Family Law Case Review
By Michael R. Kohlhaas
HELD: Indiana statute generally requires that a consent to adoption, to be valid, must be executed in the presence of specific witnesses, such as the court or a notary. However, that requirement can be circumvented if there is independent confirmation that the execution was valid. Here, Father’s acknowledgment in his deposition testimony that he executed the consent freely and fairly constituted adequate confirmation of a valid execution.
FACTS & PROCEDURAL HISTORY: Mother became pregnant in 2020 and asked E.C. to adopt the Child. E.C. filed a petition to adopt Child, which recited Mother’s consent and stated that Child’s father was unnamed.
After Child was born, Father became aware of the adoption proceeding. E.C. filed a motion in the adoption matter to dispense with Father’s consent based upon him being unfit. However, before the issue could be adjudicated, Father elected to consent to the adoption. Father’s counsel prepared a detailed consent form, which Father then signed at home and not in the presence of a notary. Father provided the executed consent directly to E.C., whose counsel then filed the consent with the trial court.
Months later, on the eve of the final adoption hearing, Father filed a motion to withdraw his consent. E.C. subsequently deposed Father, wherein Father acknowledged executing the consent, and that he had reviewed it with his counsel beforehand and understood its import. The trial court subsequently determined Father’s consent to the adoption to be valid and binding, from which Father appealed.
Father’s argument on appeal was that the Consent was not valid because Father did not execute the Consent pursuant to statute. Ind. Code 31-19-9-2 provides that a consent may be executed in the presence of: (1) the court; (2) a notary public or other person authorized to take acknowledgements; or (3) an authorized agent of the department or licensed child placing agency.
While it was strictly correct that Father’s execution of the Consent did not comply with this statute, the Court of Appeals relied heavily on the 2003 Baxter case. In Baxter, the Indiana Supreme Court held that “if the written consent is not executed in the presence of any of the [statutorily specified witnesses], the validity of the consent may nevertheless be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption.”
The Court went on to underscore the importance of Father’s own deposition testimony, in which he acknowledged signing the Consent, and understanding its legal significance after conferring with his counsel.
The trial court’s determination that Father’s consent was valid and binding was affirmed.
James A. Reed and Michael R. Kohlhaas represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Cross Glazier Reed Burroughs, PC, is the premiere boutique family law firm in the state of Indiana. Visit the firm’s website at https://www.cgblawfirm.com/ .