Petition of Gray

425 N.E.2d 728, 1981 Ind. App. LEXIS 1649

• Court: Indiana Court of Appeals
• Decided: September 28, 1981
• Docket: 3-1280A391
• Status: Published

Opinions

STATON, Judge.

Robert H. Gray and his wife, Victoria L. Gray filed a Petition for the Adoption of Angel Lee Klahn¹ in the Porter Juvenile Court. After hearing evidence on the petition, the court granted the adoption.

On appeal, Dorothea L. Klahn, the child’s natural mother, raises several issues for our consideration:

(1) Did the juvenile court have the subject matter jurisdiction to properly grant the adoption petition?

(2) Did Ms. Klahn receive adequate notice of the hearing on the petition for the adoption of Angel Lee?

(3) Was there error in the failure to follow the procedural requirements as set forth in IC 1971, 31-3-1-6?

We reverse and vacate.

A juvenile court has exclusive original jurisdiction in a number of proceedings; the granting of an adoption is not one of them. See IC 1971, 31-6-2-1; IC 1971, 31-6-5-5(1). In order to do away with the need to obtain parental consent to an adoption, and thereby extinguish a parent’s right in his or her child, the procedural steps contained in IC 1971, 31-3-1-6 must be followed and the petition must be filed in a court “having jurisdiction in probate matters” or in a “separate probate court.” IC 1971, 31-3-1-1. Notice of the hearing and an opportunity to file objections to the adoption must be given to the natural parents and other necessary parties. IC 1971, 31-3-1-6(e); see also Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 for a discussion of due process considerations. With the refusal to give consent, an adoption proceeding becomes adversarial in nature, and the natural parent is entitled to a fair opportunity to establish his or her right to the custody of the child before an impartial tribunal. Attkisson v. Usrey (1946), 224 Ind. 155, 65 N.E.2d 489.

Without a lengthy recitation of the facts in the case-at-hand, it is sufficient to note that the Grays’ petition was improperly filed in juvenile court,² no meaningful attempt was made to comply with the requirements of IC 1971, 31-3-1-6 and inadequate notice was given to Ms. Klahn as to the hearing on the petition for adoption. She was, in fact, unaware that her daughter had been adopted until Mrs. Gray presented the adoption decree to her one month after the hearing.

Because the statutes governing adoption are in derogation of the common law, they must be strictly construed as to all procedural requirements. In Re Adoption of Chaney (1958), 128 Ind.App. 603, 150 N.E.2d 754. In order to defeat a natural parent’s right of custody, persons seeking to adopt have the burden of demonstrating strict compliance with all particular essentials of the adoption statutes. Johnson v. Cupp (1971), 149 Ind.App. 611, 274 N.E.2d 411. They must “prove that the living parents of the child have so violated their natural and legal obligations to the child that they come within the terms of the statute authorizing waiver of consent of the natural parents.” In Re Bryant’s Adoption (1963), 134 Ind.App. 480, 189 N.E.2d 593, 599-600. The Grays have failed to make such a showing. We, therefore, reverse with instructions to the court to vacate its decree of adoption.

Reversed and vacated.

GARRARD, J., concurs. HOFFMAN, P. J., concurs in result with opinion.

1 . Angel Lee was six months old when she was left with her aunt and uncle, the Grays, by the natural mother. Ms. Klahn explained that she had left Angel with the Grays until she could find “a place to live, and some food and stuff I could give her.” At the time of the filing of the Petition for Adoption, Angel Lee was two and a half years old. Ms. Klahn had been asked for her consent to the adoption and had refused. She had told Mrs. Gray that “you can’t” adopt Angel.

2 . The petition for adoption was not coupled with a petition for an adjudication that the child was a delinquent child or one who was in need of services. A juvenile court does have jurisdiction in proceedings to terminate the parent-child relationship if the action is based upon a prior adjudication that the child was a delinquent child or a child in need of services. See IC 1971, 31-6-2-l(a)(3). This was not the case herein. The Grays stated in their petition that “said adoption is not being sponsored by any agency” and “that said child is not the ward of any court or agency.”