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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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