MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                          09/06/2017, 10:10 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                                        Indiana Supreme Court
                                                                                    Court of Appeals
court except for the purpose of establishing                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 6, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.L. & C.S. (Children) and                            12A04-1703-JT-496
M.L. (Mother);                                           Appeal from the Clinton Circuit
                                                         Court
M.L. (Mother),                                           The Honorable Bradley K. Mohler,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               12C01-1608-JT-242
                                                         12C01-1608-JT-243
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017           Page 1 of 9
      May, Judge.


[1]   M.L. (“Mother”) appeals the denial of her Motion for Relief from Judgment

      under Indiana Trial Rule 60(B). We affirm.



                              Facts and Procedural History
[2]   Mother 1 had two children, T.L., born August 15, 2011, and C.S., born February

      7, 2014 (collectively, “Children”). On June 4, 2015, the Department of Child

      Services (“DCS”) removed Children from Mother’s care “due to Mother’s drug

      usage and instability in housing.” (App. Vol. II at 9.) Each child was

      adjudicated a Child in Need of Services (“CHINS”) on July 10, 2015.


[3]   On August 23, 2016, DCS filed a petition to involuntarily terminate Mother’s

      parental rights to Children. The trial court held a hearing on November 7,

      2016, and Mother appeared at the hearing with counsel. At that hearing, she

      filed a form voluntarily relinquishing her parental rights to Children. Mother

      also participated in dialogue with the trial court regarding her decision to do so.


[4]   On November 30, 2016, Mother filed, pro se, a “Motion to Appeal,” (id. at 23),

      stating she wished to “appeal these 2 decisions in cases. I was under the

      influence of controlled substances and wasn’t understanding what I was doing

      and the outcome.” (Id.) (errors in original). The trial court subsequently




      1
       T.L. and C.S. have different fathers. Their respective fathers voluntarily relinquished their parental rights
      and do not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017              Page 2 of 9
      considered Mother’s request a motion for relief from judgment under Indiana

      Trial Rule 60(B) and held a hearing on the matter on February 7, 2017. On

      February 10, 2017, the trial court denied Mother’s motion.



                                  Discussion and Decision
[5]   Mother argues the trial court abused its discretion when it denied her motion

      for relief from judgment under Indiana Trial Rule 60(B) because the underlying

      termination orders were void due to lack of proper advisement of Mother’s

      rights by the court. As an initial matter, we note, and both parties

      acknowledge, Mother did not present this argument before the trial court, 2 and

      therefore it is waived. See Hite v. Vanderburgh Cty. Office of Family & Children, 845

      N.E.2d 175, 180 (Ind. Ct. App. 2006) (failure to present an issue before the trial

      court waives the issue for appellate consideration).


[6]   To avoid waiver, Mother argues the trial court committed fundamental error

      because it did not properly advise Mother of her rights before she voluntarily

      relinquished her parental rights to Children.

              The fundamental error doctrine applies to egregious trial errors.
              In order for this court to overturn a trial court ruling based on
              fundamental error, the error must have been ‘a clearly blatant
              violation of basic and elementary principles, and the harm or




      2
        In her post-judgment motion, Mother asserted her consent to the termination of her parental rights was
      invalid because she was under the influence of controlled substances when she consented at the hearing.
      Mother has not raised that argument on appeal.

      Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017           Page 3 of 9
              potential for harm therefrom must be substantial and appear
              clearly and prospectively.’


      S.M. v. Elkhart Cty. Office of Family & Children, 706 N.E.2d 596, 600 (Ind. Ct.

      App. 1999) (quoting Reynolds v. State, 460 N.E.2d 506, 508 (Ind. 1984)).

      Specifically, Mother argues she “was not advised, either in writing or verbally

      by the court, that her consent could not be based on a promise regarding having

      contact with her children after her rights were voluntarily terminated.” (Br. of

      Appellant at 14.)


[7]   Under Indiana Code section 31-35-1-12, the trial court must advise a parent

      who consents to the voluntary termination of their parental rights that:

              (1) their consent is permanent and cannot be revoked or set aside
              unless it was obtained by fraud or duress or unless the parent is
              incompetent;


              (2) when the court terminates the parent-child relationship:


                       (A) all rights, powers, privileges, immunities, duties, and
                       obligations, including any rights to custody, control,
                       parenting time, or support pertaining to the relationship,
                       are permanently terminated; and


                       (B) their consent to the child’s adoption is not required;


              (3) the parents have a right to the:


                       (A) care;



      Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 4 of 9
                 (B) custody; and


                 (C) control;


        of their child as long as the parents fulfill their parental
        obligations;


        (4) the parents have a right to a judicial determination of any
        alleged failure to fulfill their parental obligations in a proceeding
        to adjudicate their child a delinquent child or a child in need of
        services;


        (5) the parents have a right to assistance in fulfilling their parental
        obligations after a court has determined that the parents are not
        doing so;


        (6) proceedings to terminate the parent-child relationship against
        the will of the parents can be initiated only after:


                 (A) the child has been adjudicated a delinquent child or a
                 child in need of services and removed from their custody
                 following the adjudication; or


                 (B) a parent has been convicted and imprisoned for an
                 offense listed in IC 31-35-3-4 (or has been convicted and
                 imprisoned for an offense listed in IC 31-6-5-4.2(a) before
                 its repeal), the child has been removed from the custody of
                 the parents under a dispositional decree, and the child has
                 been removed from the custody of the parents for six (6)
                 months under a court order;


        (7) the parents are entitled to representation by counsel, provided
        by the state if necessary, throughout any proceedings to terminate
        the parent-child relationship against the will of the parents;
Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 5 of 9
              (8) the parents will receive notice of the hearing, unless notice is
              waived under section 5(b) of this chapter, at which the court will
              decide if their consent was voluntary, and the parents may
              appear at the hearing and allege that the consent was not
              voluntary; and


              (9) the parents’ consent cannot be based upon a promise
              regarding the child’s adoption or contact of any type with the
              child after the parents voluntarily relinquish their parental rights
              of the child after entry of an order under this chapter terminating
              the parent-child relationship.


[8]   Before the hearing regarding Mother’s consent to voluntary termination of her

      parental rights, Mother received, reviewed, and signed a document titled

      “Voluntary Relinquishment of Parental Rights,” (App. Vol. II at 13), which

      included the terms: “That when the court terminates the parent-child

      relationship, all rights powers, privileges, immunities duties, and obligations

      (including any rights to custody, control, visitation, or support) pertaining to

      that relationship are permanently terminated and my consent to the child’s

      adoption is not required.” (Id.)


[9]   At the beginning of hearing regarding Mother’s consent to voluntary

      termination of her parental rights, the trial court stated:

              [Court]: I do wanna [sic] advise you of your rights and the
              contents of the documents. The documents indicate that uh, you
              understand that any consent uh, that you would be giving would
              be permanent and cannot be revoked or set aside unless it was
              obtained by fraud or duress or unless you were found to be
              incompetent or unless the Court finds other reason to set it aside.
              When the court terminates a parent/child relationship all rights,

      Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 6 of 9
        power, privileges, immunities, duties, and obligations pertaining
        to that relationship are permanently terminated and then a
        consent to any future adoption would not be required. As a
        parent you do have the right to the care, custody, and control of
        your child as long as you fulfill your parental obligations. You
        have a right to have a judicial determination of any alleged
        failure to fulfill your parental obligations in a proceeding, uh,
        what’s [sic] called a child in need of services. [sic] And that
        would be the prior case that we’ve been going through. As a
        parent you have a right to assistance in fulfilling your parental
        obligations after a Court has determined that you’re not doing so.
        That would be any of the services or programs that were offered,
        uh, as part of the CHINS case. Proceedings to terminate a
        parent/child relationship against your will could only be initiated
        after the child has been adjudicated a child in need of services
        and then removed from your custody following that adjudication.
        Uh, and it has to be a -- a child has been removed for a period of
        least six months under court order. You’re additionally entitled
        to representation by an attorney. We have provided counsel for
        you both through the CHINS case and this termination case.
        Uh, additionally uh, you’d be waiving notice of any future
        hearings in this case and/or any notice of the adoption uh, of the
        children. Uh, [Mother] those are the terms that are outlined in
        the uh, document. Do you understand those terms?


        [Mother]: Yes.


(Tr. at 4-6.) The trial court repeated these stipulations throughout the hearing

and Mother indicated she understood them each time. During Mother’s

testimony, the trial court asked, “[H]as anyone promised you anything,

threatened you in any way or forced you into signing the document or making

this decision?” (Id. at 10.) Mother answered, “No.” (Id.)



Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 7 of 9
[10]   Mother has not argued on appeal she was promised contact with Children after

       her voluntary relinquishment of her parental rights, instead she focuses on the

       fact the trial court did not use the exact language of Indiana Code section 31-35-

       1-12(9) to ensure she understood her rights and waiver thereof prior to

       relinquishing her parental rights to Children. The trial court advised Mother

       multiple times of the rights she relinquished when she voluntarily terminated

       her rights to Children. She was advised multiple times she would no longer be

       permitted to have contact with Children and her consent would not be required

       for any subsequent adoption. She denied being promised “anything,” (id. at

       10), in exchange for voluntarily relinquishing her parental rights.


[11]   Therefore, we conclude the advisements as a whole were sufficient and Mother

       has not demonstrated fundamental error. See Matter of Snyder, 418 N.E.2d 1171,

       1180 (Ind. Ct. App. 1981) (“A parent who executes a voluntary relinquishment

       of parental rights is bound by the consequences of such action, unless the

       relinquishment was procured by fraud, undue influence, duress, or other

       consent-vitiating factors.”). Accordingly, the trial court did not abuse its

       discretion by denying Mother’s motion for relief from judgment.



                                               Conclusion
[12]   The trial court’s advisement of Mother’s rights and waivers thereof was

       sufficient under Indiana Code section 31-35-1-12, and thus, she has not

       demonstrated fundamental error that could justify relief from judgment. We

       affirm.

       Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 8 of 9
[13]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A04-1703-JT-496 | September 6, 2017   Page 9 of 9
