Consent of Putative Father for Adoption Where He Has Abandoned the Expectant Mother

I was struggling through the General Assembly’s barely usable website (somewhat visible framed PDFs everywhere!) and found a relatively interesting hearing conducted by the interim study committee on the judiciary concerning SB 27 from last session and the issue of whether the consent of a father who has abandoned a child should be required for the mother to put the child up for adoption. (Maybe it’s SB 27, I see references to legislation introduced by Rep. Steuerwald but went to his legislative page and can’t see such a House Bill listed. But, again, the General Assembly’s unnecessarily complicated web page is unnecessarily complicated.)

The Indiana Council of Juvenile and Family Court judges submitted a letter with concerns, stating that: 1) abandonment of the mother doesn’t necessarily equate to abandonment of responsibilities to the child; 2) the timing with which the father can be served with a notice of adoption or file a petition to establish paternity; 3) the situation where a pregnant woman refuses contact with the putative father without “justifiable cause;” 4) an inadequate definition of “abandonment.”

A letter from a birth mother about a situation where, in her mind, allowing the biological father to prevent adoption by requiring his consent even though he would have been unable to provide financially for the child or mother would be unfair. “If a man is able to prevent a woman from choosing adoption . . . and encumbers her with the ensuing responsibilities and expenses then it is only prudent that he shares in those responsibilities.”

Adoptions of Indiana submitted a letter indicating that there is a need for a law regarding pre-birth abandonment in the situation where a father signs up on the putative father’s registry or file a paternity action “out of a desire to control and spite the expectant father.” The letter suggests that, where the putative father fails to support the mother financially during the pregnancy, that is evidence that the father has abandoned the expectant mother.

Elusive State Money in the News

I noticed some similarities between two stories involving availability of state money both of which are at least superficially peculiar given the State’s recent announcement of a $2 billion surplus. Perhaps someone with better knowledge of the state’s fiscal processes can tell me whether the cases are similar or not, and whether they have anything to do with the announced surplus.

The first story has to do with a story by Niki Kelley in the Fort Wayne Journal Gazette concerning the availability of State money to combat domestic violence. The Indiana Coalition Against Domestic Violence says the coalition has had to fight with the Indiana Criminal Justice Institute to get all the money that is appropriated to it.

Indiana Criminal Justice Institute spokesman Gary Abel [confirmed] that $344,000 of funding for the domestic violence prevention and treatment program was reverted to aid the state’s bottom line at the end of fiscal year 2014 in June.

All agencies were told by [Governor] Pence’s Indiana Office of Management and Budget to revert money – or not spend everything appropriated.

Doing the math, in the ICJI’s case, the bulk of the $500,000 it reverted must have come from the domestic violence program. “Abel said the money was reverted because there was no plan submitted on how to use it.” So, the State’s explanation is that the money was there but it’s the Coalition’s fault for not submitting a plan for spending the money.

The other story I saw was by Ron Wilkins of the Lafayette Journal & Courier and had to do with a road project in West Lafayette to reconstruct Happy Hollow Road. (Disclosure: this is a road I drive nearly every day to work). The reconstruction was scheduled to begin today but the Indiana Department of Transportation stopped the project because it reportedly ran out of money for Fiscal Year 2014. According to the City Engineer, INDOT was supposed to have obligated FY2014 funds for the Happy Hollow project.

INDOT has apparently said that the funds were obligated but “the purchase order was not written” and funding was withheld. “INDOT has said once they see a plan for the balances, they’ll release the money.”

The money at issue here seems to be federal road funds that are overseen by the State. So I’m not sure that this money would play into the State surplus claims one way or the other. But, I guess I was struck by two stories in the same day that had the State blaming a failure to release funds on the intended recipient’s alleged failure to submit paperwork.

AP: Toll Road Operator in Financial Trouble

Rick Callahan, writing for the Associated Press, reports that the Indiana Toll Road is in financial trouble and that the Indiana Finance Authority has sent a 90 day letter ITR Concession Co., a subsidiary of Cintra-Macquarie, requiring the company “to show that it can meet its obligations to its lenders in compliance with the company’s lease responsibilities.”

The Toll Road operator is reportedly considering bankruptcy and selling its interest in the toll road to someone else. We are something like 11% of the way through the 75 year lease at this point.

Journal Gazette: State’s Infant Death Statistics Grim

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article entitled “State’s infant death statistics grim.” She is reporting on information received by the Indiana Commission on on Improving the Status of Children.

•Indiana’s 2012 infant mortality rate is 6.7. It was only the second time in more than 100 years it has dipped below 7.

•Two-thirds of all deaths under the age of 18 are infants.

•One baby dies every 13 hours in Indiana.

Among the issues listed were premature births and low birth weight, congenital malformations, sudden infant death syndrome, and the mother’s smoking or obesity.

Sounds like a lot of the resulting education campaign is going to focus on telling women not to smoke and drink and telling them to breastfeed. None of those are bad things, but I’m not surprised that the efforts will focus on relatively cheap and morally righteous scolding rather than, say, spending a bunch of money combatting the sorts of poverty that is usually associated with poor infant health. Also, just throwing this out there: I find that breast feeding advocates can go a little overboard on the zealotry.

“If I pay a man enough to buy my car, he’ll buy my car”

Sheila Kennedy has a post discussing Indiana’s economic activity and sales tax. She references an Indiana Business Journal report indicating that low wages are bad for business and hurt the economy. Discussing Indiana’s heavy reliance on sales taxes, she also references Standard & Poor indicating that “the slowdown in wage growth for most Hoosiers means they’re not spending much more money than before. And our wealthiest residents tend to save a greater share of their income and spend it on untaxed services.”

None of this is surprising. Sales taxes are known to be more volatile than property taxes, declining as the economy declines — which is often when government expenditures are most needed by the citizens. And discretionary consumer income drives the economy because as Mr. Ford reputedly observed, “if I pay a man enough to buy my car, he’ll buy my car.”

But wages are kind of a tragedy of the commons sort of thing. As a business owner, focused on profits, you’d probably be ideally situated if you can produce your stuff with low wage labor and sell your stuff to people with high wages. But, as more businesses pursue this model, there will be fewer and fewer high wage customers. Eventually the economy stagnates.

Like the man said, “pigs get fat, hogs get slaughtered.” A little bit of greed makes the economic system hum. Too much greed will make the whole system seize up.

School Officials Oppose Non-Degree Teachers

Haley Dover, writing for the Lafayette Journal & Courier, has an article entitled “Local school officials oppose non-degree teachers.” The article is about a decision by our mostly dysfunctional State Board of Education’s decision to allow people without teaching degrees into the classrooms. They would have to have a B-average in a subject area and pass one exam.

“This whole idea that someone can just walk in and start teaching is ridiculous,” said Rocky Killion, superintendent of West Lafayette Community School Corp. “It’s as ridiculous as me passing an exam and becoming a brain surgeon.”
. . .
Killion agreed, saying this dumbs down teaching requirements thus reducing the probability that students will have a highly trained educator leading them. Instead of reducing the requirements, the state needs to increase teacher education standards, he said.

“Before I would ever consider someone with an emergency license, I will knock on every education door within the United States and across the world to make sure that I have a high-quality, well-prepared teacher in the classroom,” Killion said.

Seems to me a little like hiring a delivery driver who’s handy with a map but who never learned to drive a truck.

Given the political background of this decision, however, it can best be seen as a financially and politically motivated effort to continue marginalizing teachers, teacher’s unions, and teacher’s colleges.

Spare the Rod, Spoil the Child

I guess the news about Vikings running back Adrian Peterson hitting his kid in the name of discipline has prompted some new discussions about corporal punishment – a fancy term that helps us avoid saying “hitting kids.” I see from this Baltimore Sun editorial that the U.S. is joined only by Somalia in refusing to ratify the U.N. Convention on the Rights of the Child ‘in part because the treaty aimed at ending child trafficking includes language about “acting in the best interest of a child.’ That, in turn, has been interpreted by some in the U.S. Senate as anti-parental rights or anti-spanking.” But, when you have Somalia on your side, you’re in pretty stout company.

You can tell that this devotion to spanking is going to resist any number of studies showing that spanking children doesn’t help them. I think that’s at least in part because there is a deep cultural distrust of happiness in this country. Hard work and suffering are inextricably linked to probity.

Withhold not correction from the child: for if thou beatest him with the rod, he shall not die.

Thou shalt beat him with the rod, and shalt deliver his soul from hell.

Proverbs 23:13-14.

I suppose some parents think they need to hit their kid to make them behave. I don’t blame generations past who thought that’s the way things had to be. But now we have studies and experience showing that you can raise good kids without hitting them and, in fact, are more likely to raise good kids if you don’t hit them. Hitting your kids these days reflects a lack of patience and a lack of imagination.

It’s not o.k. to hit anyone else in the world except the most defenseless person who trusts you most? Seems legit.

Mike Pence quotes the Bible on foreign policy

Indiana Gov. Mike Pence, who is totally not running for President, decided to quote the Bible while giving a speech on foreign policy. He said, “The Old Book says, ‘If the trumpet does not sound a clear call, who will know to get ready for battle?’” This is from 1 Corinthians 14:8.

But there are other Bible verses that give more specific advice on foreign policy that Gov. Pence could have quoted. It would have been pretty badass if he had gone with Deuteronomy.

Deuteronomy 7:1-2 and 20:10-17:

When the Lord your God brings you into the land you are entering to possess and drives out before you many nations . . . and when the Lord your God has delivered them over to you and you have defeated them, then you must destroy them totally. Make no treaty with them, and show them no mercy.
. . .
When you march up to attack a city, make its people an offer of peace. If they accept and open their gates, all the people in it shall be subject to forced labor and shall work for you. If they refuse to make peace and they engage you in battle, lay siege to that city. When the Lord your God delivers it into your hand, put to the sword all the men in it. As for the women, the children, the livestock and everything else in the city, you may take these as plunder for yourselves. And you may use the plunder the Lord your God gives you from your enemies. This is how you are to treat all the cities that are at a distance from you and do not belong to the nations nearby.

However, in the cities of the nations the Lord your God is giving you as an inheritance, do not leave alive anything that breathes. Completely destroy[a] them . . . as the Lord your God has commanded you.

Indiana Appeals Marriage Equality Decision to the U.S. Supreme Court

Via the Indiana Law Blog, Indiana’s Attorney General Greg Zoeller has filed a petition for certiorari with the United States Supreme Court asking for review of the 7th Circuit’s blistering opinion holding that Indiana’s “marriage protection” law violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

The respondent same sex couples seem to have filed their response almost at once. They agree that the U.S. Supreme Court should consider the case. They state the question as:

Whether a statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution by prohibiting same-sex couples from marrying and by refusing to recognize their lawful, out-of-state marriages.

versus the State’s characterization of the issue presented:

1. Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to define marriage as a legal union between one man and one woman.

2. Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marriages from other jurisdictions.

The State’s characterization of the issue is slightly disingenuous. Nobody is saying that the State can’t define marriage as a legal union between one man and one woman; only that the definition violates the Equal Protection Clause if it also excludes same sex couples from inclusion in the definition.

As to the timing, I suspect there was collaboration between the Plaintiffs and the State to get their filings into the Supreme Court by the deadline for the Supreme Court to consider the case during this session. The Attorney General’s press release notes that:

Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015.

In fact, that was probably one reason for the 7th Circuit panel’s rapid turn around time between hearing oral argument and issuing its opinion.

Just browsing, I see that the State cites a 1997 law review article from Judge Posner entitled, “Should there be homosexual marriage and, if so, who should decide?” 95 Mich. L. Rev. 1578 (1997). However, one of the citations to this piece by the State, at least, is misleading. They quote a bit by Posner where he says that there is formal equality inasmuch as gays are allowed to marry opposite sex partners just like heterosexual couples but somehow manage to miss the next sentence where he says that the practical effect is to “exclude homosexuals from a fundamental social institution.”

Posner’s 1997 article is a review of a piece by Prof. William Eskridge entitled “The Case for Same Sex Marriage.” Posner is generally respectful of Prof. Eskridge’s work but takes issue with Eskridge’s historical accounts of gay couples. Posner offers speculation that the rise of intolerance against gays in the West corresponds with the rise of “companionate marriage” — marriage where the couples are supposed to be companions instead of the woman being chiefly a breeder for the man. (My unstudied notion was that marriage was more of an evolution from a property-centered arrangement to romantic relationships, emulating such relationships as they became fashionable in the royal courts.) In any event, Posner suggested that companionate relationships had the effect of outing the gay people who didn’t share such companionship and thereby provoking increased hostility against them.

In the law review article, Posner observes that public opinion in favor of same sex marriages had shifted from unthinkable to slight. (The last 17 years has, of course, seen a quantum leap in that public support.) And public support seems to be at the crux of his disagreement with Eskridge about whether the Supreme Court should recognize a constitutional right being violated if same sex marriage is illegal. He says that Eskridge’s arguments were fine legal arguments but, based on the lack of public support, such arguments would be “usurpative” if adopted by the Supreme Court. It’s an interesting question whether public support ever had a legally had a role to play (as a practical matter, it often does — see for example, the Supreme Court’s internment of Japanese during World War II). But, if it does, public support is now on the side of same sex marriage along with those technical legal arguments. And, in 1997, Posner said that before the Supreme Court found a right to same sex marriage in the Constitution, public opinion would have to shift, a state court or state legislature should adopt same sex marriage as a policy, and the rest of the nation should learn from exercise.

This post has been a little unstructured, but that’s all I have time for at the moment, so here you go.

R.I.P. Ron Melichar

I was sad to learn of the passing of former Tippecanoe County Circuit Court Judge Ron Melichar. He served as a Circuit Court Judge for three terms, from (I believe) 1984 – 2002. Before that he was a member of my firm (well before I joined!). He and our founding partner, Fred Hoffman, practiced together for quite some time.

By the time I joined the firm, Ron had been the Circuit Court judge for quite some time and I came to enjoy the trivia questions he put up on the white board in the court room. Although, to be honest, I can’t remember if it was a daily or weekly question he liked to put up. I can’t say I knew him well, but he was an enthusiast of the civil war, vacations in northern Michigan, and the Chicago Tribune.

Rest in Peace, Judge Melichar.