ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
SUZANNE SHUMAN RISTER
W. ERIC WEBER
Antwerp, Ohio Auburn, Indiana
COURT OF APPEALS OF INDIANA
MARY NEAL, )
vs. ) No. 17A03-0101-JV-8
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF )
M.N. AND H.N. CHILDREN, AND MARY )
NEAL, MOTHER AND MICHAEL NEAL, SR., )
APPEAL FROM THE DEKALB CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause No. 17C01-0010-JT-003
May 16, 2002
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
Mary Neal signed a Voluntary Relinquishment of Parental Rights form with respect to
each of her two children, but later appeared in open court, repudiated her
written consent, and expressed her desire to retain her parental rights. The
trial court found that Neals written consent was made voluntarily and terminated her
parental rights. Neal appeals and presents a single dispositive issue for our
review, namely, whether her voluntary written consent is invalid because it was not
acknowledged in open court pursuant to Indiana Code Section 31-35-1-6(a).
FACTS AND PROCEDURAL HISTORY
On October 5, 2000, Neal, the natural mother of M.N. and H.N., attended
a case plan review meeting at the DeKalb County Office of the Division
of Family and Children (DFC) with DFC caseworker Sandi Anderson and the childrens
Guardian Ad Litem, Hugh Taylor. The purpose of the meeting was to
discuss the DFCs case plan for Neals children, which included the DFCs intention
to file a petition to terminate Neals parental rights. During the meeting,
Neal inquired whether she could voluntarily terminate her parental rights with respect to
the children. In response to Neals inquiry, Anderson explained that voluntary termination
was an option and read her the consent forms. Anderson advised Neal
that an attorney could be appointed to assist her with her decision and
that she could take the consent forms with her if she wanted to
take some time to think about the matter. Neal declined Andersons offer
and opted to sign the consent forms at that time.
Later that day, Neal changed her mind and decided that she did not
want to terminate her parental rights. When the DFC became aware that
Neal had decided against the voluntary termination, the DFC filed a separate petition
for the involuntary termination of Neals parental rights.
On October 16, 2000, the trial court held a hearing to determine whether
Neals prior written consent was made voluntarily. Neal appeared in court and
testified that she changed her mind after she signed the consent forms and
that she was no longer willing to terminate her rights. Neal also
testified that Anderson had pressured her to sign the consent forms. The
trial court found that Neals prior written consent to the termination of her
parental rights was voluntary and that her attempt to revoke that consent was
not valid. The trial court ordered that Neals parental rights with respect
to both children be terminated. Neal appeals from that order.
DISCUSSION AND DECISION
The issue presented here is not an issue of first impression for this
court. We have previously addressed whether a parent can withdraw her written
consent to the voluntary termination of parental rights, and we concluded that written
consent is irrevocable, and, therefore, valid, unless it was induced by fraud.
See Ellis v. Catholic Charities, 681 N.E.2d 1145 (Ind. Ct. App. 1997), trans.
denied, and In the Matter of J.W.W.R. and G.L.R., 712 N.E.2d 1081 (Ind.
Ct. App. 1999), trans. denied. In those cases, however, we relied on
case law regarding consent to adoption and did not squarely address the statutory
requirement that a parents voluntary consent to the termination of parental rights be
given in open court. See Ind. Code § 31-35-1-6(a). In this
case, we rely on statutory construction to resolve the question of whether a
parent must give her voluntary consent in open court or whether written consent,
without more, is sufficient.
The interpretation of a statute is a question of law that is reviewed
de novo. Golden Rule Ins. Co. v. McCarty, 755 N.E.2d 1104, 1106
(Ind. Ct. App. 2001). The primary rule in statutory construction is to
ascertain and give effect to the intent of the legislature. Hendrix v.
State, 759 N.E.2d 1045, 1047 (Ind. 2001). The best evidence of legislative
intent is the language of the statute itself, and all words must be
given their plain and ordinary meaning unless otherwise indicated by statute. Id.
To effectuate legislative intent, we read the sections of an act together
in order that no part is rendered meaningless if it can be harmonized
with the remainder of the statute. J.W.W.R., 712 N.E.2d at 1086 (Rucker,
In order for the court to accept a parents voluntary consent to the
termination of parental rights, Indiana Code Section 31-35-1-6(a) (Section 6(a)) requires that:
the parents must give their consent in open court unless the court makes
findings of fact upon the record that:
the parents gave their consent in writing before a person authorized by law
to take acknowledgments;
the parents were notified of the constitutional and other legal rights and of
their actions under section 12 of this chapter; and
the parents failed to appear.
In addition, Indiana Code Section 31-35-1-12 (Section 12) requires that the following information
be given to parents who voluntarily terminate parental rights:
For purposes of sections 6 and 8 of this chapter, the parents must
be advised that:
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;
when the court terminates the parent-child relationship:
all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody,
control, visitation, or support pertaining to the relationship, are permanently terminated; and
their consent to the childs adoption is not required;
the parents have a right to the:
of their child as long as the
parents fulfill their parental obligations;
the parents have a right to a judicial determination of any alleged failure
to fulfill their parental obligations in a proceeding to adjudicate their child a
delinquent child or a child in need of services;
the parents have a right to assistance in fulfilling their parental obligations after
a court has determined that the parents are not doing so;
proceedings to terminate the parent-child relationship against the will of the parents can
be initiated only after:
the child has been adjudicated a delinquent child or a child in need
of services and removed from their custody following the adjudication; or
a parent has been convicted and imprisoned for an offense listed in IC
31-35-3-4 (or has been convicted and imprisoned for an offense listed in IC
31-6-5-4.2(a) before its repeal), the child has been removed from the custody of
the parents under a dispositional decree, and the child has been removed from
the custody of the parents for six (6) months under a court order;
the parents are entitled to representation by counsel, provided by the state if
necessary, throughout any proceeding to terminate the parent-child relationship against the will of
the parents; and
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.
Neal contends that the plain language of Section 6(a) requires that a parents
voluntary consent to the termination of parental rights be given in open court,
unless the exceptions set out in the statute are satisfied. The DFC,
in turn, points out that Section 12 provides that a parents consent is
permanent and cannot be revoked or set aside unless it was obtained by
fraud or duress or unless the parent is incompetent, and that a hearing
will be held to determine the voluntariness of her consent. The DFC
essentially maintains that these provisions of Section 12 trump the open court requirement
set out in Section 6(a). We cannot agree.
Section 6(a) expressly requires that a parents consent to the termination of her
parental rights be made in open court unless all three of the listed
exceptions apply. The issue is whether that section conflicts with Section 12,
which states that consent cannot be revoked and that a hearing will be
held to determine whether a parents consent was voluntary. At first glance,
Section 12 might appear inconsistent with Section 6(a) regarding whether consent can be
revoked once it is given. But that inconsistency only exists if we
equate written consent with consent for purposes of construing Section 12(1)
See footnote . In
other words, the DFC reads the statute to mean that written consent can
never be revoked. But, given the clear meaning of consent as set
out in Section 6(a), and given that Section 12 specifically refers back to
Section 6, it is plain that consent cannot be revoked once it is
obtained pursuant to Section 6(a), which requires that written consent be acknowledged in
open court or that all three exceptions are satisfied. In addition, once
consent is obtained under Section 6(a), the court determines whether that consent was
made voluntarily. Construed in this manner, the open court provision of Section
6(a) is consistent with both the irrevocability and voluntariness provisions of Section 12.
Indeed, when the sections are read together, it is apparent that the legislature
established a procedure whereby a parent who consents in open court cannot thereafter
revoke that consent unless it was obtained by fraud or duress. As
Judge Rucker (now Justice Rucker) observed:
In my view  the termination statute (as opposed to the adoption statute)
presents a legislative scheme that not only ensures that a parents written consent
is knowing and voluntary but also ensures that the parents agreement to terminate
her parent/child relationship has not changed. When a parent does not appear
in open court, we may presume that she still is willing to terminate
the relationship. The only question remaining is whether she was properly advised
of her legal and constitutional rights and whether the consent was entered knowingly
and voluntarily. However, once the parent appears in open court, if she
does not consent to termination, then the previously signed consent is irrelevant. .
. . The statute governing the voluntary termination of parental rights does not
give the trial court the authority to terminate parental rights where a parent
initially consents to termination but comes to court and repudiates consent.
J.W.W.R., 712 N.E.2d at 1086 (Rucker, J., dissenting) (emphasis added).
In Ellis v. Catholic Charities, 681 N.E.2d 1145 (Ind. Ct. App. 1997),See footnote this
court addressed the applicability of the open court requirement to circumstances similar to
those presented in this case, and we held that a mothers written consent
to the termination of her parental rights was valid despite the fact that
it was not given in open court and despite her attempt to revoke
that consent at the subsequent voluntariness hearing. But in Ellis, we relied
on our opinion in In the Matter of the Adoption of Konar, 454
N.E.2d 886 (Ind. Ct. App. 1983), cert. denied, 469 U.S. 892 (1984), which
involved a mothers attempt to revoke her consent to adoption under the Adoption
Code. And when Ellis sought transfer to our supreme court, Justice Dickson
wrote a dissenting opinion to the courts denial of transfer in which he
discussed this courts erroneous reliance on Konar to resolve the issue of Ellis
consent to the termination of parental rights.
In his dissenting opinion to the denial of transfer in Ellis, Justice Dickson
pointed out that:
[p]rior 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 31-35-1-1 to -12].
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. . . .
The new Juvenile Code repeals the termination of parental rights provisions of
the adoption statutes . . . . [and] establishes [31-35-1-6 as] the exclusive
method for the termination of parental rights.
Ellis v. Catholic Charities, 685 N.E.2d 476, 477 (Dickson, Justice, dissenting from denial
of transfer, with Justice Sullivan concurring). And Justice Dickson noted that Indiana
case law establishes that [c]ompliance with the statutory procedure of the juvenile code
is mandatory to effect a termination of parental rights[.] Id. at 478
(citation omitted). Justice Dickson concluded that the termination statute permit[s] 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. Id.
In Ellis, this court also relied on our opinion in In the Matter
of M.S., 551 N.E.2d 881 (Ind. Ct. App. 1990), trans. denied, cert. denied,
498 U.S. 1121 (1991), to hold that the proper [statutory] procedure for the
voluntary termination of parental rights was followed. But unlike either Ellis or
this case, the mother in M.S. did not attend the hearing to revoke
her written consent. Accordingly, this courts reliance on M.S. as precedent in
Ellis was misplaced. In M.S., the mother signed a voluntary consent on
the day of a hearing on the DFCs petition to involuntarily terminate her
parental rights. Her attorney presented the consent form to the trial court
at the hearing that day, and the mother did not appear to contest
the voluntary termination. We held that pursuant to the statute (now I.C.
31-35-1-6(a)), because the mother failed to appear the consent was valid.
Id. at 883.
In sum, we conclude that statutory construction of Indiana Code Sections 31-35-1-6 and
-12 resolves the issue presented here. We adopt the reasoning in
Justice Dicksons dissent to the denial of transfer in Ellis, 685 N.E.2d at
477, and Judge Ruckers (now Justice Rucker) reasoning in his dissent in J.W.W.R.,
712 N.E.2d at 1086. We hold that under the Juvenile Code, 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. Thus, the trial court erred when it terminated Neals
parental rights with respect to M.N. and H.N. based solely upon her prior
out-of-court written consent when she appeared in court and repudiated her consent.
BAKER, J. and MATTINGLY-MAY, J. concur.
We note that this appeal has no impact on the DFCs
separate, pending petition for the involuntary termination of Neals parental rights.
Footnote: We note that there is no statutory provision for the voluntary
termination of parental rights by written consent.
Footnote: The facts of
J.W.W.R. are similar to those presented here, but,
in that case, we focused on Section 12 without attempting to reconcile that
statute with the open court provision set out in Section 6(a).
In M.S., the mother argued that she was entitled to a separate
hearing on the voluntariness of her written consent. We disagreed and stated:
The statute [now I.C. 31-35-1-12(8)] says that a parent signing a consent form
is entitled to receive notice of the hearing at which the court accepts
her consent to relinquish parental rights and at which the court will determine
if her consent was voluntary. This case arose under a petition for
involuntary termination of parental rights. [The mother] had notice of this hearing.
Though the hearings purpose changed when she signed consent forms to relinquish
her parental rights, she nevertheless had notice of this hearing, and she chose
not to attend or to tell the judge that her consent was not
M.S., 551 N.E.2d at 883. Thus, the open court provision in Indiana
Code Section 31-35-1-6 and the voluntariness hearing requirement in Indiana Code Section 31-35-1-12(8)
can be combined in a single hearing where the trial court both accepts
the written consent and determines the voluntariness of that consent.