Matter of the Termination of the Parent-Child Relationship of R.H., Minor Child, M.H. v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Sep 24 2015, 10:20 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Adam C. Squiller Gregory F. Zoeller
Squiller & Harley Attorney General of Indiana
Auburn, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Matter of the Termination of the September 24, 2015
Parent-Child Relationship of Court of Appeals Case No.
R.H., Minor Child, 92A03-1502-JT-62
Appeal from the Whitley Circuit
M.H., Court

Appellant-Respondent, The Honorable James R. Heuer,
Judge
v.
Cause No. 92C01-1404-JT-10

Indiana Department of Child
Services,
Appellee-Petitioner.

Najam, Judge.

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 Statement of the Case
[1] M.H. (“Mother”) appeals the trial court’s order terminating her parental rights

to her daughter R.H. Mother presents a single issue for our review, namely,

whether the trial court erred when it concluded that her consent to adoption

and relinquishment of parental rights were voluntary. We affirm.

Facts and Procedural History
[2] On April 6, 2012, Mother, who was sixteen years old at the time, gave birth to

R.H. R.H.’s father, D.P. (“Father”), was almost forty years old at the time of

R.H.’s conception and birth. After living together for the first six months of

R.H.’s life, Mother and Father terminated their illicit relationship. Mother tried

to take R.H. with her when she moved out, but Father’s mother intervened and

prevented Mother from taking R.H. from Father’s home.

[3] On December 26, 2012, the Department of Child Services (“DCS”) removed

R.H. from Father’s home after Father was arrested for manufacturing

methamphetamine. Mother’s whereabouts were unknown at that time. At a

February 4, 2013, hearing, Mother appeared and admitted that she was unable

to provide the necessary food, clothing, shelter, or medical care for R.H.

Accordingly, the trial court adjudicated R.H. to be a child in need of services

(“CHINS”). DCS placed R.H. in foster care and planned for reunification of

R.H. with Mother. The trial court ordered Mother to participate in services.

As a result of Father’s sexual relationship with Mother, Father was convicted of

child molesting, as a Class A felony; sexual misconduct with a minor, as a

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 Class B felony; and child seduction, a Class D felony; and he was sentenced to

sixty years executed.1

[4] In a progress report dated August 9, 2013, the DCS case manager overseeing

Mother’s participation in services, Victoria Mans, stated that Mother: had

found employment; was inconsistent with her visits with R.H.; had completed

her intake assessment to obtain her GED; was meeting inconsistently with her

Independent Living Worker and Home Based Worker; and had stopped

attending her individual counseling sessions. Following a hearing on August

19, Mother informed DCS that she did not want to visit with R.H. anymore

and that she was “no longer interested in having her daughter returned to her

care.” Appellee’s App. at 69. Accordingly, DCS changed the permanency plan

for R.H. from reunification with Mother to adoption. And in a progress report

dated December 13, Sharon Persons, Mother’s new DCS case manager, stated

that Mother still had no interest in participating in services or reunification with

R.H.

[5] In January 2014, Mother contacted Persons to say that she had changed her

mind and that “she wanted [R.H.] returned to her and she [wanted to] start

services again.” Id. at 79. On February 4, 2014, a team meeting was held with

Mother, Mother’s fiancée, E.S., the guardian ad litem, and Mother’s attorney.

1
R.H. is Mother’s second child with Father. Their first child was also adopted, and that adoption is not part
of this appeal.

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 Persons advised Mother that, because she had “not been in services for six

months, she [would] need to start from the beginning and complete all

assessments at [the] Bowen Center and follow all recommendations this time.”

Id. Persons also advised Mother that DCS would file a termination petition,

but that “nothing [would] be scheduled until it [was] seen how actively

[Mother] participate[d] in the services and what she gain[ed] from them.” Id.

Further, DCS and the guardian ad litem agreed that it was not in R.H.’s best

interests to start visitation with R.H. until Mother had participated in “her

evaluations and services.” Id. at 80. Persons also stated that visitation was

dependent on Mother “show[ing] good faith.” Id. Following a review hearing

on February 24, the trial court ordered Mother to restart services, but the court

ordered that Mother would not have visitation with R.H.

[6] On April 7, while Mother was participating in services, DCS filed a petition to

terminate Mother’s parental rights to R.H. In a July 11 progress report,

Mother’s new family case manager, Ashley Meyers, stated that Mother had

completed an intake assessment at the Bowen Center and a substance abuse

assessment. But Mother “did not show up” for her psychological evaluation,

and she was ordered to take that evaluation “to determine what services are

needed.” Id. at 91-92. Further, the Bowen Center reported that Mother had

“not fully engaged in home-based RSP services to address parenting and how to

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 discipline and care for a child.” Id. at 92. The Bowen Center also reported that

Mother had not attended individual therapy as recommended. 2

[7] Meyers concluded her July 11 progress report as follows:

[Mother] and her fiancée, [E.S.], have both had Psychological
Evaluations that were deemed invalid due to either being
unwilling or unable to answer questions in an honest and
forthright manner. Therefore, the Bowen Center recommends
they complete the assessment again. [Mother] has not fully
participated in services offered to her and has not fully engaged.
She tells service providers that she knows everything about
parenting and discipline. [Mother] expressed in January, 2014,
after DCS filed for termination, she wanted to get [R.H.] back[,]
but her actions do not show she is serious in doing what is
required for that to happen.

Id. at 93.

[8] On July 21, the trial court held a review hearing, and Mother, in person and by

counsel, advised the court that she intended to voluntarily terminate her

parental rights to R.H. That hearing was continued until July 28, but Mother

did not appear on that date. During a hearing on August 18, Mother appeared

and submitted her voluntary relinquishment of parental rights and consent to

adoption. The trial court heard evidence and concluded that “termination is in

the best interest of the child [and] the grounds for termination have been met.”

2
At some point, the trial court ordered Mother’s fiancée, E.S., to participate in services.

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 Appellant’s App. at 3. The trial court then took the matter under advisement

“pending resolution” of the petition for the involuntary termination of Father’s

parental rights. Id.

[9] On September 2, Mother filed a motion to withdraw her consent to adoption.

During a hearing on that motion on November 12, Mother testified in relevant

part as follows:

A: I felt like I was forced into signing my rights over. I had a
couple [of] people [who] I feel were completely against me at the
Bowen Center [who] I feel what they had said was not true.

***

A: I felt like I had no other option but to sign my rights over
because they were not going to give me my child back.

Q: Okay. Had someone communicated to you that you were
not going to get your child back?

A: No.

Q: Had someone said, if you don’t do this, you’re not going to
get your child back?

A: Yes.

Q: Who said that?

A: [DCS liaison for the Bowen Center] Corissa Robinson.

***

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 Q: Okay. And, what was your relationship with her? Like, . . .
why did you have to work with her?

A: I believe she was the person [who] set up all my assessments.
I believe that’s [what] she did.

Q: Okay. But you said that you completed those assessments.

A: Yes.

Q: And, so, then why would she communicate to you that you
weren’t going to get [R.H.] back?

A: At a family team meeting that we had, she . . . I feel like she
was pretty much yelling at me the whole time.

Q: Okay.

A: It was all directed towards me. Like, I was in a relationship
and that person[, E.S.,] did not want to participate in services, so
she turned to me and started yelling at me for [E.S.] not wanting
to participate in services.

Q: Okay. So the DCS Bowen Center liaison indicated to you
that you weren’t going to get [R.H.] back if what didn’t happen?

A: If I didn’t complete services that I thought I had already
completed, that she did not make clear that that wasn’t the whole
. . . it was just the assessment. I did not complete the whole
service.

***

A: I never wanted to sign my rights over. I never wanted to do
that at all. I wanted to keep fighting. I do want my child back. I

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 do believe she deserves to be with her birth mother, that she
should be placed with her birth mother.

Q: Okay. Do you still feel like you were forced to sign off
originally?

A: Yes.

Q: Okay. But you decided . . . that you should fight for [R.H.]?

A: Yes. I decided that I should just fight for her.

Q: Okay. Is there anything else that changed in your life . . .
circumstances that affected your thinking at that time?

A: I don’t know. I guess. Kinda. I mean, I did break up with
[E.S.]

Q: Was that breakup . . . did it have anything at all to do with
whether you were making efforts to get [R.H.] back or not
making efforts to get [R.H.] back?

A: Yes and no.

Q: Okay.

A: Yes, because [s]he didn’t want to participate in services and I
did. I still want to participate in services.

***

A: And, no, because it was . . . pretty much a mutual decision
between both of us [that we should not be together].

***

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 Q: Did your attorney go over the Voluntary Relinquishment of
Rights?

A: Yes.

Q: Did she go over the Consent to Adopt?

A: Yes.

Q: Did she tell you that you didn’t have to sign off your rights?

A: Yes.

Q: But yet, you’re saying here, you were forced.

A: That I still felt forced, yes.

Q: Even though your attorney told you, you didn’t have to do
this?

A: Yes.

Q: Did you talk to your family case manager and ask her?

A: No.

Q: Can you tell me exactly what it was that Corissa Robinson
said? That you had to sign your rights off?

A: No.

Q: What did she say to you to make you feel forced?

A: She had said, like I said, in that family team meeting before
we had [come] into court, that . . . if I didn’t do . . . I don’t
remember what it was. If I didn’t do this and this and this, that I

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 might as well just give her up anyways. That I might as well just
give her up.

Q: So that made you think that you had to give her up?

A: Yes. Because . . . every time I have called her, she has made
me feel like I’m a nuisance to her, like I bother her when I call
her. She’s always got an attitude with me, no matter what.

***

Q: Okay. So [Corissa Robinson] was rude. But did she tell you that you
had to sign your child’s rights off?

A: No. She didn’t say I had to. She said, I might as well.

***

Q: Your attorney is a licensed professional. Why didn’t you
believe her [that you did not have to give up your parental rights
to R.H.]?

A: I did.

Q: She told you, you didn’t have to sign off your rights.

A: I know I didn’t have to.

Q: So, you chose to sign off your rights?

A: Yes.

Tr. at 51-73 (emphases added). Following the hearing, the trial court took the

matter under advisement. On January 22, 2015, the trial court entered an order

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 denying Mother’s motion to withdraw her consent to adoption. And on

February 19, the trial court entered an order terminating Mother’s parental

rights to R.H. This appeal ensued.

Discussion and Decision
[10] In reviewing termination proceedings on appeal, this court will not reweigh the

evidence nor assess the credibility of witnesses. In re M.R., 728 N.E.2d 204, 207

(Ind. Ct. App. 2000), trans. denied. We consider only the evidence that supports

the trial court’s decision and the reasonable inferences to be drawn therefrom.

Id. In deference to the trial court’s unique position to assess the evidence, we

set aside the judgment terminating a parent-child relationship only if it is clearly

erroneous. Id. If the evidence and inferences support the trial court’s decision,

we must affirm. Id.

[11] Mother contends that, because her consent to adoption and relinquishment of

parental rights were procured under duress, the trial court clearly erred when it

terminated her parental rights. The State alleges that Mother has waived these

issues on appeal. In particular, the State points out, correctly, that Mother

never argued to the trial court that her relinquishment of parental rights was

procured under duress. Mother only moved the trial court to withdraw her

consent to adoption.3 And, on appeal, while Mother included the trial court’s

3
While a parent’s relinquishment of parental rights and consent to adoption are obviously intertwined, each
is governed by a distinct statute and is treated as a separate issue. See, e.g., Matter of Adoption of Konar, 454

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 order denying her motion to withdraw her consent to adoption with her notice

of appeal, Mother did not attach the trial court’s order terminating her parental

rights. Finally, Mother’s sole argument on appeal pertains to the

relinquishment of her parental rights. Mother does not make any argument

specific to her motion to withdraw her consent to adoption. Thus, we agree

with the State that Mother has waived these issues for our review. Waiver

notwithstanding, because of the significant interests at stake in a termination of

parental rights, and because the crux of Mother’s argument is the same with

respect to both her consent to adoption and relinquishment of her parental

rights, we exercise our discretion to address both issues on the merits.

[12] Indiana Code Section 31-19-10-3 provides in relevant part as follows:

(a) A consent to adoption may be withdrawn not later than thirty
(30) days after consent to adoption is signed if:

(1) the court finds, after notice and opportunity to be
heard afforded to the petitioner for adoption, that 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.

(b) A consent to adoption may not be withdrawn after:

N.E.2d 886, 888 (Ind. Ct. App. 1983) (holding consent to adoption was not vitiated by the rescission of the
termination of parental rights), cert. denied, 469 U.S. 892 (1984).

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 (1) thirty (30) days after the consent to adoption is
signed;

(2) the person who signs the consent to adoption
appears, in person or by telephonic communications
or video conferencing, before a court in which the
petition for adoption has been or will be filed and
acknowledges that the person:

(A) understood the consequences of the
signing of the consent to adoption;

(B) freely and voluntarily signed the
consent to adoption; and

(C) believes that adoption is in the best
interests of the person to be adopted[.]

[13] For the execution of a parent’s consent to be valid, the consent must be

voluntary. Bell v. A.R.H., 654 N.E.2d 29, 32 (Ind. Ct. App. 1995). A parent’s

consent to an adoption is voluntary if it is an act of the parent’s own volition,

free from duress, fraud, or any other consent-vitiating factor, and if it is made

with knowledge of the essential facts. Id. The issue of an invalid consent may

be raised by a petition to withdraw consent, and the burden of proof in such a

matter falls on the petitioner. Id. Likewise, this court has held that “a parent

who executes a voluntary relinquishment of parental rights is bound by the

consequences of such action, unless the relinquishment was procured by fraud,

undue influence, duress, or other consent-vitiating factors.” In the Matter of Snyder,

418 N.E.2d 1171, 1180 (Ind. Ct. App. 1981).

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[14] Here, Mother’s sole contention on appeal is that her consent to adoption and

relinquishment of parental rights were not made voluntarily because she was

under duress at the time she executed those documents. Specifically, Mother

maintains that “her duress arose from the consistent and constant threat of

never regaining custody” of R.H. to the extent that Mother was “traumatized”

and “lost all hope.” Appellant’s Br. at 13. Mother asserts that “[t]he repeated

change in providers, case managers, and services created a moving target for the

necessary steps for reunification to the point that a reasonable person would

have found the task to be impossible.” Id.

[15] In Youngblood v. Jefferson County Division of Family and Children, 838 N.E.2d

1164, 1170-71 (Ind. Ct. App. 2005), trans. denied, this court held as follows:

“[I]n order to avoid a contract on the basis of duress, there must
be an actual or threatened violence of restraint of a man’s person
contrary to law, to compel him to enter into a contract or
discharge one.” Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind. Ct.
App. 2005) (quotations and citation omitted), trans. denied. In
deciding whether a person signed a document under duress, “the
ultimate fact to be determined is whether or not the purported
victim was deprived of the free exercise of his own will.”
Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 283 (Ind.
1983).

[16] Here, there is no evidence of any threatened violence or physical restraint to

Mother. Mother alleges only that the pressure to comply with the court-ordered

services was overwhelming to the extent that she lost hope of ever regaining

custody of R.H. But this court has held that “emotion, tensions, and pressure

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 are . . . insufficient to void a consent unless they rise to the level of overcoming

one’s volition.” In re Adoption of Hewitt, 396 N.E.2d 938, 942 (Ind. Ct. App.

1979). Mother was represented by counsel at all stages of the proceeding, and

Mother has acknowledged that her attorney made clear to her that she did not

have to give up her rights to R.H. or consent to adoption. Mother

acknowledged, in open court, that she had voluntarily executed both the

consent to adoption and relinquishment of parental rights. Finally, Mother

conceded at the hearing on her motion to withdraw her consent to adoption

that she “chose” to give up her parental rights to R.H. Tr. at 73.

[17] Mother’s contentions on appeal amount to a request that we reweigh the

evidence, which we will not do. Mother has not demonstrated that her free will

was overcome when she signed the consent and relinquishment of parental

rights. Accordingly, Mother has not shown that either document was obtained

by duress, and the trial court did not err when it terminated her parental rights

to R.H. See, e.g., Youngblood, 838 N.E.2d at 1170-71.

[18] Affirmed.

Kirsch, J., and Barnes, J., concur.

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