                             NO.     95-541
           IN THE SUPREME COURT OF THE STATE 0
                                   1996


IN RE THE MATTER OF BABY M



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Hon. Maurice C. Colberg, Jr., Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Marvin L. Howe, Simonton, Howe & Schneider,
               Glendive, Montana
          For Respondent:
               Thomas J. Lynaugh, Lynaugh, Fitzgerald,
               Eiselein & Eakin, Billings, Montana


                                   Submitted on Briefs:   April 4, 1996
                                               Decided: July 8, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Petitioner T.M. filed a petition in the Thirteenth Judicial
District Court in Yellowstone County to revoke her relinquishment
of parental rights and to withdraw her consent to adoption.          After
a trial, the District Court entered its order and judgment in favor
of the respondent,   Catholic Social Services of Montana, Inc. We
affirm the order and judgment of the District Court.
     The issues on appeal are:
     1.    Did the District Court err when it concluded that T.M.
voluntarily relinquished her parental rights to Baby M.?
     2.    Did the Court err when it terminated T.M.'s parental
rights?
                                 FACTS
     T.M. became pregnant in April 1994.     She was thirty-five years
old, unmarried, and living with her family.      She told neither her
family nor the natural father about her pregnancy.        Instead, she
left her family home and moved to an out-of-state location during
the pregnancy.
     In   October, while out of state, T.M. first contacted Catholic
Social Services (CSS)    to inquire about options available to her.
CSS offers    services   which   include   pregnancy   counseling,     the
adoptive placement of children, and single parent counseling.          css
gave T.M. information on how to contact its Eastern Montana
representative, Tylene Merkel, whom T.M. contacted in October 1994.
Merkel and T.M. first talked by telephone and then on October 30,


                                   2
1994,   met in person.      They also spoke on the telephone and met on
several other occasions prior to the baby's birth on December 23,

1994.
        On December 30, Merkel and T.M. met to discuss foster care and

T.M. signed a parental agreement that allowed CSS to place her baby

in   foster    care   and   provided   that   she   agreed   "to   notify   a

representative of [CSS] of my decision as to whether or not to

release [the baby] for adoption on or before Jan. 23, 1994 [sicl."

On December 30, 1994, CSS placed the baby in foster care and T.M.
moved back into her family's home but still did not inform her

parents that she had given birth to the baby.

        On February 7, 1996, T.M. told Merkel she wished to place her

child for adoption, and on February 9, 1995, she signed a document

entitled     "A Relinquishment of Parental Rights and Consent to

Adoption."      At that same time, T.M.        signed an     open adoption
agreement and invoked her right to privacy.            She also signed a
document entitled "Deposition Upon Written Questions" in which she

exercised her right to privacy and refused to name the child's

father.

        On that same day,      the prospective adoptive parents        took
physical custody of Baby M.       Two days later, on February 11, 1995,

T.M. called them and asked for her child back.                 Merkel then
arranged for the prospective adoptive parents, T.M., and her to

meet at a motel in Miles City on February 12, 1995, to return the

baby to T.M.     In Miles City, however, T.M. indicated to Merkel and


                                       3
the adoptive parents that she had decided to go through with the
placement of Baby M. for adoption.    Therefore, the couple returned

to Broadus with the baby.

        On February 15, 1995, CSS filed a petition in District Court

to terminate the parental rights of T.M. and the birth father. On

the same day, pursuant to § 40-6-135(6), MCA, the District Court

entered an order terminating the parental rights of T.M. and the

birth father.     The order stated that permanent legal custody of

Baby M. was granted to CSS with the right to appear in any court

where adoption proceedings are pending to consent to the adoption

of Baby M.
        CSS and the prospective adoptive parents also entered into an

Adoptive Home Agreement on February 15, 1996, which formalized the

physical placement for adoption that had been done on February 9,

1995.

        On April 26, 1995,    T.M. filed a petition to revoke the

relinquishment of parental rights and consent to adoption that she

signed on February 9, 1995.    She moved for the revocation pursuant

to 5 40-6-135 and 5 40-8-112, MCA, and also claimed that she
entered into the relinquishment agreement involuntarily.

        On July 24, 1995, after a hearing, the court entered an order

in which it concluded that T.M. 's acts of relinquishment of Baby M.
and execution of the documents relinquishing parental rights and

giving consent to adoption were      voluntary and not procured by

duress or undue influence.
                                         ISSUE 1

      Did the District Court err when it concluded that                      T. M.

voluntarily relinquished her parental rights to Baby M.?

       Conclusions of law are reviewed to determine whether the

district court's interpretation and application of the law is

correct. Jitn’sExcavatingServ.,    Inc. V. HKMAssocs. (1994), 265 Mont. 494, 501,

878 P.2d     248,     252.        We review underlying factual findings to

determine whether they are clearly erroneous.                        Rule 52(a),
M.R.Civ.P.; Brownv. Tinfinger (1990), 245 Mont. 373, 377, 801 P.2d 607,

609. In determining whether factual findings are clearly erroneous

we look to whether they are supported by substantial evidence and

give due regard to the opportunity of the trial court to judge the

credibility of the witnesses.              Rule 52(a), M.R.Civ.P.

       T.M. brought an action for revocation of her relinquishment of

parental rights pursuant to 5 40-6-135(8), MCA, and alleged that
she did not voluntarily sign the relinquishment because it was

procured by duress, coercion, or undue influence by Tylene Merkel,

a representative for CSS.

       Section 40-6-135(8),          MCA, governs the rights of a person to

revoke a relinquishment and provides in pertinent part:

            Upon   petition of a      person  who   executed a
       relinquishment . . .       the   court  with  which  the
       relinquishment was filed may grant a hearing to consider
       whether   the  relinquishment    should be   revoked. A
       relinquishment may not be revoked if the child has been
       placed for adoption.




                                            5
In this case, the parties concede that Baby M. has been placed for
adoption.       Therefore,     T.M. is        precluded         from    revoking         the

relinquishment pursuant to 5 40-6-135(S), MCA.

       As with any contract, however,           T.M.'s     relinquishment may be

set aside if legal cause to do so is proven.                    In this case, T.M.

also alleges that the relinquishment was procured by duress,

coercion,     or   undue     influence by         Tylene        Merkel.          Section

28-2-1711(l), MCA, provides that a party may rescind a contract "if
the consent of the party rescinding . . . was given by mistake or

obtained through duress, menace,               fraud, or undue influence."

(Emphasis added.)

       Section 28-2-407, MCA, provides that undue influence consists

of:

             (1)  the use by one in whom a confidence is reposed
       by another or who holds a real or apparent authority over
       him of such confidence or authority for the purpose of
       obtaining an unfair advantage over him;
             (2)  taking an unfair     advantage of another's
       weakness of mind; or
             (3)  taking a    grossly   oppressive   and  unfair
       advantage of another's necessities or distress.

It is well settled that undue influence must be proven by the

person    contesting   the   contract.       In re Marriage of Brownell   ( 19 9 3 ) ,   263

Mont. 78, 83, 865 P.2d 307, 310; Adamsv.Allen(1984), 209 Mont. 149,

153,     679 P.2d 1232, 1235.       We have set forth five factors to

consider when a party alleges undue influence with regard to wills:

             (1) Confidential   relationship               by     the     person
       attempting the influence;

             (2)  The physical condition of the person being
       influenced;
                                         6
             (3) The mental condition of the person being
       influenced;

             (4)  The unnaturalness of the disposition as it
       relates to showing an unbalanced mind or a mind
       susceptible to undue influence; and
             (5)  The demands as they may affect the particular
       person taking into consideration time, place and all
       circumstances.
Christensenv.Britton (1989), 240 Mont. 393, 398, 784 P.2d 908, 911; seealso

InreEstateofHogan     (1985), 218 Mont. 428, 431, 708 P.2d 1018, 1020.

However,    although these factors are important, they give only a
means of attempting to prove or a means of                     analyzing       undue
influence.      For there to be undue influence it is necessary that
there be a destruction of free agency.             EstateofHogan, 218 Mont. at

431,   708 P.2d at 1020.
       A thorough review of the record reveals that the District
Court's     findings        were   not   clearly   erroneous    and     that     its
conclusions based on those findings                (that   relinquishment       was
voluntary     and      therefore     without   coercion,   duress, or undue
influence) was correct.
       The record reveals that prior to the birth of Baby M., in
October 1994, T.M. first contacted CSS, and from that time until
February 7,         1995,   T.M. had several contacts with CSS and its
representative,        Merkel.     They met for the first time on October 30,
1994, and discussed the options available to T.M.              Merkel   testified
that at the meeting T.M.             indicated that she preferred a closed
adoption and described the type of family she wished to have adopt
her child.      Merkel   then    gave       T.M.   information    related to the

options available.

      Merkel also testified that the two met again on November 6,

1994, and T.M. questioned whether an adoption would be appropriate;

however,    T.M. later indicated that she thought adoption would be

best for her baby and that she still wanted a closed adoption.

Merkel testified that at that meeting T.M. also discussed the birth

father and her criticisms of him as a person.
      Later in November,        the two met again and discussed the

profiles of the various families who wished to adopt the child.               In

December, T.M. missed some appointments with Merkel, but attended
others and talked on the telephone to Merkel.

      After the baby's birth, T.M. signed a parental agreement that

allowed CSS to place the baby in foster care.              Merkel     testified

that after CSS placed the baby in foster care, T.M. and Merkel had

several   discussions.   For    example, on January 2, 1995, T.M. called
Merkel and told her that the decision was hard and that she was

concerned about what the right decision would be.                On January 13,

T.M. informed Merkel that she still had not made a decision.              Then,

on January 16, the two met and T.M. told Merkel that "I think I'm

going to go ahead and adopt him out.           My reasons are still there."

According to Merkel, at the January 16 meeting, she also gave T.M.

forms of waiver of parental rights similar to the documents
ultimately signed by T.M.       On January 25, T.M. and Merkel met again




                                        8
and T.M.     signed another parental agreement which provided for

foster care until February 23, 1995.

     T.M. met the proposed adoptive parents on January 30, 1995.

The next day, Merkel called T.M. to see if she had made a decision.

T.M. testified that she was offended that Merkel had called her so

soon and told Merkel that she had not made a decision and that she

needed some more time.     Merkel then told T.M. that if she decided

to adopt,    arrangements would have to be made with the adoptive

parents so she needed to know by the end of the week.            T.M.

testified that she knew the baby was in foster care and that she
needed to make a decision so she called Merkel the next day and,

referring to whether she would place the baby for adoption, said,

"Yeah,    I guess so."

     Merkel testified that on February 7, 1995, T.M., of her own

volition,    called her and indicated that she wanted to go through

with the adoption.       Merkel made notes of that conversation and

quoted T.M. as saying,     "I need to do this. He needs to go to his

new family . . . I need to move on.    It is what I'm going to do, so

I just need to quit putting it off."          A few days prior to

February 7 T.M. had called the foster mother, and indicated to her

that it was her intention to place Baby M. for adoption.         Even

weeks earlier, on January 16, 1995, T.M. told Merkel that "I think

I'm going to go ahead and adopt him out.       My reasons are still

there."




                                   9
       On February 9, 1995, T.M. signed three documents in connection
with her decision to place for adoption.              The first document was
the Open Adoption Agreement.          At the hearing, when asked if an open
adoption was what she wanted, T.M. replied, "Yeah, I had decided
after meeting the [prospective adoptive parents1 that I would go
open adoption, if I went adoption."            Merkel testified that T.M. had
input into various sections of the agreement and set the times and
places of visits.        Merkel also testified that T.M. did not appear
distressed or confused and gave definite and voluntary input to
this document.
       T.M.    also signed the Deposition Upon Written Questions on
February 9, 1995.        The document was necessary because T.M. wanted
to claim a right to privacy and not divulge the father's name.
Merkel testified that she gave T.M. the document to read, that she
read    each    question    and     answered    the questions in her own
handwriting,      and that T.M. did not appear confused or upset while
answering      these   questions.     Some of the questions T.M. answered
include the following:
       INTERROGATORY NO. 21: Has anyone pressured or coerced
       you into making the decision to relinquish your custody
       rights to the child for the purposes of placing the child
       for adoption?     If so, please state the names and
       addresses of those persons.
       ANSWER: No.
       INTERROGATORY NO. 23: Has any adoption agency forced or
       pressured you into making the decision to relinquish
       custody of your child for adoption?
       ANSWER: No.


                                         10
     INTERROGATORY NO. 24: Have you voluntarily reached a
     decision to relinquish custody of the child to an
     adoption agency?

     ANSWER:   Yes.

     Finally, on February 9, 1995, T.M. signed the third document,

the actual Relinquishment of Parental Rights at issue in this case.
Merkel testified that she had given a copy of this document to T.M.

on January 16 and asked her to review it, and that when T.M. came

to the meeting on February 9, she indicated that she had reviewed

it and did not need to read it again.     Merkel also testified that

she asked her to read it again, that she again asked her if she had

any questions, and that T.M. did not have any questions.
     Merkel also testified that she asked T.M. if she understood

what the document would do and that T.M. responded that if she

signed the document she would be giving away her parental rights to

Baby M.   In response to another question from Merkel as to how long

the relinquishment was good for, T.M. answered, "forever."         Merkel

then asked T.M. if she was signing the document of her own free

will and she responded that she was.

     While CSS and T.M. agree that a confidential relationship

existed between Merkel and T.M.,      there   was   substantial   evidence

that the other factors set forth in Hogan are not present.         First,

the evidence reveals that T.M. 's physical and mental condition was

consistent with that of a normal mother faced with the difficult

decision of whether to place her child for adoption.        T.M. had not

only received a high school diploma, but also earned a four-year


                                 11
college    degree.     She was thirty-five years old and managed a
business owned by her family.       T.M. was definite from the beginning
about her reasons to place her child for adoption--a concern about
single parenting and not wanting the birth father involved.            The
testimony reveals that she initiated discussions about the type of
adoption and the profile for the adoptive parents.         And,   although
T.M.    contends that she was very upset at critical times in this
case,    substantial evidence was offered to prove that she knew what
she was doing and understood the effect of signing the papers.
        Also, the decision to place her child for adoption was not an
unnatural disposition which shows "an unbalanced mind or a mind
susceptible    to    undue   influence."   Instead, T.M.   contacted   the

adoption     agency long before the        child was born because of
legitimate personal reasons for considering adoption. She had from
December 23, 1994, until February 9, 1995, to carefully consider
her decision to place Baby M. for adoption. Moreover, during that
time,    she had unlimited access to her child.      The evidence shows
that T.M.'~ decision to adopt was the result of her thoughtful
consideration of the pros and cons of placement for adoption as
opposed to being a single parent.
        The last factor to consider in a determination of undue
influence is "the demands as they may affect the particular person
taking into consideration time, place and all circumstances." T.M.
fails to present evidence that CSS put demands on her.            Instead,




                                      12
the evidence reveals that CSS offered the child back to T.M. on two
separate occasions--February 9 and 12, 1995.

        T.M. testified that on February 9, 1995, after she signed the

relinquishment    and   gave   the baby to the adoptive parents,    she
questioned whether she could go through with the adoption.          She
further testified that Merkel gave her the option of taking the

baby with her then, but that she replied, "Well,       all right then.

I guess I'll go say goodbye to him."

        On February 12, the parties all traveled to Miles City to give

the baby back to T.M.     She testified that although she had, by this

time,   told her mother and sister about the baby, she traveled alone

from her home to the meeting in Miles City.       She arrived in Miles

City early and testified that Merkel was rude to her and asked her

to come back later because the adoptive parents were not finished

saying goodbye to the baby.      T.M. also testified that she responded

by saying, "Well, you know, I'd like to talk to them.       Maybe they

can have him.    Maybe I've decided they can have him."   T.M. further

testified:

              I can't remember my exact words. She [Merkell said,
        "Are you at peace with that in your heart?" And I, you
        know, I said, "yeah, I guess," or whatever. And I said,
        "Now, do I have some time?       Do I have six months to
        change my mind?" And she said, "No."

        A review of the record reveals that substantial evidence

supports the District Court's findings and conclusions that T.M.'s

relinquishment of parental rights was voluntary and not the result

of duress, coercion, or undue influence.


                                    13
         In conclusion, we note that the adoption statutes set forth
procedures to be followed in an adoption and provide safeguards for
both the natural parents, the child,                      and the adoptive parents.
While the natural parent's reconsideration is understandable, this
case exemplifies the limits placed upon a natural parent's ability
to revoke a voluntarily signed relinquishment--a safeguard for the
adoptive parents and the child.                        Simply put,     a     relinquishment
cannot be revoked          merely   because the natural parent changes his or
her   mind.     As one court noted: "The certainty which is so important
to   the   security   of the children and the peace of mind of those who
want to adopt them justifies the barrier the statute erects to a
revocation of consent."             Matter ofNavaho    Ciy. Juvenile Action (Ariz Ct. App .

1991),      831 P.Zd 368, 373.

         For these reasons, we conclude that T.M. signed the parental
relinquishment          voluntarily,      and we affirm the District Court's
order and judgment.
                                           ISSUE 2
       Did the Court err when it terminated T.M.'s parental rights?
       T.M.      contends     that      her parental          rights       were   illegally
terminated by the District Court on February 15, 1995, because she
was not given an opportunity to appear before the court at a
hearing to terminate her rights.                      T.M. neither raised this issue
below nor appealed from the February 15, 1995, order terminating
parental      rights.       It is well settled that we will not consider
issues raised for the first              time   on appeal.     Fandrich v. Capital Ford Lincoln


                                                14
Mercury (1995),     272 Mont.    425, 431, 901 P.2d 112, 116; Hislopv. Cady

(19931, 261 Mont. 243,          250,   862 P.2d 388, 392; We'eaverv. LawFirmof

Graybill (lPPO),   2 4 6 Mont. 175, 180, 803 P.2d 1089, 1092-93. We also

will not review orders           from which no appeal has been taken.

Rule 4, M.R.App.P.        We will therefore not consider this issue.

      For these reasons we affirm the District Court's order and
judgment.




We concur:




       Justices




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