Friday, August 16, 2013
Ind. Decisions - Supreme Court decides adoption case
In In Re 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., an 11-page, 5-0 opinion, Justice Rush writes:
The foster parents of C.B.M. and C.R.M. adopted them while their natural mother’s termination of parental rights (TPR) appeal was still pending. Our statutes specifically allow those competing processes to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal.ILB: A section of the opinion beginning on p. 10 is headed: "IV. Avoiding a Repeat of This Situation." It reads:
That is exactly what happened here, and we cannot unscramble that egg. Either the adoptive family prevails in violation of the natural mother’s constitutional rights, or the natural mother prevails at the risk of pulling the children away from the only family they know. But the natural mother’s rights, both as a parent and as a litigant with an absolute right to an appeal, are constitu-tionally protected. We cannot cut corners on those rights, despite our concerns for the children’s undoubtedly vital interest in a speedy and permanent placement.
We therefore conclude that the trial court should have set aside the adoption, because the prior TPR “judgment upon which it is based has been reversed or otherwise vacated”—making the adoption voidable under Indiana Trial Rule 60(B)(7). And since a dilemma like this ill-serves the interests of everyone involved, we also offer guidance for mitigating the harsh result in this case, and in any future cases of this type. * * *
There are no winners in some cases, and this is one of them. Ruling in favor of the Adop-tive Parents would violate the Natural Mother’s constitutional rights, while the opposite ruling would risk pulling the Twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the Twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions—and we must take a narrow view of the exceptions to that principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families. Thus, when the TPR judgment in this case was reversed, we must conclude that the no-consent adoption that followed on its heels became voidable under Trial Rule 60(B)(7). The trial court therefore abused its discretion in failing to set aside the adoption.
Accordingly, we reverse the trial court’s judgment, and remand with instructions to vacate the adoption decree within seven days of this Court’s opinion being certified, to reset the adoption petition for a contested hearing, and to promptly serve notice and summons of that hearing on Natural Mother. Pending that hearing, the trial court could exercise its authority to entertain motions regarding temporary custody of the Twins under Indiana Code section 31-19-2-13, until final judgment is entered.
We are all too aware of the harsh effects this decision may have on the Twins, and future children who may find themselves similarly situated through no fault of their own. We therefore offer guidance for mitigating those harsh effects in this case, and potentially avoiding them completely in future cases.See also the two footnotes on p. 2.
Foremost, this case illustrates the wisdom of doing more than “just the bare minimum.” Due Process notice requirements are just that—a bare minimum that parties always may, and sometimes ought to, exceed. While the Adoptive Parents were not required to serve notice on Natural Mother, I.C. § 31-19-2.5-4(2)(F), doing so voluntarily may well have saved the adoption from reversal. If Natural Mother had been served, the Adoptive Parents could then have requested a contested adoption hearing for litigating an alternative basis for dispensing with consent under Indiana Code section 31-19-9-8(a). Natural Mother would then have been offered a “day in court” independent of the TPR, giving this Court an alternative basis to affirm the adoption—because either she would have appeared and been heard, or else failed to appear and been properly defaulted. We emphasize that such notice is not required, and adoptive parents have the statutory right to rely solely on a trial-level TPR judgment and seek adoption pending the TPR appeal. We merely caution that such reliance comes at the adoptive parents’ peril. See Cunningham, 402 N.E.2d at 21 n.4.
Second, some of the uncertainty for the Twins could have been avoided if DCS had left the underlying CHINS case open until Mother’s TPR appeal was complete. As this case shows, children may have a particularly great “need of services” when a TPR judgment is reversed on appeal. By then, they will have been removed from the parents’ home for a substantial time, and will be bonding into a new home—especially when, as here, the foster parents plan to adopt. And the natural parent, even if not unfit, may also be in need of services before the children could appropriately return to their original home. Yet without a CHINS case, there is no ready means to provide the support all the parties here will require while reexamining the Twins’ status in light of the TPR reversal. (Indiana Code section 31-9-2-13 could authorize the Adoptive Parents to seek temporary custody of the Twins while the adoption is pending—which may very well be beneficial to the Twins, but falls far short of the services a CHINS case would permit.) We strongly suggest that in the future, DCS’s best practice would be to leave underlying CHINS cases open until any related TPR appeal is complete.
Finally, we reiterate that granting an adoption pending TPR appeal is a discretionary decision of the trial court. Our Legislature has authorized the practice, and there are surely cases in which it will be entirely appropriate to expedite the adoption. Yet it is only permitted, not required. In view of the potentially devastating consequences of having an adoption invalidated by a TPR appeal, we encourage courts to exercise that authority with an abundance of caution. Speedy per-manency for children is vitally important. But balanced against the risk that materialized in this case, a few months’ additional delay in granting an adoption may often be preferable.
Posted by Marcia Oddi on August 16, 2013 02:39 PM
Posted to Ind. Sup.Ct. Decisions