Attorneys for Appellant Attorneys for Appellee
Suzanne Shuman Rister W. Eric Weber
Antwerp, Ohio Auburn, Indiana
Appeal from the Dekalb Circuit Court, No. 17C01-0010-JT-003
The Honorable Paul R. Cherry, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 17A03-0101-JV-8
September 25, 2003
Later that day Neal decided that she did not want to relinquish her
parental rights voluntarily to either child. The record is unclear as to
how DFC became aware of that fact. In any event after apparently
being so advised, on October 11, 2000, DFC filed a petition with the
trial court for the involuntary termination of Neals parental rights.
See footnote On October
16, 2000, Neal a
ppeared in court for what was described as a Voluntariness
Hearing at which Neal would confirm the voluntariness of her signing Voluntary Relinquishment
of Parental Rights forms. R. at 3. After acknowledging that she
had signed forms that were to have [her] give up [her] rights to
[her] children Neal told the trial court that she had time to think
about it and [would] like to have a Court-appointed lawyer to give her
advice. Id. at 4. The trial court honored the request, appointed
counsel, and the matter was continued.
Thereafter on December 4, 2000, the trial court conducted a hearing to determine
whether Neals prior written consent was voluntarily given. Represented by counsel, Neal
testified essentially that although she signed the consent forms she changed her mind
and did not want to terminate her parental rights. Neal also testified
that she felt pressured to sign the forms. The trial court determined
that Neals attempt to retract or revoke her October 5, 2000, consent to
termination of her parental rights is not a valid retraction or valid revocation
and it does not affect the validity of her prior voluntary relinquishment of
her parental rights. Appellants App. at 7. The trial court ordered
that Neals parental rights with respect to both children be terminated.
On review, the Court of Appeals reversed on grounds that Neal had not
consented to the voluntary termination of her parental rights in open court.
Neal v. Termination of Parent Child Relationship of M.N. & H.N., 768 N.E.2d
485, 490 (Ind. Ct. App. 2002). The Court acknowledged that at least
two other panels of the Court of Appeals reached contrary conclusions on facts
similar to those presented in this case.
See footnote Having previously granted transfer, we
now accept DFCs invitation to resolve the conflict in the Court of Appeals
opinions. In so doing we r
everse the judgment of the trial court.
[T]he parents must give their consent in open court unless the court makes
findings of fact upon the record that:
(1) the parents gave their consent in writing before a person authorized
by law to take acknowledgments;
(2) the parents were notified of their constitutional and other legal rights
and of the consequences of their actions under section 12 of this chapter;
(3) the parents failed to appear.
Ind. Code § 31-35-1-6(a) (Section 6). As can be readily seen, this
statute specifically requires that consent to terminate must be given in open court.
Only where the parent fail[s] to appear in open court is this
requirement not applicable. In that instance the parents prior written consent will
suffice to terminate parental rights provided (i) the parent gave written consent to
an authorized person, and (ii) the parent was provided with notice of the
parents legal and constitutional rights and the consequences of the parents action.
Id. If this were the end of the matter, then resolving this
case would be rather straightforward. The record is clear that Neal did
not give her consent to terminate in open court. Thus, under this
statute it would appear that the trial court was without authority to terminate
Neals parental rights.
However, another provision of the Indiana Code provides in relevant part:
For purposes of sections 6 and 8 [I.C. § 31-35-1-6 and I.C. § 31-35-1-8] of this chapter, the parents must be advised that:
(1) their consent is permanent and cannot be revoked or set aside unless it was obtained by fraud or duress or unless the parent is incompetent;
* * *
(8) the parents will receive notice of the hearing at which the court will decide if their consent was voluntary and the parents may appear at the hearing and allege that the consent was not voluntary.
I.C. § 31-35-1-12 (Section 12). It is this statute to which DFC points in arguing that when a parent appears in open court as provided under Section 6 and indicates that she does not consent to termination, the court need only conduct a hearing to determine whether the initial written consent was entered knowingly and voluntarily. See J.W.W.R., 712 N.E.2d at 1085 (declaring that Section 12 specifically limits a parents ability to revoke or set aside her consent unless it was obtained by fraud or duress or unless the parent is incompetent).
In DFCs view, the in open court provision of Section 6 is essentially
a nullity. Our colleagues on the Court of Appeals acknowledged the apparent
inconsistency between Sections 12 and 6. However, in reversing the judgment of
the trial court, the Court of Appeals determined that the two statutes could
be harmonized. Although we agree that the judgment of the trial court
should be reversed, it is our view that the two statutes cannot be
harmonized but rather are in irreconcilable conflict.
We reach this view for the following reasons. Section 12 outlines a list of advisements that parents must be given. See footnote Subparagraph (8) is particularly instructive. First, by declaring, the parents will receive notice of the hearing, subparagraph (8) strongly suggests that the foregoing advisements are to be given to parents out of court and in advance of any hearing. See footnote Cu stomarily this is done by DFC before the parent signs a written consent for voluntary termination. Cf. In re M.S., B.G., & C.G., 551 N.E.2d 881, 882 (Ind. Ct. App. 1990) (case in which attorney for parents presented couple with Voluntary Relinquishment of Parental Rights forms), trans. denied. Second, by declaring the parents may appear at the hearing and allege that the consent was not voluntary subparagraph (8) infers that should the parent appear in court and contest the written consent previously given, the only issue for the court to decide is whether the written consent was voluntary.
In stark contrast, by providing parents must give their consent in open court
unless certain statutory prerequisites are met, Section 6 suggests that should the parent
appear in open court, the parent need not contest the written consent as
such. Rather, the parent need only take the stand and refuse to
consent thereby revoking the previously given written consent. In essence, under the
open court provision of Section 6, voluntariness is not an issue while at
the same time voluntariness is the only relevant issue under Section 12.
We see no way these two statutes can be reconciled. Thus, for
guidance we turn to familiar tenets of statutory construction.
In construing a statute our main objective is to determine, give effect, and
implement the intent of the legislature. Melrose v. Capital City Motor Lodge,
Inc., 705 N.E.2d 985, 989 (Ind. 1998). Where two or more statutes
contradict each other or are in apparent conflict, we attempt to construe them
in harmony. Purcell v. State, 721 N.E.2d 220, 223 (Ind. 1999). However
where, as here, there is an irreconcilable conflict between the statutes we will
interpret the legislative intent to be that one statute must give way to
another. Wright v. Gettinger, 428 N.E.2d 1212, 1219 (Ind. 1981); Fridono v.
Chuman, 747 N.E.2d 610, 617 (Ind. Ct. App. 2001).
In determining whether the legislature intended that one statute should prevail over another,
some cases emphasize that the more specific or detailed statute should prevail over
the more general statute. See, e.g., W. Clark Cmty. Sch. v. H.L.K.,
690 N.E.2d 238, 241 (Ind. 1997); State v. Greenwood, 665 N.E.2d 579, 583
(Ind. 1996); Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995). Other
cases emphasize that the most recent expression of the legislature shall prevail over
the older one. See, e.g., State ex rel. State Bd. of Tax
Commrs v. Daviess Cir. Ct., 249 Ind. 580, 230 N.E.2d 761, 764 (1967);
Waldridge v. Futurex Indus. Inc., 714 N.E.2d 783, 785 (Ind. Ct. App. 1999),
trans. denied; Borgman v. Aikens, 681 N.E.2d 213, 219 (Ind. Ct. App. 1997),
trans. denied. This latter rule of construction is of little guidance to
us here in that Section 6 and Section 12 were enacted at the
same time. However concerning a more specific and detailed statute, we make
the following observations. It is true that Section 12 is detailed and
specific, see supra note 3, but only as to the advisements that parents
are given in the first instance before signing a written consent. On
the critical question of the significant import of the consent, Section 6 provides
that a parent must give her consent in open court unless the court
makes several very specific findings, including the finding that the parent failed to
appear in open court. This focus on the import of the open
court consent, as contrasted with the advice a parent is given out of
court before signing a consent form, persuades us that the legislature intended that
Section 6 should prevail over Section 12.
This view is consistent also with the principle that the parents interest in
the care, custody, and control of their children is perhaps the oldest of
the fundamental liberty interests recognized by the United States Supreme Court. Troxell
v. Granville, 530 U.S. 57, 65 (2000). As our Court of Appeals
has observed, the parent-child relationship is "one of the most valued relationships in
our culture." Tillotson v. Clay County Dept of Family & Children, 777
N.E.2d 741, 745 (Ind. Ct. App. 2002), trans. denied; In re Termination of
the Parent-Child Relationship of D.L.M. & M.G., 725 N.E.2d 981, 983 (Ind. Ct.
DFCs insistence that a parent is forever bound by an out of court
written consent appears to rest on a State interest of finality and predictability
in the voluntary termination of parental rights. As DFC explains the process
of coming to open court after a consent to terminate parental rights, serves
only the purpose of challenging a consent executed under coercion or duress, and
not a simple change of heart. Pet. to Trans. at 9.
We acknowledge that the States interests are powerful. However, we are faced
here with two statutes that are in irreconcilable conflict. Absent a clear
legislative directive that the States interests outweigh the interests of parents, we must
conclude that the Legislature intended that Section 6 prevail over Section 12.
See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (declaring that the essential
and basic constitutional rights of parents to the care, custody and control of
their children warrant protection absent a powerful countervailing interest.). We therefore agree
with the holding of the Court of Appeals: [A] parents written consent
to the voluntary termination of her parental rights is invalid unless she appears
in open court to acknowledge her consent to the termination, or unless all
three of the exceptions set out in Indiana Code Section 31-35-1-6(a) are satisfied.
Neal, 768 N.E.2d at 490. Because Neal appeared in open court
but did not consent to termination, the trial court erred in entering an
order for the voluntary termination of Neals parental rights.
Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion in which Boehm, J., concurs.
I respectfully dissent. Justice Ruckers interpretation of the Legislatures intent is highly
plausible and, indeed, essentially one to which I once subscribed when I concurred
in Justice Dicksons dissent from the denial of transfer in Ellis v. Catholic
Charities, 685 N.E.2d 476, 477 (Ind. 1997) (Dickson, J., dissenting from the denial
of transfer). However, I believe that the States proffered interpretation of the
Legislative intent is equally plausible and the doctrines of stare decisis and legislative
acquiescence warrant affirming the trial courts decision here, a decision that reflects established
practice in Indiana juvenile courts.
The decision of the Court of Appeals in this case reflects the first
time an Indiana appellate court has held that a parent has the automatic
right to withdraw a prior voluntary consent to an adoption or to the
termination of his or her parental rights. Neal v. Termination of the
Parent Child Relationship of M.N., 768 N.E.2d 485, 489 (Ind. Ct. App. 2002).
Compare Rhodes v. Shirley, 234 Ind. 587, 593, 129 N.E.2d 60 (Ind.
1955) (adoption); In re J.W.W.R., 712 N.E.2d 1081, 1085 (Ind. Ct. App. 1999)
(termination of parental rights); Ellis v. Catholic Charities, 681 N.E.2d 1145 (Ind. Ct.
App. 1997) (adoption), transfer denied, 685 N.E.2d 476; In re Snyder, 1981 Ind.
App. LEXIS 1515, 418 N.E.2d 1171, 1180 (1981) (adoption and termination of parental
rights). The Court of Appeals justified its departure from precedent at least
in part on the fact that Justice Dickson and I had dissented in
Ellis and Justice Rucker, as a member of the Court of Appeals, had
dissented in J.W.W.R. However, precedent remains that a parent cannot set aside
his or her consent unless it was obtained by fraud or duress or
unless the parent is incompetent. J.W.W.R., 712 N.E.2d at 1085 (quoting Ind.
Code § 31-35-1-12(1)). The Legislature has not changed this long-standing interpretation.
Indiana law is clear that a parents consent to the termination of his
or her parental rights must be voluntary and a parent who contends that
a consent given was not voluntary has a statutory right to a hearing
on that issue. The statute if not the Constitution mandates
that this right is entitled to vigorous protection. But stare decisis and
legislative acquiescence have long since established that a parent cannot set aside his
or her consent unless it was obtained by fraud or duress or unless
the parent is incompetent.
Over the years, authorities on Indiana juvenile court practice have also adopted this
interpretation of statute and precedent. See Frances G. Hill & Derelle Watson-Duvall,
The CHINS Deskbook 2001, ch. 10-4; Judicial conference of Indiana, Juvenile Justice
Benchbook, § T-100 at 2-5 (1999); J. Eric Smithburn & AnnCarol Nash, Family
Law Children In Need of Services, § 26.14 at 369-370 (West 2002).
That is what Judge Cherry did in this case. I would
affirm his decision.
Boehm, J., concurs.