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Adoption – When and why you should motion to intervene?

Adoption laws and cases can often be complex and full of many twists and turns. Today I want to focus on adoptions involving family members, close friends, or often Foster parents vs. new family type adoptions. In many cases, family members, friends, or foster parents spend significant time raising a child, and/or a natural becomes unable to care for his or her children. We have addressed the issues of third party guardianships over minor children, and de facto custodians in prior blogs, but when this happens, sometimes the family member or otherwise wants to solidify the legal relationship with the child by way of an adoption. In some cases, who should adopt a child that is in need of a third party, not the natural parent, to adoption the child. For example, an aunt and uncle may seek adoption, at the same time grandparents might want to adopt the child as well. The courts are forced with deciding who should adopt the child, as clearly, not everyone can.

Whenever someone, even a step-parent, seeks to adopt a child, Indiana law requires that certain persons consent to the adoption and be given legal notice of the intent to adopt a child. For example, the living biological parents (Mother and Father, if Father is known and paternity was established), or otherwise the parents who have already legally adopted a child, and any other person having lawful custody, including a state agency if it has lawful custody of the child.1,2

Even if a person is not required under the law to consent to the adoption of a minor, and therefore be provided notice of the proceedings, he or she may want to intervene and/or adopt the child themselves, similar to the aunt/uncle and grandparents example above, where both want to adopt the child, but the court may only issue a decree of adoption to one or the other. If both simultaneously file for adoption, or one files first, what is the other to do?

In a recently decided case D.P. v. J.H.3 the biological parent’s parental rights had been terminated through proper proceedings initiated by the state agency, and the child was residing with foster parents as a result. The child’s grandparents sought to adopt the child as a result of the child’s parent’s parental rights being terminated, and filed their petition on October 8, 2010. In a separate action, the foster parents, with whom the child was placed by the state, also filed a petition to adopt the child on October 14, 2012, just six days later. The trial court denied grandparent’s petition, and granted the foster parent’s petition to adopt the child.

The grandparents appealed the decree of adoption to the foster parents under the cause number of the foster parent’s petition. The Court of Appeals held that because the grandparents did not intervene or otherwise appear in the separate cause of action brought by the foster parents, nor did they file a motion to contest the adoption by the foster parents, they do not now have standing (as they were not parties to the original action) to challenge (appeal) the final order in that case.

Thus, the case of D.P. v. J.H. exemplifies why it is important, if you have any protest to an adoption, or wish to adopt a child yourself, you must request to be a party in the action, even if you have yourself filed for adoption in a separate case, or you will lose standing to challenge the court’s decisions on any grounds.

We hope that this blog post has been helpful in understanding why it may be important to contest or otherwise intervene in an adoption of a loved one at the time of the proceedings, given certain circumstances that may be present in your case. All adoption and child custody cases are different, and to fully understand the best course of action in your situation, you may want to consider consulting with an attorney. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.

  1. I.C. § 31-19-9-1
  2. I.C. § 31-19-2.5-3
  3. D.P. v. J.H., 71A05-1210-MI-618, 2013 WL 2319429 (Ind. Ct. App. May 28, 2013)

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