In re Adoption of Infant Child Baxter
| Decision Date | 09 December 2003 |
| Docket Number | No. 29S02-0303-CV-117.,29S02-0303-CV-117. |
| Citation | 799 N.E.2d 1057 |
| Parties | 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). |
| Court | Indiana Supreme Court |
Charles P. Rice, South Bend, IN, Attorney for Appellant.
Yvonne F. Watkins, Indianapolis, IN, Attorney for Appellee.
ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 29A02-0202-CV-107.
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.
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).
"A proceeding for the adoption of a child is statutory...." Johnson v. Smith, 203 Ind. 214, 176 N.E. 705, 706 (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:
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.
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:
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