In the Matter of the Welfare of the Children of: J.L.H., C.S.H. and P.K., Parents.

In the Matter of the Welfare of the Children of: J.L.H., C.S.H. and P.K., Parents. A05-1402, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1402

 

In the Matter of the Welfare of the Children of:

J.L.H., C.S.H. and P.K., Parents

 

Filed December 20, 2005

Affirmed Hudson, Judge

 

Isanti County District Court

File No. 30-J5-04-050352

 

Jeffrey Edblad, Isanti County Attorney, Amy J. Reed-Hall, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, Minnesota 55008 (for respondent county)

 

Mary Pfeiffer, P.O. Box 305, Anoka, Minnesota 55303 (guardian ad litem)

 

Sherri D. Hawley, Jessica J.W. Maher, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, Minnesota 55402 (for appellant mother J.L.H.)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal in this termination-of-parental-rights proceeding, appellant-mother argues that (a) she had an unconditional right to withdraw her petition for voluntary termination during the period between the district court's acceptance of the petition and issuance of an order terminating parental rights; and (b) the district court erred in denying her motion for a hearing because she established a prima facie case that her consent to the voluntary termination was the result of duress and undue influence.  Because appellant failed to make a prima facie case of duress or undue influence sufficient to warrant an evidentiary hearing, we affirm. 

FACTS

            On March 25, 2004, Isanti County Family Services filed an ex parte motion seeking emergency protective care of appellant's four minor daughters.  At the time of the emergency motion, the eldest daughter was six years old.  The district court issued an emergency protective order, placing the children out of home and in the custody of the county.  The district court adjudicated the children to be in need of protection or services and, in September 2004, the county filed a petition to terminate appellant's parental rights. 

            On March 29, 2005, the morning of appellant's termination trial, appellant requested that the county withdraw its involuntary-termination petition and accept appellant's petition to voluntarily terminate her parental rights.  Appellant's voluntary petition contained a good-cause provision acknowledging that appellant was not capable of parenting her children on a full-time basis and stating that appellant believed that termination of her parental rights was in her children's best interests.  When questioned by her attorney, appellant testified that: (a) she understood the legal consequences of her petition; (b) it was in her children's best interests to have a stable home; and (c) she made the decision to voluntarily terminate her parental rights freely and without the influence of illegal substances.  When examined by the court, appellant testified that no person had made any threats or promises to her in order to induce her to file her voluntary petition.  The district court accepted appellant's petition and denied appellant's request for a stay of adjudication.  Concluding that the children needed finality, the district court, from the bench, directed the county to prepare an order terminating appellant's parental rights.

            On March 30, 2005, at approximately 11:30 a.m., appellant left an ex parte voice message on the district court judge's telephone.  In her message, appellant stated that she was under "emotional stress" and did not want to voluntarily terminate her rights, but her attorney and the guardian ad litem "pressured" her into signing her voluntary termination petition.  According to appellant, her attorney and the guardian ad litem "convinced me that there was no way I'd win in court.  They threw a lot of things over my face, basically scared me into signing this paper."  Appellant stated that her attorney and the guardian ad litem told her the county would separate her children if she did not sign the petition.  Appellant asked the district court judge to revoke the termination and let the matter continue for trial on the county's petition for termination. 

            On March 31, 2005, appellant's attorney filed a motion requesting that the district court (a) withdraw its acceptance of appellant's voluntary termination petition; (b) revoke any prior orders accepting appellant's voluntary-termination petition; and (c) hold an evidentiary hearing on the issue of terminating appellant's parental rights.  Appellant's attorney was unable to meet with appellant prior to preparing the motion and therefore could not attach an affidavit from appellant.  Appellant's attorney attached a transcript of appellant's ex parte phone message in support of the motion.  The county filed a responsive motion shortly thereafter requesting that the district court deny the relief sought in appellant's motion. 

On May 9, 2005, appellant filed a responsive motion requesting an evidentiary hearing "regarding her request to vacate the Court's Order accepting her voluntary petition to terminate her parental rights."  Attached to the motion was an affidavit from appellant stating that she was "distressed" the morning of the hearing, had not slept for several days prior to the hearing, and had engaged in a significant argument with her mother the evening before the hearing.  The affidavit further stated that appellant was extremely anxious, depressed, and unable to understand all of the questions due to her medication.  According to appellant, "Because of the unusual amount of stress, anxiety, lack of sleep, new medication, new attorney, new judge etc[,] I believe that I behaved outside the scope of my normal demeanor." 

By order dated June 13, 2005, the district court denied appellant's motion to vacate the order accepting her voluntary termination of parental rights, reasoning that appellant had not made the requisite showing of fraud, duress, or undue influence necessary to set aside an order terminating parental rights.  The district court issued an order outlining its findings in support of termination that same day.  This appeal follows.

D E C I S I O N

I

Appellant argues that the district court erred by refusing to allow her to withdraw her petition to voluntarily terminate her parental rights after the district court accepted her petition for voluntary termination.  To the extent that a district court's decision to allow a parent to withdraw her consent to termination of parental rights implicates issues of statutory construction it is a question of law.  See Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985); see also In re Welfare of A.M.P., 507 N.W.2d 616, 61819 (Minn. App. 1993) (reviewing that district court's refusal to allow withdrawal of consent to voluntary termination de novo where question involved construing voluntary-termination statute and consensual-adoption statute). 

            A parent may voluntarily terminate parental rights upon a showing of good cause to terminate and that termination is in the best interests of the child.  Minn. Stat. § 260C.301, subd. 1(a) (2004); Minn. R. Juv. Prot. P. 43.04.  Upon receipt of a petition for voluntary termination, the district court conducts a hearing to advise the parent of her rights to trial and representation, and determines whether the parent "fully understands the consequences of termination of parental rights and the alternatives to termination."  Minn. R. Juv. Prot. P. 43.04.  If the district court determines that the parent has complied with the statutory requirements for voluntary termination and that the parent understands her rights as well as the consequences of termination, the district court accepts her petition.  Following acceptance of the petition, the district court must yet determine if voluntary termination of parental rights is in the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (Minn. 2004).  If the district court finds that termination is in the child's best interests, the district court orders termination of parental rights. 

            Appellant argues that she had an unconditional right to withdraw her petition because, although the district court had accepted her petition, the district court had not yet ordered termination when she moved for relief from her petition.  Appellant cites A.M.P., 507 N.W.2d 616, in support of her argument, stating that A.M.P. requires both acceptance of the petition and an order terminating parental rights before the district court may place any restrictions on appellant's right to withdraw her consent to termination. 

In A.M.P., this court distinguished between a proceeding for voluntary termination of parental rights under Minn. Stat. § 260.221, subd. 1(a) (1992),[1] and a consensual adoption under Minn. Stat. § 259.24 (1992).  Id. at 61920.  The father in that case attached a document to the county's petition for termination of his parental rights entitled "Consent of Father to Termination of Parental Rights and Consent to Adoption."  Id. at 618.  Father asked leave to withdraw his consent to termination at the hearing to terminate parental rights, before the district court accepted the petition.  Id.  A.M.P.'s prospective adoptive parents argued that father's consent to termination and to adoption had become irrevocable because father failed to seek withdrawal within the ten-day statutory period for withdrawal provided in the consent-to-adoption statutes.  Id.  This court held that father consented to voluntary termination of parental rightsnot to adoptionand therefore, the ten-day withdrawal window did not apply.  Id. at 619.  This court then stated, "Unlike section 259.24, the statute on termination of parental rights does not preclude a parent from revoking a voluntary consent to termination for any reason before the court has accepted the consent and ordered termination."  Id. at 620.   

            We are not confident that A.M.P. creates an absolute, unconditional right to withdraw a petition for voluntary termination until the district court issues an order regarding termination.  While the language from A.M.P. that is quoted above seems to support appellant's position, A.M.P. did not address how to withdraw consent under the termination statutes.  Rather, the A.M.P. court outlined the distinctions between the adoption and termination statutes.  Furthermore, the district court had not accepted father's petition when father moved to withdraw.  Accordingly, we cannot say that the A.M.P. court contemplated withdrawal following acceptance of the petition but prior to issuance of an order.

The statutes governing termination of parental rights do not discuss the standards for withdrawal of a voluntary termination petition and, therefore, do not preclude withdrawal following acceptance of the petition.  But considerations outside the termination statutes may impose limitations on a parent's ability to withdraw her consent.  The child's best interests are the overriding concern in termination proceedings.  Minn. Stat. § 260C.301, subd. 7 (2004); see, e.g., In re Welfare of J.R., Jr., 655 N.W.2d 1, 56 (Minn. 2003).  Thus, the best interests of appellant's children must be a factor in the district court's decision to permit withdrawal.[2]  And, as the supreme court has noted, "[a]t some point permanence for the child and adoptive parents becomes more important than the natural parent's right to reconsider her decision."  In re Welfare of K.T., 327 N.W.2d 13, 18 (Minn. 1982) (requiring a showing of fraud, duress, or undue influence to set aside a termination order based upon the voluntary, informed consent of the parent).   

            In addition, any precedential value of A.M.P. is lessened by subsequent amendments to the requirements for voluntary termination of parental rights.  When A.M.P. was decided, a petitioner for voluntary termination had to show voluntary consent in writing and good cause for termination.  Minn. Stat. § 260.221, subd. 1(a) (1992); see Welfare of K.T., 327 N.W.2d at 16 (describing the necessary showing for voluntary termination).  In 2000, the supreme court promulgated an additional rule of juvenile procedure specifically addressing voluntary termination of parental rights.  Minn. R. Juv. P. 78.04.  Now codified at Minn. R. Juv. Prot. P. 43.04, this rule requires the parent to make an additional showing that termination is in the best interests of the child.  Given that a parent must now attest that termination is in the child's best interests before a district court accepts her petition, even if A.M.P. could have been read to allow an unrestricted right to withdraw, that reading lacks current applicability.

            Finally, once the district court has accepted the voluntary petition for termination, the petition provides part of the factual basis on which the district court draws in determining whether termination is in the child's best interests.  Since A.M.P., the supreme court has imposed restrictions on withdrawal of stipulations in other family-law proceedings.  Because stipulations simplify and expedite dissolution litigation, they are "accorded the sanctity of binding contracts."  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  A party cannot unilaterally withdraw from a stipulation unless "by leave of the court for cause shown."  Id. at 52122; see also Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000) (rejecting husband's argument that a dissolution stipulation does not become binding until incorporated into the judgment).  Although stipulations do not implicate the fundamental parent-child relationship of termination proceedings, reasoning by analogy, Shirk and its progeny suggest that some restrictions on withdrawal after acceptance of the petition are appropriate.

            We decline to address what structural limitations, if any, are placed on a parent seeking to withdraw her petition for voluntary termination prior to issuance of an order, however, because, contrary to appellant's assertion, we can only conclude from this record that the district court ordered termination of appellant's parental rights from the bench when it accepted appellant's petition and directed the county attorney to prepare the order terminating appellant's parental rights.  Minn. R. Juv. Prot. P. 10.01 permits the district court to issue an order on the record from the bench and later reduce that order to writing.  Rule 10.02 states that an order stated on the record is effective immediately.  The record reflects that after the district court accepted appellant's petition for voluntary termination, the district court denied appellant's request for a stay of adjudication stating that "both as a legal matter and . . . because of the timelines . . . that we're facing here and as a practical matter for the children's best interests, I'm not going to delay this."  The district court then iterated that the children need finality, accepted appellant's petition, and instructed the county attorney to draft the "appropriate order" pursuant to appellant's petition.  Accordingly, the record reflects that the district court ordered termination from the bench and then sought the county attorney's assistance in reducing that order to writing.[3] 

II

Appellant also challenges the district court's denial of her motion to vacate the termination order, arguing that she was entitled to an evidentiary hearing to demonstrate that her consent to termination was not voluntary.  Upon review of an order terminating parental rights, the appellate court determines whether the district court's findings address the statutory criteria, are supported by substantial evidence, and whether they are clearly erroneous.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  

A parent who has consented to termination of her parental rights "cannot have the order set aside simply because she has changed her mind or her circumstances have otherwise changed."  In re Welfare of K.T., 327 N.W.2d 13, 18 (Minn. 1982).  Rather, the parent must demonstrate a "serious and compelling reason" for withdrawal of consent.  Id.  An order granting the termination of a parent's parental rights "can only be set aside upon a showing of fraud, duress, or undue influence."  Id.  A parent seeking to set aside an order terminating parental rights must "allege facts sufficient to show duress, undue influence, or fraud before a full evidentiary hearing will be held."  In re Welfare of N.M.C., 447 N.W.2d 14, 17 (Minn. App. 1989).  "Undue influence" means "coercion, amounting to a destruction of one's free will, by means of importunities, flatteries, insinuations, suggestions, arguments, or any artifice not amounting to duress."  Id. at 16 (quotation omitted).  "Duress" is defined as "coercion by means of physical force or unlawful threats which destroys the victim's free will and compels him to comply with some demand of the party exerting the coercion."  Id. (quotation omitted). 

Appellant argues that her phone call and affidavit allege sufficient facts showing that her consent was the product of undue influence and duress to warrant an evidentiary hearing.  We disagree.  Conclusory allegations, without supporting facts, are insufficient to establish a prima facie case of duress or undue influence.  See id. (affirming district court's decision to dismiss, without an evidentiary hearing, a parent's petition to set aside termination of parental rights when the petition included the words "duress" and "undue influence").  Appellant provides no specific evidence of physical force, unlawful threats, or coercion, stating only that she felt threatened when her attorney offered an assessment of appellant's case.  Furthermore, each of appellant's message and affidavit statements is contradicted by her testimony, when appellant expressly stated that she made her decision to terminate her rights voluntarily and without inducement or threat.  Appellant's allegations of depression and confusion do not demonstrate a prima facie case of undue influence or duress, and, therefore, appellant was not entitled to an evidentiary hearing.

            Affirmed.

[1] Minn. Stat. § 260.221 was repealed in 1999 Minn. Laws ch. 139, art. 4, § 3, at 692, but the substance remained the same as part of Minn. Stat. § 260C.301, subd. 1.  1999 Minn. Laws ch. 139, art. 3, § 29, at 678.

[2] The requirement that the district court consider the child's best interests also undercuts a reading of A.M.P. suggesting that the statutes allow withdrawal for "any reason."  In re Welfare of A.M.P., 507 N.W.2d 616, 620 (Minn. App. 1993).  We cannot say that appellant is allowed to withdraw her accepted petition for an entirely arbitrary reason.

[3] We note that appellant's own motion to withdraw her consent requests that the district court revoke its "order" for termination, suggesting that appellant believed the district court ordered termination of parental rights from the bench at the March 29, 2005 hearing.