Attorney for Appellant Attorney for Appellee
Charles P. Rice Yvonne F. Watkins
South Bend, IN Indianapolis, IN
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 29S02-0303-CV-117
In Re: The Adoption of the Infant Child Baxter,
Joseph And Jana Robbins,
Appellants (Defendants below),
v.
Stephanie Baxter And Decoby Askew,
Appellees (Plaintiffs below).
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Appeal from the Hamilton Superior Court, No. 29D01-0008-AD-1058
The Honorable Steven R. Nation, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-0202-
CV-107
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December 9, 2003
Sullivan, Justice.
After signing consents to the adoption of their baby, the biological
parents attempted to withdraw their consents on grounds that they had not
been properly notarized in accordance with the provisions of the Indiana
adoption statute. We hold that if the written consent is not properly
notarized, the validity of the consent may nevertheless be satisfied by
evidence that the signatures are authentic and genuine in all respects and
manifest a present intention to give the child up for adoption.
Background
This controversy arises out of the contested adoption of an infant.
Stephanie Baxter became pregnant when she was 17 years old. Decoby Askew,
the biological father, was 18 years old. Through her mother, Karen Baxter,
the still-pregnant biological mother sought out the prospective adoptive
parents, Joe and Jana Robbins.
The maternal grandmother and Jana Robbins were co-workers. The
biological mother, the biological father, and the maternal grandparents not
only knew of the adoptive parents’ desire to adopt a child but also knew
that the adoptive parents were fearful of adoption proceedings because of
two negative experiences of families in their church where bonding had
occurred between prospective adoptive parents and a child and then the
adoption was not finalized.
The adoptive parents hired attorney Raymond Adler to assist them in
drafting a petition for adoption (“Petition”) and adoption consent forms
(“Consents”). The Petition and the Consents were given to the biological
parents and maternal grandparents for review and comment. After the review
of the documents by the biological parents and maternal grandparents, the
adoptive parents were advised that the documents contained misspellings of
names and that such misspellings needed to be corrected. The misspellings
were corrected and the biological parents and maternal grandparents invited
the adoptive parents to dinner at the home of the maternal grandparents so
that the Consents could be signed and the adoption proceed.
The biological mother, the biological father, and the maternal
grandparents signed the Consents on or about July 24, 2000. Joe Robbins
took the already-signed Consents to the Hamilton County Sheriff’s
Department where a Notary Public, Kathy J. Gordon, notarized all of the
Consents. But, as noted above, the Consents had already been executed;
none of them were actually signed in the Notary’s presence.[1]
Attorney Adler then filed the Petition along with the Consents in the
Hamilton Superior Court on August 10, 2000. On August 15, 2000, the Court
appointed the adoptive parents the guardians of the unborn child.
All of the foregoing took place while the biological mother was still
pregnant. In early September, the adoptive parents were contacted by the
maternal grandmother who advised them that the biological mother was going
into labor. The adoptive parents went to the hospital and on September 7,
2000, the baby was born.
At the hospital, the biological parents delivered the infant Baxter
into the custody of the adoptive parents. (The trial court found that a
video made at the hospital showed that these events occurred knowingly and
voluntarily.)
On or before September 20, 2000, the biological mother and the
maternal grandmother contacted the adoptive parents to revoke their consent
and reclaim custody of the infant.
On October 17, 2000, the biological mother, biological father,
maternal grandparents, and paternal grandparents filed with the court
papers denominated “Combined Emergency Motion to Set Aside Guardianship And
Custody Order Pending Adoption And Revocation Of Consent To Adopt, Petition
For Habeas Corpus, Petition To Dismiss Adoption Petition, And Motion To
Transfer.” The Motion to Set Aside alleged that “the pre-birth consents
are voidable pursuant to Indiana law.”
On June 29, 2001, the Hamilton Superior Court held a hearing to
determine whether the Consents were valid. The court found that the
biological parents and the maternal grandparents had knowingly and
voluntarily signed the Consents. However, the court also found that the
signatures of the biological parents and maternal grandparents had not been
executed in the presence of a notary public as required by Ind. Code § 31-
19-9-2 and that, under Ind. Code § 33-16-2-2, the Consents of the
biological parents and maternal grandparents had been improperly notarized.
Based on this evidence, the court concluded that the Consents signed by
the biological parents and maternal grandparents were not properly executed
and therefore were of no force or effect. The court certified its ruling
for Interlocutory Appeal.
The Court of Appeals affirmed. In re Adoption of Baxter, 778 N.E.2d
417, 422 (Ind. Ct. App. 2002); transfer granted 792 N.E.2d 41 (Ind. 2003)
(table).
Discussion
“A proceeding for the adoption of a child is statutory . . . . ”
Johnson v. Smith, 176 N.E. 705, 706 (Ind. 1931). The General Assembly has
set forth the statutes governing adoption in article 19 of title 31 of the
Indiana Code. We will refer to this article as the “Adoption Code.” There
is no debate but that the Adoption Code requires the written consent of
each of the biological mother and father for the adoption to proceed here.
Ind. Code §§ 31-19-9-1 & 10-6(1)(B).[2] What is at issue is whether the
required written consents executed by the biological parents and maternal
grandparents were valid in the face of the following provision of the
Adoption Code:
The consent to adoption may be executed at any time after the
birth of the child either in the presence of:
(1) the court;
(2) a notary public or other person authorized to take
acknowledgments; or
(3) an authorized agent of:
(A) the division of family and children;
(B) a county office of family and children; or
(C) a licensed child placing agency.
Ind. Code § 31-19-9-2. We will refer to this provision as the “Consent
Statute.”
The Consent Statute is implicated in this case because, while the
Consents bear the signature of a notary public, the parties acknowledge
that none of the biological mother, the biological father, or the maternal
grandparents were in the presence of the notary public when she notarized
the Consents. Nor were the Consents executed in the presence of any of the
other five entities listed in the Consent Statute.
The biological parents argue that the Consent Statute sets forth a
mandatory and exclusive regimen for executing consents to adoption.
Because the Consents were not executed in the presence of any of the
entities listed in the Consent Statute, they contend that the Consents were
not valid and were void ab initio. They buttress their argument by
restating the long-standing principle that because the Adoption Code is in
derogation of the common law, it must be strictly construed in favor of the
rights of natural parents.[3]
The adoptive parents contend that the failure of the Consents to meet
the specifications set forth in the Consent Statute do not render the
Consents invalid but only deny the Consents presumptive validity. Because
the Consent Statute says that consents “may” be executed – rather than
“must” be executed – in the presence of the specified entities, the
adoptive parents argue that they are permitted to employ additional
evidence of the Consents’ validity. Furthermore, they argue that the
biological parents’ admission that they signed the Consents, combined with
the trial court’s finding that the Consents were signed knowingly and
voluntarily, confirms the validity of the Consents.
I
The most important precedent for our decision in this case is the ten-
year-old majority opinion of the Court of Appeals in In re Adoption of
H.M.G., 606 N.E.2d 874 (Ind. Ct. App. 1993). Like this case, the
biological mother in H.M.G. sought to revoke her executed consent to
adoption. Also like this case, the mother’s consent had been executed
prior to the birth of the child. But unlike this case, there was no claim
that the consent had not been executed in the presence of one of the six
entities specified in the Consent Statute.
The biological mother in H.M.G. argued that her consent was invalid
because the Consent Statute clearly required that the required consent be
executed after the birth of the child. The Court of Appeals held that
while that was the general statutory scheme, a consent executed prior to
birth could be “ratified” by conduct after birth and if so ratified, became
binding. The court said:
[The Consent Statute] unambiguously provides “[a] consent to
adoption may be executed at any time after the birth of the child [in
the presence of named parties].” The use of the word “may” does not
refer to whether or not a parent executes a consent. In the first
instance a written consent must be executed before an adoption can be
legal. The word “may” refers to when the consent to adoption is
executed, i.e. before or after the child is born. The timing of the
execution of the consent is clearly circumscribed by the phrase “any
time after the birth of the child.” There is no doubt the statute
contemplates execution of the consent after the birth of the child;
any other interpretation renders the clearly qualifying phrase
meaningless. Under the statute, 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 parent.
We disagree, however, with [the biological mother’s] contention
that failure to conform to the statute renders a consent void ab
initio. We find the intent of the statute, which is designed to
provide an equitable adoption procedure by protecting the rights of
the adoptive parents and the child as well as those of the biological
parents, is best served by finding the consent voidable. A voidable
consent is ratified by subsequent action. In the case of a pre-birth
consent, such consent is ratified by a post-birth act which
sufficiently manifests a present intention to give the child up for
adoption.
H.M.G., 606 N.E.2d at 874 (footnote and citation omitted). The court went
on to cite in support of its position virtually identical cases involving
virtually identical statutory language from Arizona, Florida, and New York
that had reached the same result. Id. at 786 (discussing In re Adoption of
Krueger, 448 P.2d 82 (1968); In re Adoption of Long, 56 So.2d 450 (Fla.
1952); and Anonymous v. Anonymous, 530 N.Y.S.2d 613, 617 (App.Div.
1988).[4] The court concluded that the post-birth conduct of the mother in
H.M.G. constituted ratification.
In deciding the case before us, the Court of Appeals was of the
opinion that its conclusion in H.M.G. as to the timing of an adoption
consent did not require the same result with regard to whether the consent
had to be executed in the presence of one of the entities specified in the
Consent Statute. Baxter, 778 N.E.2d at 421-22. As noted supra, the court
went on to hold that a consent that is not executed in the presence of one
of the entities specified in the Consent Statute, “unlike a consent given
before the birth of a child, is void and not merely voidable.” Id.
Given the plain language of the Consent Statute, we are hard pressed
to see how we can have a different rule for consents given before birth and
consents not executed in the presence of one of the specified entities.
Again, the Consent Statute reads: “The consent to adoption may be executed
at any time after the birth of the child either in the presence of [any one
of the six specified entities].” If a consent not executed in the presence
of one of the specified entities cannot be valid, we see no way to read
this language to say that a consent given before birth can be valid.
We believe H.M.G. was correctly decided and its rule controls the
outcome here. The Consent Statute requires the biological parents to give
their written consent to an adoption after the birth of the child. H.M.G.
holds that if the written consent is given prior to birth, that requirement
may nevertheless be satisfied by “a post-birth act which sufficiently
manifests a present intention to give the child up for adoption.” H.M.G.,
606 N.E.2d at 874. The Consent Statute requires the written consent to be
executed in the presence of any one of six specified entities. Consistent
with the rule of H.M.G., we hold that if the written consent is not
executed in the presence of any one of six specified entities, the validity
of the consent may nevertheless be satisfied by evidence that the
signatures are authentic and genuine in all respects and manifest a present
intention to give the child up for adoption. (In reaching this conclusion,
we note that ten years have past since H.M.G. and it is likely that
legislative acquiescence has set in. A decade’s worth of Indiana adoptions
have occurred where the parties’ expectations may well have been set based
on H.M.G.’s holding.)
II
In this case, the Consents did not conform to the requirements of the
Consent Statute because they were not executed in the presence of any one
of six specified entities. The trial court held that this rendered the
Consents invalid and void. However, as discussed above, the validity of a
consent may be satisfied by evidence that the signatures are authentic and
genuine in all respects and manifest a present intention to give the child
up for adoption. The trial court made no explicit finding in this respect.
There appears to be sufficient evidence in the record to warrant
returning this case to the trial court for a determination as to whether
the signatures are authentic and genuine in all respects and manifest a
present intention to give the child up for adoption. For example, the trial
court found that the biological mother, biological father, and maternal
grandparents knowingly and voluntarily signed the Consents. The biological
parents do not appear to have contested that they intended to consent to
the adoption of their unborn child at the time that they signed the
Consents.
Given this evidence of record, we remand this case to the trial court
for a determination of whether the Consents are authentic and valid even
though they were not executed in the presence of any one of six entities
specified in the Consent Statute.
Conclusion
The judgment of the trial court is reversed. This case is remanded
to the trial court for further proceedings consistent with this opinion.
Shepard, C.J., Dickson, and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion.
Rucker, Justice, dissenting.
Were we writing on a clean slate, I would take the position that the
Adoption Code evidences an intent that a natural parent cannot consent to
an adoption prior to the birth of the child. As Judge Buchanan pointed out
years ago:
[Pre-birth] consents fail to allow for one of nature’s strongest
instincts. Who knows what the reaction will be of a mother once
she sees her baby? Does the view of the majority that such a
consent is valid allow for maternal instinct? To deny the
mother’s natural desire to keep her baby is in derogation of the
purpose of our statute to preserve the natural family
relationship to the fullest extent possible.
Johnson v. Cupp, 274 N.E.2d 411, 418 (Ind. Ct. App. 1971) (Buchanan, J.,
dissenting) (emphasis in the original) (interpreting prior version of
Adoption Statute and holding “absent express statutory provision or
judicial interpretation to the contrary, the consent signed by respondent .
. . was not invalid for the reason that it was signed prior to the birth of
the child.” Id. at 414.). However, we are not writing on a clean slate.
At least since Johnson, pre-birth consent has been the law in this
jurisdiction. And although I am not so sure the doctrine of legislative
acquiescence requires adherence to the rule of either Johnson or H.M.G.,[5]
I do agree that “decades worth of Indiana adoptions have occurred where the
parties’ expectations may well have been set based on H.M.G.’s holding,”
slip op. at 7, as well as the holding in Johnson. Because the general
public, service providers, as well as the legal community have ordered
their affairs in accordance with this long-standing precedent, I would be
reluctant to alter the landscape. Thus, I would continue to adhere to the
rule of H.M.G. that a pre-birth consent to an adoption is valid provided
there is post-birth conduct ratifying the consent.
The problem in this case however is whether there was ever pre-birth
consent in the first place. Unknown at common law, adoption is purely a
creature of statutory creation. Importantly, the law in this jurisdiction
is clear, unequivocal, and of long duration that the Adoption Code must be
strictly construed in favor of the rights of the natural parents. Adoptive
Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1056 (Ind. 1992); Emmons v.
Dinelli, 235 Ind. 249, 133 N.E.2d 56, 60 (1956); Bray v. Miles, 23 Ind.
App. 432, 54 N.E. 446, 448 (1899). This is so because the parent-child
relationship represents a bundle of human rights of fundamental importance.
In re Adoption of Thomas, 431 N.E.2d 506, 512 (Ind. Ct. App. 1982).
Additionally, strict construction is traditionally required because
adoption proceedings deprive natural parents of all their rights over their
children forever. In re Adoption of Force, 126 Ind. App. 156, 131 N.E.2d
157, 158 (1956). In this case the statute provides in no uncertain terms
that consent occurs when it is executed in the presence of one of the five
listed entities. See Ind. Code § 31-19-9-2. That did not happen here.
Thus, there was no consent. And absent consent there is nothing to which
post-birth conduct can attach. I therefore dissent and would affirm the
judgment of the trial court.
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[1] Ind. Code § 33-16-2-2(a)(6) provides in part that a notary shall not
“acknowledge the execution of … an instrument unless the person who
executed the instrument: (i) signs the instrument before the notary; or
(ii) affirms to the notary that the signature on the instrument is the
person’s own.” Notaries are reminded of their obligations in this regard.
[2] The Consent Statute was recodified at Ind. Code §§ 31-19-9-2 in P.L.1-
1997, § 11. Previously, it had had been codified at Ind. Code § 31-3-1-6.
Prior to the enactment of the Indiana Code in 1971, the Consent statute
appeared at Burns Code § 3-120.
[3] See Emmons v. Dinelli, 235 Ind. 249, 133 N.E.2d 56 (1956); Rhodes v.
Shirley, 234 Ind. 587, 129 N.E.2d 60 (1955); Johnson v. Cupp, 149 Ind.App.
611, 274 N.E.2d 411, 413 (1971); In re Adoption of Chaney, 128 Ind.App.
603, 150 N.E.2d 754 (1958).
[4] The H.M.G. court did not discuss Ex Parte Sullivan, 407 So.2d 559 (Al.
1981), where the Alabama Supreme Court, construing the Indiana Consent
Statute, held invalid a biological mother’s consent to adoption both
because it was executed prior to birth and because it was not executed in
the presence of any of the entities specified in the Consent Statute.
Likewise, the parties to and the Court of Appeals in this case also
do not mention Sullivan.
[5] The doctrine provides that “the failure of the legislature to change a
statute after a line of decisions of a court of last resort giving the
statute a certain construction amounts to an acquiescence by the
Legislature in the construction of the court and that such construction
should not then be disregarded or lightly treated.” Heffner v. White, 221
Ind. 315, 47 N.E.2d 964, 965 (1943); see also Miller v. Mayberry, 506
N.E.2d 7, 11 (Ind. 1987); Foster v. Evergreen Healthcare, Inc., 716 N.E.2d
19, 28 (Ind. Ct. App. 1999), trans. denied. There has not been a “line of
decisions” from any court construing the validity of pre-birth consent.
Further, until today this is the first occasion a “court of last resort”
has weighed in on the issue.