbitrator Erred by Ordering Husband to Pay Wife’s Attorney Fees

Case: Robert A. Masters v. Leah Masters
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Adjudicating a dissolution of marriage, an arbitrator erred by ordering Husband to pay $95,000 towards Wife’s attorney’s fees, because the arbitrator’s order did not consider Husband’s ability to pay $95,000 in light of Husband’s income, expenses, assets, and his other obligations to Wife under the Decree.

While the Court of Appeals noted that a trial court in a marriage dissolution matter has broad discretion to award fees, “[w]e hold that the arbitrator’s findings are clearly erroneous because they do not demonstrate Husband’s ability to pay the fee assessed him.”  To the contrary, the evidence was that Husband had annual income of $80,000, that Husband was assessed a child support arrearage of over $17,000, and that the $95,000 fee award exceeded the value of Husband’s share of the total marital estate.

The attorney fee award was reversed and remanded with instructions for the entry of a reasonable fee award under the totality of the circumstances.

To view the text of this opinion in its entirety, click here: Robert A. Masters v. Leah Masters

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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

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Family Law Case Review: Deadline for College Expense Petition Age 19 or 21?

Case: Michael Dwain Neal v. Amanda Lee Austin
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In determining whether the deadline is age 19 or age 21 for filing a petition for a college expense order, the dispositive factor is whether the most recent child support order was issued before or after July 1, 2012, not when the original order establishing a child support obligation was issued.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2000, with two children. The agreement incorporated into the Decree established child support, but did not reference post-secondary educational expenses for the children.

On July 17, 2012, the trial court approved an Agreed Entry between the parties. At the time, the children were 20 and 17, respectively.  The Agreed Entry acknowledged the emancipation of the older child. The entry also modified custody and reduced Father’s weekly child support.

The younger child turned 19 on January 30, 2014. The following day, Father filed a petition for emancipation and to terminate his income withholding order. Mother responded with a petition for post-secondary educational expenses. Father moved to dismiss Mother’s petition for educational expenses, which the trial court denied. Following an evidentiary hearing, Father was ordered to contribute to the younger child’s college expenses, from which Father appealed.

The appeal focused on the statutory framework that addresses the deadline for filing a petition for college expenses in light of the recent lowering of Indiana’s weekly child support termination age from 21 to 19.

By statute, if a court established a duty to support a child prior to July 1, 2012, then the parent or child must file a petition for college expenses before the child turns 21. If, however, a court established a duty to support on or after July 1, 2012, then the college expense petition must be filed by the child’s 19th birthday.

In this case, the parties had their original Decree which established an obligation to support the children which was issued in 2000, prior to the July 1, 2012 deadline. However, their Agreed Entry – which modified child support – was issued after July 1, 2012. Father urged the statutory construction that, because the Agreed Entry was approved by the Court after July 1, 2012, then the deadline for a college expense petition should be 19. The Court of Appeals agreed with Father.

The Court developed the applicable rules of statutory construction and used those and the legislative history to hold that “where the most recent order establishing child support was issued after June 30, 2012, the child must file a petition for educational needs before the child becomes nineteen years of age.”

The trial court’s post-secondary educational expense order was reversed.

To view the text of this opinion in its entirety, click here: Michael Dwain Neal v. Amanda Lee Austin

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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