Marion County Division of Indiana Department of Child Services v. Melinger

878 N.E.2d 331, 2007 Ind. App. LEXIS 2933, 2007 WL 4463591
CourtIndiana Court of Appeals
DecidedDecember 21, 2007
Docket29A02-0611-CV-1018
StatusPublished
Cited by2 cases

This text of 878 N.E.2d 331 (Marion County Division of Indiana Department of Child Services v. Melinger) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marion County Division of Indiana Department of Child Services v. Melinger, 878 N.E.2d 331, 2007 Ind. App. LEXIS 2933, 2007 WL 4463591 (Ind. Ct. App. 2007).

Opinion

OPINION

MAY, Judge.

The Marion County Department of Child Services (“DCS”) appeals the adoption granted to Stephen Melinger. DCS raises the following restated issues:

1. The court erroneously granted the adoption without a period of placement and supervision;
2. The court lacked jurisdiction over the children because they were not Indiana residents;
3. The court lacked authority to grant the adoption to a non-resident because the children were not “hard to place” pursuant to Ind.Code § 31-9-2-51; and
4. The court failed to comply with the Interstate Compact on the Placement of Children, Ind.Code ch. 31-28-4.

Melinger raises two issues on cross-appeal:

1. DCS has no standing to appeal because it did not appeal the court’s July 18, 2006 entry that ordered DOS’s “responsibility for the placement of these children is terminated effective today.” (Tr. at 281); and
2. The court erred in denying Melinger’s motion to dismiss the CHINS ease.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 8, 2005, Z.H., an African-American, gave birth to twin girls at Methodist Hospital. The twins were nine weeks premature and were placed in the neo-natal intensive care unit. Z.H. listed Melinger as “Father” on the girls’ birth certificates. (Ex. at 16-17.) On April 11, Z.H. and her husband signed an affidavit and consent to adoption that indicated *334 Z.H. was inseminated with combined sperm from an anonymous donor and Mel-inger on September 22, 2004; husband was not the father; they did not know who the father was; and they wanted Melinger to adopt the twins.

On April 13, 2005, Melinger filed a petition for adoption in Hamilton Superior Court (“the Adoption Court”). Attached to the petition was the affidavit and consent from Z.H. and her husband. Melinger testified he lived near Methodist Hospital in Indianapolis; Z.H. had given birth to the girls for him from a combination of his and donor sperm; the children were born much earlier than expected; he needed “authority over the children” for insurance coverage, (Tr. at 6); he was in the process of completing a home study; he is a teacher in the Union City, New Jersey, school system; he had never been convicted of a crime; and he had the financial resources to care for the children. The Adoption Court granted Melinger temporary custody of the twins.

On April 29, 2005, the Adoption Court heard additional evidence on Melinger’s petition to adopt. Melinger entered a home study prepared by Paralegal On Call, a then-licensed child placement agency. Melinger testified he had been visiting the twins every day; his insurance was covering their hospital bills and he would pay any remaining balance; he was considering moving the children to a New Jersey hospital; he had found both a full-time nanny and a back-up nanny to assist him at home; he wanted to adopt; and he believed it was in the twins’ best interests that he adopt them. At the end of the hearing, the Adoption Court granted Mel-inger’s petition to adopt.

In late April or early May, Melinger unintentionally brought his small pet bird into Methodist Hospital’s neonatal intensive care unit. 1 Hospital staff reported this incident to DCS, and based thereon, on May 2, 2005, Marion County Juvenile Court (“the CHINS Court”) held a detention hearing and entered an ex parte detention order for the twins. That order raises questions about Melinger’s residency and whether his adoption complied with the Interstate Compact on the Placement of Children (“ICPC”).

On May 4, 2005, back in the Adoption Court, Melinger moved for a nunc pro tunc order finding the children were “hard to place” pursuant to Ind.Code § 31-9-2-51. 2 (Appellant’s App. 185-86). On May 10, he filed a motion to amend the adoption petition to indicate the children were biracial. In addition, the motion requested correction of the home study to indicate Z.H. was inseminated with a combination of sperm from Melinger and an anonymous donor, rather than from Melinger only. On May 11, the Adoption Court entered a nunc pro tunc decree finding the twins were hard to place because of their race, and therefore Melinger’s “non-residence status does not preclude the court from granting this adoption.” (Id. at 181.)

Also on May 11, 2005, DCS filed in the CHINS Court a petition alleging the twins were Children in Need of Services (“CHINS”). The petition specifically alleged:

Mr. Melinger has demonstrated poor judgment in providing care for his daughters. Mr. Melinger endangered *335 his children’s health by bringing a live bird into the neonatal intensive care unit on one occasion and by arriving at the neonatal intensive care unit on another occasion with bird feces on his shoulder. These actions risked serious infection to his children and to the other children in the neonatal intensive care unit. Mr. Melinger’s interactions with the staff at [Methodist] Hospital have left the hospital with significant concerns about his ability to provide for these children’s needs once they are released from [Methodist] [Hospital].

(Ex. A.) The petition also claimed “Concerns for the safety of the children precluded offering services to prevent removal.” (Id.) That same day, the CHINS court ordered the children to be wards of the DCS, but listed the plan for permanency as “Reunification with parent(s).” (Ex. B.) That Initial Hearing Order also ordered the parties to return June 20, 2005, for a fact-finding hearing and provided:

The Court, having considered the question of access to these juvenile proceedings, now finds that it is in the best interests of the child or the safety and welfare of the community to deny access, and, therefore, orders that the general public and the media shall not be allowed access to any of the proceedings under this cause, pending further Order of the Court.

(Id.)

On July 25, 2005, the guardian ad litem from the CHINS case (hereinafter “CHINS GAL”) asked the Adoption Court for access to the adoption file.

On July 26, 2005, the CHINS Court entered an order opening for public inspection the record of proceedings in the twins’ CHINS case. That order provided in part:

In the instant case, there appear to exist significant legal, moral and ethical questions concerning the forthrightness, candor and honesty of those individuals who participated in the adoption process in Hamilton County, Indiana by virtue of which Stephen Melinger claims he is the father of the Twin Infants Melinger, which may call into question the efficacy of such proceedings.

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Related

Town of Schererville v. Northern Indiana Public Service Co.
463 N.E.2d 1134 (Indiana Court of Appeals, 1984)

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Bluebook (online)
878 N.E.2d 331, 2007 Ind. App. LEXIS 2933, 2007 WL 4463591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marion-county-division-of-indiana-department-of-child-services-v-melinger-indctapp-2007.