November 2, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
In the case of In Re the Adoption of L.G.K., both the trial and appellate courts reached a just decision. I wish I thought it was the correct legal decision and that the case won’t be overturned by the Indiana Supreme Court.
The child’s father, G.C. and her mother, J.K. were never married, but had a sexual relationship for about 10 months, from December, 2013 to October, 2014. In December, 2014, J.K. told G.C. that she was pregnant. G.C. took little part in her pregnancy or childbirth, but both his parents did. Once L.G.K. was born though, G.C. moved in with J.K. and took an active part in her care. She soon was calling him “Dad” and his parents “Granny” and “Poppy.” He and J.K. separated, but he continued caring for his daughter, paid support to J.K. and had sole care of the child at certain times.
Meanwhile, J.K. repeatedly held out G.C. as the girl’s father and accepted the support he provided.
Still, once J.K. met another man whom she agreed to marry, she filed a petition with the trial court to allow her fiancé to adopt L.G.K. She told G.C. nothing about her plans for the girl’s adoption. Later, her father filed another petition to adopt L.G.K. and apparently, J.K.’s fiancé withdrew his petition. In the grandfather’s petition, it was stated that J.K. didn’t know who the father was.
Given this misrepresentation of the known facts of paternity, the trial court granted the grandfather’s petition for adoption. That was on May 22, 2017. During the pendency of that case, no one ever told G.C. about the adoption and J.K. allowed him to play the paternal role and accepted his child support payments. Even after the adoption was finalized, she continued in the same way, once allowing G.C. to have L.G.K. for a weekend on his own.
About three weeks after the adoption was finalized, G.C. discovered the ruse and filed a petition to establish paternity. Two months later, he filed appropriate documents with the Indiana Putative Father Registry. He also demanded that the trial court reverse its decision on the adoption due to J.K.’s and her father’s patent fraud in obtaining the judgment. The trial court agreed and vacated the adoption decree, finding, among other things that,
[Mother] held [Putative Father] out to be the [Child’s] Father to [Putative Father], his family, her family and to the child up to and including the summer of 2017. The photos and text messages entered into evidence establish that [Putative Father] and his family have loving relationship with [Child]. Based on the Court’s observation of [Mother] and the evidence presented, the Court does not find her to be credible…
The child’s rights as well as [Putative Father’s] rights are not well served by denying notice and hearing to father whose identity and location were known by the Petitioner. Further, by not setting aside this order, the child’s right to an involved and loving parent is compromised. [Putative Father] has demonstrated that he established substantial relationship with the child and was not given the right to contest the adoption 0r proceed with his Paternity matter, and/or the Petitioner procured fraud upon the Court by stating in his Petition that “‘The biological father is unknown and has not been disclosed to the petitioner or petitioner’s attorney by the Mother’” when it was clear to the Court that the Petitioner knew that [Putative Father] had been acting as and was believed to be the child’s Father, therefore invoking the Court t0 set the Adoption aside under Indiana Trial Rule 12(b)(6) [sic]. Further, that [Putative Father] was fraudulently induced, through material misrepresentations by [Mother], to not exercise his obligations or rights to take legal action to establish his rights legally. The Court further finds that [Putative Father] had standing to join in the Adoption because 0f the fraudulent actions of the Petitioner and to protect his due process rights allowing him to be equally protected as parent and/or to proceed with his right [to] establish legally whether or not he is the Father. Further, he is furthering the rights of the child to determine whether she will be able to continue with their relationship and relationship with her possible half-sister. [Putative Father] should have been notified of the filing of any Petition for Adoption of the minor child, [L.G.K.].
All of that is well and good. Mom and her father clearly perpetrated a fraud on G.C. and on the court. Generally speaking, judgments procured by fraud or by the intentional misrepresentation of fact can be vacated as a matter of the court’s inherent equity powers. So, absent the requirement of G.C.’s filing with the Putative Father Registry, vacating the adoption would seem to be perfectly in order.
But Indiana has a PFR and the statute regarding the obligation to file and the consequences of not doing so leave little to the imagination.
“A putative father who fails to register within the period specified by section 12 of this chapter waives notice of an adoption proceeding. The putative father’s waiver under this section constitutes an irrevocably implied consent to the child’s adoption.”
Plus,
“[A] putative father whose consent has been implied may not challenge the adoption or establish paternity.”
G.C. did not file with the registry within the allotted time, which was 30 days after the child’s birth or the filing of the adoption proceeding, whichever occurs later. Accordingly, as I see it, G.C. had no legal power to challenge the adoption, regardless of how it was obtained. After all, what if the grandfather’s petition had stated that G.C. is the father, i.e. told the truth? G.C. would have had no right to challenge the adoption or even be given notice of the case. His consent to it would have been implied and his suit to establish paternity would have been a nullity.
Both courts tried to reason around those barriers that to me seem insuperable.
Regardless of Putative Father’s statutory waiver of notice of the adoption proceeding for failure to register with the Putative Father Registry, the fraud perpetrated by Mother and Maternal Grandfather precluded the trial court from having an opportunity to consider Putative Father’s relationship, as well as his family’s relationship, with Child which compromises the best-interests aspect of the adoption decision making process.
All true, but since when did a child’s best interests intrude on the action of the Putative Father Registry. The statute is as plain as it can be and makes no mention of a child’s interests. Yes, other Indiana statutes do so, but the PFR statute does not. If an unmarried father fails to register within the appropriate time, he’s out of luck. He has no right to challenge an adoption because he’s consented to it, irrespective of the fact that he may or may not even know a child exists.
That’s how PFRs work. It’s how they’re supposed to work. They exist for the sole purpose of removing unmarried fathers from the adoption process. Bringing a child’s best interests into the process would seriously undermine the effectiveness of PFRs.
Of course, to my way of thinking, that would be an excellent idea. PFRs serve only to ease the adoption process and line the pockets of adoption agencies and their lawyers. They do so by denying fit biological fathers to children and substituting adoptive ones. In so doing, they remove couples from the small pool of adoptive parents and therefore deny good adoptive parents to children who need adoption.
In short, PFRs should be removed altogether from our statutory landscape. They do no good, only harm. But as long as Indiana’s is in place, it looks like this case was wrongly decided.
Perhaps we’ll see.