                                         No. 05-328

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 59




IN THE MATTER OF THE

ADOPTION OF A.L.O.,

         A Minor Child.




APPEAL FROM:          The District Court of the Fourth Judicial District,
                      In and For the County Missoula, Cause No. DA 2004-40,
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellants:

                      Darcy M. Crum, Rebeck & Crum, Great Falls, Montana

               For Respondent:

                      Linda Osorio St. Peter, St. Peter & Warren, Missoula, Montana



                                                       Submitted on Briefs: February 14, 2006

                                                                  Decided: March 21, 2006

Filed:


                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Shortly after the birth of their daughter, A.L.O., T.F. (Mother) and R.O. (Father)

relinquished their parental rights, allowing Jennifer and Branch Martin to adopt her.

More than thirty days after the Fourth Judicial District Court, Missoula County,

terminated Mother’s parental rights, Mother filed a motion to set aside the adoption

because contrary to requirements of § 42-2-405(2), MCA, she was a minor without legal

representation at the time she signed the relinquishment papers. The District Court

declared the adoption decree null and void and ordered the return of A.L.O. to Mother.

The Martins appeal the District Court’s order. Because we hold in favor of Mother, we

decline to address her cross-appeal.

¶2     We restate the issue as follows: Did the District Court properly set aside the

termination of parental rights and void the decree of adoption?

                                       BACKGROUND

¶3     A.L.O. was born to Mother and Father on July 26, 2004. At the time, Mother was

sixteen years old. Although unmarried, Mother and Father, who had been dating for over

a year, initially intended to raise A.L.O. After three weeks, however, the couple decided

they could not handle the responsibility. Father approached his sister, Jennifer Martin,

and asked her if she and her husband, Branch, would be interested in adopting A.L.O.

The Martins, who were five months pregnant with their own child at the time, agreed.

Mother and Father entered a “guardianship agreement” with the Martins, who then

proceeded with adopting A.L.O., taking custody of her in August 2004. The District

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Court signed an order on November 4, 2004, terminating Mother’s and Father’s parental

rights.

¶4        Throughout the relinquishment and adoption processes, Mother represented her

age as over eighteen. On all documents to effectuate the adoption, Mother signed her

birth date as June 29, 1986. All parties to the proceedings apparently believed this

representation, including Father, the Martins, counselors and doctors. In fact, Mother

was born in 1987, which means at the time she received counseling and signed papers

relinquishing her parental rights, Mother was only seventeen years old. Section 42-2-

405(2), MCA, requires that minors relinquishing parental rights in direct parental

placement adoption must have legal counsel throughout proceedings. In violation of this

statutory provision, Mother did not have such counsel. The Martins, on the other hand,

had a lawyer throughout.

¶5        On December 23, 2004—over thirty days after termination—Mother filed a

motion to set aside the adoption. Mother asserted that since she was under eighteen years

of age and not represented by legal counsel at the time she signed the relinquishment

paperwork, the court’s order of termination was void.

¶6        Mother noted that while she incorrectly stated her age on documents to effectuate

the adoption, she accurately reported her birth year as 1987 on the certified paternity

acknowledgment and to her Ob/Gyn. Mother testified that she misstated her age at times

because she did not want Father to “dump” her. Mother believed she had nothing to gain

in the adoption proceedings by misrepresenting her age on certain documents; she further

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testified that she proceeded with the adoption based on her understanding that it would

not be final for six months. Mother also claimed that she suffered from postpartum

depression when she received counseling to give up her daughter and felt pressured by

the Martins to relinquish her parental rights.

¶7     The Martins countered that Mother signed document after document indicating

that she had read all the necessary paperwork and understood that relinquishing her

parental rights was irrevocable. The Martins further noted that M.L. Knapp, a case

worker with the Lutheran Social Services (who provided services through a contract with

the Martins), had no documentation of Mother’s claims of depression or having second

thoughts about relinquishing her parental rights.

¶8     On February 28, 2005, the District Court declared the adoption decree null and

void and ordered the return of A.L.O. to her Mother. 1 The Martins appeal.

                                 STANDARD OF REVIEW

¶9     We review a district court’s conclusions of law to determine whether those

conclusions are correct.        Because the termination of parental rights involves a

fundamental liberty interest, a decree which purports to terminate such rights must be

supported by clear and convincing evidence. “Clear and convincing evidence” in the

context of a parental rights termination case exists where the evidence is definite, clear,

and convincing, or a particular issue is clearly established by a preponderance of




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           Father’s parental rights remain terminated.
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evidence or by clear preponderance of the proof. Adoption of C.R.N., 1999 MT 92, ¶ 7,

294 Mont. 202, ¶ 7, 979 P.2d 210, ¶ 7.

                                    DISCUSSION

¶10    Did the District Court properly set aside the termination of parental rights

and order as void the decree of adoption?

¶11    Section 42-2-405(2), MCA, instructs that “[i]n a direct parental placement

adoption, a relinquishment and consent to adopt executed by a parent who is a minor is

not valid unless the minor parent has been advised by an attorney who does not represent

the prospective adoptive parent.” (Emphasis added.) In addition, the legal fees “are an

allowable expense that may be paid by prospective adoptive parents . . . .” Section 42-2-

405(2), MCA.      The Martins acknowledge that they knew of the above statutory

requirement, but did not provide Mother a lawyer because Mother led them to believe she

was of legal age. Mother testified that she did not know that as a minor she should have

had an attorney; she also did not know that the Martins would have paid for her legal

representation.

¶12    The Martins set forth several theories for why this Court should reverse the

District Court’s order and return A.L.O. to their care, including equitable estoppel,

judicial estoppel, and failure to file a timely appeal under Rule 5(a)(1), M.R.App.P. In

light of § 42-2-405(2), MCA, these arguments are unpersuasive. Section 42-2-405(2),

MCA, exists to protect minor parents from making legally binding direct parental

placement adoptions without counsel’s advice and representation. Mother testified that

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she had difficulty understanding the paperwork related to the adoption, as it all looked the

same to her. Mother also claims that Jennifer Martin and A.L.O.’s grandmother (Jennifer

and Father’s mother), called Mother once a day to encourage her to sign the papers,

promising Mother that she would be able to visit with A.L.O. whenever she desired;

Mother testified that she would not have given her daughter up for adoption if she had

known that she would not be allowed to see A.L.O. any time she wanted. The foregoing

demonstrates the importance of § 42-2-405(2), MCA—that is, the statute protects minors

from making uninformed legal decisions. We hold that the District Court correctly

concluded that it had no authority to order relinquishment of Mother’s parental rights

when she had no legal representation as mandated by § 42-2-405(2), MCA.

¶13    As a final note, the Martins argue that returning A.L.O. to the Martins serves the

child’s best interest, as A.L.O. has “a right to permanence and stability in adoptive

placements.” Section 42-1-108(d), MCA. Given that the court ordered A.L.O.’s return

to Mother’s custody over a year ago in February 2005, this argument fails.

¶14    Affirmed.


                                          /S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE




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