Bailey, J.
Case Summary
C.A.B.’s (“Birth Mother”) parental rights as to C.B.M. and C.R.M. (“the Children”) were terminated by the Jasper Circuit Court (“termination court”). During the pendency of Birth Mother’s appeal of the termination order, J.D.M. and K.L.M. (“Adoptive Parents”) sought to adopt the Children. The Jasper County Department of Child Services (“DCS”) consented to Adoptive Parents’ request, even though Birth Mother’s appeal remained pending. The Jasper Superior Court (“adoption court”) granted the adoption petition, also while Birth Mother’s appeal remained pending.
This Court reversed the termination order, after which Birth Mother sought to set aside the adoption decree. In the course of these proceedings, Birth Mother raised issues concerning the constitutionality of Indiana’s adoption statutes, and thus the Office of the Attorney General (“the State”) entered an appearance and provided briefing in the matter. The adoption court ultimately denied Birth Mother’s petition to set aside the adoption decree, and she now appeals that decision.
We reverse and remand for further proceedings. [Footnote omitted.]
Issues
Birth Mother raises several issues for our review, but we find one issue dispositive: whether DCS’s decision to consent to the Children’s adoption without notice to Birth Mother during the pendency of her appeal of the termination order was arbitrary and capricious, and thereby deprived Birth Mother of her due process rights under the Indiana and United States Constitutions.
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In this case, DCS was the only party common to both Birth Mother’s appeal of the termination order and Adoptive Parents’ petition for adoption. Yet DCS consented to the Adoptive Parents’ request, knowing that Birth Mother’s appeal remained pending throughout and beyond the duration of the adoption proceedings. There is no indication that DCS made known to this Court that it had consented to the adoption during the pendency of Birth Mother’s appeal of the termination order. This Court reversed that order on September 29, 2008—approximately 9 months after the adoption decree. It was only that termination order that made DCS the necessary party to the adoption proceedings, rather than Birth Mother.
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We therefore conclude that DCS’s decision to consent to the adoption was an arbitrary and capricious agency action that violated Birth Mother’s due process rights. It is true that Indiana statutes provide for an adoption to move forward even during an ongoing appeal of an order terminating parental rights, leaving such decisions in the discretion of our trial courts. However, those provisions do not operate in isolation from the other provisions of the adoption statutes, or in isolation from rights that the Indiana and United States Constitutions guarantee our citizens.
The State’s consent to the adoption deprived Birth Mother of her due process right to meaningful appeal of the termination order. We are thus compelled to conclude that the consent was wrongfully given. [Footnote omitted.] As the Children’s legal custodian, discretion to consent to the adoption rested with DCS. DCS abused that discretion. This in turn rendered the adoption decree void because there was no other party capable of giving consent. Coming during the pendency of Birth Mother’s appeal, the consent and the adoption decree worked to deprive Birth Mother of her due process right to a meaningful appeal of the termination order.
Having reached that conclusion, we must therefore hold, however reluctantly, that the Children’s adoption by their Adoptive Parents must be set aside because of DCS’s wrongful conduct in this case.
Where, as here, DCS is aware of a pending appeal of the termination of a parent’s rights but consents to the adoption of the children covered by a termination order, it is incumbent upon DCS to provide notice of the adoption proceedings. Holding otherwise would permit an executive branch agency to determine the nature and extent of a parent’s right to meaningful appellate review of a court order disposing of one of the most precious substantive rights afforded to our citizens under the Indiana and United States Constitutions: the right to raise one’s children.
We do not hold, however, that the statutory scheme at issue here is unconstitutional either facially or as applied to Birth Mother in this case. The adoption statutes, taken together with existing constitutional guarantees, place upon DCS the burden of honoring due process rights where it has succeeded in an action to terminate a parent’s rights and the parent seeks review of the termination order. It is incumbent upon DCS to act in a manner that comports with due process rights where its actions affect the substantive and procedural rights of parents—even those whose parental rights have been terminated. This case is no exception to that requirement.
Because DCS’s arbitrary and capricious grant of consent to the Children’s adoption renders the adoption decree void, on remand the trial court must grant Birth Mother’s petition to set aside the decree. Adoptive Mother may seek to renew her petition to adopt the children, or DCS may reinstate its CHINS action, and, though we note that the Children have been in Adoptive Parents’ care for nearly six years, we take no position today as to the merits of the outcome upon remand.
Conclusion
The State’s consent to the adoption of the Children was arbitrary and capricious and in derogation of Birth Mother’s procedural due process right to a meaningful appeal of the termination order. The adoption decree is therefore void. We do not, however, conclude that the statutory scheme for adoption in Indiana is unconstitutional. We therefore reverse the adoption court’s denial of Birth Mother’s petition to set aside the adoption decree and remand this matter for further proceedings.
Reversed and remanded.
BAKER, J., concurs.
VAIDIK, J., concurs in result with separate opinion.
VAIDIK, Judge, concurring in result
I agree with the majority that Birth Mother’s due-process rights were violated, she should have received notice of the adoption proceedings, and the adoption decree must be set aside. I also agree with the majority’s conclusion that the adoption statutes at issue are constitutional. My reasoning, however, is different. I conclude that the adoption statutes require notice of adoption proceedings to birth parents whose rights have been terminated but who have not exhausted their appeals.
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