10/17/2017
DA 16-0276
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 253
IN THE MATTER OF:
N.R.A. and V.A.A.,
Youths in Need of Care.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Glacier, Cause Nos. DN 13-09 and DN 13-10
Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Dana A. Henkel, Terrazas Clark Henkel, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Mark E. Westveer, Glacier County Attorney, Cut Bank, Montana
Submitted on Briefs: September 20, 2017
Decided: October 17, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 A.N. (Mother) appeals the termination of her parental rights to her children, N.R.A.
and V.A.A., by the Ninth Judicial District Court, Glacier County. Mother raises three
issues on appeal, but we address only the following issue, and affirm:
Did the District Court err by denying Mother’s motion to set aside her
relinquishment of parental rights?
FACTUAL AND PROCEDURAL BACKGROUND1
¶2 On April 24, 2013, the Department of Public Health and Human Services, Child and
Family Services Division (DPHHS or Department), filed a Petition for Emergency
Protective Services and Temporary Investigative Authority as to N.R.A., then two years
old, and V.A.A., six months old. The children had been left with family members by their
parents. The family members discovered that V.A.A. had severe diaper rash, urine burns,
and a yeast infection. The parents were arrested on outstanding warrants, and Father
admitted they had used methamphetamine in front of the children, though Mother denied
this allegation. DPHHS took protective custody of the children and placed them with
relatives in Cut Bank, who lived near the parents. In September 2013, the Cut Bank
relatives were no longer able to care for the children, and they were moved to another
kinship placement in Gardiner, a significant distance from the parents. Mother asserted
that this placement made visitation very difficult, and the District Court ordered DPHHS
to make “every effort” to increase visits between her and the children.
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The three-year factual and procedural history of this case is complex, and is here summarized,
focusing on the facts relevant to the relinquishment issue.
2
¶3 In December 2013, the District Court determined the children were youths in need
of care due to physical neglect and exposure to dangerous drugs, and granted temporary
legal custody to DPHHS. Treatment plans were approved for both parents. The parties
would later dispute whether a proper adjudicatory hearing had been conducted.
¶4 In November 2014, DPHHS filed a petition to terminate Father’s and Mother’s
parental rights based on their failure to successfully complete their treatment plans. In May
2015, the District Court terminated Father’s parental rights due to continued drug use,
failure to complete treatment, and exposing the children to a sex offender, among other
grounds. However, with regard to Mother, the District Court concluded that, while Mother
had initially done poorly on her treatment plan, she had made positive improvements in her
life, and “earned the right to try to parent her children.” The District Court approved a
second treatment plan.
¶5 In August 2015, the DPHHS case worker met with Mother and explained that she
was not complying with the second treatment plan, and that the Department was
contemplating filing a second time for termination of her parental rights. The case worker
told Mother that she could avoid a second termination proceeding by voluntarily
relinquishing her parental rights. Mother testified that she was advised by DPHHS
representatives that it was more likely she would be able to see her children after her rights
were terminated if she voluntarily relinquished them. Mother declined voluntary
relinquishment, and canceled the relinquishment counseling that had been scheduled for
her.
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¶6 On December 1, 2015, DPHHS filed a petition to terminate Mother’s parental rights,
based on her failure to complete her second treatment plan. The same day, Mother notified
DPHHS that she wanted to relinquish her parental rights. On December 4, 2015, a DPHHS
permanency planning specialist met with Mother and conducted a three-hour counselling
session regarding relinquishment, as required by § 42-2-409, MCA. At the end of the
session, Mother signed an affidavit waiving all her parental rights and relinquishing her
children for adoption, affirming therein that she was signing voluntarily and without undue
influence. Although encouraged to speak with her attorney, Mother declined the
opportunity to do so before signing.
¶7 On January 6, 2016, Mother’s attorney asserted during a hearing that Mother was
acting under duress when she had waived her rights to the children, and she wished to
withdraw her relinquishment. On February 1, 2016, the District Court conducted a hearing
to consider the validity of Mother’s relinquishment. Mother, the DPHHS case worker, the
placement specialist, and a CASA advocate testified. On March 10, 2016, the District
Court entered an ordering denying Mother’s motion to revoke her relinquishment of
parental rights, finding that Mother’s relinquishment was made “knowingly, intelligently,
and voluntarily,” and concluding that the Department had presented evidence that refuted
Mother’s claim that she was subjected to duress by the Department.
¶8 Based on the relinquishment, the District Court terminated Mother’s parental rights.
Mother appeals, arguing that her due process right to an adjudicatory hearing was violated,
that DPHHS violated Montana law by not making reasonable efforts to reunify the children
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with their Mother, and that the District Court erred by accepting Mother’s relinquishment
of parental rights.
STANDARD OF REVIEW
¶9 A parent or legal guardian’s right to revoke a relinquishment and consent to
adoption is governed by statute. Section 42-2-417, MCA; see also In re Adoption of S.R.T.,
2011 MT 219, ¶ 11, 362 Mont. 39, 260 P.3d 177. We review a district court’s interpretation
and application of a statute, which is a conclusion of law, for correctness. In re Adoption
of S.R.T., ¶ 11 (citations omitted).
¶10 We review a district court’s findings of fact to determine whether those findings are
clearly erroneous. In re Adoption of S.R.T., ¶ 12 (citations omitted). A factual finding is
clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if a review of the record convinces us that a
mistake has been committed. In re J.C., 2008 MT 127, ¶ 34, 343 Mont. 30, 183 P.3d 22
(citations omitted). It is well established that “the trial court is in the best position to
observe and judge the credibility of witnesses, therefore we do not second guess the district
court’s determination regarding the strength and weight of conflicting testimony.” In re
Adoption of S.R.T., ¶ 25 (citations omitted).
DISCUSSION
¶11 Did the District Court err by denying Mother’s motion to set aside her
relinquishment of parental rights?
¶12 The Legislature established the grounds to set aside a relinquishment of parental
rights:
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The court shall set aside a relinquishment and consent to adopt if the
individual who executed the relinquishment and consent establishes:
(a) by clear and convincing evidence, before a decree of adoption is issued,
that the consent was obtained by fraud or duress . . . .
Section 42-2-417(1), MCA. The statute places a burden of clear and convincing proof
upon the parent seeking to revoke a relinquishment of parental rights. “In the context of
termination of parental rights cases, we have defined clear and convincing evidence as
simply a requirement that a preponderance of the evidence be definite, clear, and
convincing, or that a particular issue must be clearly established by a preponderance of the
evidence or by a clear preponderance of proof.” In re D.B., 2007 MT 246, ¶ 29, 339 Mont.
240, 168 P.3d 691 (citations omitted).
¶13 Under the statute, a relinquishment must be set aside if the parent establishes her
consent “was obtained by fraud or duress . . . .” Section 42-2-417(1)(a), MCA. While we
have defined fraud in the context of this statute, see In re Adoption of S.R.T., ¶¶ 16-17
(parent asserted relinquishment obtained by fraud), we have not stated a definition of
duress for purposes of the statute. The District Court used a definition from Black’s Law
Dictionary 504 (6th ed. 1990), which provided, in part, “[a]ny unlawful threat or coercion
used by a person to induce another to act (or to refrain from acting) in a manner he or she
otherwise would not (or would) . . . .”
¶14 The primary definition of duress in the current version of Black’s Law Dictionary
still reflects the historical meaning of the term as “the physical confinement of a person or
the detention of a contracting party’s property . . . .” Black’s Law Dictionary 614 (Bryan
A. Garner ed., 10th ed. 2014). However, the law of duress has undergone what has been
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described as “radical changes” through the nineteenth and twentieth century, and “[t]oday
the general rule is that any wrongful act or threat which overcomes the free will of a party
constitutes duress.” 7 Arthur Linton Corbin, Corbin on Contracts § 28.2 (Joseph M. Perillo
ed., rev. ed. 2017). Consistent therewith, Black’s Law Dictionary currently includes the
following secondary definition of duress:
2. Broadly, a threat of harm made to compel a person to do something against
his or her will or judgment; esp., a wrongful threat made by one person to
compel a manifestation of seeming assent by another person to a transaction
without real volition. Duress practically destroys a person’s free agency,
causing nonvolitional conduct because of the wrongful external pressure.
Black’s Law Dictionary 614 (Bryan A. Garner ed., 10th ed. 2014). Recognizing this trend,
we will consider, in determining whether a parent’s consent to the relinquishment of
parental rights was obtained by duress, whether the parent was subjected to a wrongful act
or threat that overcame her free will.2
¶15 Mother argues that her relinquishment was obtained as a result of the DPHHS’s
wrongful conduct. She testified that she felt pressured by repeated attempts of the
2
Section 28-2-402, MCA, a remnant of the Field Code, provides an antiquated definition of
duress:
(1) unlawful confinement of the person of the party, of the husband or wife of such
party, or of an ancestor, descendant, or adopted child of such party, husband, or
wife;
(2) unlawful detention of the property of any such person; or
(3) confinement of such person, lawful in form but fraudulently obtained or
fraudulently made unjustly harassing or oppressive.
In the adoption and child custody context, the Legislature did not intend the definition of duress to
be limited to the physical confinement of a person or her property. Therefore, pursuant to
§ 1-2-107, MCA, we conclude that the Legislature has expressed a contrary intention, and we
decline to apply the Title 28 definition of duress to relinquishment of parental rights.
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Department to convince her to relinquish her parental rights. Mother estimated that
DPHHS contacted her over a dozen times to discuss relinquishment, and testified that
DPHHS told her she had a better chance of being able to visit her children if she voluntarily
relinquished her rights. Mother testified that at the time she signed the relinquishment, she
was depressed due to the alienation of her children, which she attributed to the Department
placing the children so far from her, and failing to make adequate arrangements for
visitation. She testified that she believed that voluntary relinquishment was her only
choice.
¶16 The State counters Mother’s duress claim by pointing out that Mother initiated the
contact with DPHHS that led to her relinquishment, and participated in three hours of
counseling with a long-term placement specialist, who was not the case worker who
Mother alleges pressured her. The counselor testified that she carefully discussed
relinquishment alternatives with Mother, who did not raise any concerns about duress or
undue influence with the counselor, and, rather, explained to the counselor that she
believed relinquishment was in the best interest of her children. During the course of the
proceeding, Mother had a long time to consider relinquishment and had previously
canceled relinquishment-related counselling appointments. The counselor testified to her
belief that Mother had provided the relinquishment intelligently and voluntarily. The State
also argues that the DPHHS made reasonable efforts to reunify Mother throughout the
proceedings, providing a list of actions taken, and offers that Mother’s own conduct is often
what prevented her from visiting her children.
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¶17 Conflicting testimony was presented to the District Court, particularly about
Mother’s emotional state when she signed the relinquishment, and about the reunification
efforts taken by DPHHS. Based upon this evidence, and upon its assessment of the
credibility of the witnesses, the District Court determined that Mother’s relinquishment
was not obtained by duress, reasoning that Mother “did not provide clear and convincing
evidence . . . that the Department used improper pressure that overcame her will or
compelled her to relinquish.” These findings are substantially supported by the testimony
of the DPHHS case worker and placement specialist, and Mother has not established that
the District Court’s factual determinations are clearly erroneous. Thus, we affirm the
District Court’s denial of Mother’s motion to set aside her relinquishment of parental
rights.
¶18 Mother also challenges the propriety of the adjudicatory hearing, and of the
Department’s efforts to reunify her with the children, as separate legal issues. However,
given our conclusion that Mother’s consent to the relinquishment was valid, these issues
have become moot and we need not address them. Adjudication of the children as youths
in need of care, or the reasonableness of reunification efforts, are not separate legal
requirements when termination of parental rights is based upon relinquishment. See In re
H.T., 2015 MT 41, ¶ 15, 378 Mont. 206, 343 P.3d 159; § 41-3-609(1)(a), MCA.
¶19 Affirmed.
/S/ JIM RICE
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We concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
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