Neketa O. v. Joshua F., Tamela F., Ivaughnte O.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE NEKETA O., ) ) Appellant, ) ) v. ) ) JOSHUA F., TAMELA F., IVAUGHNTE ) O., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT No. 1 CA-JV 09-0223 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JA 509888 The Honorable Thomas A. Kaipio, Judge Pro Tem AFFIRMED Robert D. Rosanelli, Attorneys for Appellant Phoenix Schmitt, Schneck, Smyth & Herrod, P.C. By Michael J. Herrod Abigail J. Toth Attorneys for Appellees Phoenix D O W N I E, Judge ¶1 Neketa O. appeals the juvenile court s denial of her petition to revoke consent to the adoption of her son ( the child ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 Neketa gave birth to the child on May 23, 2009. For several months before the birth, she talked with L.R. of Agape Adoption Agency of Arizona, Inc. ( Agape ) about placing the child for adoption. On April 3, 2009, Neketa met Joshua F. and Tamela F. ( the adoptive parents ). They agreed to proceed with an open adoption. 2 ¶3 Neketa originally planned paperwork at home on May 26, 2009. to sign adoption consent That plan changed, however, because Neketa was worried that the paternal grandmother, who was opposed to the adoption, wanted to attend and because she incorrectly believed L.R. was sending a caseworker to ask about the adoption; in fact, the caseworker was a hospital employee following hospital protocol. ¶4 On June 1, 2009, Neketa met with the adoptive parents and stated that she wanted the child every weekend. Because this was unacceptable to the adoptive parents, they decided not to proceed Tamela a with text the adoption. message, Later asking if that they day, were Neketa interested sent in 1 We view the facts in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008) (citation omitted). 2 In an open adoption, the adoptive parents continue communicating with the birth parent(s) after the adoption is finalized. 2 becoming godparents instead. Tamela said they were not. Neketa then replied, Wish we could of [sic] worked something out for the baby [sic] sake. ¶5 Tamela testified that Neketa sent her another text message, stating, We could have did [sic] every weekend until he turned a couple of months old. . . . I want to work something out with you and Josh because you all are good people. If we did every other weekend, when would it start and when would you all pick up the baby? other weekend would work. The adoptive parents agreed that every Neketa replied, Was josh ok with me keeping the baby until [T]uesday and i would thank yall for taking my son in i really love him with all of my heart. ¶6 On June 3, 2009, Neketa signed a consent to adopt. Approximately four days later, she began telling Tamela she was stressed and that this is really hard for me. father was upset with her.3 She said her Neketa began asking the adoptive parents to bring the child to her. She stated, This is not working for me my dad told me this was going to happen I [] am getting real upset i see how it is going to be. The tone of the calls and text messages became increasingly hostile, with Neketa demanding police. the child back and threatening to the As a result, the adoptive parents changed their phone number. 3 call Neketa was 26 years old when the child was born. 3 ¶7 On June 19, adoption petition. 2009, the adoptive parents filed an On June 29, 2009, Neketa sent a letter to the court, stating she would like to stop the adoption because the adoptive parents had changed their phone number so she could not reach agreement them that and failed to would she had have [the weekday and every other weekend. comply with an one day child] alleged of the Neketa also alleged that L.R. and the adoptive parents harassed her after she told them she changed her mind about the adoption. Neketa claimed to have signed the consent while under stress about the [adoption]. ¶8 At a hearing on August 26, 2009, the juvenile court decided to treat Neketa s letter as a petition to revoke her consent pursuant to Arizona Rule of Procedure for the Juvenile Court ( Rule ) 82. She was appointed counsel, and an evidentiary hearing was set. ¶9 After The evidentiary considering hearing testimony from occurred Neketa, in November L.R., the 2009. adoptive mother, and Neketa s mother, the court concluded that consent to the adoption was given freely and voluntarily, and that it was not procured by fraud, duress or undue influence. The court thus denied Neketa s petition. ¶10 Neketa timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 8-235(A) (2007), 12-120.21(A)(1) (2003), and -2101(B) (2003). 4 DISCUSSION ¶11 Pursuant to A.R.S. § 8-106(D) (Supp. 2009), [a] consent to adopt is irrevocable unless obtained by fraud, duress or undue influence. Accord In re Navajo County Juv. Action No. JA-691, 171 Ariz. 369, 374, 831 P.2d 368, 373 (App. 1991) ( [A] consent to adoption cannot be revoked just because the natural parent changes his or her mind. ). See also In re Appeal in Yuma County, Juv. Action Nos. J-81-339 & J-81-340, 140 Ariz. 378, 382, 682 P.2d 6, 10 (App. 1984) ( A mere change of mind is insufficient. Once the adoptive process has begun, the integrity of the adoption process must have some degree of protection. Otherwise, in every case the adoption process would be subject to interruption at the whim of the natural parent. ). To set aside her consent, Neketa must prove by clear and convincing evidence the grounds to do so. JA-691, 171 Ariz. at 371, 831 P.2d at 370. ¶12 Neketa contends there was insufficient evidence to support the court s finding that her consent was not invalid and not secured by fraud, duress and undue influence. In reviewing that claim, we note that an appellate court will not substitute its own opinion for that of the trial court, and findings of the trial court will be upheld unless they are unsupported by the evidence. In re Appeal in Maricopa County Juv. Action No. A- 5 25525, 136 Ariz. 528, 533, 667 P.2d 228, 233 (App. 1983) (citations omitted). 1. ¶13 Duress Duress sufficient to set aside consent to adoption requires proof of: [A]ny 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, 897-98 (1975) (quoting Lundvall v. Hughes, 49 Ariz. 264, 267, 65 P.2d 1377, 1378 (1937)). ¶14 There is no evidence of any wrongful act by the adoptive parents that compelled Neketa to sign the consent; nor was a wrongful threat made. When asked whether anyone had threatened her in any way to sign the consent, Neketa replied, No, I wasn t threatened. Tamela testified she made no representations or promises to persuade Neketa to go forward with the adoption. ¶15 There is also no against Neketa s volition. evidence the consent was signed Between May 25 and June 3, Tamela never communicated to Neketa that she wanted her to consent. 6 Rather, after the adoptive parents decided to abandon the adoption, it was Neketa who contacted them about signing the consent and working out an agreement. When Tamela returned her call, she felt that Neketa was willing to sign the consent and that Neketa interest. intent believed adoption was in the child s best Tamela testified that if Neketa had communicated any not to sign, they would not have proceeded with the adoption. 2. ¶16 Undue Influence At trial, Neketa s counsel argued that the crux of the case was the undue influence and . . . a representation that was made to mother to essentially induce her into signing that consent. The record, however, does not support this claim. ¶17 Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the association between them is justified in assuming that person will not act in a manner inconsistent with his welfare. (1981). Restatement (Second) of Contracts § 177(1) Accord Parrisella v. Fotopulos, 111 Ariz. 4, 6, 522 P.2d 1081, 1083 (1974); Evans v. Liston, 116 Ariz. 218, 220, 568 P.2d 1116, 1118 (App. 1977). Although L.R. testified that the relationship between Neketa and the adoptive parents was the closest [she has] ever seen between 7 a birth mom and a perspective [sic] adoptive family, Neketa does not claim she was persuaded to sign the consent due to conduct arising from that relationship. See In re Sherer's Estate, 10 Ariz. App. 31, 35, 455 P.2d 480, 484 (1969) (finding that a showing of a mere opportunity to insufficient). position of influence, e.g., marital relationship, is Nothing indicates the adoptive parents were in a dominance over Neketa or compromised when she signed the consent. that her volition was As discussed supra, it was Neketa who re-initiated contact after the adoptive parents walked away, and it was she who persuaded them to proceed with the adoption. 3. ¶18 Fraud Neketa also argues that Tamela fraudulently obtained her consent by misrepresenting a material fact. Specifically, she claims Tamela falsely promised that Neketa could revoke her consent within ninety days of signing. Tamela denied making such a representation and testified that the only discussion she had with Neketa about a 90-day period related to the court setting a finalization hearing within 90 days of the adoption petition being filed. ¶19 It was up to the juvenile court to weigh conflicting testimony and make credibility determinations. the The court did not abuse its discretion by giving Tamela s version of events more credence. See JA-691, 171 Ariz. at 372, 831 P.2d at 8 371 (no abuse of discretion where the witness s testimony and rejected another s). court accepted one This is especially true given the clear and unambiguous language of the consent that Neketa signed, which stated, in pertinent part: I understand that this consent is irrevocable and that I cannot change my mind; I am aware that the consent to adoption cannot be withdrawn without a court order. The consent is signed by me freely and voluntarily without any fraud, duress, coercion, or undue influence and I am acting in a sound mind and memory. (Emphasis added.) According to L.R., [Neketa] told me on more than one occasion that she had read [the consent form] and she understood it and everything was okay. CONCLUSION ¶20 For the foregoing reasons, we affirm the judgment of the juvenile court. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 9

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