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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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