“Unfit” Father’s Consent Not Required in Adoption Proceeding

Family Law Case Review

Case: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In an adoption proceeding, the trial court’s determination that Father’s consent to the adoption was not required was affirmed based upon a finding that Father was an “unfit” parent. Father was previously convicted of molesting Child’s half-sister and served several years in prison prior to the initiation of the adoption proceedings.

FACTS AND PROCEDURAL HISTORY:  Child was born to Father and Mother in 2010. Mother’s daughter from a previous relationship also lived part-time with them. In 2012, Father was arrested for molesting Child’s half-sister. He later pled guilty to a class C felony and was sentenced to sixteen years with eight suspended. Mother divorced Father concurrent with the criminal proceedings.

Mother began dating Step-Father in 2013, and they married in 2016. Step-Father filed a petition for adoption, and Father filed an objection. After a hearing, the trial court determined that this matter involved one of the exceptions for the requirement that a parent consent to adoption. Specifically, consent is not needed where it is proven by clear and convincing evidence that the natural parent is “unfit to be a parent” and the best interests of the child would be served by dispensing with the parent’s consent.

On appeal, much of the discussion focused on the meaning of “unfit.” A primary argument of Father was that he was convicted of a class C felony, and that another subpart of the consent statute states that only class A or class B convictions trigger a potentially automatic dispensing of the need for consent. The Court of Appeals found this argument unpersuasive, in that rendering a class A or a class B conviction a potentially automatic waiver of consent, it does not follow that the circumstances underlying a class C conviction cannot lead a determination of unfitness.

Determining that the evidence most favorable to the trial court’s decision did not contradict its conclusion, the trial court’s decree of adoption was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver

 

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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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Subsequent Death of a Party Will Not Cause the Court to Lose Jurisdiction to Implement the Terms of the Decree

Family Law Case Review

Case: Judith M. Edwards (n/k/a Judith Klemos) v. Allen O. Edwards, Deceased, and D. Juatrice Edwards, as Personal Representative of the Estate of Allen O. Edwards
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: While it is generally true that a dissolution court loses jurisdiction over a matter upon the death of one of the parties, once a dissolution court has issued a final decree dividing the parties’ property, a subsequent death of a party will not cause the court to lose jurisdiction to implement the terms of the Decree thereafter.

FACTS AND PROCEDURAL HISTORY:  Husband and Wife were married for 20 years before their dissolution was entered by agreement in 2012. The Decree included provisions that allocated some of Husband’s retirement interests to Wife. QDROs or similar orders were not implemented thereafter to effect the division of Husband’s retirement accounts.

In 2016, Wife apparently learned that Husband was terminally ill with cancer and filed a motion seeking assistance from the Court in effectuating the division of Husband’s retirement accounts. Before Wife’s requested relief could be implemented, Husband died.

Litigation ensued between Wife and Husband’s surviving subsequent spouse. The dispositive issue was whether the dissolution court, as a matter of law, lost jurisdiction over the disbursement of Husband’s retirement accounts with Husband’s death. The trial court concluded that it lost jurisdiction, from which order Wife appealed.

The Court of Appeals stated that general rule that “dissolution proceedings terminate entirely with the death of one of the parties to the dissolution.” The Court reviewed applicable case law, but took particular interest in the 2001 Beard case. In Beard, the trial court had bifurcated dissolution proceedings, first granting the divorce but then deferring for subsequent resolution the division of the parties’ property. The husband in Beard died after the divorce was entered but prior to the division of property. The Court of Appeals ruled in that case that the death of a party after the dissolution was granted, but before property division was adjudicated, did not deprive the dissolution court of jurisdiction.

In the instant case, because Husband died after the Decree was entered, the trial court did not lose jurisdiction to follow through with its implementation, even after Husband’s death.

The trial court’s order was reversed and remanded for further proceedings.

To view the text of this opinion in its entirety, click here: Judith M. Edwards (n/k/a Judith Klemos) v. Allen O. Edwards, Deceased, and D. Juatrice Edwards, as Personal Representative of the Estate of Allen O. Edwards

 

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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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No Statutory Requirement to Publish Notice of Intent to Change One’s Genetic Marker

Family Law Case Review

Case: In re the Name Change of A.L. and In re the Name Change of L.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Unlike with a change of name, there is no statutory requirement to publish notice of intent to change one’s genetic marker.

HELD: While there is a statutory requirement to publish notice of intent to change one’s name, that requirement is subject to Administrative Rule 9 for purposes of sealing the record of the case and waiving publication of notice of intent to change name.

FACTS & PROCEDURAL HISTORY: L.S., a transgender man, has been living as a man for most of his life. He has been doing so full-time, in both his social and professional life, for about four years. In 2016, L.S. filed a petition for change of name and gender marker, a request for waiver of publication, a request to seal the record, and a notice of exclusion of confidential information per Admin Rule 9. After a hearing, the trial court noted that L.S. was acting in good faith and without an intent to defraud, but denied L.S.’s Admin Rule 9 request, ordering L.S. to publish his intent to change name and gender marker in a newspaper.

At the trial court level, L.S.’s Admin Rule 9 argument was that, because transgender individuals are subject to an increased risk of harassment and violence, the protections of Admin Rule 9 were necessary to protect L.S.  The trial court disagreed, finding that L.S. had failed to demonstrate that L.S. was specifically subject to any heightened risk of violence or harassment, and that his more general request would require that any transgender applicant would be entitled to Admin Rule 9 protections without demonstrating the applicant’s case-specific risk. L.S. appealed.

The Court of Appeals first addressed the purported requirement to publish notice of intent to change one’s gender marker. The Court noted that there is not a specific statute that provides a procedural roadmap for how an application to change gender marker is to be processed. Instead, the process relies upon Indiana’s statute that generally permits the amendment of birth certificates; that statute was construed by the 2014 Birth Certificate case as being subject only to a requirement that the petitioner demonstrate good faith and that the change is not being pursued for a fraudulent or unlawful purpose. In short, there’s no basis for requiring publication. Therefore, the trial court erred when it ordered that L.S. must publish his intent to change gender marker.

By contrast, Indiana statute requires publication for a change of name. There is no exception to the publication requirement, other than as furnished by Admin Rule 9. As a general rule, all court records are publicly accessible. However, Admin Rule 9 provides a list of potential exceptions to that general rule, one of which is where “[a]cess or dissemination of the Court Record will create a significant risk of substantial harm to the requestor . . . .”  In the instant case, L.S. had presented evidence of the heightened risk of violence to transgender individuals, but no evidence that he personally faced a specific risk. The Court of Appeals disagreed with the trial court’s analysis of the risk issue, finding that the evidence of risk presented by L.S. was sufficient to grant his request.

The trial court’s order was reversed and remanded with instructions that notice of intent to change gender marker is never required, and that Admin Rule 9 relief should be granted to seal the case and to waive the notice of publication requirement regarding the change of name.

 

To view the text of this opinion in its entirety, click here:
In re the Name Change of A.L. and In re the Name Change of L.S.

 

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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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Court Not in Err in Protective Order Violation, Then Ordering GPS Montoring

Family Law Case Review

Case: P.S. v. T.W.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a protective order violation matter, the trial court did not err when it found Husband in violation of the protective order and then ordered the Respondent to wear a GPS monitor as a consequence.

FACTS AND PROCEDURAL HISTORY:  Husband and Wife were in the midst of a divorce when Wife filed a petition for order of protection against Husband. The trial court held a hearing, concluded that Wife had presented adequate evidence in support of her petition, and a standard, comprehensive protective order followed.

Just over two weeks later, Wife filed an emergency motion to show cause alleging various violations of the protective order by Husband, including that Husband had been watching Wife, taking property from her, hacking into her email account, and attempting to communicate with Wife through a third party, all in violation of the underlying protective order. Based upon the evidence presented, the trial court agreed with Wife that Husband had violated the protective order. In response, the trial court ordered Husband to commence GPS monitoring and stay at least one mile away from Wife’s residence. Husband appealed.

Husband’s argument upon appeal included a due process argument that he was never put on prior notice that GPS monitoring might result from the hearing. The Court of Appeals rejected Husband’s due process argument by noting that Indiana’s protective order statute expressly states that GPS monitoring is an appropriate consequence for a protective order violation. And, since knowledge of the rights and remedies prescribed by statute is imputed to all persons, Husband’s argument that he was not on notice of a possible GPS monitoring order was without merit.

Husband also argued that there was insufficient evidence presented to the trial court to support a conclusion that Husband violated the protective order. The Court of Appeals viewed this as a request to reweigh the evidence, which it declined to do.

The trial court’s GPS monitoring order for violating an underlying protective order was affirmed.

To view the text of this opinion in its entirety, click here: P.S. v. T.W.

 

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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