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Visitation-adoption agreement not allowed

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State law doesn't allow for post-adoption visitation that's contingent upon a voluntary termination of parental rights, the Indiana Supreme Court has ruled.

In In the Matter of the Termination of the Parent-Child Relationship of M.B. And S.B. (Children);T.B. (Mother) v. Indiana Department of Child Services, No. 34S02-0904-JV-147, the justices agreed mother's parental rights remain terminated; however, they reversed termination of her post-adoption visitation rights at a review hearing the mother wasn't notified of. The court remanded to the trial court with instructions that should the state continue to seek termination of mother's visitation rights, the court consider the request at a hearing that meets state requirements. Justice Theodore Boehm issued his separate opinion that concurred with the result.

The case involves a mother's relationships to two children born respectively in March 2000 and June 2002, and were later removed from the mom's custody in August 2002 after she was arrested and jailed on drug charges. No other suitable family members could care for the children. After about a year-and-a-half following the mother's release in October 2005, the state petitioned that her parental rights be terminated involuntarily because she hadn't found adequate housing or employment, or complied with the court orders to get drug treatment.

Though the mother initially disputed the allegations, she later agreed to voluntarily give up her parental rights. Her attorney drew up a form that stipulated the mother consented to giving up her parental rights "subject to the Court granting post-adoption privileges and the adoptive parents consenting to post-adoption contact" between the mother and the children.

The court allowed it and adoption followed, and the mother visited with the children for about two hours every two weeks at first. A three-month CHINS periodic review hearing was conducted but the mother and her attorney weren't notified; the state requested the mother's visitation rights be terminated based on their interference with the children's bonding with the adoptive family. The court terminated those rights, and then told the mother about this for the first time during her regularly scheduled visitation two days later that it would be her "goodbye visit," according to the court records.

After that, the mother moved to set aside the voluntary termination of her parental rights, which the trial court denied. She appealed and the Court of Appeals affirmed the trial court's denial last year.

In deciding the issue on transfer, the justices reversed the trial judge's decision but didn't grant the mother full restoration of her parental rights. Instead, the court determined that she is entitled to a termination hearing because she hadn't received adequate notice.

"Conditioning the voluntary termination of parental rights on continuing post-adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted," Justice Frank Sullivan wrote, saying that it's inconsistent with the state's open adoption statutes and overrides the authority provided by Indiana Code Section 31-19-16-2.

In his separate opinion, Justice Boehm wrote that he would have treated this issue as a matter of contract - one that involved her termination consent but also contained a written condition that violated several state statutory provisions.

"In short, I do not agree that Mother's written consent is enforceable, but in this case she clearly waived any right to assert a bulletproof right to visitation, and the termination is no longer open to question," he wrote.

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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