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Friday, November 30, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In In the Matter of the Adoption of Minor Children: C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., a 22-page opinion including a separate concurring opinion, Judge Bailey writes:

C.A.B.’s (“Birth Mother”) parental rights as to C.B.M. and C.R.M. (“the Children”) were terminated by the Jasper Circuit Court. During the pendency of Birth Mother’s appeal of the termination order, J.D.M. and K.L.M. (“Adoptive Parents”) sought to adopt the Children. The Jasper County Department of Child Services consented to Adoptive Parents’ request, even though Birth Mother’s appeal remained pending. The Jasper Superior Court granted the adoption petition, also while Birth Mother’s appeal remained pending.

This Court reversed the termination order, after which Birth Mother sought to set aside the adoption decree. In the course of these proceedings, Birth Mother raised issues concerning the constitutionality of Indiana’s adoption statutes, and thus the Office of the Attorney General entered an appearance and provided briefing in the matter. The adoption court ultimately denied Birth Mother’s petition to set aside the adoption decree, and she now appeals that decision.

We reverse and remand for further proceedings.

Birth Mother raises several issues for our review, but we find one issue dispositive: whether DCS’s decision to consent to the Children’s adoption without notice to Birth Mother during the pendency of her appeal of the termination order was arbitrary and capricious, and thereby deprived Birth Mother of her due process rights under the Indiana and United States Constitutions. * * *

There is nothing in the record to suggest that DCS informed either Birth Mother or this Court that the adoption was proceeding during the pendency of the appeal. Adoptive Parents and the State now argue that Birth Mother’s present challenge to the adoption is moot because its basis—the invalidity of the termination order upon appeal—was rendered of no effect by the adoption itself. Put another way, the Appellees’ rationale suggests that this Court’s reversal of the termination order has no effect because DCS—that is, a state
administrative agency—took action to preclude our review of the termination order. Although Birth Mother would have no avenue for substantive relief as a practical matter, the State argues that this is an appropriate result.

Yet, whatever power the State may have through DCS, an administrative agency of the executive branch, its power does not encompass arbitrary and capricious acts—especially where its actions cut off the constitutionally guaranteed right to an appeal that may afford relief. See Ind. Const. Art. 7, sec. 6 (providing “in all cases an absolute right to one appeal”). Ironically, the State argues that such an outcome serves the State’s, the Children’s, and the Adoptive Parents’ interests in finality through a quick resolution of the Children’s placement.

We do not agree. * * *

Where, as here, DCS is aware of a pending appeal of the termination of a parent’s rights but consents to the adoption of the children covered by a termination order, it is incumbent upon DCS to provide notice of the adoption proceedings. Holding otherwise would permit an executive branch agency to determine the nature and extent of a parent’s right to meaningful appellate review of a court order disposing of one of the most precious substantive rights afforded to our citizens under the Indiana and United States Constitutions: the right to raise one’s children.

We do not hold, however, that the statutory scheme at issue here is unconstitutional either facially or as applied to Birth Mother in this case. The adoption statutes, taken together with existing constitutional guarantees, place upon DCS the burden of honoring due process rights where it has succeeded in an action to terminate a parent’s rights and the parent seeks review of the termination order. It is incumbent upon DCS to act in a manner that comports with due process rights where its actions affect the substantive and procedural rights of parents—even those whose parental rights have been terminated. This case is no exception to that requirement. * * *

The State’s consent to the adoption of the Children was arbitrary and capricious and in derogation of Birth Mother’s procedural due process right to a meaningful appeal of the termination order. The adoption decree is therefore void. We do not, however, conclude that the statutory scheme for adoption in Indiana is unconstitutional. We therefore reverse the adoption court’s denial of Birth Mother’s petition to set aside the adoption decree and remand this matter for further proceedings. Reversed and remanded.

BAKER, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [that begins, at p. 19 of 22] I agree with the majority that Birth Mother’s due-process rights were violated, she should have received notice of the adoption proceedings, and the adoption decree must be set aside. I also agree with the majority’s conclusion that the adoption statutes at issue are constitutional. My reasoning, however, is different. I conclude that the adoption statutes require notice of adoption proceedings to birth parents whose rights have been terminated but who have not exhausted their appeals.

In Peabody Energy Corp., Peabody Coal Co., LLC, and Black Beauty Coal Co. v. Richard F. Roark and Beelman Truck Co., and North American Capacity Ins. Co. , a 4-page opinion on a petition for rehearing, Judge Barnes writes:
We grant NAC’s petition for rehearing; however, we affirm our opinion in all regards. * * *

It is well settled that any question not argued on appeal cannot be raised for the first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008), opinion on reh’g, trans. denied. Accordingly, NAC may not argue for the first time in its petition for rehearing that it only has a duty to defend Peabody or that it is premature to determine whether it owes a duty to indemnify Peabody. We affirm our opinion in all regards.

NFP civil opinions today (2):

In Re: 2009 Marion County Tax Sale Parcel No. 1019054; Darryl W. Finkton, Sr. v. Auditor of Marion County, Treasurer of Marion County, and Indy-East Asset Development Corp. (NFP)

Siraj Khaja Ahmed v. Asma Saman Ahmed (NFP)

NFP criminal opinions today (5):

Steven Hook, Jr. v. State of Indiana (NFP)

Erich Wilhelmi v. State of Indiana (NFP)

Danny G. Young v. State of Indiana (NFP)

Jose Carlos Arce v. State of Indiana (NFP)

Alberto R. Melendez Cruz v. State of Indiana (NFP)

Posted by Marcia Oddi on November 30, 2012 12:43 PM
Posted to Ind. App.Ct. Decisions