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In re Adoption of B.C.H.

Court of Appeals of Indiana

April 22, 2014

IN THE MATTER OF THE ADOPTION OF B.C.H., a Minor

APPEAL FROM THE JOHNSON SUPERIOR COURT. The Honorable Kevin M. Barton, Judge. Cause No. 41D01-1011-AD-38.

ATTORNEYS FOR APPELLANT: BRYAN LEE CIYOU, LORI B. SCHMELTZER, Ciyou & Dixon, P.C., Indinapolis, Indiana.

ATTORNEYS FOR APPELLEE: DANIEL J. LAYDEN, MICHELLE L. FINDLEY, Williams Barrett & Wilkowski, LLP, Greenwood, Indiana.

PYLE, Judge. MATHIAS, J., concurs in result with opinion. BRADFORD, J., concurs.

OPINION

Page 1001

PYLE, Judge

STATEMENT OF THE CASE

T.H. (" Grandfather" ) and C.H. (" Grandmother" ) (collectively, " Grandparents" ) appeal the trial court's order denying their motion for relief from judgment and motion to correct error concerning their son-in-law's (" Stepfather" ) adoption of their minor granddaughter, B.C.H.

We affirm.

ISSUES

1. Whether the trial court abused its discretion in denying Grandparents' motion for relief from judgment based on its determination that Grandparents were not parties that were required to receive notice of, and give consent to, Stepfather's adoption of B.C.H.
2. Whether the trial court abused its discretion in denying Grandparents' motion to correct error.

FACTS

R.J. (" Mother" ) gave birth to B.C.H. on November 29, 2007, when she was seventeen years old. At the time, Mother was not married to B.C.H.'s biological father and still attended high school. However, she lived on her own in an apartment. After B.C.H.'s birth, Grandmother stayed at Mother's apartment for several days to help her care for B.C.H. When B.C.H. was five days old, Mother took her to Grandparents' house and stayed there for two weeks. Subsequently, Mother returned to her apartment and left B.C.H. with Grandparents. From that point until B.C.H. was two years and three months old, Grandparents provided for almost all of B.C.H.'s care. Mother visited about once a week.

In February 2008, Mother initiated paternity proceedings in the Johnson County Juvenile Court, and the juvenile court awarded her sole custody of B.C.H. Nevertheless, Grandparents continued to care for B.C.H. Two years later, in February 2010, Mother began to keep B.C.H. at her apartment at least one day and night each week. That same year, Mother married Stepfather.

On November 29, 2010, Mother and Stepfather initiated proceedings in the Johnson County Superior Court for Stepfather to adopt three-year-old B.C.H. Grandparents did not receive legal notice of the adoption or consent to it, although they were aware that Stepfather had filed the petition for adoption. During the pendency of the proceedings, Mother gave birth to another child and did not see B.C.H. for about four weeks. However, when B.C.H.'s newborn sister was about a month old, Mother and Stepfather began to keep B.C.H. at their residence around two days per week.

On August 15, 2011, the trial court entered a decree of adoption granting Stepfather's petition to adopt B.C.H. Subsequently, on September 4, 2011, Mother and Stepfather took physical custody of B.C.H.

Page 1002

On September 14, 2011, Grandparents filed a verified motion seeking legal custody of B.C.H in the Johnson County Juvenile Court, which had already awarded sole custody to Mother. Their motion was premised on the argument that they already qualified as de facto custodians of B.C.H. due to their longstanding care of her. Under Indiana Code § 31-9-2-35.5, a de facto custodian is " a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six (6) months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of age." The juvenile court held a hearing on the motion on November 15, 2011, and, on February 6, 2012, entered an order granting Grandparents de facto custodian status and ordering a custody proceeding. In its order, the juvenile court also held that Grandparents' de facto custodian status qualified them for visitation rights according to the Indiana Parenting Time Guidelines, as well as the right to seek legal custody of B.C.H. As of the time of this appeal, the custody proceedings the juvenile court ordered were still ongoing.

On May 1, 2012, Grandparents moved to reopen Stepfather's adoption of B.C.H. and to intervene. In their motion, they argued that the trial court had abused its discretion in granting the adoption without providing them with notice and without receiving their consent. Pursuant to Indiana Code § 31-19-9-1(a)(3), a trial court may only grant a petition to adopt a child who is less than eighteen (18) years of age if it receives written consent from " [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought." Grandparents argued that they had " lawful custody" of B.C.H. during the adoption proceedings because they were de facto custodians at the time, even though the juvenile court had yet to adjudicate their status as such.

On May 5, 2012, the trial court ordered a limited grant of Grandparents' motion in order to determine: (1) the legal question of " [w]hether a de facto custodian who is not acting under Court Order is a 'lawful custodian' . . ." for purposes of Indiana Code § 31-19-9-1(a)(3); and (2) whether Grandparents' consent was therefore required for the adoption. (Grandparents' App. 8). The trial court also granted the motion for the purpose of permitting Grandparents to file a motion under Indiana Trial Rule 60(B), which allows the trial court to grant relief from a judgment or order. A complicated series of motions followed in which Grandparents attempted to obtain the transcript from the adoption proceedings in order to file an informed Trial Rule 60(B) motion.[1] The trial court denied their motions on the basis that--because adoption ...


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