Tag Archive | "adoption"

The Court of Appeals Remands for a New Consent Hearing, Noting Trial Court Erred by Denying Mother’s Due Process Rights.

Family Law Case Review

Case: SR v. MJ
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred by denying Mother her due process rights when, at the beginning of a hearing to determine whether Mother’s consent was required for an adoption of her child, the trial court did not afford Mother with her right to counsel, or to ensure that Mother was knowingly and voluntarily waiving same.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child together in 2009. Paternity was established, and orders were issued for custody, parenting time, and child support. Father was awarded custody. Mother apparently had a problematic relationship with alcohol that resulted in legal and other problems. There was some dispute about the amount of contact Mother had with Child thereafter.

In 2013, Father remarried Stepmother, who became the primary caretaker of Child. Stepmother later filed a petition to adopt Child, reciting that Mother’s consent was unnecessary due to Mother’s abandonment and failure to support. When Mother received notice of the adoption proceeding, she filed a pro se objection.

In 2015, the adoption court held a consent hearing. At the outset, Mother requested counsel. After inquiring as to Mother’s financial condition, the adoption court determined that Mother, who made $10/hr at one job and $7.50/hr at another, had sufficient income to pay for an attorney and therefore Mother had made a “voluntary choice” to proceed without counsel. The hearing proceeded. Stepmother presented her case, including testimony from Stepmother and Father. Mother made no cross-examination.

At some point during Mother’s case-in-chief and testimony, Stepmother expressed an objection that the trial court, from Stepmother’s perspective, was asking questions and participating in the hearing as though advocating for Mother. As a result, the court continued the hearing and appointed counsel for Mother.

The adoption court began the next hearing, at which Mother appeared with appointed counsel, by announcing that this was not a “new hearing,” but would pick up where the earlier hearing left off. Mother offered more of her own testimony.

After the hearing, the adoption court concluded that Mother’s consent was not necessary for the adoption, citing Mother’s insufficient contact with Child. The court later granted Stepmother’s adoption as in the best interests of Child. Mother appealed.

The Court of Appeals noted that a parent whose parental rights are subject to termination in an adoption proceeding has three rights: (1) the right to be represented by counsel; (2) the right to have counsel provided if the parent cannot afford counsel; and (3) the right to be informed of the first two rights.

The Court of Appeals disagreed that Mother had voluntarily proceeded without counsel, as she requested counsel as soon as she learned that court-appointed counsel was a possibility. And, despite finding Mother was able to afford counsel, the trial court did not afford Mother an opportunity to acquire counsel or encourage her to do so. The adoption order was reversed and remanded for a new consent hearing, for which Mother should have counsel for its entirety, absent a knowing and voluntarily waiver by Mother of that right.

To view the text of this opinion in its entirety, click here: SR v. MJ

 

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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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Foster Parents Fail to Meet Burden that Father Failed to Communicate with the Children “when able to do so.”

Family Law Case Review

In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In adoption proceedings, one basis for dispensing with the consent of a natural parent is that the parent failed to communicate significantly with the children for a period of one year “when able to do so.” However, the Court of Appeals held this provision is not triggered when the parent is unaware of the children’s whereabouts, or prohibited by Court order from communicating with the children, as those are not circumstances where the parent is “able” to communicate with the children.

HELD: Even if the parent could have communicated with the children through the exercise of greater diligence that does not alter the analysis for purposes of determining whether consent to adoption is required.

FACTS AND PROCEDURAL HISTORY:
Children were born to Mother and Father in 2006 and 2008, respectively. When Mother and Father divorced, Mother moved away with the children without advising Father of their whereabouts. Mother apparently led the children to believe that her boyfriend was their biological father. At some point in 2010, Father learned that Mother and Children were living in Fort Wayne, but he had no specifics or address.

In 2012, CHINS proceedings were initiated for Children. The CHINS court learned Father had been paying support but had not seen the children since 2009. The court further precluded any parenting time for Father, for the indefinite future, determining it would be contrary to Children’s best interests pending a reunification plan.

Father continued to have no contact with Children. In 2014, Foster Parents filed a petition to adopt Children. Mother consented. Father filed his objection. After a hearing, the trial court concluded that Foster Parents failed to prove by clear and convincing evidence that Father’s consent was unnecessary, and dismissed the adoption. Foster Parents appealed.

Under Indiana law, the adoption of a child generally requires the consent of the child’s parents. However, by statute, consent is not required if it is shown either that, for a period of one year or more: (a) the parent fails without justifiable cause to communicate significantly with the child when able to do so; or (b) knowingly fails to provide for the care and support of the child when able to do so as required by law or a judicial decree.

Here, it was uncontroverted, between not knowing the Children’s location, followed by the Court no-visitation order that Father went over a year without significantly communicating with Children. The issue, then, was whether Father did not communicate with Children for this period of time “when able to do so.”

Foster Parents argued that, with an exercise of minimal diligence, Father could have either located the children’s whereabouts or, later, pursuant a reunification plan through the CHINS court. However, the Court of Appeals declined to impose upon a parent an expectation of any particular diligence. Here, at one point, Father did not know the whereabouts of the Children and, later, the Court ordered him not to visit with them. As a result, the Foster Parents failed to meet there burden that Father failed to communicate with the children “when able to do so.”

The trial court’s dismissal of the Foster Parents’ adoption was affirmed.

To view the text of this opinion in its entirety, click here: In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.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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COA Says Adoption Order Erroneously Issued by Trial Court

Family Law Case Review

Case: In re the Adoption of A.G. & J.G., A.R. v. M.G. & J.G.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The granting of an adoption, which terminated Mother’s parental rights, was error because Mother’s right to have counsel during the proceedings was not properly afforded.

FACTS AND PROCEDURAL HISTORY:
Father’s wife, along with Father, filed a petition to adopt Children. Mother was served as the natural parent of Children. Mother promptly filed a pro se objection to the adoption petition, along with a request for the appointment of a civil public defender to represent her. After a hearing, Mother’s request was granted, and Attorney was appointed to represent Mother.

As the adoption hearing approached, Attorney filed a motion to withdraw, citing Mother’s lack of cooperation and communication. Attorney’s motion to withdraw was granted, and the adoption hearing proceeded. The trial court ultimately decided to hold the adoption hearing, entertain the Petitioners’ testimony and evidence, but then left the record open for two weeks in the event Mother acquired private counsel. Mother never did so, and the adoption decree was subsequently entered.

Mother appealed.

The Court of Appeals noted that, whenever parental rights are being terminated, including in the course of an adoption, the parent has (1) the right to be represented by counsel, (2) the right to have counsel provided if they cannot afford one, and (3) the right to be informed of the two preceding rights.

Here, it was dispositive that Attorney’s withdrawal did not comply with the local rules. The applicable local rules permit an automatic withdrawal of counsel only if other counsel appears concurrently, counsel was plainly discharged by the client, or the party consents to the withdrawal; in all other circumstances, the attorney must show good cause, and give the client 21-day written notice of the intention to withdraw. Attorney’s withdrawal did not comply with these rules.

Since Mother’s right to counsel was violated by the procedurally improper withdrawal of Attorney, the Court of Appeals reversed and remanded the adoption decree for further proceedings. The Court was not persuaded by the appellee’s argument that Mother invited the error by not cooperating and communicating with Attorney.

Reversed and remanded.

To view the text of this opinion in its entirety, click here: In re the Adoption of A.G. & J.G., A.R. v. M.G. & J.G.

 

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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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What Adoption Lawyers Must Know: The New ICWA Regulations, Nov. 11

The Bureau of Indian Affairs has published revised, sweeping new regulations regarding the rights and protections of native families and children under the Indian Child Welfare Act (ICWA). This program will address the existing Indian Family exception in Indiana and how reliance upon that exception is no longer possible.

The discussion will also emphasize when compliance with ICWA is required, how to comply & forms.

Our discussion is led by nationally recognized experts Larry S. Jenkins & Jay McCarthy, Jr. and moderated by Indiana’s Steven M. Kirsh.
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FACULTY:
Larry S. Jenkins
Kirton McConkie PC, Salt Lake City, UT

Phillip “Jay” McCarthy, Jr.
McCarthy Weston PLLC, Flagstaff, AZ

Moderated By
Steven M. Kirsh
Kirsh & Kirsh, Indianapolis, IN
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WHAT ADOPTION LAWYERS MUST KNOW:
THE NEW ICWA REGULATIONS
3 CLE – Friday, November 11, 1:00 P.M. – 4:15 P.M.

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCAST
– From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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