APPEAL FROM THE ST. JOSEPH CIRCUIT COURT. The Honorable Michael G. Gotsch, Sr., Judge. Cause No. 71C01-1104-CT-53.
ATTORNEY FOR APPELLANTS: CHARLES P. RICE, Boveri Murphy Rice, LLP, South Bend, Indiana.
ATTORNEYS FOR APPELLEE: BRIAN M. KUBICKI, ROBERT M. EDWARDS, COLIN J. REILLY, Jones Obenchain, LLP, South Bend, Indiana.
NAJAM, Judge. CRONE, J., concurs. BAKER, J., dissents with separate opinion.
STATEMENT OF THE CASE
Jason Kramer and Justina Kramer appeal the trial court's entry of summary judgment in favor of Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (" Catholic Charities" ) on the Kramers' complaint alleging that Catholic Charities was negligent in facilitating a pre-adoption placement of a child with them. The Kramers present several issues for our review which we consolidate and restate as whether the trial court erred when it concluded that a release executed by the Kramers bars their negligence claims against Catholic Charities.
We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The facts in this case are undisputed. In March 2010, M.S., who was pregnant and unmarried, contacted Catholic Charities about arranging an adoption of her unborn child. M.S. told Catholic Charities that the father of the unborn child was one of two men she had been with, but she declined to identify either man. Catholic Charities facilitated a meeting between M.S. and the Kramers. On March 23, M.S. told the Kramers that she would like them to adopt her baby. M.S. gave birth to E. on May 1, and the Kramers were present at the hospital. On May 2, M.S. signed paperwork agreeing to the adoption of E. by the Kramers.
Also on May 2, the Kramers and Laura Kanalas, an adoption specialist with Catholic Charities, signed a document entitled " Acknowledgement of At-Risk Placement" (hereinafter " the release" ). That document provided as follows:
We, Jason and Justina Kramer, the undersigned, are the prospective adoptive parents of the above-listed child. We, [sic] hereby acknowledge the pre-adoptive placement of the child with us by Catholic Charities . . . . We further acknowledge our understanding and agreement that Catholic Charities has made no promise or representations to us regarding the permanency of this placement. We understand that the placement is at-risk and subject to termination. We understand that this placement is conditioned upon our proper filing of an appropriate petition to adopt the child in a court of competent jurisdiction within 14 days of this date and that the placement is subject to the successful outcome of that legal proceeding for our adoption of the child.
In addition, we understand that the father/putative father of the child may possess and/or exercise certain legal rights concerning the child, which could adversely affect the placement of the child with us and/or our ability to adopt the child. We understand that the placement of the child with us will remain at-risk until the successful completion of the timely filed adoption proceedings and all rights of the father/putative father are fully and finally terminated or waived in accordance with the law. We
agree that[,] in the event we do not timely file an appropriate adoption petition and diligently complete that action, the adoption proceeding is not successfully completed. We also understand that[,] if the father/putative father claims or chooses to exercise his legal rights within the limits of the law, we will immediately return the child to the custody of ...