ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Fred R. Hains George E. Herendeen
Rochelle S. Meyers ALLEN, FEDDER, HERENDEEN & KOWALS
South Bend, Indiana South Bend, Indiana
IN THE MATTER OF TERMINATION ) OF PARENT-CHILD RELATIONSHIP OF ) INFANT ELLIS, A CHILD, AND TIFFANY ) ELLIS AND MARC LUMLEY ) ) TIFFANY ELLIS, ) Appellant, ) Court of Appeals # v. ) 71A03-9701-JV-00022 ) CATHOLIC CHARITIES, ) Appellee. )________________________________________________
DICKSON, J., dissents to denial of transfer.
On June 7, 1996, the day after her release from hospitalization for complications of pregnancy and childbirth, the appellant-mother, Tiffany Ellis, signed a consent to the
termination of her parental rights.See footnote
On June 25, 1996, appellee Catholic Charities, a
private adoption service, filed a Petition for Termination of the Parent-Child Relationship.
A hearing was set for July 30, 1996. The appellant-mother was given proper notice,
appeared at the hearing, and asked to withdraw her consent. The court denied her request
and granted the appellee's petition, concluding that the mother "knowingly and
voluntarily gave her consent to the . . . termination of the parent-child relationship."
Record at 53. The Court of Appeals, citing Matter of Adoption of Konar, 454 N.E.2d
87 (Ind.Ct.App. 1983) , cert. denied, 498 U.S. 1121, 111 S.Ct. 1075, 112 L.Ed.2d
, rejected the appellant-mother's claim that, because she appeared but did not
consent in open court, her prior written consent was insufficient to permit termination of
her parental rights. Ellis v. Catholic Charities, 681 N.E.2d 1145, 1148 (1997). While we
must often evaluate whether to grant petitions for transfer in light of the need to
expeditiously resolve other cases already accepted and awaiting completion, I believe that
we should grant transfer in this case to correct substantial error.
At issue is Indiana Code Section 31-6-5-2, which requires that, before parental rights are voluntarily terminated, the "parents must give their consent in open court." Ind.Code § 31-6-5-2(c) (1993). In the absence of such consent, the statute provides an exception authorizing the termination of parental rights when the trial court makes findings of fact that:
(1) the parents gave their consent in writing before a person authorized by law to take acknowledgments;
(2) they were notified of their constitutional and other legal rights and of the consequences of their actions under section 3 of this chapter; and
(3) they failed to appear.
Ind.Code § 31-6-5-2(c) (1993).See footnote
Prior to 1978, the termination of parental rights was
governed by the Adoption Code, Indiana Code Sections 31-3-1-1 to -12. However, in
1979, those provisions were repealed and replaced with the statutes at issue in this case,
which are found in the Juvenile Code, Indiana Code Sections 31-6-1-1 to -6. The
commentary to the Juvenile Code provides:
Prior to the enactment of the new Juvenile Code, parental rights to the custody of their children could be terminated in the probate court, either as part of an adoption proceeding or as a separate action under IC 31-3-1-7 . . . The new Juvenile Code repeals the termination of parental rights provisions of the adoption statutes . . . . [and] establishes [31-6-5-2 as] the exclusive method for the termination of parental rights.
Commentary, Ind.Code § 31-6-5-1 (West 1979) (emphasis added).
In concluding that the appellant-mother's in-court attempt to withdraw or revoke the initial consent was invalid, the Court of Appeals erroneously relied on casesSee footnote 3 based
the withdrawal of consent for adoption under the Adoption Code, specifically
Indiana Code Section 31-3-1-1-6(j). None of these cases involved the statute governing
voluntary termination of parental rights independent of an adoption proceeding upon
which the present action is based. This termination statute,
Indiana Code Section 31-6-5-
2, does not contain a provision analogous to the Adoption Code's provision dealing with
withdrawal of consent for adoption. The Court of Appeals thus erred in applying the
adoption statute case law to this proceeding for the termination of parental rights.See footnote
It is well-established that the interests of the parent involved in the termination of his or her parental rights are of primary constitutional importance. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558 (1972) (acknowledging the "essential" and "basic civil" constitutional rights of parents, rights which are "far more precious . . . than property rights" and which "undeniably warrant deference and, absent a powerful countervailing interest, protection."). The Court of Appeals, discussing the parental rights' termination provisions at issue here, has recognized that "[t]he parent- child relationship is an important liberty interest in which the state cannot interfere without providing the parents fundamentally fair procedures." In Re M.S., 551 N.E.2d
881, 883 (Ind.Ct.App. 1990), cert. denied, 498 U.S. 1121, 111 S.Ct. 1075, 112 L.Ed.2d
1101. The United States Supreme Court likewise held that "parental status termination is
irretrievably destructive of the most fundamental family relationship." M.L.B. v. S.L.J.,
U.S. , 117 S.Ct. 555, 566, 136 L.Ed.2d 473, 491 (1996)
(citation and internal
quotations omitted). The Court stated that a case "involving the State's authority to sever
permanently a parent-child bond demands the close consideration the Court has long
required when a family association so undeniably important is at stake." Id. at , 117
S.Ct. at 564, 136 L.Ed.2d at 488.
Indiana case law establishes that "[c]ompliance with the statutory procedure of the juvenile code is mandatory to effect a termination of parental rights [under Indiana Code Section 31-6-5-2]." Styck v. Karnes, 462 N.E.2d 1327, 1329 (Ind.Ct.App. 1984) (emphasis added). Furthermore, Indiana Code Section 31-6-5-2 is "the exclusive statutory procedure for a voluntary termination of parental rights." Holderness v. Holderness, 471 N.E.2d 1157, 1160 (Ind.Ct.App. 1984) (emphasis added) (noting "Ind. Code 31-6-5-1 et seq. is entitled 'Termination of the Parent-Child Relationship': Sections 2 and 3 provide the procedures to be followed for termination where the parents consent, and Section 4 sets out the procedures for involuntary termination."). Of the decisions which have cited or interpreted Indiana Code Section 31-6-5-2, none have involved a parent who initially consents to the termination of parental rights but comes into court and repudiates the consent. There exists no Indiana statutory provision authorizing a court to terminate parental rights in such a circumstance.
Of course a prospective adopting parent or parents may, under certain
circumstances prescribed by the Adoption Code, seek to adopt a child notwithstanding the
withdrawal of consent by the child's parent.See footnote
In the present case, however, the appellee
sought a voluntary, general termination of parental rights under
the Juvenile Code
which permit voluntary termination of parental rights only when the parent
either consents in open court or fails to appear but previously has executed a proper
written consent. Here, the mother appeared but did not give consent in open court and,
because she did not "fail to appear," the second alternative is not applicable.
the clear failure to comply with the applicable statutory provisions in this case, I believe it
unwise to deny transfer.
SULLIVAN, J., concurs.
(Ind.Ct.App. 1983), cert. denied, 498 U.S. 1121, 111 S.Ct. 1075, 112 L.Ed.2d 1181 (1991); Matter of Snyder, 418 N.E.2d 1171 (Ind.Ct.App. 1981) (applying Indiana Code Section 31-3-1-7 because the judgment was entered before the effective date of the new Juvenile Code).
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