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.”

IL Staff for www.theindianalawyer.com

A federal jury awarded a former teacher nearly $2 million Friday after finding that a northern Indiana Roman Catholic diocese discriminated against her by firing her after church officials learned she was trying to get pregnant through in vitro fertilization.

The group of five women and seven men announced its decision in favor of Emily Herx late Friday afternoon after beginning deliberations about 10:30 a.m., finding she was the victim of discrimination when the Diocese of Fort Wayne-South Bend declined to renew her contract at St. Vincent de Paul School in 2011. Her attorneys argued that male teachers accused of violating the moral teachings of the church had been allowed to keep their jobs.

Herx’s complaint charged the diocese violated Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act when it terminated her employment. The diocese asserted it was exempt to liability under Title VII. It pointed to religious exemptions in the measure as giving protection to religious institutions making employment decisions based on the religious and secular activities of their employees.

The federal court granted the diocese’s motion for summary judgment with respect to the ADA claim, but not the Title VII claim. The diocese asked the 7th Circuit Court of Appeals to intervene before the trial and dismiss the complaint on religious freedom grounds, but the 7th Circuit declined earlier this month.

The jury awarded Herx $1.75 million for emotional and physical damages, $125,000 for medical expenses, $75,000 for lost wages and $1 in punitive damages, WANE-TV reported.

The diocese contended Herx violated the terms of her contract and it plans to file an appeal of the decision, according to the station. The diocese argued that, according to church teachings, in vitro fertilization is gravely evil, no circumstance can justify it, and those beliefs apply to men and women who participate in the procedure.

IVF involves mixing egg and sperm in a laboratory dish and transferring a resulting embryo into the womb.

Herx, who is from Hoagland, about 15 miles northeast of Fort Wayne, testified during the trial before U.S. District Judge Robert L. Miller Jr. that a fertility doctor told her IVF was her most likely way to have a second child.

The treatments began in early 2010, and Herx said she kept her principal informed at the woman’s request.

Bishop Kevin Rhoades testified Thursday he didn’t know that Sandra Guffey, Herx’s principal and a fellow Catholic, had known for more than a year that Herx was undergoing the infertility treatment and he was unaware of emails between Guffey and Herx about the treatment, The Journal Gazette reported.

Herx’s attorney, Kathleen Delaney, asked Rhoades if, after seeing the emails, he could see that Herx might have felt she had the support of her bosses to undergo the treatment.

Rhoades said yes, but also said he’s not sure whether it would have changed the decision to terminate her contract.

The suit is Emily Herx v. Diocese of Fort Wayne-South Bend Inc. and St. Vincent de Paul School, 1:12-CV-122.