Before this decision, same-sex couples had only been able to achieve legal status as same-sex adoptive parents of a minor child through a second-parent adoption procedure. This required the first parent to adopt a minor child in his/her individual capacity. At a later time, the second parent in a same-sex relationship would petition the probate court to become a second parent to the minor child, or in the case where one parent is a biological parent, only a second-parent adoption is required. The first adoptive parent or the biological parent would join the petition for the purpose of consenting to the second-parent adoption.
The legal status of second-parent adoptions had been placed in legal limbo a few years ago when some trial courts took the position that the adoption of the minor child by the second unmarried parent had the effect of divesting the first parent of all legal rigths with respect to the child. That issue was resolved favorably in a serious of decisions. The Indiana Court of Appeals held that Indiana common law permitted a second parent to adopt a child without divesting the rights of the first adoptive parent. A similar result was reached by the Court of Appeals when the first parent was a biological parent. And, in another case, the Court of Appeals held that "the precedent for same-sex couple adoption" having been established in previous cases, the second adoptive parent could not vacate the adoption and abandon her legal support for the adoptive child.
As the Matter of Infant Girl W & The Matter of The Adoption of M.W. points out, this is the first case that presented the question of whether two unmarried adults may adopt a child by filing a joint petition for adoption. And the Court of Appeals decided that Indiana's Adoption Act indeed permits unmarried persons to file a joint petition for adoption. But the dissenting opinion puts up a forceful argument that a 2005 amendment to the Indiana Adoption Act now prohibits the previously-recognized second parent adoptions by unmarried persons. Judge Najam writes in his dissenting opinion that the prior decisions for second parent adoption were negated by the new law:
[T]he legislature has enacted a statute that largely negates their operation and effect. In 2005, the legislature clearly responded to these cases with an amendment to the Act which underscores its intent that when a child has two adoptive parents, the parents must be married to each other . . . the Indiana General Assembly amended the stepparent adoption statute to make it clear that the "divesting" provision of Indiana Code 31-19-15-1 does, indeed, apply to stepparent adoptions when the first and second parents are not married to each other and neither is the biological parent.
The new language Najam refers to reads: "If the adoptive parent of a child is married to a previous adoptive parent, the parent-child relationship of the previous adoptive parent is not affected by the adoption." So is Judge Najam correct in asserting that the effect of the 2005 amendment was to end second parent adoptions for unmarried persons? The majority opinion written by Judge Baker does not specifically answer the question; however, Judge Baker concedes that Judge Najam may be right on this point. Baker writes, "And while it may be true that the General Assembly has spoken regarding second-parent adoption, there is simply nothing in the Adoption Act suggesting that it intends to preclude all unmarried couples from adopting.
A look at the legislative history surrounding the enactment of the 2005 amendment casts doubt on Najam's contention that second-parent adoptions are no longer permitted for unmarried couples. Senate Enrolled Act 422 was introduced by former Sen. Murray Clark (R-Indianapolis) and was sponsored by Rep. David Frizzell (R-Indianapolis) in the House. SEA 422, as introduced, dealt with various adoption procedures according to the Legislative Services Agency's synopsis. Curiously, the portion of the bill which is cited by Judge Najam as the source of legislative intent for ending second parent adoptions by unmarried persons, is not referenced in LSA's synopsis. And the cited amendment in the introduced version of the bill was substantially different than the final version which became law.
Prior to the 2005 amendment, IC 31-19-15-1 read: "Except as provided in section 2 of this chapter or IC 31-19-16, if the biological parents of an adopted person are alive, the biological parents are relieved of all legal duties and obligations to the adopted child and the biological parents are divested of all rights with respect to the child after the adoption." Section 2 further provided, "If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of the biological parent is not affected by the adoption." As introduced, SB 422 proposed amending the statute to read as follows:
Sec. 1. (a) Except as provided in section 2 of this chapter or IC 31-19-16, if the biological or previous adoptive parents of an adopted person are alive, the:
(1) biological or previous adoptive parents are relieved of all legal duties and obligations to the adopted child and except as provided in subsection (b);
(2) biological or previous adoptive parents are divested of all rights with respect to the child; and
(3) parent-child relationship between the biological or previous adoptive parents is terminated; after the adoption.
SB 422, as introduced, clearly divests the parental rights of either a biological parent or a previous adoptive parent after the adoption by the second parent takes place. But the bill was amended in the Senate after its introduction, and that version differs substantially in effect. The final version instead added a new subsection (b) to Section 2, which reads: "If the adoptive parent of a child is married to a previous adoptive parent, the parent-child relationship of the previous adoptive parent is not affected by the adoption." The divestiture language added to Section 1 of the original bill was stripped. In its place was added the following language in a new subsection (b): "The obligation to support the adopted person continues until the entry of the adoption decree. The entry of the adoption decree does not extinguish the obligation to pay past due child support owed for the adopted person before the entry of the adoption decree."
Evidencing the legislature's intent not to deny unmarried gay person's the right to adopt was the failed effort of Sen. Jeff Drozda (R) to amend the bill to add a new section to the Adoption Act, which would have read: "Only a married couple that consists of individuals of the opposite sex are eligible to adopt under this article." GayIndy.Org reported on Drozda's failed effort at the time as follows:
Sen. Murray Clark has successfully moved SB 422 (Adoption procedural requirements) through second reading in the Indiana Senate without the proposed ban on adoption by single adults and same-sex couples.
The proposed amendment by Senator Jeff Drozda (R-Westfield) would have amended the bill to state that "only a married couple that consists of individuals of the opposite sex are eligible to adopt under this article."
Under current Indiana law unmarried couples - whether straight or gay - and single adults are able to adopt children. Unmarried and single persons are providing loving and secure homes to countless Hoosier children. If this amendment to SB 422 had been adopted, the ability of unmarried couples and single adults to adopt children would have ended.
The bill, as amended, sailed through the Senate unanimously on a 48-0 vote. In the House, it passed on a 95-1 vote. Only Rep. David Orentlicher (D-Indianapolis) voted against SB 422. If the legislature truly intended to end second-parent adoptions for unmarried couples, it would seem that it would have stuck with the original language in the introduced bill, which affirmatively divested the first parent of their parental rights upon the approval of the second parent adoption, or,. even better, adopted Drozda's amendment. To interpret the 2005 amendment as divesting the first parent of his/her rights, it requires interpreting the statute as a negative pregnant, i.e, a negative statement tht also implies an affirmative statement. As Judge Najam interprets it:
Here, the negative statement that if adoptive parent B is married to previous adoptive parent A, then the parent-child relationship of A is not affected also means that if adoptive parent B is not married to previous adoptive parent A, then the parent-child relationship is affected.
To reach Judge Najam's conclusion, one would have to believe that Sen. Clark simply replaced the offending language in the introduced bill with new language, which even Najam concedes was "not artfully drafted", simply to trick legislators into believing that the right of second-parent adoptions by unmarried parents would not be affected. It is doubtful that was Sen. Clark's intent, but, unfortunately, because of his inartful drafting, the issue remains an open question which casts a cloud over what is otherwise a landmark decision for gay rights in Indiana.