# T.B. v. Indiana Department of Child Services

> Indiana Supreme Court · November 30, 2009 · 921 N.E.2d 494

URL: https://www.frixlaw.com/law-library/cases/7076800

## Case

- **Full name:** In the Matter of the Termination of the Parent-Child Relationship of M.B. & S.B. (Children) T.B. (Mother), (Defendant below) v. Indiana Department of Child Services, (Plaintiff below)
- **Court:** Indiana Supreme Court
- **Decided:** November 30, 2009
- **Citations:** 921 N.E.2d 494; 2009 Ind. LEXIS 1479
- **Precedential status:** Published
- **Opinion:** Concurrence by Boehm
- **Judges:** Boehm, Dickson, Rucker, Shepard, Sullivan
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7076800

## How later opinions describe it (automated extraction)

- holding that unless all provisions of the open adoption statutes are satisfied, “the voluntary termination of parental rights may not be conditioned upon post-adoption contact privileges”

## Opinion text

BOEHM, Justice,
concurring in result.
I concur in Part III of the majority opinion. I agree with the result reached by the majority in Parts I and II, but I do not agree that a consent with an invalid condition is nonetheless a consent. I would, as the majority puts it, resolve Mother's claim as a matter of contract. Mother consented to termination, but attached an addendum containing a written condition-on its face a perpetual unchallengeable right to visitation-that violated several statutory provisions. A consent with an unacceptable condition is no consent at all. See 17A C.J.S. Contracts § 297 (1999) ("If striking the illegal portion defeats the primary purpose of the contract, a court must deem the entire contract unenforceable."). A court may void the invalid condition only "if the parties would have entered the bargain absent the illegal portion of the original agreement." Lee v. State, 816 N.E.2d 35, 39 (Ind.2004) (quoting 17A C.J.S. Contracts § 297). Here, the majority concludes that voiding the addendum does not also void Mother's original consent. I disagree. Mother testified that she would not have voluntarily relinquished her parental rights without the addendum. I do not find her earlier statement that she thought her rights would "be terminated anyway" to be inconsistent with her claim that she would have contested termination without the addendum.
Mother's consent was not required for the court to terminate her parental rights. If the invalid consent were the end of the story, we would be left with trying to figure out what would have happened if Mother had contested termination and what should be done about an invalid consent in light of two years of intervening experience and adoptions on the assumption by all parties that Mother's parental rights had been terminated. But at the termination hearing, Mother explicitly consented to a termination and, contrary to her written submission, unequivocally agreed to subject her visitation rights to future reconsideration. What is said in "open court" controls over pre-hearing documents. Neal v. DeKalb County Div. of Family and Children, 796 N.E.2d 280, 285 (Ind.2003) (holding that a mother's written consent to termination of parental rights was invalid when she later revoked her consent in open court). Having given her consent in open court Mother is es-topped from challenging the court's right to revisit and adjust or eliminate her visitation. In short, I do not agree that Mother's written consent is enforceable, but in this case she clearly waived any right to assert a bulletproof right to visitation, and the termination is no longer open to question.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7076800. Public record. Not legal advice.