ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS E. ULMER NED R. CARNALL
Fort Wayne, Indiana ANDREW J. CARNALL
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF M.R., N.R., J.P. & K.P., )
Minor Children, )
KIMBERLY (REICHELT ) HUDGENS, ) No. 90A05-9912-JV-575
WELLS COUNTY DIVISION OF )
FAMILY AND CHILDREN, )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable David L. Hanselman, Sr., Judge
Cause Nos. 90C01-9804-JT-77, 78, 79, and 80
May 5, 2000
OPINION - FOR PUBLICATION
Kimberly (Reichelt) Hudgens appeals the trial courts order terminating her parent-child relationship with
her four minor children. We restate the issue for consideration as follows:
Whether the State must present clear and convincing evidence that the termination is
in the best interests of the children and that the State has a
satisfactory plan for the care and treatment of the children when the natural
parent voluntarily relinquished her parental rights.
FACTS AND PROCEDURAL HISTORY
Hudgens is the natural mother of four children: K.P. born May 17, 1985,
J.P. born December 25, 1986, M.R. born September 4, 1991, and N.R. born
August 8, 1992. The natural father of K.P. is Joseph Padden, the
natural father of J.P. is Steve Lawrence, and the natural father of M.R.
and N.R. is Harvey Reichelt.
On November 16, 1996, the Wells County Office of Family and Children (OFC)
removed N.R. and M.R. from their parental home.
On December 5, 1996,
they were designated children in need of services (CHINS) pursuant to the admission
of the parents and order of the court. Thereafter, on February 18,
1997, the court determined M.R. and N.R. to be wards of OFC.
On December 6, 1996, OFC removed the two older children, J.P. and K.P.,
from their home. On February 18, 1997, the trial court adjudicated both J.P.
and K.P. as CHINS. All four children have been removed from the
home of their custodial parents continuously since December 6, 1996. Record at
21 (M.R.), 11 (N.R), 11 (J.P.), 11 (K.P.).
On April 2, 1998, the OFC filed four petitions for involuntary termination of
Hudgenss parental rights, one for each of her children. The petitions alleged,
respectively, that: Termination of the parent-child relationship is in [the childs] best
interest and There is a satisfactory plan for the care and treatment of
each child, in that [the child] can continue in foster care until the
adoptive placement is made available. Record at 21(M.R.), 11 (N.R.), 11 (J.P.), 11
On May 27, 1998, at the initial hearing on the petitions, Hudgens appeared
and requested court-appointed counsel. The court granted her request and appointed counsel
to represent her in the termination proceedings. According to the courts order
of that date, Hudgens was advised of her rights in connection with the
Record at 100 (M.R.), 86 (N.R.), 97 (J.P.), 90 (K.P.).
On July 13, 1999, at a status hearing on the termination petitions, Hudgens
appeared with counsel.
At the beginning of the hearing, Hudgens, by counsel,
presented the court with signed Voluntary Relinquishment and Termination of Parental Rights; Waiver
of Notice and Consent to Judgment and Decree (Consent) for each of her
four children. The four Consents were identical, except for the childs name
and gender references, and read as follows:
The undersigned, KIMBERLY M. REICHELT, natural mother of [childs name] hereby says that:
1. KIMBERLY M. REICHELT is the mother and natural guardian of [childs name] and
thereby authorized to execute this Relinquishment and Waiver and Consent.
2. She is aware that the Wells County Office of Family and Children did
on April 2, 1998, file a Petition to Terminate the Parent Child Relationship
between her and [childs name], and that she has read the Petition and
understands it and the nature of the request.
3. She hereby releases, relinquishes and foregoes all her rights of parenthood and as
parent of [childs name] does hereby consent absolutely and unconditionally to the termination
of the parent-child relationship between her and [childs name].
4. She hereby further waives notice of any further filings and hearings in connection
with these proceedings.
5. She hereby consents to the entry of a judgment or decree by the
Wells Circuit Court terminating the parent-child relationship between her and [childs name].
6. She hereby agrees to appear in the Wells Circuit Court at 10:00 oclock
a.m. on the 13 day of July, 1999, and under oath give her
consent to the termination of the parent-child relationship between her and [childs name].
Signed at Bluffton, Indiana, this 13 day of July, 1999.
/s/ Kimberly Reichelt (Hudgens)
Record at 19-20 (M.R.), 9-10 (N.R.), 9-10 (J.P.), 9-10 (K.P).
DISCUSSION AND DECISION
Upon direct examination by OFCs counsel, Hudgens identified each of the four Consents
as being a voluntary relinquishment of her parental rights, which she had signed
that morning after discussion with her attorney.
Record at 11-14 (M.R.).
Hudgens testified that she understood the effect of the document upon her parental
rights, duties, and responsibilities. Record at 11-14 (M.R.). She testified that no
one made any promises or threats in order to induce her to sign
the Consents. Record at 14 (M.R.). Hudgens acknowledged that she would
have no further rights to or responsibilities for her children, and that, in
all likelihood, they would be adopted. Record at 14 (M.R.).
Upon examination by her own counsel, Hudgens affirmed that she had taken no
medication that day, including any that would affect her understanding of the proceedings.
Record at 14 (M.R.). She further testified that she understood there
was a trial scheduled on the petitions for involuntary termination of her parental
rights, and that she chose not to proceed with trial, instead electing this
course of action. Record at 15 (M.R.). Following
Hudgenss testimony, the court continued the hearing, pending submission of a proposed order
voluntarily terminating the parental rights of Hudgens as to the four children.
Record at 15 (M.R.).
Thereafter, on August 2, 1999, the court issued orders terminating Hudgenss parental rights
to J.P. and K.P. On September 1, 1999, the court likewise terminated
Hudgenss parental rights with respect to M.R. and N.R. Hudgens now appeals.
In reviewing termination proceedings on appeal, this court will not reweigh the evidence
nor assess the credibility of witnesses. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied (2000). We consider only the
evidence that supports the trial courts decision and the reasonable inferences to be
drawn therefrom. Id. In deference to the trial courts unique position
to assess the evidence, we set aside the judgment terminating a parent-child relationship
only if it is clearly erroneous. Id. If the evidence and
inferences support the trial courts decision, we must affirm. Id.
To effect the involuntary termination of a parent-child relationship, the State must present
clear and convincing evidence to establish, among other things, that the termination of
the parental rights is in the best interest of the child and that
there exists a satisfactory plan for the care and treatment of the child.
IC 31-35-2-4(b)(2)(C), (D);
see id. Hudgens contends that the OFC failed
to satisfy these two requirements and that, therefore, the trial court erred when
it terminated Hudgenss parent-child relationship with her children. Given the procedural circumstances
of this case, Hudgenss argument is misplaced.
Hudgenss assertion stems from her misapprehension that IC 31-35-2-4 is the exclusive statutory
means to terminate parental rights.
Appellants Brief at 15. To the
contrary, the Indiana Code provides three independent processes to terminate parental rights:
IC 31-35-1-1 to 31-35-1-12 govern voluntary termination proceedings, IC 31-35-2-1 to 31-35-2-8 govern
involuntary termination proceedings involving a delinquent child or child in need of services,
and IC 31-35-3-1 to 31-35-3-9 govern involuntary termination proceedings with individuals convicted of
certain criminal offenses.
Without question, this case began as an involuntary proceeding, pursuant to OFCs petitions
for involuntary termination of parental rights.
However, the case became a voluntary
termination proceeding upon Hudgenss filing of the four Consents, each entitled Voluntary Relinquishment
and Termination of Parental Rights; Waiver of Notice and Consent to Judgment and
Decree. See In re M.S, 551 N.E.2d 881, 883 (Ind. Ct. App.
1990), trans. denied, cert. denied, 498 U.S. 1121, 111 S. Ct. 1075 (1991)
(where case arose under a petition for involuntary termination of parental rights, hearings
purpose changed when mother signed consent forms to relinquish her parental rights).
Once the posture of this case changed from involuntary to voluntary, the voluntary
termination statutes, IC 31-35-1-1 to 31-35-1-12, thereafter controlled the proceedings.
We find no support for the proposition that where, as here, a parent
offers a voluntary consent to the termination of her parental rights, the State
must nonetheless prove the allegations of its petition by clear and convincing evidence.
We analogize this case to the defendant in a criminal case who
enters a voluntary plea of guilty, and the case never reaches trial.
Under those circumstances, the State is not required to prove beyond a reasonable
doubt that the defendant committed the alleged crime. Similarly, we conclude that
where a parent has freely and voluntarily executed a relinquishment of her parental
rights, the State is relieved of the clear and convincing standard of proof,
which remains necessary to effect an involuntary termination of the parent-child relationship.
Notably, termination proceedings pursuant to a parents consent remain subject to the safeguards
outlined in the statutes governing voluntary termination of parental rights. For instance,
the parent must give her consent in open court, unless the court makes
certain findings upon the record concerning the parents absence and the circumstances under
which she gave prior written consent. IC 35-31-1-6. To further assure
the voluntariness of the consent, the court must advise the parent of her
constitutional and other legal rights, as well as other rights enumerated in the
voluntary termination statutes. IC 31-35-1-8; IC 31-35-1-12.
In this case, Hudgens had notice of the July 13, 1999 hearing and
appeared with counsel. The four executed Consents were filed with the court,
and Hudgens individually identified her signature on each. She testified that her
consent was voluntary, and she affirmed that she understood the impact of the
termination of her parental rights. When examined about the effect of the
relinquishment of her parental rights as to M.R., Hudgens replied in general terms
applicable to all four children, stating: It relieves me from involvement in
their lives. It leaves them where they are. Being provided with
more than I can give them. Record at 11 (M.R.). She
testified that she had spoken with her attorney at some length before the
hearing. Record at 14-15 (M.R.). Hudgens verified that she was not
taking any medications that would affect her understanding of the proceedings.
The courts orders of May 27, 1998, following the initial hearing, reflect that
the court advised Hudgens of her rights relative to the termination proceedings.
Record at 100 (M.R.), 86 (N.R.), 97 (J.P.), 90 (K.P.).
courts orders terminating Hudgenss parent-child relationships state that her consent was given with
full knowledge of her constitutional and other legal rights. Record at 23
(M.R.), 15 (N.R.), 13 (J.P.), 13 (K.P.). She does not make any
challenge on appeal to the contrary. Nor does she assert that her
consent was not voluntary or is otherwise invalid.
Yet, Hudgens now seeks reversal of the termination orders, to which she herself
consented. We note that A parent who executes a voluntary relinquishment
of parental rights is bound by the consequences of such action, unless the
relinquishment was procured by fraud, undue influence, duress, or other consent-vitiating factors.
Matter of Snyder, 418 N.E.2d 1171, 1180 (Ind. Ct. App. 1981). See
also IC 31-35-1-12(1) (requiring that parent be advised that her consent is permanent
and cannot be revoked or set aside unless it was obtained by fraud
or duress or unless parent is incompetent).
We conclude that where the parent whose rights are being terminated voluntarily consents
to the termination, the State is relieved of its burden to prove by
clear and convincing evidence that the termination is in the best interest of
the child and that the State has a satisfactory plan for the care
and treatment of the child. Accordingly, the trial courts orders terminating Hudgenss
parent-child relationship with her four children, pursuant to her voluntary consents and her
in-court testimony, were proper.
BAKER, J., and RILEY, J., concur.
OFCs petition to terminate Hudgenss parental rights to J.P. and K.P. alleged
that Joseph Paddens parental rights also should be terminated. On August 2,
1999, the trial court terminated Paddens parental rights to both children. However, prior
thereto, on July 13, 1999, Hudgens testified that a paternity blood test had
been conducted, and that Steve Lawrence, not Joseph Padden, was the father of
Record at 15. OFCs petition to terminate Hudgenss parental
rights to M.R. and N.R. alleged that Harvey Reichelts parental rights also should
be terminated; the trial court dismissed that part of the petition relative to
We note that the Record does not provide us with information concerning
from whose home the children were removed, nor the reasons for the removal.
Footnote: We note that in this appeal there are four Records of Proceedings,
as each of the four children had a separate trial court cause number
for his or her case. We will refer to the various Records
by the childs initials, rather than by the lower court cause number assigned
to that child.
Footnote: During the course of the termination proceedings, in January 1999, Hudgens
was sentenced to two concurrent four-year terms with two suspended terms at the
Indiana Department of Corrections pursuant to a conviction for fraud on a financial
institution. Her earliest possible release date was July 28, 1999.
at 62 (M.R.), 28 (N.R.), 54 (J.P.), 44 (K.P.).
The transcript of the July 13, 1999 hearing appears only in the
Record of Proceedings for M.R. but concerns the Consents for termination of parental
rights to all four children.
Footnote: OFCs petitions do not refer to the statute under which it
seeks to terminate Hudgenss parental rights. However, the allegations recited in the
petitions are those outlined in IC 31-35-2-4, concerning termination proceedings involving a child
in need of services.