Children should remain in home despite grandmother’s felony conviction

The Indiana Court of Appeals found I.C. 31-19-11-1(c) to be unconstitutional as applied and upheld the adoption of two boys by their maternal grandmother. The judges held that her 1997 felony conviction for neglect of a dependent should not automatically bar her from adopting the children.

I.B., W.B. and their half-brothers J.C. and G.C. were placed in the care of their maternal grandmother and her fiancé upon their removal from their home and child in need of services adjudication due to parental drug use and I.B.’s premature birth with drugs in his system. The children were in their grandmother’s care for approximately five months, but removed after she and her fiancé tested positive for marijuana. But the two made changes in their lives and worked with Department of Child Services to have the children returned. They eventually filed for adoption of the four boys, to which mother consented.

The two older boys’ adoptions were already granted, but the younger boy’s paternal grandmother intervened in the younger boys’ adoption proceedings. DCS and Court Appointed Special Advocates testified that adoption by the grandmother and her fiancé, whom she lived with for 13 years, was in I.B. and W.B.’s best interests based on the care they gave the boys, who all had their own special needs.

The trial court granted the maternal grandmother and her fiancé’s motion to adopt.

The paternal grandmother appealed, arguing that the maternal grandmother’s 1997 conviction for Class D felony neglect of a dependent should bar the adoption. The biological mother of the boys was the victim in the case. Maternal grandmother pleaded guilty, admitting she left her minor daughter alone with her husband after she became aware he had been molesting the girl. She later divorced her husband and successfully completed counseling and probation. The family case manager did not believe she posed a risk to the four boys.

I.C. 31-19-11-1(c) provides that a court may not grant an adoption if the petitioner for adoption has been convicted of any of the felonies listed in the statute, including neglect of a dependent. But DCS argued that application of the statute’s irrebuttable presumption of unfitness would result in a violation of the children’s due process rights.

“[W]e conclude that I.B. and W.B. were entitled to an individualized determination of their best interests before being removed from the intact, biological family unit in which they had lived since the beginning of 2013. This is precisely the procedure that was provided below, and the evidence established that despite maternal grandmother’s prior conviction, it was in I.B. and W.B.’s best interests to be adopted into this loving, secure home in which they have thrived and which is made up of family members with whom they are closely bonded.

Under these circumstances, the statute is unconstitutional as applied and maternal grandmother’s conviction cannot be dispositive,” Judge Ezra aFriedlander wrote in In Re the Adoption of: I.B. and W.B., (Minor Children) and B.B. v. B.C. & J.L., and The Indiana Department of Child Services, 82A05-1402-AD-65.