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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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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