Adoptive Parents of M.L.V. v. Wilkens

Decision Date04 September 1992
Docket NumberNo. 82S05-9209-JV-673,82S05-9209-JV-673
Citation598 N.E.2d 1054
PartiesADOPTIVE PARENTS of M.L.V. and A.L.V., Appellants (Defendants Below), v. Mark WILKENS, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Marilyn R. Ratliff, John E. Hegeman, Kahn, Dees, Donovan & Kahn, Evansville, for appellants.

Katherine J. Rybak, Legal Services Organization, Evansville, Kenneth Falk, Legal Services Organization, Indianapolis, for appellee.

SHEPARD, Chief Justice.

The apparent father of the children who are the subjects of this proceeding asked that they be adopted and executed the necessary consents. After the children were adopted, he sought to set the adoption aside. We hold that he has no standing to do so and affirm the constitutionality of our statute so providing.

The adoptive parents bring this interlocutory appeal from the trial court's denial of their motion to dismiss a complaint brought against them by appellee Mark Wilkens, putative biological father of their adopted children. The adoptive parents contend Wilkens lacked standing to bring the action and that the court should have dismissed. The Court of Appeals affirmed. Van Hoose and Adoptive Parents v. Wilkens, 588 N.E.2d 604 (Ind.App.1992). We grant transfer.

I. Facts

The facts as alleged in the pleadings are as follows. Dierdre Vierra, an unmarried adult, gave birth to two children, one born in 1985 and one born in 1986. Wilkens claims to be their father, and this claim is not disputed. He lived with the children and the mother from the time the children were born until December 1987. At this time, Vierra and Wilkens placed the children for adoption through Rick and Nancy Van Hoose of Greater Love Adoption Decision, Inc. (GLAD), a licensed child placement agency. Vierra and Wilkens executed consents to the termination of their parental rights and to the adoption of the children. They waived notice of all future adoption proceedings. Record at 2-13, Exhibit A to Agreed Statement of Matters. Wilkens now alleges the Van Hooses told him he could visit the children after the adoption and says he would not have consented to the adoption otherwise.

The adoption consent form signed by Wilkens clearly stated he acknowledged and understood he was permanently relinquishing any rights to custody, control or visitation of the children. Similarly, the form he signed consenting to the termination of parental rights also declared that any rights to custody, control or visitation are permanently terminated when a court terminates the parent-child relationship.

On December 15, 1987, GLAD filed petitions to terminate the parental rights relative to both children and the consents executed by Wilkens and Vierra. The court granted GLAD immediate custody of the children for the purpose of adoptive placement, and it appointed GLAD temporary guardian. On December 21, 1987, the children were placed with the adoptive parents, where they remain today. In January 1988, the trial court held a hearing on the petitions to terminate parental rights. Wilkens asserts that just prior to this hearing Nancy Van Hoose told him not to mention the visitation agreement to the judge because it would delay the proceedings. Wilkens appeared at this hearing, but said nothing about having an interest in visitation. The court found that the consents of Vierra and Wilkens were properly signed and ordered an order terminating parental rights. The adoptive parents filed a petition for adoption in March 1988, and the court entered a final order granting the adoption in January 1989. 1

Prior to the adoption, Wilkens applied for dependent social security benefits on behalf of the children as their biological father, and the benefits were awarded. While the adoption was pending, Wilkens visited the children several times in the Van Hoose home. He also visited the children once during the summer after the adoption was final. When he spoke with the Van Hooses in the fall of 1989 to learn the children's clothing sizes so he could purchase gifts for his holiday visit, he was informed that the adoptive parents would no longer permit the visits.

In May 1990, Wilkens brought a complaint against GLAD, the Van Hooses, and the adoptive parents. He alleged misrepresentation by the Van Hooses prior to the execution of his consents, saying he never would have consented to the adoption had he realized he would not have visitation rights. He sought rescission of the termination of his parental rights, rescission of the adoption, and custody of the children or, alternatively, visitation with them. He sought damages for the loss of the love, affection and services of the children. The adoptive parents moved for dismissal and the trial court denied the motion. None of the other parties or claims are part of this appeal.

II. Standard of Review

The adoptive parents moved for dismissal pursuant to Ind. Trial Rule 12(B)(6), arguing Wilkens failed to state a claim upon which relief can be granted. A complaint is subject to dismissal under this rule if "it appears to a certainty that plaintiff would not be entitled to relief under any set of facts." Martin v. Shea (1984), Ind., 463 N.E.2d 1092, 1093. For purposes of the motion to dismiss, the facts alleged in the complaint are taken as true. Thiele v. Indiana Dept. of Highways (1985), Ind.App., 472 N.E.2d 1274.

III. Adoption Statute

The adoption statute creates a statutory proceeding unknown at common law. Because it is in derogation of the common law, we long ago held it must be strictly construed in favor of the rights of the natural parents. Emmons v. Dinelli (1956), 235 Ind. 249, 133 N.E.2d 56. That is, it must be "strictly followed in all essential particulars." In re Adoption of Subzda (1990), Ind.App., 562 N.E.2d 745, 748. Today, it seems apparent that careful administration of the statute serves purposes beyond protecting the rights of natural parents to be with their children. It also serves to protect the children and to shield all involved parties from unnecessary instability and uncertainty.

The portion of the statute at issue in this case provides in pertinent part: "[A] petition to adopt a child under eighteen (18) years of age may be granted only if written consent to adoption has been executed by the mother of a child born out of wedlock and the father of such a child whose paternity has been established by a court proceeding other than the adoption proceeding." Ind.Code Ann. Sec. 31-3-1-6(a)(2) (West Supp.1991) (emphasis added). The General Assembly emphasizes its seriousness about the paternity determination by reiterating this requirement in the same section. See Ind.Code Ann. Sec. 31-3-1-6(g)(2)(A) (consent to adoption not required from natural father of child born out of wedlock whose paternity has not been established by court proceeding other than adoption proceeding).

The parties agree that Wilkens' paternity has not been established in a court proceeding other than the adoption proceedings. See Agreed Statement of Matters. The only proceedings that occurred were the termination of parental rights hearing and the adoption proceedings. The termination hearing was held only as a part of the adoption proceedings. The order terminating parental rights notes and approves Wilkens' consent to the adoption. Vierra and Wilkens executed their consents to termination and adoption on the same day. The fact that the termination hearing was held a month before the adoption petitions were filed does not turn the termination hearing into a separate proceeding.

Because Wilkens was not a father whose paternity was established by a separate court proceeding, his consent was not necessary for the adoption. Ind.Code Ann. Sec. 31-3-1-6(a)(2). See In re M.B.H. (1991), Ind.App., 571 N.E.2d 1283 (putative father must clearly establish paternity in another action before intervening in adoption proceedings); Matter of Adoption of Baby Boy Dzurovcak (1990), Ind.App., 556 N.E.2d 951 (putative father must demonstrate he established paternity in separate proceeding prior to having power to veto adoption); M.R. by Ratliff v. Meltzer (1986), Ind.App., 487 N.E.2d 836, (putative father's consent to adoption unnecessary because his paternity had not been established in court). Only the mother's consent was needed; there is no dispute about the validity of the mother's consent. She is not a party to this action.

Wilkens had ample time to establish his paternity, and it would not have been a difficult process. The putative father may unilaterally petition to establish paternity. Ind.Code Ann. Sec. 31-6-6.1-2 (West Supp.1991). 2 From the record before us, it appears that Wilkens would have been the presumed biological father of the children. See Ind.Code Ann. Sec. 31-6-6.1-9 (West Supp.1991). Because he did not establish paternity in a separate proceeding, however, Wilkens' consent was not needed for the adoption and he cannot now contest it.

IV. Fraud Claim

Wilkens alleges that his consents were obtained by fraud because the Van Hooses told him he would have visitation after the adoption. A consent obtained by fraud is no consent at all, he continues, and thus he can challenge the adoption. Because Wilkens' consent was unnecessary to the adoption, however, whether an unnecessary consent was fraudulently obtained or not is irrelevant to the adoption decision.

Indiana Code Sec. 31-3-1-6(f) states: "A consent to adoption may not be withdrawn after the entry of the decree of adoption." Caselaw has indicated that fraud may be a reason for setting aside an adoption despite the clear language of the statute; these cases, however, deal with a person whose consent was required for the adoption. See, e.g., Emmons, 235 Ind. 249, 133 N.E.2d 56, (natural mother); Matter of Adoption of Topel (1991), Ind.App., 571 N.E.2d 1295 (father of child conceived during marriage); Matter of Adoption of Hewitt (1979), Ind.App., 396 N.E.2d 938 (natural mother). Wilkens is not a member of this class,...

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