Dave Stafford for www.theindianalawyer.com

The Indiana Supreme Court on Tuesday stripped the adoption of a child by her stepfather, ruling that maternal grandparents who had been primary caregivers early in her life were wrongly denied an opportunity to consent to or contest the adoption.

“We vacate the decision of the (Johnson) Superior Court granting Stepfather’s petition to adopt B.C.H. and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption and other proceedings consistent with this opinion,” Justice Steven David wrote for the unanimous court in In Re the Adoption of B.C.H., 41S04-1408-AD-515. “At this hearing, the Grandparents shall be given the opportunity to give or withhold consent to B.C.H.’s adoption.”

The Indiana Court of Appeals affirmed the trial court in April. Just last week in a separate case between the parties, an appeals panel denied the grandparents’ attempts to challenge custody and regain visitation with the child, now 7, for whom they were primary caregivers until she was almost 4 years old. The child was adopted in August 2011.

David wrote that the court had to interpret the meaning of “lawful custody” for the purposes of consent to an adoption petition under I.C. 31-19-9.1. Grandparents challenged the adoption 10 days after the child’s mother removed the child from her grandparents’ care, claiming they were de facto guardians of the child.

Because no court had ever granted legal custody to the grandparents, the Court of Appeals had interpreted this to mean that the grandparents did not have “lawful custody.” David and the court turned to Black’s Law Dictionary to overrule.

“‘Lawful’ custody means just that — custody that is not unlawful,” David wrote.

“We think the General Assembly used the term ‘lawful’ to exclude from consideration a person who illegally absconds with a child. Once we understand what falls out of the definition of ‘lawful,’ it is apparent that there are many sources of potential lawful custody that span the spectrum from court-ordered custody of a child to de facto custodianship to informal caretaking arrangements, to name a few,” the court held.

“Based on these circumstances, we believe that the Grandparents were exactly the type of caregivers the General Assembly had in mind when they chose the term ‘lawful custody’ over ‘legal custody’ in Ind. Code § 31-19-9-1(a)(3). They were exactly who the legislature thought would be in the best position to tell a judge presiding over an adoption proceeding about the child in question and about the child’s best interests. Though only the trial court has the authority to ultimately decide whether the adoption is in the child’s best interests, lawful custodians like B.C.H.’s Grandparents have the right to present testimony to aid in the court’s often difficult decision.

“But in this case, the Grandparents were given neither formal legal notice of the pending adoption nor an opportunity to voice their concerns and be heard. They will have that opportunity now. We vacate the Superior Court’s grant of the adoption petition and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption. As her lawful custodians, the Grandparents must be given the opportunity to give or withhold their consent to Stepfather’s adoption of their granddaughter.”

David wrote that withholding consent is not the same as a veto of an adoption if the Superior Court determines the adoption is in the child’s best interests.

The court said determinations about lawful custody without legal custody must be made on a case-by-case basis, but noted such cases are certain to increase.

“Grandparents cite the 2009 U.S. Census findings that 7.8 million children live with at least one grandparent, a sixty-four percent increase from 1991,” David wrote. “In a society where children are cared for and parented by adults without court-ordered custody rights, trial judges conducting adoption proceedings must hear from every party with a significant and substantial connection to the child(ren) in order to gain as much relevant information as possible about the child(ren)’s best interests.”