Neal v. Termination of the Parent-Child Relationship of M.N.

Attorneys for Appellant Attorneys for Appellee
Suzanne Shuman Rister W. Eric Weber
Antwerp, Ohio Auburn, Indiana

____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 17S03-0209-JV-470

Mary Neal,
Appellant (Respondent below),

v.

In The Matter of the Termination of the
Parent-Child Relationship of M.N. and H.N.,
Children, and Michael Neal, Sr., Father, by
the Dekalb County Division of Family and
Children,
Appellee (Petitioner below).

_________________________________

Appeal from the Dekalb Circuit Court, No. 17C01-0010-JT-003
The Honorable Paul R. Cherry, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 17A03-0101-
JV-8
_________________________________

September 25, 2003

Rucker, Justice.

This opinion resolves the question of whether a parent may initially
consent to the termination of her parental rights and later appear in open
court and change her mind. We hold that she may.
Facts and Procedural History

Mary Neal is the natural parent of H.N. born February 5, 1989, and
M.N. born August 10, 1990. In September 1999, both children were adjudged
to be Children in Need of Services, made wards of the court, and placed in
foster care. Under provisions of a dispositional decree and a parental
participation order, the Dekalb County Office of the Division of Family and
Children (“DFC”) offered Neal a variety of services designed to assist her
as a parent and to facilitate reunification with the children. Determining
that Neal had failed to accept the services or that the services offered
had been ineffective, DFC decided to seek the involuntary termination of
Neal’s parent-children relationship. To that end, Neal was invited to
attend a case plan review scheduled for October 5, 2000. The meeting was
held at the DFC offices. In attendance were Neal, the Case Manager, and
the Guardian Ad Litem for H.N. and M.N. While informing Neal that she
intended to file a petition to terminate Neal’s parental rights, the Case
Manager along with the Guardian Ad Litem explored with Neal the option of
voluntarily relinquishing her parental rights. During the discussion the
Case Manager read to Neal the necessary consent forms for a voluntary
relinquishment of parental rights, which Neal acknowledged she understood.
The Case Manager also advised Neal that voluntary relinquishment of
parental rights was irrevocable. When Neal informed the Case Manager that
she wanted to sign the form, the Case Manager told her that she did not
have to sign the forms that day and that she should discuss the matter with
someone, preferably an attorney. Neal declined and signed one form
consenting to the termination of her parental rights to H.N. and a separate
form consenting to the termination of her parental rights to M.N.

Later that day Neal decided that she did not want to relinquish her
parental rights voluntarily to either child. The record is unclear as to
how DFC became aware of that fact. In any event after apparently being so
advised, on October 11, 2000, DFC filed a petition with the trial court for
the involuntary termination of Neal’s parental rights.[1] On October 16,
2000, Neal appeared in court for what was described as a Voluntariness
Hearing at which Neal “would confirm the voluntariness of her signing
Voluntary Relinquishment of Parental Rights forms.” R. at 3. After
acknowledging that she had signed forms that “were to have [her] give up
[her] rights to [her] children” Neal told the trial court that she “had
time to think about it and [would] like to have a Court-appointed lawyer”
to give her advice. Id. at 4. The trial court honored the request,
appointed counsel, and the matter was continued.

Thereafter on December 4, 2000, the trial court conducted a hearing
to determine whether Neal’s prior written consent was voluntarily given.
Represented by counsel, Neal testified essentially that although she signed
the consent forms she changed her mind and did not want to terminate her
parental rights. Neal also testified that she felt pressured to sign the
forms. The trial court determined that Neal’s attempt to “retract or
revoke her October 5, 2000, consent to termination of her parental rights
is not a valid retraction or valid revocation and it does not affect the
validity of her prior voluntary relinquishment of her parental rights.”
Appellant’s App. at 7. The trial court ordered that Neal’s parental rights
with respect to both children be terminated.

On review, the Court of Appeals reversed on grounds that Neal had not
consented to the voluntary termination of her parental rights in open
court. Neal v. Termination of Parent Child Relationship of M.N. & H.N.,
768 N.E.2d 485, 490 (Ind. Ct. App. 2002). The Court acknowledged that at
least two other panels of the Court of Appeals reached contrary conclusions
on facts similar to those presented in this case.[2] Having previously
granted transfer, we now accept DFC’s invitation to resolve the conflict in
the Court of Appeals’ opinions. In so doing we reverse the judgment of the
trial court.

Discussion

The voluntary termination of the parent-child relationship is
controlled by statute. In order for the court to accept a parent’s
voluntary consent to the termination of parental rights, Indiana Code
section 31-35-1-6(a) provides:

[T]he 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) the parents were notified of their constitutional and other
legal rights and of the consequences of their actions under
section 12 of this chapter; and

(3) the parents failed to appear.

Ind. Code § 31-35-1-6(a) (“Section 6”). As can be readily seen, this
statute specifically requires that consent to terminate must be given “in
open court.” Only where the parent “fail[s] to appear” in open court is
this requirement not applicable. In that instance the parent’s prior
written consent will suffice to terminate parental rights provided (i) the
parent gave written consent to an authorized person, and (ii) the parent
was provided with notice of the parent’s legal and constitutional rights
and the consequences of the parent’s action. Id. If this were the end of
the matter, then resolving this case would be rather straightforward. The
record is clear that Neal did not give her consent to terminate in open
court. Thus, under this statute it would appear that the trial court was
without authority to terminate Neal’s parental rights.

However, another provision of the Indiana Code provides in relevant
part:

For purposes of sections 6 and 8 [I.C. § 31-35-1-6 and I.C. § 31-
35-1-8] of this chapter, the parents must be advised that:

(1) their consent is permanent and cannot be revoked or set
aside unless it was obtained by fraud or duress or unless the
parent is incompetent;

* * *

(8) the parents will receive notice of the hearing at which the
court will decide if their consent was voluntary and the parents
may appear at the hearing and allege that the consent was not
voluntary.

I.C. § 31-35-1-12 (“Section 12”). It is this statute to which DFC points
in arguing that when a parent appears in open court as provided under
Section 6 and indicates that she does not consent to termination, the court
need only conduct a hearing to determine whether the initial written
consent was entered knowingly and voluntarily. See J.W.W.R., 712 N.E.2d at
1085 (declaring that Section 12 “specifically limits a parent’s ability to
revoke or set aside her consent ‘unless it was obtained by fraud or duress
or unless the parent is incompetent’”).

In DFC’s view, the “in open court” provision of Section 6 is
essentially a nullity. Our colleagues on the Court of Appeals acknowledged
the apparent inconsistency between Sections 12 and 6. However, in
reversing the judgment of the trial court, the Court of Appeals determined
that the two statutes could be harmonized. Although we agree that the
judgment of the trial court should be reversed, it is our view that the two
statutes cannot be harmonized but rather are in irreconcilable conflict.

We reach this view for the following reasons. Section 12 outlines a
list of advisements that parents must be given.[3] Subparagraph (8) is
particularly instructive. First, by declaring, “the parents will receive
notice of the hearing,” subparagraph (8) strongly suggests that the
foregoing advisements are to be given to parents out of court and in
advance of any hearing.[4] Customarily this is done by DFC before the
parent signs a written consent for voluntary termination. Cf. In re M.S.,
B.G., & C.G., 551 N.E.2d 881, 882 (Ind. Ct. App. 1990) (case in which
attorney for parents presented couple with “Voluntary Relinquishment of
Parental Rights” forms), trans. denied. Second, by declaring “the parents
may appear at the hearing and allege that the consent was not voluntary”
subparagraph (8) infers that should the parent appear in court and contest
the written consent previously given, the only issue for the court to
decide is whether the written consent was voluntary.

In stark contrast, by providing “parents must give their consent in
open court” unless certain statutory prerequisites are met, Section 6
suggests that should the parent appear in open court, the parent need not
contest the written consent as such. Rather, the parent need only take the
stand and refuse to consent thereby revoking the previously given written
consent. In essence, under the open court provision of Section 6,
voluntariness is not an issue while at the same time voluntariness is the
only relevant issue under Section 12. We see no way these two statutes can
be reconciled. Thus, for guidance we turn to familiar tenets of statutory
construction.

In construing a statute our main objective is to determine, give
effect, and implement the intent of the legislature. Melrose v. Capital
City Motor Lodge, Inc., 705 N.E.2d 985, 989 (Ind. 1998). Where two or more
statutes contradict each other or are in apparent conflict, we attempt to
construe them in harmony. Purcell v. State, 721 N.E.2d 220, 223 (Ind.
1999). However where, as here, there is an irreconcilable conflict between
the statutes we will interpret the legislative intent to be that one
statute must give way to another. Wright v. Gettinger, 428 N.E.2d 1212,
1219 (Ind. 1981); Fridono v. Chuman, 747 N.E.2d 610, 617 (Ind. Ct. App.
2001).

In determining whether the legislature intended that one statute
should prevail over another, some cases emphasize that the more specific or
detailed statute should prevail over the more general statute. See, e.g.,
W. Clark Cmty. Sch. v. H.L.K., 690 N.E.2d 238, 241 (Ind. 1997); State v.
Greenwood, 665 N.E.2d 579, 583 (Ind. 1996); Freeman v. State, 658 N.E.2d
68, 70 (Ind. 1995). Other cases emphasize that the most recent expression
of the legislature shall prevail over the older one. See, e.g., State ex
rel. State Bd. of Tax Comm’rs v. Daviess Cir. Ct., 249 Ind. 580, 230 N.E.2d
761, 764 (1967); Waldridge v. Futurex Indus. Inc., 714 N.E.2d 783, 785
(Ind. Ct. App. 1999), trans. denied; Borgman v. Aikens, 681 N.E.2d 213, 219
(Ind. Ct. App. 1997), trans. denied. This latter rule of construction is
of little guidance to us here in that Section 6 and Section 12 were enacted
at the same time. However concerning a more specific and detailed statute,
we make the following observations. It is true that Section 12 is detailed
and specific, see supra note 3, but only as to the advisements that parents
are given in the first instance before signing a written consent. On the
critical question of the significant import of the consent, Section 6
provides that a parent must give her consent in open court unless the court
makes several very specific findings, including the finding that the parent
failed to appear in open court. This focus on the import of the open court
consent, as contrasted with the advice a parent is given out of court
before signing a consent form, persuades us that the legislature intended
that Section 6 should prevail over Section 12.

This view is consistent also with the principle that the parents’
interest in the care, custody, and control of their children is “perhaps
the oldest of the fundamental liberty interests” recognized by the United
States Supreme Court. Troxell v. Granville, 530 U.S. 57, 65 (2000). As
our Court of Appeals has observed, the parent-child relationship is "one of
the most valued relationships in our culture." Tillotson v. Clay County
Dep’t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002),
trans. denied; In re Termination of the Parent-Child Relationship of D.L.M.
& M.G., 725 N.E.2d 981, 983 (Ind. Ct. App. 2000).

DFC’s insistence that a parent is forever bound by an out of court
written consent appears to rest on a State interest of finality and
predictability in the voluntary termination of parental rights. As DFC
explains “the process of coming to open court after a consent to terminate
parental rights, serves only the purpose of challenging a consent executed
under coercion or duress, and not a simple change of heart.” Pet. to
Trans. at 9.

We acknowledge that the State’s interests are powerful. However, we
are faced here with two statutes that are in irreconcilable conflict.
Absent a clear legislative directive that the State’s interests outweigh
the interests of parents, we must conclude that the Legislature intended
that Section 6 prevail over Section 12. See Stanley v. Illinois, 405 U.S.
645, 651 (1972) (declaring that the essential and basic constitutional
rights of parents to the care, custody and control of their children
warrant protection “absent a powerful countervailing interest.”). We
therefore agree with the holding of the Court of Appeals: “[A] parent’s
written consent to the voluntary termination of her parental rights is
invalid unless she appears in open court to acknowledge her consent to the
termination, or unless all three of the exceptions set out in Indiana Code
Section 31-35-1-6(a) are satisfied.” Neal, 768 N.E.2d at 490. Because
Neal appeared in open court but did not consent to termination, the trial
court erred in entering an order for the voluntary termination of Neal’s
parental rights.

Conclusion

We reverse the judgment of the trial court. This cause is remanded
for further proceedings.

Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion in which Boehm, J., concurs.
Sullivan, Justice, dissenting.

I respectfully dissent. Justice Rucker’s interpretation of the
Legislature’s intent is highly plausible and, indeed, essentially one to
which I once subscribed when I concurred in Justice Dickson’s dissent from
the denial of transfer in Ellis v. Catholic Charities, 685 N.E.2d 476, 477
(Ind. 1997) (Dickson, J., dissenting from the denial of transfer).
However, I believe that the State’s proffered interpretation of the
Legislative intent is equally plausible and the doctrines of stare decisis
and legislative acquiescence warrant affirming the trial court’s decision
here, a decision that reflects established practice in Indiana juvenile
courts.

The decision of the Court of Appeals in this case reflects the first
time an Indiana appellate court has held that a parent has the automatic
right to withdraw a prior voluntary consent to an adoption or to the
termination of his or her parental rights. Neal v. Termination of the
Parent Child Relationship of M.N., 768 N.E.2d 485, 489 (Ind. Ct. App.
2002). Compare Rhodes v. Shirley, 234 Ind. 587, 593, 129 N.E.2d 60 (Ind.
1955) (adoption); In re J.W.W.R., 712 N.E.2d 1081, 1085 (Ind. Ct. App.
1999) (termination of parental rights); Ellis v. Catholic Charities, 681
N.E.2d 1145 (Ind. Ct. App. 1997) (adoption), transfer denied, 685 N.E.2d
476; In re Snyder, 1981 Ind. App. LEXIS 1515, 418 N.E.2d 1171, 1180 (1981)
(adoption and termination of parental rights). The Court of Appeals
justified its departure from precedent at least in part on the fact that
Justice Dickson and I had dissented in Ellis and Justice Rucker, as a
member of the Court of Appeals, had dissented in J.W.W.R. However,
precedent remains that a parent cannot set aside his or her consent “unless
it was obtained by fraud or duress or unless the parent is incompetent.”
J.W.W.R., 712 N.E.2d at 1085 (quoting Ind. Code § 31-35-1-12(1)). The
Legislature has not changed this long-standing interpretation.

Indiana law is clear that a parent’s consent to the termination of
his or her parental rights must be voluntary and a parent who contends that
a consent given was not voluntary has a statutory right to a hearing on
that issue. The statute – if not the Constitution – mandates that this
right is entitled to vigorous protection. But stare decisis and
legislative acquiescence have long since established that a parent cannot
set aside his or her consent unless it was obtained by fraud or duress or
unless the parent is incompetent.

Over the years, authorities on Indiana juvenile court practice have
also adopted this interpretation of statute and precedent. See Frances G.
Hill & Derelle Watson-Duvall, The CHINS Deskbook 2001, ch. 10-4; Judicial
conference of Indiana, Juvenile Justice Benchbook, § T-100 at 2-5 (1999);
J. Eric Smithburn & Ann–Carol Nash, Family Law – Children In Need of
Services, § 26.14 at 369-370 (West 2002). That is what Judge Cherry did in
this case. I would affirm his decision.

Boehm, J., concurs.

-----------------------
[1] This petition apparently is still pending before the trial court
and is not affected by our holding today.
[2] See In re Termination of Parent-Child Relationship of J.W.W.R and
G.L.R., 712 N.E.2d 1081 (Ind. Ct. App. 1999), trans. denied; In re
Termination of the Parent-Child Relationship of Infant Ellis, 681 N.E.2d
1145 (Ind. Ct. App. 1997), trans. denied.
[3] The statute specifically provides:
For purposes of sections 6 and 8 [I.C. §§ 31-35-1-6 and 31-35-1-8] of
this chapter, the parents must be advised that:
(1) their consent is permanent and cannot be revoked or set aside
unless it was obtained by fraud or duress or unless the parent is
incompetent;
(2) when the court terminates the parent-child relationship:
(A) all rights, powers, privileges, immunities, duties, and
obligations, including any rights to custody, control, visitation,
or support pertaining to the relationship, are permanently
terminated; and
(B) their consent to the child’s adoption is not required;
(3) the parents have a right to the:
(A) care;
(B) custody; and
(C) control;
of their child as long as the parents fulfill their parental
obligations;
(4) the parents have a right to a judicial determination of any
alleged failure to fulfill their parental obligations in a proceeding
to adjudicate their child a delinquent child or a child in need of
services;
(5) the parents have a right to assistance in fulfilling their
parental obligations after a court has determined that the parents are
not doing so;
(6) proceedings to terminate the parent-child relationship against
the will of the parents can be initiated only after:
(A) the child has been adjudicated a delinquent child or a child in
need of services and removed from their custody following the
adjudication; or
(B) a parent has been convicted and imprisoned for an offense
listed in IC 31-35-3-4 (or has been convicted and imprisoned for an
offense listed in IC 31-6-5-4.2(a) before its repeal), the child has
been removed from the custody of the parents under a dispositional
decree, and the child has been removed from the custody of the
parents for six (6) months under a court order;
(7) the parents are entitled to representation by counsel, provided
by the state if necessary, throughout any proceedings to terminate the
parent-child relationship against the will of the parents; and
(8) the parents will receive notice of the hearing at which the court
will decide if their consent was voluntary, and the parents may appear
at the hearing and allege that the consent was not voluntary.

[4] Indiana Code section 31-35-1-8 (“Section 8”) provides: “Before consent
can be given in court, the court must advise the parents of: (1) their
constitutional and other legal rights; and (2) the consequences of their
actions under section 12 [I.C. § 31-35-1-12] of this chapter.” The
“consequences” here apparently refer to subparagraphs (1) through (3) of
Section 12.