Indiana Supreme Court Upholds Reversal of Stepparent Adoption

Indiana’s Supreme Court granted transfer and issued a unanimous order affirming the Court of Appeals’ decision which reversed a stepparent adoption granted by St. Joseph Probate Judge Peter Nemeth. The action of the Supreme Court in upholding the COA’s ruling from September 16, 2010, now opens the door for the biological mother to request attorney fees as a result of possible frivolous or bad faith acts in the case of The Adoption of N.W., M.W. v. A.W., No. 71S04-1102-AD-87. The fee suggestion by the Supreme Court is a rare move by the justices in a case that clearly disturbed them because of its failure to follow statute and case law.

The case involves a stepparent adoption of a minor child, identified as N.W., who was born in late 2001. N.W. lived with her parents, M.W. and R.W. until they separated in 2005 and subsequently divorced. The parents agreed in their divorce settlement that they would share custody of N.W. with father having physical custody. In 2009, Father married A.W., who filed a petition to adopt N.W., which was granted by the St. Joseph trial judge in 2009, upon a finding that mother M.W.’s consent was not required “because she failed to support the child.” Mother immediately sought to correct error and requested relief, which was again denied by Judge Nemeth. Mother appealed and the Court of Appeals reversed the adoption, issuing a strongly-worded opinion that “there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.”

For many who work in family law, this dispute has a common theme – the coparenting relationship between the child’s parents was relatively stable until Father remarried and stepmother became involved. Shortly thereafter, disputes arose regarding parenting time and child support. As part of the parties’ original divorce settlement, it was agreed that Mother would not be required to pay child support due to her “economic situation”. Mother regularly exercised parenting time with N.W. , even after a change in her work scheduled necessitated a modification to the parenting time schedule. However, shortly after Father met and married A.W. in early 2009, he began demanding child support from Mother and arbitrarily denied her parenting time.

As a result of Father’s denial of parenting time, Mother filed a contempt petition, and Father responded with a filing to modify child support. While these issues were pending in the family law court, Stepmother filed a petition in probate court to adopt N.W. in June 2009. On June 29, 2009, Mother filed an objection to the adoption petition and moved to dismiss it. On October 13, 2009, the family law trial court ruled on the pending modification matters, ordering that Mother’s parenting time continue per the Indiana Parenting Time Guidelines and finding a significant disparity in the parties’ incomes. Child support calculations showed that with Mother’s income relative to Father’s and with credit for overnight parenting time, her child support obligation was a negative $2.00, therefore, no child support was owed by Mother to Father.

Despite the trial court’s findings, and Mother’s objection to the stepparent adoption petition, the St. Joseph Probate judge approved the adoption in December 2009, finding that Mother failed to support N.W. as its basis for granting the adoption. The Court of Appeals addressed the faultiness of that logic in its ruling reversing the adoption, stating that the definition of support doesn’t consist solely of the child support obligation. Instead, the Appellate Court pointed out that Mother was meeting her duty to support daughter, by providing food, clothing and other necessities during parenting time and that she engaged in multiple mother-daughter outings and activities with daughter and frequently bought gifts. Indeed, in response to Stepmother’s argument that Mother failed to support daughter, the Court of Appeals found just the opposite: “…the totality of the evidence establishes…that Mother provided for N.W. to the best of her ability.”

The COA also tackled the assumption, arguendo, that if Mother had failed to support N.W., the remainder of the evidence did not support granting of the adoption as it was not in N.W.’s best interest. The Court of Appeals cited statute and case law discussing the balance of preserving the relationship between a parent and child and protecting the best interests of the child. In the case of N.W., Mother clearly established that she wanted to remain a “loving presence” in N.W.’s life and that she had exercised all efforts to do so. It also notes N.W.’s own wishes by referencing notes she wrote to Mother. In addressing Stepmother’s involvement, the Court points to Stepmother’s own admission that she doesn’t allege that Mother is unfit or a neglectful parent, but instead pointed out that she herself was “heavily involved in N.W.’s life.” The Court of Appeals commended her on being involved, but found no merit in her argument to support terminating Mother’s rights.

Not only did the Supreme Court grant transfer and adopt the entire opinion of the Court of Appeals, the justices also took the unusual step of determining that more action was required under Indiana Code 34-52-1-1. That statute permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: (1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.

In this case, “The record before us suggests one or more of these grounds may exist for an award of attorney fees,” the order says.

Kathryn Dolan, the Supreme Court Public Information Officer, discussed how rare it is for the justices to fully accept a Court of Appeals’ decision, and even more so to suggest a motion on attorney fees as it has done in this case. It is a clear legal message as to the Court’s opinion of the original trial court’s ruling. Indiana trial courts must be diligent in thoroughly assessing the evidence and weighing the preservation of the biological parent’s rights and the child’s best interests before granting a stepparent adoption.


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