*1 judgment, order, final proceed- sentative from a default or ing following reasons: [*] [*] [*]
“(6) judgment is void agree cannot position. We with this Each of these rules provides directed nonrelated situations. TR 59 the ve- appeal hicles for an or the correction of error in the trial of portion the cause. That of TR appellant referred applies there mistake, when has been neglect, excusable new- ly evidence, etc., discovered fraud, none of which are shown to be existent the case at bar.
This cause is reversed and remanded with orders to the Clerk of the expunge Starke Circuit Court to record made including herein from and October, 27th of and to compliance act in with (A) TR 53.1 in notification Su- preme Court Indiana, State of forthwith.
Sullivan,
J.,P.
Buchanan and
JJ.,
Lowdermilk,
concur.
Reported in
Fred G. Kokomo, Gamble, appellees. for & pro- appeal adoption from an is an J. This Robertson, Cupp L. and Geraldine S. ceeding plaintiffs, Robert wherein adoption of a Court petitioned Howard Circuit Cupp, Jerry Respondents, L. John- September born child Johnson, parents in- E. Constance son and invalidity alleging objections fant, filed by court held the signed them. The trial each of granted plaintiffs. valid and consents to be timely their Motion to Correct respondents filed Thereafter, challenged trial court as the decision Errors which evidence, contrary evidence, to' the supported sufficient respond- denied, contrary was law. Said motion appeal. subsequently perfected this ents A, facts of the uncontradicted relevant recitation brief wife; follows; respondents are husband as this case Jerry child, L. respondent, John- of their birth duly nota- son, signed adoption consent form was an which rized; subsequent respondents’ to the birth of the child, re- spondent, Johnson, Constance E. who was at the time a minor, signed a duly consent notarized; form which was also the minor consent form of Constance ap- E. Johnson was proved writing by Dawson, Ruth a caseworker for the County Howard Department; Welfare the consent forms signed by respective respondents specify did not adoptive parents, names of the and were hence con- “blanket sents”; privately placed Johnson infant adop- plaintiffs’ home; tion in the plaintiffs adop- the fitness of , tive was not contested. paramount presented by appeal issue is whether respective signed not the consents to each of respondents pertinent valid under Indiana law. The statute force at the time the consents were executed was (Burns Ind. Ann. 1968)1 Stat. reads: §3-120 n parent be minor, petition. their that parents may more have been abandoned or deserted for six by the oath or affirmation of two such tion. companied by agency department known ing, he, a bar to such consent: Provided, however, That serted child deprived “3.120. such parent immediately kindred. —If such aforesaid she or Consent If it minority of residence after parent or of *3 — custody be appears by parents the written public dispensed Nonresident if or of preceding any shall consent in consent of such — parents any welfare. Such consent of shall be notified of the there Child over fourteen diligent child have parent with if such child is indorsement on the approval' parents the date of the or both are nonresidents or be shall not in or of itself be inquiry and if [2] parent writing — disinterested parent —Abandoned Notice none1, is [6] unknown, or to such — investigating must be ac- filing petition pendency of adjudged parents — months parent Notice to the if either persons Parents or de- adop- state then and liv- or of or to (Burns 1968) Ind. completely Ann. Stat. 3-120 § was rewritten by and (Chapter 355), amended the 1971, 31-3-1-6, Acts of 1969 IC (Burns 1970). Ann. Stat. 3-120 § The consents in the instant case were prior executed to the 1969 proceeding amendment and this prior under the tried law. their or wedlock shall not be deemed notice in of the discretion of the court it be If the economic, presence child quately years before or necessary oppose forms for use however, ment every petition. ized to furnish hearing known kindred of the signed said so attested and determined children has failed to of proceedings consent. sons deemed entitled to [§§ 3-115— such one public heard, action pendency adoption is parental rights has been established case adoption. parent shall [1] such case, supporting sufficient, except public age consent of the with Copies In* welfare That such attestation he shall and by publication year immediately 3-125]. is where such shall be opportunity adoption, or necessary all cases- where the father of be pendency signed of such required written consent of opportunity duly such welfare or or by over, to clerks of courts given filed pending. of such consent In all of which parents clerk of Such have parents or such authorized agent; over such before and his consent necessary: Provided, with the pay adoption proceedings to court. If such' such child of to such cases child state such notice such child, such as mother Such of such such have been by file such child provided consent objection shall be considered where department shall agency file where is notice- before by law child for reasons support or where other investigating objection court agent court shall shall be deemed deemed advisable taking any his investigating notary of such child shall be such to the when same have and the shall child be fourteen as consent or persons in which the by objection aforesaid not be legally may money to- county department parent law proceedings effect of this act to be been paternity public: and no- filing cause notice of however, person hereby be a ward. In father granting any agency in civil cases. signed any state when necessary to for a born out of deprived such given court seems if agency or other prescribed necessary reason Provided, notice of any, child or petition parents that he author- depart- is ade- parent period giving in the afore- shall, That than been such such [14] per- and and of *4 children, his child the of or the require filing its court discretion not the of a in instances. 1941, father in such consent of ch. [Acts 146, 40, 6, p. 438; 1943, p.5, ch. 89.]” § § correctly assert, respondents the Indiana stat As derogation the common law and must ute is in be particulars strictly all essential in followed order right parents’ custody to defeat their children. Devlin, Adoption Chaney, Chaney et al. et al.
In Re (1958), App. E. Rhodes et 128 Ind. N. 2d 754. al. v. Shirley (1955), E. et al. 234 Ind. 129 N. 2d 60. Emmons (1956), v. Dinelli 235 Ind. 133 N. 2d 56. E.
Respondents correctly contend, so, peti further that seeking persons adopt
tioners or a minor child have proving compliance par burden of strict with all ticular essentials of statute. Bryant
In Re v. Kurtz et al. 134 (1963), App. 480, 189 N. E. 2d case, upon petitioners incumbent
In instant it was prove respondents that from obtained were in compliance statutory requirements
strict with From, adoption statute, supra. the Indiana a literal reading statute, of that it is evident that in order for statutorily valid, the consents to be must shown that: they writing; agent were were attested to an notary public department public; welfare and that parent, present case, minor, if either then accompanied approval consent must be the written investigating agency department of welfare. From an ex appeal, amination of record in this we fail to find petitioners’ proof refutation that the consents satisfied particular essentials the statute. In accordance with foregoing, we must hold that the trial court’s decision supported by contrary sufficient evidence and was not the evidence. alleging contrary the trial court’s decision was
law, upon arguments it would seem examination of the set respondents’ brief, challenge respondents forth *5 validity controversy failure not for their satisfy requirements statute, the literal of the but rather satisfy statutory requirements, as re- their failure to spondents they interpreted. Their first contend should be argues adoption stat- such contention that under the Indiana given prior a ute consent to the birth of the infant to be makes, adopted is not valid.’ While Burns 3-120 no mention validity prior of a consent obtained to the birth of a child, respondents language that contend of the statute subject only interpretation to the that such a consent is a nullity. Respondents specifically refer to two. sentences in the statute set forth: “If such child have living, he, writing she shall consent in adop- to such And, every tion.” “In case where child shall such have been born out of wedlock....” reading
It is clear from a careful only statute that it requires living they that if the are must consent in
writing adoption. to the We find no direct or indirect reference to the time of the consent in relationship to the birth of the child which would merit the inter pretation right custody by that the consent can only given after birth of the child.
Respondents authority cite no interpretation, for this while directly no Indiana court point on decision. can be found, petitioners provided us with the In Re case of Long (1952), Fla., support 56 So. 2d contrary interpretation, Supreme wherein the Florida p. stated, 451: at Court agree agreement, consent “We that because cannot
signed birth, premature before the was so as be in- statutory provision consistent with sent be executed such con- living by ‘the mother of out child born * * wedlock, It seems us construction emphasized As we have purpose. too much the form and too little the seen, the welfare of the child has been ade- protected.” quately interpretation respondents’ support that a In further argued riullity, given prior is a it is that the to birth consent require legislature statute tol since amended the has child, after birth of the execution of the consent legislature merely doing incorporating into- the so language always specific the law what had been statute in agree bound to follow state. We cannot amending logical reasoning legislature by more acting specifically to more state the law statute was *6 change acting past, the the but rather was it had been in present presently it is. the law to what While stat- may superior former, the ute indeed we are nonethe- compelled appeal to decide this under the con- less trolling Thus, express statutory provision law. absent or judicial contrary, interpretation signed the the consent Jerry by respondent Johnson, L. not for was invalid the signed prior to the that it was of-the reason birth child. Respondents that a further contend “blanket consent” adoptive parents which makes no reference to in the the case private placement is not a of valid consent. While the con trolling issue, point silent on statute is the in and the courts directly this state been not confronted with question, argue Shirley respondents al., Rhodes al. et et proposi (1955), 234 Ind. 129 N.E. 2d for the stands fails to that a consent which state the names of tion only adoptive is- valid the child is where the , custody placed department public in wel any language, expressed either im find fare. We fail to supra, respond Rhodes, supports plied, decision 'which case, proposition. the Rhodes was held where ents’ signed adoption, parents had consents to and had custody department placed their child in the of the welfare home, validity adoptive of a suitable selection not be consents would defeated their failure to state question adoptive parents. The names of the the effect validity placement private on the of a blanket consent was court, rightfully question not before the so that not was, nonetheless, discussed. It reasoned in Rhodes that since department the welfare had control over the selection and supervision adoptive home, a suitable and that since responsibility granting denying ultimate court, allowing was with trial the blanket consents adoption procedures practiced was not inconsistent with as. reasoning in this From such state. there exist the infer- department ence that because the welfare does not exercise degree private placement adop- the same of control over a public placement adoption, tion as it does over a the use of blanket consents is in the less desirable the former than hold, do, However, respondents latter. would have us proposition that Rhodes stands for the which that a consent names, adoptive parents fails to state only is. public valid where the placement, is would be something to read into the court’s decision simply Furthermore, pointed there. it should be out that while arguably preferable it is only that blanket consents be used public placement adoptions, there, nonetheless, exists in private placement adoptions necessary degree of control department, ultimately by the welfare court, protect rights order to parents, of the natural and to *7 reasonably insure that the use of blanket consents does not being adopted by in the result child parents. As unsuitable the placed in where a adoption case child is in a home by agency, public private placement in a adoption ulti- the responsibility mate still rests court, with the aided the investigation reports resulting therefrom public of the agency, to, upon determination of the facts and issues of deny grant case, adoption. or the brief, respondents significant
In their state that it is that Legislature, enacting in present adoption stat- ute, specifically provided dealing in the section with consents, that: identify name or otherwise not does consent which “A if the consent contains is valid adoptive parents is, that consent person whose statement voluntarily the consent with- consenting executed person of the identification the name or other out disclosure of 31-3-1-6, Ann. 3-120 Stat. adopting parent.” IC (Burns 1970). (a) 6c agree respondents’ conclusion that to with cannot
We statute, present amended that such a of the the enactment given unless shown to have been valid consent was not nothing in the public welfare. We find department of by respondent, in the at statute in effect cited cases executed, compel such which would time these consents were pertinent in the statute does section a conclusion. Since the involving private distinguish cases between feel, conclusion, placements, reasonable we public more private placement in a blanket consent is that a recently Indiana, added safe- in with remains valid but consenting in guard parents, in addition writing adoption, file a statement must also to the knowledge voluntarily executed without consent was identity adoptive parents. other respondents cases which have not cited
While jurisdictions to be invalid blanket consents have held nonetheless, adoptions, they referred private placement have, in 2d 2d A.L.R. to 2 Am. Jur. us jurisdictions cases cited so held. The have dicate that con held blanket annotations have the above mentioned (1) that: the reasons sents to invalid given against in or policy; (2) must be public the consents reason, specific proceedings. second reference to with given reference namely in or with must be the consent significance here, since specific proceedings, is not of statutes, present past, the courts nor our neither given must state, required that consents to be Reidy proceedings. Barwin specific reference *8 620 175, 182,
(1957), Supreme 194, 307 P. 2d 62 N. M. Mexico, factual Court of New confronted with a situation striking similarity case, dealt of that instant with public policy the issue of as follows: no the of of to We are or decisions aware of statutes “[12] this declaration Court be basis for the public policy in we are unable this consideration and public policy in the execution conclude violated of the consents before us. ' weight authority told is that “We are that the blanket of void, statute, pub- violative consents either or as policy, covering lic subject analysis In and to an are referred annotation page 24 2d at where we find in A.L.R. Pennsylvania North cases from and Carolina. addition, cite counsel for Davis, App., 19 same effect Sears Tex. Civ. S.W. 2d v. examining cases, weight think the .“After we do not authority, is, preclude to> if such it is so formidable independent an determination and conclusion the con trary by this court. Of interest connection are the in this Shirley, 587, 129 60; cases: Rhodes Thomas, 234 N.E.2d Lee v. Ky. 457; and S.W.2d Capparelli, 41, 175 180 Or. P.2d 153.” Barwin, supra, As Court is unaware of statutes or court decisions of this state which have declared blanket private adoptions against public policy. To legislature contrary, expressly provided has in the present amended statute for blanket consents without dis- private public placement. tinction between and Barwin, supra, Of further interest is the Court’s rea- soning, we feel it sound applicable to be to the in- legislative case, regarding stant underlying intent adoption statute. adoption may petitioners Since be refused to “[6] who strongest
have the parents, endorsement of the we think requirement follows the office of the of consent for willingness is- to indicate the relationship swept away new one giving created its stead. The of consent is indicative of *9 expressive subjective of mind the state — unless, binding the court only no one and the individuals of perform up court It to the to act thereon. shall choose to the severing relationship and objective of the natural acts As by judicial creating it recommended determination. artificial status an adoption may may decree in not persons of favor parents, un- it seems most natural the impose likely legislature as a condition intended to the jurisdiction knowledge court’s the the exercise identity the of of petitioners part on the the na- exists, parents, even tural because when circumstance possibly the circumstance that and further investigated qualifications peti- parents have unqualified given approval, them their tioners and adoption, to decree the selection court still refuse responsibility parent being judicial act foster (Emphasis added). being that the court.” 175, 307 P.2d 181. 62 N.M. significant, respondents’ cited
It is also annotations not- jurisdictions withstanding, besides New Mexico supra, Barwin, private adop- held blanket consents to be valid. tion App. (1965), Ill. 2d N. 89.
Cohen Janic 57 207 2d E. (1961), Fla., Adop McKinney In Re v. Weeks So. 2d 310. Child, (D.D.C. Supp. 1954). tion a Minor 127 F. foregoing reasons, finding For the trial court’s (cid:127) signed by respective respondents consents were valid contrary having Furthermore, was not to law. found valid, applying trial court consents to be did err not the “best interests” of the child rule. being judgment error,
There of the trial no reversible court is affirmed.
Sullivan, J., Lowdermilk, P. concur. J. J., opinion.
Buchanan, dissents with
Dissenting Opinion unhesitatingly respectfully dissent J. I but Buchanan, grounds: majority opinion from the on these 1. The executed they invalid because were: were (father (a) prior only), executed the child’s birth (b) in blank. executed At These consents nullities. best indicate an adoption.
intention to consent to 1(a). Ground A consent to executed to the birth of the child is void for various reasons.
First, majority opinion strictly does construe our adoption statute, (1968 Repl.), Ann. Stat. as it §3-120 purports do, required by Indiana In the Matter law. Bryant (1963), App. 480, 134 Ind. 189 N. E. *10 298; Adoption 593, 1 In Chaney (1958), 2d Ind. Dec. Re of 754; App. 603, Adop- 150 In the 128 Ind. N. E. 2d Matter of (1956), App. 156, tion Force 126 Ind. 131 N. E. 2d 56. of pertinent part, evincing our statute is in a worded manner legislative a intent child must be born before consent can given, i.e., living. such parents be “If child have every . .” “In where child shall . case such have been born (1968 of .” Ind. Repl.). out wedlock. . . Ann. Stat. §3-120 (Emphasis majority supplied.) interprets language The this only requiring parents’ they living. as consent if living, However, if the are not then can be there no child, already unless he has been born. reading
Strict construction means a literal of words they outwardly appear. reading something It mean does not language Lagler Bye (1908), into the which is not there. v. 596, 36; App. 592, 42 Ind. 85 50 N. E. Am. Statutes Jur. §388. majority
The finds no direct or indirect reference However, time of strict, consent in statute. this is not a reading literal because failed to effect consider the of “have”, “child”, the words and “shall have been born”. Such speak being existence, words human a Ac- a fetus.
623 imme be an been defined to cordingly, “child” has the word McKinney, parents. Houston offspring human diate (1932), 144 Estate 480; Matter Conant’s Fla. 45 So. Supp. 885. Misc. 259 N.Y. is that prior birth is invalid reason a consent
Another inevitably confusion. uncertain, leads to vague, is may be possibility that the child ever-present There multiple Various stillborn, defective, be a birth. or there parents consented questions mind. Have come to multiple If birth? if there is adoption of all the babies remaining baby or babies? not, what would become the birth adopting die before ifWhat child? holding majority consent cites a Florida case the welfare of child was as valid because
to birth Long Adoption adequately protected. (1952), 56 In Re So. Query protected child’s welfare 2d can a —how ? view of these uncertainties
Finally, fail to allow for one of nature’s such consents strongest the reaction will of a knows what instincts. Who baby? major her Does the view of mother once she sees ity allow for maternal in a consent is valid such keep baby deny natural desire to her stinct? mother’s To derogation preserve purpose of our statute to is in family relationship possible. In fullest extent Bryant (1963), supra; Duckworth the Matter (1932), v . Duckworth E. 773. N. *11 safely premature. such It can be said consents are private 1(b). in a The execution of a blanket consent Ground duty parents natural of the is inconsistent with their child. foster to select most suitable brought child into the was their act which Because it world, they responsibility. full knowl- bear this Without must life, identity, edge adopting parents’ their home fi- of the discharge character, they condition, etc., do not nancial 624 They -by merely executing it
responsibility. a “blank evade check”. although majority that blanket consents in contends
private adoptions per- allow the to- evade- duty place proper in a formance their to the child foster home, necessary degree there still exer- exists control assuming department cised and the court welfare parents’ thereto', may response In be role. press responsibilities observed that other makes often investigations suitability private adoptions as to the perfunctory. support argument of the consents are blanket (1940), 136, 141, In Re Holder
invalid is 218 N. 10 E. 2d C. S. 8 62 : “The contemplation consent-must at least be'in fair proposed adoption, its and this includes most essential adoptive n parents. identity . . . Juris- feature —the depend upon diction the court cannot be made blanket part release or consent on the may adopted proceeding may the child be in whatsoever brought apply.” (Emphasis and whomsoever it supplied.) 45; See also Am. Jur. A. L. R. 2d § § Here, question, as majority the consent to birth grounds its on decision the fact that the 1969 General Assem- bly Burns 3-120 consents, amended and endorsed blanket § previous since the statute made no subject. mention of the They merely assert restating this amendment was previous by putting writing adding law safeguard. it in However, just' logical argue is it not the converse? interesting analogies
Some come to mind. Deeds affecting instruments title an interest in real estate must properly recording filled in before accepted thereby give effective notice all concerned. Wilson v. , (1895) Johnson 145 Ind. personal N. E. 38. A lien on property does not become properly effective to the world until
625 refuse governmental offices seq. Daily, et UCC 9-401 filed. §§ all the filing not do which instruments various in. blanks filled prop- affect safeguards instruments provide
We today. safe- What it lead erty aspects life as we and other adopting the life guards human' provided for in' have we by natural may written majority blank check that a view yet in existence? child of a knowledgeable today, gone by, those and even In times certain amount adoptions are aware private the field of “trafficking exists. Sometimes this is in human flesh” Legislation gray market babies.. referred as a to black rectify years to this vicious traffic. much recent has done done, delving suffice of how is into details Without attack here aid and say of consents under it to that the kind paramount- placement children where of newborn abet : monéy, the child. not the welfare of consideration is prior is á consent executed birth Ground 2. A blank nullity. only indication of ah intent to consent At best it is an binding at be- which is not withdrawn having jurisdic- judgment final the court time L. R. White, Mich. 1 N. 2d A. tion. In Re W. 1034; Adoption Lauless, 2d 660. 216 Ore. 388 P. In Re realizing Cupps testified to that when takes one a child home, there can final into his be no until the court given, approves approval it. Before this final changed intention, they rightfully their an action only took as their consents were invalid or indicative of intent consent.
Authority meager, elsewhere, is both in Indiana and as to validity consents, approach subject but the to this perhaps best summarized the Matter of Bryant, supra, 301: at relationship “[Sjince a child is between a rights importance,
a bundle human such fundamental generally being it has held that statutes been derogation strictly the common law should be construed worthy parent preservation in favor of of such relationship. paragraph Therefore rules in above tempered by need be the rule that neither should the statute liberally destroy safeguards be so construed that would *13 preservation relationships.” erected family (Empha- supplied.) sis insignificant lightly Has human become life so that we set safeguards a child protection adrift with fewer for its than prescribe we for a chattel? majority net opinion prevent effect of is to repudiating from a “consent” executed in child,
blank to the birth of the and at time after born, the child is even befor final decree has been contrary entered. Such a interpretation result to a strict of Ind. 3-120, supra, public Ann. policy Stat. and the § states paramount impor- concerned with the tance of the welfare of the child.
Therefore the decision of
trial
court should be reversed.
Reported in
Dorothy Kozma. 171A1. Rehearing Filed [No. October denied December 3,1971. April 5, Transfer denied 1972.]