# Petition for Writ of Certiorari — Simpson v. Beeler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 892

## Text

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,

a? Fo

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2856%3A1. Public record. Not legal advice.