ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Barry Chambers Steven Litz
Jennifer Hubartt Monrovia, Indiana
Office of General Counsel
Marion County Office Department of Child Services
FILED
Indianapolis, Indiana
______________________________________________________________________________
Apr 08 2009, 4:32 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 29S02-0904-CV-140
IN THE MATTER OF THE ADOPTION
OF INFANTS H.,
MARION COUNTY DIVISION OF
INDIANA DEPARTMENT OF CHILD SERVICES, Appellant (Plaintiff below),
v.
S. M., Appellee (Defendant below).
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Appeal from the Hamilton Superior Court, No. 29D03-0504-AD-510
The Honorable William J. Hughes, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-0611-CV-1018
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April 8, 2009
Shepard, Chief Justice.
This appeal arises from an order of adoption granted to a New Jersey resident for children
brought to Indianapolis for their birth to a South Carolina woman who had been inseminated
with biological material from California. The adoption petitioner asked the trial court to waive
various legislative safeguards designed to protect infants who are proposed for adoption. We
reverse.
Facts and Procedural History
Twin girls whom we will call Infants H were born at Methodist Hospital in Indianapolis
in early April 2005, and a few days later, on April 13, attorney Steve Litz filed a petition for
adoption on behalf of a man we will call Petitioner. The petition described the children as “white
females” and asserted that Petitioner was an Indiana resident, born in Indiana, and employed as a
teacher. The woman who gave birth, 23-year-old Zaria, attached an affidavit saying that she was
inseminated with combined sperm from Petitioner and an unknown donor, and that she was
waiving her rights with regard to the newborns.
The trial court held a hearing on the same day the petition was filed. Petitioner testified
on his petition. He indicated that Zaria had been inseminated with sperm from him and from
another donor. (Apr. 13, 2005, Tr. at 5-6.) He said he was “currently residing in Indianapolis”
but worked as a school teacher in Union City, New Jersey. The court indicated orally it would
approve the adoption. It released the children to Petitioner pending a final hearing and declared
that the statutory requirement of prior written approval of a licensed placement agency or the
Marion County Office of Family and Children (Ind. Code § 31-19-7-1) was being waived.
Litz subsequently provided the court with a document called an “Adoption Summary”
prepared by “Paralegal on Call, Inc.,” generated on April 27th. The report indicated that the
babies were born prematurely, but were progressing, and that they were “not considered „hard to
place‟ as defined by I.C. § 31-9-2-51.” The report indicated that Petitioner was born in New
York (not in Indiana, as the petition to adopt had alleged). (Appellant‟s App. at 213.) It said
Petitioner had lived for the last ten years in an apartment in Union City. (Id. at 214.) (The
Indianapolis residence alleged in the adoption petition turned out to be a hotel.) The report said
the mother was a 23-year-old Caucasian. The trial court received the report and issued an
adoption order two days later on April 29th.
In the meantime, personnel at Methodist Hospital‟s Newborn Intensive Care Unit became
concerned “about [Petitioner‟s] ability to appropriately care” for the Infants H and asked Child
Protective Services at the Marion County Office of Family and Children (now the Department of
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Child Services) to investigate. (Exhibits Vol. I, Ex. A at 8.) That office reported to the Marion
Superior Court, Juvenile Division, that Petitioner had appeared in the ICU carrying a bird, which
hospital personnel thought represented a risk of infection. On a separate occasion he had come
to visit with bird feces on his clothing, “with no concern [for] the children‟s health and potential
disease that could spread.” Id.
Petitioner told the hospital staff that he planned to drive the two three-pound premature
infants back to New Jersey in his automobile, alone, and had not yet thought about how he would
manage for their care while he worked. The Marion Superior Court determined that the infants
were in need of services and ordered them in the custody of the Office of Family and Children,
on May 2nd. Among other things, the court observed that the requirements of the Interstate
Compact on the Placement of Children, Ind. Code ch. 31-28-4, were not being followed.
(Appellant‟s App. at 129-30.)
Alerted to the CHINS investigation, attorney Litz moved on May 4th to amend the
adoption court‟s order to add a finding that the children where hard to place, as defined by Ind.
Code § 31-9-2-51(1)(B), on grounds that Zaria was African-American and that the children were
therefore biracial. (Id. at 185-86.) This motion was neither supported by affidavit nor otherwise
verified under penalties of perjury.
Actually, it turned out that Zaria had received donor eggs, so the grounds on which Litz
asserted the children to be biracial were untrue. (Id. at 54.) The earlier representation that
Petitioner was a sperm donor likewise turned out to be untrue. (Tr. at 115.)
The adoption judge‟s effort to deal with these successive shifting factual claims was
understandably daunting. The court observed that the petition to adopt and counsel‟s subsequent
submissions reflected “lack of candor and mass confusion of crucial factors. . . .” (Appellant‟s
App. at 54.) We have not undertaken here to detail each twist in the road. Suffice it to say that
in July 2005, the trial court vacated the original decree of adoption and an amended version that
had been entered Nunc Pro Tunc. (Id. at 165-66.) In November 2005, Petitioner‟s lawyer
moved again to amend the petition for adoption, and requested a final hearing. (Id. at 68-70.)
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This time, he asserted that the infants were hard to place because they were part of a sibling
group, citing Ind. Code § 31-9-2-51(2). (Id.)
In January 2006, the adoption court held its last hearing. It ordered a six-month period of
supervision over the placement of the infants with Petitioner. (Id. at 45-59.) It entered a final
decree of adoption on October 17, 2006. (Id. at 4-5.) The trial court contemporaneously
dismissed the CHINS case and found that consent to adoption by the Department of Child
Services was not required. (Id.) The Court of Appeals affirmed. In re Adoption of Infants H.,
878 N.E.2d 331 (Ind. Ct. App. 2007). We grant transfer.
I. Nonresident Adoption of Nonresident Children
The Department‟s appeal requests a declaration that Indiana courts do not have authority
to grant adoption requests made by non-residents for children who are not residents.
(Appellant‟s Br. at 16-17.) It cites the general provision of our adoption statute that a resident
may file to adopt a child in Indiana, Ind. Code. § 31-19-2-2 (2008), with its exception allowing
non-residents to adopt children in Indiana if the children qualify as “hard to place.” Ind. Code §
31-19-2-3 (2008). This exception applies to children who are disadvantaged because of: ethnic
background; race; color; language; physical, mental or medical disability; or age; or members of
a sibling group that should be placed in the same home. Ind. Code § 31-9-2-51 (2008) (emphasis
added).
Residency does matter as respects the delicate question of adopting a child. The place
where the adoptive parent is a resident will be in the best position to evaluate whether the parent
can provide suitable living conditions for the child. For many of the same reasons, it is more
difficult for an Indiana court to evaluate whether adoption by a non-resident is in a child‟s best
interest. The legislative judgment is that this challenge must sometimes be undertaken in the
interest of arranging a suitable permanent living situation for Indiana‟s hard to place children.
The Department‟s position that the General Assembly has not authorized Indiana courts
to entertain petitions by non-residents to adopt non-resident children by enacting Ind. Code § 31-
19-2-3 has considerable force. A number of problems make this case a difficult one in which to
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resolve that question: the convoluted nature of the submissions of counsel, the delay associated
with sorting them out in the trial court and on appeal, and the potential effect on the Infants H. A
declaration that there is no subject matter jurisdiction, after all, would put two small children into
legal limbo. The Department recognizes this problem in its Petition to Transfer. Accordingly,
we leave open the residency question and address instead several other issues important to the
protection of adoptive children.
II. Venue Is Important
The General Assembly has enacted venue requirements for adoptions. The directive is
largely the same for resident and non-resident petitioners. For residents, venue lies in (1) the
county where the petitioner resides, (2) the county in which the licensed child placing agency or
governmental agency having custody of the child is located, or (3) the county where the child
resides. Ind. Code § 31-19-2-2. When the petitioner is a non-resident, venue lies only in the last
two of these locations. Ind. Code Ann. § 31-19-2-3. This enactment reflects the desirability of
access to full information and services proximate to the location of children. While venue is not
jurisdictional, courts should still observe the directives of the statute. See id.
Whatever else may be tortured about this litigation, it is unquestioned that none of the
participants were residents of Hamilton County. The disconnect between the adoption
proceedings and the CHINS proceedings as respects Infants H underscores the importance of
honoring the legislative judgment about venue. Faced with situations like the instant case, the
adoption court should transfer the matter to the county where the children are located.
III. DCS Consent to the Adoption
The General Assembly has required that before a child may be placed in a proposed
adoptive home, the Department of Child Services or a child placing agency licensed by the
Department must give prior written approval. Ind. Code § 31-19-7-1(a) (2008). It seems
obvious enough that this legislative directive is designed to protect children, certainly including
infants like those who are the subject of this case. The evidentiary grounds for waiving this
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requirement, a request made at the very first hearing, consisted of the following exchange before
the adoption court:
Litz: Okay. You‟re also asking the Judge to waive the requirement for a
home study before the children are placed with you, correct?
Petitioner: Yes.
Litz: Now as it turns out because of the timing it‟s probably likely that
we‟re going to have a home study done anyway, but in the event
that we don‟t, we‟re asking the Judge to waive that requirement,
correct?
Petitioner: Yes.
(Apr. 13, 2005, Tr. at 7.)
Because the CHINS proceedings gave DCS knowledge about the pending adoption, it
was later able to intervene in the adoption court. Otherwise, it could not have done so.
Dispensing with the Department‟s statutory role before the Department even knew of the
adoption, based solely on the Petitioner‟s request, was error.
IV. Compliance with the Interstate Compact
Among the most important safeguards for children, whom it is contemplated will be sent
to live with adoptive parents in another state, is the Interstate Compact on the Placement of
Children. The Department contends that the adoption court did not comply with the Compact.
Counsel for Petitioner does not dispute this.
Both Indiana and New Jersey are parties to the Compact. Our General Assembly has
embraced the large objectives of the Compact, two of which are ensuring that the appropriate
authorities in a state where a child is to be placed “have full opportunity to ascertain the
circumstances of the proposed placement” and providing the sending state with “the most
complete information on the basis of which to evaluate a projected placement before the
placement is made.” Ind. Code § 31-28-4-1 (2008) (article I). The operational elements of the
Compact function as follows:
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(a) A sending agency1 may not send, bring, or cause to be sent or
brought into any other party state a child for placement in foster
care or as a preliminary to a possible adoption unless the sending
agency complies with each requirement under article III and with
the receiving state‟s laws governing the placement of children.
(b) Before sending, bringing, or causing any child to be sent or
brought into a receiving state for placement in foster care or as a
preliminary to a possible adoption, the sending agency shall
furnish the appropriate public authorities in the receiving state
written notice of the intention to send, bring, or place the child in
the receiving state. The notice shall contain the following:
(1) The child‟s name, place, and date of birth.
(2) The identity and address or addresses of the child‟s parents
or legal guardian.
(3) The name and address of the person, agency, or institution
to or with which the sending agency proposes to send,
bring, or place the child.
(4) A full statement of the reasons for the proposed action and
evidence of the authority under which the placement is
proposed to be made.
(c) A public officer or agency in a receiving state that receives a notice
under paragraph (b) of article III is entitled, upon request, to
receive additional information necessary to carry out the purpose
and policy of this compact from the sending agency or any other
appropriate officer or agency of or in the sending agency‟s state.
(d) The child shall not be sent, brought, or caused to be sent or brought
into the receiving state until the appropriate public authorities in
the receiving state shall notify the sending agency, in writing, to
the effect that the proposed placement does not appear to be
contrary to the interests of the child.
Ind. Code § 31-28-4-1 (article III).
1
The definitions of a “sending agency” include a court of a party state, a person, or any other entity that
sends or brings a child to another party state. Ind. Code § 31-28-4-1 (article II).
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The conditions for placement set forth in article III of the Compact are designed to
provide complete and accurate information regarding children and potential adoptive parents
from a sending state to a receiving state and to involve public authorities in the process in order
to ensure children have the opportunity to be placed in a suitable environment. See Ind. Code ch.
31-28-4 (article I, article III).
The adoption court was on the right track when it indicated early on that it would not
grant the adoption without complete Compact compliance. (Tr. at 8-9.) The Department‟s office
in Marion County set this process in motion by notifying Indiana‟s central Compact office,
which requested New Jersey‟s Compact office to evaluate Petitioner‟s suitability as an adoptive
parent. New Jersey officials contacted Petitioner, who declined to participate, saying that he was
a resident of Indiana. (Exhibits Vol. I, Ex. A at 10.) The adoption court appointed a guardian ad
litem, who supplied a home study from a person in New Jersey, but there is nothing in the record
that the adoption court had been notified in writing by New Jersey state authorities that the
“proposed placement does not appear to be contrary to the interests of the child.” Ind. Code §
31-28-4-1 (article III). Indeed, the Adoption GAL never expressed an opinion on whether the
adoption was in the best interests of the Infants H, though she did testify that she saw no reason
the court should not grant the adoption. (Tr. at. 209, 222-23; Appellant‟s App. at 9-35.)
Indiana retains jurisdiction over the Infants H because of the Compact. Article V of the
Compact governs jurisdiction and provides as follows: “The sending agency shall retain
jurisdiction over the child sufficient to determine all matters relating to the custody, supervision,
care, treatment and disposition of the child, which the sending agency would have had if the
child had remained in the sending agency‟s state…” Ind. Code § 31-28-4-1 (article V). See In
the Matter of C.B., 616 N.E.2d 763 (Ind. Ct. App. 1993).
Conclusion
We reverse the final order of adoption for want of compliance with the Interstate
Compact and remand with directions to comply with the Compact, and thereafter to issue further
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judgment accordingly. The order granting Petitioner preliminary custody may remain in effect
pending completion of this directive and such eventual order as the trial court may enter.
Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result.
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