Petition for Writ of Certiorari — Simpson v. Beeler

porte supreme Court, US |

| rFirr.T ED

93-1502

Se 9 APR 26 1984

No.

~e VAS

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

IN THE MATTER OF THE) On Petition for

Writ of Certiorari

to the Court of

Appeals of Indiana,

)

ADOPTION OF MALE )

)

INFANT KONAR, )

) First District

NANCY SIMPSON, )

) No. 1-283-A-50

Petitioner )

)

Vv. )

)

PAUL BEELER, )

)

LINDA BEELER, )

)

)

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE INDIANA COURT OF APPEALS

FIRST DISTRICT

SUZANNE PHILBRICK

Attorney at Law

423 South Roosevelt Road

Chesterton, Indiana 46304

Telephone: (219)926-4361

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Whether the State of Indiana vio-

lated the Petitioner's right to due process

as guaranted her by the Fourteenth Amend-

ment to the United States Constitution when

the Dearborn Circuit Court denied her

motion to set aside the adoption of her

son, which was granted without terminating

her parental rights, without procurring her

consent and without giving her notice of

the adoption proceedings; and when the

Indiana Court of Appeals affirmed this

ruling; and when the Indiana Supreme Court

refused to review the decision of the Court

of Appeals.

2. Whether the State of Indiana vio-

lated the Petitioner's right to due process

as guaranteed her by the Fourteenth Amend-

ment to the United States Constitution when

the Indiana Court of Appeals, First District,

resolved issues of fact for the first time

on appeal, thereby denying the Petitioner

the opportunity to confront these issues in

the trial court, and resulting in the loss

of custody of the Petitioner's son; and when

the Indiana Supreme Court refused to review

the decision of the Court of Appeals.

ii.

TABLE OF CONTENTS

Questions Presented for Review...... a, id

Table of AuthoritiesS............eee- iv

GCDAMIOM BELOW. ccccccccccecsesececs ees 1

JUPLSGILSELOM. oc ccccccccccceccccececes 2

Constitutional Provision Involved... | 4

Statement of the Case...... ececccece 4

Reason for Granting the Writ..... ,eee 10

CONCLUSION. .ccccccccces ececesecceces 20

APPONGIX .cccccecece eccrecceccacecse A-1 to

F-3

A. Opinion of Indiana Court of

Appeals, First District

NO. 1-880-A-222..... ccc cccccces A-1 to

B. Opinion of Indiana Court of

Appeals, First District

No. 1-283-A-50 ........-. TTTTTT B-1 to

B-10

C. Denial of Petition for Rehearing

MO. L2BS"“A—50 ccccccccccesecer C-1 to

“ C=-2

D. Denial of Petition to Transfer to

Indiana Supreme CourtNo. 1-283-A-50 ..D-1 to

D-2

E. Order on Motion to Dismiss

Petition to Terminate Parental

Rights, No. 79 J=-25...cccccceeee Erl tO

E-3

F. Order Denying Motion to Set Aside

Adoption Decree No. A2-80....... F-l to

F-3

iii

TABLE OF AUTHORITIES

Cases Page

1. Stantovsky v. Kramer (1982)

55 U.S. 720 coccccccrsesscess 11

2. Stanley v. Illinois (1972) ll

GOS UcWe CSS cocccccccccccccs

3. . Armstrong v. Manzo (1965) ll, 18

SOO UcSe SES cocccccccceseces

4. Parham v. J. R. (1979) 12

42 U.S. SBE ecccccescccececs

5. Flagg Bros., Inc. v. Brooks 12

(1978) 436 U.S. 149 .........

6. Adickes v. S. M. Kress and Co. ]2

CONSTITUTIONAL PROVISIONS

United States Constitution,

Fourteenth Amendment .......-.-2e6-. 4,9,10,ll,

INDIANA STATUTES

Indiana Code 31-3-1-3 ......226.:. a. SF

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

IN THE MATTER OF THE ADOPTION OF

MALE INFANT KONAR,

NANCY SIMPSON,

Petitioner

PAUL BEELER,

LINDA BEELER,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

INDIANA COURT OF APPEALS, FIRST DISTRICT

The Petitioner, NANCY SIMPSON, respect-

ully prays that a writ of certiorari issue

o review the opinion of the Indiana Court

f Appeals, First District, which was filed

n October 12, 1983.

OPINION BELOW

The Indiana Court of Appeals, First

istrict, in its published opinion of

March 5, 1981, No. 1-880-A-221, affirmed

the decision of the Washington Circuit

Court of Indiana that the Petitioner had,

in fact, legally revoked her consent to

adoption. A copy of this opinion is attached

as Appendix A.

In another published opinion of

October 12, 1983, No. 1-283-A-50, the Indiana

Court of Appeals, First District, affirmed

the decision of the Dearborn Circuit Court

of Indiana which denied the Petitioner's

motion to set aside the adoption decree. A

copy of this opinion is attached as Appendix

B. The Court of Appeals, No. 1-283-A-50

denied the Petitioner's Petition for a re-

hearing. A copy of this order is attached

as Appendix Cc. The Indiana Supreme Court

denied the Petition to Transfer. A copy of

this order is attached as Appendix D.

JURISDICTION

On October 13, 1983, the Indiana Court

b

of Appeals, First District, decided Cause

No. 1-283-A-50 with a written opinion; and

this decision was against the Petitioner

herein, Nancy Simpson. A copy of this opin-

ion is atiached as Appendix B. A Petition

for Rehearing was timely filed in the Indiana

Court of Appeals on October 29, 1983; this

Petition was denied on November 29, 1983.

A copy of this decree is attached as Appen-

dix C.

The Petitioner herein then timely

filed a Petition to transfer the cause to

the Indiana Supreme Court for review; and

this Petition was denied on February 17,

1984. A copy of this decree is attached as

Appendix D. The Indiana Rules of Appellate

Procedure, Rule 11(B)(8) specifically pro-

hibits a petition for rehearing upon denial

of a Petition to Transfer. Wherefore, the

Petitioner herein now petitions the United

States Supreme Court for a Writ of Certio-

rari to issue to the Indiana Court of Appeals,

First District. The jurisdiction of this

court is invoked under Title 28, United

7

Daviess eee ee » thee

oh

States Code, Section 1254(1).2

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment

XIV:

",..nor shall any State deprive

any person of life, liberty, or proper-

ty without due process of law..."

STATEMENT OF THE CASE

On April 16, 1979, Nancy Simpson, for-

merly Nancy Konar, gave birth to a son in

Washington County, Indiana. On April 18,

1979 she signed a pre-printed form supplied

by the Washington County Department of Pub-

lic Welfare with Side A entitled "Voluntary

Termination or Relinquishment of Parental

Rights", and Side B entitled "Consent to

Adoption". Through these documents the

issues of the right to consent to the adopt-

ion and the right to receive notice of

adoption proceedings were raised. The child's

father later signed identical documents.

>

1. No other petitioner is involved in

this petition.

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On May 22, 1979 Nancy Simpson filed a

complaint for Writ of Habeas Corpus in the

Washington Circuit Court in Cause No. 79-C-83

wherein she rescinded her consent to adoption

and demanded the return of the child. ‘The

Washington County Department of Public Welfare

responded by filing a Petition for Termina-

tion of Parental Rights in the Washington

Circuit Court in Cause No. 79 J 25 on June 8,

1979. On June 27, 1979, Ms. Simpson answered

this Petition. In both the Petition and the

Answer the issues of consent to adoption and

the right to receive notice of an adoption

proceeding were raised.

On April 23, 1980, the Washington Circuit

Court granted summary judgment in favor of

Nancy Simpson, finding that she had revoked

her consent to termination of parental rights.

A copy of this opinion is attached as Appen-

dix E. The Court thereby reinstated Ms.

Simpson's right to receive notice of adoption

proceedings and the right to’ consent to

adoption. This ruling was affirmed by the

Indiana Court of Appeals on March 5, 1981.

A copy of this opinion is attached as Appen-

dix A.

Notwithstanding the Washington Circuit

Court proceedings, Paul and Linda Beeler

filed a Petition for Adoption in the Dear-

born Circuit Court on December 14, 1979. The

natural mother, Nancy Simpson, was not given

notice of these proceedings and, in fact,

was unaware of the existence of the Dearborn

Court adoption proceedings until September,

1981.

On June 2, 1980, the Dearborn Court

granted the decree for adoption. As soon as

Ms. Simpson learned of the Dearborn Decree of

Adoption, she filed a motion to set is aside.

This motion was filed on September 29, 1981.

Therein she alleged that the Adoption Decree

was void because she had not consented to

the adoption nor had she received notice of

the adoption proceedings. She fu.ther alleged

that the Washington Circuit Court ruling had

reinstated both her right to consent to

adoption and her right to receive notice of

the proceedings.

The Dearborn Circuit Court refused to

rule on Ms. Simpson's motion until January 5,

1983. At that time the court denied the

natural mother's motion to set aside the

adoption decree. A copy of this order is

attached as Appendix F. The Dearborn Court

upheld the decree of adoption based on the

natural mother's failure to notify the Dear-

born Court that she had revoked her consent

to adoption. The court ruled this way, even

though the natural mother had no notice of

the adoption proceedings.

Ms. Simpson filed a timely Motion to

Correct Errors wherein she alleged in Para-

graph 2 that the Dearborn Court's order vio-

lated the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.

She averred, inter alia, that she was not

given notice of the Adotpion Petition and

hearing thereon.

Nancy Simpson then perfected her appeal

to the Indiana Court of Appeals. In her

appellate brief, Argument II, she submitted

that the Adoption Decree was void under the

Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution in

that it terminated her rights as a natural

parent without her consent and without giving

her notice of the adoption proceedings, both

of which she was entitled to.

The ‘ourt of Appeals upheld the adop-

tion, ba. ag its decision on the finding

that Ms. Simpson's consent to the adoption

had not been invalidated.

Ms. Simpson filed a timely Petition for

Rehearing. Therein, in Paragraphs 4(F) (1)

and (2), she alleged that as a natural mother

in an adoption proceeding, her rights to due

process, as guaranteed her by the Due Process

Clause of the Fourteenth Amendment of the

United States Constitution, were violated

because: 1) the adoption decree was granted

without her consent and without giving her

notice of the adoption proceedings; and 2)

when the Court held that her consent to

adoption had not been invalidated, which

issue was raised by the appellees for the

first time on appeal, she was thereby denied

an opportunity to confront this issue of

fact in the trial court.

The Court of Appeals denied her Petition

for a Rehearing. Ms. Simpson then filed a

timely Petition to Transfer the cause to the

Indiana Supreme Court for review. In her

Petition to Transfer and supporting brief,

she alleged that her rights to due process,

as guaranteed her by the Fourteenth Amend-

ment of the United States Constitution were

violated, because: 1) the adoption was

granted without procurring her consent, with-

out terminating her nbead gions, and

without giving her notice of the adoption

proceedings; and 2) the Appellate Court based

its decision on issues of fact which were

raised by the appellees for the first time on

appeal, thereby denying her the opportunity

to confront these issues of fact in the trial

court.

REASON FOR GRANTING THE WRIT

1. The Petitioner maintains that an

adoption which is granted in an adversarial

proceeding without procurring the consent of

the natural mother, without terminating her

parental rights and without giving her notice

of the adoption proceedings is a fundamental-

ly unfair process. As such, it violates her

right to due process, which is guaranteed

her by the Fourteenth Amendment to the United

States Constitution.

The United States Supreme Court is un-

wavering in its adherence to the principle

that the parent-child relationship is a funda-

mental liberty protected by the Due Process

Clause of the Fourteenth Amendment of the

-

United States Constitution; and may not be

-10-

destroyed by the State without fundamentally

fair procedures. Stantosky v. Kramer, (1982)

455 U.S. 720. The right to raise one's child

is deemed essential, basic, and far more

precious than property rights and clearly

within the protection of the Fourteenth

Amendment of the United States Constitution.

Stanley v. Illinois (1972) 405 U.S. 645, 92

S.Ct. 1208, 31 LEd 2d 551. It is elementary

that a fundamental requirement of due process

in any proceeding which is to be accorded

finality is notice reasonably calculated,

under all the circumstances, to apprise

interested parties of the pendency of pro-

ceedings and afford them an opportunity to

present objections. Armstrong v. Manzo (1965)

380 U.S. 545, 85 S.Ct. 1187, 14 LEd 2d 62.

The involvement of the State of en

in an adoption proceeding is significant.

Indiana Code $31-3-1-3 provides that, except

in certain, limited circumstances:

...no child shall be placed in a

proposed adoptive home without the prior

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written approval of such placement by

a duly-licensed child-placing agency or

a county department of public welfare,

which agency or county department shall

be approved for such purpose by the

state department of public welfare.

Such approval shall be filed along with

the petition for adoption.

The Statute further provides that:

No adoption shall be granted in

this state except after the court has

heard the evidence and after a period

of supervision by a duly-licensed child-

placing agency or a county department of

public welfare which agency or county

department shall be approved for such

purpose by the state department of

public welfare.

In the present case, the involvement of

the State, through its Department of Public

Welfare, was significant. It is clear that

the direct involvement of state officials in

the instant adoption proceedings provided

the state action which gave rise to the

Fourteenth Amendment protection. See e.g.

Parham v. J. R. (1979) 442 U.S. 584, 600;

Flagg Bros., Inc. v. Brooks (1978) 436 U.S.

149, 157, n.5; Adickes v. S. M. Kress and Co.

(1970) 398 U.S. 144, 152.

>

In the instant case, when the natural

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mother refused to consent, the adoption pro-

ceeding became adversarial in nature; and

she was thereby entitled to a fair oppor-

tunity to establish her right to custody

before an impartial tribunal. Ms. Simpson

contends that she should have been given

notice of the adoption proceedings prior to

the decree being entered. The Dearborn

Court, through the pleadings, had actual

notice that she was involved in collateral

proceedings to revoke her consent. The

court also had knowledge that the natural

mother had never received notice of the pro-

ceedings. It is fundamental that she should

have been given notice at this stage.

However, assuming, arguendo, that she

was not entitled to notice of the proceed-

ings, then — certainly entitled to

prevail on her motion to set aside the adop-

tion decree. In this motion she advised the

court that her consent had been revoked

prior to the decree being entered. Therefore,

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when the Dearborn Court, with full knowledge

that the natural mother's consent had been

revoked prior to the adoption decree, never-

theless upheld the decree of adoption because

the natural mother had not sustained her non-

existent burden of notifying the court, when

she had no knowledge of the proceedings in

Dearborn County, and the Dearborn Court knew

this, the Dearborn Court flew in the face of

the Due Process Clause of the United States

Constitution and all the laws of the State

of Indiana.

Because the natural mother had not con-

sented to the adoption and because she was

not given notice of the proceedings, her

rights to due process were violated and the

adoption was void. The Appellate Court acted

erroneously when it upheld the Dearborn

Court's ruling. The Indiana Supreme Court

erroneously denied the Petitioner's Petition

to Transfer.

>

The disposition, as law and justice

require for Petitioner Simpson, is a finding

by this Court that she was denied due process

of law when the Dearborn Circuit Court denied

her motion to set aside the adoption decree,

when the Indiana Court of Appeals, First

District, affirmed the trial court's ruling

and when the Indiana Supreme Court refused

to review the decision of the Court of

Appeals. The Petitioner prays that this

cause be remanded to the Indiana Court of

Appeals with directions that the Adoption

Decree be set aside and the child returned

to its natural mother.

2. The Petitioner also argues that the

State of Indiana denied her the right to

raise her child without due process of law

when the Indiana Court of Appeals, First

District, resolved issues of fact which were

raised for the first time on appeal; and

these new findings of fact were then used to

uphold the trial court's ruling. She was

thereby denied the opportunity to confront

these issues in the trial court, resulting

in the loss of her son.

The Respondents herein asserted for the

first time on appeal in the Indiana Court of

Appeals No. 1-283-A50 that the Washington

Circuit Court proceedings in Cause No. 79 J

25 concerned only Side A of the preprinted

form entitled "Voluntary Termination or

Relinguishment of Parental Rights", and not

Side B entitled, "Consent to Adopt". This

issue was never presented by the Respondents

herein to the Washington Circuit Court in

Cause No. 79 J 25, or the Dearborn Circuit

Court in Cause No. A-2-80. In fact, it

directly contradicts their Petition for Adop-

tion which was filed in the Dearborn Circuit

Court in Cause No. A-2-80 and which acknow-

ledged that the natural mother was "...seek-

ing to revoke her consent to the adoption of

2

the child" in the Washington Circuit Court.

The Respondents herein had ample

2. Paragraph 7 of the Petition for

Adoption which can be found on Page 2 of the

Common Law Record on appeal.

-16-

opportunity to raise this issue in both the

Washington Circuit Court and the Dearborn

Circuit Court. The Petitioner herein filed

her Motion to Set Aside Decree of Adoption

on September 29, 1981; and the Respondents

herein were served with a copy. Both the

original and special judges heard oral argu-

ments. This motion was pending for more

than fifteen months, until a ruling was

finally made by the special judge on January 5,

1983.

Throughout this lengthy process, the

Respondents herein could have raised this

issue in a written Response to Motion to Set

Aside, in a Responsive Brief to the Peti-

tioner's herein Brief to the trial sourt, or

at oral argument. The Respondents herein

also had the opportunity to raise this issue

in a Statement in Opposition to Petitioner's

herein Motion to Correct Errors. The Res-

pondents did none of the above.

Finally, the Respondents herein could

have objected in writing to the Dearborn

sf}

Circuit Court's specific finding that "The

Washington Circuit:Court (had) held that

Nancy Simpson had revoked her consent to the

3

adoption herein. (emphasis added) This

statement of the Dearborn Court rejects the

distinction later made by the Respondents

herein on appeal. No response or objection

to that finding was made.

The Petitioner herein rightfully believed

that the Respondents herein had conceded

this point. Therefore, when the Indiana

Court of Appeals resolved this issue for the

first time on appeal, the Petitioner herein

was denied the opportunity to confront this

issue of fact in the trial court.

A fundamental requirement of due process

is the opportunity to be heard. Armstrong v.

Manzo, Supra.

In this case, the action of the Indiana

Court of Appeals and the Indiana Supreme |

3. This quotation can be, found on Page

63 of the common law record on appeal.

=19~

Court denied the Petitioner herein of a hear-

ing on the issue of whether her consent to

adoption had or had not been litigated. There-

fore, she was denied the liberty of raising

her son without due process as guaranteed her

by the Fourteenth Amendment to the United

States Constitution.

The disposition, as law and justice

require for Petitioner Simpson, is a finding

by this Court that she was denied due process

of law when the Indiana Court of Appeals re-

solved new issues of fact which were raised

for the first time on appeal. She prays that

this cause be remanded with directions that

the adoption decree be set aside and the

child returned to its natural mother.

-15- ‘

CONCLUSION

For the foregoing reasons, Petitioner,

NANCY SIMPSON, respectfully requests that a

writ of certiorari issue review the judgment

of the Indiana Court of Appeals, First

District.

Respectfully submitted,

yO ee

SUZANNE PHILBRICK

423 South Roosevelt Road

Chesterton, Indiana 46304

(219) 926-4361

ere wa ?

Attorney for Petitioner

} vatea:___Von.N 1984

-20-

a in

APPENDIX

APPENDIX A-1

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

JOHN W. MEAD DAVID P. ALLEN

Mead, Mead & Mead Allen & Thompson

Mitchell Building P. O. Box 485

P. O. Box 468 Farmer-Citizens Bank Bldg.

Salem, Indiana 47167 Salem, Indiana 47167

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

WASHINGTON COUNTY )

DEPARTMENT OF )

PUBLIC WELFARE, )

)

Appellant. )

)

Vv. ) NO. 1-880-A-222

)

NANCY J. KONAR, )

)

)

Appellee.

APPEAL FROM THE WASHINGTON CIRCUIT COURT

JUVENILE DIVISION

The Honorable Harry S. Paynter, Special Judge

CAUSE NO. 79 J 25

ROBERTSON, J.

The petitioner-Appellant Welfare Depart-

ment is appealing a judgment which ended

proceedings to terminate the parental rights

of the respondent appellee Konar. We affirm.

APPENDIX A-2

The two issues raised by the Welfare

Department are whether a voluntary relin-

quishment of parental rights can be uni-

laterally rescinded without a hearing and

whether the trial court applied the

appropriate law to the case.

The sequence of events relevant to the

appeal is that Konar gave birth to a child

on April 16, 1979. On April 18, she execu-

ted a voluntary texmination of parental

rights on a form furnished by the Welfare

Department. On June 8, the Welfare Depart-

ment filed its Petition to Terminate

Parental Rights and gave notice to Konar

accordingly. Konar appeared on June 27 and

filed a notice of recision of her relin-

Guishment of parental rights. The new

Juvenile Code, IND. CODE 31-6-1-1, et seq.

became effective on October 1, 1979. On

November Konar filed a motion to dismiss

stating that the Welfare Department's Peti-

tion to Terminate Parental Rights failed to

APPENDIX A-3

comply with the new law. The trial court on

April 23, 1980, without an evidentiary hear-

ing, ruled the mother could revoke consent

to termination of parental rights at any time

prior to and at a final hearing. Without so

explicitly stating in it's dismissal, the

trial court applied the provisions of the

new Juvenile Code.

This court, in the recent opinion of In

The Matter of Damon Miedl, a child under the

age of 18 years, and, In The Matter of Shaun

David Miedl, a child under the age of 18

years, No. 3-480-A-94, filed February 18,

1981, discussed the "retroactive" applica-

tion of IC 31-6-5-4. In holding that IC 3l-

6-1-1 et seg. applies to still pending

Matters, Judge Chipman stated:

There are numerous differences between

the new Juvenile Code and the law it

replaced. The new Jaw provides new pro-

tections in various proceedings and man-

dates different time requirements in

others. IC 3l-6-l-1 lists the purposes

and policies behind the act including an

insurance of fair hearings and a

> Sar pene ORS

Sno

APPENDIX A-4

recognition of constitutional and other

legal rights of children and parents. The

legislature must certainly have intended to

insure these rights to all children and

parents coming in contact with juvenile

justice.

Under the facts of this case, we also

are of the opinion that the trial judges

application of the "new" law was not error.

Public Law 136, $59, Acts of 1978(the Juven-

ile Code), in our opinion, requires its

application to pending matters. The state

of the record in this case shows no disposi-

tional decree being entered by the trial

court prior to October 1, 1979, thereby mak-

ing the new Juvenile Code applicable.

When one considers the paramount

interests of a natural parent in its child;

the fact that the Welfare Department knew,

or should have known, of impending procedur-

al changes; Konar's motion to have the new

code apply; and, the natural parent's statu-

tory right under the new code to recant, we

find that no error was committed in either

ie eta

PS RAS oN te! areas!

APPENDIX A-5

the law as applied or the lack of an eviden-

tiary hearing thereon.

Judgment affirmed.

NEAL, P. J. and RATLIFF, J. Concur.

APPENDIX B-1

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:

JOHN E. BRENGLE BOBBY JAY SMALL

J. MARK ROBINSON 542 Lockerbie Street

Legal Services Organization Indianapolis, Indiana

of Indiana, Inc. 46202

600 Elsby Building

113-115 East Spring Street RICHARD P. GOOD, UR.

New Albany, Indiana 47150 46 Hickory Ridge Circle

Cicero, Indiana 46034

WILLIAM R. WILSON

128 West High Street

Lawrenceburg, Indiana

47025

ee

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

IN THE MATTER OF

THE ADOPTION OF

MALE INFANT KONAR

. NANCY SIMPSON,

: Respondent-Appellant,

vs. No. 1-283 A 50

PAUL BEELER,

)

)

)

)

)

)

)

)

)

)

)

LINDA BEELER, )

)

)

Petitioner-Appellees.

APPEAL FROM THE DEARBORN CIRCUIT COURT

The Honorable Eugene A. Stewart, Special Judge

(Cause No. A2-80)

RATLIFF, J.

ee

ra ead

A gt eR OMS In! LF

:

i

;

APPENDIX B-2

STATEMENT OF THE CASE

Appellant Nancy Simpson appeals from an

order of the Dearborn Circuit Court denying

Simpson's motion to set aside an adoption

decree. We affirm.

FACTS

On April 16, 1979, Nancy Simpson (nee

Konar) gave birth to an unnamed male infant.

Two days later, Simpson signed a "Voluntary

Termination or Relinquishment of Parental

Rights" and a "Consent to Adoption". That

same day, there was filed in the Washington

Circuit Court a petition to make the child a

ward of the Washington County Department of

Public Welfare (DPW) and Simpson's waiver of

notice, appearance, and consent to make the

child a ward of DPW. On May 22, 1979, Simpson

filed a habeas corpus complaint for the

return of the child which had been placed

with another family, the Beelers, appellees

in this action. The DPW then filed a peti-

tion to terminate Simpson's parental rights

APPENDIX B-3

which, in turn, prompted Simpson to file her

"Notice of Rescission of Voluntary Termina-

tion or Relinquishment of Parental Rights"

on June 27, 1979.

In December, 1979, the Beelers filed a

"Petition for Adoption" in the Dearborn Cir-

cuit Court. The petition noted the pending

action in the Washington Circuit Court. On

April 23, 1980, the Washington Circuit Court

dismissed DPW's petition to terminate paren-

tal rights and granted summary judgment in

favor of Simpson. The Dearborn court then

granted the Beelers' petition to adopt on

June 2, 1980. This court subsequently

affirmed the Washirgton court's dismissal of

the Petition to terminate parental rights.

Almost sixteen months after the grant of the

petition for adoption, Simpson petitioned

the Dearborn court to set aside the decree

granting the adoption. The court denied

Simpson's petition and it is from that

denial that she now appeals.

APPENDIX B-4

ISSUE

Simpson raises two issues on appeal.

However, we combine and rephrase her issues

in order to narrowly address the precise

issues in this case:

Does the natural mother's rescission of

her voluntary termination of parental rights

serve to rescind a separately signed consent

for adoption, pursuant to which the child

was, in fact, adopted?

DISCUSSION AND DECISION

The trial court did not err in denying

appellant's petition to set aside the decree

of adoption.

Appellant's contentions on appeal

revolve around the Dearborn court's failure

to give Simpson notice of the adoption hear-

ing. She contends that the failure to give

such notice resulted in the ouuct granting

a void decree and further implicates due

process concerns under the fourteenth amend-

ment to the United States Constitution.

APPENDIX B-5

Simpson's arguments are based upon her contention

that her consent to the adoption had been previous-

ly invalidated. Because we determine that Simpson'

consent to the adoption had not been invalidated,

we conclude that Simpson's notice claims are with-

out merit.

Simpson originally signed two documents immedi

ately following the birth of her son. The first, a

"Voluntary Termination or Relinquishment of Parenta

Rights", included the following language:

"Nancy Jean Konar, born on 9-7-59...the undersigne

parent of Unnamed Male Infant Konar, born 4-16-79 herek

voluntarily and irrevocably relinquish all my rights as

a parent with reference to said child, including, but

not limited to, the right to control or consent to the

adoption or receive notice of a hearing on petition for

adoption for said child, and I do further transfer such

parental rights to Washington (County Department of

Public Welfare)...."

Record at 4. Simpson also signed a "Consent to

Adoption"2/ which stated:

"Nancy Jean Konar the undersigned, being the...

parent having legal custody, being 19...years of age...

hereby consent to the adoption of Unnamed Male Infant

Konar, born on 4--16-79 by person(s) whose name(s) are

not known to me. This consent is executed by me withou

coercion or duress."

Record at 4A. Simpson later attempted to withdraw

1/ The two documents were printed on opposite sides of the

BEST AVAILABLE COPY

1S AOA ie ala a aa nae

APPENDIX B-6

her termination of parental rights. This

withdrawal was upheld by the Washington

Circuit Court when it dismissed DPW's petition

to terminate parental rights and was affirmed

on appeal by this court. For purposes of

this appeal, therefore, we assume that Simpson

did indeed withdraw her voluntary termination

of parental rights .2/ However, Simpson appar-

ently argues, a fortiori, that her recission

of the termination of parental rights also

operated to rescind her separately-signed con-

sent to adoption. We cannot agree.

2/ In Washington County Department of Public Welfare

v. Konar, (1981) Ind. Appl, 416 N.E.2d 1334, this

court upheld the decision of the Washington Circuit

Court dismissing DPW's petition to terminate parental

rights. The circuit court had dismissed the petition

based upon Simpson's withdrawal of her termination of

parental rights. Our decision in Konar is part of the

law of the case in the instant appeal. However, inso-

far as our prior opinion might tend to indicate that

parents consenting to a termination of parental rights

may withdraw that consent at any time, we hereby

expressly overrule Konar. It is clear that a parent's

ability to withdraw such consent is extremely limited.

See Sn v. She Coun t of Public

Welfare, (S81) Ind. App., aE E2d Ti71, 1180, and

Indiana Code sections 31-6-5-2, 3 (1982).

APPENDIX B-7

Simpson filed a "Notice of Rescission of

Voluntary Termination or Relinquishment of

Parental Rights" in response to DPW's petition

to terminate parental rights. The Washington

Circuit Court dismissed DPW's petition and

entered judgment for Simpson based upon its

deteimination that Simpson had rescinded her

parental rights termination. This court

affirmed the trial court's decision. However,

neither the Washington Circuit Court nor

this court considered the separately-signed

consent to adoption in addressing the rescis-

sion of the parental rights termination.

Therefore, we cannot agree with appellant's

contention that the rescission of the volun-

tary termination of parental rights also

operated as a rescission of the consent to

adoption. Nowhere in the proceedings is it |

evident that the separately-signed consent to

adoption was ever even considered to be a

APPENDIX B-8

to be a part of the dispute.3/

Our conclusion, that the consent to

adoption was not vitiated by the rescission

of the termination of parental rights, is

supported by the language of Indiana Code

section 31-3-1-6(f£) (1982) which states:

"A consent to adoption may not be withdrawn

prior to the entry of the decree of adoption

unless the court finds, after notice and oppor-

tunity to be heard afforded to the petitioner,

the person seeking the withdrawal is acting in

the best interest of the person sought to be

adopted and the court orders the withdrawal."

Section 6(f) provides the exclusive means by

3/ Appellant contends that because her answer admitted

rhetorical paragraph four of DPW's "Petition for Ter-

mination of Parental Rights", the consent to adoption

was automatically made an issue in dispute. Paragraph

four states "(t)hat the natural mother of said child

heretofore on the 18th day of April, 1979 executed a

"Voluntary Termination or Relinquishment of Parental

Rights and Consent to Adoption". Record at 58. We

also note, however, that rehtorical paragraph five of

the same petition states "(t)hat it would be in the

best interests of the child that the parental rights

be terminated, in order to facilitate adoption, when

adoptive opportunities arise". Id. It is clear that

DPW sought to terminate Simpson's parental rights.

We cannot agree that the mere mention of the existence

of the consent to adoption, without anything more, is

sufficient to have placed the consent to adoption

at issue.

APPENDIX B-9

which a consent to adoption may be withdrawn

prior to the entry of a final decree of adop-

tion. However, Simpson has failed to indicate

that such a procedure was involved in the

instant case. Absent such an indication, we

cannot say that the separately-signed consent

to adoption had been rescinded. 4/

Because we determine that Simpson had

not rescinded her consent to adoption, we

must conclude that her notice claims are

without merit. Indiana Code section 31-3-1-

6(h) (1982) states that "(n)otice of hearing

on a petition for adoption need not be given

to a person whose consent has been filed with

the petition. ..." It is undisputed that

Simpson's signed consent to adoption was made

a part of the petition for adoption submitted

4/ Simpson also argues that because the termination

of parental rights included a revocation of "the

right to control or consent to the adoption", record

) at 4, the rescission of the termination of parental

rights reinstated the natural mother's right to

withhold consent for the adoption. For the reasons

stated above, we cannot agree. See Ind. Code

§31-3-1-6(f) (1982).

APPENDIX B-10

to the Dearborn Circuit Court. In light of

the express language of section 6(h) we can-

not say that the adoption court erred in

failing to give Simpson notice of the pro-

ceedings.2/ Accordingly, we cannot say that

the court committed error in denying Simpson's

motion to set aside the adoption decree and

we, therefore, affirm the decision of the

lower court.

Affirmed.

ROBERTSON, P.J. and NEAL, J., concur.

5/ We note that the petition for adoption stated

“that there is presently a civil proceeding in the

Circuit Court of Washington County, Indiana known as

Cuase (sic) No. 79-A-83 wherein the natural mother

of said child is seeking to revoke her consent to

the adoption of this child". Record at 2. While

we Go not condone the granting of an adoption where

the court is made aware of such circumstances,

neither are we inclined to find reversible error

where the consent to adoption was not actually

rescinded. We are also unimpressed with Simpson's

argument that the language of Beeler's petition for

adoption supports her contention that the consent

to adoption was rescinded by the rescission of the

voluntary termination of parental rights in the

prior case. Beeler's understanding of what occurred

in the previous case is not binding upon this court's

determination of what acutally occurred.

APPENDIX C-1l

STATE OF INDIANA

INDIANAPOLIS, 46204

Clerk of the Supreme Court

and Court of Appeals

Telephone 232-1930

MARJORIE H. O'LAUGHLIN, CLERK

217 State House

No. 1-283A50

Nancy Simpson V

Paul Beeler, et al

You are hereby notified that the Court of

Appeals has on this day denied Appellant's

Petition for Rehearing.

Buchanan, C. J.

Please adcknowledge receipt of this notice in order

that our records may show that you have been

notified of this action.

WITNESS my name and the seal of said Court,

this __29th_ day of November , 1983

fs/ Marjorie H. O'Laughlin

Clerk Supreme Court and Court of Appeals

November 29, 1983 db

No. 1-283A50

I hereby acknowledge receipt Suzanne Philbrick

of the above notice Chesterton

19

APPENDIX C-2

William R. Wilson, Lawrenceburg

Bobby Jay Small, Indianapolis

Richard P. Good, JR. Cicero

Attorney for

APPENDIX D-1

STATE OF INDIANA

INDIANAPOLIS, 46204

Clerk of the Supreme Court

and Court of Appeals

Telephone 232-1930

MARJORIE H. O'LAUGHLIN, CLERK

217 State House

No. 1-283A50

In Adoption of Male Infant Konar, Nancy

Simpson v. Paul Beeler et al

You are hereby notified that the Supreme

Court

has on this day Appellant's (Nancy Simpson)

petition to Transfer to Supreme Court is

hereby denied. Hunter, A.D.J.

All Justices Concur.

Please acknowledge receipt of this notice in order

that our records may show that you have been

notified of this action.

WITNESS my name and the seal of said Court

this 17th day of Feb , 19 84

/s/ Marjorie H. O'Laughlin

Clerk Supreme Court and Court of Appeals

No. 2/17/84 jm TD 1-283A50

Richard P. Good, Jr., Cicero

APPENDIX D-2

I hereby acknowledge receipt

of the above notice

Bobby Jay Small, Indpls.

William R. Wilson,

Signature Lawrenceburg

Suzanne Philbrick,

Date , 19 Chesterton

Attorney for Appellant

Appellee

APPENDIX E-1

IN THE CIRCUIT COURT

FOR WASHINGTON COUNTY

STATE OF INDIANA

IN THE MATTER OF UNNAMED MALE

INFANT KONAR, A CHILD UNDER 79-J-25

EIGHTEEN YEARS

ORDER ON MOTION TO DISMISS

PETITION TO TERMINATE PARENTAL RIGHTS

Comes now the Petitioner/Respondent

herein, Nancy J. Konar, in person and by her

attorney, Dafid P. Allen, and comes now the

Respondent/Petitioner, Washington County

Department of Public Welfare, by their attor-

ney, John W. Mead, for hearing on the Peti-

tion of Nancy J. Konar to dismiss the Peti-

tion of the Washington County Department of

Public Welfare to terminate the parental

rights of Nancy J. Konar and James W.

Warnock, Jr., the putative father, to said

minor child. And the Court having heard the

argument of counsel and having had the said

matter under advisement, now makes the

APPENDIX E=-2

following findings of facr:

1. That on the 18th day of April, 1979,

the Respondent/Petitioner herein, Nancy J.

Konar, at the request of agents of the

Washington County Department of Public Wel-

fare executed a document entitled Consent to

Termination of Parental Rights, which said

document was attached to the Petitioner's

Complaint herein.

2. That thereafter on the 8th day of

June, 1979, the Petitioner herein filed its

Petition to Terminate the Parental rights of

the mother and putative father herein.

3. That thereafter the Respondent/

natural mother, Nancy J. Konar, filed in this

Court on 27th day of June, 1979, her Recision

of Consent to Terminate Parental Rights and

thereafter filed her motion to dismiss said

petition to terminate her parental rights.

And having made the above findings of

fact, the Court now makes the following

APPENDIX E-3

conclusions of law:

1. That the law of the State of Indiana

applicable to this case provides that a par-

ent consenting to the termination of his or

her parental rights can revoke said consent

at any time prior to and at the final hearing

on said petition.

And having determined said conclusion

of law, IT IS, THEREFORE, ORDERED, ADJUDGED

AND DECREED by the Court as follows:

| 1. That the Petition of the Washington

County Department of Public Welfare to ter-

minate the parental rights of the Respondent,

Nancy J. Konar, in the minor child born to

the said Nancy J. Konar on the 16th day of

April, 1979, is hereby dismissed and sum-

mary judgment is hereby rendered in favor of

the Respondent, Nancy J. Konar.

Dated: April 23, 1980.

/s/ Harry S. Paynter

HARRY S. PAYNTER, SPECIAL JUDGE,

WASHINGTON CIRCUIT COURT

APPENDIX F-1

IN THE MATTER OF THE) Cause No. A2-80.

)

) ORDER DENYING MOTION

) TO SET ASIDE ADOPTION

) DECREE

ADOPTION OF MALE

INFANT KONAR

Nancy Simpson appears in person and by

counsel on her Motion to Set Aside the Decree

of Adoption entered herein. The adopting

parents appear by counsel. From the record

of the proceedings, the Court finds:

1) Nancy J. Konar, now Nancy Simpson,

gave birth to a male child April 16, 1979,

and two days later filed a document whereby

she relinquished parental rights and waived

her right to consent or receive notice of

any adoption proceedings concerning such

child, all in Washington County, Indiana;

2) the child's natural father signed

a Similar document August 10, 1979;

3) the adopting parents filed their

Petition for Adoption December 14, 1979 in

the Dearborn Circuit Court;

APPENDIX F-2

4) on April 23, 1980, the Washington

Circuit Court held that Nancy Simpson had

revoked her consent to the adoption herein;

5) the Dearborn Circuit Court granted

this adoption June Z, 1980.

Nancy Simpson argues that the Adoption

Decree is void because she received no notice

of the Petition and subsequent hearing. She

further argues that the adoption violates

the due process cause of the 14th Amendment

and should be set aside under a fundamental

fairness theory. The Court finds both of

these arguments to be without merit.

Ms. Simpson overlooks the fact that her

consent was on file with the Dearborn Cir-

cuit Court when the adoption hearing was had.

There is no evidence to show that the

Dearborn Circuit Court was notified of Ms.

Simpson's withdrawal of consent and of the

subsequent Court determination upholding

same. The Court further notes the proceed-

ings by the Washington County Department of

APPENDIX F-3

Public Welfare wherein the child adopted

herein was declared neglected and dependent

and duly placed for adoption.

The constitutional argument is similarly

based upon the notice issue, and there being

nothing before the Dearborn Circuit Court

except the various consents of Ms. Simpson,

there is no showing that proper statutory

procedure was not followed in granting the

adoption.

Accordingly, Nancy Simpson's Motion to

Set Aside the Decree of Adoption is over-

ruled and denied.

IT IS SO ORDERED, this 5th day of

January, 1983.

/s/ Eugene A. Stewart

EUGENE A. STEWART, SPECIAL JUDGE

DEARBORN CIRCUIT COURT