Navajo County Juvenile Action No. JA-691, Matter of

• Decision Date: 12 November 1991
• Docket Number: JA-691,No. 1,CA-JV,1
• Citation: 831 P.2d 368,171 Ariz. 369
• Parties: In the Matter of the Appeal in NAVAJO COUNTY JUVENILE ACTION NO.90-035.
• Court: Arizona Court of Appeals

Page 368

831 P.2d 368

171 Ariz. 369

In the Matter of the Appeal in NAVAJO COUNTY JUVENILE ACTION NO. JA-691.

No. 1 CA-JV 90-035.

Court of Appeals of Arizona Division 1, Department C.

Nov. 12, 1991.

Grant of Review Vacated,

Review Denied June 18, 1992. ^*

[171 Ariz. 370] Davis & Martin by David J. Martin, Show Low, for appellant.

Dale K. Patton, Jr., Winslow, for appellee.

Fennemore Craig, P.C. by C. Webb Crockett, Phoenix, for intervenor LDS Social Services.

OPINION

KLEINSCHMIDT, Judge.

This is an appeal from the trial court's denial of a petition to set aside an order for the adoption of three children. We affirm the order of the trial court. The facts and the history of the case are as follows.

The appellant is the natural mother of three children whose adoption is the subject of this case. In June of 1986, she and the children's father separated, and the children lived with her. The father provided no financial support, and the appellant, who worked as a waitress, had serious problems earning a living and caring for the children at the same time.

In the fall of 1986, the appellant and the children were facing eviction from their apartment. The appellant arranged to stay with friends, and for several days, the children lived with a woman who cared for foster children. When this woman proved unequal to the task, the appellant contacted the Arizona Department of Economic Security, which placed the two older children in the Mesa Crisis Center. Shortly thereafter, the appellant agreed with DES that the two children could be placed in foster care for ninety days.

As the end of the ninety days of foster care neared, the appellant requested DES to extend the children's foster care beyond that time. This would have required the state to file dependency proceedings. When the DES case worker told the appellant that the state had no grounds to file dependency proceedings, the appellant told him that she was considering giving the children up for adoption.

In January 1987, an arrangement was made for the two oldest children to live with one of their uncles and his family and for the youngest child to live with another uncle and his family. While these arrangements were being made, the appellant revealed that she had explored the possibility of allowing a couple she was acquainted with to adopt the youngest child under an arrangement which would allow the appellant to visit her periodically. This did not work out, and in subsequent conversations with the DES case worker and family members, the appellant said that she planned to give the children up for adoption.

In late January 1987, the appellant met with Larry Draughon, an employee of LDS Social Services. She told Draughon that she wanted to place the three children for adoption. She also contacted the father of the children, and he executed relinquishments of his parental rights.

On February 9, 1987, the appellant, accompanied by her sister-in-law, went to the LDS Social Services office to sign adoption papers. Draughon told her that it would be better if the children stayed in the prospective adoptive home on a foster care basis before a final decision was made. The next day, the appellant executed foster care papers, and all three children were placed with a single prospective adoptive family.

On March 24, 1987, the appellant, accompanied by another of her children, a teenage daughter, went to LDS Social Services to sign the papers relinquishing her right to the three children. In the preceding six weeks that the children had been with the foster family, the appellant had little contact with LDS Social Services and never indicated that she did not want the children adopted.

In her brief, the appellant asserts that she signed the adoption papers because she believed that if she did not, foster care would be terminated. She testified that she went to the LDS Social Services office in response to an insistent phone call that she come in and sign some papers. She testified that since the foster care agreement was terminable, she thought that LDS Social Services was going to treat her just as the state had treated her earlier and insist that she make other arrangements for the care of the children. Under these circumstances, which she asserts amount to duress, she agreed to give up the children.

The LDS Social Services worker, Larry Draughon, testified that he did not call the appellant on March 24 and insist that she come in and sign the papers. He denied that he put any pressure on the appellant or did anything to lead her to believe that if she did not agree to the adoption, foster care for the children would be terminated. He read the papers to the appellant. They included a clause which said:

I am signing this consent to give my permission for LDS Social Services to place this child for adoption.... and that by signing this consent I will be giving up all my rights to this child, including the right to custody, care, control and visitation.... I understand this consent is irrevocable and that I cannot change my mind.

According to Draughon, the appellant was emotionally upset, but she acknowledged that she understood the documents and was signing them of her own free will. A petition to adopt the children was filed in late August 1987.

Sometime after she signed the papers, the appellant decided that she had made a mistake. According to her testimony, she took no action until September 1987 because she thought any attempt to regain the children would be fruitless, and because she could not pay for legal services. She encountered some resistance from LDS Social Services in getting copies of what she had signed, but by letter of September 21, 1987, Draughon did send copies to her, and he referred any further questions she might have to the agency's attorney. The appellant wrote to the agency's attorney on September 25, asking that further proceedings with respect to the adoptions be stopped and that further communication be initiated. The attorney did not respond to this letter.

By the time the appellant made known that she was having second thoughts, the petition for adoption had been filed. A hearing on the petition was set for February 23, 1988. At that hearing, no one told the judge that the appellant had changed her mind and did not want to relinquish the children. The court granted the petition for adoption. Thereafter, the appellant filed her "Petition to Set Aside the Consent to Adopt," which is the subject of this appeal.

The trial court held a hearing on the petition, after which it denied the petition and made the following findings.

This matter having been under advisement, this Court concludes:

1. The party seeking to set aside an adoption must prove by clear and convincing evidence the grounds to do so, in this case that her consent was obtained by fraud, duress or undue influence.

2. In the instant case, none of the actions of LDS Social Services or Tony Draughon, a representative of LDS Social Services, were of such nature as to cause duress of [the mother] in the legal sense, nor was fraud or undue influence shown.

3. Taking the evidence and testimony in the light most favorable to [the mother], there was simply a chain of circumstances leading to the relinquishment of her parental rights. None of these circumstances taken individually or collectively are sufficient to rise to the level of the necessary degree of proof produced by [the mother]. In fact, the cases cited by counsel for the State cover every circumstance argued by [the mother], to be in the nature of duress and, in fact, each case cited falls squarely within the factual nature of the instant case.

4. Cases of this nature are the most difficult of all for the Court, for the attorneys, and particularly for the parents, both natural and adoptive. Because of this, the Court adopts the tenet of law that the best interest of the children must be a consideration. While there is some case law in Arizona regarding the Court considering the best interest (welfare) of the children in reaching a decision, this has not been the measure in cases of this nature. In this case, based upon the Court's familiarity with the facts of the adoption, the circumstances of the present home of the children, the length of time passed since the relinquishment, and the circumstances of the natural parents, it is the specific finding by this Court that it is in the best interest of the children and their welfare that the relinquishment and adoption not be set aside, and further, that the relinquishment was not obtained by fraud, duress or undue influence.

DURESS

Under Arizona law, the grounds for setting aside a consent to adopt are very restricted. Arizona Revised Statutes § 8-106(E) provides: "A consent to adopt is irrevocable unless obtained by fraud, duress, or undue influence."

The appellant argues that she consented to the adoption under duress. Duress sufficient to set aside the consent to adoption would require proof of:

[a] wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or ... any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.

Anonymous v. Anonymous, 23 Ariz.App. 50, 51-52, 530 P.2d 896 (1975) (quoting Lundvall v. Hughes, 49 Ariz. 264, 267, 65 P.2d 1377, 1378 (1937)).

In arguing that she acted under duress, the appellant points to her testimony that she was upset at the time she signed the papers and believed that if she did not agree to the adoption, foster care for her children would terminate. There are two problems with the appellant's position. First, to the degree that the duress rests on the appellant's subjective belief that somehow her children were...