Mother’s voluntary termination of rights reversed for lack of advisement

A Henry County mother will get the opportunity to challenge the voluntary relinquishment of her parental rights after the Indiana Court of Appeals found that she was not given a proper advisement before signing a relinquishment form.

Mother A.C. gave birth to K.E. in February 2013. Almost five years later, the Indiana Department of Child Services removed K.E. from A.C.’s home and placed her in a relative’s care after receiving a report that the child was in an environment with drug use and domestic violence.

On Nov. 17, 2017, DCS filed a petition alleging K.E. was a child in need of services, an allegation that A.C. denied. K.E. was officially adjudicated as a CHINS in June 2018, and the following December, DCS moved to change the permanency plan from reunification to adoption.

At a January 2019 hearing on that motion, A.C., represented by counsel, signed a voluntary relinquishment of parental rights form and testified that she intended to voluntarily relinquish her rights to K.E. The child’s father’s rights were later terminated, and the adoption of K.E. by a maternal cousin was pending as of June 2020.

In July 2020, the Court of Appeals granted A.C. leave to file a belated notice of appeal. Citing to In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), the appellate court wrote in a footnote that “(w)e can think of few rights more extraordinarily compelling than a parent’s Fourteenth Amendment right to establish a home and raise her children. We therefore reject DCS’s request that we dismiss Mother’s appeal.”

The issue in A.C.’s appeal was the form she signed relinquishing her parental rights — specifically, the form’s lack of an advisement pursuant to Indiana Code § 31-35-1-12(9). Judge Melissa May likened the case to Matter of D.C., 149 N.E.3d 1222 (Ind. Ct. App. 2020), reh’g denied, where a voluntary relinquishment of parental rights was reversed due to a missing advisement under I.C. 31-35-1-12(9).

I.C. 31-35-1-12(9) provides that when a parent is considering voluntary relinquishment, they must be advised that “the parents’ consent cannot be based upon a promise regarding the child’s adoption or contact of any type with the child after the parents voluntarily relinquish their parental rights of the child after entry of an order under this chapter terminating the parent-child relationship.”

In urging the appellate court to affirm the relinquishment, DCS noted that A.C. testified that she was voluntarily relinquishing her rights, and she did so during a CHINS proceeding, rather than waiting for a termination petition. Also, the department argued the advisement would’ve been premature because “there was no pre-adoptive parent(s) with whom [Mother] could have made an agreement or from whom she could have received a promise.”

“These distinctions are of no consequence because, regardless of Mother’s participation in the hearing or the timing of her voluntary relinquishment, the plain language of Indiana Code section 31-35-1-6(a) requires that parents agreeing to voluntarily relinquish their parental rights must be ‘advised in accordance with section 12 of this chapter,’” Judge Melissa May wrote Wednesday.

“DCS concedes Mother was not advised in accordance with Indiana Code section 31-35-1-12(9), and thus her voluntary relinquishment was invalid,” May continued. “Accordingly, the trial court erred in finding Mother had voluntarily relinquished her rights to Child, and we reverse and remand.”

On remand, the Henry Circuit Court must undertake additional fact-finding to determine whether A.C. received an advisement under I.C. 31-35-1-12(9).

The case is In re the Termination of the Parent-Child Relationship of: K.E. (minor child) and A.C. (mother) v. Indiana Department of Child Services, 20A-JC-1348.

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