Neal v. DeKalb Cty. Div. of Fam. & Children

• Decision Date: 25 September 2003
• Docket Number: No. 17S03-0209-JV-470.,17S03-0209-JV-470.
• Citation: 796 N.E.2d 280
• Parties: 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).
• Court: Indiana Supreme Court

796 N.E.2d 280

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).

No. 17S03-0209-JV-470.

Supreme Court of Indiana.

September 25, 2003.

Suzanne Shuman Rister Antwerp, OH, Attorneys for Appellant.

W. Eric Weber, Auburn, IN, Attorneys for Appellee.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 17A03-0101-JV-8

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. Capitol 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...