K.F. v. B.B. Termination: Adoption Agency v. B.B. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 25 2020, 10:21 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Michael H. Michmerhuizen Justin Harrison
Cathleen M. Shrader Bloomington, Indiana
Fort Wayne, Indiana
Beth Friedman Kirk
Shannon L. Robinson Bloomington, Indiana
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.F., et al., March 25, 2020
Appellants, Court of Appeals Case No.
19A-AD-2162
v. Appeal from the Monroe Circuit
Court
B.B., et al., The Honorable Stephen R. Galvin,
Appellees. Judge
Trial Court Cause Nos.
53C07-1905-AD-50, 53C07-1906-
JT-316
Termination:
Adoption Agency,
Appellant,
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v.
B.B., et al.,
Appellees.
Altice, Judge.
Case Summary
[1] This is a consolidated appeal of two cases that were tried together: the adoption
of an infant born on June 1, 2019, and a sister case terminating the biological
parents’ parental rights as to the child. The appellants, K.F. and R.H.,
(adoptive parents) appeal the trial court’s decision that invalidated B.B. (Father)
and J.A.P.’s (Mother) (collectively, birth parents) consents to their child’s
adoption. The adoptive parents seek to set aside the judgment, claiming that
their attorney should have recused himself because he was a potential witness at
trial and that the birth parents failed to demonstrate that their consents to the
adoption were not knowing and voluntary. Heartland Adoption Agency
(Heartland) asserts that the judgment must be reversed because the evidence
established that the birth parents’ consents were knowing and voluntary as a
matter of law and that the trial court erred in denying its motion for summary
judgment.
[2] We affirm.
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Facts and Procedural History
[3] The birth parents began a romantic relationship with each other in March 2017.
At the time, Father was sixteen years old and Mother was fourteen years old.
Several months later, Mother became pregnant and told her mother
(Grandmother) about it. Grandmother permitted Mother to withdraw from
high school and continue online study. The couple’s son was born on February
10, 2018, and Mother again became pregnant in August of 2018.
[4] Mother contemplated adoption from the outset of the second pregnancy. She
did not initially tell Grandmother of the pregnancy because she was concerned
about her reaction. Father, however, informed his mother (Ruby) of the
second pregnancy, and she suggested that the couple consider placing the child
for adoption because of the couple’s financial hardships.
[5] On May 16, 2019, Father contacted attorney and owner of Heartland, Don
Francis, who was a close family friend, about a possible adoption. Francis had
previously assisted Father’s family with various legal issues over the years.
When the two met, Francis handed Father a packet of adoption-related
materials and forms from Heartland that included an adoption plan and various
forms for Mother to sign. They also discussed Mother’s emancipation
possibilities. At that time, Father believed that Francis was working on the
couple’s behalf. Although Mother had not met Francis, she signed and dated a
one-page adoption plan and a “Mother’s Notice of Intent to Relinquish
Parental Rights and Notice of Intent to Consent to Adoption” on May 16,
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2019. Appellant’s Appendix at 82-84. Mother acknowledged in the plan
document that she had arranged for the child’s adoption.
[6] The birth parents met with Francis on May 21, 2019, to obtain additional
information about the adoption process and Mother’s emancipation. Mother
told Francis that she did not want Grandmother to know about the baby or the
adoption because of concern over her reaction. Thereafter, Grandmother
signed an emancipation document that Francis had prepared. Francis set up
medical appointments for Mother throughout the pregnancy and he attended
some of those appointments. Francis also continued to advise the birth parents
about the emancipation process and Medicaid eligibility, and he offered to
obtain counseling for Mother. Over a sixteen-day period, Francis had supplied
the birth parents with nearly fifteen forms to complete and sign.
[7] The adoptive parents were married on November 11, 2017, after dating for
about six years. The couple had been pursuing adoption options for some time
and were certified foster parents. The adoptive parents paid Francis a total of
$41,000 to complete an adoption for them.
[8] In late May 2019, Francis contacted them about meeting the birth parents.
Because the adoptive father was working, the adoptive mother and her sister-in-
law travelled to Bloomington to meet the birth parents and their first child. The
birth parents told them that they wanted to place the baby for adoption because
of financial issues and the difficulty they would have in supporting an
additional family member.
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[9] On the day after Memorial Day, the adoptive parents drove to Bloomington to
attend a doctor’s appointment with Mother. Francis met them in the parking
lot of the physician’s office, and he had prepared a form entitled “Father’s
Consent to Termination of Parental Rights and Consent to Adoption” for
Father to sign. Transcript Vol. V, Exhibit P. The adoptive father overheard
Francis tell Father that the purpose of the document was to terminate the birth
father’s rights as a father. Father signed the document and acknowledged in the
consent form that he was not under “undue influence, duress, or improper
pressure in signing the consent; he had “carefully considered” the reasons for
adoption, he was aware that once he signed, he had “no legal claim” to the
child, the document was irrevocable, and he understood that attorneys Francis
and Michelle Domer represented the adoptive parents and not him, and that he
had the right to consult with an attorney. Transcript Vol. I at 5, Exhibit P.
Notwithstanding these terms, Francis told Father that “they could stop [the
adoption] at any time.” Transcript Vol. III at 82-83. Francis did not advise
Father about the consequences of signing the document; nor did he tell them
that they could seek independent legal counsel. Father’s consent form was filed
with the trial court on May 29, 2019, as an attachment to the adoption petition.
[10] Mother gave birth to the child on June 1, 2019, with Father and the adoptive
parents present at the hospital. Following the delivery, the adoptive mother
told Father that the baby was the birth parents’ and that if they were having
second thoughts about the adoption it was fine, they would not be mad, but
they needed to let them know. Father could not recall all of the conversation,
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but he admitted that he would not have put the adoptive parents through the
process had he not intended for the adoption to proceed. At the time, no one
expressed any reservations or doubts about continuing with the adoption.
Several hours after the birth, however, Mother realized that it was “time to
hand [the baby] over but [she] didn’t want to.” Transcript Vol. II at 135. Mother
said that the nurses were telling her she was doing a really nice thing, but she
“wanted somebody to tell [her] I think you should . . . think about it more.” Id.
at 136.
[11] Father contacted Francis about signing additional paperwork so the baby could
leave the hospital with the adoptive parents. Francis and Domer arrived at the
hospital, and the birth parents executed a consent for the child’s immediate
placement. Shortly thereafter, a clinical social worker, Kathryn Boeck,
interviewed Mother and Father for about fifteen minutes regarding how they
felt about proceeding with the adoption and whether they felt coerced. Boeck
found Mother to be pleasant and alert, and Mother volunteered that she did not
feel any pressure about moving forward with the adoption.
[12] The couple volunteered to Boeck that “they did not have the means to support
the child in order to give [the baby] a good life,” and Mother believed that the
adoption was in the child’s best interests. Id. at 250. Mother told Boeck that
she thought it was the best thing for the child and she wanted to help other
people. Boeck’s notes recited that both birth parents “are in agreement with
adoption and [the birth mother] does not feel coerced and is not under the
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influence of medication that would impair her judgment.” Transcript Vol. III at
2-3, 5.
[13] When Francis and Domer returned to the hospital room, Mother signed a
“Relinquishment of Custody” and a “Consent to Termination of Parental
Rights and Consent to Adoption.” Id. at 2-5, 27. Mother agreed in writing that
she was not subject to undue influence, duress, or pressure from her family or
friends; that “[she consented] to the adoption of [her] baby boy born June 1,
2019;” and that she believed the adoption to be in the best interests of her baby
and family; that she understood that upon execution she had no legal claim to
the child and the consent was irrevocable; that the consent was permanent and
could not be revoked; and that she understood Francis and Domer were not her
attorneys and were attorneys for the adoptive couple. Transcript Vol. V, Exhibit
1. Just above her signature was language stating, “[t]his termination of
parental rights and consent to adoption was executed voluntarily and
knowingly. I understand this document will be filed with the court and is
irrevocable.” Id.
[14] A hospital nurse authorized the baby’s discharge the following day. Prior to the
release, Grandmother arrived at the hospital and realized that Mother had the
baby and had authorized the adoption. Grandmother was very angry and
emotional about Mother’s decision to allow the adoption.
[15] The baby and the adoptive parents left the hospital together approximately
thirty-seven hours after the birth. When the birth parents left the hospital,
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Father attempted to contact Francis because he and Mother wanted the baby
returned to them. Father believed that Francis could—and would—stop the
adoption at any time. Moreover, Mother remembered Francis telling her that
she had thirty days after she signed the forms to withdraw her consent, although
it would be “hard and difficult.” Transcript Vol. II at 139-42.
[16] On June 3, 2019, Father texted Francis stating, “hey don . . . we can’t do it don
please fix this . . . do please call me. . . .” Transcript Vol. V at 239. That same
day, the birth parents submitted a letter to the court, seeking to withdraw their
consents. Francis texted Father on June 8, indicating that he was “not mad”
and that he needed to know how Mother and Father wanted to proceed. Id. at
241. Father responded that he wanted the adoption revoked “and custody
[returned] to us.” Id. Francis did not answer, and the trial court appointed
counsel for the birth parents. Following a hearing, the trial court awarded
temporary custody to the adoptive parents and set the matter for trial.
[17] Thereafter, Heartland petitioned for termination of parental rights, and Mother
contested the adoption and sought to withdraw her consent. Heartland filed a
motion for summary judgment, seeking a determination that the birth parents’
consents were voluntary as a matter of law. Father filed an affidavit in
opposition to the motion for summary judgment averring, among other things,
that
33. I executed the Consent on May 23, 2019, because [Francis]
recommended that I do so, because I thought [Mother] wanted
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the adoption, and because I was concerned about supporting two
children financially based on my income.
...
41. [Mother] and I immediately regretted that we let [the baby]
leave the hospital without us.
42. I realized that [Mother] and I were not communicating to
each other how much we both wanted to avoid the adoption and
raise [the baby] together.
Transcript Vol. V, Exhibit N. The trial court denied Heartland’s motion for
summary judgment and the adoption and termination matters were
consolidated for a two-day trial that commenced on August 15, 2019. Francis
and Domer represented the adoptive parents and Heartland throughout the
proceedings.
[18] Before and during the hearing, all parties were aware that Francis could be a
potential witness in the case. Nonetheless, the adoptive parents did not object
to Francis’s representation. At one point during cross-examination, Francis
challenged a statement that Mother made about what he had allegedly told her
about the adoption process. There were other occasions where Francis sought
to interject his comments into the record, yet the few objections regarding
Francis’s comments were overruled and there was no further inquiry by the
parties or the trial court about a potential conflict of interest with regard to
Francis.
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[19] Although Francis’s co-counsel was at the trial, she had not entered an
appearance for the adoptive parents. Francis acknowledged to the trial court
that his co-counsel would enter an appearance for the adoptive parents and
“continue on” if he had “to get up as a witness.” Transcript Vol. II at 4. As
Francis was never called as a witness, he continued his representation of the
adoptive parents with no objection to that representation throughout the
remainder of the trial.
[20] Mother presented the testimony of Peter Finn, a professor in Indiana
University’s Department of Psychological and Brain Sciences. Dr. Finn was
qualified as an expert regarding an individual’s decision-making process from
early adolescence through middle adulthood. Dr. Finn testified that
adolescents are more impulsive than adults and are sensitive to “social
evaluation” by others. Id. at 181-82.
[21] Dr. Finn had interviewed Mother prior to trial and found the following factors
germane to the issue of Mother’s consent: emancipation, ambivalence, and
Mother’s belief that Francis was assisting her throughout her pregnancy and the
adoption process. Dr. Finn also testified that Mother was likely pressured and
was susceptible to undue influence from Grandmother concerning her placing
the child for adoption.
[22] Following the hearing, the trial court issued an order on September 16, 2019,
denying both the adoption and termination of parental rights petitions. The
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trial court’s findings of fact and conclusions of law provided in relevant part
that
8. [The birth parents] were ignorant of the full import and
consequences of signing the consents for adoption. They did not
understand that the consents, once signed, were irrevocable and
final. [The birth parents] both believed that Mr. Francis was
their attorney. They believed he was acting on their behalf and
protecting their interests. Based on statements by Mr. Francis,
both believed at the time of signing that the adoption could be
stopped prior to filing. . . .
9. [The birth parents] both testified that Mr. Francis created the
impression that he was their attorney and was representing them
in the adoption. Mr. Francis was a long time, trusted friend of
[Father’s] mother and father. He was the best man in [Father’s]
father’s wedding. [Father] had known him all his life. [Francis]
drafted an Agreed Entry of Emancipation for [Mother]. He
offered to guide [the birth parents] through the adoption process.
Crucially, he never told them that he was not representing them
and that he was representing the potential adoptive parents.
10. Through his actions, Mr. Francis created and confirmed the
false impression that he was acting as the attorney for [the birth
parents]. He failed to adequately disclose the fact that he was
representing [the adoptive parents] to the [birth parents].
11. When [Father] handed his signed consent to Mr. Francis on
May 23, 2019, he was under the impression that he was
providing this document to his own attorney, not delivering an
irrevocable Consent to adoption to opposing counsel. After
[Father] signed the Consent, Mr. Francis told [Father] that if he
wanted to withdraw his consent, he should let Mr. Francis know.
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12. [Mother] believed that Mr. Francis was her attorney until
the day following the birth of the Baby. She first learned that he
might not be her attorney when Mr. Francis was about to arrive
at the hospital with the Consent for adoption. [Mother] heard a
nurse say ‘the other people’s lawyer is going to be here soon.’ At
that time, [Mother] had no opportunity to speak with counsel of
her own choosing. Mr. Francis did not offer to help her obtain
counsel.
l3. [I]n the circumstances presented in this case, it is clear that
[Mother] should have been informed of her right to speak with an
attorney representing her interests. Mr. Francis was aware that
[Mother] was only 16 years of age. She was the victim of
domestic violence. She had been effectively abandoned by her
mother. She quit school in her sophomore year. That she did
not adequately read a four-page legal document without having
that document explained to her is hardly surprising. Mr. Francis
did not attempt to review the document with her or discuss its
contents. Mr. Francis did not offer to aid [Mother] in obtaining
an attorney. Indeed, he never told her that he was not
representing her.
...
16. Mr. Francis was aware that [Father] saw him as a trusted
family adviser. When Mr. Francis told [Father] that he could
help them, it was reasonable for [the birth parents] to infer that
he would be representing them in the adoption. Mr. Francis did
not read or discuss the consent documents with [Father] or
[Mother] prior to execution of the documents.
l7. Prior to [Mother] signing the Consent, Mr. Francis told
[Mother] that she would have 30 days to think about it, but it
would be hard to get the child back. [Mother] relied on this
assertion in making her decision to sign the consent. She
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believed that she had 30 days to consider her decision and to
withdraw her consent. She also believed that if the paperwork
was still in Mr. Francis’ possession, the adoption had not been
completed.
18. Mr. Francis’ statement was not an accurate reflection of the
true burden that [Mother] would bear in attempting to withdraw
her consent. . . . [T]he person seeking to withdraw the consent
bears the burden of proof by clear and convincing evidence. IC
31-19-10-0.5 and 1C 31-19-10-6. Withdrawal of consent is not
simply ‘difficult.’ Withdrawal of consent would include a
hearing at which [Mother] would be forced to prove by clear and
convincing evidence, the Baby should be returned to her. An
attorney acting in [Mother’s] interests would not present this
alternative to her as Mr. Francis presented it.
l9. Considering her age, the circumstances, and Mr. Francis’
assertion that she had 30 days to withdraw her consent, it is not
surprising that [Mother] did not read the document in full.
20. On May 23, 2019, Mr. Francis handed the Consent to
[Father] without explanation during [Mother’s] prenatal visit to
the doctor. . . . Mr. Francis did not have the expectation that
[Father] had fully read and understood the document he was
signing. After [Father] had signed the document, and before the
birth of the Baby, Mr. Francis told [Father] just to tell him if
[Father] wanted to withdraw his consent.
21. Based on Mr. Francis’ statements, [Father] believed that Mr.
Francis was his attorney and would not file the adoption if
instructed not to do so. Beginning on the evening of June 2,
2019, [Father] made frantic attempts to contact Mr. Francis to
prevent him from filing the adoption.
...
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24. Given the totality of the circumstances, it is clear that [the
birth parents] did not make informed, voluntary decisions to
consent to the adoption of their child. [The birth parents] have
proven, by clear and convincing evidence, that their consents
were not voluntary. Therefore, the Consents to adoption are
invalid.
...
The consents executed by [Father] to the termination of the
parent-child relationship with [the baby] are not voluntary and
are invalid.
...
3. Mr. Francis told [Father] that if [Father] wished to withdraw
his consent, he should just let Mr. Francis know. This statement
was made after [Father] had signed the Consent to terminate his
parental rights. IC 31-35-1-6(c)(4) provides that consent to the
termination of the parent-child relationship is not required if the
child’s biological father consents to the termination of the parent-
child relationship before the birth of the child if the consent meets
certain requirements. The statute further states that a child’s
father who consents to the termination of the parent-child
relationship under this section may not challenge or contest the
child’s adoption or termination of the parent-child relationship.
Mr. Francis’ statement to [Father] was not an accurate statement
of the applicable law and was made when [Father] believed that
Mr. Francis was his attorney.
[23] Appellant’s Appendix Vol. II at 24-37. The trial court ordered the baby returned to
Mother by late afternoon on September 23, 2019. The adoptive parents and
Heartland filed notices of appeal, and on September 19, 2019, our motions
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panel granted a stay of the trial court’s order requiring the adoptive parents to
return the child to the birth parents. This appeal ensues.
Discussion and Decision
I. The Adoptive Parents’ Contentions—Legal Representation
[24] The adoptive parents first contend that the judgment must be set aside because
the trial court erred in permitting Francis, who was a potential and material
witness at trial, to continue to represent them as their attorney. The adoptive
parents assert that the trial court was obligated to order a mistrial sua sponte.
Thus, the adoptive parents claim that they did not receive a fair trial.
[25] We initially observe that the adoptive parents did not object to Francis’s
representation at any time before or during trial. Thus, the issue is waived.
Indiana Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App.
2015) (holding that the general rule is that an argument or issue presented for
the first time on appeal is waived for the purposes of appellate review).
[26] Waiver notwithstanding, we note that the adoptive parents’ argument is
premised on Ind. Professional Conduct Rule 3.7, which provides:
(a) A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
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(3) disqualification of the lawyer would work substantial
hardship on the client.
(b) A lawyer may act as advocate in a trial in which another
lawyer in the lawyer’s firm is likely to be called as a witness
unless precluded from doing so by Rule 1.7 or Rule 1.9.
[27] In the circumstances here, Francis was never a witness, never sought to be
called as a witness, and no one attempted to disqualify him as a witness.
Moreover, five attorneys and the trial judge were aware of a potential concern
regarding the need for Francis’s testimony months before the trial commenced.
No objection was made regarding Francis’s continued representation of the
adoptive parents. The trial court could not have determined whether any
testimony that Francis might have provided related to an uncontested issue
under Prof. Cond. R. 3.7(a)(1), because none was ever offered. That said, the
importance of any testimony that Francis might have offered is unclear and
only speculative.
[28] Finally, we note that in family law matters, a fair trial generally requires
“notice, an opportunity to be heard, and an opportunity to confront witnesses.”
See D.G. v. S.G., 82 N.E.3d 342, 347 (Ind. Ct. App. 2017), trans. denied.
Additionally, the trial court is afforded wide discretion in determining whether
a violation of the Rules of Professional Conduct is so improper that a trial is
rendered unfair. Jackson v. Russell, 498 N.E.2d 22, 32 (Ind. Ct. App. 1983),
trans. denied. Contrary to the adoptive parents’ contention that they were
denied a fair trial, it is clear that they were able to confront adverse witnesses,
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present evidence, and advance arguments at trial. Francis indicated to the trial
court that Heartland’s counsel would assume the representation of the adoptive
parents if Francis needed to testify. Moreover, Heartland’s counsel vigorously
cross-examined the birth parents and other witnesses.
[29] The adoptive parents were not denied legal counsel of their choice, and they
have failed to show that the absence of any testimony by Francis had any
bearing on the fairness of their trial. In short, the adoptive parents have failed
to show that Francis’s continued representation prejudiced them in any way.
For all these reasons, the adoptive parents’ claim fails.
III. Heartland’s Claim; Summary Judgment
[30] Heartland argues that the trial court erred in denying its motion for summary
judgment with regard to Father’s termination of parental rights. Heartland
maintains that the designated evidence established as a matter of law that
Father executed an irrevocable consent to the termination of the parent-child
relationship, and that Father’s consent to the adoption “spoke for itself.”
Appellant’s Brief at 28.
[31] When reviewing a grant or denial of summary judgment, we stand in the shoes
of the trial court. Murray v. Indianapolis Pub. Sch., 128 N.E.3d 450, 452 (Ind.
2019). We ask whether there is a genuine issue of material fact, and whether
the moving party is entitled to judgment as a matter of law. Goodwin v. Yeakle’s
Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). We consider only
those materials properly designated pursuant to Ind. Trial Rule 56 and construe
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all factual inferences and resolve all doubts in favor of the non-moving party.
Young v. Hood’s Gardens, Inc. 24 N.E.3d 421, 424 (Ind. 2015). A trial court’s
grant of summary judgment is clothed with a presumption of validity, and the
party who lost in the trial court has the burden of demonstrating that the grant
of summary judgment was erroneous. Id. This court will affirm upon any
theory or basis supported by the designated evidence. Poiry v. City of New Haven,
113 N.E.3d 1236, 1239-40 (Ind. Ct. App. 2018).
[32] In response to Heartland’s motion for summary judgment, Father averred in his
affidavit that
--[T]here were a number of instances where Francis served as a
trusted advisor for Father and his family;
--Father did not seek assistance of independent counsel due to
Francis’s influence;
--he was not aware of any potential conflicts of interest that
Francis might have been subjected;
--he did not fully understand the consent forms he signed;
--he did not understand that when he signed the documents he
was given by Francis, that there would be nothing he could do
from that point forward to avoid the adoption;
--he signed the consent form because Francis recommended that
he do so because he believed that Mother wanted him to do so,
and because he was concerned about providing for two children.
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Transcript Vol. V at 15-18.
[33] A facially valid consent to the termination of parental rights is not effective if
the execution of the consent was not provided voluntarily. In re M.R., 728
N.E.2d 204, 209 (Ind. Ct. App. 2000), trans. denied. In this case, while
Heartland maintains that Father’s affidavit eliminates any questions of fact
regarding his motivation for consenting to the termination of his parental rights,
the averments reflect otherwise. Father’s affidavit creates genuine issues of
material fact as to whether Father’s execution of the consent forms were
voluntary or whether they were executed as a result of undue influence,
misunderstandings regarding Francis’s role in the case, or mistakes of fact as to
the effect of the alleged consent. When viewed in the light most favorable to
Father, the designated evidence indicates that there were genuine issues of fact
regarding the voluntariness of Father’s consent to the termination of his
parental rights, as well as his consent to the adoption. As a result, the trial
court properly denied Heartland’s motion for summary judgment.
IV. The Birth Parents’ Consents and Termination of Parental Rights
[34] The adoptive parents and Heartland both argue that the trial court erred in
determining that the birth parents’ consents and Father’s termination of
parental rights were not voluntary and that its conclusion was not supported by
the evidence presented at trial.
[35] In general, when a trial court enters findings of fact and conclusions of law
pursuant to Ind. Trial Rule 52(A) as it did here, we employ a two-tiered standard
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of review. First, we determine whether the evidence supports the findings and
then we will determine whether the findings support the judgment. In re
Adoption of H.N.P.G., 878 N.E.2d 900, 903-904 (Ind. Ct. App. 2008), trans.
denied. We will not set aside the findings or the judgment unless they are
clearly erroneous. Id. Findings of fact are clearly erroneous if the record is
devoid of any evidence or reasonable inferences to support them, while a
judgment is clearly erroneous when it is unsupported by the findings of fact and
the conclusions relying on those findings. Id. Additionally, we will not reweigh
the evidence but instead will examine the evidence most favorable to the trial
court’s decision together with reasonable inferences drawn therefrom to
determine whether sufficient evidence exists to sustain the decision. Id.
[36] In addressing the appellants’ contentions, we note that the Adoption Code is
construed strictly in favor of the rights of biological parents. In re Adoption of
A.S., 912 N.E.2d 840, 848 (Ind. Ct. App. 2009), trans. denied. That said, Ind.
Code § 31-19-9-2(a) sets forth the requirements for the valid execution of a
consent to adoption after the birth of a child. The statute provides that
“consent to adoption may be executed at any time after the birth of the child,
either in the presence of: (1) the court; (2) a notary public or other person
authorized to take acknowledgements; or (3) an authorized agent of (A) the
department; or (B) a licensed child placing agency.” Additionally, for consent
to adoption to be valid, the consent must be a “voluntary consent to
termination of all parental rights.” In re Adoption of M.P.S., 963 N.E.2d 625,
629 (Ind. Ct. App. 2012). It must be “an act of the parent’s own volition, free
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from duress, fraud, or other consent-vitiating factors,” consent must be made
with “knowledge of the essential facts.” Bell v. A.R.H, 654 N.E.2d 29, 32 (Ind.
Ct. App. 1995). A consent to adoption may be withdrawn not later than thirty
days after the consent to adoption is signed if: 1) the court finds, after notice
and opportunity to be heard afforded to the petitioner for adoption, the person
seeking the withdrawal is acting in the best interest of the person sought to be
adopted; and 2) the court orders the withdrawal. I.C. § 31-19-10-3(a). The
person seeking to withdraw the consent bears the burden of proof by clear and
convincing evidence. I.C. § 31-19-10-0.5 and –6. We will not disturb the ruling
in an adoption case unless the evidence leads to only one conclusion and the
probate court reached an opposite conclusion. In re Adoption of H.N.P.G., 878
N.E.2d at 903.
[37] A companion statute, Ind. Code § 31-35-1-6, sets forth the requirements for the
valid execution of a consent to voluntary termination of parental rights:
(a) Except as provided in subsection (c), the parents must give
their consent in open court unless the court makes findings of fact
upon the record that:
(1) the parents gave their consent in writing before a
person authorized by law to take acknowledgments; and
(2) the parents were: (A) advised in accordance with
section 12 of this chapter; and (B) advised that if they
choose to appear in open court, the only issue before the
court is whether their consent was voluntary.
(b) If:
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(1) the court finds the conditions under subsection (a)(1)
and (a)(2) have been met; and
(2) a parent appears in open court; a court may consider
only the issue of whether the parent’s consent was
voluntary.
[38] In support of the claim that the birth parents executed valid and irrevocable
consents, Heartland and the adoptive parents rely on Bell, where the mother
petitioned to withdraw her consents to the adoption of her four children. 654
N.E.2d at 31. The trial court denied the petition, and she appealed, claiming
that her consent had not been voluntary. Id. at 32. A panel of this court
affirmed, finding that the evidence did not lead unerringly to a conclusion
opposite the one that the trial court had reached. The evidence revealed that
the adoption case worker specifically informed the mother that her adoption
consents would be final. Id. at 33. Moreover, the mother, who was twenty-
seven-years old waited nearly seven months to contest the adoption. Id.
[39] Apart from the fact that the instant case is an appeal from an adverse judgment,
the circumstances here differ substantially from those in Bell. The evidence in
this case established that near the end of Mother’s pregnancy, Father consulted
with his mother and informed her for the first time that Mother was pregnant.
His mother directed him to talk with Francis, who was a long-time family
friend who had provided a variety of legal services to Father’s family through
the years.
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[40] Francis offered assistance to the birth parents and immediately gave the birth
parents various documents to sign that would begin the adoption process.
Frances handed them nearly fifteen different documents to sign over a sixteen-
day period leading up to the child’s birth. When Francis presented Father with
the consent form, Father believed that he could withdraw his consent in light of
the assurances that Francis had given him. Although Father signed the consent
form, Francis did not advise him of the consequences of executing that
document.
[41] Francis consistently provided advice to the birth parents about the adoption
procedure and offered to arrange for financial assistance for them. Francis
scheduled medical appointments for Mother, accompanied her to several of
them, and instructed the birth parents about becoming eligible for Medicaid.
Francis advised the birth parents about achieving emancipation for Mother, and
he drafted an agreed entry of emancipation. Francis also arranged meetings
between the adoptive and birth parents and instructed Father about how to act
while he was in those meetings, including a text that stated “[d]on’t be afraid to
let them take you to dinner or go play in the park.” Transcript Vol. V at 232. He
encouraged Mother to invite K.F. to her medical appointments and offered to
arrange counseling sessions for Mother.
[42] Although Francis’s representation of the adoptive parents was stated on the
consent forms, he did not provide any explanation of the consequences of that
representation to the birth parents. Moreover, Francis never told the birth
parents that they could or should consult with independent legal counsel. The
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birth parents believed throughout the adoption process that Francis was
representing them.
[43] Francis also misadvised Father that if he “wanted to stop [the adoption] at any
time, we could.” Transcript Vol. III at 83. Mother testified that Francis told her
and Father that “we could get him back, but it would just be hard and difficult
to get him back.” Transcript Vol. II at 139. The birth parents consistently relied
on Francis to instruct them about what to do and how to proceed during the
adoption proceedings. Rather than directing Father to an attorney who could
advise Father about all available options, Francis steered the birth parents
toward adoption. Francis’s relationship with Father’s family rendered him
particularly influential.
[44] The evidence further established that when Mother signed the consent forms
and other documents at the hospital, she “felt pressured and just wanted to stop
feeling that way.” Id. at 142. Mother also felt that “everyone was . . . on the
opposite side of [her].” Transcript Vol. III at 47. Additionally, Father’s actions
after the child was born demonstrate that he did not understand the
ramifications of his signatures on the forms because he believed that Francis
could stop the adoption.
[45] Dr. Finn testified at trial that adolescents are more susceptible to undue
influence by those who may be viewed as influential, powerful, or in a position
of authority. The hospital nurses and attorneys were authority figures, and
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Mother reasonably believed that they did not want her to disappoint the
adoptive parents.
[46] We also reject the adoptive parents’ reliance on Matter of Adoption of Hewitt, 396
N.E.2d 938 (Ind. Ct. App. 1979), where we affirmed the trial court’s denial of
an eighteen-year-old mother’s petition to withdraw her consent. The birth
mother in Hewitt executed a consent two days after her baby was born and
sought to withdraw that consent ten days later. Id. at 939. Mother claimed that
her consent was involuntary because she had been shamed by her family and
had received the wrong advice from her obstetrician about her ability to change
her mind about the adoption. Id. at 942.
[47] In affirming the trial court, we determined that the biological mother “failed in
her burden to establish that the evidence at trial led to but one conclusion and
the court reached the opposite conclusion,” noting the high burden that must be
overcome on appeal. Id. Additionally, the biological mother did not claim that
she was ignorant of the import and/or consequences of her execution of the
consent. To the contrary, the evidence established that the biological mother
was advised on two separate occasions of the consequences of the consent and
the rights that she was relinquishing by consenting to the adoption. Id. Also,
unlike the birth mother here, who was sixteen years with a limited education,
the birth mother in Hewitt was an eighteen-year-old adult who graduated from
high school with a “B” average. Moreover, there was no suggestion in Hewitt
that the adoptive parents’ legal counsel had any pre-existing relationship with
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the biological parents, or that there was any issue about who the attorney was
representing.
[48] Unlike Bell and Hewitt, we find this court’s opinion in In re Adoption of M.P.S.,
Jr., 963 N.E.2d 625, 630 (Ind. Ct. App. 2012) instructive. In M.P.S., a panel of
this court found that a birth mother’s signed consent to an adoption without
knowledge of the essential facts was not voluntary. M.P.S. involved a mother
who executed a consent under the mistaken belief that it could later be revoked.
Id. at 629-30. Mother signed the consent in the presence of the adopting party’s
attorney, who informed her that consent was “permanent in nature” but that
the parents could “take them back within a certain period of time.” Id. at 629.
The attorney also explained that “nothing was going to be final for a period of
time” and “if there was any problems if anybody needs to change anything
contact my office or we are going to get this filed quickly and so you can also
contact the court.” Id.
[49] Based in part on these erroneous legal statements by counsel, the birth mother
challenged the voluntariness of her consent. Id. at 626. The trial court denied
her request. Id. We reversed the trial court, finding that the birth mother did
not act “voluntarily” and her alleged consent to the adoption was invalid. Id. at
632. We observed that “[e]ven if we assume that Mother’s execution of the
consent was not a product of threats and coercion, her consent is nevertheless
involuntary where she was assured it was revocable and she did not intend to
relinquish contact with her child.” Id.
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[50] Here, it was reasonable for the trial court to conclude that the birth parents’
consents in this case were not voluntary, as they both lacked critical and
necessary facts that pertained to the impending adoption. Moreover, the
evidence of overreach is readily apparent in light of the birth parents’ ages,
backgrounds, and financial difficulties. Given these circumstances, we cannot
say that the evidence led unerringly to a conclusion opposite of what the trial
court reached. Thus, we decline to disturb the trial court’s judgment.
[51] Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
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