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  1. #1
    TinkerBelleLuvr is offline Senior Member
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    Stepparent adoption overturned

    What is the name of your state (only U.S. law)? Indiana

    http://southbendtribune.com/article/20110218/News01/102180331/1130

    The Indiana Supreme Court has agreed with an appeals court in overturning a St. Joseph County judge's decision to let a Mishawaka woman adopt her stepchild over opposition from the girl's mother.

    The stepmother, referred to only as "A.W." in court records, in June 2009 sought to adopt the then-8-year-old girl, who lived with her and the girl's father. The stepmother cited an Indiana statute stating she did not need the mother's consent for the adoption because she had failed to pay child support.

    St. Joseph County Probate Judge Peter Nemeth granted the adoption.

    But the mother appealed his ruling, and the Indiana Court of Appeals in September reversed Nemeth.

    The Supreme Court on Thursday granted transfer, meaning it would grant the stepmother's request that it rule on the case. But then the high court simply adopted the appeals court's ruling without hearing oral arguments, something it typically does only about once a year.

    "Under the circumstances before us, there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in (the girl's) best interest," the Court of Appeals panel wrote.

    The appeals court and Supreme Court acknowledged the mother had not paid child support, but noted she had not been ordered to do so. On the contrary, another judge in the couple's divorce case had determined she had a "negative child support obligation" because the father earned more than $112,000 in 2009, while she earned about $40,000.

    The mother testified she had been visiting the girl on weekends until March 2009, when the father started prohibiting the visits until she paid child support.

    But during their weekend parenting time before that point, the mother had provided the girl with housing, clothing, food and other necessities, according to court records.

    "It is clear that mother wants to remain a loving presence in (the girl's) life," the appeals court ruled. "Not only is mother intent on retaining her parental rights and obligations, but (the girl) herself signals that she wants mother in her life. The record includes notes from (the girl) to her mother, stating among others, 'I Love you' and, 'Dear mommy, I have missed you a lot, love (the girl's name).' "

    In its order, the Supreme Court also took the even more unusual step of stating the mother has a right under Indiana law to recover her attorney fees from the stepmother. State statute allows recovery of attorney fees from the opposing party in cases where someone brings a civil court action that is "frivolous, unreasonable or groundless," or is in "bad faith."

    "The record before us suggests one or more of these grounds may exist ..." the high court wrote.
  2. #2
    stealth2 is offline Senior Member
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    ^^Two thumbs up^^!!!!!!!

    Wait - that looks like four thumbs up.... Oh well!
  3. #3
    Some Random Guy is offline Senior Member
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    Well I am happy that the court went the extra step and states that the mother can recover lawyer fees. 'Loser pays' is a long overdue reform that this country needs to prevent the burden of legal fees from being an additional penalty on those wrongly sued or otherwise dragged before the court.
  4. #4
    Antigone* is offline Senior Member
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    They got this one right. High five to them!!!
  5. #5
    LdiJ is offline Senior Member
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    Quote Originally Posted by Antigone*of*Greece View Post
    They got this one right. High five to them!!!
    I agree...they definitely got that one right. I am honestly amazed that the judge ruled in the stepmother's favor to start with.
  6. #6
    Proserpina is offline Senior Member
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    I wonder when Stepmom is going to sign up here...
  7. #7
    Antigone* is offline Senior Member
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    Quote Originally Posted by Proserpina View Post
    I wonder when Stepmom is going to sign up here...
    What a field day we'd have!!!
  8. #8
    Ohiogal is offline Senior Member
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    Ohio had the same thing happen..

    In re BMS and JCS tbka BMT and JCT
    2011-Ohio-714

    Rendered on February 17, 2011

    Highpoints are as follows:
    Appellant, S.A.T. ("appellant"), appeals the judgment of the Franklin County Court of Common Pleas, Probate Division ("probate court"), which denied his petition to adopt his stepsons, B.M.S. and J.C.S. For the following reasons, we affirm.
    {2} B.M.S. and J.C.S. are the biological children of appellant's current wife, R.T., and appellee, M.S. ("appellee"). Appellee and R.T. were once married, and they were divorced in the state of Oklahoma in March 2002. Pursuant to the decree of divorce, custody of the children was granted to R.T. Appellee was granted visitation privileges and ordered to pay child support. Following the divorce, appellee moved to Louisiana. In early 2003, appellee moved to Dallas, Texas. From March 2002 to February 2005, appellee met all of his court-ordered child support obligations. Until early 2005, he drove to Oklahoma twice per month to visit with his children.

    {3} In early 2005, R.T. moved to Ohio with the children, and she married appellant. Appellee stopped making child support payments.

    {4} In April 2006, appellant filed his petition for adoption of B.M.S. and J.C.S. In it, he alleged that appellee had failed to support the children for the preceding 12 months, and, as a result, appellee's consent to the adoption was not required. R.T. consented to the adoption.

    {5} In June 2006, a court in Oklahoma granted R.T.'s motion to reduce to judgment appellee's unpaid child support and medical expense obligations. The court granted judgment in favor of R.T. and against appellee in the amount of $23, 545.02, plus interest.

    {6} In September 2006, a probate court magistrate held a hearing on the issue whether appellee's consent was required in order for the adoption to go forward. The magistrate issued a decision, which concluded that appellant had met his burden of proving, by clear and convincing evidence, that appellee had failed, unjustifiably, to support his children during the preceding year. On objections from appellee, the probate court adopted the magistrate's decision and held that appellee's consent for the adoption was not required.

    {7} Appellee appealed to this court, and we affirmed. See In re Adoption of B.M.S. & J.C.S., 10th Dist. No. 07AP-236, 2007-Ohio-5966 ("In re Adoption I").

    {8} Following this court's November 2007 decision in In re Adoption I, the probate court magistrate held a hearing over a period of four days to determine whether, pursuant to R.C. 3107.161, adoption was in the best interest of B.M.S. and J.C.S. In a February 22, 2010 decision, the magistrate concluded that appellant "is suitably qualified to care for and rear" B.M.S. and J.C.S. and, based on the weight of the evidence and the credibility of the witnesses, "that the petition for adoption is in the best interest of the children for both their short term and long term stability." Accordingly, the magistrate concluded that appellant's petition for adoption should be granted.

    {9} Appellee filed objections to the magistrate's decision. The probate court made virtually the same findings of fact as the magistrate, but ultimately concluded that, while appellant "is suitably qualified to care for and rear" B.M.S. and J.C.S., "the petition for adoption is not in the best interest of the children for both their short term and long term stability." Accordingly, the probate court denied appellant's petition.

    {10} Appellant appealed, and he raises the following assignments of error:
    ERROR I: THE JUDGMENT ENTRY OF THE TRIAL JUDGE SUSTAINING OBJECTIONS AND DENYING [APPELLANT'S] PETITION FOR ADOPTION OF THE MINOR CHILDREN IS CONTRARY TO LAW AND PUBLIC POLICY AND [IS] THEREFORE AN ABUSE OF DISCRETION.
    ERROR II: THE DENIAL OF [APPELLANT'S] PETITION FOR ADOPTION OF THE MINORS WAS AN ABUSE OF DISCRETION AS [AGAINST] THE MANIFEST WEIGHT OF THE EVIDENCE.

    and then:
    {16} First, the probate court made factual findings concerning the significant care and support appellant gives to the children. The court found that appellant provides for both of them "through his income: shelter, clothing, food, schooling, and extracurricular activities." He acts as a coach and a mentor to the boys. The court even found that appellee does not dispute appellant's qualities as a parent, except for his lack of communication with appellee. Based on the evidence, the court found appellant to be a suitable parent for the boys, and there is nothing in the record to suggest that he is not.

    {17} The court also made findings and conclusions concerning the boys' integration into their home and community. The court concluded, and the evidence supports, that the boys "have adjusted extremely well" to their home, school, and community environment. Thus, far from refusing to accept appellant's suitability, and the boys' integration into their loving and supportive home and community, the court acknowledged these positive factors expressly.

    {18} Nevertheless, the court went on to consider the weight of these positive influences against the weight of appellee's possible influence and participation in the boys' lives. From the outset, the court acknowledged appellee's lack of financial support after the filing of the petition, with the exception of about $14, 000 in payments, and his resulting non-compliance with the divorce decree's requirement that he pay child support. Appellant takes issue with the court's consideration of appellee's alleged reasons for not paying support, i.e., that he could not afford to both pay child support and visit the boys in Ohio and that R.T. had agreed to his choice of visitation over support. We conclude, however, that the court properly considered appellee's reasons for not paying support within the context of determining the best interest of the children and did not, by doing so, improperly revisit the issue of whether appellee's non-payment was justifiable for purposes of determining whether his consent was needed. Appellee's willingness to support his children financially was relevant, for example, to the court's consideration of the relationship among the parties and of the need for permanency, stability, and continuity of those relationships, all proper factors under R.C. 3107.161.

    {19} The court also acknowledged appellee's failure to visit the boys. The court found, however, that R.T. had "actively denied visitation" between appellee and the children after the filing of the adoption petition. There is competent, credible evidence to support the court's finding. R.T. was asked repeatedly whether she had allowed visitation since the filing of the petition, and she admitted that she had not.
    {20} The court also considered appellee's attempts to contact the boys by telephone. Much attention was paid to appellee's contention that he had made nearly 700 phone calls over 29 months in his attempt to reach them and the evidence he offered to support that contention. While the court heard testimony about the boys' unwillingness to speak on the phone and the possibility that appellee's calls were excessive, the court also heard testimony that R.T. had made little or no attempt to respond to appellee's calls or otherwise to keep the boys in contact with their father. If nothing else, appellee demonstrated through this evidence that he had attempted to maintain communication with his children and that he was willing and able to make such efforts in the future, should the petition be denied.

    {21} In the end, the court relied on, and accepted the conclusions of, the Guardian ad litem ("GAL"). In his testimony and reports, the GAL acknowledged the very positive influence of appellant in the boys' lives. He also acknowledged the loving and supportive environments in which the children live and go to school. There is no question that the boys are thriving and well-adjusted under the care of appellant and R.T. The GAL also concluded, however, that the involvement of their biological father, appellee, would benefit the boys and, therefore, that the adoption was not the least detrimental alternative available for safeguarding their growth and development. To reach this conclusion, the GAL considered appellee's positive interaction with the boys when he had been able to spend time with them and his attempts to maintain contact with them.

    {22} The GAL also considered the desires of the children. The older son, who was ten years old at the time of the hearing, had consistently expressed his desire to see his father. The younger son, who was eight years old then, was less consistent about his desires, sometimes saying that he did not want to see him, sometimes saying that he did, and sometimes saying he was "50/50" on the issue. (Tr. 1002.) Neither boy had a clear understanding of the proceedings. Instead, they believed it was a process for changing their last name to that of their mother and stepfather. While appellant takes issue with consideration of the boys' desires, we note that R.C. 3107.161 requires the court to consider "[t]he wishes of the child in any case in which the child's age and maturity makes this feasible." R.C. 3107.161(B)(3). We agree with the GAL and the court that, at least, the court could consider the wishes of the ten-year-old son, who remembered his relationship with his father from an earlier period when they could spend more time together and was able to articulate his desires. And, while the eight-year-old son was inconsistent in his expression of his desires, he was able to communicate his general feelings about his father and his enjoyment of their visits together.
    The full decision can be found at the website of the Tenth Appellate District.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  9. #9
    justalayman is offline Senior Member
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    Quote Originally Posted by Some Random Guy View Post
    Well I am happy that the court went the extra step and states that the mother can recover lawyer fees. 'Loser pays' is a long overdue reform that this country needs to prevent the burden of legal fees from being an additional penalty on those wrongly sued or otherwise dragged before the court.
    did you miss where it was stated that the mother had a right, per statute? I believe you will find that many states allow recovery of legal expenses when defending an action that is frivolous or in bad faith. It'a when the action has some merit that a person is generally barred from recovering costs.


    I think judge peter screwed the pooch on this one. I tend to hear his name mentioned more than a judge probably should be in the news and generally, it is due to some dispute rather than accolades.

    apparently there are others that disagree with Judge Nemeth as well (from the editorial page from the So Bend Trib letters from the public):


    God is the leader of the world. Then we have President Barack Obama who is the leader of the United States. Then we have Mayor Stephen Luecke who is the leader of South Bend. Then we have the city and county council members. Then we have Probate Judge Peter Nemeth who thinks he is above all of the above. Amen.
    Richard Kovach
  10. #10
    LeemonGator is offline Member
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    Wow so did she automatically recover the fee's, or just given approval to attempt to do so?

    I wonder how/why a judge let a stepparent adoption go through that was "frivolous" and in "bad faith"?
  11. #11
    Isis1 is offline Senior Member
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    see!!! you need an attorney for adoptions!

    cuz she didn't pay child support! there WAS NO CHILD SUPPORT!!! AND Mom was utilizing her visitation? OMG! that judge needed to be smacked over his head!
  12. #12
    justalayman is offline Senior Member
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    Quote Originally Posted by LeemonGator View Post
    Wow so did she automatically recover the fee's, or just given approval to attempt to do so?

    I wonder how/why a judge let a stepparent adoption go through that was "frivolous" and in "bad faith"?
    no, it was not automatically awarded. The Supreme Court of Indiana simply made it known they believed the aggrieved party was fully within their rights under Indiana statutes to seek recovery of her costs. They simply pointed out that under the Indiana statutes a person is allowed to seek such damages under certain conditions and in their opinion, this situation fell within those conditions.

    Obviously a lower court would look pretty bad if they rejected a claim if the mother were to make one but they could.

    A supreme court does not award damages. They render opinions that affirm or reject lower courts rulings.

    and the judge let it go through because he had his head in a place that didn't allow him to see the truth of the matter.
  13. #13
    lealaken is offline Junior Member
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    It's about time...

    Thank God this lunatic's actions are being recognized, and justice is being served. Judge Nemeth ruined my life by allowing my daughter to be adopted...it's a long story, but it was completely wrong...

    And I know others who have been wronged by this psycho....he doesn't have any rules that he has to follow and he does whatever he pleases....

    And as for the stepmothers attorney, Mark James, well he was the attorney against me in court also.

    I just hope something is done about Nemeth before too many other families are tragically destroyed.

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