A three-judge panel of the Indiana Court of Appeals is facing a difficult challenge in deciding a case argued before it just last week concerning the validity of adoptions by unmarried same sex partners under Indiana law. A panel consisting of Judges John Baker, Edward Najam, Jr. and Nancy Vaidik, heard arguments on both sides of the issue in a consolidated action arising from a child in need of services (CHINS) proceeding in Morgan County Juvenile Court and an adoption decree entered by the Marion County Probate Court, both of which pertained to the same child. Whatever decision the court reaches, the decision is likely to become a rallying cry for the losing side.
The Matter of Infant Girl W originated when the Morgan County Office of Family & Children instituted a CHINS proceeding to terminate the parental rights of an infant child's biological mother. The local agency temporarily placed the infant child with lesbian partners who resided in Morgan County as the child’s foster parents. The couple had cohabitated together for more than 10 years, and the local agency encouraged the couple to consider an adoption of the infant child, having concluded that the adoption of the child by the lesbian couple would be in the child’s best interests.
The agency proceeded with the termination of parental rights matter in the court of Circuit Judge Matthew Hanson. Hanson orally ordered the termination of the birth mother’s parental rights; however, he rescinded the order upon learning that the local agency intended an adoption of the child by same sex, unmarried parents in January, 2005, after the child had already been with the couple for more than 6 months. Judge Hanson entered an order finding the best interest of the child to be adoption by a “couple”, which he defined to mean “a man and a woman that are married.”
The foster parents, who were not a party to the Morgan County proceeding, petitioned the Marion County Probate Court for a two parent adoption of the infant child with the support of the biological mother. Superior Court Judge Charles Deiter granted the lesbian couple’s petition to adopt the child last April after concluding that the state’s refusal to consent to the adoption was being unreasonably withheld.
From the record, it is clear that Judge Dieter knew of the pending CHINS case in Morgan County and, in general, of Judge Hanson’s disinclination to grant adoptions to same sex, unmarried parents. The Morgan County Office of Family & Children was also aware of the action in Marion County, but did not timely file a motion to dismiss the case under Indiana Trial Rule 12(B)(8) asserting that a same action was pending in another state court.
A defiant Judge Hanson refused to recognize the adoption order entered by Judge Dieter and denied a motion by the adoptive parents to dismiss the pending CHINS action in Morgan County. The adoptive parents made an interlocutory appeal of Judge Hanson’s ruling, and the state appealed the adoption order granted by Judge Dieter, a case referred to as The Adoption of M.W. The appeals were consolidated into a single proceeding because they arose from a common nucleus of facts.
The consolidated case was presented to the Court of Appeals with two primary issues: (1) whether the state waived its right to appeal the adoption order because it did not timely file a Rule 12(B)(8) motion to dismiss, or alternatively whether Judge Dieter should have deferred to the Morgan County court out of respect for judicial comity; and (2) more importantly, whether Indiana’s adoption law allows for joint adoptions by unmarried couples.
If the Court of Appeals wants to play it safe, it can simply decide the case on procedural grounds and send it back to the lower courts. If that means Judge Dieter’s order stands, gay rights activists will be pleased. If that means Judge Dieter’s order is set aside and the case remanded back to Judge Hanson, those who oppose gay parent adoptions will be pleased.
The larger issue looming in the case, however, is whether unmarried, same sex couples may adopt. Both sides agree that Indiana’s adoption law neither expressly permits, nor prohibits unmarried couples to adopt children. Both sides also agree that Indiana’s adoption law expressly permits adoptions by married couples and single parents. The question is whether the legislature, through its silence, meant to allow or prohibit unmarried couples to adopt.
In at least four cases, the Indiana Court of Appeals has upheld the validity of adoptions granted to unmarried, same sex couples. Those cases include a second parent adoption following the first parent’s adoption and joint adoptions. The Indiana Supreme Court has not specifically ruled on the issue, although a case is currently on appeal to the high court which could change that. Frances Barrow, arguing for the state, believes all four court of appeals decisions were wrongly decided.
Barrow maintains that the legislature only intended to allow single parents (regardless of sexual orientation) and married couples to adopt under I.C. §31-19-2-2. If a second parent is allowed to adopt following a first parent adoption, Barrow maintains that the first parent adoption is nullified. She conceded, though, that the state would not have objected to the adoption in the current case if only one of the lesbian parents had petitioned to adopt the child.
Barrow points out that the adoption statute at I.C. §31-19-2-4 requires the consent of both parents, in the case of a married couple as support for the proposition that only married couples may adopt. Had the legislature intended to allow unmarried parents to adopt, a similar consent requirement would have been included in the law Barrow argues. But the three-judge panel countered that consent, in the case of the unmarried couple, is effected by the filing of the joint adoption petition.
The state finds itself in an untenable position. It conceded to the court that the state’s own lawyer for the agency knew of the adoption petition pending in Judge Dieter’s court and made a conscientious decision not to file a Rule 12(B)(8) motion to dismiss it because she personally approved of the adoption by the lesbian couple. Ms. Barrow also conceded that the state agency had found the couple to be suitable parents, and that the only basis for its objection to the lesbian couple’s adoption of the child now was Judge Hanson’s determination that the child had to be adopted by a married couple.
Patricia Logue, arguing for the lesbian couple, asserts that the absence of a statutory prohibition on adoptions by unmarried, same sex couples, infers legislative approval of such adoptions. And alternatively, legislative acquiescence to such adoptions can be inferred from the inaction of the legislature in the face of the appellate court decisions approving of second parent adoptions. She points to the fact that many other states have similarly interpreted their adoption statutes which had nearly identical language to Indiana’s.
The three-judge panel seemed troubled by the notion of forum shopping. While conceding that the Marion County Probate Court had exclusive jurisdiction over the adoption as a distinct proceeding of the CHINS proceeding, the fact that the child and the adoptive parents resided in Morgan County bothered the panel that Morgan County had not been able to exercise jurisdiction over the adoption, as well as the CHINS proceeding. Given Judge Hanson’s predilection against same sex couples, Logue conceded the adoption petition was filed in Marion County because of the likelihood of it getting a more favorable reception from Judge Dieter, who has approved a number of gay parent adoptions.
Regardless of the outcome of this decision, it is not likely to be the end of the matter. The losing party will most certainly appeal the decision to the Indiana Supreme Court, and there will no doubt be further efforts by Christian fundamentalist organizations, such as Advance America and the American Family Association, to change Indiana’s adoption laws to specifically prohibit adoptions by same sex parents.
The judges are also no doubt mindful of the impact their decision will have. Legislative efforts in the last two sessions have sought to exert legislative participation in the judicial retention process as a means of exacting revenge on judges who make rulings disagreeable to a majority of legislators. The three-judge panel may hesitate to issue any ruling that is likely to stir further legislative action in that regard.
If you would like to view a video recording of the oral argument in this case, please click here.
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