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ATTORNEY FOR APPELLANT Brent R. Dechert Kokomo, Indiana

ATTORNEY FOR APPELLEE Michael E. Boonstra Kokomo, Indiana

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Indiana Supreme Court
_________________________________ No. 34S02-0904-JV-147 IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF M.B. AND S.B. (CHILDREN) T.B. (MOTHER),

In the

FILED
Nov 30 2009, 3:35 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Plaintiff below). _________________________________ Appeal from the Howard Circuit Court, No. 34C01-0703-JT-0009 and 34C01-0703-JT-0010 The Honorable Lynn Murray, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 34A02-0805-JV-437 _________________________________ November 30, 2009 Sullivan, Justice.

A mother seeks restoration of her parental rights, contending that she voluntarily agreed to the termination on the condition that she could continue visitation with her children, only to have visitation terminated at a subsequent hearing of which she received no notice or opportunity to be heard. Conditioning the voluntary termination of parental rights on continuing post-

adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted. On the facts of this case, the mother is entitled to a hearing on the termination of her visitation rights but not a full restoration of her parental rights. Background T.B. (Mother) gave birth to M.B. in March, 2000, and S.B., in June, 2002. The Howard County Department of Child Services (State) removed both M.B. and S.B. (Children) from Mother in August, 2002, because she had been arrested on drug charges and no suitable family members were available to care for the Children. Mother was released from incarceration in October, 2005. The State petitioned for the involuntary termination of Mother's paren tal rights on March 19, 2007. From the time of her release until March, 2007, Mother had not established suitable housing for her children, had not maintained stable employment, and had not complied with court orders regarding treatment for her drug problem. On April 9, 2007, the Howard Circuit Court held an initial hearing on the State's petition for involuntary termination of Mother's parental rights. Mother denied the allegations in the petition and the court set the ma tter for a fact-finding hearing on June 4, 2007.

Prior to the June 4 hearing, Mother, advised by her counsel, Brent R. Dechert, decided to execute a Voluntary Relinquishment of Parental Rights State Form 12587 for each of the Children. Attached to each form was an Addendum, drafted by Mr. Dechert, captioned Post Adoption Privileges. The identical addenda (collectively, the Addendum) contained a proviso stipulating that Mother's voluntary relinquishment of her parental rights and her consent to adoption were 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. 31-19-16-2.1 (Appellant's App. 38, 106.)

The precise language of the Addendum reads: The parent, [T.B.] consents to voluntarily relinquish her parental rights and consent 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. (Appellant's App. 38, 106.) As a matter of grammar, this is not a correct sentence. The parties contest the effect of the Addendum, but do not appear to contest the way it should be read. We have paraphrased it in the text to reflect the reading the parties appear to give it.
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The voluntary termination forms (with Addendum attached) were submitted to the trial court at the commencement of the fact-finding hearing. The trial court reviewed the forms and advised Mother of the legal consequences of voluntary termination of parental rights. The court then confirmed that Mr. Dechert had fully consulted with Mother regarding her decision to terminate her parental rights voluntarily. The court then asked Mr. Dechert how this reservation of post-adoption visitation rights [the Addendum] would work. (Tr. 11.) The following exchange took place:

Mr. Dechert: We also discussed that if she voluntarily relinquishes her parental rights that she could be entitled to post-adoption contact if the department allowed that and, which the department did and I reviewed that with her and told her that that 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 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 of parental rights was in her best interest and the children's best interest. Trial Court: [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? [Mother]: Yes. Id. at 12-13. The court had Mother reaffirm that she voluntarily decided to terminate her parental rights. Mr. Dechert then asked the State whether at this point in time the department b elieves it is still in the children's best interest to continue with visitation[.] Id. at 13. Case manager Scott Simmonds replied, That's correct. Id. at 14. At the conclusion of the hearing, the trial court accepted Mother's voluntary termination of her parental rights and accepted the post-adoption visitation Addendum. In doing so, the following exchange took place:

Trial Court: 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

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[S.B.], and that that is both freely and voluntarily made after consultation with her counsel, Mr. Dechert, and further, that according to the petition . . . the department does have a satisfactory plan for both the care and treatment of each child, and what would that be, Mr.

Download Term. of Parent-Child Rel. of M.B., et al; T.B. v. IDCS.pdf

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