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No partial parental right termination allowed

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Indiana law doesn't allow for partial termination of parental rights, the state's Court of Appeals has ruled in a case of first impression.

But holding that, the appellate court has upheld a Howard County judge's two-fold decision to first approve a voluntary parental-right termination agreement reserving a right for post-adoptive visitation privileges, and subsequently denying to set aside a later decision to terminate that visitation. The appellate court found that though the trial court didn't abuse its descretion in this case, the panel expressed serious concerns with what happened and noted it could present problems in the future.

"Trial courts are cautioned to refrain from approving post-termination agreements such as these in the future as they are contrary to Indiana law and are likely, under a different set of circumstances, to provide false hope to parents facing termination of their parental rights," Judge Elaine Brown wrote for the unanimous panel, reluctantly affirming the ruling from Howard Circuit Judge Lynn Murray.

In the parental termination matter involving minors M.B. and S.B., the court issued its 25-page decision today in Tiffany Black v. Howard County Department of Child Services, No. 34A02-0805-JV-437.

The case stems from a county child services petition in March 2007 for involuntary termination parental rights for Black. The natural father is deceased. Prior to a fact-finding hearing in June 2007, the mother filed a voluntary relinquishment of parental rights for each child. But she attached addendums that stipulated the terminations hinged on the court granting post-adoption privileges, such as continued contact between her and the children.

The trial court advised Black that the termination couldn't be set aside unless it was fraudulent, or that it was under duress or she wasn't competent at the time, but it accepted the submitted agreements and later that day ordered the voluntary parental rights termination. She was permitted to continue visiting with both children twice a month, until the children were placed with adoptive parents who didn't know about the visitation agreement. The child services agency later recommended visitation be terminated and the court agreed, noting it wasn't in the children's best interest. Earlier this year, the trial court denied the mother's motion to set aside the voluntary termination order in that the judge didn't abide by the terms or that it was fraudulently obtained.

In holding that partial parental right terminations don't exist in Indiana, the appellate court made it clear it finds the mother's agreement contrary to state statute.

"Either the parent-child relationship survives, or it does not," the court wrote. "Given the plain and unambiguous language of Indiana Code Section 31-35-6-4(a)(1), coupled with Indiana's strong public policy to protect the emotional well-being of children whose parents have been either unable or unwilling to provide for their basic needs over a prolonged period of time, we conclude that the Mother's addendums to the voluntary consent forms are void ab initio and thus unenforceable as a matter of law."

Her agreement was an attempt to sidestep state law and "bootstrap" otherwise impermissible conditions into a termination order, Judge Brown wrote. Allowing that to happen would tie a trial court's hands and those of any child services agency, and would discourage adoption.

"Few prospective parents would endeavor to embark on the life-changing journey of adoption knowing they could find themselves the ready prey of possible unscrupulous parents who were contractually entitled to demand post-adoption visitation and other parental privileges following a termination of the parent-child relationship," she wrote.

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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