*1
Podgorny requires plaintiff
propriate
affirma
application
foreign
acquisition
jurisdiction
tively
proper
show
“received no
only
under oath that he
if defendant states
(See
Lowmaster
also Letson v.
notice”.
Given the heretofore Cunningham’s say attempt affidavit did not suffices legitimate permit he does it inference that nor show subject personal properly to the service process was not Indiana, long-arm pursuant to the on him Illinois obtained statute. do, true, required as we are each and all take as
We Having so, Cunningham’s under oath. done statements wé granting say the court sum- erred unable are still mary judgment.
Judgment affirmed. White, J., concur.
Buchanan, P.J. and 83. Reported at 352 N.E.2d Note. — Kathy Perkins, Perkins, M. Matter of: Dean Ray Ray Tony
Billy Perkins, Perkins, Marvin Joseph Perkins, Perkins, Perkins, Jr., Marvin Sr. Mary County v. Perkins Allen Department of Public Welfare. Rehearing July 29, September 20, 1976. denied Filed 3-474A60.
[No. denied December Transfer 1976.] *2 Hugo Martz, E. Wayne, appellants. of Fort for Larmore, Perry, H. Philip Adair, Beers, McAllister & Mailers, Wayne, appellee. of Fort Appellants Marvin Perkins, Mary
Hoffman, Sr. and J. — appeal part from that of an Perkins the Allen Su- Division, Court, perior which Juvenile made two their six Joseph, children, Marvin, Department Jr. and “wards of the purposes including adoption.” for all of Public Welfare This July 27, 1973, commenced on the Allen (Welfare Department) County Department Public Welfare Marvin, requesting Jr. petition filed an amended remaining children be Joseph Perkins Perkins purposes Department “all made wards of the Welfare including adoption.” long history involvement resulted from a
Such family. The the Perkins’ Department the Welfare began history April on record that such reveals Department have all when the Welfare filed yet born, except Joseph, declared children who was not entered dependent neglected children. 15,1966, finding children were ordered April such a (Children’s placed County Home in the Children’s Allen Home) children were court. These until further order of the 8, 1966. On parents on June released of their 15, 1967, were juvenile court found that June children, and adequate the six provide unable to care siblings placed in Marvin, his Jr. two of ordered appellant Marvin The court further ordered Children’s Home. *3 Perkins, pay per support for these children. Sr. week of to $35 21, sup- 1967, Department the filed On December Welfare plemental petition seeking Joseph On have made a ward. to following day Joseph were ordered the two of his brothers and 1968, 4, Marvin detained at the Home. Children’s On October by contempt trial court Perkins, be in Sr. was found to support at nonpayment the aforementioned reason of his of However, commit- fully his a time he was able do when so. opportunity to jail stayed provide him an ment was 1969, contempt. 14, March court purge himself of such On dependent children as defined all six children found De- temporary wards of Welfare and them statute made 1969, issued for August 15, was bench warrant partment. On purge Perkins, for failure to himself his con- Sr. Marvin support by the trial ordered tempt paying of court subsequently re- Marvin, was incarcerated and court. Sr. 12, 4, On December November from leased Marvin, Joseph children other than Jr. were two home, Marvin, returned to the Perkins’ was ordered Sr. pay per support remaining week four chil- for $35 paid only January dren. On the father had $15 support April 2, 1971, and on found the trial court it was paying support. that the unemployed and not father was During period hospitalized this time Mrs. Perkins was psychiatric good care, “a of turmoil” existed deal Further, Perkins’ home. their small home was maintained disarrayed dilapi- in an condition, “very unclean and dated” furniture “holes in the walls.” immediately . In the preceding filing pe- months tition action, which initiated this Perkins’ conditions improved degree, home to some and the able Perkins became adequately care two children in the who remained However, home. Mrs. Perkins suffered recurrences her disorder, mental Mr. Perkins was due to unable work injury. opinion It Department was the case- Welfare worker that due to these circumstances the Perkins “can care children, just two they but don’t feel that we will ever able to care for six children at time.” situation, Department
As result of this filed Welfare and, hereinabove, here at issue the trial as stated granted Marvin, Joseph, as to Jr. and making Department them “wards of Public Welfare purposes for all including adoption.” appeal, On regarding Perkins raise several issues propriety disposition by of this the trial court. The first such they issue which raise is whether the trial court aas jurisdiction court had par- the termination of their position rental The exact taken appellants regard delineating is that because the disposi- statute *4 juvenile tional express alternatives courts contains no grant authority rights, of an to terminate no such authority existed in the trial court. jurisdiction to deter- clearly has court
An Indiana dependent subject jurisdiction is to its mine a child whether alleging before neglected petition is or when a (Burns Code 1971, 31-5-7-7 See, IC conditions. such jurisdiction over However, Ed.). it has no 31-5-7-7, 1971, IC seeking solely terminate thus 1975). The issue Supp. (Burns supra; 31-3-1-7 IC alleging presented by the case at bar whether purposes seeking wardship for all neglect dependency or terminate juvenile court including authorizes dispositional alternative. as a (Burns 1975), Supp. provides, 31-5-7-15 IC pertinent part, as follows: “If the shall find that the child comes within court may by 31-5-7-25], it provisions of this act [31-5-7-1— entered, duly proceed as follows: probation supervision “(1) under Place the child on or a relative other fit in the home or his own determine; may person, upon such terms as the court “ (2) any public the child Commit suitable institution include, agency, to, not which shall but is limited feeble-minded, epileptic, insane, institutions for the or or state hospital mentally ill, any other or institution for the private agency the child to a suitable institution or commit organized state, incorporated or under laws of place
authorized to approved willing to receive such years in which event a a ings ward of ward “ “ (4) May (3) unless The court homes; judgment sooner take department of care for children or to not to exceed licensed child cause under advisement or may requested by wardship; make such child a ward ninety period public placing [90] welfare of not to exceed party agency days. proceeded them in suitable postpone find- county, the state two against court, [2] disposition “(5) further be deemed Make child, except interests as herein the best be to provided.” otherwise 31-5-7-15, recently supra, considered (1973), Dept. al. Re et v. in In Collar Welfare *5 668, App. (transfer Ind. denied), N.E.2d 179 a case similar case at County bar. In In Re Collar the Welfare Department petition had filed a per to have a made a child manent adoption purposes and, hearing ward for after petition, such appellant trial court so ordered. The asserted court that insufficient evidence was introduced in the trial support court disposition of the child. In such passing upon contention, such pro this court examined the 1971, visions supra, (5), 31-5-7-15 and stated: “In jurisdiction the instant case the child was ob- tained trial petition court of the Welfare Department seeking to have dependent the child declared neglected. 9-3207, supra. 1971, Section 31-5-7-7 [IC (Burns Ed.)]. Code The trial court found the child to be a dependent natural At child. that time the mother control and have of the child temporary were wardship. terminated the order of Hav- ing once ‘dependent found the to be a the trial child’ guided by court was 9-3215, supra. the best interests of the child. Section 1971, (Burns 1975)].” Supp. 31-5-7-15 [IC Ibid, App., at 671 of 155 294 N.E.2d. Ind. at 182 of appellants The attempted distinguish have not Re point. Collar foregoing on this The rationale from such case implicit approval procedure and its utilized the trial court in holdings the case at bar is reaffirmed. Such are dis- positive of this issue.
Appellants next contend that proceeding in the trial constitutionally petition defective in that the here at issue to adequately failed impart notice that in the trial court concerned their rights. However, it must petition be remembered that the here alleged at issue dependent that the neglected children were sought making them County “wards De- partment of purposes Public including Welfare all adop- alleged tion.” Such further that the best interests of they children would be if served “were removed from the care, custody and control their said so said placed be children could for adoption.” suitable homes issue, then, constituted whether statements sought the Perkins’ that the the termination of notice has Supreme of Indiana Court op giving “[n]otice, a defendant [an] said regarding the nature portunity to be informed defense, is an opportunity to make a and reasonable action Dragon process.”1 ex element Red essential of due State rel. Superior 384, (1959), 385, at Diner v. Ct. 158 N.E.2d Ind. 164, T. at at 165. See also: Mullane Central Hanover B. & v. 652, 865, at (1950), 339 94 L.Ed. Co. 70 S.Ct. U.S. Supreme held wherein the Court of the United States convey reasonably such nature “notice must *6 required . must a reasonable information . . and it afford appearance.” time for those interested to make their bar, petition appellants In the case at informed that Department seeking County wardship Welfare for was purposes including language adoption.” “all Such succinctly clearly reveals that Welfare De seeking authority place partment was the children Furthermore, clearly during up adoption. was revealed second witness at trial that a the examination sought, objection appellants disposition was made no It must a continuance. be concluded move for and failed to any infirmity not shown appellants have constitutional in that they proceed- received of the nature of the notice which this ing. inadequate they that next contend
Appellants had notice in the trial the nature because the sought wardship “for purposes including all petition adop- a wardship” “permanent rather than a tion” termination of as the trial court. parental readily ap- found It is argument point appellants’ on this that meritorious parental effects of the termination of their only if wardship purposes effects from the for all are different omitted. 1. Footnote
including adoption permanent requested wardship as petition. regard appellants termina- that contend tion wardship is immediate and irrevocable while a would still adoption. allow an opportunity to resist an However, hereinabove, language peti- stated indicates, clearly tion permanently deprive intent an parents custody Moreover, control of these children. seeking petition wardship adoption of a purposes is, petition effect, adoption to eliminate consent to an parents may ordinarily required, place and to Department parentis Welfare an loco status as to the Therefore, petition sought since the child. in the case at bar deprive permanently of these requested Department children the Welfare that be made guardian purposes, children it must be appellants notice sought concluded had their the termination of and that if such granted their consent not were would be needed adoption proceeding. Appellants next contend that the trial court erred in hold- ing that sufficient evidence introduced warrant Specifically, appel- termination their that the trial lants court erred applying contend incorrect of their rights, standards for and that holding supportive there no evidence of the trial court’s Marvin, Joseph dependent were Jr. children as *7 1971, (Burns Ed.). 31-5-7-5 defined in IC Code 31-3-1-7, supra, prescribes 1971, procedures IC voluntary involuntary and conditions both termina- rights provides,2 in parental pertinent Indiana part: tion of rights “(c) a child, All with reference a including to control consent adoption, to an may be having jurisdiction order of a court terminated terminate specified rights ground parental termination ** * that law. pa- When the court terminates (Burns Supp. 1975), has been 31-3-1-7 amended since the 2. IC entry judgment However, at bar. in the case such amendment had language quoted herein. no on the effect its rights chapter under this rental [81-3-1-1 31-3-1-12] — health, welfare paramount shall be for the concern immediately contem- whose future of child hopefully adopted. The plated purpose parental been will or who in future regard chapter the termination of of this give who have unfortunate children is to a parental care benefits and. bereft of love care, law re- parental and the should home, of such purpose. effect this ceive a liberal construction “ * (f) grounds for termination of “(1) finds If court relationship re- it shall terminate such parent-child * * *” added.) (Emphasis lationship. bar, jurisdiction of the trial court case appellants from parental arose
terminate the (c)., juvenile Because 31-3-1-7 provision of our laws. IC involuntarily paren- terminate supra, requires a trial court grounds specified rights only upon in the statute tal conferring jurisdiction upon court to terminate such such grounds necessary required fights, to consider it is supra, juvenile 1971, 31-5-7-15, disposition under IC upon by the trial court. dispositional statute relied permits juvenile any “disposi court to make Such statute may be to be the tion as deemed best interests of child,” except as provided otherwise therein. language held permits have heretofore that such We juvenile terminate court to disposition However, lightly. such a should not be made possibility injects of the termination of juvenile proceeding. consideration into a additional primary ordering court’s concern in disposi- neglected dependent securing of a tion for the ** * care, guidance control, child “such will serve the best interests of state.” child’s welfare 31- Ed.). However, (Burns Code when 5-7-1 the court also con- rights, templates it must also parents’ interest in the consider of the child. The *8 180 Re this interest described in In
nature of
this court
Bryant
Kurtz,
Adoption
(1963),
App.
v.
al.
134
et
Ind.
486-87,189
480,
593,
597,
at
N.E.2d
at
as follows:
“However,
relationship
parent
since
between
and
rights of
child
a bundle of human
im-
such fundamental
portance,
generally
it
been held that
statutes
has
being
derogation
strictly
of the common
should be
law
worthy parent
preservation
construed in favor of a
relationship.
para-
of such
the rules
above
Therefore
graph
statute be so
guards
tempered by
the rule that neither should
need
liberally
destroy
construed that it would
safe-
relationships.
preservation
family
erected for
question
parent
quote
“On
relationship
child
we
appropriate pertinency from Duckworth
v. Duckworth
281-82],
(1932),
276,
773,
203 Ind.
179
[at
:
774-75]
N.E.
[at
‘
many
humanity,
ties
bind
“Of
that which unites
parent
and the
is the
earliest
most hal-
regarded
in all
lowed . . . and
civilized countries
(1919),
242,
254,
sacred.”
123
v. State
Ind. App.
70
[Orr
at
Therefore, “parents
right
have the
N.E.
natural
470.]
children,”
to the
their
one
“where
surviving
dead,
parent,
fit,
if
has the
to the cus-
’
”
tody.”
J.,
Child,
9,
1223,
Parent and
C.
at
[46
1224.]
§
(Footnotes, omitted.)
Supreme
United
The
States
Court
similarly
has
considered
importance
relationship,
of this
Stanley
and in
Illinois
v.
645,
(1972),
651,
405
at
U.S.
protection in the Due Process Clause supra, at Meyer Nebraska, 262 U.S. v. Amendment. 43 Equal the Four Clause of Protection S.Ct. supra, Amendment, Oklahoma, 316 U.S. *9 teenth v. Skinner Amendment, S.Ct., Gris 541, 1113, Ninth at and the 62 1678, 496, Connecticut, 85 S.Ct. wold v. 381 U.S. J., concurring).” (1965) (Goldberg, L.E.2d510 parental of proceedings termination addition, the involving rights consequences those than more have serious found change custody a child is a If of of child. a meaning of neglected the dependent or within to be custody is and juvenile statutes appropriate the (s), entity parent the other than to an individual or awarded may tem- parental control deprivation and such of and relationships child porarily personal between alter the rights legal re- parent, it not affect of but does termination A child. parent sponsibilities between parent and however, rights, parental of “divest[s] obligations, legal rights, duties and privileges, child all of other.” inheritance, respect each including rights with of supra. (g), 31-3-1-7 31-5-7-15, supra, requires that However, because IC child, any disposition in best interests of the thereunder be foregoing be subordinated parental interests must determining disposition appropriate in child’s interest rights. any petition view is to terminate This general conformity applicable in child rules with (1974), See, custody proceedings. Sanders v. Sanders App. 174, 310 N.E.2d Ind.
It context this court that must determine by employed determining a court in standards the best interests of a child would be whether served parents’ of his without a termination their foregoing apparent from the consent. It discussion recognize the societal such standards should interest maintaining protecting and interests of the
parent child, parent. and those child in Further, not such natural interests should terminated, sufficiently absent acts omissions harmful the child that it more in the interests would be best rights, parent (s) child to terminate the of his than to relationship allow such It these to continue. is our view that goals requirement are best served that a termination parental rights following neglect finding dependency by juvenile only court be made evidence where discloses neglect protracted history dependency (s) parent statute, depriva- probability as defined a substantial of such future, reasonably tion of the in the it is not child probable that it will serve the welfare future legal (s). relationship continue such child’s procedure safeguards provides pro- This a number of ceedings contemplating
First, requires only the court to not find the child is a *10 dependent neglected requires or child, but also an examination past history parent-child relationship to de- neglect dependency termine whether such or has been habitual long-standing. recognition Further, permanent termination, requires effect of it the court to' evaluate the parents’ patterns habitual of conduct to determine whether probability deprivation there a substantial aof future recognizes Finally, it child. the effect of by requiring of the child that presented evidence be showing that it not that welfare foreseeable child’s by parent-child a- would be served continuation rela- tionship. Thus, procedure adequate such a affords considera- parents child, of both tion interests and the while assuring that the court acts in the best interests the required by statute. as
A review the evidence most favorable appellee to' the forth Marvin, set hereinabove establishes that Joseph Jr. and dependent by children as were statute defined 14, from March During until the period Marvin, time trial. such Sr. though support he had provide even for their failed to Army monthly ability by of his financial to do so reason earnings compensation pay retirement and his workmen’s record to do so. The payments, a court order and was under adequately Perkins had failed to that further discloses Additional- provide children since 1966. and care for their unable Perkins were ly, that the record establishes ap- Joseph Marvin, unwilling as late as to care for and Jr. appears that the prior trial. It also proximately month one infrequently Joseph only Marvin, Perkins visited Jr. time them for some homes, and not seen their foster had prior to trial. find evidence is sufficient to allow the trial court to
Such Marvin, neglected Joseph children that Jr. and were as defined they proper parental that were care without statute meaning (Burns 31-5-7-6(1) of IC Code within Ed.). support evidence also sufficient to inferences Such dependent up court that the Perkins’ were trial children through their to the time of trial willful failure of them, deprivation likely support that would continue long-standing existence, and the future due to its that probable reasonably not it would serve the best in was legal relationship to continue the children their terests of history parents. protracted non-support of such their A evidence; established evidence Perkins was direct Such comply with the criteria enunciated hereinabove inferences willfully Marvin, the Perkins and establish that allowed Jr. being dependent Joseph to become and to continue 1971, 31-5-7-5, supra, neglected defined in IC children as supra. 31-5-7-6, the trial It must concluded presented correctly evidence held sufficient *11 in of the Perkins’ support a termination Joseph. and Marvin, Jr. appellants also made two
The have additional assertions their brief. of error in Such constitutional contentions were in the motion to correct case, errors filed in not included this See, appeal. Rules Ind. to be must be deemed waived and however, passing, in (G). note Procedure, Rule 59 We Trial of attempt they incorrect, insofar as appellants are the infirmity procedure utilized predicate constitutional presumption” doc by upon the “irrebuttable the trial court supra Illinois, Stanley (1972), U.S. trine stated in v. by L.Ed.2d As stated 92 S.Ct. Welfare, supra, at Dept. 672 of Re et al. Collar v. of App., of 294 at 182 N.E.2d: 155 Ind. child’, ‘dependent child is “Once the found be severed, change relationship of habits, parent es- mind, and circumstances of the state solely provide a fit home for the child
sential is a matter going up parent. with the burden forward be, is, upon such a evidence to show should reformation, change in- best of conditions returning terests of the to child would be served parent.” (Emphasis added.) v. Stanley statutory presumption Unlike the overturned Illinois, contemplates supra, approved procedure herein hearing parents by the trial court either full adjudicated “dependent” time time or at the a child be con of their is under at which a termination adjudicated previously the child has sideration. If been going “dependent”, the burden forward the evidence the termination as stated shifts to Dept. supra. Welfare, Re Collar et al. v. in In In either case, “pre of proof, has the initial and no State burden sumption” exists. findings
Appellants’ pertain final contentions to the made appellants portions trial assert court. of cer- findings erroneous, clearly urge are tain such de- ground However, for a reversal fects as a of this cause. even findings assuming, arguendo, portions that such made erroneous, the trial court are decision the trial court findings made, supported the remainder of challenged by appellants sur- portions treated as
185 warranting plusage. Appellants prejudice have shown no Corp. Mgt. City Reg. reversal of this Hammond cause. & v. (1972), App. 151 Ind. 327. N.E.2d having by appel- reversible error
No been demonstrated lants, judgment trial must be affirmed. the
Affirmed. P.J.,
Staton, Garrard, concurs; J., opinion. dissents
Dissenting Opinion legislature adoption J. —In our amended the Garrard, separate contemplate proceeding statutes to in which rights might 31- natural be terminated. IC portions further The relevant have been amended 3-1-7. the Acts 1971 and 1975. under statute it existed
This arises previously de- to be It involves children declared two children,. neglected pendent dependent At time they questioned proceeding instituted, under had been years. July 1973, five the welfare foster care for more than department petitioned permanent have the children made purposes, including adoption. all trial court wards for The parental to be a found this to terminate the parents and, hearing, granted petition. after natural authority so. question to do principal had the is whether it granted statutory authority problem The essence of “terminating legislature meant and what is rights.” me, mean- phrase not have a well-defined To does ing applications are under law considered. its various when uncertainty. appear types of potentially two There permanently means The first is whether “terminate” decreed, merely temporarily. Historically, when an parent “perma- of the natural present custody, However, the termination of nent.” delinquency, neglect dependency result from etc. which historically permanent. proceedings has been considered as not recognizes con- See, 31-5-7-17, expressly which family tinuing ability unit. to rehabilitate the rights are question which second concerns right grouping present apparent consists of One issue. concerns the control, Another custody, of the child. etc. right right support flow of inheritance adop- concepts of between child. Our traditional rights: category generated yet tion have a third adoption. (or consent) to an to consent withhold legislature significance *13 question The of the dealt recog- consistently hand, we have On the one fundamental. only importance family, as one nized the not as the liberty freedom but personal essential units of society. necessary a If attributes cornerstone for viable morality love, duty, are not fostered honor, as gov- unlikely home, they acquired the hands are to be through system Our ernment of schools or courts. upon premise that where code therefore established family its possible, ailing rather than have an should be cured amputated. members hand, non-existent
On the other where these are values negative, home, or even where do'a interests lie and child’s society? proper dispute I what is the concern of do not generalization institutions, care, even foster fail to recognize provide adequate I an also our abil- substitute. ity successfully adoptive may to find for children de- homes increasing ages; may ability in'proportion cline to their impact of such a home to have basic on the child. legislature appears purpose It broad be promote finding adoptive homes for unfortunate chil- statutory proper parental are dren who denied care. de- employed apparently permit vice intended to grounds opportunity proper If with notice and heard. are established, parents of natural to resume control of children and to consent their withhold children are to be terminated. approach appears addition to the to be reasonable. In
This primary issues in dispensing effect with lack-of-consent relationship adoption proceedings familial at a time when the adoptive parents has would-be between child and the encouraged established, be been there oftentimes might secondary Prospective much en- effects. families couraged making particular if for a child consider a home adopted appeared at the onset that could be child effectively natural withhold its would not be able initiated, relationship between the consent. Once unity family un- prospective from a and the could benefit by continuing hampered appeals from natural or contacts parent. goals province appear worthy
These and within legislative question That, however, is not the con- branch. fronting Moreover, court. it must be remembered legislature attempting provide exception, not right- the rule. rule remains the essential value duty relationship natural between and child. decision, precursor appellate
As I not a final do believe shy away implementing legislative courts must from enact- judicially merely ment because the court fill in “in- must engage judicial spaces” terstitial or even substantial in- legislative *14 terpretation purpose. Properly to effect the courts can, should, interpret and statutes in the and so terms of use society they approach of demands where can do so within the although qualification, perhaps incapable of law-reason.1 This any definition, upon statutory precise provides a restraint of proper. that real and construction both question provisions the hand is whether enacted providing rights sufficiently for the termination of are they may against explicit appellants. that be enforced impact of the substantial of the answer and the fact view Statutory See, Leflar, Approach, 1. Construction: The Sound Law remarks, Center, May Washington, D.C., Federal Judicial 1975. 188 compelled impression, I to state is a case of feel first majority. to the
dissent view taken Considering custody control have present 1907, but about terminable laws since been under historically general termi have been only grant adoption, clear that upon nated a it seems of to in Sections 6 “termination” referred of adoption per statute connotes 7 of the amendments nothing gained by pro not, manence. If it did would be such again ceeding parent a determination could seek because the his, her, right consent when a or to withhold of adoption filed. general provides rule because
This follows Section grant adoption parents, natural can unless the court an that no (The provisions of and 7 are set living, if consent.3 Section section, (g), margin.)4 subparagraph states out in the This by providing: exceptions birth age; or of his exceeding five dollars [$5.00] court, lawful child who has home interest to consent been legal guardian —Notice.— to deserted relevant (b) A 4. “31-3-1-6 [3-120]. 2. (6) (5) (1) (2) (3) (4) adopt The consent minor executed whose or the court any person, each custody 1971, 31-3-1-6, here the child either in the a minor child—Child over work the exercise of its contributed to the spouse exception regarding fathers of mother of minor to parent may consent to an (a) living paternity by: address Except having jurisdiction adoption; may of the minor no parent custodian parents, agency discussion be minor; be has been 7. as otherwise is known or adopted, if more illegitimate Consent of a granted only fourteen —Parents adopted or the discretion, county department ; support or legitimate regarding it be presence established of person adopted. guardian minor provided parent can be require if written adoption determines that executed at minor care than fourteen child and illegitimate or found without deprived necessary. of his child; in this of without the minor is not consent court, in the such child public person, concurrence. the father section, of —Abandoned children is not time parental rights welfare [14] minor, adoption concurrence expenditure empowered unless the after years presence of such having whose if the best has or *15 notary person public, acknowledgments, of a or other authorized to take duly presence agent county or in the of a authorized of state or department public child-placing agency. of or welfare licensed (c) identify adopting A consent which does not name or otherwise parent by person if consent is valid contains a statement whose is, person consenting, voluntarily consent it that the executed the consent adopting without disclosure of the name or other identification of the parent. illegitimate request the court to be or where for whose consent is not of this jurisdiction specified by court. judicial decree; the date of the necessary fails without adoption, adopted to be advisable amination in IC furnish to the clerks of courts other established as the court in gating agency aforesaid and with the clerk of the court in abandoned decree to the and ing petition (d) (h) (f) (g) (e) Copies person (5) (6) any legal guardian (3) (2) (4) (1) judge dispenses the withdrawal Consent to A consent opportunity Notice oportunity The state support of adopted and the court persons when as entry the a a for consent for a section, for of another other than a parent parent parent provided whose consent has been filed with the parent that he adoption. natural father of or 31-3-1-6; other of such consent when adoption able minor of the decree of when his deserted justifiable cause, any reason in the terminate opportunity hearing its law and the adoption department whose to file judicially unreasonably withholding who except the child when to be filing objection to do so or or written reasons for law; discretion adoption under with the child, giving person, A consent heard, required by has parental rights heard afforded to the objection acting pending. is not parental rights IC where relinquished six declared consent. period orders the withdrawal. shall be considered and determined he shall have cannot be withdrawn after the if for parent’s consent; father or lawful custodian of the adoption who has failed in the case of the he if the child is file his required [6] in the best interest of the illegitimate petition; public prescribed Such court to communicate to be direct. able to do so as wilfully adoption may months or more subsection discretion signed a 31-3-1-7 or incompetent period sixty paternity objection unless the court adequately have been terminated withholding welfare is his of: given or a on such adoption shall be filed with the investi- fails to minor his consent. forms for use [60] shall of at least one any ground petitioner, (g) (2), (g) (3) to such interested parent notice adjudged if of such respond or not the court days child; to consent as cause supporting order of court significantly immediately natural any, hereby need not provide mentally consent, required be as the court deems of a child in the finds, notice of withdrawn for termination child has been or to a who, to have been by parents person sought person authorized father writing entry person is found oppose [I] be by after notice defective such by is deemed which preceding after ex- with the provided given order of year hearing (g) (4) law or parties having person of an child, prior seek- to a care he or if provided in terminated have been (i) Where proceedings pendency of such notice 31-3-1-7 county department public agency welfare given to the
shall be ward. child is a of which the *16 parents— parental rights of Termination [3-120a]. 31-3-1-7 —Minor including adjudicated rights parent an (a) of a of court.— The Power or to control in or right including parental child, adoptive parent to a with reference may relinquished adoption, terminated or to an be or consent provided adoption proceeding in this section. as prior to an including parental child, parent rights with reference to a (b) aof All adoption a notice of or to receive right to an or consent to control may relinquished adoption, and transferred hearing petition be on a public county department agency child-placing or of to a licensed rep- presence signed by parent by writing (1) of a welfare, resentative child is person the in the a custody county agency department of the to whom or of an notary public presence or other a in the of transferred and by signed parent acknowledgments; (2) the or to take authorized approval judge of a court of record presence of a and with the in the the minor is jurisdiction without state in which within or this of the signed. parent the time it is present which the resided at or in parental rights may relinquish parent as or transfer his A minor parents, parent provided herein, of his or without the concurrence person, court, dis- guardian the in exercise of its of his unless the the cretion, adopted child to be it is in the interest of the determines best require a to such concurrence. department public hereby of welfare is state to The authorized furnish prescribed relinquishment in of courts forms for use such the clerk of provision rights. naming parental include a form shall the Such licensed county agency department public child-placing the or of to whom welfare parent rights of the with reference to the child shall be transferred. parent (c) rights child, including right of with reference to a a All may by adoption, consent to an be terminated order of a control or court for termination parental rights any having jurisdiction ground to terminate specified addition, rights parent in law. In all of a including right child, to a to control or with reference consent to an may having jurisdiction adoption, adop- be terminated the court over chapter any ground proceedings provided by this issued on tion law parental under parental of for termination When the court terminates chapter rights paramount under this its [31-3-1-1 31-3-1-12] — health, be for the welfare and future of concern child whose shall the immediately contemplated adoption fully tion hope- or who in the future will chapter regard adopted. of this be to the termina- purpose^ rights give parental is to to unfortunate children who have been of parental home, of love and care the of a of bereft benefits such care, and the law should receive a liberal construction to effect purpose. this proceedings chapter (d) purposes of under this [31-3-1-1 For —31-3- terminating parent 1-12], a all of a with reference to a decree including parental child, adoption, to control or consent an jurisdiction competent any a court of in this or other entered dispense parent with the consent of a is sufficient whose state any required adop- with terminated the decree and notice of an are provided tion other than as in this section. petition (e) for termination of in connection A made adoption proceeding may following: an be filed the or before with parent-child relationship (1) when termination of either a respect sought parent, to the other or legal custodian, person guardian person, or the (2) of the the the relationship child, standing or county agency department public child-placement or (3) of a licensed welfare, or legitimate having person the matter. (4) interest other instituted, proceedings adoption petition before are be filed shall petition during discretion, filed court in its allows unless adoption petition proceedings. adoption is filed the When the immediately contemplated, purpose of not be be to facilitate and the minor child need the adoptive opportunities when arise. filed, require the court notice of has been shall After given child, hearing petitioner, to the of legal custody child, person having guardian person appointed and, court, person child, the discretion the represent any party. the ligations, the child’s purpose plete minor by where there appropriate shall of the child. temporary bility relationship, further, where the court tution an the child’s support. The to and chapter findings upon an individual another alleged adoption, on all child (g) (h) (f) The court (2) (1) judicial [1] one transferring individual order parent As An Every relationship custody periodically persons for or includes, child and to Where If court’s other in the used of That individual [31-3-1-1 31-3-1-12] order providing supplementation including appoint parents could make.” placing temporary as legal decree and the person order permanently parent is no shall also make court it parent-child in the parent. guardian the court does not herein, from jurisdiction. terminating when finds that shall — legal custody living of the court it shall court, guardian review its an official the child without and vest for make or child of all rights finds person such order ‘guardianship child dismiss respect date further of the child’s parent, protective if terminating in an authorized any terminate parent-child of grounds relationship may the best an authorized of affecting Such support, of the child’s an order temporarily parental legal custody has under of an authorized other shall be in inheritance, temporary the termination terminating entry. or action legal parent-child not certified order supervision guardianship interest of the based, authority - petition: decision protective parental fixing responsibility care parents, person rights, privileges, relationship as shall be conclusive termination divested of control or relationship relationship child agency, may certify including findings pertaining writing with person, agency be terminated with person’ concerning and Provided, relationship rights or supervision parent-child supervision, is in agency consent custody be respect only living case vest child the child under or has and shall agency. necesary: with or between the child and: contemplation to (C) legal been (B) the case to an fixing as requires to the however, duties and restoring to order person another for respect it shall guardian (A) where parent-child relationship each appoint terminated or shall parent, *17 custody the child’s recite responsi- Provided adoption for custody appoint binding vesting parent- respect substi- divest court, other. make That it com- ob- or of of in “ (g) adoption required Consent to is not of: been abandoned or for a support of the able able to do so or he or a immediately preceding the (1) judicial cause, parent period parent decree; to communicate of a child child when able or least wilfully deserted in the one date of significantly fails if the child is [1] for year to do so as to' six provide he fails of another [6] filing with the child when adjudged months or more for the care required without person, petition; to have by justifi- law if rights (4) parental whose have been terminated provided under order court as 31-3-1-7 or having jurisdiction of court order to terminate rights law;” ground any specified by on for termination other eight subparagraphs. (a) Section 7 consists of Subsection provides parent “including parental right that the of a adoption” may relinquished, control or consent be provided (b) provides terminated in Section Subsection relinquishment. voluntary (c) provides for a Subsection including . of “all . termination control . court adoption” consent to either in- of two “having jurisdiction by a court first is The termi- stances. ground any specified nate termination having termination alternative is that law.” jurisdiction ground adoption provided by “on law rights.” provides paramount further that the subsection court’s health, concern shall for the future welfare and given child, liberal construction to law should be benefitting purpose effect social its unfortunate children. (d) provides purposes Subsection that for pro- *18 terminating “a ceedings, parent decree all of a with including right child, reference to a to control or adoption” if competent consent to entered an court of jurisdiction, necessity parent dispenses with of that con- senting adoption. to an may- terminate petition to (e) provides when a
Subsection and who an be filed in connection may provides notice. file It also it. the court “Every order (f) provides, then
Subsection transferring relationship,” or parent-child' terminating the recite writing shall custody guardianship be shall provides, “If findings. further The subsection the court’s rela- parent-child grounds termination of court finds relationship.” tionship, it shall terminate such terminating specifies Finally, (g) that an subsection parent-child relationship shall divest obligations, in- legal rights, duties and privileges, of “all cuding rights of inheritance.” relationship” grounds “parent-child terminate
Are in- parent, “the from those terminate different adoption?” cluding right or consent to control thing? Are terminations the same these event, “grounds?” from In either are Aside what health, and future reference consideration for the welfare rudder, child, bowsprit the statute is silent. From express any Section 7 contains no mention substantive ground upon court, parents children, may gauge “rights” any objective standard when shall be termi- they not.5 nated and when shall statute, however, provides also “having jurisdiction terminate
ground specified for termination in that law.” Do the de- neglect provisions in pendency law meet this definition? contemplate
Clearly provisions terminating par- these do right present They provide and control. ent’s do express curiosity regarding may status of also a child 5. One relationship” “parent-child adop- has been terminated where no whose Although proceedings materialize. his of inheritance tion ever largely standing academic, what of his from his natural potential parents’ heir-at-law of his natural an otherwise relatives? *19 194 decision, practice they substantive basis- can have withholding permanency by effect of control recognition minority.
for the duration of the these child’s attributes and in accord the concern voiced in Section (c) child, 7 health, welfare and the ma- future jority juvenile permit has ter- held statute sufficient to adoption mination of the to withhold to an consent neglect history, where the dependency protracted has appears it probable substantially con- that the condition will tinue and the not future welfare of the be served child will by continuing relationship parents. natural with the
While applying is a dependency this reasonable basis for neglect 7, begs question. statute under it Section authority To sustain (the jurisdiction) trial court to make the case, it termination made in this me seems to only open. two courses are
The first interpret would be provision (c) of Section 7 stating may “by be terminated aof court having jurisdiction to terminate any ground for specified termination simply recog- in that law” as nizing that other statutes permanently also deal with terminating parental rights. difficulty The interpreta- with this tion applied as present juvenile nothing code is that provisions relating neglect dependency expressly em- powers the court parent’s right to terminate a to consent to adoption, much less parent-child the entire relationship.6 I am unwilling imply power to now to a court on the basis the “make disposition” language such further con- 1971, 31-5-7-15(5). tained in IC precise language statute application limits its provisions other act. These include 31-5-7-17, recognizes continuing opportunity family. to rehabilitate the Arguably interpretation impact under this of the termination parent-child relationship of the entire proceedings could be restricted to brought “directly” under the court alternative. juris- interpret law” is to “other alternative second vesting jurisdic- simply recognized 7(a) diction Section upon any court that to conduct a Section 7 tion suspend kind jurisdiction presently terminate has view, would rights. However, under this provisions substance governed by Section all termination of procedure permanent to effect a accepting this inter- appears It to me the fatal defect Section failure of pretation for the case hand is the total *20 determining grounds when specify any substantive to permanent appropriate.7 31-3-1-7, 1971, it
It must therefore be concluded that IC vague 1973, ambiguous; it not vest and does existed that juvenile permanently all power court with the terminate neglected children, parents dependent 1971, pursuant power court has no such Trunk, Ry. See, etc. 31-5-7-15. Railroad v. Grand Comm’n. (1913), 255, 852; (1901), 100 N.E. Cook v. State 26 Ind. Shupe See, also, (1957), App. 489. Ind. 59 N.E. Bell v. 292, 141 351, stating App. dependency 127 Ind. N.E.2d neglect strictly statutes should construed. portion judgment
Accordingly,
purporting to
problem.
little
amendments do
to solve
Section 7
hearing
specify
terminate,
on a
that at
was amended
petitioner
show that
services
shall
reasonable
were offered to the
overcoming
problems
parents
privation
though
originally
to aid in
which
led to de-
custody.
(e).
physical
Furthermore,
IC
(8)
31-3-1-7
al-
6(g) (7)
specifically
now
Section
refers
certain
merely
neglected
with consent to
dependent children,
dispensing
does so
terms
terminating parental
not to
otherwise
Query:
dispense
effect of these
What
sections which
cruelly
neglected
judicially
treated or
in the case
children
consent
dependent
parents
disability
children whose
suffer a
from
declared
category,
In each
of alcohol or controlled substances?
use
statutory
one
requirements is
the condition that
have been de-
years prior
physical
(2)
filing
for at least two
prived of
to the
parental rights.
for the termination
If
of a
have
sections
significance
what is the
been terminated under Section
of sub-
(8), especially
(7)
(4),
pur-
in view of subsection
dispense
ports
with consent
wherever
have been
under
7?
terminated
Section
permanently
parental rights,
terminate
including
adoption,
consent to
should be vacated.
Reported at
Note. — Rupert Freight Eckert, Jr. v. Systems, Yellow Inc. July 30, 2-574A125. Filed
[No. 1976.] *21 Peckinpaugh, Darrel K. Warner, Peckinpaugh Warner, & Muncie, appellant. Buehl, Rhoads, Meyer, Cutter, Robert T. Buehl & Indian- apolis, appellee. Summary
Case from J. —The instant case was transferred Lowdermilk, July 20, District to this Second office disparity lessen caseloads between the Districts. Rupert Eckert, (Eckert) appeals Plaintiff-appellant, Jr. judgment Full Industrial from a Board favor of the Freight defendant-appellee, Systems, (Yellow). Yellow Inc. We affirm.