No. 05-328
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 59
IN THE MATTER OF THE
ADOPTION OF A.L.O.,
A Minor Child.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County Missoula, Cause No. DA 2004-40,
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Darcy M. Crum, Rebeck & Crum, Great Falls, Montana
For Respondent:
Linda Osorio St. Peter, St. Peter & Warren, Missoula, Montana
Submitted on Briefs: February 14, 2006
Decided: March 21, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Shortly after the birth of their daughter, A.L.O., T.F. (Mother) and R.O. (Father)
relinquished their parental rights, allowing Jennifer and Branch Martin to adopt her.
More than thirty days after the Fourth Judicial District Court, Missoula County,
terminated Mother’s parental rights, Mother filed a motion to set aside the adoption
because contrary to requirements of § 42-2-405(2), MCA, she was a minor without legal
representation at the time she signed the relinquishment papers. The District Court
declared the adoption decree null and void and ordered the return of A.L.O. to Mother.
The Martins appeal the District Court’s order. Because we hold in favor of Mother, we
decline to address her cross-appeal.
¶2 We restate the issue as follows: Did the District Court properly set aside the
termination of parental rights and void the decree of adoption?
BACKGROUND
¶3 A.L.O. was born to Mother and Father on July 26, 2004. At the time, Mother was
sixteen years old. Although unmarried, Mother and Father, who had been dating for over
a year, initially intended to raise A.L.O. After three weeks, however, the couple decided
they could not handle the responsibility. Father approached his sister, Jennifer Martin,
and asked her if she and her husband, Branch, would be interested in adopting A.L.O.
The Martins, who were five months pregnant with their own child at the time, agreed.
Mother and Father entered a “guardianship agreement” with the Martins, who then
proceeded with adopting A.L.O., taking custody of her in August 2004. The District
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Court signed an order on November 4, 2004, terminating Mother’s and Father’s parental
rights.
¶4 Throughout the relinquishment and adoption processes, Mother represented her
age as over eighteen. On all documents to effectuate the adoption, Mother signed her
birth date as June 29, 1986. All parties to the proceedings apparently believed this
representation, including Father, the Martins, counselors and doctors. In fact, Mother
was born in 1987, which means at the time she received counseling and signed papers
relinquishing her parental rights, Mother was only seventeen years old. Section 42-2-
405(2), MCA, requires that minors relinquishing parental rights in direct parental
placement adoption must have legal counsel throughout proceedings. In violation of this
statutory provision, Mother did not have such counsel. The Martins, on the other hand,
had a lawyer throughout.
¶5 On December 23, 2004—over thirty days after termination—Mother filed a
motion to set aside the adoption. Mother asserted that since she was under eighteen years
of age and not represented by legal counsel at the time she signed the relinquishment
paperwork, the court’s order of termination was void.
¶6 Mother noted that while she incorrectly stated her age on documents to effectuate
the adoption, she accurately reported her birth year as 1987 on the certified paternity
acknowledgment and to her Ob/Gyn. Mother testified that she misstated her age at times
because she did not want Father to “dump” her. Mother believed she had nothing to gain
in the adoption proceedings by misrepresenting her age on certain documents; she further
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testified that she proceeded with the adoption based on her understanding that it would
not be final for six months. Mother also claimed that she suffered from postpartum
depression when she received counseling to give up her daughter and felt pressured by
the Martins to relinquish her parental rights.
¶7 The Martins countered that Mother signed document after document indicating
that she had read all the necessary paperwork and understood that relinquishing her
parental rights was irrevocable. The Martins further noted that M.L. Knapp, a case
worker with the Lutheran Social Services (who provided services through a contract with
the Martins), had no documentation of Mother’s claims of depression or having second
thoughts about relinquishing her parental rights.
¶8 On February 28, 2005, the District Court declared the adoption decree null and
void and ordered the return of A.L.O. to her Mother. 1 The Martins appeal.
STANDARD OF REVIEW
¶9 We review a district court’s conclusions of law to determine whether those
conclusions are correct. Because the termination of parental rights involves a
fundamental liberty interest, a decree which purports to terminate such rights must be
supported by clear and convincing evidence. “Clear and convincing evidence” in the
context of a parental rights termination case exists where the evidence is definite, clear,
and convincing, or a particular issue is clearly established by a preponderance of
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Father’s parental rights remain terminated.
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evidence or by clear preponderance of the proof. Adoption of C.R.N., 1999 MT 92, ¶ 7,
294 Mont. 202, ¶ 7, 979 P.2d 210, ¶ 7.
DISCUSSION
¶10 Did the District Court properly set aside the termination of parental rights
and order as void the decree of adoption?
¶11 Section 42-2-405(2), MCA, instructs that “[i]n a direct parental placement
adoption, a relinquishment and consent to adopt executed by a parent who is a minor is
not valid unless the minor parent has been advised by an attorney who does not represent
the prospective adoptive parent.” (Emphasis added.) In addition, the legal fees “are an
allowable expense that may be paid by prospective adoptive parents . . . .” Section 42-2-
405(2), MCA. The Martins acknowledge that they knew of the above statutory
requirement, but did not provide Mother a lawyer because Mother led them to believe she
was of legal age. Mother testified that she did not know that as a minor she should have
had an attorney; she also did not know that the Martins would have paid for her legal
representation.
¶12 The Martins set forth several theories for why this Court should reverse the
District Court’s order and return A.L.O. to their care, including equitable estoppel,
judicial estoppel, and failure to file a timely appeal under Rule 5(a)(1), M.R.App.P. In
light of § 42-2-405(2), MCA, these arguments are unpersuasive. Section 42-2-405(2),
MCA, exists to protect minor parents from making legally binding direct parental
placement adoptions without counsel’s advice and representation. Mother testified that
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she had difficulty understanding the paperwork related to the adoption, as it all looked the
same to her. Mother also claims that Jennifer Martin and A.L.O.’s grandmother (Jennifer
and Father’s mother), called Mother once a day to encourage her to sign the papers,
promising Mother that she would be able to visit with A.L.O. whenever she desired;
Mother testified that she would not have given her daughter up for adoption if she had
known that she would not be allowed to see A.L.O. any time she wanted. The foregoing
demonstrates the importance of § 42-2-405(2), MCA—that is, the statute protects minors
from making uninformed legal decisions. We hold that the District Court correctly
concluded that it had no authority to order relinquishment of Mother’s parental rights
when she had no legal representation as mandated by § 42-2-405(2), MCA.
¶13 As a final note, the Martins argue that returning A.L.O. to the Martins serves the
child’s best interest, as A.L.O. has “a right to permanence and stability in adoptive
placements.” Section 42-1-108(d), MCA. Given that the court ordered A.L.O.’s return
to Mother’s custody over a year ago in February 2005, this argument fails.
¶14 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE
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