ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Brent R. Dechert Michael E. Boonstra
Kokomo, Indiana Kokomo, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Nov 30 2009, 3:35 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 34S02-0904-JV-147 tax court
IN THE MATTER OF THE
TERMINATION OF THE
PARENT-CHILD RELATIONSHIP OF
M.B. AND S.B. (CHILDREN)
T.B. (MOTHER),
Appellant (Defendant below),
v.
INDIANA DEPARTMENT OF CHILD SERVICES,
Appellee (Plaintiff below).
_________________________________
Appeal from the Howard Circuit Court, No. 34C01-0703-JT-0009 and 34C01-0703-JT-0010
The Honorable Lynn Murray, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 34A02-0805-JV-437
_________________________________
November 30, 2009
Sullivan, Justice.
A mother seeks restoration of her parental rights, contending that she voluntarily agreed
to the termination on the condition that she could continue visitation with her children, only to
have visitation terminated at a subsequent hearing of which she received no notice or opportunity
to be heard. Conditioning the voluntary termination of parental rights on continuing post-
adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted. On
the facts of this case, the mother is entitled to a hearing on the termination of her visitation rights
but not a full restoration of her parental rights.
Background
T.B. (―Mother‖) gave birth to M.B. in March, 2000, and S.B., in June, 2002. The How-
ard County Department of Child Services (―State‖) removed both M.B. and S.B. (―Children‖)
from Mother in August, 2002, because she had been arrested on drug charges and no suitable
family members were available to care for the Children. Mother was released from incarceration
in October, 2005. The State petitioned for the involuntary termination of Mother’s parental
rights on March 19, 2007. From the time of her release until March, 2007, Mother had not estab-
lished suitable housing for her children, had not maintained stable employment, and had not
complied with court orders regarding treatment for her drug problem. On April 9, 2007, the
Howard Circuit Court held an initial hearing on the State’s petition for involuntary termination of
Mother’s parental rights. Mother denied the allegations in the petition and the court set the mat-
ter for a fact-finding hearing on June 4, 2007.
Prior to the June 4 hearing, Mother, advised by her counsel, Brent R. Dechert, decided to
execute a ―Voluntary Relinquishment of Parental Rights‖ State Form 12587 for each of the
Children. Attached to each form was an Addendum, drafted by Mr. Dechert, captioned ―Post
Adoption Privileges.‖ The identical addenda (collectively, the ―Addendum‖) contained a provi-
so stipulating that Mother’s voluntary relinquishment of her parental rights and her consent to
adoption were ―subject to the Court granting post-adoption privileges and the adoptive parents
consenting to post-adoption contact by and between themselves and [S.B.] and [M.B.] pursuant
to I.C. 31-19-16-2.‖1 (Appellant’s App. 38, 106.)
1
The precise language of the Addendum reads: ―The parent, [T.B.] consents to voluntarily relinquish her
parental rights and consent to adoption is subject to the Court granting post-adoption privileges and the
adoptive parents consenting to post-adoption contact by and between themselves and [S.B.] and [M.B.]
pursuant to I.C. 31-19-16-2.‖ (Appellant’s App. 38, 106.) As a matter of grammar, this is not a correct
sentence. The parties contest the effect of the Addendum, but do not appear to contest the way it should
be read. We have paraphrased it in the text to reflect the reading the parties appear to give it.
2
The voluntary termination forms (with Addendum attached) were submitted to the trial
court at the commencement of the fact-finding hearing. The trial court reviewed the forms and
advised Mother of the legal consequences of voluntary termination of parental rights. The court
then confirmed that Mr. Dechert had fully consulted with Mother regarding her decision to ter-
minate her parental rights voluntarily. The court then asked Mr. Dechert ―how this reservation
of post-adoption visitation rights [the Addendum] would work.‖ (Tr. 11.) The following ex-
change took place:
Mr. Dechert: We also discussed that if she voluntarily relinquishes her parental
rights that she could be entitled to post-adoption contact if the department allowed
that and, which the department did and I reviewed that with her and told her that
that post-adoption contact would only continue so long as it is in the children’s
best interest and if at any point in time a court, either this court or another court,
determine it is no longer in the children’s best interest, she would not be entitled
to further visitation and she indicated she understood that and continued to believe
that this agreement and the voluntary relinquish of parental rights was in her best
interest and the children’s best interest.
Trial Court: [Mother], you understand that by giving your consent to the termina-
tion of parent/child rights, you’re giving up the rights of which I had advised you
earlier and that it is subject to this reservation of post-adoption privileges which
you understand, as Mr. Dechert’s explained, to be subject to a court determining
that it’s in the child’s best interest for such visitation or conduct to occur?
[Mother]: Yes.
Id. at 12-13. The court had Mother reaffirm that she voluntarily decided to terminate her paren-
tal rights. Mr. Dechert then asked the State whether ―at this point in time the department be-
lieves it is still in the children’s best interest to continue with visitation[.]‖ Id. at 13. Case man-
ager Scott Simmonds replied, ―That’s correct.‖ Id. at 14.
At the conclusion of the hearing, the trial court accepted Mother’s voluntary termination
of her parental rights and accepted the post-adoption visitation Addendum. In doing so, the fol-
lowing exchange took place:
Trial Court: Well, the court would make a finding today that [Mother] has ac-
knowledged, having understood her rights in this matter, that she wishes to volun-
tarily relinquish her parent/child rights with regard to her children, [M.B.] and
3
[S.B.], and that that is both freely and voluntarily made after consultation with her
counsel, Mr. Dechert, and further, that according to the petition . . . the depart-
ment does have a satisfactory plan for both the care and treatment of each child,
and what would that be, Mr. –
Case Manager Simmonds: That would be adoption, Your Honor.
Trial Court: Therefore, the court would show that it would accept the Voluntary
Relinquishment of Parental Rights as executed by [Mother], subject to the post-
adoption privileges, as filed here today.
Id. The trial court issued an order later that day. The order ―permanently terminated[]‖ all of
Mother’s ―rights, powers, privileges, immunities, duties and obligations, including the right to
consent to adoption,‖ as they related to the Children. (Appellant’s App. 40.)
After the termination hearing, there was a brief two-week period of confusion as to visita-
tion rights. Initially, the State informed Mother that she had one ―final visit‖ with her children.
The ―final visit‖ occurred, and on June 15, 2007, the Children were placed in a new home with
prospective adoptive parents. Before the placement, the State had not notified the prospective
adoptive parents of Mother’s visitation privileges as provided in the Addendum. About a week
after the placement, the State’s case manager, Scott Simmonds, notified the prospective adoptive
parents that Mother’s visitation would resume.
From that time until September, 2007, Mother visited with the Children for two hours
every two weeks. On September 10, 2007, a three-month CHINS periodic review hearing was
held. Neither Mother nor her counsel was notified of the hearing. During the proceedings, the
State’s counsel, Rebecca Vent, recommended that Mother’s visitation rights be terminated based
on letters presented by the Children’s therapists that opined ―[visitation is] no longer in the child-
ren’s best interest because it’s impeding the bonding process with the adoptive family.‖ (Tr. 21-
22.) The trial court credited the therapists’ opinions and ordered Mother’s visitation privileges
terminated. Two days later, on September 12, 2007, when Mother appeared for her regularly
scheduled visitation, she was advised for the first time of the trial court’s order terminating her
visitation privileges. She was told that her visit with the Children that day would be her ―good-
bye visit.‖ Mother has not visited with the Children since then.
4
On February 5, 2008, Mother filed a motion to set aside the trial court’s initial order for
voluntary termination of the parent-child relationship pursuant to Ind. Trial Rule 60(B). She ar-
gued that her voluntary termination should be set aside on three separate grounds.2 A hearing on
Mother’s motion to set aside was held on February 28, 2008. The trial court entered an order
denying the motion on April 14, 2008. Mother appealed, contending (1) that her voluntary ter-
mination of parental rights should be set aside because her consent to termination was based
upon the State’s and trial court’s fraudulent misrepresentation that she would have continued vi-
sitation post termination; and (2) that the State violated her due process rights when it failed to
notify her of the three-month periodic CHINS review hearing, at which her visitation privileges
were terminated in her absence. The Court of Appeals affirmed the trial court’s denial of Moth-
er’s motion to set aside her voluntary termination. In re Termination of the Parent-Child Rela-
tionship of M.B. and S.B., 896 N.E.2d 1, 15-16 (Ind. Ct. App. 2008).
Mother sought, and we granted, transfer, thereby vacating the opinion of the Court of
Appeals. Ind. Appellate Rule 58(A).
Discussion
We are presented with a situation in which Mother contends that she voluntarily agreed to
the termination of her parental rights subject to continued and ongoing visitation with her child-
ren, only to have that visitation right terminated at a hearing of which she received no notice and
no opportunity to be heard. She asks to restore the status quo ante such that all her parental
rights would be restored and any termination proceedings would need to begin anew.
2
The first ground was ―for fraud and/or misrepresentation of the Department of Child Services as visita-
tion has been terminated and the potential adoptive parents are apparently unwilling to allow post adop-
tion privileges.‖ (Appellant’s App. 46.) The second ground was that the relinquishment ―was not freely
and voluntarily entered since [Mother] was induced to enter the agreement by the false promises of the
Department of Child Services.‖ Id. The third ground was that the relinquishment ―imposed a contractual
obligation upon the Court and the Department of Child Services to allow visitation with her children. The
Court and the Department of Child Services has failed to abide by the terms of the contract and the con-
tract should be deemed void and terminated.‖ Id.
5
For the following reasons, set forth in detail below, we conclude that Mother is entitled to
some relief but not a full restoration of her parental rights. When she voluntarily relinquished
her parental rights, it was not subject to unconditional future visitation with her children but only
visitation so long as it was in the Children’s best interests. As such, she knew and agreed that
visitation might be terminated in the future. On the other hand, due process demanded that she
be given notice and the opportunity to be heard before visitation was terminated.
I
Voluntary termination of parental rights severs all legal ties, including visitation rights,
between parents and their children.3 Indiana’s ―open adoption statutes‖ (I.C. §§ 31-19-16-1 &
2), however, provide parents the opportunity to obtain post-adoption visitation privileges under
certain circumstances. Indiana Code § 31-19-16-1 states in relevant part: ―At the time an adop-
tion decree is entered, the court entering the adoption decree may grant postadoption contact pri-
vileges under section 2 of this chapter to a birth parent who has[] . . . voluntarily terminated the
parent-child relationship.‖ Id. (emphases added). The phrase ―section 2 of this chapter‖ refers to
I.C. § 31-19-16-2, which delineates the procedures that must be followed before a court may
grant post-adoption contact privileges to a birth parent who has voluntarily terminated parental
rights. Indiana Code § 31-19-16-2 states:
A court may grant postadoption privileges if:
(1) the court determines that the best interests of the child
would be served by granting postadoption contact privileg-
es;
(2) the child is at least two (2) years of age and the court finds
that there is a significant emotional attachment between the
child and the birth parent;
3
When parents consent to voluntary termination and the court terminates the parent-child relationship,
―all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, con-
trol, parenting time, or support pertaining to the relationship, are permanently terminated; and . . . [the
parents’] consent to the child’s adoption is not required[.]‖ I.C. §§ 31-35-1-12(2)(A) & (B). In 2005, this
section was amended by substituting ―parenting time‖ for ―visitation‖ in subsection (2)(A). See Pub. L.
No. 68-2005, § 56.
6
(3) each adoptive parent consents to the granting of postadop-
tion contact privileges;
(4) the adoptive parents and the birth parents:
(A) execute a postadoption contact agreement;
and
(B) file the agreement with the court;
(5) the licensed child placing agency sponsoring the adoption
and the child’s court appointed special advocate or guar-
dian ad litem appointed under IC 31-32-3 recommends to
the court the postadoption contact agreement, or if there is
no licensed child placing agency sponsoring the adoption,
the county office of family and children or other agency
that prepared an adoption report under IC 31-19-8-5 is in-
formed of the contents of the postadoption contact agree-
ment and comments on the agreement in the agency’s re-
port to the court;
(6) consent to postadoption contact is obtained from the child
if the child is at least twelve (12) years of age; and
(7) the postadoption contact agreement is approved by the
court.
Id. (emphases added).
The ―Post Adoption Privileges‖ Addendum in this case explicitly references I.C. § 31-19-
16-2. It provides that Mother’s consent to relinquish her parental rights voluntarily and her con-
sent to adoption were ―subject to the Court granting post-adoption privileges and the adoptive
parents consenting to post-adoption contact by and between themselves and [M.B.] and [S.B.]
pursuant to I.C. 31-19-16-2.‖4 (Appellant’s App. 38, 106.) Mother contends that there is Court
of Appeals precedent ―holding that post-adoption contact privileges may be stipulated to and
contemplated in the future.‖ (Appellant’s Br. 17.) She noted that ―the Addendum would require
the [State] to find adoptive parents willing to allow [Mother] post adoption contact.‖ (Appel-
lant’s Pet. to Transf. 5.)
We find that the Addendum’s reservation of post-adoption contact privileges is irrecon-
cilably inconsistent with Indiana’s open adoption statutes. See I.C. §§ 31-19-16-1 & 2. We
agree with the following analysis by the Court of Appeals:
4
See supra text accompanying note 1.
7
Indiana Code Section 31-19-16-1 provides that a court entering an adop-
tion decree may grant post-adoption contact privileges under Indiana Code Sec-
tion 31-19-16-2 to a birth parent who has previously voluntarily relinquished his
or her parental rights ―at the time an adoption decree is entered[,]‖ and not, as
Mother would have us do, prior to, or as a condition precedent to, a parent’s vo-
luntary consent to termination. . . . Indiana Code Section 31-19-16-2 requires
several pre-conditions to be met before post-adoption visitation may be
granted[.] . . . Such conditions can never be satisfied at the time of termination
because adoption cannot occur until after the termination of all parental rights of
the natural parent.
In re M.B. and S.B., 896 N.E.2d at 7.
The Addendum impermissibly overrides the authority of an adoption court provided by
I.C. § 31-19-16-2. It requires that ―the Court grant[] post-adoption privileges and the adoptive
parents consent[] to post-adoption contact[.]‖ (Appellant’s App. 38, 106.) This stipulation re-
moves an adoption court’s statutory authority to grant post-adoption contact privileges if it finds
that (1) contact would be in the ―best interests of the child[,]‖ I.C. § 31-19-16-2(1); and (2) if the
child is two years of age or older, ―that there is a significant emotional attachment between the
child and the birth parent[,]‖ id. § 2(2). It also overrides the adoptive parents’ statutory right to
consent to post-adoption contact privileges, see id. § 2(3), and the joint responsibility of the con-
senting adoptive parents and the birth parents to execute a post-adoption contact agreement and
file the agreement with the court, id. § 2(4). Finally, the Addendum does away with an adoption
court’s statutory authority to give final approval to the parties’ agreement. See id. § 2(7).
We hold that, unless all of the provisions of Indiana’s open adoption statutes (I.C. §§ 31-
19-16-1 & 2) are satisfied, the voluntary termination of parental rights may not be conditioned
upon post-adoption contact privileges.
II
The Court of Appeals treated Mother’s voluntary termination form and the Addendum as
a contract. In re M.B. and S.B., 896 N.E.2d at 6.5 It held that the Addendum, reserving post-
5
―[B]ecause voluntary consent forms are contracts, the principles of contract law can provide guidance
under the facts of this case.‖ Id. at 7.
8
adoption visitation privileges, contravened both Indiana statutory law and public policy and was
―void ab initio and thus unenforceable as a matter of law.‖ Id. at 8. It next considered ―whether
such a decision renders the entire voluntary consent contract void.‖ Id. The court concluded that
―severing the addendum does not frustrate the basic purpose of the remainder of the agree-
ment[,]‖ which it defined as Mother’s voluntary consent to the termination of her parental rights.
Id. at 8-9. It therefore held that ―[t]he remaining consent form is . . . enforceable by the trial
court.‖ Id. at 9.
We agree with the Court of Appeals that the visitation proviso contained in the Adden-
dum was invalid as a matter of Indiana law, see supra Part I. We decline to analyze this as a
matter of contract law, however, and instead conclude that the Addendum should be honored af-
ter taking into account the following three factors.
First, the State accepted the post-adoption visitation proviso at the termination proceeding
without objection. Mr. Dechert, Mother’s attorney, asked the State whether ―at this point in time
the department believes it is still in the children’s best interest to continue with visitation[.]‖ (Tr.
13.) Case Manager Scott Simmonds replied, ―That’s correct.‖ Id. at 14. After the proceeding,
the State confirmed its acceptance of the Addendum by facilitating Mother’s bi-weekly super-
vised visitation with the Children for three months.
Second, the trial court expressly conditioned the voluntary termination on the post-
adoption visitation privileges outlined in the Addendum. During the proceeding, the court asked
Mother, ―you understand that by giving your consent to the termination of parent/child rights[] . .
. it is subject to this reservation of post-adoption privileges . . . ?‖ Id. at 12-13. Mother replied,
―Yes.‖ Id. at 13. At the close of the proceedings, the trial court concluded that ―the court would
show that it would accept the Voluntary Relinquishment of Parental Rights as executed by
[Mother], subject to the post-adoption privileges, as filed here today.‖ Id. at 14.
Third, while the Addendum impermissibly interferes with the open adoption statutes’
grants of authority to adoption courts and of consent rights to adoptive parents, the colloquy be-
9
tween the trial court, Mother, and her counsel clearly indicates that the parties understood that
any post-adoption visitation was not unconditional. At the commencement of the termination
proceeding, Mother’s attorney informed the court that ―I . . . told [Mother] that that post-
adoption contact would only continue so long as it is in the children’s best interest and if at any
point in time a court, either this court or another court, determine it is no longer in the children’s
best interest, she would not be entitled to further visitation[.]‖ Id. at 12. The court then granted
Mother visitation rights subject to ―a court determining that it’s in the child’s best interest for
such visitation . . . to occur[.]‖ Id. at 13.
Given these three factors – that the State voiced no objection to the visitation proviso and
acknowledged and complied with it; the trial court’s colloquy with Mother expressly referenced
the visitation proviso; and the visitation proviso was not unconditional – it would be inequitable
and unjust to hold that Mother’s voluntary relinquishment of her parental rights was not subject
to ongoing but conditional visitation rights. We hold, on the facts of this case, that Mother’s pa-
rental rights were terminated as provided in I.C. §§ 31-35-1-12(2)(A) & (B) except that that she
had the right to ongoing periodic visitation with the Children unless and until a court were to de-
termine that such visitation was no longer in the children’s best interest. If a court were to make
such a determination, she would not be entitled to further visitation.
III
As described under Background, following the termination hearing, the State facilitated
Mother’s supervised visitations with the Children on a bi-weekly basis for about three months.
Then, on September 10, 2007, at a review hearing, the State requested, and the trial court agreed,
to terminate Mother’s visitation rights. Neither Mother nor her counsel were notified of the hear-
ing and therefore had no opportunity to be heard prior to the termination of her visitation rights.
She had a final visit with the Children on September 12, 2007.
Mother contends that ―due process would require notice and the opportunity to be heard
from the person they seek to void or modify the post-adoption contact with.‖ (Appellant’s Br.
20.) The State counters that Mother was ―not entitled to notice of the periodic case review hear-
10
ing on September 10, 2007[]‖ because she was ―no longer a party to the CHINS case‖ as a result
of the trial court’s order terminating her parental rights. (Appellee’s Br. at 12.)
Indiana Code § 31-34-21-4, which governs periodic CHINS review hearings, provides
that ―at least seven (7) days before the periodic case review[] . . . the department [of child servic-
es] shall provide notice of the review to . . . (1) The child’s parent, guardian, or custodian.‖ I.C.
§ 31-34-21-4(a)(1) (emphasis added).6 The department ―shall present proof of service of the no-
tice . . . at the periodic case review.‖ Id. § 4(b). Furthermore, I.C. § 31-34-2-1(d) provides that
in periodic CHINS review hearings, the court ―shall provide [parents, guardians, and custodians,
inter alia] an opportunity to be heard and to make any recommendations to the court[.]‖ (empha-
sis added). This includes the ―the right . . . to submit a written statement to the court‖ and ―the
right to present oral testimony to the court and cross examine any of the witnesses at the hear-
ing.‖ Id. § (d)(1)-(2).
We acknowledge the State’s position that these provisions are not applicable to a parent
whose parental rights have been completely and irrevocably terminated. But based on the con-
clusion that we reached in Part II, that simply is not Mother’s situation. She did maintain ongo-
ing visitation rights and we hold that she was entitled to the relevant statutory protections. And
given what transpired at the review hearing, we are unable to say that the failure to accord her
those protections was harmless.
At the review hearing, the State was represented by counsel, Ms. Rebecca Vent. The
State’s case manager, Ms. Lee, also made an appearance. After reviewing written reports sub-
mitted by Ms. Lee and Ms. Pierson (the CASA), the court raised the issue of ―whether or not the
visits were in the children’s best interest.‖ (Tr. at 21.) Ms. Vent replied:
Well, Judge, based upon the letters presented by both of the therapists for the
children, they both are of the opinion that it’s no longer in the children’s best in-
terest because it’s impeding the bonding process with the adoptive family.
There’s a difference between their opinions in that one of the therapists believes
6
The only exception from this seven day notice requirement is ―[i]f the parent of an abandoned child does
not disclose the parent’s name[.]‖ I.C. § 31-34-21-4(f), quoted in I.C. § 31-34-21-4(a).
11
there should be a phased-out visitation over the course of three separate visita-
tions. The other one is of the opinion that just an immediate termination of the vi-
sitations would better suit the child. So I suppose the department is asking for the
termination of the visitation as to both children immediately because one therapist
recommends the immediate termination, [and] the other says phase it out, but it
would be difficult to separate the two children, one goes for visitation and one
doesn’t, so we were hopeful that the court would just grant our recommendation
that visitations be terminated.
Id. at 21-22 (emphases added). Given that the State itself indicated that the therapist for one of
the Children did not think that visitation rights should be immediately terminated, we cannot say
that Mother would not have been able to present evidence that termination would not be in the
Children’s best interest.7
Having found that Mother’s voluntary relinquishment of her parental rights was subject
to conditional visitation rights, Mother further maintains that because her rights to notice and an
opportunity to be heard at the hearing terminating her visitation rights were violated, the earlier
termination of her parental rights should also be vacated. We hold that her parental rights remain
terminated and that she is entitled to no relief in that regard. She consented to the termination in
a proceeding that appears to us to have accorded with all relevant law, save the visitation provi-
so. While she retains an enforceable right as to the visitation proviso, this does not create any
basis for reopening the termination of parental rights proceeding.
Conclusion
Having previously granted transfer, we affirm the trial court’s acceptance of Mother’s vo-
luntary termination of her parental rights to the Children. We reverse the trial court’s decision to
terminate Mother’s visitation rights at the three month CHINS review hearing8 and remand this
case to the trial court with instructions that should the State continue to seek termination of
7
Holding as we do that the statute covers Mother’s situation, it is not necessary for us to address her
claim that terminating her visitation rights without notice or opportunity to be heard violated the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.
8
There is no entry of judgment in the record terminating Mother’s visitation rights. The court’s decision
to terminate visitation rights was announced orally at the review hearing.
12
Mother’s visitation rights, the court consider the request at a hearing that accords with the re-
quirements discussed in this opinion.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion.
13
Boehm, Justice, concurring in result.
I concur in Part III of the majority opinion. I agree with the result reached by the majori-
ty in Parts I and II, but I do not agree that a consent with an invalid condition is nonetheless a
consent. I would, as the majority puts it, resolve Mother’s claim as a matter of contract. Mother
consented to termination, but attached an addendum containing a written condition—on its face a
perpetual unchallengeable right to visitation—that violated several statutory provisions. A con-
sent with an unacceptable condition is no consent at all. See 17A C.J.S. Contracts § 297 (1999)
(―If striking the illegal portion defeats the primary purpose of the contract, a court must deem the
entire contract unenforceable.‖). A court may void the invalid condition only ―if the parties
would have entered the bargain absent the illegal portion of the original agreement.‖ Lee v.
State, 816 N.E.2d 35, 39 (Ind. 2004) (quoting 17A C.J.S. Contracts § 297). Here, the majority
concludes that voiding the addendum does not also void Mother’s original consent. I disagree.
Mother testified that she would not have voluntarily relinquished her parental rights without the
addendum. I do not find her earlier statement that she thought her rights would ―be terminated
anyway‖ to be inconsistent with her claim that she would have contested termination without the
addendum.
Mother’s consent was not required for the court to terminate her parental rights. If the
invalid consent were the end of the story, we would be left with trying to figure out what would
have happened if Mother had contested termination and what should be done about an invalid
consent in light of two years of intervening experience and adoptions on the assumption by all
parties that Mother’s parental rights had been terminated. But at the termination hearing, Mother
explicitly consented to a termination and, contrary to her written submission, unequivocally
agreed to subject her visitation rights to future reconsideration. What is said in ―open court‖
controls over pre-hearing documents. Neal v. DeKalb County Div. of Family and Children, 796
N.E.2d 280, 285 (Ind. 2003) (holding that a mother’s written consent to termination of parental
rights was invalid when she later revoked her consent in open court). Having given her consent
in open court Mother is estopped from challenging the court’s right to revisit and adjust or elimi-
nate her visitation. In short, I do not agree that Mother’s written consent is enforceable, but in
1
this case she clearly waived any right to assert a bulletproof right to visitation, and the termina-
tion is no longer open to question.
2