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FOR PUBLICATION
ATTORNEY FOR APPELLANT: BRENT R. DECHERT Kokomo, Indiana ATTORNEY FOR APPELLEE: JULIE A. STALKER Kokomo, Indiana

FILED
Oct 31 2008, 9:34 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF M.B. and S.B. Tiffany Black, Mother, Appellant-Respondent, vs. HOWARD COUNTY DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 34A02-0805-JV-437

APPEAL FROM THE HOWARD CIRCUIT COURT The Honorable Lynn Murray, Judge Cause No. 34C01-0703-JT-9 & 34C01-0703-JT-10

October 31, 2008

OPINION - FOR PUBLICATION

BROWN, Judge

Tiffany Black ("Mother") appeals the Howard Circuit Court's order denying her motion to set aside its order for the voluntary termination of Mother's parental rights to her children, M.B. and S.B. Concluding (1) that the addendum to Mother's voluntary consent to termination form is void and unenforceable as a matter of law and (2) that the trial court properly denied Mother's Trial Rule 60(B) motion to set aside judgment, we affirm. Mother is the biological mother of M.B., born on March 29, 2000, and S.B., born on June 23, 2002. M.B. and S.B.'s natural father is deceased. The evidence most favorable to the trial court's judgment reveals that on March 19, 2007, the Howard County Department of Child Services ("HCDCS") filed a petition for the involuntary termination of Mother's parental rights to her two children. An initial hearing on the termination petition was held on April 9, 2007, during which Mother denied the allegations of the petition. A fact-finding hearing on the termination petition was set for June 4, 2007. Immediately prior to the fact-finding hearing, Mother, after consulting with her attorney, executed a voluntary relinquishment of parental rights form for each child. Attached to each consent form was an addendum, drafted by her attorney, entitled "Post Adoption Privileges[.]" Appellant's App. at 38. The addendums were identical and provided as follows: "The parent, Tiffany [B.], consents to voluntarily relinquish her parental rights and consent (sic) to adoption is subject to the Court granting post-adoption privileges and the adoptive parents consenting to post-adoption contact by and between themselves and [S.B.] and [M.B.] pursuant to I.C. 31-19-16-2." Id. The consent forms

and attached addendums were submitted to the trial court at the commencement of the involuntary termination hearing. The trial court reviewed the proffered consent forms and properly advised Mother of her constitutional and other legal rights, as well as the consequences of her voluntary consent pursuant to Indiana Code Sections 31-35-1-8 and -12. In so doing, the trial court stated, among other things: I need to advise you that . . . your consent to the termination of your parental/child relationship is permanent and it cannot be set aside unless it could be later shown it was obtained by either fraud or duress or unless the court would find that you were not competent at the time you gave your consent. You understand that when the court terminates a parent/child relationship, all rights, powers, privileges, immunities, duties and obligations, and that includes any rights to custody, control, visitation or support that pertain to that relationship, are permanently terminated. That your consent to the child's adoption would not be required. Tr. at 9-10. The trial court then asked Mother's attorney, Brent Dechert ("Dechert"), to describe for the record his consultation with Mother regarding her decision to voluntarily consent to termination and to explain how the "reservation of post-adoption visitation" would work. Id. at 11. The following exchange took place: [Dechert]: Judge, I did meet with [Mother] for, oh, approximately 30 minutes at least before the hearing here today and prior to showing her any voluntary termination of parental rights paperwork, we did go over . . . what her options were here today and certainly made sure that she wasn't being forced or threatened to enter into this agreement. . . . I have to give her my legal opinion as to what I believe the outcome would be based upon the history of this case and my involvement for the last several years in this matter and I certainly gave her my opinion but in no uncertain terms told her that she has the right to proceed today at the [involuntary termination] hearing.

*** We also discussed that if she voluntarily relinquishes her parental rights that she could be entitled to post-adoption contact if the [HCDCS] allowed that and, which the [HCDCS] did[,] and I reviewed that with her and told her that that (sic) post-adoption contact would only continue so long as it is in the children's best interest and if at any point in time a court, either this court or another court, determine[s] it is no longer in the children's best interest, she would not be entitled to further visitation and she indicated she understood that and continued to believe that this agreement and the voluntary relinquish (sic) of parental rights was in her best interest and the children's best interest. [Judge]: [Mother], you understand that by giving your consent to the termination of parent/child rights, you're giving up the rights of which I had advised you earlier and that it is subject to this reservation of post-adoption privileges which you understand, as Mr. Dechert's explained, to be subject to a court determining that it's in the child's best interest for such visitation or conduct to occur? Yes.

[Mother]:

Id. at 11-13. The trial court then questioned Mother as to whether the HCDCS or anyone else had offered anything of value, made any threats to her or anyone else, or forced her to do anything against her will to get her to agree to voluntarily relinquish her parental rights. Mother responded, "No." Id. at 13. The trial court again confirmed, "This is your free and voluntary decision?" Id. Mother replied, "Yes." Id. At the conclusion of the hearing, the trial court accepted Mother's consent to voluntarily terminate her parental rights to M.B. and S.B. In so doing, the trial court stated: Well, the court would make a finding today that [Mother] has acknowledged, having understood her rights in this matter, that she wishes

to voluntarily relinquish her parent/child rights with regard to her children, [M.B.] and [S.B.], and that that is both freely and voluntarily made after consultation with her counsel, Mr. Dechert . . . . *** Therefore, the court would show that it would accept the Voluntary Relinquishment of Parental Rights as executed by [Mother], subject to the post-adoption privileges, as filed here today. Id. at 14. Later the same day, the trial court issued an order for the voluntary termination of the parent-child relationship between Mother and her children thereby permanently terminating all of Mother's "rights, powers, privileges, immunities, duties and obligations, including the right to consent to adoption," as they related to M.B. and S.B. Appellant's App. at 40. Mother was permitted, however, to continue visitation with both children, who remained wards of HCDCS, twice a month as per the addendums. Meanwhile, on or about June 15, 2007, M.B. and S.B. were placed in a new, pre-adoptive foster home with Todd and Lora W. Todd and Lora, however, were unaware of Mother's visitation privileges. A three-month CHINS periodic review hearing was held on September 10, 2007. Mother was not notified of the hearing. During the review hearing, HCDCS case

manager Laura Lee ("Lee") recommended that visitation between Mother and the children be terminated. Lee based her recommendation on reports she had received from the children's therapist, adoption caseworker, and foster parents that the children were emotional and upset following their visits with Mother and would exhibit other negative behaviors including bedwetting. At the conclusion of the review hearing, the trial court determined visitation between Mother and the children was no longer in the children's

best interests and ordered Mother's visitation privileges terminated.

When Mother

appeared for her regularly scheduled visitation with the children two days later, she was advised of the trial court's order to terminate her visitation privileges and was informed that her visit with the children that day would be her final "good-bye" visit. Tr. at 86. Mother has not visited with the children since September 12, 2007. Mother filed a motion to set aside the order for voluntary termination of the parent-child relationship on February 5, 2008, pursuant to Indiana Trial Rule 60(B). In her motion, Mother argued the trial court's June 2007 voluntary termination order should be set aside for "fraud and/or misrepresentation of the [HCDCS] as visitation has been terminated and the potential adoptive parents are apparently unwilling to allow post[]adoption privileges." Appellant's App. at 46. Mother further claimed (1) that her relinquishment of parental rights was not freely and voluntarily given because she was "induced to enter the agreement by the false promises of the [HCDCS][,]" and (2) that her consent "imposed a contractual obligation upon the Court and the [HCDCS] to allow visitation with her children" which contract should now be deemed void and terminated because the Court and the HCDCS "failed to abide by the terms of the contract[.]" Id. A hearing on Mother's motion to set aside was held on February 28, 2008. The trial court entered its order denying Mother's motion on April 14, 2008. Mother now appeals the denial of her motion to set aside, but frames the issue as a direct appeal of the June 2007 voluntary termination order, claiming her consent to the termination of her parental rights was obtained through fraud and that she was denied due process of law when she was not notified of the post-termination review hearing after which the trial

court terminated her visitation privileges. The proper issue for review, however, is not the validity of the trial court's termination order, but is instead whether the trial court properly denied Mother's motion to set aside under Indiana Trial Rule 60. See In re K.E. v. Marion County Office of Family & Children, 812 N.E.2d 177, 179 (Ind. Ct. App. 2004) (concluding that in mother's appeal of trial court's denial of motion to set aside judgment terminating mother's parental rights, proper issue to address was whether trial court properly denied motion under rule governing relief from judgment, not substantive arguments concerning underlying judgment), trans. denied. Before reviewing Mother's assertion that the trial court improperly denied her motion to set aside its termination order, we pause to address, sua sponte, what appears to be an issue of first impression, that is, whether Indiana's termination statutes permit a parent to sign a voluntary consent form for the termination of his or her parental rights while reserving the right to post-adoption visitation privileges. Because of the important due process rights involved in termination proceedings, contract law principles, although helpful, are not necessarily determinative in cases involving consent forms for the voluntary termination of parental rights. See generally, Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004) (stating contract law principles helpful but not determinative in cases involving plea agreements due to due process rights involved - i.e. a court would not enforce a plea agreement calling for a sentence of death for jaywalking) (citations and quotations omitted). Nevertheless, because voluntary consent forms are contracts, the principles of contract law can provide guidance under the facts of this case. Id.

The term void ab initio literally means "void from the beginning" and denotes an "act or action that never had any legal existence at all because of some infirmity in the action or process." Lighty v. State, 727 N.E.2d 1094, 1096 (Ind. Ct. App. 2000) (internal quotations omitted). In general, the law declares that a contract made in

contravention of a statute is void and unenforceable. Lee, 816 N.E.2d at 38. However, it is also true that if a contract contains an illegal provision that can be eliminated without frustrating the basic purpose of the contract, the court will enforce the remainder of the contract. Id. Indiana Code Section 31-35-6-4 clearly and unambiguously describes the rights, privileges, and obligations retained by a parent after the termination of his or her parental rights as follows: "If the juvenile court . . . terminates the parent child relationship . . . all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, parenting time, or support, pertaining to the relationship, are permanently terminated." Ind. Code

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