Supreme Court Reverses Adoption in Surrogacy Case

In the matter of the adoption of Infants H.; Marion County Division of Indiana Department of Child Services v. Stephen, No. 29S02-0904-CV-140,Indiana’s Supreme Court reversed an adoption of twin girls by a New Jersey man. Multiple contradictions in facts of the case were considered by the Supreme Court in its ruling finding that the adoption court failed to comply with the Interstate Compact on the Placement of Children.

The adoptive parent, Stephen, had filed a petition for adoption in Hamilton County in 2005. The children were twin girls born in Indianapolis to a woman from South Carolina using donor sperm and eggs. Following birth, the twins were released to Stephen’s custody by the trial court pending a final hearing. The lower court had also waived the statutory requirement of prior written approval of a licensed placement agency or the Department of Children (formerly the Marion County Office of Family and Children).

Subsequently, the Department of Children became involved in the case when hospital workers called the organization concerned that Stephen visited the twins in the hospital with a pet bird and had bird feces on his coat and seemed unconcerned about potential health risks. Marion Superior Court found the twins to be children in need of services (CHINS) and placed them in the custody of DCS. During the investigation, it was discovered that there were multiple inconsistencies in the adoption petition filed by Stephen. DCS learned he wasn’t a resident of Indiana but was living and working in New Jersey. Despite the initial petition’s claims that Stephen had donated some of the sperm for the insemination, it was learned that he had not and that the sperm was from an unknown donor. When Stephen learned that adoptions to non-Indiana residents are only approved for hard to place children, Stephen amended his adoption petition to state that the twins were biracial and a sibling group and therefore qualified as hard to place.

Despite the multiple inconsistencies and concerns, the Hamilton County court ordered a final hearing after a six-month period of supervision of the placement of the twins with Stephen. The CHINS case was dismissed and the court ruled that DCS consent wasn’t necessary and entered a final decree of adoption.

In addressing the case, the Supreme Court decided to leave open the residency question and instead focused on three other issues in the case. The justices ruled that Hamilton County wasn’t the proper venue for the adoption as neither Stephen, the children, nor the placing agency were living or located in Hamilton County. Chief Justice Randall T. Shepard stated that the case should have been transferred to an appropriate county of venue. The Supreme Court also found the lower court had erred by granting Stephen’s request to dispense with DCS’s statutory role in approving the adoption. Had hospital staff not notified DCS, they would have not known about the adoption.

Finally, the Supreme Court addressed the lower court’s failure to completely comply with the Interstate Compact on the Placement of Children. The ICPC is necessary when children are sent to live with adoptive parents in another state. Certain conditions must be met for the placement of children outside of the state, so that complete and accurate information is provided in assessing the adoptive parents. When Indiana’s central Compact office contacted New Jersey’s Compact office to evaluate Stephen’s suitability, he declined to participate saying he was an Indiana resident, which was inconsistent with evidence and information showing he was a New Jersey resident for ten years. There are no records of a New Jersey home study being completed or submitted to the adoption court saying the adoption would or wouldn’t be in the best interest of the children.

Chief Justice Shepard wrote that it is appropriate for Indiana to retain jurisdiction over the twins because of the compact. The justices reversed the final order of for lack of compliance and remanded the case to the adoption court with directions to comply with the ICPC and thereafter issue a further judgment accordingly. Stephen retains preliminary custody pending completion of the court’s directive and any further orders.

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