                                                                                            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.


1
 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:


                                            5
       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.



                                          8
¶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




                                         9
We concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR




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