Opinion
No. 71S04-1102-AD-87.
February 17, 2011.
Court of Appeals Cause No. 71A04-1002-AD-127.
PUBLISHED ORDER GRANTING TRANSFER and ADOPTING THE OPINION OF THE COURT OF APPEALS
A.W. ("Stepmother") filed a petition to adopt N.W. Over the objection of M.W. ("Mother"), which evinced her lack of consent to the adoption, the St. Joseph Probate Court granted Stepmother's petition to adopt N.W. The Court of Appeals reversed, holding Mother's consent to the adoption was required and "there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.'s best interest." See In re Adoption of N.W., 933 N.E.2d 909, 915 (Ind.Ct.App. 2010).
The matter comes before this Court on Stepmother's petition seeking transfer of jurisdiction in accordance with Appellate Rules 56(B) and 57(B)(1). The Justices have reviewed the decision of the Court of Appeals and materials filed in connection with the request to transfer jurisdiction, and have discussed the matter in conference.
Being duly advised and having concluded the Court of Appeals correctly decided the issues, we GRANT transfer and ADOPT the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(1).
Additionally, Indiana Code section 34-52-1-1 permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: "(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith." The record before us suggests one or more of these grounds may exist for an award of attorney fees.
As the prevailing party, Mother shall have sixty (60) days from the date of this Order in which to file in this Court a request for attorney fees incurred at trial and on appeal under section 34-52-1-1, should she choose to do so.
The Clerk is directed to send a copy of this order to the Hon. Margret G. Robb, Chief Judge, Indiana Court of Appeals; the Hon. Peter J. Nemeth, Judge, St. Joseph Probate Court; Steven Lancaster, Administrator, Indiana Court of Appeals; and all counsel of record. The Clerk also is directed to post this order on the Court's website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court's decisions.
All Justices concur.