In Re the Adoption of M.P.S., Jr. A.S. v. M.P.S., Sr., M.S., and An.S.

FOR PUBLICATION
FILED
Mar 14 2012, 9:14 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
RYAN D. BOWER CATHERINE ROIANN BROWNING
Allen Allen & Brown Browning Law
Salem, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE ADOPTION OF M.P.S., JR. )
)
A.S., )
)
Appellant, )
)
vs. ) No. 88A01-1108-AD-387
)
M.P.S., SR., M.S., and An. S., )
)
Appellees. )
APPEAL FROM THE WASHINGTON CIRCUIT COURT
The Honorable Larry W. Medlock, Judge
Cause No. 88C01-1012-AD-45
March 14, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
A.S. (“Mother”) appeals the denial of her motion for relief from judgment, wherein
she alleged fraud, duress, and lack of procedural due process in the adoption of M.P.S., Jr.,
her child with M.P.S., Sr. (“Father”), by Father’s mother and step-father (“Grandparents”).
Mother presents the sole issue of whether the trial court erred in refusing to set aside the
adoption. We reverse and remand with instructions.
Facts and Procedural History
M.P.S., Jr. (then M.P.F.) was born on March 2, 2010 to then seventeen-year-old
Mother. Father was also seventeen years old. Mother was a resident of the State of Virginia,
but gave birth in Tennessee. For the first three months following the birth, Mother, Father,
and their child resided in Virginia with Father’s father and step-mother (“Virginia
Grandparents”). During June of 2010, Mother moved to Grandparents’ home in Salem,
Indiana to live with Father.
On June 23, 2010, Mother and Father (and Grandmother, due to Father’s status as a
minor) executed a paternity affidavit in Tennessee, which was then filed with the State of
Tennessee Office of Vital Records.1 The following day, the parents were married. The name
on M.P.F.’s birth certificate was changed to M.P.S., Jr.
Mother, Father, and M.P.S., Jr. moved out of Grandparents’ home during August of
2010, and returned to the home of Virginia Grandparents. According to Mother, she had
1
According to the language printed on the form, a properly executed paternity affidavit gives rise to a
“conclusive presumption” of paternity, unless the acknowledgment is rescinded. (Pet. Ex. 1). The document
further informs the father that he has a right to petition the court for visitation or custody. In this matter,
neither parent initiated paternity proceedings.
2
encouraged Father to return to Virginia because, once the young family had moved to
Indiana, Grandmother had relentlessly pressured them to relinquish custody of their baby. In
the summer, Mother and Father had signed documents, apparently consents to Grandparents’
adoption of M.P.S., Jr., but Father purportedly located the papers in Grandmother’s lockbox
and destroyed them at Mother’s insistence.
After moving back to Virginia, the couple briefly separated. They soon reconciled
and, on November 10, 2010, Mother and Father moved back in with Grandparents. In
Indiana, they were unemployed and financially dependent upon Grandparents.
On December 15, 2010, Mother and Father went to the office of Grandparents’
attorney, Alice Bartanen-Blevins (“Bartanen-Blevins”), and signed consents to have M.P.S.,
Jr. adopted by Grandparents. Bartanen-Blevins purportedly notarized the signatures;
however, her notary commission had recently expired. She explicitly advised the young
parents that they were executing consents which were revocable up until the time of the
adoption hearing, but she urged that revocation should take place within thirty days if at all.2
Bartanen-Blevins further advised that she was acting solely as counsel for Grandparents.
On December 30, 2010, Grandparents filed a petition to adopt M.P.S., Jr., falsely
claiming that they “have had the care and custody of the minor child since March 2nd, 2010.”3
(App. 9.) They contemporaneously filed the parents’ consents to adoption. On February 1,
2
It does not appear that they were advised that a court order was required for withdrawal of consents,
consistent with Indiana Code Section 31-19-10-3, or that, pursuant to this statute, a consent to adoption may
not be withdrawn more than thirty days after the consent is signed. The consent forms do not include any
advisement of the legal effect of a signature.
3
At the post-adoption hearing, Grandmother, Mother, and Father testified consistently that M.P.S., Jr. had
resided intermittently with Grandparents.
3
2011, Grandparents filed a petition to accept a home study conducted by Brandy Sons, MSW
(“Sons”). An Indiana Department of Child Services (“DCS”) Report appears to have been
attached to the adoption home evaluation.4 No criminal history document was submitted.
On February 2, 2011, the trial court judge signed two orders: one purportedly
accepting a home study regarding M.P.S., Jr.5 and one setting the matter for a final hearing
six days later, on February 8, 2011. The distribution portion of the order named only
Bartanen-Blevins.
Father and Mother were planning a trip to Virginia, to transport one of Grandmother’s
children to Virginia to live with grandparents. The trip had been planned for February 11,
2011. On February 7, 2011, Mother heard Father and Grandmother conducting a
conversation in the bathroom (the only room of the one-bedroom home with a door); she did
not hear the details. Father came out and announced that the trip to Virginia would take
place immediately.
On February 8, 2011, Grandparents, Bartanen-Blevins, and M.P.S., Jr. appeared in
court. Bartanen-Blevins advised the trial court that M.P.S., Jr. had been with Grandparents
since his birth; Grandmother testified accordingly. The trial court verbally granted the
adoption. The next day, the trial court issued a written order finding that a home study
4
Although it is not file-stamped and does not have an “Attachment” designation, a DCS Preliminary Report
of Alleged Child Abuse or Neglect appears in the appendix with home study materials, and Sons referred to the
report during her testimony. DCS substantiated abuse by Grandfather against one of his teen-aged sons. After
the son was verbally disrespectful and pushed Grandfather, Grandfather choked the son and struck him,
resulting in a burst eardrum.
5
Inexplicably, the “Order Accepting Prior Home Study” recites that the purpose of the study was to
determine whether the “Petitioners” in Cause No. 88C01-1012-AD-00045 were “fit and proper persons to be
allowed to adopt [J.L.M.V.]” not M.P.S., Jr. (App. 30.)
4
regarding M.P.S., Jr. had been accepted, Grandparents had no criminal history preventing
adoption, necessary consents had been given, and it was in the best interests of M.P.S., Jr. to
be adopted by Grandparents.
On February 13, 2011, Mother awoke in Virginia to find Virginia Grandparents asking
where Father was. Mother received a text message sometime later, informing her that Father
had gone back to Indiana. Mother was stranded with no money. Suspecting that the adoption
hearing had taken place, Mother contacted the office of Bartanen-Blevins and was informed
that, indeed, the hearing had taken place.
On February 25, 2011, Mother filed a motion to correct error or, alternatively, a
motion for relief from judgment. She submitted an affidavit wherein she averred that she had
been threatened and intimidated into signing the consent. Following a hearing at which
Mother, Father, Grandparents, Sons, and Bartanen-Blevins testified, the trial court denied the
motions.6 This appeal ensued.
Discussion and Decision
Mother contends that, at a time when she was unemployed, isolated with in-laws, and
unrepresented by counsel, she was coerced by threats of physical harm, divorce, and
separation from her child into signing a consent form she considered revocable. She further
contends that, although she had a general expectation that an adoption hearing would be held,
she received no explicit notice of the hearing and was strategically removed from the State of
Indiana at the time of the hearing. According to Mother, she was then abandoned and Father
6
The hearing commenced on July 8, 2011 and concluded on July 20, 2011.
5
continued his relationship with their son, undisturbed. Mother also points to alleged
procedural deficiencies: 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; the adoption home study
was not comprehensive and included no reference to Grandmother’s minor child in the State
of Virginia; and, despite a DCS report of substantiated child abuse by Grandfather, no
documentation of lack of criminal history was submitted to the trial court. In addition to the
concerns raised by Mother, we observe that Grandparents and their attorney falsely claimed
to the trial court that the child had been in Grandparents’ care since birth, and the order
purportedly accepting a home study in regard to M.P.S., Jr. instead refers to another child.
In general, a trial court’s decision whether to set aside a judgment under Trial Rule
60(B) is reviewed for an abuse of discretion. Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d
611, 613 (Ind. Ct. App. 2007). An abuse of discretion occurs where the trial court’s decision
is clearly against the logic and effect of the facts and circumstances before it or is contrary to
law. Id. In a challenge to an adoption proceeding, we will not disturb the ruling unless the
evidence at trial leads to but one conclusion and the trial court reached the opposite
conclusion. In re Adoption of M.L.L., 810 N.E.2d 1088, 1091 (Ind. Ct. App. 2004). We do
not reweigh the evidence nor assess the credibility of witnesses. Id. However, we owe no
deference to the trial court’s legal conclusions. In re Adoption of M.M.G.C., 785 N.E.2d
267, 269 (Ind. Ct. App. 2003).
Mother has claimed that she was denied due process at each stage of the proceedings,
6
specifically, when her consent was executed, when notice of the hearing was issued, and
when the final adoption hearing was conducted. We turn to our consideration of whether
Mother voluntarily gave consent to the adoption and whether her parental rights were
terminated in a procedurally fair setting.
Consent. Indiana Code Section 31-19-9-2 provides that a consent to adoption may be
executed at any time after the birth of the child, in the presence of the court, a notary public,
or an authorized agent of the DCS or a licensed child placement agency. Here, it is
undisputed that the consents at issue were not signed before a notary public. Grandparents
argued that their attorney functioned as an officer of the court and thus the intent of the
statute was satisfied; the trial court was persuaded accordingly. We must disagree that
statutory compliance may be so liberally construed in an adoption matter.
“The right to raise one’s child is an essential and basic right more precious than
property rights and is within the protection of the Fourteenth Amendment to the United States
Constitution.” Matter of Adoption of Topel, 571 N.E.2d 1295, 1298 (Ind. Ct. App. 1991).
Accordingly, “Indiana’s statutes governing adoptions should not be so liberally construed
that safeguards erected for the preservation of family relationships are destroyed.” Id. 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. Id. at 1299 (emphasis in
original). That is, it must be an act of the parent’s own volition, free from duress, fraud, or
consent-vitiating factors. Id. In Topel, we held that a parent may not validly consent to the
termination of parental rights where that consent is conditioned upon retaining a right to
7
exercise visitation with that child. Id.Bartanen-Blevins testified that she had inadvertently allowed her notary commission
to lapse before the consents at issue were signed. She further testified that she had explained
the consents to be “permanent in nature” but “they had the choice to take [them] back within
a certain period of time.” (Tr. 18.) She had also advised the parents “nothing was going to
be final for a period of time” and “if there was [sic] 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.” (Tr. 18.)7 Although “nothing specific was stated” with regard to future
parenting time, it was clear that the extended family was all living together and Bartanen-
Blevins’ impression had been that Mother and Father were expecting to continue to have
physical contact with their child, given the living arrangements. (Tr. 40.)
The testimony of Father, Mother, and Grandmother at the post-adoption hearing
reinforces Bartanen-Blevins’ “impression” that the parents expected to have continued
contact with their child. In Father’s case, that became a reality. He continued to live with
Grandparents and see his son on a daily basis. With regard to Mother, Grandmother testified
that she had “never denied [Mother] to see the baby” but also described difficulties with the
process.8 (Tr. 185.) Grandmother testified that visitation had not “been brought up” at the
time of the consent execution because both Mother and Grandmother had believed that
Mother would continue to reside in Grandparent’s home. (Tr. 185.)
7
Grandmother’s recollection of Bartanen-Blevins’ advice was: “I believe the exact words was that they
[sic] told them that it could be undone until it went to court but that the sooner they did it the better.” (Tr.
184.)
8
At the same time, Grandmother admitted that she had taken the child away from Mother and left a court-
ordered visitation at McDonald’s, because Mother’s grandmother had insisted on participating in the visit.
8
In sum, the parents, grandparents, and their 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; even so, at the very least,
Grandparents had promised her visitation. Indeed, Grandparents’ response to the motion to
correct error stated that Mother was to have contact Grandparents “deemed appropriate,”
within “parameters established by [Grandparents],” including as conditions that the child not
be removed from Indiana and not be with Mother overnight. (App. 60.)
Even if we assume that Mother’s execution of the consent was not a product of threats
and coercion,9 her consent is nevertheless involuntary where she was assured it was revocable
and she did not intend to relinquish contact with her child. See Topel, 571 N.E.2d at 1299(recognizing “it is simply impossible for one to validly consent to the termination of all his
parental rights, when, at the same time, he retains the right to exercise visitation privileges
with the 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.
Home Study. Sons testified at the post-adoption hearing, freely admitting that she was
not a social worker licensed to perform home studies. The parties argued at length as to
whether licensure was required in the case of a grandparent adoption or whether a court order
9
Mother testified that each of the Grandparents had threatened to kill her. Grandmother denied any such
threat on her part; Grandfather testified that he had been joking when threatening to shoot Mother.
Nonetheless, it is uncontroverted that Father had threatened to divorce Mother if she was non-compliant, that
Mother lacked any independent income when she was at Grandparents’ house, that she would leave the
residence in the company of at least one family member, and that Father would take her car keys and put them
in his pocket when he left the house without her.
9
for a home study by a non-licensed social worker sufficed.
Indiana Code Section 31-19-8-5 provides that a court may waive a home study report
if a petitioner for adoption is a step-parent or grandparent and the court has waived the period
of supervision. Here, there is no court order for waiver. In any event, testimony at the post-
adoption hearing clearly establishes that the home study here did not adequately apprise the
trial court of the totality of the relevant circumstances, so that the trial court could assess
M.P.S., Jr.’s best interests.
For example, Sons testified that she had received no information with regard to one of
Grandmother’s children. Sons reported that Grandmother had three adult children, aged 18,
20, and 21. One son lived with his father in Virginia. However, Sons was completely
unaware of the existence of Grandmother’s minor child. Although Grandmother admitted at
the post-adoption hearing that she had a daughter in Virginia, who had been in her father’s
custody since her infancy in 1998, and with whom Grandmother did not exercise regular
parenting time,10 Grandmother had not informed Sons of this. According to Sons, had she
been properly informed, this would have “raised a red flag” and she would have attempted to
“get the child registry from that State.” (Tr. 95.)
Sons had uncovered information that Grandfather had a prior case of child abuse
“substantiated” by DCS in Indiana. (App. 20.) The incident involved Grandfather choking
and striking his sixteen-year-old son after the son had become verbally disrespectful and then
pushed his father. Sons believed that the sixteen-year-old may have sustained a small hole in
10
Grandmother had “talked to” her daughter about two months before the post-adoption hearing. (Tr. 187.)
10
his eardrum.
Despite the substantiation of abuse, it is unclear whether a comprehensive criminal
background check was performed in accordance with Indiana Code Section 31-9-2-22.5.
Sons indicated in her report that Grandparents had consented to a “local” criminal history
check and “a criminal history check was done by the Indiana State Police and found no
criminal involvement for [Grandparents or Parents].” (App. 20.) Sons was questioned with
regard to procedures generally employed as well as specifics of the instant study. At some
point, she testified “The state police check is federal. It covers the whole United States.”
(Tr. 94.) In context, she may have been testifying about the Grandparents’ specific criminal
check; however, there is no document in the record indicating the breadth of the
Grandparents’ criminal history check.
Thus, our review of the record reveals a lack of compliance with statutory home study
procedures; indeed, the sole relevant court order refers to another child. Our review also
leads us to conclude that the trial court lacked adequate information to support the factual
conclusions incorporated in the adoption decree, specifically, that the home study regarding
M.P.S., Jr. had been accepted, no criminal history prevented the adoption, the parents had
consented to the adoption, and the adoption was in the best interests of M.P.S., Jr.
Notice and Hearing. Mother testified that she did not receive notice of the adoption
hearing; Father testified that Mother did receive notice. The court’s order setting the
adoption hearing listed for distribution only Grandparents’ attorney. We will not make a
factual finding as to whether Mother received a notice separate from her in-laws, and we
11
observe that Indiana Code Section 31-19-2.5-4(1) provides that notice does not have to be
given to one whose consent has been filed with the petition to adopt.
Nonetheless, we find the circumstances surrounding the final hearing relevant to an
inquiry as to the voluntariness of Mother’s consent. We observe that the circumstances and
timing of the trip to Virginia seem highly suspect, and potentially calculated to keep Mother
from attempting to withdraw consent. The pre-planned trip to deliver Grandmother’s son to
live with other grandparents was advanced in time such that it coincided with the hearing
date, Mother was not given a reason for the change in plans, Mother was abruptly left behind
in Virginia, and she then immediately (with apparent assistance from one of the Virginia
Grandparents) began making efforts to gather information as to what had transpired in
Indiana.
It is also noteworthy that the parents’ absence at the adoption hearing allowed
Grandparents’ misrepresentation to the court to go unchallenged. At the February 8, 2011
adoption hearing, at which only Grandparents and their attorney appeared, counsel
represented to the court that “[the child] has been with them since birth.” (Tr. 3.)
Grandmother testified accordingly. The transcript of the hearing is three pages in its entirety.
The trial court having been advised in the petition for adoption that both parents lived at the
Grandparents’ address, it is not surprising that no inquiry was made as to the biological
parents’ acquiescence. In essence, the Grandparents painted a picture for the trial court that
the parents had never independently cared for their child and Grandparents had cared for him
continuously since his birth.
12
The record is replete with evidence of procedural error, involuntariness, and fraud
upon the court. In light of the extremely irregular and – to some extent – fraudulent
circumstances surrounding the adoption of M.P.S., Jr., we conclude that Mother has met her
burden to set aside the adoption. Her consent was invalid as a matter of law. We remand 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.
Reversed and remanded with instructions.
BAKER, J., and DARDEN, J., concur.
13