COA Recommends Judge’s Recusal In Remand Of Motion To Contest Adoption

Olivia Covington for www.theindianalawyer.com

In a 41-page opinion handed down Thursday, the Indiana Court of Appeals reversed the dismissal of a putative father’s motion to contest adoption, finding that the adoptive parents had caused delays in the court proceedings and also noting that the judge in the case should have recused himself to avoid the appearance of impropriety.

In L.G. v. S.L., et al., 29A04-1607-AD-1756, A.R. became pregnant with a son, Infant Male R., while L.G., a native of Senegal and A.R.’s romantic partner, was away at school in Pittsburgh, Pennsylvania. A.R. informed L.G. that she intended to give the child up for adoption, and prior to the child’s birth, L.G. filed a petition to establish paternity. The court has yet to rule on that petition.

After A.R. gave birth in November 2015 and informed L.G. of the adoption plan, the father wrote a so-called “suicide letter,” prompting his hospital admittance for a mental health evaluation. Thus, in their petition for adoption, adoptive parents S.L. and W.L. argued that the father’s consent to the adoption was unnecessary under Indiana Code 31-19-9-12 because he was “unfit to be a parent.”

In response, L.G. filed a motion to dismiss and a motion to contest the adoption in the Hamilton Superior Court. He further objected to the adoptive parents’ requests for information and documentation regarding his mental health, as well as to other requests for production and interrogatories.

In response to those requests, L.G. filed a motion to quash subpoenas to nonparties that the adoptive parents had submitted, but the trial court denied that motion and instead granted S.L. and W.L.’s motion to compel discovery.  Additionally, the court ordered L.G. to sign authorizations for the release of his medical, school and employment records.

However, in March 2016, the trial court granted L.G.’s motion to reconsider “as to the Mental Health Records” and set a hearing for April 11 concerning the release of those records. Father then filed his motion for finding of paternity, with an attached copy of the DNA test that appeared to show him as the biological father.

After the April 11 hearing, the court ordered L.G. to execute authorizations for the release of his mental health records before the hearing to determine if they were discoverable, while also finding that his failure to provide such authorizations had created a delay in the proceedings. The court further found that “based upon the testimony, … (Father’s) mental health records should be and are hereby ordered released… .”

L.G. provided the signed authorizations and attempted to transmit the mental health records by facsimile, thought the transmission was terminated by the receiving party. Then, the night before his scheduled deposition in Indianapolis, L.G. told his attorney he was having “transportation issues” that meant he could not travel to the deposition from Pittsburgh. The adoptive parents’ counsel, Charles Rice, refused to allow L.G. to attend by telephone or to reschedule the deposition for later in the day, and the father’s attorney subsequently withdrew as counsel.

After L.G. appeared by telephone at a hearing on April 22, 2016, the trial court appointed him new counsel and granted his motion to continue. The court ultimately entered an order dismissing L.G.’s motion to contest the adoption and concluding that his consent was implied by statute.

Specifically, the court found that “(Father’s) course of frivolous objections to the production of mental health records was designed to impede the ability of the Adoptive Parents (to) try this case…” and that a putative father’s consent is implied if he fails to appear “at the hearing set to contest the adoption,” pursuant to I.C. 31-19-9-12(2).

But in its Thursday opinion, the Indiana Court of Appeals reversed, finding it was the adoptive parents, not L.G., who caused the delays between Jan. 11, 2016, when L.G. first objected to the release of his mental health records, to April 11, 2016, when the court finally held the statutory hearing to determine whether those records could be released.

“Our review of the record, as well as oral argument, leave us convinced that counsel for Adoptive Parents pursued an unrelenting narrative that unfairly characterized Father a dilatory and uncooperative,“ Judge Edward Najam wrote Thursday.

Specifically, Najam wrote that the adoptive parents never filed the petition for the mental health records required under I.C. 16-39-3-3(2). Instead, the trial court “deemed” their motion to compel as a petition for the records under I.C. 16-39-3-3 and set a hearing for April 11. Thus, the delay in obtaining those records was caused by the adoptive parents’ noncompliance with statute and, thus, was attributable to them, Najam wrote.

Further, the appellate panel found that while the April 22 hearing was a hearing on various motions, it was not the hearing set to contest the adoption, so I.C. 31-19-9-12(2) was inapplicable. Further, the father’s appearance by telephone and not in-person at that hearing does not support dismissal of his motion to contest adoption, the appellate court said.

Similarly, “dismissal of Father’s motion to contest the adoption based solely on his failure to appear for his first scheduled deposition, despite his offer to be deposed later that same day, was unwarranted and, given the fundamental interests at stake, unjust,” Najam wrote. Thus, the dismissal order was reversed and the case was remanded with instructions for the trial court to hold an evidentiary hearing on L.G.’s motion to contest the adoption.

Finally, the appellate panel determined, sua sponte, that the trial judge, Judge Steven Nation, should recuse him from the proceedings on remand given the fact the attorney Rice wrote a letter of recommendation in support of the Nation’s application to the Indiana Supreme Court last year while this proceeding was pending. While Najam noted that the court “(ascribed) no improper motive to court or to counsel,” he said Nation should have recused himself during the initial proceedings.

Further, “under the circumstances…the trial judge ‘cannot reasonably be expected to erase the earlier impressions from his…mind,” Najam said, so the appellate panel recommended Nation’s recusal on remand.