Mother wins reversal in termination appeal over consent advisement

A mother whose parental rights were terminated after she signed a form voluntarily relinquishing them may not have been properly advised, the Indiana Court of Appeals ruled Wednesday, reversing the termination and remanding the case to the trial court.

Both mother’s and father’s parental rights were terminated after the Putnam Circuit Court found evidence of drug use, father had been incarcerated, and both parents failed to comply with DCS family case management plans. Both parents appealed in In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.C., Jr. (Minor Child) and T.J. (Mother) and D.C. (Father) v. The Indiana Department of Child Services,19A-JT-2832, and while the panel found sufficient evidence to affirm father’s termination order, it reversed in favor of mother.

“With respect to Mother, the termination of her parental rights was predicated on Mother’s written consent. As to her consent, there is no dispute that Mother received eight out of nine statutory advisements before she signed a consent form. However, there is equivocal evidence about whether Mother received the ninth advisement, which specifies that consent cannot be based upon promises regarding adoption or post-termination contact,” Judge L. Mark Bailey wrote. “Mother argues that she is entitled to reversal because there is inadequate evidence of consent. We agree that reversal is appropriate, and we remand with instructions for further factfinding regarding whether Mother received the ninth statutory advisement.”

The COA noted that mother was not at the termination hearing, though her counsel told the court that “he met with Mother and ‘went over the rights and obligations and what she — the results of voluntary termination with her prior to signing it. And she did sign the voluntary termination in front of me and acknowledged her signature in front of the court reporter,’” Bailey wrote. “The court then inquired about Mother’s absence. Mother’s counsel said that Mother was not present because she ‘became physically ill after she signed it.’ … The court then orally granted DCS’s request to terminate Mother’s parental rights, noting that it would ‘show . . . that she signed the voluntary relinquishment of her rights with her attorney, and her attorney is present here today and had an opportunity to speak with her.’”

Afterward, while child, D.C. Jr., was in foster care with a permanency plan of adoption, mother wrote the court requesting “another chance” and the opportunity to visit her child, the COA noted. It also noted that DCS admitted that a required ninth statutory advisement added in 2012 was not on the form mother signed. Under I.C. § 31-35-1-12(9), parents must be advised that “consent cannot be based upon a promise regarding the child’s adoption or contact of any type with the child after the parents voluntarily relinquish their parental rights of the child after entry of an order under this chapter terminating the parent-child relationship.”

“Mother briefly argues that her consent was involuntary because she was addicted to methamphetamine, became ill after signing the form, did not receive one of the advisements, and wrote to the court after the termination of her parental rights. However, we are not persuaded that these circumstances render the attempt at consent involuntary,” Bailey wrote for the panel. “Rather, the consent is incomplete. Under these circumstances, we must remand for further fact-finding regarding whether Mother received the ninth statutory advisement. We therefore reverse the termination of Mother’s parental rights and remand for such fact-finding.”