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03/29/88 EVERETT L. TAYLOR AND JEAN K. TAYLOR v.

Filed: March 29, 1988.

EVERETT L. TAYLOR AND JEAN K. TAYLOR, APPELLANTS
v.
JEFFERSON WHITE AND CELESTE BENIGNO-WHITE APPELLEES



APPEAL FROM THE GRANT CIRCUIT COURT The Honorable Alan Brubaker, Special Judge Cause No CA-86-2

Garrard, P.j., Hoffman, J. and Sullivan, J., Concur.

Author: Garrard

GARRARD, P.J.

Everett and Jean Taylor appeal from a Grant Circuit Court order which vacated their adoption of Phillip Taylor The dispositive issue raised by this appeal is whether the trial court erred in concluding that the decree of adoption was invalid because the Taylors failed to seek and obtain the consent of Jefferson and Celeste White and the consent of a New Jersey Superior Court which had entered an order giving the TayIors and the Whites joint custody of Phillip. We affirm.

This appeal is the result of an adoption procured by Everett and Jean Taylor, the paternal grandparents of the adopted child, Phillip Taylor. Phillip was five months old on November 11, 1984 when his natural father, Dr. Kenneth Taylor, murdered his mother in the family's New Jersey home After murdering his wife, Kenneth drove to Marion, Indiana and left Phillip with the Taylors. Kenneth then returned to New Jersey where he was arrested and charged with the murder. Upon their son's arrest, the Taylors traveled to New Jersey, taking Phillip with them.

On November 27, 1984, a New Jersey court entered an order giving Phillip to Jefferson and Celeste White, Phillip's maternal aunt and her husband and to the Taylors. Although the joint custody order was to remain in effect until September 1, 1985, the Whites filed for custody of Phillip in December of 1984 The Taylors petitioned for adoption on June 14, 1984.[Footnote 1] As a result of these petitions, the New Jersey court declared Phillip to be a ward of the court On June 18, 1985, Kenneth Taylor was convicted of first degree murder and subsequently was sentenced to life imprisonment.

On September 19, 1985, the New Jersey court awarded the Whites custody of Phillip from September 1st to June 30th of each year. The Taylors were to have custody during July and August and from December 26th through January 1st of each year. On December 27, 1985, however, the Whites filed a petition for custody of Phillip in the Family Court of New York, the Whites' state of legal residence. On that same day, the New York court ordered the Taylors not to take Phillip for "visitation" without appearing before it. Apparently the Taylors did not appear before the New York court or have custody of Phillip during their scheduled period in December of 1985.[Footnote 2] On January 12, 1986, however, the Taylors filed a petition[Footnote 3] to adopt Phillip in the Grant Circuit Court. Kenneth Taylor's consent to the adoption was filed on January 28, 1986.[Footnote 4]

In addition to filing a petition to adopt Phillip with the Grant Circuit Court, in May 1986 the Taylors filed a petition with the New Jersey court requesting it to enforce its September 19, 1985 custody order. The Whites filed a cross-motion for modification of the order. Hearings on these two motions were completed on August 1, 1986 when an agreement was reached between the parties giving the Taylors visitation with Phillip in Indiana from August 1, 1986 to August 16, 1986.

After reaching the agreement, the Taylors drove Phillip to Marion where the Grant Circuit Court entered its decree of adoption on August 7, 1986. Neither the Whites nor the New Jersey court was aware that a petition for adoption had been pending in Indiana. Further, the Taylors had not sought or obtained the Whites' or the New Jersey court's consent to the adoption. The Whites learned of the adoption when Celeste telephoned Jean Taylor on August 7, 1986 and was informed by Jean that the Taylors had adopted Phillip and that the Whites would never see him again.

On August 11, 1986, the Whites filed their motion to vacate the adoption. This motion was amended twice with the second amended motion being filed with a motion to intervene. The motion to intervene was granted and a hearing on the motion to vacate was held on December 2, 1986. The order vacating the adoption was entered on April 10, 1987 with the trial Judge specifically finding that the adoption decree was invalid due to lack of consent by the Whites and the New Jersey court.[Footnote 5] This appeal ensued.

The Taylors argue that the consents of the Whites and the New Jersey court were unnecessary and rely upon two Indiana cases which held that the consent of a guardian and notice to him of the adoption hearing is not required. Buck v. Squires (1924), 194 Ind. 112, 142 N.E. 7; Leonard v. Hoffenfagen (1909), 43 Ind. App. 607. 88 N.E. 911. These cases, however, are distinguishable from the present one due to different provisions in the applicable adoption statutes. They were decided under statutes which prohibited adoptions without the parents' consent unless the parents' residence was unknown or the child was institutionalized for reasons other than conviction of a crime or incorrigibility. See Ind. Code Ann. § 917 (Burns 1921); Ind. Code Ann. § 872 (Burns 1908). Neither of those statutes contained a list similar to the one contained in our present consent statute and the cases which rely upon them are therefore inapplicable.

The Indiana statute pertaining to whose consent is required in adoption proceedings provides:

Except as otherwise provided in this section, a petition to adopt a child under eighteen (18) years of age may be granted only if written ...


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