# Johnson v. Capps

> Indiana Court of Appeals · January 27, 1981 · 415 N.E.2d 108

URL: https://www.frixlaw.com/law-library/cases/9528619

## Case

- **Full name:** In Re the Termination of the Parental Rights of Henrietta M. JOHNSON, F/K/A Henrietta M. Capps. Henrietta M. JOHNSON, Defendant-Appellant, v. Donald A. CAPPS, Plaintiff-Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** January 27, 1981
- **Citations:** 415 N.E.2d 108; 1981 Ind. App. LEXIS 1228
- **Precedential status:** Published
- **Opinion:** Dissent by Garrard
- **Judges:** Staton, Garrard
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9528619

## How later opinions describe it (automated extraction)

- holding that a termination of parental rights action is not a custody proceeding

## Opinion text

GARRARD, Judge,
dissenting.
I respectfully dissent from .the majority view that the Superior Court of Porter County had proper jurisdiction to terminate the parental rights of a mother who was a California resident in a child who was an Illinois resident.
I agree that under the UCCJA the court was not empowered to make such a noncustodial determination. I further agree that such a termination is a statutory mechanism, and therefore must fit within the requirements of the statute for jurisdiction to exist.
The father premises that compliance upon his status as father under the statute as it existed prior to October 1, 1979. That statute did authorize the filing of such a petition by the other parent. IC 31-3-1-7(e). However, the preceding subsection (c) specified that jurisdiction to grant such a petition was vested in “the court having jurisdiction over adoption proceedings under this chapter.”
IC 31-3-1-1 defines that jurisdiction as existing in the court having jurisdiction in probate matters “where such petitioner resides, or in which is located any duly licensed child-placing agency or governmental agency having custody of such child, or in the county where such child may be found.”
It is apparent that jurisdiction can not rest on either the second or third qualification since the child resided in Illinois and was not in the custody of an agency. Was Capps a “petitioner” within the meaning of the statute? Clearly he technically was not since the preceding portion of the sentence quoted from restricts the section to “[a]ny resident of this state desirous of adopting any person under eighteen years of age ... may ... file a petition.” “Petition” refers to a petition for adoption, and none was filed in this case. Petitioner equally clearly refers to a petitioner for adoption and Capps did not qualify as such. The majority recognizes as much in conceding that Capps does not literally come under the statute.
Traditionally, we have held that one desiring the benefit of a special statutory action must bring himself squarely within all the requirements of the statute or he may not succeed. See, e. g., Watson v. Strohl (1943), 220 Ind. 672 , 46 N.E.2d 204 ; Blade Corp. v. American Drywall, Inc. (1980), Ind.App., 400 N.E.2d 1183 ; DeMayo v. State ex rel. Dept. of Natural Resources (1979), Ind.App., 394 N.E.2d 258 . I feel that rule of law is especially appropriate where we are attempting to litigate the existence of the parent-child relationship between two non-residents of the State of Indiana.
Therefore, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9528619. Public record. Not legal advice.