Appeal from the Johnson Superior Court, No. 41D01-1011-AD-38. The Honorable Kevin M. Barton, Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 41A04-1308-AD-388.
ATTORNEYS FOR APPELLANTS: Bryan L. Ciyou, Lori B. Schmeltzer, Ciyou & Dixon, P.C., Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: Daniel J. Layden, Michelle L. Findley, Williams Barrett & Wilkowski, LLP, Greenwood, Indiana.
David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
For the first forty-five months of her life, B.C.H. remained in the primary care, custody, and control of her maternal grandparents T.H. and C.H. (" Grandparents" ). Unmarried at the time of B.C.H.'s birth, her mother R.H. (" Mother" ) would visit her daughter about once a week. Later, Mother began keeping B.C.H. at her apartment one day and night per week, and when Mother married K.J. (" Stepfather" ), these visits increased to twice
weekly. In November 2010, Stepfather, with Mother's consent, filed a petition to adopt B.C.H. The Grandparents were not served with legal notice nor given an opportunity to give or withhold their consent to her adoption. B.C.H.'s adoption was granted in August 2011, and a month later Mother removed the child from the Grandparents' home and refused to allow them any further contact with their granddaughter. Subsequently, the Grandparents filed a motion to reopen B.C.H.'s adoption and to intervene. In their motion, the Grandparents argued that under Indiana's adoption statutes they had " lawful custody" of their granddaughter when the court granted Stepfather's adoption petition, thus entitling them to legal notice of and the opportunity to consent to her adoption.
Indiana Code § 31-19-2.5-3 (effective 2012) requires that legal notice of an adoption petition be given to a " person whose consent to adoption is required under I.C. 31-19-9-1." Under Ind. Code § 31-19-9-1(a) (effective 2012), " a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by . . . (3) [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought." (Emphasis added.) Neither the adoption statutes nor case law defines " lawful custody" in this context. Therefore, we must interpret the term " lawful custody" and resolve whether B.C.H.'s maternal grandparents had lawful custody of her at the time the adoption petition was filed, thus requiring them to be given legal notice of the adoption petition and an opportunity to withhold consent to her adoption.
Facts and Procedural History
On November 29, 2007, B.C.H. was born to seventeen-year-old R.H. (now R.J.) in Johnson County, Indiana. Mother was not married to her daughter's biological father. At the time of B.C.H.'s birth, Mother attended high school, worked at Ruby Tuesday's, and lived independently. Approximately five days after her birth, B.C.H. began staying with her maternal grandparents, T.H. and C.H. For about a month, Mother saw B.C.H. daily. However, Mother soon stopped visiting her daughter on a regular basis. From this time on, the Grandparents served nearly exclusively as the little girl's caregivers. She remained in their primary care, custody, and control until September 4, 2011.
By early 2008, Mother was only visiting her daughter approximately once per week, despite living nearby. Her visits typically lasted between two and four hours, some of which she spent asleep. She had ...