Family Law Case Review: In Re the Adoption of M.P.S., Jr.

Case: In Re the Adoption of M.P.S., Jr.; A.S. v. M.P.S., Sr., M.S., and An.S.
by Mike Kohlhaas, Bingham Greenebaum Doll  (thanks to Kathleen Rudis) 

HELD: The Indiana Court of Appeals held that an adoption decree should be vacated when replete with evidence of procedural error, involuntariness, and fraud upon the court.

FACTS:  Grandmother pressured Parents to relinquish custody of Child. In the summer of 2010, Mother and Father had signed documents, apparently consenting to Grandparents’ adoption of Child.  However, according to Mother, Father purportedly located the papers in Grandmother’s lockbox and destroyed them at Mother’s insistence.

In December 2010, Mother and Father went to the office of Grandparents’ attorney, and signed consents to have Child adopted by Grandparents. Grandparents’ attorney purportedly notarized the signatures; however, her notary commission had recently expired. Moreover, Grandparents’ attorney explicitly advised the Parents that they were executing consents which were revocable up until the time of the adoption hearing, but urged that revocation should take place within thirty days, if at all.

PROCEDURAL HISTORY:  In late December, 2010, Grandparents filed a petition to adopt Child, falsely claiming that they “had the care and custody of the minor child since March, 2010.” They contemporaneously filed the Parents’ consents to adoption.  Then, in early 2011, Grandparents filed a petition to accept a home study.  No criminal history document was submitted.  In February, 2011, the trial court signed two orders: one purportedly accepting a home study regarding and one setting the matter for a final hearing six days later. The distribution portion of the order named only Grandparents’ attorney.

Grandparents, Grandparents’ attorney, and Child appeared in court. Grandparents’ attorney advised the trial court that Child had been with Grandparents since his birth; Grandmother testified accordingly. The trial court verbally granted the adoption.

In late February, 2011, Mother filed a motion to correct error or, alternatively, a motion for relief from judgment.  The trial court denied the motions.  Mother claimed she was coerced by threats of physical harm, divorce, and separation from her child into signing a consent form she considered revocable.  Mother claimed that she was denied due process at each stage of the proceedings, specifically, when her consent was executed, when notice of the hearing was issued, and when the final adoption hearing was conducted.  Although she had a general expectation that an adoption hearing would be held, she received no explicit notice of the hearing.

On appeal, the Court found procedural deficiencies including the following: the consent forms were not notarized by a person having a current notary commission; Mother and Father were erroneously and repeatedly advised by Grandparents’ counsel to consider their consents freely revocable; and no documentation of lack of criminal history was submitted to the trial court despite the existence of a DCS report of substantiated child abuse by Grandfather.  Moreover, the Court found that Grandparents and their attorney falsely claimed to the trial court that the child had been in Grandparents’ care since birth.

The Court focused its consideration on whether Mother voluntarily gave consent to the adoption and whether her parental rights were terminated in a procedurally fair setting.  The Court found that for the execution of a parent’s consent to the adoption of his or her child to be valid, the consent must be a voluntary consent to termination of all parental rights.  That is, it must be an act of the parent’s own volition, free from duress, fraud, or consent-vitiating factors.

The Court found though nothing specific was stated with regard to future parenting time, it was clear that the extended family was all living together and the impression had been that Mother and Father were expecting to continue to have physical contact with Child.  In sum, the Parents, Grandparents, and Grandparents’ attorney anticipated that parental contact would survive the execution of the consents to adopt. Both Parents clearly expected live-in contact, but Mother’s expectation was ultimately not met; and, at the very least, Grandparents had promised her visitation.  Thus, the Court found Mother’s consent was involuntary where she was assured it was revocable and she did not intend to relinquish contact with her Child.  Mother signed a consent predicated upon assurances that her living arrangement with her Child would continue. She did not manifest an intention to permanently relinquish all her parental rights.

The Court concluded that the trial court lacked adequate information to support the factual conclusions incorporated in the adoption decree.  The Court ruled that the record was replete with evidence of procedural error, involuntariness, and fraud upon the court. The Court therefore concluded that Mother met her burden to set aside the adoption. Her consent was invalid as a matter of law.

OUTCOME:  The Court remanded to the trial court with instructions to vacate the adoption decree, and to comply with Indiana Code Section 31-14-13-1, which vests sole legal custody of a child born out of wedlock in the biological mother.

To view the text of this opinion in its entirety, click below:
In Re the Adoption of M.P.S., Jr.; A.S. v. M.P.S., Sr., M.S., and An.S.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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