Walker v. Campbell
| Decision Date | 05 August 1999 |
| Docket Number | No. 17A03-9806-CV-279.,17A03-9806-CV-279. |
| Citation | 711 N.E.2d 42 |
| Parties | Jack Michael WALKER, Jack L. Walker and Stella Walker, Appellants, v. Jennifer Renee CAMPBELL and Kevin Eugene Campbell, Appellees. |
| Court | Indiana Appellate Court |
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J. Bryan Nugen, Auburn, Indiana, Attorney for Appellants.
Robert J. Hardy, Thomas & Thomas, Waterloo, Indiana, Attorney for Appellees.
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Appellants Jack Michael Walker ("Father"), and Jack L. and Stella Walker ("Grandparents") appeal the granting of the petition for the adoption of Father's natural son filed by Jennifer Renee and Kevin Eugene Campbell, the child's mother and her husband ("the Campbells"). We reverse.
The dispositive issue may be restated as whether Indiana's adoption statutes which have operated to establish Father's irrevocable, implied consent to the adoption, without benefit of notice or hearing, are violative of Father's constitutional due process rights as applied under the present circumstances where Father has made regular and substantial child support payments and has exercised, and has attempted to exercise, regular visitation with the child.1
The Campbells have accepted Father's statement of the facts as set forth in his brief. (Appellee's brief at 2). Father has characterized the Campbells' conduct in procuring this adoption as a covert adoption by ambush. (R. 87, 90).
The facts in the light most favorable to Father, reveal that the child who is the subject of this dispute was born out of wedlock on November 29, 1991. (R. 9). Jennifer Renee Campbell is the child's natural mother ("Mother"). (R. 10). Father is the child's natural father. (R. 10). The child's birth certificate names Father as the child's natural father. (R. 55). The child was given Father's last name. (R. 23).
Father's paternity has never been established by formal court proceedings or otherwise. (R. 10). Nor had Father registered his paternity with the Putative Father Registry before these proceedings were initiated. (R. 56).
Nevertheless, Father and Grandparents exercised regular visitation with the child. (R. 26, 45, 91, 93). Father also paid child support to Mother in the amount of $60.00 per week until July 11, 1997. (R. 23). At that point, however, Mother destroyed the check representing Father's July 19, 1997, payment and indicated that she would no longer accept payments. (R. 23). The Campbells rebuffed all further attempts of Father and Grandparents to exercise visitation with the child. (R. 23, 26).
Shortly afterward, on October 23, 1997, the Campbells filed a petition to adopt the child. In this petition they alleged:
(R. 10). The code sections cited in this pleading had been repealed at the time the petition was filed. P.L.1-1997 § 157. Although the pleading did not comply with the formalities prescribed by Ind. Trial Rule 11 for verifications, the signatures of the Campbells were notarized. (R. 11).
Even though the Campbells had been aware of Father's whereabouts at all times and that he could be contacted through Grandparents, the Campbells filed an "Affidavit in Support of Service by Publication." (R. 14, 45, 87). In this affidavit, the Campbells swore upon their oath that:
the natural father of the child ... is Father, and that his whereabouts are unknown...
(R. 14). The published notice provided Father read as follows:
Notice is hereby given to Father that the Campbells have filed a Petition for Adoption of the child, and that said petition will be heard by the DeKalb Circuit Court and the judge thereof on the 29th day of December, 1997, at 11:45 A.M. If Father does not appear in person or by counsel and file a response to said Petition for Adoption by such time, said petition will be heard in his absence and he will be considered in default and that said adoption may be granted by the Court.
(R. 17). This notice was published in the local newspaper on October 30th, November 6, and November 13, 1997. (R. 18).
Father retained an attorney who filed an "Objection to the Adoption" on December 24, 1997, within the time prescribed by the notice published by the Campbells. (R. 23). Father's attorney alone appeared for the December 29, 1997, hearing. (R. 6). Accordingly, the proceedings were continued. (R. 6).
On February 6, 1998, Father filed a verified petition to establish paternity in the present action. (R. 29). Father also registered his paternity in the Putative Father Registry administered by the Indiana State Department of Health. (R. 56). Grandparents also filed their "Verified Petition to Establish Grandparental Visitation and Request for Hearing" on February 6, 1998. (R. 26). Father and Grandparents are represented by the same attorney. (R. 26, 29).
On March 6, 1998, after the Campbells discovered that they had cited repealed code sections in their original petition, they filed an amended petition which read in pertinent part as follows:
(R. 38).
On May 1, 1998, the trial court heard oral arguments made by the opposing attorneys on the issue of whether Father's objection to the adoption proceedings should be dismissed. (R. 82, 83). Of the parties, only Father's mother, Stella Walker, appeared in person. (R. 82). No evidence was taken at the hearing. (R. 70).2
The trial court overruled Father's objection to the adoption, finding that Father was not entitled to notice of the adoption proceedings, nor was his consent required. (R. 73). The trial court ruled that Father had irrevocably and impliedly consented to the adoption by operation of IND.CODE § 31-19-9-1. (R. 73).3 Accordingly, the trial court granted the adoption over Father's objection. (R. 73, 75). The trial court also denied Grandparents' petition for visitation. (R. 75). This appeal ensued.
During the pendency of this appeal, Father and Grandparents filed a pleading in this court which alleged in pertinent part as follows:
Satisfactory settlement regarding visitation has been reached between the parties, thereby making further appeal effort unnecessary.
(Appellant's motion filed February 8, 1999). Ordinarily, we will dismiss an appeal upon motion where the parties have settled their dispute by compromise. See Felzien v. Felzien, 137 Ind.App. 435, 209 N.E.2d 524, 525 (1965).
The motion describes a "settlement regarding visitation" but does not address the underlying issues in this appeal, namely, whether Father was entitled to notice of the adoption proceedings and whether Father's consent was required. These core issues remain intact because an agreement to permit a putative father to exercise visitation with his child after the child has been adopted by another is entirely unenforceable. See Matter of Adoption of Topel, 571 N.E.2d 1295, 1298 (Ind.Ct.App.1991). Thus, the purported settlement regarding visitation does not, as a matter of law, confer any right, nor does it resolve any issue now before the court.4
The motion also requests "all other just and proper relief." (Appellant's motion filed February 8, 1999). It would be both unjust and improper to dismiss this appeal based on an illusory promise of visitation.
Moreover, although an appeal will ordinarily become moot when it is no longer `live' or when the principal questions in issue have ceased to be matters of real controversy between the parties, we will nevertheless address the issues raised when the action involves a matter of great public interest and affects the public generally. Sowers v. Laporte Superior Court, 577 N.E.2d 250, 251 n. 1 (Ind.Ct.App.1991). Under the public interest exception to the mootness doctrine, we will decide an appeal despite its apparent mootness where the issue raised is of great public importance and is likely to recur. Board of School Trustees v. Barnell, 678 N.E.2d 799, 802 (Ind.Ct.App.1997) (); Evans v. Tuttle, 613 N.E.2d 854, 857 (Ind.Ct.App.1993).
The issues and rights at stake in the present case with respect to the interpretation of Indiana's statutes governing parent-child relationships are of monumental importance in the advancement of the best interests of Hoosier children and families. Quite simply, the present circumstances compel us to determine whether Indiana's adoption statutes as applied here violate the constitutional due process rights of a putative father who has grasped the opportunity and responsibility of acting as father toward his child through the payment of regular and substantial support and the exercise of regular visitation. On remand, Father and Grandparents may yet abandon...
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