Big Adoption Advance in Indiana

State now among the few that allow gay- and lesbian-couple joint adoptions

A divided three-judge panel of the Court of Appeals of Indiana ruled on April 13 that the state’s adoption law could be interpreted to allow unmarried couples, including same-sex partners, to jointly adopt a child. The ruling approved the adoption of a baby girl, identified in court papers as M.A.H., by a lesbian couple, named as R.K.H. and K.A.B., resolving a dispute between the courts in Morgan and Marion Counties.

Lambda Legal’s Midwestern office in Chicago and Indianapolis attorney Barbara J. Baird represented the mothers on this appeal.

The child’s birth mother decided to give her up for adoption two days after she was born in Morgan County in September 2004. The county’s Office for Families and Children placed the child with R.K.H. and K.A.B. as qualified foster parents, and initiated a proceeding in Morgan County Juvenile Court to have the birth mother’s parental rights terminated. The father, whose whereabouts were unknown, was entirely out of the picture, and the child, as a ward of the state, was designated a Child in Need of Services, which placed her under the protection of the Office for Families and Children and the Juvenile Court.

The lesbian foster mothers decided that they wanted to adopt the child, and filed a petition to that effect in Marion County Probate Court in January 2005, but things began to get complicated. As adoption proceeding went forward in Marion Probate Court, the proceeding to terminate parental rights and to protect the child went forward in Morgan County, putting the Morgan children’s services officials in the middle of a tussle between Marion Probate Judge Charles J. Deiter and Morgan Circuit Judge Matthew G. Hanson.

Hanson strongly opposed the idea of letting an unmarried couple adopt the child after evidence was presented that she would not be hard to place and that Morgan County’s practice had been to place such children only with married couples. Deiter in Marion County, in contrast, having found that the child had bonded with the lesbian couple and that they were providing an excellent home, went ahead and approved their adoption petition, citing the girl’s best interests, over the objection of the Morgan County children’s services officials.

The cases were consolidated for a decision by the Court of Appeals. Writing for a majority of the panel, Judge John G. Baker observed that the Probate Court has exclusive jurisdiction over adoptions in Indiana. Consequently, the Marion County court’s ruling approving the adoption would take priority over what Hanson was doing in the Morgan County Juvenile Court, provided, of course, that a joint adoption by an unmarried couple was authorized by the adoption statute.

The statute says that “a resident of Indiana” can file a petition to adopt a child, but if the petitioner is married, their spouse must join in the petition. The statute says nothing, either positive or negative, about joint adoptions by unmarried couples.

According to Baker, “The Parents argue—and the Probate Court agreed—that statutory language permitting ‘a resident of Indiana’ to file a petition for adoption does not limit it to a singular resident, but rather includes the plural—‘residents’—as well.… There is nothing in [the adoption law] that limits the Parents’ right to adopt M.A.H.”

Judge Edward W. Najam, Jr., strongly objected to this conclusion in a dissenting opinion, focusing on a 2005 amendment to the adoption act, which he argued had been adopted by the Legislature in response to recent rulings by the court of appeals regarding lesbian second-parent adoption cases. Najam wrote that the amendment was intended to prevent joint adoptions by same-sex couples.

His problem, however, was that the Legislature did not come right out and say that, and a majority of the court found the amendment to be irrelevant to this case. According to Baker, second-parent adoption and joint adoption are two distinct issues, and the 2005 amendment did not address joint adoptions. The amendment states: “If the adoptive parent of a child is married to a previous adoptive parent, the parent-child relationship of the previous adoptive parent is not affected by the adoption.” Baker wrote that this new provision is just a “natural corollary” to the provisions for step-parents adopting their spouse’s children and has nothing to do with the issue of joint adoption.

Najam interprets the 2005 amendment as an attempt by the Legislature to forbid second-parent adoptions by anyone other than a legal spouse of the existing parent. If that is so, it is obliquely stated, to say the least. But Baker and the majority insisted that the second-party adoption issue was irrelevant in any event.

Morgan County officials can of course take the issue up to the Indiana Supreme Court, but for the first time, an Indiana appellate court has ruled that same-sex couples can jointly adopt a child. The state is now one of a relative handful in which the courts have formally taken that step.