Quets v. Needham

• Decision Date: 21 July 2009
• Docket Number: No. COA08-857.,COA08-857.
• Citation: 682 S.E.2d 214
• Court: North Carolina Court of Appeals
• Parties: Allison QUETS, Plaintiff, v. Kevin NEEDHAM & Denise Needham, Defendants.

682 S.E.2d 214

Allison QUETS, Plaintiff, v. Kevin NEEDHAM & Denise Needham, Defendants.

No. COA08-857.

Court of Appeals of North Carolina.

July 21, 2009.

Appeal by plaintiff from orders entered on or about 22 January 2008, 19 March 2008 and 21 April 2008 by Judge Anne Salisbury in Wake County District Court. Heard in the Court of Appeals 26 March 2009.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, Raleigh, for plaintiff-appellant.

Sandlin & Davidian, P.A., by Deborah Sandlin and Debra A. Griffiths, Raleigh, for defendant-appellees.

STROUD, Judge.

Plaintiff appeals from the order dismissing her claims and the orders imposing sanctions pursuant to Rule 11 of the North Carolina Rules of Civil Procedure. Plaintiff presents four questions for this Court's consideration: (1) whether a failed challenge to a consent to adoption in another State based on fraud operates as res judicata to bar a similar challenge in this State, (2) whether a private agreement for postadoption communication and visitation entered into in another State may be enforced in this State, (3) whether a birth parent who has consented to the adoption of her children has standing to sue for custody of or visitation with the subsequently adopted children, and (4) whether those three claims were so groundless in law and in fact that Rule 11 sanctions against plaintiff were appropriate. For the following reasons, we affirm as to all claims for relief in plaintiff's complaint, but reverse as to the Rule 11 sanctions.

I. Background

In November 2004, plaintiff became pregnant with twins by means of in vitro fertilization using donor eggs and donor sperms. While still pregnant, plaintiff began to consider placing the twins for adoption. Plaintiff gave birth to twins Hannah and Tom¹ ("the children") in Orange County, Florida, on 6 July 2005.

On or about 18 July 2005, plaintiff began discussing adoption of the children with defendants, relatives of plaintiff's boyfriend. Plaintiff insisted that she continue to have contact with the children as a condition of giving them up for adoption. Around the end of July 2005, defendants hired Michael A. Shorstein, of Shorstein & Kelly, Attorneys at Law, P.A., to represent them in the adoption proceedings.

On 13 August 2005, plaintiff signed an Open Adoption Agreement ("the OAA"), which was signed by defendants on 16 August 2005. In the OAA, "[t]he parties agree[d] that the Birth Mother [should] have six visits per year with the Children" and agreed to various forms of communication and sharing of information regarding the children. The OAA also contained a provision that

the Birth Mother and the Adoptive Parents consent that this Agreement is binding upon them and will be referenced in the Final Judgment of Adoption and the parties will comply with the terms and conditions thereof.

(a) After the Final Judgment of Adoption is entered by the Court, the adoption cannot be set aside due to the failure of the Adoptive Parents, the Birth Mother or the Children to follow the terms of the agreement or a later change to this agreement.

(b) A disagreement between the parties or litigation brought to enforce or modify this agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the Children.

Furthermore, "[t]he Parties agree[d] that all issues relating to this Agreement shall be within the exclusive and sole jurisdiction and venue of the Circuit Court, Fourth Judicial Circuit, In and For Duval County, Florida."

On 16 August 2006, plaintiff executed a Consent to Adoption before a notary public which stated, in pertinent part:

[1.] I, ALLISON QUETS, do hereby permanently relinquish, of my own free will all rights to and custody of the children to Michael A. Shorstein, Esquire, Shorstein & Kelly, Attorneys at Law, P.A., referred to sometimes hereafter as the "Adoption Entity[,]" for subsequent adoptive placement and do consent to the entry of a Court Order terminating my parental rights and finalizing the adoption. I believe it is in the best interest of the children to release them to the Adoption Entity for subsequent adoption. I understand that in signing this consent, I am permanently and forever giving up all of my parental rights to, and interest in, the children.

. . . .

[2.] I acknowledge my intent to place said children with the prospective adoptive parents immediately upon the execution of this document.

[3.] I hereby waive notice of any and all hearings and proceedings for this adoption and the Termination of my Parental Rights. ...

[4.] ... I have carefully reviewed this Consent and that [T]his Consent is executed freely and voluntarily, is not given under fraud or duress and is done so by the undersigned without requiring the complete identification of the adoptive parents.

[5.] This consent is subject to the Open Adoption Agreement Between the Birth Mother, Allison Quets and Adoptive Parents, Kevin and Denise Needham, executed by the birth mother on August 13, 2005, and the adoptive parents on August 16, 2005.

(Internal brackets in original omitted.)

On 19 August 2005, three days after executing the Consent to Adoption, plaintiff filed a Motion for Revocation of Consent in the Circuit Court, Fourth Judicial Circuit, In and For Duval County, Florida ("Duval County Family Court"). The motion requested that plaintiff be allowed to revoke her consent and have the minor children returned to her

on the grounds that she has given written notice of the revocation within three (3) days of signing it; the Birth Mother was under extreme duress and mental anguish at the time and incapable of giving a knowing and voluntary consent; and the Birth Mother was given the impression from the conversations with persons involved herein, taken as a whole, that her rights under the open adoption agreement could never be modified or terminated.

(Emphasis in original).

Shorstein & Kelly filed a petition to terminate plaintiff's parental rights on 25 August 2005. On or about 9 September 2005, plaintiff filed Birthmother's [sic] Verified Motion to Set Aside Consent to Adoption ("the verified motion") in Duval County Family Court. The verified motion averred duress as grounds for setting aside the Consent to Adoption and included detailed factual allegations regarding plaintiff's fragile physical condition after the twins' birth and defendants' kinship to plaintiff's sixty-seven year-old boyfriend. On or about 16 February 2006, plaintiff filed Birth Mother's Second Amended Motion to Set Aside Consent to Adoption ("the amended motion"). In addition to duress, the amended motion averred that plaintiff's Consent to Adoption was void because of defendants' fraud in procuring the OAA.

The petition to terminate plaintiff's parental rights and plaintiff's motions to set aside consent were consolidated for trial in Duval County Family Court. On 29 June 2006, after a nine-day trial, the trial court entered a twenty-six page order ("the termination order"). The termination order made detailed findings of fact and concluded (1) "by clear and convincing evidence that Quets was not under any duress[,]" (2) "[a] complete lack of evidence exist[ed] that fraud occurred as it relate[d] to the validity of Quets's consent[,]" and (3) "[a]ll the elements [of the relevant Florida statutes for consent to adoption] ha[d] been met[.]" Accordingly, the trial court denied plaintiff's motion to withdraw her Consent to Adoption and granted the petition to terminate plaintiff's parental rights. The trial court "ordered and adjudged" that it "retain[ed] jurisdiction over the subject matter and over the minor children until a final judgment [was] entered on the adoption."

Plaintiff timely appealed the termination order to the Florida First District Court of Appeal. On 13 July 2006, plaintiff moved to suspend the termination of her parental rights and secure visitation rights during the pendency of the appeal. On 19 July 2006, the Duval County Family Court found that "[t]he parties have always intended for Quets to have some involvement in the children's lives as evidenced by the Open Adoption Agreement and to continue to do so will benefit the children. ..." Accordingly, the trial court granted plaintiff visitation rights

every third weekend ... in the vicinity of the Needham's North Carolina home, from 6:00 p.m. on Friday until 6:00 p.m. Sunday evening; this visitation schedule shall remain in effect until the appeal process is complete or upon further order of this Court. Except as otherwise agreed to by the Needhams, the children shall not be removed from the general vicinity of the Needham's home.

On Friday, 22 December 2006, the children visited plaintiff as provided in the 19 July 2006 order. However, rather than return the children to defendants as scheduled on Sunday, 24 December 2006, plaintiff left the United States with the children.

On or about 27 December 2006, defendants filed a motion in Duval County Family Court requesting that (1) plaintiff's visitation rights to the children be terminated, (2) plaintiff be ordered to return the children immediately, (3) and plaintiff be adjudicated in contempt for violating the temporary visitation order of 19 July 2006. Defendants' motion was granted on 27 December 2006 and plaintiff was ordered to show cause why she should not be held in contempt.

Plaintiff and the children were located in Canada on 29 December 2006. Defendants flew to Canada and brought the children back to their home in North Carolina. Plaintiff was arrested and charged with kidnaping the children. Plaintiff subsequently pled guilty, was fined and placed on probation.

On or about 3 January 2007, defendants moved to dismiss plaintiff's appeal of the termination order on the grounds that a fugitive from justice is not entitled to seek relief from an appellate court. On 9 January 2007, plaintiff filed a brief with the Florida First District...