Adoption of Hewitt, Matter of

• Decision Date: 27 November 1979
• Docket Number: No. 2-977A361,2-977A361
• Citation: 396 N.E.2d 938
• Parties: In the Matter of the Adoption of Infant HEWITT.
• Court: Indiana Appellate Court

Page 938

396 N.E.2d 938

In the Matter of the Adoption of Infant HEWITT.

No. 2-977A361.

Court of Appeals of Indiana, Second District.

Nov. 27, 1979.

John M. Ross, Rees, Ross & Boese, Indianapolis, for appellant.

Frank W. Hogan, Willsey, Willsey & Hogan, Indianapolis, John P. Price, Bingham, Summers, Welsh & Spilman, Daniel R. Fagan, Indianapolis, for appellee.

SHIELDS, Judge.

Natural Mother executed a consent for adoption on October 31, 1975, two days after the birth of Child and the day she was released from the hospital. Adopting Parents, on that same day, filed their Petition for Adoption and, pursuant to a petition, received the temporary custody of Child. November 10, 1975 Natural Mother filed a petition to withdraw consent claiming, in essence, a change in circumstances and, as the natural mother, a better ability to raise the child. The trial court denied the petition after hearing and granted the Petition for Adoption filed by Adopting Parents.

Natural Mother appeals, asserting as error:

1. Indiana's consent statute violates the Fourteenth Amendment of the United States Constitution.

2. Insufficient evidence to establish a knowing and voluntary consent to adoption by the Natural Mother.

3. Insufficient evidence to establish it was in the best interest of the child to deny the petition to withdraw consent.

We affirm.

I.

Natural Mother contends the Indiana adoption statute is constitutionally infirm in merely requiring the consent of a natural parent. She argues the statute must further require a determination of voluntariness without which there is interference with her fundamental right as a parent. It is her position the determination of voluntariness must be met by either requiring the natural parent have appointed legal counsel at the time the consent is executed or a hearing "at which proper safeguards would be afforded." Natural Mother does not describe this hearing; we assume she seeks the execution of the consent in open court following a judicial "advice of rights."

Natural Mother gives us no authority, nor has our research found any support for her argument requiring Miranda ¹ type warnings before a valid consent to adoption can be given.

We recognize the right to raise one's children is deemed "essential," " basic," and "far more precious than property rights," and within the protection of the Fourteenth Amendment. Stanley v. Illinois, (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Prince v. Massachusetts, (1944) 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645.

Those cases which commonly invoke the protection of the Fourteenth Amendment involve action by the State to terminate parental rights or the State's refusal to recognize the existence of a parental right (E. g., putative father) or the State's declaration of forfeiture of parental right (E. g., failure to support, desertion). The common denominator is State interference with the parental relationship. The specific provision of the adoption law which is attacked by Natural Mother does not fall within that category. Rather, it extends to a natural parent a right not otherwise available, the right to lawfully "abandon" a child. Indeed, the conduct permitted by the consent statute could be criminal without the statutory authority. While we do not necessarily consider a consent to adoption as a contract, nevertheless, the consent provision can be compared to the statute empowering married women freedom to separately contract. Merely because the two statutes exist does not require the exercise of the rights. The statutes are permissive and not coercive. We do not find sufficient state action, in providing the right, to require any protection of the decision to exercise that right other than requiring it to be exercised free from fraud, duress, or similar consent-vitiating conduct. In fact, our statute has afforded additional protection to exercising the right by allowing consent, even though voluntarily executed, to be withdrawn prior to final decree of adoption if withdrawal is in the best interest of the child. ² Just as a binding, enforceable contract may be executed without the protection of advice of counsel or a judicial hearing, so also may a valid consent be executed.

Undoubtedly, coercive circumstances frequently surround natural parent(s)' execution of consent to adoption. However, the coercion is not the result of state action. Indeed, the state provides ameliorating conditions by providing procedures for establishing paternity, granting financial aid to dependent children, and legalizing abortion. The opportunity to consent to adoption can indeed be ameliorative to a natural parent with the best interest of the child foremost in mind.

We therefore hold that the advice and consultation of an attorney is not a condition precedent to the execution of a valid consent to adoption.

Furthermore, Natural Mother was perfectly free to seek the advice and counsel of an attorney at any time, including the exact moment she executed the waiver. The record is totally devoid of any evidence or claim that she suffered any interference with the exercise of this right or, indeed, that she made any effort to secure such advice and counsel.

We also find no merit in Natural Mother's argument that some type of advice hearing is necessary in order to guarantee a knowing and voluntary consent.

Nor does the Natural Mother show how she would be in a superior position to question the voluntariness of her consent at the proceeding from which she now appeals had she had a judicial advice hearing.

We hold the statutory provision for consent, as expanded by case law recognizing the right to invalidate a consent obtained by fraud, duress, or similar overreaching practices, is constitutionally adequate.

II.

Natural Mother claims the evidence is insufficient to establish her knowing and voluntary consent to the adoption of Child.

Our Supreme Court, albeit in Dicta, has acknowledged that consent to adoption must be the voluntary or intentional act of the natural parent(s). Voluntary, in the sense of executing a consent, implies an act of one's own volition, free from duress, fraud, or other consent-vitiating factors, and with knowledge of essential facts. Emmons v. Dinelli, (1955) 235 Ind. 249, 133 N.E.2d 56; Rhodes v. Shirley, (1955) 234 Ind. 587, 129 N.E.2d 60.

Voluntariness is distinguishable from the issue of withdrawal of consent. If a consent is given involuntarily, the issue is not one of withdrawal of the consent but rather the validity of the consent itself. Consent does not exist where obtained through fraud, duress, or other consent vitiating factors and an adoption obtained with an invalid consent would be subject to attack as any other judgment obtained by fraud, duress, or other such practices. Rhodes v. Shirley, supra. See, e. g., Indiana Rules of Procedure, Trial Rule 60(B).

The issue of an invalid consent may be raised in the adoption hearing by the intervention of the natural parent, as in Rhodes v. Shirley, supra, or it may be raised, as here, by a petition to withdraw consent. Whatever procedure is used, the burden of proof falls upon the intervenor or the petitioner because it is in the nature of an affirmative defense to a facially valid consent. ³ Rhodes v. Shirley, supra.

Natural Mother appeals from a negative judgment which is a judgment on a claim rendered against a party with the burden of proving the...