Matter of Parent-Child Rel. of Ellis

681 N.E.2d 1145
CourtIndiana Court of Appeals
DecidedJune 13, 1997
Docket71A03-9701-JV-22
StatusPublished
Cited by9 cases

This text of 681 N.E.2d 1145 (Matter of Parent-Child Rel. of Ellis) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Parent-Child Rel. of Ellis, 681 N.E.2d 1145 (Ind. Ct. App. 1997).

Opinion

681 N.E.2d 1145 (1997)

In the Matter of TERMINATION OF PARENT-CHILD RELATIONSHIP OF INFANT ELLIS, a child, and Tiffany Ellis and Marc Lumley.
Tiffany ELLIS, Appellant,
v.
CATHOLIC CHARITIES, Appellee.

No. 71A03-9701-JV-22.

Court of Appeals of Indiana.

June 13, 1997.
Transfer Denied September 26, 1997.

*1146 Fred R. Hains, Rochelle S. Meyers, South Bend, for appellant.

*1147 George E. Herendeen, I.D., Allen, Fedder, Herendeen & Kowals, South Bend, for appellee.

OPINION

STATON, Judge.

Terry Ellis, the natural mother of infant C. E., seeks to withdraw her consent to terminate her parental rights. She contends that Catholic Charities, the private organization that facilitated the adoption of her child duped her into signing a consent to terminate her parental rights by promising her that she would still be able to visit her child after he was adopted. The trial court ruled that her consent was valid, and terminated her parental rights. Tiffany presents three issues on appeal:

I. Whether she should be allowed to withdraw her consent because she objected in open court to the termination of her parental rights.

II. Whether her consent is invalid because Catholic Charities perpetrated fraud in order to obtain it.

III. Whether her consent was involuntary due to duress from Catholic Charities.

We affirm.

C.E. was born June 1, 1996, to Tiffany Ellis, eighteen years old at the time, who was unwed, estranged from her family, homeless, and nearly penniless. The whereabouts of the putative father were and continue to be unknown. On June 7, 1996, Tiffany executed documents consenting to the termination of her parental rights. Later, Tiffany appeared at the court hearing and attempted to withdraw her consent.

Prior to the hearing Tiffany requested specific findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). When a party has requested specific findings of fact and conclusions thereon pursuant to T.R. 52(A), the reviewing court cannot affirm the judgment on any legal basis; rather, this court must determine whether the trial court's findings are sufficient to support the judgment. Lever Brothers Co. v. Langdoc, 655 N.E.2d 577, 580 (Ind.Ct.App.1995). In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id.

The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct.App.1991), trans. denied. Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences to support them. Matter of Estate of Banko, 622 N.E.2d 476, 481 (Ind.1993), reh. denied. When determining whether the findings are clearly erroneous, we consider only the evidence most favorable to the judgment and the reasonable inferences flowing from that evidence. Id. We will not judge witness credibility or reweigh the evidence. Id. Claiming an invalid consent is an affirmative defense placing the burden of proof on Tiffany. Snyder v. Shelby County Department of Public Welfare, 418 N.E.2d 1171, 1178 (Ind. Ct.App.1981).

I.

Statutory Procedure

Tiffany first argues that because she objected to termination of her parental rights at the court hearing her written consent must be considered invalid and held for naught. The statute allowing for voluntary termination of parental rights, IND.CODE § 31-6-5-2(c), states that:

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; (2) they were notified of their constitutional and other legal rights and of the consequences of their actions under section 3 of this chapter; and (3) they failed to appear.
Before the court may enter a termination order, it must inquire about the reasons for the parents' absence, and may require an investigation by a probation officer to determine whether there is any evidence of fraud or duress and to establish that the *1148 parents were competent to give their consent.... If there is any competent evidence of probative value that fraud or duress was present when the written consent was given, or that a parent was incompetent, the court shall dismiss the petition or continue the proceeding....

Tiffany contends that the language of the statute only allows parental rights to be terminated by a signed consent form if the parents fail to appear in court. Tiffany urges that "[b]ecause the statutes governing adoption are in derogation of the common law, they must be strictly construed as to all procedural requirements." Petition of Gray, 425 N.E.2d 728, 730 (Ind.Ct.App.1981), trans. denied. Since she appeared in open court, Tiffany argues, her written consent is irrelevant. She contends that the statute requires a determination made in open court as to the reasons for a parent's absence because parental rights are of such paramount importance in the law; the signed consent is allowed only as a substitute for having the natural parents appear in open court because of the problems which sometimes exist in procuring the attendance of the natural parents. Since she appeared in open court, Tiffany argues, her written consent should not have been accepted by the court as terminating her parental rights. She notes that her declaration in court was made at the first hearing on the termination of her parental rights and the earliest possible time for her to contest termination. Tiffany argues that her statement in open court is the most reliable evidence of her willingness to terminate her parental rights. Therefore, Tiffany concludes, it should control over a consent form. Tiffany further argues that the strict construction she urges is mandated by the principle that statutes governing termination of parental rights should not be so liberally construed that safeguards erected for the preservation of family relationships are destroyed. Matter of Adoption of Topel, 571 N.E.2d 1295, 1298 (Ind.Ct.App.1991).

Tiffany's interpretation of the statute was rejected by Matter of Adoption of Konar, 454 N.E.2d 886, 887 (Ind.Ct.App.1983), trans. denied, cert. denied at 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 203 (1984). Matter of Konar explicitly overruled an earlier case, Washington County Department of Public Welfare v. Konar, 416 N.E.2d 1334 (Ind.Ct.App.1981), which had suggested a less demanding standard for revocation of consent. In Matter of Konar

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