guardianship

[Silverplum]

wow do you think we are so callous to nit have considered all ramifications to all parties involved. we have three children now and just want to give this child a loving stable home. The birth mother is in no position to care for and raise a child and as for the two possible fathers one disappeared and refuses any contact and one is also in position to be a father. this has not been a spur of the moment decision. We thought long and hard.

"All parties" include the father of the child.

It doesn't matter what you've thought about, we know you ought to google "Baby Jessica" and learn about her adoption case in Michigan. There are other cases nationwide.

 

[Proserpina]

That is what the judge (senior judge in the county) said in open court during a proceeding in which I was pursuing guardianship. Child's mother was present and had provided notarized consent. Child's father was imprisoned with at least 4 years remaining, and had not provided consent but was not contesting the matter. The word "unfit" was not used, but that was definitely the idea. To paraphrase as closely as my memory will allow:

"You do understand that in order to grant this guardianship, I must rule that you yourself are incapable of raising your child."

Mom balked at that criteria, and though she was ready to hand her child over to me so she could go carry on with her carefree party life, she wouldn't stand for anyone judging her mothering skills. She wouldn't go so far as to revoke her consent, but waffled on the issue enough that the judge gave us a 90-day continuance to think about it. I had the case dismissed when Mom left the child with his paternal grandmother and disappeared to parts unknown.

I can't find anything in the Indiana statutes saying that.

Colour me confused!

 

[Proserpina]

"All parties" include the father of the child.

It doesn't matter what you've thought about, we know you ought to google "Baby Jessica" and learn about her adoption case in Michigan. There are other cases nationwide.

^^^^^ Like.

 

[TheGeekess]

"All parties" include the father of the child.

It doesn't matter what you've thought about, we know you ought to google "Baby Jessica" and learn about her adoption case in Michigan. There are other cases nationwide.

Wasn't there one in Utah recently? Mom and Dad were married, Dad transferred duty station and Mom attempted to adopt out their newborn, telling the agency that she didn't know where Dad was. He recently got custody.
http://abcnews.go.com/US/judge-orders-adopted-baby-returned-soldier-dad/story?id=17877671

 

[single317dad]

I can't find anything in the Indiana statutes saying that.

Colour me confused!

It's definitely not stated that bluntly in the statutes, but here's my guess at the reasoning, which may be completely wrong.

In order to appoint a guardian, the court must find a need for a guardian.

IC 29-3-5-3
Findings; appointment of guardian; limited guardianship; protective orders
Sec. 3. (a) Except under subsection (c), if it is alleged and the court finds that:
(1) the individual for whom the guardian is sought is an incapacitated person or a minor; and
(2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated person or minor;
the court shall appoint a guardian under this chapter.

This section is part of the CHINS law, which is generally used by DCS in rights termination cases, but is not limited to that scope so I've been told.

IC 31-34-1-1
Inability, refusal, or neglect of parent, guardian, or custodian to supply child with necessary food, clothing, shelter, medical care, education, or supervision
Sec. 1. A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
As added by P.L.1-1997, SEC.17. Amended by P.L.2-2005, SEC.76.

Part of which is interpreted by hzlegal.com as such:

Indiana's CHINS statute contains several categories which define abuse or neglect of a child in Indiana making a child, and their parents or guardians, subject to CHINS litigation. These categories include:

1) An allegation that a parent or parents are unable, refuse, or neglect their duty or risk neglecting their duty to provide the child with necessary food, clothing, shelter, medical care, education, or supervision.3

Now, that interpretation may come from case law that I'm not aware of, but it doesn't seem to jibe directly with the statute as written; however, it seems to be "the law" in my experience.

So, in summary, it seems the court must find that "the appointment of a guardian is necessary as a means of providing care and supervision" of the child, and possibly that the child is in need of services, then I can see where the judge was coming from. Otherwise, maybe he's just off his rocker


ETA: The word "not", which was a glaring omission.

 

[Proserpina]

It's definitely not stated that bluntly in the statutes, but here's my guess at the reasoning, which may be completely wrong.

In order to appoint a guardian, the court must find a need for a guardian.



This section is part of the CHINS law, which is generally used by DCS in rights termination cases, but is not limited to that scope so I've been told.



Part of which is interpreted by hzlegal.com as such:



Now, that interpretation may come from case law that I'm not aware of, but it doesn't seem to jibe directly with the statute as written; however, it seems to be "the law" in my experience.

So, in summary, it seems the court must find that "the appointment of a guardian is necessary as a means of providing care and supervision" of the child, and possibly that the child is in need of services, then I can see where the judge was coming from. Otherwise, maybe he's just off his rocker


ETA: The word "not", which was a glaring omission.

That pertains to the COURT assigning guardianship as a result of a separate action - not to one or both fit parents voluntarily assigning custody or guardianship to a third party.

Two entirely different animals.

 

[single317dad]

That pertains to the COURT assigning guardianship as a result of a separate action - not to one or both fit parents voluntarily assigning custody or guardianship to a third party.

Two entirely different animals.

The CHINS law, generally, yes. The first statute I quoted is plain old guardianship.

 

[Proserpina]

The CHINS law, generally, yes. The first statute I quoted is plain old guardianship.

I'm sorry, but that's not how I'm interpreting the statute at all. It would mean that a perfectly fit couple cannot transfer custody or guardianship without the court finding them "incapable" or "unfit".

Ah!

Here we go:

http://www.in.gov/legislative/ic/code/title29/ar3/ch8.html



Read the WHOLE thing

 

[single317dad]

I'm sorry, but that's not how I'm interpreting the statute at all. It would mean that a perfectly fit couple cannot transfer custody or guardianship without the court finding them "incapable" or "unfit".

Ah!

Here we go:

http://www.in.gov/legislative/ic/code/title29/ar3/ch8.html



Read the WHOLE thing

I have, many times, and just did again. I assume you're talking about something in Section 9 (a) or (b). If not, please enlighten me, as I can only guess unless you're more specific.

The chapter you've linked deals mostly with what a guardian does, but makes no mention of how one becomes a guardian. That's what 29-3-5 does.

Section 9 only says that the court MAY order those terms, and requires the parent "proves the parent's current fitness to assume all parental obligations". Which kind of makes my point. If the parent wants the guardianship terminated under that subsection, they'll have to prove that they're now able to raise the child. A judge had previously determined that they weren't, which is why the guardianship was granted.

With all due respect (and I really mean that), you're not really arguing with me here, you're arguing with the judge; I was pretty surprised by his statement as well, but the way I read the statutes it looks like he was right.

 

[Proserpina]

I understand what you're saying


But again, I'm reading it differently and I believe the Judge also may have done so (yes, I may be so bold )

IC 29-3-8-9 describes what the court MAY include in creating a guardianship; it does not say that the court MUST include. Hence the first condition Sec. 9. (a) A probate or juvenile court may include in its order creating a guardianship of a minor the following:
(1) A requirement that the minor must reside with the guardian until the guardianship is terminated or modified.

appears to be legally ALL that is required. Can the court include the rest? Absolutely! But it does not appear to be a requirement and there are many, many "ifs" and "ors".

I don't want to hijack this poor OP's post further, but I'm genuinely enjoying the discussion! (Just so's you know )

I wonder if OG or LdiJ could stop by? Maybe latigo?