*1 174 еver, Storm, by Thomas’s self- Inc. v. we are unconvinced to assert.
be entitled Revenue, serving regarding his that statement belief State 663 Dep’t Indiana Ct.1996). in (Ind. he has his behavior a manner Tax The ra- altered N.E.2d 552 driver,” to him a “safe laches is such render the doctrine of tionale behind who, it falls far short of demon conclude that for unreasonable person that a interest strating public that the would be time, neglected to assert a length in by the BMV’s conduct the threatened the to against another waives claim Ackman, instant matter. See delay preju- when his claim this assert that un- (again providing at 1273 extreme against whom he would person dices the public the interest fairness occurs where acknowledge eq- that it. Id. We assert government’s by would threatened be defenses, laches, typical- such as uitable conduct). qualifying Thomas’s convictions against ly gov- not be asserted may include a vehicle operating convictions in sovereign when it acts its ernment intoxicated, driving, op- while reckless public welfare. capacity protect erating vehicle while intoxicated endan- a Wedzeb, F.Supp. See v. U.S. gering Despite Thomas’s claim person. a (S.D.Ind.1992), Harbour Town Associ- contrary, public to the we believe Noblesville, ates, City v. Ltd. served, likely interest be threat- would not (Ind.Ct.App.1989) (holding N.E.2d ened, by ten-year suspension of Thom- laches appli- that the doctrine of is never еx- driving privileges. as’s Because the municipality enforcing in cable to a tremely limited circumstances which would public in- policy ordinances because application present allow for its are terests). case, that the we conclude doctrine of However, Ackman, at 1273. inapplicable laches is instant matter. while we have concluded that the doctrine The of the trial court is af- judgment permitted not be frustrate the should firmed. regulation of a valid where enforcement wel- government protect public acts C.J., BAKER, J., ROBB, concur.
fare for in the and most except clearest circumstances, compelling recognize we “[ujnder conditions, cеrtain where ex- shown,
treme unfairness is a against gov-
apply equitable principles (citing Lindberg
ernment.” Id. U.S. v. In re (7th Cir.1989)). the Matter of the ADOPTION Corp., “Ex- 882 F.2d OF Minor Children: C.B.M. public treme unfairness occurs where the and C.R.M. gov- interest would threatened Hannon v. (citing ernment’s conduct.” C.A.B., Mother, Appellant-Natural Cnty., 685 Metro. Dev. Comm’n Marion v. (Ind.Ct.App.1997)). N.E.2d 1075 K.L.M., Appellees- JD.M. and In that the doctrine of laches arguing Adoptive Parents. matter, instant Thomas apply should ten-year suspension of his claims that No. 37A03-1204-AD-149. would in extreme driving privileges result Appeals of Indiana. Court years in the his unfairness because since Nov. 2012. conviction, last he has “altered qualifying effectively his behavior to render himself Appellant’s p.
safe Br. 16. How driver.” *3 General,
ney IN, Indianapolis, Attorneys the State of Indiana.
OPINION BAILEY, Judge. Summary
Case (“Birth Mother”) C.A.B.’s (“the rights as to C.B.M. and C.R.M. Chil- *4 dren”) were the Jasper terminated Cir- (“termination court”). cuit Court During рendency of appeal Birth Mother’s of order, the termination J.D.M. and K.L.M. Parents”) (“Adoptive sought to adopt the County Department The Jasper Children. (“DCS”) Child Services consented to request, Parents’ even though appeal Birth Mother’s pending. remained The Jasper Superior Court (“adoption court”) granted adoption petition, also Birth appeal while Mother’s remained pending.
This Court reversed the termination or- der, after which Birth sought Mother aside the adoption set decree. In the of these proceedings, course Birth Mother raised issues concerning the constitutional- statutes, ity Indiana’s and thus (“the Attorney Office of General State”) entered an appeаrance provid- briefing in The adoption ed the matter. ultimately denied Birth pe- decree, tition to set aside the now appeals she that decision. Rensselaer, IN,
Mark Callaway, L. At- We reverse and for further pro- remand torney for Appellant. ceedings.1 Rice, Rice, P. Issues Murphy
Charles Boveri LLP, Bend, IN, Attorney South for Appel- Birth Mother raises several issues for lees J.D.M. and K.L.M. review, disposi- our but we find one issue Zoeller,
Gregory Attorney F. General of tive: whether DCS’s decision consent to Indiana, Barrow, Deputy Frances Attor- the Children’s without notice to argument High 1. We heard oral on this from North case at Decatur and South Decatur Greensburg High Greensburg, School hospitality, parties Sсhools for their September Indiana on 2012. We thank advocacy. for their able guests school and its students their Act, provided Birth Mother tory Judgment pendency her during Birth Mother order was arbi- of the termination summary notice of her motion written thereby deprived capricious, and trary and Indiana to the At- judgment Office rights Mother her due Birth May Birth torney General.2 On States Con- the Indiana and United under entry judg- moved for of a default Mother stitutions. against the State as to constitu- ment History
Facts and Procedural applied as tionality statutes case. On the State in her June 28, 2008, January the termination On Mother’s motion response filed its to Birth Birth Mother’s court ordered judgment, arguing entry to Children terminated. for default terminatiоn order. appealed Mother would erroneous because the judgment be published in a September On as a designated had been State the termi- this Court reversed opinion, yet action nor decided whether had order and that there was insuf- nation held statutory right exercise its heard of Birth ficient evidence that termination *5 in the case. parental rights Mother’s was Children’s 2010, Mother, 31, Birth August On Jasper Cnty. interests. See Moore v. best Parents, appeared and the State Adoptive (Ind. Servs., 218 894 N.E.2d Dep’t Child of hearing a on Birth Mother’s motion for for Ct.App.2008). this, summary judgment. After numerous 12, 2008, May during pendency On were submitted supplemental materials the termi- appeal Birth Mother’s of claims, concerning Birth Mother’s inсlud- order, Adoptive Parents filed their nation concerning the State’s memorandum ing Adopt to The adop- Petition the Children. claims, filed November the constitutional July 31, granted petition on tion court 9, 2010, responsive Mother’s and Birth during of Birth pendency 2008-also memorandum, 4, January 2011. filed appeal Mother’s the termination order. 15, 2009, January in the adop- On also 27, 2011, On December court, Birth her tion Mother filed Verified motion for court denied Birth Mother’s to Set Judgment Adop- Petition Aside summary judgment petition and her to set tion, alleged which the termination order, adoption. aside the In the order was void because of Court’s court that Birth Moth- concluded 29, 2008, September and this in decision of properly prеserve failed to her er decree turn rendered void. did challenge the when she 11, 2009, February On Parents stay of order. The the termination seek opposing their Birth filed Memorandum did not address Moth- Verified Petition. constitutional claims. er’s 29, 2009, July Birth Mother On moved summary judgment entry and January Birth Mother filed On declaratory judgment, raising for the first The State her motion correct error. Due time her Process Clause-based chal- response its the motion on Febru- filed adoption statutory to the scheme. lenge 2012, 28, 2, adop- 2012. On ary March motion to correct 13, tion court denied the 2010, April apparent in an effort On error. comply with Indiana’s Uniform Declara- statute, ordinance, Attorney provides Generаl where "a 2. Indiana Code Section 31-14-1-11 alleged unconstitutional.” or franchise is to be for notice to intervention Indiana
179 appeal followed.3 651 (Ind.Ct.App.2011) (citing This Beanb State, lossom v. 637 N.E.2d 1349 Discussion and Decision (Ind.Ct.App.1994)). personal juris- Where Review Standard of is, lacking diction was where imposi- —that challenge Birth Mother’s judgment tion of amounted to a violation of adoption comes as a motion for relief from Supreme due Court has held —our 60(B), Trial judgment under Rule which that “a judgment that is void for lack of ordinarily we review for an abuse dis personal jurisdiction may collaterally Comm’r, Dep’t cretion. Rice v. Ind. any of attacked at time and that the ‘reason- (Ind. Mgmt, Envtl. 782 N.E.2d 1003 60(B)(6) able time’ limitation under Rulе Ct.App.2003). parties agree The on the Stidham, means no time limit.” case, dispute only ques facts of the N.E.2d at 1156. law constitutionality tions of related to the Whether a judgment is void or interpretation statutory pro certain voidable is “no mere quibble.” semantic cases,
visions. In such we review the trial Whelchel, Stidham v. court’s decision de novo. Goodson v. Carl (Ind.1998). judgment Where a son, (Ind.Ct.App.2008) “ void it is ‘from inception ... a com de novo (reviewing questions pro of due plete nullity and legal without effect.’” jurisdiction). and personal cess We there (quoting Judgments Am.Jur.2d fore review Mother’s de novo. (1994)). contrast, “By a voidable *6 Challenge Whether Birth Mother’s to judgment the ‘is not a nullity, and is capable Adoption prеcluded under Trial of confirmation or ratification. Until su 60(B) reversed,
Ride perseded, or it vacated is bind enforceable, ing, all the ordinary Birth Mother adoption contends that the attributes and consequences of a valid decree was void because this Court re- ” judgment.’ Id. (quoting 46 Am.Jur.2d order, versed the termination the thus (1994)). § Judgments upon Based adoption authority grant court lacked distinction, Supreme our Court concluded adoption. the Adoptive argue Parents that where a trial court personal lacked that because the termination order was jurisdiction party over an essential to an voidable, merely adoption decree itself action, the trial judgment court’s wаs void was not void and thus Birth Mother’s chal- subject ab initio and to collateral attack. lenge to adoption decree was not time- Id. at 1156. ly- 60(B)(6), Trial provides Rule It is clear that the termination or upon motion and voidable, “[o]n such terms as are der merely was as this Court did just the court relieve ... party void, a from not declare the order but instead judgment, including a judgment by a de reversed the order for insufficient evi fault, following for the ... reasons: dence. It capable was thus of being cor judgment Judgments is void.” are void ab rected and was not void. See id. at 1154. initio “where the trial court lacks authori We therefore conclude that the reversed Kitchen, ty to act.” Kitchen v. 953 N.E.2d termination order does not itself render May 3. On Father was similar notice to the trial court. We continue accident, instances, killed in a motor "Adoptive vehicle of which to use in Parents” most July this Court was notified on 2012. A in order to remain consistent with the con- review prior of the trial court proceedings. records reveals no duct of constitutional, may not hold the scheme we we Yet because decree void. examine turn now to today that the unconstitutional. We reach a conclusion we grounds, on different of the applicable provisions is void decree of Birth Mother’s the merits turn to statutes. parental now and termination appeal. statutes re Indiana’s Adoption
Construction of adopt who seeks quire petitioner that a Statutes Termination to and notice provide child must another’s that the Mother contends or parents, the child’s consent from obtain scheme, permits adop statutory which or that such notice demonstrate otherwise appeal of a parents’ whose children tion of §§ 31- unnecessary. See I.C. consent is parental termination court-ordered -1.2. & to -5 and 31-19-10-1 19-2.5-1 pend remains those children rights as to to both the exceptions are numerous There in her applied as unconstitutional ing, is however, requirements, notice and consent challenges the con party a case. Where at in this statutory provisions issue stаtute, review the a we stitutionality of parents natural largely cut off the case v. novo. Lock court’s decision de trial any adop involvement a child from (Ind.2012). State, 71, 74 We termi after court-ordered tion however, and we do legislature, are not Thus, rights. parental “[n]otice nation of “ as to the our convictions ‘substitute adoption proceed pendency legislation for desirability or wisdom of ... a given have to be ings does not ” Id. representatives.’ those of our elected rights have been person whose Downey, v. (quoting State entry a final de before the terminated (Ind.1985)). presume statutes We 31-19-2.5-4(4). adoption.” cree of I.C. constitutional, rests and the burden Moreover, “may hear and a trial “to challenging the statute with the even if an grant petition Further, otherwise.” Id. prove *7 the termi regarding of a decision appeal two reasonable inter- a statute has [i]f relationship is parent-child of a nation one constitutional pretations, § 31-19-11-6. pending.” I.C. not, interpreta- choose the other we will constitutionality the uphold tion that will excep- a limited The statutes allow for presume Id. do not of the statute. We to this: tion Assembly violated the that the General parental rights are person whose [i]f unambiguous lan- the constitution unless entry adoption the terminated the statute so mandates. of guage of decree challenges adoption deсree on “nullify a statute This Court should later of: not more than the grounds only where such constitutional necessary.” clearly rational and result is (1) (6) entry after the of an six months County How- Bd. Comm’rs of decree; adoption or Comm’n, City Plan 263 ard v. Kokomo (2) (1) year adoptive par- after the one (1975). 282, 330 N.E.2d Ind. child; custody of the ents obtain Co., Fid. & Sims v. United States Guar. (Ind.2003). 345, 349 782 N.E.2d adoption de- the court shall sustain challenging the person cree unless Thus, ambigui in the face of even establishes, by clear and adoption decree the statu ty, may properly interpret if we evidence, modifying or convincing that renders it tory in a manner scheme setting aside the decree is in Requirements Due Process Notice for the child’s best interests. Adoption Court-Ordered Ter- after mination Parental Rights added). (emphasis I.C. 31-19-14-2 case, In this only DCS was the a petitioner Where establishes or statute common to both Birth Mother’s appeal of provides that notice of an pro- the termination order and Par- ceeding not required, petitioner need petition ents’ for adoption. Yet DCS con- not obtain consent to the adoption from sented to the Adoptive request, Parents’ the parties who would otherwise be enti- knowing that Birth Mother’s appeal re- tled to notice proceedings. I.C. mained pending throughout beyond §§ 31-19-9-8 & 31-19-10-1.2. Where a the duration of proceedings. prior court order terminated an individu- There is no indication that DCS made al’s rights and a child is in the known to this Court that it had consented State, care through the State a local during the pendency of office of DCS must consent to the adoption of the termination adoptive parents unless the can prove by order. This Court reversed that order on convincing clear and evidence that such September approximately 9 §§ consent is not required. I.C. 31—19— 2008— months after the adoption decree. It was 10-0.5, 31-19-9-8(a)(l) 31-19-9-l(a)(3), & only that termination order that made 31-19-10-1.2(d); In re Adoption necessary DCS the party to H.L.W., Jr., (Ind.Ct. 931 N.E.2d proceedings, rather than Birth Mother. App.2010). Longstanding common-law and There is no statutory provision statutory principles provide judicial re that sets forth upon criteria based which lief from arbitrary capricious agency DCS must determine grant whether to actions “directly and substantially af Thus, adoption. consent to an whether to fect the lives and property of the public.” to a consent child’s adoption is a matter State, (Ind. A.B. v. discretion, within DCS’s and the trial court 2011) (quoting State ex rel. Smitherman v. must exercise its discretion to determine Davis, 238 Ind. whether a prospective adoptive parent’s (1958)). The Indiana Administrative adoption of a child is the child’s best (“AOPA”) Proceedings Orders and Act af interest. This is so during pen- even fords procedural “minimum im dency of an appeal terminating a parent’s *8 poses procedural minimum duties” in dis rights. § I.C. 31-19-11-6. cretionary DCS, actions by taken even That is not say that there is no consti- where there is no procedure clear ap requirement tutional of separate notice peal of such decision under Indiana stat provisions from the of the statutes. Rath- 4-21.5-2-1; A.B., § ute. I.C. er, the by statutes do not their own lan- at 1216-17 (applying AOPA standards of consent, guage require notice leaving and review appellate review of discretionary it to the courts to construe the statute in actions). DCS light totality of the of the statutory scheme AOPA judicial affords relief where an and constitutional process require- due agency action is: ments. Because the statutes do require (1) process due deprivation, arbitrary, capricious, an abuse of dis- however, we they cretion, cannot conclude that are or not in otherwise accordance law; unconstitutional. with
182 arbitrary is agency An decision
(2)
right, pow-
contrary to constitutional
an affect
deprives
where it
capricious
and
er,
immunity;
or
privilege,
process. The Four
individual of due
ed
(3)
statutory jurisdiction,
excess
States
teenth Amendment
United
limitations, or short of stat-
authority, or
...
“No State shall
provides,
Constitution
right;
utory
life, liberty,
prop
or
deprive any person
(4)
re-
procedure
observance
without
law.”
process of
U.S.
erty, without due
law;
by
or
quired
Const,
has
§ 1. This Court
amend. XIV
(5)
evidence.
by substantial
unsupported
that “the
to raise
noted
repeatedly
4-21.5-5-14(d).
§
I.C.
basic, essential, and
children is more
one’s
pro
is
forth
and
precious
property
has set
than
Supreme
Our
Court
actions
Hite
agency
from
Due Process Clause.”
by
the standard of review
tected
21.5—5—14(d):
Family
Section
&
Vanderburgh Cnty.
under
v.
4—
Office of
Children,
175,181 (Ind.Ct.App.
an administra
of review of
The standard
2006).
never
“Although
process
due
Board
is narrow.
agency
tive
decision
defined,
phrase express
precisely
been
Sullivan,
County
Knox
v.
Trustees
fair
requirement of ‘fundamental
es the
(7th
558,
Cir.1992), cert.
F.2d
564
965
6,
M.M.,
N.E.2d
10
In re
733
1078,
1043, ness.’”
denied,
113 S.Ct.
506 U.S.
(1993).
(citing E.P. v. Marion
(Ind.Ct.App.2000)
agency
An
de
There is nothing Hite, the record to sug- property rights. See 845 N.E.2d at gest that DCS informed either 181. The State now asks that we reach a Mother or this Court that conclusion that only short-circuits this proceeding during was the pendency process, permits but DCS to foreclose an *10 appeal. Adoptive Parents and the procedural State individual’s and substantive due now argue that Birth Mother’s present process rights, which through are enforced the adopt we to Additionally, were Such an outcome
judicial proceedings. the burden we would shift position, State’s powers of upon separation transgresses over- parents tо the birth proof of any “person, preclude which principles, —an circumstances, under the whelming burden one of under with official duties charged by clear and require proof in it would that government]” of departments the [three was adoption that the convincing evidence “any of the functions exercising from chil- placement that inappropriate and expressly provided except as another” the long removed from (perhaps dren Art. Ind. Indiana Constitution. Const. the home) in the chil- parents with birth 3, sec. 1. only This would interests. dren’s best Second, this case show the facts of Mother, Birth upon the magnify burden action does chosen course of the State’s the who, reversing in having suсceeded it seeks to advance. not serve the interests would be appeal, on termination order to the was a merits that vacation prove DCS on the forced to the was in the best adoption and consented decree termination order interests of the Children. notice to adoption without Children’s indeed, having had her Mother — deci- therefore conclude DCS’s We terminated, statutory the relevant rights was an adoption to consent to the sion provide require did not DCS provisions action that arbitrary capricious agency adoption Birth Mother with notice of rights. process Birth Mother’s due violated give Yet decision to proceeding. DCS’s provide statutes for It is true that Indiana with the adoption, together during consent even adoption an to move forward terminating Parents’ of an order grant ongoing appeal court’s in rights, leaving such decisions peti- parental in Birth Mother’s petition, resulted Howev- the discretion of our trial courts. As of this adoption. tion to set aside er, in operate iso- provisions those do opinion today, litigation Court’s provisions lation from the other final years than 3 without run more ½ statutes, from or in isolation resolution; delay while some is attribut- States that the Indiana and United Mother, delay is to Birth much of this able citizens. guarantee our Constitutions State, which asked also attributable to the its brief filing for several сontinuances for de- The State’s consent to the of this of her due prived before the trial court.4 None Birth Mother of the termi- meaningful appeal anyone’s finality. interest in serves changed procedure Supreme troubling much our Court 4. More than all of this is that delay judge with the appointment special of the blame for this rests of a under which court, which left Birth Mother’s mo- sought our trial rules. We also under July summary judgment pending from tion for 29, importance as observe that in matters of such span of until December 2011—a in an disposition of children nearly year nearly years, after Birth ½ matter, implemented expedited this Court has response to the Mother's memorandum timely procedures to ensure consideration briefing. Though peri- State’s trial-court that trial courts such cases. It seems to us which parameters well exceeded the under od similarly in an turn to such cases should judge Trial special could be obtained under fashion, expedited we cannot reconcile (the "lazy Rules 53.1 and 53.2 so-called speed adoption court with which the rules), judge” during argument oral counsel approve adoption with the ex- moved to that he was loath for Birth Mother indicated delays of Birth in its consideration treme he antagonize a trial court before which summary judgment. motion for frequently practiced. It this reason that is for *11 We are thus to seeks the compelled nation order. review of termination It is order. wrongfully that the consent was conclude upon incumbent DCS to act in a manner custodian, the legal As Children’s given.5 comports that with due process rights to rest- adoption consent to the discretion where its actions affect the substantive ed with DCS. DCS abused that discretion. rights and procedural parents —even adoption This in turn rendered decree the those parental rights whose have ter- been void because there was no other This case exception minated. is no to that giving Coming capable during consent. requirement. of Birth Mother’s the pendency appeal, the arbitrary capricious Because DCS’s adoption dеcree worked to consent and grant to of consent the Children’s adoption Birth Mother of her deprive due adoption void, renders the decree re- on termi- right meaningful appeal to a of the mand the trial court must grant Birth nation order. petition Mother’s to set aside the decree. conclusion, Having reached that we may Mother seek to renew her hold, reluctantly, however must therefore adopt children, petition to or DCS by Children’s their adoption action, and, CHINS though reinstate its Adoptive Parents must be set aside be- we note that the Children have been in in wrongful cause of DCS’s conduct Adoptive Parents’ care nearly six case. years, no position we tаke today as to the here, Where, as a pend- DCS is aware of upon merits of the outcome remand. parent’s of the ing appeal termination of a Conclusion consents to the of the but order, covered it children termination The consent to State’s upon to notice provide incumbent DCS was arbitrary Children and capricious adoption proceedings. Holding oth- derogation and in of Birth proce- Mother’s permit erwise would an executive branch dural process right due to a meaningful agency determine the extent nature and appeal of the termination order. The parent’s right meaningful appellate of a adoption decreе is therefore void. We do review of court order one of disposing of not, however, statutory conclude that the precious rights af- the most substantive scheme for in Indiana is unconsti- our Indiana forded to citizens under the tutional. therefore adop- We reverse the States and United Constitutions: tion denial of Birth peti- court’s children. to raise one’s tion the adoption to set aside decree and hold, however, do not that the We remand this matter for proceed- further statutory scheme at issue here is unconsti ings. facially either applied tutional or as Reversed and remanded. Mother this case. The statutes, together taken existing with con guarantees, placе
stitutional upon DCS BAKER, J., concurs. honoring process rights
burden of due VAIDIK, J., where it has succeeded in an concurs in action result with a parent’s rights parent separate terminate opinion. Indeed, Deputy Attorney
5. we note that the before the resolution of Birth Moth- appeared who General before this Court ac- er’s un- termination order was knowledged during argument oral usual. County Jasper DCS office’s consent *12 pre until that constitutional the statute is in result.
VAIDIK, concurring Judge, contrary show by a is overcome sumption that Birth majority with the agree I Motor v. Ind. Bureau ing.” Studler violated, were rights due-process (Ind. Vehicles, N.E.2d 1159-60 notice of the received have she should challenging the party The Ct.Aрp.2008). adoption de- adoption proceedings, the bur- agree constitutionality I also with bears aside. must be set statute’s cree adoption that re- majority’s conclusion doubts will be proof, and all den My are constitutional. at issue statutes Id. “The party. that against solved however, I con- is different. reasoning, circum- that no set of must demonstrate require statutes that clude make the statute exists that would stances to birth proceedings notice of v. (citing Id. Baldwin constitutional.” been terminat- rights have whose parents (Ind.1999)). N.E.2d Reagan, 715 ap- their not exhausted who have ed but support may be construed If a statute peals. adopt that constitutionality, we must to her rights parental Birth Mother’s the statute to be and find construction a trial children were terminated two constitutional. January appealed. and she court in 31-19-2.5-4(4) pro- section Indiana Code order reversed the termination This Court pendency of the vides that “notice with- later. We did so eight months just not have to be adoption proceedings does the children were knowledge out that person ... a whose given to was appeal Birth Mother’s adopted while before the have been terminated rights nothing also knew Birth Mother pending. adoption.” The adoption proceedings. entry of a final decree Section 31-19- provision, consent relevant claim case is DOS’s At the heart of this 9-8(a)(8), parent that a need states proce all the Birth Mother received if of her child consent was enti to which she dural due been termi- parent-relationship “[T]he is, give not have to tled—that DCS did we 31-35.” Because nated under IC adoption pro Birth Mother notice of the adop her consent to statutes to be constitution- ceedings presume or obtain these had been parental rights her al, tion because their notice and con- I would construe the trial-court level. Ind. terminated at apply only par- when a exemptions sent 31-19-9-8(a)(8). 31-19^2.5-4(4), §§ Code as a have been terminated ent’s fundamental, Because Birth Mother had appel- of all matter —after exhaustion final custоdy the care and right to substantive protects late remedies. This construction C.G., children, re of her In process right to substantive due parent’s (Ind.2011) v. El (citing Mathews 916-17 and, children custody care and of her 893, 47 96 S.Ct. dridge, U.S. consent, affords by preserving notice and (1976)), and she had not ex- L.Ed.2d 18 meaningful at a opportunity to be heard an remedies when appellate all of her hausted meaningful way. in a time and initiated, were adoption proceedings manner rights were violated. in this due-process Reading her statutes grant- a trial court from preclude does not the constitu challenges Birth Mother when an ing adoption petition an statute, par tionality of Indiana’s pending. See Ind. a termination ordеr is provisions. consent ticularly its notice and parent a birth 31-91-11-6. If Code consti challenges appellant “When proceedings, she statute, notified of presume we tutionality of a adoption.6 by reading consent to the Or a trial court sion the statute to excuse no- *13 may parent’s determine that the consent is tice of proceedings only when a § required. parent’s See Ind.Code 31-19-9- rights have been terminated as a 8(a)(ll). instance, In either the trial court final matter through exhaustion of all ap- may exercise its and grant pellate discretion remedies. Birth Mother’s children adoption petition despite pending appeal. adopted were without notice tо her before corresponding The section of the termi- she had exhausted these remedies. As a result, provides nation statute also that this due-process her rights were violat- ed, occur. See Ind.Code 31-35-6-3. So decree is void. See long L.D., as a parent given notice of these In re Adoption however, (Ind.2010) adoption proceedings, such a Whelchel, de- 669 (citing Stidham v. parent’s (Ind.1998)). cision would not run afoul of that .1154 due-process rights.
Birth Mother has a pro- substantive due
cess to the care and custody of her
children. While I conclude that provi-
sions of the challenged statute constitutional,
here are I reach this conclu- l-35-6-4(a)(2) matter, 6. Section of the termination as a final par- after exhaustion of a provides parent give statute that a need not possible appellate ent’s remedies. consent when their are terminated However, juvenile probate or court. I would read this statute to also refer to termination