MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Feb 27 2015, 10:12 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
Steven M. Bush                                           Jill Sisson
Christopher W. Kimbrough                                 Michael A. Fish
Millbranth & Bush                                        Valparaiso, Indiana
Valparaiso, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Adoption of                                   February 27, 2015
B.J.P., Minor Child,                                     Court of Appeals Case No.
                                                         64A03-1409-AD-329
B.W. and J.P.,
                                                         Appeal from the Porter Superior
Appellants-Respondents,                                  Court.
                                                         The Honorable William E. Alexa,
        v.                                               Judge.
                                                         Cause No. 64D02-1307-AD-6168

N.C. and K.C.,
Appellees-Petitioners




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 1 of 10
[1]   B.W. (Mother) appeals the judgment of the trial court denying her motion to

      withdraw her consent to the adoption of her child, B.P. (Child). Finding that

      Mother failed to withdraw her consent within the thirty-day time period

      allowed for by statute and that she has not shown her original consent to be the

      result of duress, fraud, or any other consent-vitiating factor, we affirm.


                                                     Facts
[2]   Child was born on July 23, 2012, to Mother and J.P. (Father). Mother, who

      was seventeen years old at the time, lived with her grandparents, who were then

      her legal guardians. At some point in 2013, Mother spoke with K.C. and N.C.

      (Aunt and Uncle) and decided that it would be in Child’s best interests to be

      adopted by Aunt and Uncle.


[3]   On June 28, 2013, Mother and her grandmother met Aunt and Uncle at their

      attorney’s office to discuss Child’s adoption. Mother was not represented by

      independent counsel at this meeting. At the end of the meeting, the attorney

      decided that it would be best for Mother’s grandparents to sign a consent

      agreement and then, when Mother turned eighteen, for her to sign as well.

      Mother’s grandparents signed the agreement on July 3, 2013.


[4]   On July 11, 2013, Aunt and Uncle filed a Verified Petition for Adoption of

      Minor Child. Father, who had provided Child with no support since Child’s

      birth, was served notice of the adoption by publication. Father’s consent to the




      Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 2 of 10
      adoption was irrevocably implied when he failed to contest the adoption within

      the time period allowed for by statute.1 Ind. Code § 31-19-9-18.


[5]   On September 6, 2013, Mother, who was now eighteen years old, returned to

      Aunt and Uncle’s attorney’s office to sign a consent agreement. As had been

      the case before, Mother was not represented by independent counsel. Mother

      signed the agreement, attesting that, among other things, she understood that

      adoption would terminate her parental rights, she was under no compulsion,

      duress, or undue influence, she believed it was in Child’s best interests to be

      adopted by Aunt and Uncle, and she consented to Child being placed in their

      sole care, custody, and control.


[6]   However, on January 3, 2014, Mother filed a Verified Motion to Withdraw

      Consent to Adoption of Minor Child. In her motion, Mother claimed that she

      felt she had no choice but to sign the consent agreement at the time. She

      claimed that her consent “was essentially obtained by coercion and [she] was

      under extreme duress at the time she signed” the agreement. Appellant’s App.

      p. 18. Mother also claimed that, before adopting Child, Aunt and Uncle had

      promised Mother that they would allow her to see Child any time she wished,

      but they had not kept their word. Finally, Mother claimed she was not given

      the opportunity to seek independent legal counsel before signing the agreement.




      1
       Although Father did eventually contest the adoption, he did not do so until March 28, 2014, well over thirty
      days after he was served with notice.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015         Page 3 of 10
[7]   On June 20, 2014, the trial court held a hearing that Mother, now represented

      by counsel, attended. On August 19, 2014, the trial court issued an order

      denying Mother’s motion to withdraw consent. Among other things, the trial

      court found that Mother failed to withdraw her consent within the thirty-day

      time period allowed for by statute and that she had not shown her original

      consent to be the result of duress, fraud, or any other consent-vitiating factor.

      Mother now appeals.


                                   Discussion and Decision
[8]   When we review a trial court’s ruling in an adoption proceeding, we will not

      disturb that ruling unless the evidence leads to only one conclusion and the trial

      court reached the opposite conclusion. In re Adoption of H.N.P.G., 878 N.E.2d

      900, 903 (Ind. Ct. App. 2008). We will not reweigh the evidence; rather, we

      will examine the evidence most favorable to the trial court’s decision together

      with the reasonable inferences drawn therefrom. Id. We will affirm if sufficient

      evidence exists to sustain the decision. In re Adoption of M.A.S., 815 N.E.2d 216,

      219 (Ind. Ct. App. 2004). The trial court is presumed to be correct and it is the

      appellant’s burden to overcome that presumption. Id.


[9]   The adoption statute creates a proceeding unknown at common law. In re

      B.W., 908 N.E.2d 586, 593 (Ind. 2009). This Court must strictly construe the

      statute in favor of the rights of biological parents. Id. However, we must also

      be mindful that “careful administration of the statute serves purposes beyond

      protecting the rights of natural parents to be with their children.” In re Adoption


      Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 4 of 10
       of A.S., 912 N.E.2d 840, 848 (Ind. Ct. App. 2009). “It also serves to protect

       children and to shield all involved parties from unnecessary instability and

       uncertainty.” Id.


[10]   Indiana Code section 31-19-10-3 provides that consent to adoption may not be

       withdrawn more than “thirty (30) days after the consent to adoption is signed.”

       Because it is undisputed that Mother failed to withdraw her consent within this

       time period, Mother bases her initial argument on her rights under the United

       States Constitution.


[11]   The right to raise one’s child is an essential and basic right that is protected by

       the Fourteenth Amendment to the United States Constitution. In re Adoption of

       M.P.S., Jr., 963 N.E.2d 625, 629 (Ind. Ct. App. 2012). Therefore, Indiana’s

       statutes governing adoption should not be construed so as to destroy safeguards

       erected for the preservation of family relationships. Id. “For the execution of a

       parent’s consent to the adoption of his or her child to be valid, the consent must

       be a voluntary consent to the termination of all parental rights.” Id. To be

       voluntary, “it must be an act of the parent’s own volition, free from duress,

       fraud, or consent-vitiating factors.” Id.


[12]   Mother argues that her consent was obtained through duress. She asserts that

       she “believed she would have regular visitation with [Child] because she lived

       two doors down from [Aunt and Uncle].” Appellant’s Br. p. 13. Indeed, the

       record does show that, while Mother continued to reside with her grandparents,

       she visited Child “[a]lmost every single day. . . .” Tr. p. 37. However, when


       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 5 of 10
       Mother moved out of her grandparent’s home,2 she did not continue to visit

       child nearly as often.


[13]   Mother points to this Court’s decision in M.P.S., in which the child’s adoptive

       parents had promised the mother that she would be allowed to visit the child

       but had not kept their promise. 963 N.E.2d at 630. We considered this as a

       factor when determining whether the mother had consented voluntarily. 3 Id.

       However, in this case, there is nothing in the record indicating that Mother was

       promised, or even led to believe, that she would be allowed to visit Child. It is

       true that she visited Child frequently before moving out of her grandparent’s

       house, but any change in visitation appears to be due to her change of residence

       rather than any action on the part of Aunt and Uncle. Although Mother

       testified that Aunt and Uncle told her she couldn’t come see Child, Aunt and

       Uncle testified that Mother had only asked to see Child twice and had come to

       see Child once. Tr. p. 37, 64, 74-75.


[14]   Mother also points out that she was not represented by counsel throughout this

       process. We have previously held that “the advice and consultation of an




       2
        Although it is unclear from the record where Mother was living at the time of the June 20, 2014, hearing,
       she stated that she intended to move in with her then-fiancé. Tr. p. 41-42.
       3
        Mother mischaracterizes our holding in M.P.S. when she claims that “the court held that the mother’s
       consent to the adoption of her minor child was involuntary because the mother had the impression she would
       have continued contact with the child.” Appellant’s Br. p. 12. First, the mother in M.P.S. did not have a
       mere impression that she would be allowed visitation, but was explicitly promised so. 963 N.E.2d at 630.
       Second, this fact alone was not determinative, as we concluded in M.P.S. that “[t]he record is replete with
       evidence of procedural error, involuntariness, and fraud upon the court.” Id. at 632. A broken promise of
       visitation was one factor out of many. Id.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015         Page 6 of 10
       attorney is not a condition precedent to the execution of a valid consent to

       adoption.” Matter of Adoption of Hewitt, 396 N.E.2d 938, 941 (Ind. Ct. App.

       1979). Though we recognize this holding, we would certainly prefer to have

       seen both sides represented by counsel in this matter. Although the record is

       unclear as to what extent Mother was informed of her right to obtain counsel, 4

       we wish to make clear that all parties to an adoption should be informed of

       their right to seek counsel and given sufficient time to do so. And, especially in

       the case of a party as young as Mother, attorneys should be disinclined to enter

       into such agreements before all sides have sought the advice of counsel.


[15]   However, while we are significantly troubled by the fact that Mother lacked

       independent legal representation in this matter, given all the circumstances, we

       do not find that her consent was involuntary. Mother was given more than two

       months in between the first and second meetings to consider her decision. The

       evidence supports the trial court’s determination that Mother consented

       voluntarily. See Tr. p. 53-56. We will not reweigh this evidence on appeal.


[16]   Mother next argues that her consent was not valid because it was not given in

       open court. Although Mother acknowledges that the adoption statute does not

       require consent to be given in open court, she argues that we should read the

       statute to include this requirement. Mother advocates for this reading because

       the statute governing voluntary termination of parental rights does require that



       4
        Mother does not recall any conversation to this effect. Tr. p. 31. Her grandmother testified that Mother
       had been informed of her right to an attorney. Tr. p. 53.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015         Page 7 of 10
       consent be given in open court and Mother believes that the two statutes should

       have the same requirements. Ind. Code § 31-35-1-6.


[17]   Mother’s interpretation, while sensible, is simply not the law. Indiana Code

       section 31-19-9-2 provides that consent to adoption may be executed in the

       presence of the court, a notary public, or an authorized agent of the Department

       of Child Services. On the other hand, Indiana Code section 31-35-1-6,

       governing consent to the termination of parental rights, provides that such

       consent must be given in open court except in certain cases. Thus, while

       parents who are voluntarily terminating their parental rights must consent in

       open court, parents who are consenting to have their children adopted are not

       required to do so.


[18]   In support of her contention, Mother cites our Supreme Court’s opinion in Neal

       v. DeKalb County Division of Family and Children, in which the Court held that a

       “parent’s written consent to the voluntary termination of parental rights is

       invalid unless she appears in open court to acknowledge her consent to the

       termination,” unless other exceptions apply. 796 N.E.2d 280, 285 (Ind. 2003).

       This is certainly true, but this case is not helpful to Mother’s argument as it did

       not involve adoption.


[19]   Mother argues that, because both voluntary termination and adoption

       permanently terminate a parent’s parental rights, the statutes governing these

       processes “should be harmonized to provide the same withdrawal of consent

       procedures and fully protect the rights of the natural parent.” Appellant’s Br. p.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 8 of 10
       17. Mother argues that one should be required to consent to adoption in open

       court because “a neutral, detached magistrate is in the best position to

       determine whether a parent understands the ramifications of entering into an

       adoption or voluntar[ily] terminating their parental rights.” Id. at 18. This may

       be true, but as the adoption statute unambiguously allows parents to consent to

       adoption outside of the presence of such a magistrate, it is the province of the

       General Assembly, rather than this Court, to consider such an argument.


[20]   Finally, Aunt and Uncle request damages pursuant to Indiana Appellate Rule

       66(E). Rule 66(E) provides that “[t]he Court may assess damages if an appeal

       . . . is frivolous or in bad faith.” Aunt and Uncle argue that this appeal was

       frivolous and in bad faith because Mother’s “pinnacle argument was that [she]

       needed to first appear before a court” to consent to the adoption. Appellee’s Br.

       p. 14.


[21]   We disagree with this interpretation of Mother’s argument. Mother’s initial

       argument is that her consent to the adoption was involuntary. This argument,

       while not a winning one, was a reasonable argument to make. While we

       ultimately disagree with Mother, we are certainly troubled by some aspects of

       her situation, especially her lack of legal representation throughout the

       proceedings. Although Mother’s second argument failed as well, we cannot

       conclude that her argument as a whole was frivolous or in bad faith.

       Consequently, we refuse to assess damages.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 9 of 10
[22]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1409-AD-329 | February 27, 2015   Page 10 of 10
