In a 2-1 opinion issued today, the Indiana Court of Appeals ruled that Indiana's Adoption Act allows unmarried couples, whether gay or straight, to adopt children. In a consolidated appeal, the majority found that Marion Co. Probate Judge Charles Dieter properly exercised jurisdiction over the joint adoption petition of a lesbian couple, and that he properly granted the adoption. The majority concluded that Morgan County Juvenile Court Judge Matthew Henson, who had objected to the adoption of the infant child by an unmarried couple, erred in refusing to dismiss the CHINS proceeding for the infant child in his court after Judge Dieter approved the child's adoption.
AI spotlighted his case, In the Matter of Infant Girl W & In the Matter of Adoption of M.W., in February after the Court of Appeal heard oral arguments in the case. We detailed the history of the case as follows:
In the majority opinion written by Judge Baker and joined by Judge Vaidik, the court first notes that the State's argument that comity commanded that Judge Dieter refrain from exercising jurisdiction over the adoption of the child while the CHINS proceeding in Morgan County was still active was waived "inasmuch as it failed to object on those grounds or to file a [Rule] 12(B)(8) motion to dismiss" before Judge Dieter granted the adoption petition. The Office of Family & Children (OFC) argued that it had not waived those arguments because the adopting parents had notice of the pending CHINS action in Morgan County. Chastizing the OFC's failure to timely object in the adoption proceeding, Judge Baker wrote:
In 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mother’s parental rights; however, he rescinded the order upon learning that the local agency intended an adoption of the child by same sex, unmarried parents in January, 2005, after the child had already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.
We do not believe that it is "naive" to expect a party to comply with the rules by raising a timely and specific objection to the trial court's jurisdiction at the first opportunity. Because it failed to raise a timely and specific objection regarding the probate court's jurisdiction, OFC has waived these arguments.
But even if OFC had timely raised the issue of comity, Judge Baker noted that the probate court would still have been properly exercising jurisdiction. He wrote, in part:
Probate courts have concurrent jurisdiction with juvenile courts in proceedings on a petition to terminate the parent-child relationship involving a CHINS . . . Probate courts have exclusive jurisdiction over all adoption matters. Thus, juvenile courts have no authority to create permanent parent-child ties through adoption or to rule on any other adoption matters.
The Court next rejected OFC's argument that the probate court erred in granting the parents' petition because the Indiana Adoption Act does not permit an unmarried couple to adopt. Noting the cardinal rule of statutory construction--"that if a statute is unambiguous, then we need not and cannot interpret it; rather, we must apply its plain and clear meaning." Based upon its reading of the statute, the Court found that the Indiana Adoption Act contemplates adoptions by both individuals and married couples. Although the use of the term "individual" in the statute is written as singular, the Court held that "it is a well-settled rule of statutory construction that words used in their singular also include their plural." Further rejecting OFC's argument that the statute's requirement that married couples file jointly necessarily negates the right of unmarried couples to adopt, the Court wrote:
It is apparent to us that in enacting the statute, the legislature was requiring married persons to petition jointly for [other reasons]. But it does not follow that in placing this requirement upon a married couple, the legislature was simultaneously denying an unmarried couple the right to petition jointly. Indeed, contrary to OFC's arguments, there is nothing in the Adoption Act that suggests that to have been the legislature's intent. OFC does not argue that the section regarding married petitioners in any way affects the right of unmarried couples to adopt. Accordingly, we conclude that . . . an unmarried couple may file a joint petition to adopt a minor child.
Responding to Judge Najam's dissent, which argued that a provision of the Adoption Act amended by the legislature in 2005 concerning step-parent adoptions, evidenced a legislative intent to deny unmarried couples the right to adopt, the Court first made a distinction between adoptions involving unmarried couples and second-parent adoptions. Judge Najam argues that a 2005 amendment to the Act disallowed a sequential adoption by an unmarried couple, and that it would defy logic to allow a simultaneous adoption by the same unmarried couple in light of the 2005 amendment. The Court responded:
The simple truth, however, is that the legislature has not amended the Adoption Act to affect, in any way, the ability of an unmarried couple to file a joint petition to adopt. The statute is silent on that issue. Thus, our conclusion does not permit joint petitioners to avoid the 2005 amendment, inasmuch as it plainly, on its face, does not affect their rights in any way. Furthermore, the supposed connection between the legislature's pronouncement regarding second-parent adoption and the ability of an unmarried couple to file a joint petition to adopt is tenuous at best, and far from sufficient to glean a legislative intent to bar the practice altogether.
Judge Najam's hardline conservative dissent in this case is likely to come as a surpise to many in his hometown of Bloomington. The Democratic-appointed judge flat out concludes:
The Adoption Act neither authorized nor permits a joint petition for adoption by unmarried petitioners. I would hold that Indiana law does not allow an unmarried couple, regardless of their gender or sexual orientation, to file a joint petition to adopt a minor child.
Judge Najam traced a history of recent cases involving second-parent adoptions wherein the courts consistently held that a second-parent adoption does not divest the rights of the first adoptive parent. After these cases were decided, Najam notes that the legislature amended the Adoption Act concerning step-parent adoptions. The new statutory provision 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." Najam reasons that this provision contains a negative pregnant, i.e, a negative statement that also implies an affirmative statement. He writes:
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 of A is affected . . . [T]he controlling issue is not whether the case is about a second-parent adoption or a joint adoption but the marital status of the petitioners . . . Here, the 2005 amendment provides that an adoption by a second parent divests a previous adoptive parent of his or her parental rights if the two are not married, thus precluding sequential adoptions by an unmarried couple. It must follow that the legislature also intended to preclude unmarried couples from
filing joint petitions to adopt.
Najam's statutory construction is specious at best. If the legislature had truly intended to do what he says it did, it would have been much easier to have simply written the prohibition in plain and concise terms which everyone would understand. Instead, he would have us believe that the legislature intentionally resorted to "smoke and mirrors" to create the illusion of a prohibition. Even Najam concedes, the 2005 amendment was "not artfully drafted", but we should still give it great weight since "it is the legislature's most recent pronouncement on the effect of second-parent adoptions on parental rights."
This probably won't be the last word on this matter. It is likely that the State will appeal the decision to the state's Supreme Court. And you can bet that the Christian right will be pushing the legislature for outright prohibitions on same-sex parent adoptions. The issue still leaves open the impact of the 2005 amendment on second-parent adoptions, a method many same-sex couples in Indiana have utilized in the past to adopt children.
A hat-tip to the Indiana Law Blog for catching the release of this important new decision.