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In re Adoption of K.D.

Supreme Court of Indiana

June 29, 2017

In the Matter of the Adoption of K.D., B.D., Appellant,
v.
W.D. and D.D., Appellees.

         Trial Court Case No. 71J01-1410-AD-93

          Loretta H. Rush Chief Justice of Indiana

         Published Order

         This matter has come before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals, and all briefs filed in the Court of Appeals and materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petition.

         Because the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed DENIED. See Ind. Appellate Rule 58(C).

          Rush, C.J., and Massa, J., vote to deny transfer.

          David, J., dissents to the denial of transfer with separate opinion in which Slaughter, J., concurs.

          David, J., dissenting.

         I respectfully dissent from the denial of transfer because I believe the Court of Appeals deprived Father of adequate due process when it based its decision to affirm the trial court's order on a claim not raised by petitioning grandparents at trial.

         It is well-settled that, before a trial court can grant a Petition for Adoption of a child born in wedlock who is less than eighteen years of age, it must first obtain written consent from each living parent. In re Adoption of M.S., 10 N.E.3d 1272, 1278 (Ind.Ct.App. 2014); Ind. Code § 31-19-9-1. However, parental consent can be dispensed with under certain enumerated circumstances. Indiana Code section 31-19-9-8 provides, in relevant part, that consent to adoption is not required from:

(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so or required by law ...

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