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Filed: October 28, 1987.


APPEAL FROM THE LAKE SUPERIOR COURT, ROOM TWO, Sitting in East Chicago, The Honorable Morton B. Kanz, Judge Presiding, Cause No. EG 84-124, No. 4-785 A 207 in the Court of Appeals. ON PETITION TO TRANSFER.

Pivarnik, J., Shepard, C.j., Givan, and Dickson, JJ., concur. DeBruler, J., Dissents without separate opinion.

Author: Pivarnik


This cause comes to us on a Petition to Transfer from the Fourth District Court of Appeals brought by John and Rita Gorman. The facts necessary for resolution of this issue were set out by the Court of Appeals as follows:

Billy Joe Lesley Thompson is an infant female born December 31, 1982. Charles and Gay Lynn Thompson, residents of Texas, took custody of one year old Billy Joe from her natural mother who had neglected her. The Thompsons had Billy Joe for approximately seven months and initiated adoption proceedings. The social worker assigned by the Texas court to investigate the Thompson's fitness made eight to ten home visits, found the Thompsons fit, and recommended adoption. A few weeks before the final adoption hearing, several anonymous complaints were made to the Texas Department of Human Resources (Welfare Department) regarding the possible neglect or abuse of Billy Joe by the Thompsons, and the Welfare Department assigned a second social worker, Sharon Mills, to investigate. Mills made two home visits and states in her deposition that Billy Joe appeared to be healthy and normal and that she saw no evidence of abuse of Billy Joe. She did observe a carpet burn on the child's knee. Also, she noticed a lack of eye contact between Mrs. Thompson and Billy Joe while the child was held on Thompson's lap and found this lack of eye contact to be disturbing. Mills contacted Billy Joe's physician who stated the child had received regular and adequate medical care while with the Thompsons, and he had seen no evidence of neglect or abuse. On Mills' second visit she told Mr. Thompson she intended to keep the child abuse file open and if she saw any wrongdoing under Texas law, she would have Billy Joe and the Thompsons' two sons taken out of the home and placed in foster care. The Thompsons became upset about the Welfare Department investigation and feared the loss of all three of their children and the destruction of their marriage. They consulted their attorney, J. A. Wishnew, and expressed their fears and emotional upset regarding the investigation and their last minute hesitation to go through with the adoption. Wishnew, a Texas attorney who was also a brother-in-law of Mrs. Gorman, convinced the Thompsons that if they reneged on the adoption, Billy Joe would be placed in the custody of the Welfare Department and perhaps returned to her natural mother, who had mistreated Billy Joe. He urged the Thompsons to go through with the final adoption and turn the child over to the Gormans, an Indiana couple who wanted a child. Rita and John Gorman, both of whom had been divorced from their first spouses, were married on December 9, 1983, eight months before the Texas adoption proceedings. At the time of the Thompsons' final adoption hearing, Mr. Gorman was working as a patrolman for the Whiting City Police Department and Mrs. Gorman was employed as a beautician.

Mrs. Gorman hurried to Texas from her home in Indiana to stay in the Thompson's home for two days before the adoption and attended the final adoption hearing. With regard to the parties conduct at the Texas adoption hearing, Lawyer Wishnew was candid and testified:

'While we went through the hearing down in Meridian, Bosque County, Rita [Gorman] held the child I believe in the back corner by the clerk's office, held the child while they went through the prerequisites, the jurisdictional statements as to residence, best interest, well, they reserved the right for the inheritance; they went through all the things that we needed to swear to, and while the ad litem made his testimony, elicited his testimony.' (Emphasis added.) (R.P. 258).

The Thompsons gave custody of Billy Joe to Mrs. Gorman and executed their consent for the Gormans to adopt her in Wishnew's office immediately following the hearing. Mrs. Gorman returned to Indiana with Billy Joe.

The Thompsons paid Wishnew fees of nearly $2,000 for the adoption. In the next few months, the Thompsons' finances became strained and they approached Wishnew for return of the fees they paid to adopt Billy Joe. Wishnew testified here that Mr. Thompson demanded the return of Billy Joe or the payment of $5,000.00. Thompson admits asking Wishnew for money but denies he asked for $5,000.00, or that he attempted to blackmail Wishnew. Wishnew refused to pay and refused to return Billy Joe. The Thompsons withdrew their consent to adopt, as permitted by Texas law, and complained to the Texas court about Wishnew's conduct. The trial Judge in Texas reported their complaint to the Texas Disciplinary Board.

The Thompsons demanded return of Billy Joe. The Gormans refused and initiated adoption proceedings in Indiana. . . ."

Thompson v. Gorman (1986), Ind.App., 502 N.E.2d 916, 917-18.

The Thompsons came to Indiana and successfully contested the adoption. The Gormans then filed a petition for guardianship of Billy Joe which was granted by the trial court. The Thompsons appealed the appointment of the Gormans as guardians over Billy Joe, arguing guardianship proceedings are not appropriate because the juvenile code preempts the guardianship statute when the potential effect of the proceedings is to terminate rights and authority over the child. The Court of Appeals agreed with the Thompsons and found this to be in reality a CHINS (child in need of services) proceeding over which juvenile court has exclusive jurisdiction pursuant to Ind. Code § 31-6-2-1(a)(2). The Court of Appeals concluded that the issue of whether a child's parent is adequately performing his duties must be litigated under the juvenile law and found guardianship proceedings are inappropriate to determine care and custody of a minor child between out-of-state parents and third party residents. They remanded the cause to the trial court with instructions to transfer the cause to a court of appropriate juvenile jurisdiction. We recognize this as an issue which requires clarification by this Court and accordingly vacate the opinion of the Court of Appeals and affirm the trial court.

Certain pertinent facts are not in dispute. No CHINS proceeding was filed here by either the prosecuting attorney or the welfare attorney. The county welfare department was not a party to the action. Further, this was not a proceeding to terminate Thompson's parental rights pursuant to the juvenile code, Ind. Code §§ 31-6-5-1 to -6. This was an action for appointment of a temporary guardian, brought pursuant to the probate code, Ind. Code §§ 29-1-18-1 to -52. The judgment of the trial court clearly indicates it was entered as a temporary guardianship on a showing that the ward was in need of protection of its interest because of its current circumstances. The trial court found that "based upon the evidence as submitted in open court, a guardianship for the said minor is desirable to protect the interest of the minor." The trial court also found that "considering all the evidence introduced at the hearing herein, the petitioners, John Joseph Gorman and Rita Marie Gorman, are the persons most suitable of ...

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