FOR PUBLICATION

ATTORNEY FOR APPELLANT:                    ATTORNEY FOR APPELLEES:
MARK L. CALLAWAY                           Attorney for Appellees J.D.M. and K.L.M.
Rensselaer, Indiana                        CHARLES P. RICE
                                           Boveri Murphy Rice, LLP
                                           South Bend, Indiana

                                           ATTORNEYS FOR THE STATE OF INDIANA
                                           GREGORY F. ZOELLER
                                           Attorney General of Indiana

                                           FRANCES BARROW
                                           Deputy Attorney General
                                                                           FILED
                                                                         Nov 30 2012, 8:45 am
                                           Indianapolis, Indiana

                                                                                CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF THE ADOPTION OF             )
MINOR CHILDREN: C.B.M. and C.R.M.:              )
                                                )
C.A.B.,                                         )
       Appellant-Natural Mother,                )
                                                )
              vs.                               )   No. 37A03-1204-AD-149
                                                )
J.D.M. and K.L.M.,                              )
       Appellees-Adoptive Parents.              )


                    APPEAL FROM THE JASPER SUPERIOR COURT
                         The Honorable James R. Ahler, Judge
                            Cause No. 37D01-0805-AD-3


                                     November 30, 2012

                            OPINION -- FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

       C.A.B.’s (“Birth Mother”) parental rights as to C.B.M. and C.R.M. (“the Children”)

were terminated by the Jasper Circuit Court (“termination court”). During the pendency of

Birth Mother’s appeal of the termination order, J.D.M. and K.L.M. (“Adoptive Parents”)

sought to adopt the Children. The Jasper County Department of Child Services (“DCS”)

consented to Adoptive Parents’ request, even though Birth Mother’s appeal remained

pending. The Jasper Superior Court (“adoption court”) granted the adoption petition, also

while Birth Mother’s appeal remained pending.

       This Court reversed the termination order, after which Birth Mother sought to set

aside the adoption decree. In the course of these proceedings, Birth Mother raised issues

concerning the constitutionality of Indiana’s adoption statutes, and thus the Office of the

Attorney General (“the State”) entered an appearance and provided briefing in the matter.

The adoption court ultimately denied Birth Mother’s petition to set aside the adoption decree,

and she now appeals that decision.

       We reverse and remand for further proceedings.1

                                               Issues

       Birth Mother raises several issues for our review, but we find one issue dispositive:

whether DCS’s decision to consent to the Children’s adoption without notice to Birth Mother




1
 We heard oral argument on this case at Greensburg High School in Greensburg, Indiana on September 27,
2012. We thank the school and its students and their guests from North Decatur and South Decatur High
Schools for their hospitality, and the parties for their able advocacy.

                                                  2
during the pendency of her appeal of the termination order was arbitrary and capricious, and

thereby deprived Birth Mother of her due process rights under the Indiana and United States

Constitutions.

                               Facts and Procedural History

         On January 28, 2008, the termination court ordered Birth Mother’s parental rights to

Children terminated. Birth Mother appealed the termination order. On September 29, 2008,

in a published opinion, this Court reversed the termination order and held that there was

insufficient evidence that termination of Birth Mother’s parental rights was in Children’s best

interests. See Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218 (Ind. Ct. App.

2008).

         On May 12, 2008, during the pendency of Birth Mother’s appeal of the termination

order, Adoptive Parents filed their Petition to Adopt the Children. The adoption court

granted the petition on July 31, 2008—also during the pendency of Birth Mother’s appeal of

the termination order.

         On January 15, 2009, also in the adoption court, Birth Mother filed her Verified

Petition to Set Aside Judgment of Adoption, which alleged that the termination order was

void because of this Court’s decision of September 29, 2008, and this in turn rendered the

adoption decree void. On February 11, 2009, Adoptive Parents filed their Memorandum

opposing Birth Mother’s Verified Petition.

         On July 29, 2009, Birth Mother moved for summary judgment and entry of a

declaratory judgment, raising for the first time her Due Process Clause-based challenge to the

                                              3
adoption statutory scheme.

        On April 13, 2010, in an apparent effort to comply with Indiana’s Uniform

Declaratory Judgment Act, Birth Mother provided written notice of her motion for summary

judgment to the Office of the Indiana Attorney General.2 On May 26, 2010, Birth Mother

moved for entry of a default judgment against the State as to the constitutionality of the

adoption statutes as applied in her case. On June 7, 2010, the State filed its response to Birth

Mother’s motion for default judgment, arguing that entry of judgment would be erroneous

because the State had not been designated as a party to the action nor had yet decided

whether to exercise its statutory right to be heard in the case.

        On August 31, 2010, Birth Mother, Adoptive Parents, and the State appeared for a

hearing on Birth Mother’s motion for summary judgment. After this, numerous supplemental

materials were submitted concerning Birth Mother’s claims, including the State’s

memorandum concerning the constitutional claims, filed November 9, 2010, and Birth

Mother’s responsive memorandum, filed January 4, 2011.

        On December 27, 2011, the adoption court denied Birth Mother’s motion for summary

judgment and her petition to set aside the adoption. In the order, the adoption court

concluded that Birth Mother failed to properly preserve her rights to challenge the adoption

when she did not seek a stay of the termination order. The adoption court did not address

Birth Mother’s constitutional claims.


2
 Indiana Code Section 31-14-1-11 provides for notice to and intervention by the Indiana Attorney General
where “a statute, ordinance, or franchise is alleged to be unconstitutional.”

                                                   4
         On January 26, 2012, Birth Mother filed her motion to correct error. The State filed

its response to the motion on February 28, 2012. On March 2, 2012, the adoption court

denied the motion to correct error.

         This appeal followed. 3

                                        Discussion and Decision

                                            Standard of Review

         Birth Mother’s challenge to the adoption comes as a motion for relief from judgment

under Trial Rule 60(B), which we ordinarily review for an abuse of discretion. Rice v.

Comm’r, Ind. Dep’t of Envtl. Mgmt., 782 N.E.2d 1000, 1003 (Ind. Ct. App. 2003). The

parties agree on the facts of the case, and dispute only questions of law related to the

constitutionality and interpretation of certain statutory provisions. In such cases, we review

the trial court’s decision de novo. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App.

2008) (reviewing de novo questions of due process and personal jurisdiction). We therefore

review Mother’s appeal de novo.

    Whether Birth Mother’s Challenge to the Adoption is precluded under Trial Rule 60(B)

         Birth Mother contends that the adoption decree was void because this Court reversed

the termination order, and thus the adoption court lacked authority to grant the adoption.

Adoptive Parents argue that because the termination order was merely voidable, the adoption




3
 On May 31, 2011, Adoptive Father was killed in a motor vehicle accident, of which this Court was notified
on July 23, 2012. A review of the trial court records reveals no similar notice to the trial court. We continue to
use “Adoptive Parents” in most instances, in order to remain consistent with the conduct of prior proceedings.

                                                        5
decree itself was not void and thus Birth Mother’s challenge to the adoption decree was not

timely.

          Trial Rule 60(B)(6), provides that “[o]n motion and upon such terms as are just the

court may relieve a party … from a judgment, including a judgment by default, for the

following reasons: … the judgment is void.” Judgments are void ab initio “where the trial

court lacks authority to act.” Kitchen v. Kitchen, 953 N.E.2d 646, 651 (Ind. Ct. App. 2011)

(citing Beanblossom v. State, 637 N.E.2d 1345, 1349 (Ind. Ct. App. 1994)). Where personal

jurisdiction was lacking—that is, where imposition of judgment amounted to a violation of

due process—our Supreme Court has held that “a judgment that is void for lack of personal

jurisdiction may be collaterally attacked at any time and that the ‘reasonable time’ limitation

under Rule 60(B)(6) means no time limit.” Stidham, 698 N.E.2d at 1156.

          Whether a judgment is void or voidable is “no mere semantic quibble.” Stidham v.

Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). Where a judgment is void it is “‘from its

inception … a complete nullity and without legal effect.’” Id. (quoting 46 Am. Jur. 2d

Judgments § 31 (1994)). “By contrast, a voidable judgment ‘is not a nullity, and is capable of

confirmation or ratification. Until superseded, reversed, or vacated it is binding, enforceable,

and has all the ordinary attributes and consequences of a valid judgment.’” Id. (quoting 46

Am. Jur. 2d Judgments § 30 (1994)). Based upon this distinction, our Supreme Court

concluded that where a trial court lacked personal jurisdiction over an essential party to an

action, the trial court’s judgment was void ab initio and subject to collateral attack. Id. at

1156.

                                               6
       It is clear that the termination order was merely voidable, as this Court did not declare

the order void, but instead reversed the order for insufficient evidence. It was thus capable of

being corrected and was not void. See id. at 1154. We therefore conclude that the reversed

termination order does not itself render the adoption decree void. Yet because we reach a

conclusion today that the adoption decree is void on different grounds, we now turn to the

merits of Birth Mother’s appeal.

                  Construction of the Adoption and Termination Statutes

       Birth Mother contends that the statutory scheme, which permits the adoption of

children whose parents’ appeal of a court-ordered termination of parental rights as to those

children remains pending, is unconstitutional as applied in her case. Where a party

challenges the constitutionality of a statute, we review the trial court’s decision de novo.

Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We are not a legislature, however, and we do

not “‘substitute our convictions as to the desirability or wisdom of legislation for those of our

elected representatives.’” Id. (quoting State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985)).

We presume statutes to be constitutional, and the burden rests with the party challenging the

statute “to prove otherwise.” Id. Further,

       [i]f a statute has two reasonable interpretations, one constitutional and the
       other not, we will choose the interpretation that will uphold the
       constitutionality of the statute. Id. We do not presume that the General
       Assembly violated the constitution unless the unambiguous language of the
       statute so mandates. Id. This Court should “nullify a statute on constitutional
       grounds only where such result is clearly rational and necessary.” Bd. of
       Comm’rs of the County of Howard v. Kokomo City Plan Comm'n, 263 Ind.
       282, 330 N.E.2d 92, 95 (1975).


                                               7
Sims v. United States Fid. & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003).

       Thus, even in the face of ambiguity, if we may properly interpret the statutory scheme

in a manner that renders it constitutional, we may not hold the scheme unconstitutional. We

turn now to examine the applicable provisions of the adoption and termination of parental

rights statutes.

       Indiana’s adoption statutes require that a petitioner who seeks to adopt another’s child

must provide notice to and obtain consent from the child’s parents, or otherwise demonstrate

that such notice or consent is unnecessary. See I.C. §§ 31-19-2.5-1 to -5 and 31-19-10-1 & -

1.2. There are numerous exceptions to both the notice and consent requirements, however,

and the statutory provisions at issue in this case largely cut off the natural parents of a child

from any involvement in the adoption process after court-ordered termination of parental

rights. Thus, “[n]otice of the pendency of the adoption proceedings does not have to be

given to … a person whose parental rights have been terminated before the entry of a final

decree of adoption.” I.C. § 31-19-2.5-4(4). Moreover, a trial court “may hear and grant a

petition for adoption even if an appeal of a decision regarding the termination of a parent-

child relationship is pending.” I.C. § 31-19-11-6.

       The statutes allow for a limited exception to this:

       [i]f a person whose parental rights are terminated by the entry of an adoption
       decree challenges the adoption decree not more than the later of:

       (1)     six (6) months after the entry of an adoption decree; or

       (2)     one (1) year after the adoptive parents obtain custody of the child;


                                               8
       the court shall sustain the adoption decree unless the person challenging the
       adoption decree establishes, by clear and convincing evidence, that modifying
       or setting aside the adoption decree is in the child’s best interests.

I.C. § 31-19-14-2 (emphasis added).

       Where a petitioner establishes or statute provides that notice of an adoption

proceeding is not required, the petitioner need not obtain consent to the adoption from the

parties who would otherwise be entitled to notice of the proceedings. I.C. §§ 31-19-9-8 &

31-19-10-1.2. Where a prior court order terminated an individual’s parental rights and a

child is in the care of the State, the State through a local office of DCS must consent to the

adoption unless the adoptive parents can prove by clear and convincing evidence that such

consent is not required. I.C. §§ 31-19-10-0.5, 31-19-9-1(a)(3), 31-19-9-8(a)(1) & 31-19-10-

1.2(d); In re Adoption of H.L.W., Jr., 931 N.E.2d 400, 408 (Ind. Ct. App. 2010).

       There is no statutory provision that sets forth criteria based upon which DCS must

determine whether to grant its consent to an adoption. Thus, whether to consent to a child’s

adoption is a matter within DCS’s discretion, and the trial court must exercise its discretion

to determine whether a prospective adoptive parent’s adoption of a child is in the child’s best

interest. This is so even during the pendency of an appeal terminating a parent’s rights. I.C.

§ 31-19-11-6.

       That is not to say that there is no constitutional requirement of notice separate from

the provisions of the statutes. Rather, the statutes do not by their own language require

notice and consent, leaving it to the courts to construe the statute in light of the totality of the

statutory scheme and constitutional due process requirements. Because the adoption statutes

                                                 9
do not require a due process deprivation, however, we cannot conclude that they are

unconstitutional.

 Due Process Requirements for Notice of Adoption after Court-Ordered Termination of
                                  Parental Rights

       In this case, DCS was the only party common to both Birth Mother’s appeal of the

termination order and Adoptive Parents’ petition for adoption. Yet DCS consented to the

Adoptive Parents’ request, knowing that Birth Mother’s appeal remained pending throughout

and beyond the duration of the adoption proceedings. There is no indication that DCS made

known to this Court that it had consented to the adoption during the pendency of Birth

Mother’s appeal of the termination order. This Court reversed that order on September 29,

2008—approximately 9 months after the adoption decree. It was only that termination order

that made DCS the necessary party to the adoption proceedings, rather than Birth Mother.

       Longstanding common-law and statutory principles provide for judicial relief from

arbitrary and capricious agency actions that “directly and substantially affect the lives and

property of the public.” A.B. v. State, 949 N.E.2d 1204, 1218 (Ind. 2011) (quoting State ex

rel. Smitherman v. Davis, 238 Ind. 563, 569, 151 N.E.2d 495, 489 (1958)). The Indiana

Administrative Orders and Proceedings Act (“AOPA”) affords “minimum procedural rights

and imposes minimum procedural duties” in discretionary actions taken by DCS, even where

there is no clear procedure for appeal of such a decision under Indiana statute. I.C. § 4-21.5-

2-1; A.B., 949 N.E.2d at 1216-17 (applying AOPA standards of review to appellate review of

discretionary DCS actions).


                                              10
       AOPA affords judicial relief where an agency action is:

       (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
       with law;

       (2) contrary to constitutional right, power, privilege, or immunity;

       (3) in excess of statutory jurisdiction, authority, or limitations, or short of
       statutory right;

       (4) without observance of procedure required by law; or

       (5) unsupported by substantial evidence.

I.C. § 4-21.5-5-14(d).

       Our Supreme Court has set forth the standard of review from agency actions under

Section 4-21.5-5-14(d):

       The standard of review of an administrative agency decision is narrow. Board
       of Trustees of Knox County v. Sullivan, 965 F.2d 558, 564 (7th Cir. 1992),
       cert. denied, 506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d 353 (1993). An
       agency decision may be reversed by an appellate court only where it is purely
       arbitrary, or an error of law has been made. Indiana State Bd. of Public
       Welfare v. Tioga Pines Living Center, Inc., 622 N.E.2d 935, 939 (Ind. 1993),
       cert. denied, 510 U.S. 1195, 114 S.Ct. 1302, 127 L.Ed.2d 654 (1994). See also
       Ind.Code § 4–21.5–5–14(d) (1993). An action of an administrative agency is
       arbitrary and capricious only where there is no reasonable basis for the action.
       Natural Resources Comm’n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64
       (Ind. Ct. App. 1995), trans. denied.

Ind. Civil Rights Comm’n v. Delaware Cnty. Circuit Court, 668 N.E.2d 1219, 1221 (Ind.

1996). Put another way, “[a]n arbitrary and capricious decision is one which is ‘patently

unreasonable’ and is ‘made without consideration of the facts and in total disregard of the

circumstances and lacks any basis which might lead a reasonable person to the same

conclusion.’” A.B., 949 N.E.2d at 1217 (quoting City of Indianapolis v. Woods, 703 N.E.2d


                                              11
1087, 1091 (Ind. Ct. App. 1998)).

       An agency decision is arbitrary and capricious where it deprives an affected individual

of due process. The Fourteenth Amendment of the United States Constitution provides, “No

State shall … deprive any person of life, liberty, or property, without due process of law.”

U.S. Const. amend. XIV § 1. This Court has repeatedly noted that “the right to raise one's

children is more basic, essential, and precious than property rights and is protected by the

Due Process Clause.” Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d

175, 181 (Ind. Ct. App. 2006). “Although due process has never been precisely defined, the

phrase expresses the requirement of ‘fundamental fairness.’” In re M.M., 733 N.E.2d 6, 10

(Ind. Ct. App. 2000) (citing E.P. v. Marion Cnty. Office of Family & Children, 653 N.E.2d

1026, 1031 (Ind. Ct. App. 1995)). “The ‘right to be heard before being condemned to suffer

grievous loss of any kind … is a principle basic to our society.’” Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring)).

       Due process requires “the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Due

process is not, however, “‘a technical conception with a fixed content unrelated to time,

place, and circumstances.’” Id. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,

895 (1961)). Rather, due process “‘is flexible and calls for such procedural protections as the

particular situation demands.’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

       Where state action is alleged to have deprived an individual of due process rights, we

                                              12
balance three factors to determine whether those rights have been violated:

       (1) the private interests affected by the proceeding; (2) the risk of error created
       by the State’s chosen procedure; and (3) the countervailing governmental
       interest in supporting use of the challenged procedure. This court must first
       identify the precise nature of the private interest threatened by the State before
       we can properly evaluate the adequacy of the State’s process.

In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006) (citations omitted), trans. denied.

       Here, Birth Mother’s parental rights were terminated on January 28, 2008. She timely

appealed. This Court reversed the order that terminated Birth Mother’s parental rights on

September 29, 2008, because DCS had failed to produce sufficient evidence under the

termination statutes. That is to say, DCS moved prematurely to terminate Birth Mother’s

parental rights. And, although there is an expedited process in place to review these appeals,

see Ind. Appellate Rule 21(A), DCS nevertheless consented to the adoption of the Children

while Birth Mother’s appeal was pending. This gutted Birth Mother’s only true remedy on

appeal: a reversal of the termination order that would keep the disposition plan in place until

either DCS could prove its case for termination or Birth Mother could satisfy DCS that the

Children could be returned safely to her care.

       There is nothing in the record to suggest that DCS informed either Birth Mother or

this Court that the adoption was proceeding during the pendency of the appeal. Adoptive

Parents and the State now argue that Birth Mother’s present challenge to the adoption is moot

because its basis—the invalidity of the termination order upon appeal—was rendered of no

effect by the adoption itself. Put another way, the Appellees’ rationale suggests that this

Court’s reversal of the termination order has no effect because DCS—that is, a state

                                               13
administrative agency—took action to preclude our review of the termination order.

Although Birth Mother would have no avenue for substantive relief as a practical matter, the

State argues that this is an appropriate result.

       Yet, whatever power the State may have through DCS, an administrative agency of the

executive branch, its power does not encompass arbitrary and capricious acts—especially

where its actions cut off the constitutionally guaranteed right to an appeal that may afford

relief. See Ind. Const. Art. 7, sec. 6 (providing “in all cases an absolute right to one appeal”).

Ironically, the State argues that such an outcome serves the State’s, the Children’s, and the

Adoptive Parents’ interests in finality through a quick resolution of the Children’s placement.

       We do not agree.

       First, as previously noted, this Court has put into place an expedited process for

resolving appeals from a trial court’s order terminating parental rights. This process seeks to

serve the very interests the State now points to as the basis for holding the termination order

moot, while also ensuring the due process rights of all involved. These rights include Birth

Mother’s substantive due process rights—rights which this Court and our Supreme Court

have repeatedly stated are more dear than property rights. See Hite, 845 N.E.2d at 181. The

State now asks that we reach a conclusion that not only short-circuits this process, but

permits DCS to foreclose an individual’s procedural and substantive due process rights,

which are enforced through judicial proceedings. Such an outcome transgresses upon

separation of powers principles, which preclude any “person, charged with official duties

under one of the [three departments of government]” from exercising “any of the functions of

                                               14
another” except as expressly provided by the Indiana Constitution. Ind. Const. Art. 3, sec. 1.

        Second, the facts of this case show that the State’s chosen course of action does not

serve the interests it seeks to advance. DCS was a party to the appeal of the termination

order and consented to the Children’s adoption without notice to Birth Mother—indeed,

having had her parental rights terminated, the relevant statutory provisions did not require

DCS to provide Birth Mother with notice of the adoption proceeding. Yet DCS’s decision to

give its consent to the adoption, together with the adoption court’s grant of Adoptive Parents’

petition, resulted in Birth Mother’s petition to set aside the adoption. As of this Court’s

opinion today, the litigation has run for more than 3 ½ years without final resolution; while

some delay is attributable to Birth Mother, much of this delay is also attributable to the State,

which asked for several continuances for filing its brief before the trial court.4 None of this

serves anyone’s interest in finality.

        Additionally, were we to adopt the State’s position, we would shift the burden of

proof to the birth parents—an overwhelming burden under the circumstances, in that it would

require proof by clear and convincing evidence that the adoption was inappropriate and that


4
  More troubling than all of this is that much of the blame for this delay rests with the adoption court, which
left Birth Mother’s motion for summary judgment pending from July 29, 2009 until December 27, 2011—a
span of nearly 2 ½ years, and nearly a year after Birth Mother’s memorandum in response to the State’s trial-
court briefing. Though this period well exceeded the parameters under which a special judge could be
obtained under Trial Rules 53.1 and 53.2 (the so-called “lazy judge” rules), during oral argument counsel for
Birth Mother indicated that he was loath to antagonize a trial court before which he frequently practiced. It is
for this reason that our Supreme Court changed the procedure under which appointment of a special judge may
be sought under our trial rules. We also observe that in matters of such importance as the disposition of
children in an adoption matter, this Court has implemented expedited procedures to ensure timely
consideration of such cases. It seems to us that trial courts should similarly turn to such cases in an expedited
fashion, and we cannot reconcile the speed with which the adoption court moved to approve the adoption with
the extreme delays in its consideration of Birth Mother’s motion for summary judgment.

                                                      15
placement of children (perhaps long removed from the home) with birth parents is in the

children’s best interests. This would only magnify the burden upon Birth Mother, who,

having succeeded in reversing the termination order on appeal, would be forced to prove on

the merits that vacation of the adoption decree was in the best interests of the Children.

        We therefore conclude that DCS’s decision to consent to the adoption was an arbitrary

and capricious agency action that violated Birth Mother’s due process rights. It is true that

Indiana statutes provide for an adoption to move forward even during an ongoing appeal of

an order terminating parental rights, leaving such decisions in the discretion of our trial

courts. However, those provisions do not operate in isolation from the other provisions of

the adoption statutes, or in isolation from rights that the Indiana and United States

Constitutions guarantee our citizens.

        The State’s consent to the adoption deprived Birth Mother of her due process right to

meaningful appeal of the termination order. We are thus compelled to conclude that the

consent was wrongfully given.5 As the Children’s legal custodian, discretion to consent to

the adoption rested with DCS. DCS abused that discretion. This in turn rendered the

adoption decree void because there was no other party capable of giving consent. Coming

during the pendency of Birth Mother’s appeal, the consent and the adoption decree worked to

deprive Birth Mother of her due process right to a meaningful appeal of the termination




5
 Indeed, we note that the Deputy Attorney General who appeared before this Court acknowledged during oral
argument that the Jasper County DCS office’s consent to the adoption before the resolution of Birth Mother’s
appeal of the termination order was unusual.

                                                    16
order.

         Having reached that conclusion, we must therefore hold, however reluctantly, that the

Children’s adoption by their Adoptive Parents must be set aside because of DCS’s wrongful

conduct in this case.

         Where, as here, DCS is aware of a pending appeal of the termination of a parent’s

rights but consents to the adoption of the children covered by a termination order, it is

incumbent upon DCS to provide notice of the adoption proceedings. Holding otherwise

would permit an executive branch agency to determine the nature and extent of a parent’s

right to meaningful appellate review of a court order disposing of one of the most precious

substantive rights afforded to our citizens under the Indiana and United States Constitutions:

the right to raise one’s children.

         We do not hold, however, that the statutory scheme at issue here is unconstitutional

either facially or as applied to Birth Mother in this case. The adoption statutes, taken

together with existing constitutional guarantees, place upon DCS the burden of honoring due

process rights where it has succeeded in an action to terminate a parent’s rights and the

parent seeks review of the termination order. It is incumbent upon DCS to act in a manner

that comports with due process rights where its actions affect the substantive and procedural

rights of parents—even those whose parental rights have been terminated. This case is no

exception to that requirement.

         Because DCS’s arbitrary and capricious grant of consent to the Children’s adoption

renders the adoption decree void, on remand the trial court must grant Birth Mother’s petition

                                              17
to set aside the decree. Adoptive Mother may seek to renew her petition to adopt the

children, or DCS may reinstate its CHINS action, and, though we note that the Children have

been in Adoptive Parents’ care for nearly six years, we take no position today as to the merits

of the outcome upon remand.

                                         Conclusion

       The State’s consent to the adoption of the Children was arbitrary and capricious and in

derogation of Birth Mother’s procedural due process right to a meaningful appeal of the

termination order. The adoption decree is therefore void. We do not, however, conclude that

the statutory scheme for adoption in Indiana is unconstitutional. We therefore reverse the

adoption court’s denial of Birth Mother’s petition to set aside the adoption decree and

remand this matter for further proceedings.

       Reversed and remanded.

BAKER, J., concurs.

VAIDIK, J., concurs in result with separate opinion.




                                              18
                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF THE ADOPTION,                 )
OF MINOR CHILDREN: C.B.M. and C.R.M.:             )
                                                  )
C.A.B.,                                           )
                                                  )
       Appellant-Natural Mother                   )
                                                  )
       vs.                                        )    No. 37A03-1204-AD-149
                                                  )
J.D.M and K.L.M.,                                 )
                                                  )
       Appellees-Adoptive Parents.                )
                                                  )


VAIDIK, Judge, concurring in result


       I agree with the majority that Birth Mother’s due-process rights were violated, she

should have received notice of the adoption proceedings, and the adoption decree must be set

aside. I also agree with the majority’s conclusion that the adoption statutes at issue are

constitutional. My reasoning, however, is different. I conclude that the adoption statutes

require notice of adoption proceedings to birth parents whose rights have been terminated but

who have not exhausted their appeals.


                                             19
       Birth Mother’s parental rights to her two children were terminated by a trial court in

January 2008, and she appealed. This Court reversed the termination order just eight months

later. We did so without knowledge that the children were adopted while Birth Mother’s

appeal was pending. Birth Mother also knew nothing of the adoption proceedings.

       At the heart of this case is DCS’s claim that Birth Mother received all the procedural

due process to which she was entitled—that is, DCS did not have to give Birth Mother notice

of the adoption proceedings or obtain her consent to the adoption because her parental rights

had been terminated at the trial-court level. Ind. Code §§ 31-19-2.5-4(4), 31-19-9-8(a)(8).

Because Birth Mother had a fundamental, substantive right to the care and custody of her

children, In re C.G., 954 N.E.2d 910, 916-17 (Ind. 2011) (citing Mathews v. Eldridge, 424

U.S. 319 (1976)), and she had not exhausted all of her appellate remedies when the adoption

proceedings were initiated, her due-process rights were violated.

       Birth Mother challenges the constitutionality of Indiana’s adoption statute, particularly

its notice and consent provisions. “When an appellant challenges the constitutionality of a

statute, we presume that the statute is constitutional until that presumption is overcome by a

contrary showing.” Studler v. Ind. Bureau of Motor Vehicles, 896 N.E.2d 1156, 1159-60

(Ind. Ct. App. 2008). The party challenging the statute’s constitutionality bears the burden of

proof, and all doubts will be resolved against that party. Id. “The party must demonstrate

that no set of circumstances exists that would make the statute constitutional.” Id. (citing

Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). If a statute may be construed to



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support its constitutionality, we must adopt that construction and find the statute to be

constitutional. Id.

        Indiana Code section 31-19-2.5-4(4) provides that “notice of the pendency of the

adoption proceedings does not have to be given to . . . a person whose parental rights have

been terminated before the entry of a final decree of adoption.” The relevant consent

provision, Section 31-19-9-8(a)(8), states that a parent need not consent to the adoption of

her child if “[T]he parent-relationship has been terminated under IC 31-35 . . . .” Because we

presume these statutes to be constitutional, I would construe their notice and consent

exemptions to apply only when a parent’s rights have been terminated as a final matter—

after exhaustion of all appellate remedies. This construction protects a parent’s substantive

due process right to the care and custody of her children and, by preserving notice and

consent, affords an opportunity to be heard at a meaningful time and in a meaningful way.

        Reading the statutes in this manner does not preclude a trial court from granting an

adoption petition when an appeal of a termination order is pending. See Ind. Code § 31-11-

19-6. If a birth parent is notified of adoption proceedings, she may consent to the adoption.6

Or a trial court may determine that the parent’s consent is not required. See Ind. Code § 31-

19-9-8(a)(11). In either instance, the trial court may exercise its discretion and grant an

adoption petition despite a pending appeal. The corresponding section of the termination




        6
          Section 31-35-6-4(a)(2) of the termination statute provides that a parent need not give consent when
their rights are terminated by a juvenile or probate court. However, I would read this statute to also refer to
termination as a final matter, after exhaustion of a parent’s possible appellate remedies.

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statute also provides that this may occur. See Ind. Code § 31-35-6-3. So long as a parent is

given notice of these adoption proceedings, however, such a decision would not run afoul of

that parent’s due-process rights.

       Birth Mother has a substantive due process right to the care and custody of her

children. While I conclude that the provisions of the adoption statute challenged here are

constitutional, I reach this conclusion by reading the statute to excuse notice of adoption

proceedings only when a parent’s rights have been terminated as a final matter through

exhaustion of all appellate remedies. Birth Mother’s children were adopted without notice to

her before she had exhausted these remedies. As a result, her due-process rights were

violated, and the adoption decree is void. See In re Adoption of L.D., 938 N.E.2d 666, 669

(Ind. 2010) (citing Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998)).




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