                                                                                              04/10/2018


                                          DA 17-0564

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2018 MT 89N



IN THE MATTER OF:

B.M., S.J. and B.J.,

            Youths in Need of Care.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause Nos. CDN 14-129, CDN 14-130,
                                                                       CDN 14-131
                       Honorable John A. Kutzman, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                       Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana

              For Appellee:

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

                       Joshua A. Racki, Cascade County Attorney, Matthew Robertson, Deputy
                       County Attorney, Great Falls, Montana



                                                   Submitted on Briefs: March 14, 2018

                                                              Decided: April 10, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), 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        D.J. (Mother) is the biological mother of B.J., S.J., and B.M. (collectively, the

children). Mother appeals the August 28, 2017 order of the Eighth Judicial District Court,

Cascade County, denying Mother’s motion to withdraw relinquishment of her parental

rights.

¶3        On June 10, 2014, the Department of Public Health and Human Services (the

Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in

Need of Care and Temporary Legal Custody (TLC) following several reports concerning

the children’s welfare. Mother stipulated to adjudicate the children as youths in need of

care at the July 11, 2014 show cause hearing. Mother later stipulated to a treatment plan

and TLC. The District Court granted several TLC extensions due to Mother’s incarceration

in Washington. Initially, the Department filed petitions to terminate Mother’s parental

rights on May 3, 2016. On December 12, 2016, the District Court denied the petitions

because the Department had failed to prove that Mother’s condition or conduct was

unlikely to change within a reasonable time; however, the District Court extended TLC to

the Department.



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¶4     After Mother was arrested for possession of dangerous drugs on February 11, 2017,

the Department filed new petitions for termination of Mother’s parental rights. The District

Court held a termination hearing on August 2, 2017. During the hearing, after a recess was

called to allow Mother and her counsel to confer, the District Court was notified Mother

wanted to relinquish her parental rights. Based on this notification, the District Court had

Mother take the stand and proceeded with a lengthy colloquy. Under oath, Mother stated

the following: (1) she met with counsel to consider all available options; (2) no undue

pressure occurred during the recess; (3) acknowledged that she understood the effects of

relinquishing her rights; (4) she had thought about relinquishing her rights before the

August 2 hearing; (5) the relinquishments were her “decision from the beginning”; and

(6) relinquishment of her parental rights was in the best interest of the children. Further,

the District Court inquired of Mother’s intent to waive the three-hour counseling

requirement pursuant to § 42-2-409(2), MCA.

¶5     On August 21, 2017, Mother filed a motion to withdraw the relinquishments due to

duress. On August 28, 2017, the District Court denied Mother’s motion. Subsequently,

the District Court issued its Findings of Fact, Conclusions of Law, and Order terminating

Mother’s parental rights on October 18, 2017. With regards to Mother waiving the

three-hour counseling requirement, the District Court determined good cause existed

because of the “uncertain status of [Mother’s] criminal affairs, the need to give these

children permanency, the unqualified nature of [Mother’s] stated intent during the August

2 sworn relinquishment colloquy, and her testimony during the colloquy.”



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¶6      A parent or legal guardian’s right to revoke a relinquishment and consent to

adoption is governed by statute. In re N.R.A., 2017 MT 253, ¶ 9, 389 Mont. 83, 403 P.3d

1256 (citing § 42-2-417, MCA; In re 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. S.R.T., ¶ 11 (citations omitted). We review a district

court’s findings of fact to determine whether those findings are clearly erroneous. N.R.A.,

¶ 10.

¶7      A district court may set aside a relinquishment if the individual who executed the

relinquishment can establish “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)(a), MCA. Under the statute duress may be established if clear and convincing

evidence demonstrates “the parent was subjected to a wrongful act or threat that overcame

her free will.” N.R.A., ¶ 14.

¶8      We conclude Mother failed to meet her burden of showing clear and convincing

evidence demonstrating she was under duress when she executed the relinquishments.

Based upon the evidence in the record, it is clear Mother executed her relinquishments

knowingly, voluntarily, and intelligently. Throughout the colloquy, Mother stated several

times: executing the relinquishments were of her own volition, she understood the

consequences of the relinquishments, and executing the relinquishments was for the best

interest of the children. We are unpersuaded by Mother’s argument that she experienced

duress because she believed she would retain some rights—visitation rights—if she

executed the relinquishments. Mother explicitly stated she understood she would not retain

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any parental rights to the children and any visitation was at the discretion of the foster

parents. Further, Mother was asked directly if she felt any undue pressure during or from

her conversation with her attorney, case worker, and county attorney. Mother answered

the question in the negative. Mother’s characterization of the colloquy is amiss.

¶9     Further, Mother argues the relinquishments should be set aside because they were

obtained through fraud and the District Court did not have good cause to waive the

counseling requirement. Neither argument was presented to the District Court. We

generally do not consider issues raised for the first time on appeal. In re T.D.H., 2015 MT

244, ¶ 22, 380 Mont. 401, 356 P.3d 457.            Nevertheless, the record is clear the

relinquishments were not induced by false promises or representations. Moreover, the

District Court inquired and articulated the good cause to waive the counseling requirement

pursuant to § 42-2-409, MCA.         Mother did not object to waiving the counseling

requirement. The record is clear that Mother knowingly, voluntarily, and unequivocally

executed the relinquishments.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶11    Affirmed.



                                                 /S/ INGRID GUSTAFSON



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We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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