Lesbian couple seeking to adopt win in appeals court

Posted on 20 Apr 2006 at 8:49pm
By Ann Rostow – Special Contributor

Judges say womens’ joint adoption of foster child is valid; child’s court advocate, birth mother support their efforts

In a complicated adoption case, a 2-1 majority in the Indiana Court of Appeals has come down in favor of two women who have raised their toddler daughter since she was two days old.

The mothers, Becki Hamilton and Kim Brennan, adopted the girl jointly in Marion County Probate Court after serving as her foster parents for several months.

But the adoption was called into question by a Juvenile Court in neighboring Morgan County, forcing the Court of Appeals to intervene in the case.

The case involved a large cast of characters, including the birth mother, the Morgan County Office of Family and Children, Judge Matthew G. Hanson of the Morgan County Juvenile Court, a court-appointed special advocate named Barbara Witze, and Judge Charles Dieter of the Marion County Probate Court.

Despite their different positions on the matter, everyone agreed that Hamilton and Brennan were excellent parents, who were providing a warm and safe home for the child. At the top of the list of supporters was the birth mother herself, who asked both courts to allow the women to adopt her daughter.
The birth father was not known, and lost his rights when he did not register on a list of putative fathers.

Like most states, Indiana has systems in place to transfer a child from birth to adoption when a mother decides to give up her baby. Here, the child was placed in foster care with Hamilton and Brennan under the authority of the Morgan County Office of Family and Children and the Juvenile Court.

Two months after the child’s birth in September 2004, the court held a routine hearing to terminate the birth mother’s parental rights and clear the baby for adoption.

At that time, Judge Hanson ordered the infant be adopted by a couple rather than an individual, because she was not considered a “hard to place” child.
He confirmed this decision in a subsequent hearing in December, instructing the Office of Family and Children to find a suitable married couple to fit the bill.

In January, before such a couple could be identified, Hamilton and Brennan filed a joint petition for adoption in Marion County Probate Court. By then, the partners of 11 years had passed a home inspection, and had won praise from Witze and the birth mother as well.

The only entity to object was the Morgan County Office of Family and Children. But even their objection was a technical rather than qualitative one, pointing out that while the women would be great parents, the office had been instructed by the Juvenile Court to place the baby with a married couple.
Marion County Judge Dieter took note of these qualms, but decided that the best interest of the child was well served by letting the adoption go ahead.
The next logical step would have been to dismiss all the proceedings in Morgan County given that the adoption was final and the child was no longer a ward of the state.

Instead, in May, Judge Hanson announced he did not recognize the authority of the rival court and ordered that the child instead be placed with a married couple that had been screened to adopt her.

That order was suspended and the Indiana Court of Appeals was obliged to step into the escalating fray in August.

Writing for the majority on April 13, Judge John Baker said that the adoption would stand.

The simultaneous proceedings in both counties concerned separate legal issues and parties, Baker wrote, and Marion County was not obliged to give jurisdiction to Morgan County in the case.

Further, since adoption is the job of the probate courts, not the juvenile courts, Marion County’s Judge Dieter had all the authority he needed to grant the adoption. Once granted, the majority went on, the child was no longer in Morgan County’s domain, and Judge Hanson was required by law to clear his own docket of related matters.

The ruling interpreted Indiana’s adoption statute as being silent on the question of whether unmarried couples could adopt jointly.

In another twist, the judges neatly sidestepped a 2005 amendment to the adoption code that effectively prohibited second parent adoptions by unmarried couples, noting that the case at hand was a joint adoption, not a second parent adoption.

In dissent, Judge Edward W. Najam Jr. called that the 2005 statute “an elephant in the room.” If the legislature barred two unmarried individuals from adopting the same child in a two-step process, he insisted, the lawmakers surely would not have intended that state law allow the same two individuals to adopt jointly.

Najam added that his objection had nothing to do with the sexual orientation of the parents, only their lack of a marriage license.

The Attorney General’s Office has 30 days from the ruling to lodge an appeal to the Indiana Supreme Court. A spokeswoman said on April 21 that the office was reviewing the decision.

This article appeared in the Dallas Voice print edition, April 21, 2006.

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