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Indiana Court of Appeals Holds that Paternity Actions Should be Consolidated with Pending Adoptions - Family Law News

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Family Law News


Posted on: Jul 5, 2016

By Patricia L. McKinnon, Attorney at Law

On June 22, 2016, the Indiana Court of Appeals issued a new decision, "In Re:  Adoption of S.O, A.O, and N.O;  P.P, Appellate/Respondent v A.O, Appellee/Petitioner. The case is an appeal from the Hon. Kevin Barton, Johnson County Superior Court. It contains an issue of first impression. The court held: "Trial Court's grant of adoption is reversed and remanded with instructions to consolidate the paternity action and to order a statutorily complaint background check." You can find a copy of the opinion here. Read a summary of the decision below.

Biological mother, P.P. appealed the decision of the trial court to grant the step-mother's (A.O.'s) adoption of her children over P.P's objection. Three children were born, out-of-wedlock, to biological mother and and Father, L.O. Father's paternity and custody of all three children was established by Court Order issued on 5/4/12. The Father couldn't locate the Mother to serve her with notice of the paternity action so he served her by publication. The paternity judgment gave Mother parenting time. The Mother did not visit per the Court's parenting time order but did visit the children, once per month, when the visited their maternal aunt. Mother also gave the children birthday presents.

L.O., biological father, married Adoption Mother, A.O., in February, 2006. They had another child together. Adoptive Mother filed Motion to adopt children on May 27, 2015. Biological Mother could not be located in the adoption action. She was served by publication. Once Biological Mother learned of the adoption action, she filed an objection on August 13, 2015. On August 28, 2015, she filed to set aside the Paternity Judgment claiming the Order was void due to lack of personal jurisdiction over her.

Adoption Hearing was held on September 14, 2015. Paternity case had not been consolidated. Court said it was aware of paternity case and would consolidate case after the adoption hearing. On September 30, 2015, the trial Court granted adoption petition finding Biological Mother failed to meaningfully support the children for over one year therefore her consent was not necessary. Trial Court did NOT find that she did not have contact with her children thereby waiving her consent.

On appeal, biological mother argued that Adoptive Mother did not comply with IC 31-19-8-1 requiring supervision by a licensed child placing agency in adoption. Adoptive Mother said she complied with exception to rule allowing waiver if court grants this under IC 31-19-8-2(c). Appellate Court found that even if exception granted, Adoptive Mother should have still been obligated to have a complete criminal history check done and submitted to the Court. Adoption Mother submitted only a self-produced criminal history for Johnson County, and a CPS report, as "substantial compliance." Adoptive Mother did not submit a national criminal background check which the Court of Appeals found as error.

Opinion: "What is more, our General Assembly has specifically legislated that '[a] court cannot waive any criminal history check requirements set forth in this chapter.' IC 31-19-2-7.3." Since adoption statutes are in derogation of common law, they must be strictly construed. On a second issue, the Court of Appeals also noted that this was an issue of first impression as to whether or not a paternity action must be consolidated with a pending adoption. Upon the filing of an adoption action, the paternity court loses jurisdiction to rule on the paternity case. In Re: B.C., 9 N.E.3d 745, 754. (Ind. Ct. App. 2014). As a result, paternity actions should be consolidated prior to issuance of adoption decree.

HELD:  "[T]he adoption court should consolidate the paternity action before issuing its adoption decree."
PRACTICE TIP: Consolidate your paternity actions with your adoption actions before the adoption decree is issued.  Please watch to make sure this case is not accepted for transfer by the Indiana Supreme Court before citing this case in the future.

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