dissenting.
The majority readily acknowledges that under IND.CODE 31-3-1-6(b), "if consent is given it must be given after the birth of the child to insure such consent is a fully deliberative act on the part of the biological mother." Majority opinion at 875. Further, it is undisputed the consent must be written. IND.CODE 81-8-1-6(a). With its next breath, however, the majority seems to ignore its last by declaring that a post-birth "ratification" can be an acceptable substitute for post-birth written consent. Because the majority has disregarded the statute's requirement of written consent executed after the child's birth, I dissent.
Because the statute requires post-birth written consent, "issues" regarding the possibility of ratifying pre-birth written consent are irrelevant and illusory. The statute insists that no child may be adopted until and unless written consent is given after that child's birth. To be sure, written consent may be executed before the child's birth, but if not given after the child's birth as well, the child may not be adopted.
It is possible the majority and I do not really disagree on this matter, but only if the majority's definition of "ratification" includes "post-birth written consent." C.M.S. could have affirmed her intent to let the Goforths adopt her newborn in the company of archbishops, but without post-birth written consent her affirmation is unenforceable. She could have physically handed the child to the Goforths and begged them to adopt, but without post-birth written consent the child may not be adopted. Although these acts unquestionably "manifest a present intention to give the child up for adoption," they are legally insufficient to support an adoption petition unless also accompanied by the post-birth written consent. Any "ratification" falling short of the statutory requirement simply does not pass legal muster and must therefore be considered insufficient.
The record in this case demonstrates that before the birth of her child, C.M.S. had every intention of allowing the Goforths to adopt it upon its birth. She signed documents allowing the Goforths to take immediate custody upon the child's birth and to give the child the Goforth surname. She agreed to let the Goforths pay for the medical expenses. She authorized the hospital to release the child to the Goforths upon birth. After the child's birth, however, C.M.S. did not execute a written consent. Her signature appears on only two documents, which, whether considered separately or in unison, do not constitute consent as a matter of law. The first "relieve[d] the Hospital from further responsibility for the care and custody of the infant" by authorizing the hospital to release the child to the Goforth's attorney. Record at 100. The second "certif{ied] that ... [CM.S.] ... requeste[d] the assistance of the Social Service Staff of Humana Hospital-University in making arrangements for the adoption of [her] infant [H.M.S.], born January 6, 1992." Record at 99.
Because C.M.S. did not execute a post-birth written consent as required by IND. CODE 31-3-1-6(b), I dissent. I would reverse both the trial court's refusal to grant the writ of habeas corpus and its denial of C.M.S.'s motion to dismiss the adoption petition.