                                                                                      January 27 2015


                                     DA 14-0432
                                                                                     Case Number: DA 14-0432

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    2015 MT 23N



IN THE MATTER OF:

D.S.,

         A Youth in Need of Care.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and For the County of Yellowstone, Cause No. DN 11-45
                  Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C.,
                  Kalispell, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Ass istant
                  Attorney General, Helena, Montana

                  Scott Twito, Yellowstone County Attorney, Richard Helm, Deputy
                  County Attorney, Billings, Montana



                                               Submitted on Briefs: December 31, 2014
                                                          Decided: January 27, 2015


Filed:

                  __________________________________________
                                    Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     A.S. appeals from the order of the Thirteenth Judicial District, Yellowstone

County, denying her request to set aside the relinquishment of her parental rights to D.S.

The issue on appeal is whether the District Court erred when it denied A.S.’s motion to

withdraw her relinquishment. We affirm.

¶3     A.S. is the biological mother of two children, D.S. and C.P.1 The Department of

Health and Human Services filed a petition to terminate A.S.’s parental rights on May 3,

2013. In the summer of 2013, A.S. indicated that she would relinquish her parental

rights. In August 2013, she participated in relinquishment counseling with Danielle

Metcalf. A.S. later changed her mind and an involuntary termination hearing was held on

November 4-6, 2013. At the hearing, A.S. again indicated that she wished to relinquish

her parental rights. Ten days later, A.S. executed an “Affidavit of Birth Mother’s Waiver

of All Parental Rights, Relinquishment of Child, and Consent to Adoption.”              The

affidavit states that the relinquishment is “voluntary, irrevocable and is given freely with

a clear mind. I [A.S.] have not been unduly influenced by anyone in making this

1
   This appeal is limited to A.S.’s parental rights to D.S. A.S. does not challenge her
relinquishment of parental rights to C.P.
                                             2
relinquishment.” On January 7, 2014, the District Court issued the order terminating

A.S.’s parental rights to D.S. and C.P.

¶4     On January 21, 2014, A.S. moved to withdraw her relinquishment based on

duress. In her affidavit, A.S. stated that she “felt badgered and confused” and mentions

D.S.’s recent relocation from several group homes. On March 10, 2014, a hearing was

held and A.S. testified. She claimed that Cindie Fitch, a CFS caseworker, had pressured

her into relinquishing her parental rights. A.S. stated that she knew the legal ramification

of relinquishing her parental rights, but felt pressured and fearful of Ms. Finch. On June

5, 2014, the District Court issued an order denying A.S.’s request to withdraw her

relinquishment.

¶5     A parent’s right to revoke a relinquishment is dictated by statute. In re Adoption

of S.R.T., 2011 MT 219, ¶ 11, 362 Mont. 39, 260 P.3d 177.                A district court’s

interpretation and application of a statute is a conclusion of law, which we review for

correctness. S.R.T., ¶ 11 (citation omitted). We review a district court’s findings of fact

for clear error. S.R.T., ¶ 12 (citation omitted).

¶6     On appeal, A.S. asserts that the District Court erred by limiting its analysis to

§ 42-2-417, MCA. A.S. argues that Montana law provides for two methods of setting

aside a relinquishment: (1) statutory method using § 42-2-417, MCA, and (2) rescission

under contract law.

¶7     A parent may surrender their parental rights by “executing a voluntary

relinquishment and consent to adoption.” Section 42-2-401(1), MCA. Because of the

fundamental liberty interests involved, the law provides prerequisites that must be

                                               3
satisfied prior to relinquishment, including at least three hours of counseling. Sections

42-2-408, -409, MCA. The relinquishment may not be conditioned on future visitation

rights or ongoing communication with the child. Section 42-2-411(2), MCA.

¶8     By law, a relinquishment and consent to adopt is final and may not be revoked

once an order has been issued terminating the parent’s rights. Section 42-2-410, MCA.

However, under limited circumstances, a parent may move to set aside their

relinquishment pursuant to § 42-2-417, MCA. To prevail, the party must prove by clear

and convincing evidence that the consent was obtained by fraud or duress.

Section 42-2-417(1)(a), MCA.

¶9     In 1997, the Montana Legislature enacted § 42-2-417, MCA, which provides two

specific grounds for revoking a relinquishment: fraud or duress. To the extent that cases

prior to 1997 are inconsistent with the statute, the statute controls. It is undisputed that

A.S. moved to revoke her relinquishment after the District Court issued its order

terminating her parental rights. Therefore, the burden was on A.S. to prove by clear and

convicting evidence that she acted under duress or fraud. Section 42-2-417(1)(a), MCA.

¶10 A.S.’s opening brief argues that the District Court erred in applying the Black’s

Law Dictionary definition of duress, but her reply brief concedes that the Black’s Law

Dictionary definition was not an error in itself. She maintains that the error lies in the

failure of the District Court to apply the alternative contract law method. A close look at

the various definitions of “duress” shows that the result would not differ under any

definition.



                                             4
¶11 Although not cited by A.S., Montana contract law defines “duress” as the unlawful

confinement of a person, family member, or property, or the lawful but oppressive

confinement of a person. Section 28-2-402, MCA. The most recent edition of Black’s

Law Dictionary is very similar to Montana law, defining duress 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., West 2014). The District Court defined

duress, using the sixth edition of Black’s Law Dictionary, as:

       Any unlawful threat or coercion used by a person to induce another to act
       (or refrain from acting) in a manner he or she otherwise would not (or
       would). Subjecting a person to improper pressure which overcomes his
       will and coerces him to comply with demand to which he would yield if
       acting as a free agent. “Coercion” is defined as “Compelled to compliance,
       constrained to obedience or submission in a vigorous or forcible manner.”

¶12    Applying either edition of Black’s Law Dictionary or the Title 28, Chapter 2,

MCA, definition, the District Court would reach the same result. The record clearly

shows that A.S. failed to carry her burden of establishing, by clear and convincing

evidence, that her relinquishment was obtained through duress. A.S. was represented

throughout the proceedings and discussed the relinquishment documents with her

attorney. She received counseling, was provided clarification when unsure, and recorded

the counseling session to revisit in the future. As to Ms. Finch, she was not present when

A.S. signed the papers and, by A.S.’s own testimony, did not threaten or force her to sign.

¶13    A.S.’s testimony strongly suggests that she is seeking to revoke her relinquishment

because of D.S.’s current placement. Although A.S. relinquished rights to two children,

she only claims duress for D.S. and not C.P. When asked to explain why she did not seek


                                            5
to set aside the relinquishment as to C.P., A.S. stated, “Because I have contact with the

foster family.” Her distress over D.S.’s placement does not qualify as duress under any

definition of the term.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for memorandum opinions. The District

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted.

¶15    Affirmed.


                                                /S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




                                            6
