In the Matter of the Welfare of the Children of: M.A.W., Parent.

In the Matter of the Welfare of the Children of: M.A.W., Parent. A06-2159, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2159

 

In the Matter of the Welfare of the Children of:

M.A.W., Parent

 

Filed June 5, 2007

Affirmed; motion denied

Ross, Judge

 

Hennepin County District Court

File No. 27-JV-06-2180

 

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant M.A.W.)

 

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487; and

 

Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Jonathan G. Steinberg, 1155 Grain Exchange Building East, 412 South Fourth Street, P.O. Box 15085, Minneapolis, MN 55118 (for guardian ad litem)

 

 

Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

M.A.W. has given birth to ten children and parented none of them.  The district court ordered that her parental rights to the most recent two, newborn twins, also be terminated after M.A.W. gave written consent to voluntarily terminate her rights.  She sought to vacate her consent and the district court denied her motion.  She appeals, alleging that good cause for termination did not exist, her counsel did not adequately examine her regarding her right-to-trial waiver, and the county exerted undue influence on her.  M.A.W. also moves this court to strike portions of the state's appendix.  Because M.A.W. failed to allege undue influence in her motion to vacate and the record does not provide a basis to vacate her voluntary consent to terminate her parental rights, we affirm.  Because the challenged documents in the respondent's appendix were part of the record considered by the district court, we deny M.A.W.'s motion to strike.

FACTS

M.A.W. has given birth to ten children, most recently to twin daughters.  All ten children have been the subject of child-protection proceedings, and with the exception of her twins, none had a known father at the time of the proceeding.  M.A.W. has been the subject of child-protection attention since 1996 due to physical abuse, physical and medical neglect, inadequate supervision of her children, and exposure of unborn children to drugs.  In five separate child-protection proceedings between 2000 and 2005, M.A.W.'s parental rights to three infant children were involuntarily terminated, and physical and legal custody of five young children were transferred from her.  M.A.W. defaulted and failed to appear in four of the five proceedings and voluntarily admitted to the petition in the other.  In three proceedings, most recently in May 2005, the court found M.A.W. palpably unfit to parent.

M.A.W. has been chronically homeless, has a long history of drug abuse and dependency, and suffers from cognitive deficiencies and mental illness.  A 1997 evaluation diagnosed M.A.W. with mixed personality disorder and indicated that she is mildly mentally retarded.  M.A.W. has received a wide range of services from county agencies for about eight consecutive years, including parenting assessments and education, in-home services, psychiatric care, and housing assistance.  M.A.W. nevertheless either failed to cooperate with or to abide by her case plans, and she consequently failed to correct the conditions that led to her children being permanently removed from her care.

In February 2006, the Hennepin County Human Services and Public Health Department filed a petition to terminate M.A.W.'s parental rights to her newborn twins.  The county alleged that M.A.W. had tested positive for marijuana at the time of their delivery.  She was homeless and refused to cooperate with child-protection workers.  M.A.W. left the twins at the hospital two days after giving birth, without obtaining a medical discharge.  The district court issued an emergency protective-care order for the twins and placed them in the county's custody.  The court also approved an interim case plan for M.A.W., requiring her to submit to a chemical-dependency assessment and urinalyses, abstain from illegal drug use, undergo psychological and parenting evaluations, and obtain safe and stable housing for the children.

M.A.W. did not meet with the court-appointed social worker, made no efforts to comply with her case plan, did not visit the children, and her whereabouts were unknown to her case-plan supervisors, prompting the guardian ad litem to recommend termination.  But at the pretrial hearing in April 2006, the district court continued the matter on the county's recommendation to allow M.A.W. and the putative father more time to comply with the case plan.

At the termination hearing in July, M.A.W., represented by counsel, executed and filed two affidavits consenting to the voluntary termination of her parental rights to each twin.  The affidavits stated that she understood their contents, that she consented to the termination of all parental rights, and that, although she had been informed of the consequences of signing the affidavit, she gave her consent of her own free will and under no duress, influence, or fraud.  The affidavits also declared that her consent to terminate was based on good cause and in her children's best interests.

Before executing the affidavits in open court, M.A.W.'s counsel conducted an on-the-record colloquy with M.A.W., advising her of her right to trial and the consequences of consenting to voluntary termination.  M.A.W. affirmed under oath that, rather than to have a trial, she would voluntarily terminate her parental rights and hope that her mother would be able to adopt the twins.  Although she initially indicated that she did not understand that she could not later change her mind and have a trial, she agreed after her counsel further explained that she was giving up her right to a trial.  M.A.W. then executed the affidavits and also executed her written consent for disclosure of the twins' original birth records when they reach adulthood.  The adjudicated father, represented by his own counsel, also executed substantially identical documents after a colloquy with his counsel.

The district court found that both M.A.W. and the adjudicated father knowingly and intentionally waived their rights to trial and that terminating their parental rights served the children's best interests.  The court terminated M.A.W.'s and the father's parental rights to the twins.  The court found that M.A.W.'s inability to care for the children now or in the foreseeable future constituted good cause to support her voluntary termination of parental rights.  The court concluded that clear and convincing evidence supported M.A.W.'s voluntary termination of parental rights and that the termination was in the children's best interests.

Nearly one month after the termination hearing, M.A.W. moved to vacate her voluntary termination.  She acknowledged that she had waived her right to a trial and had agreed to terminate her parental rights, but she alleged that she did not become aware of the proposal for voluntary termination until the morning of the termination hearing.  She claimed that she was "caught by surprise" and "felt rushed" by the consent process.  She claimed that after the hearing she reconsidered her decision and "believes that she made a serious mistake in agreeing to the voluntary termination of parental rights."

M.A.W. then failed to appear at the hearing on her motion to vacate, stating that she was ill.  At the request of her counsel, the district court accepted an affidavit executed by M.A.W. in lieu of her live testimony.  The affidavit did not allege that M.A.W.'s consent resulted from duress or coercion, but her counsel argued that the county exerted undue influence on M.A.W. at the hearing by allegedly representing off-the-record that "she was going to lose everything if she went to trial."  He argued that she was under "great distress" and that the voluntary termination caught her by surprise because she thought her only choices were to have a trial and risk losing her parental rights or to voluntarily terminate her rights and hope that her mother would adopt the children.  He also argued that, under the circumstances, M.A.W. simply could not make a "clear[] reasoned choice."

The district court denied M.A.W.'s motion to vacate.  It found that M.A.W.'s alleged distress was similar to the pressure every parent experiences in termination proceedings.  The court found that her counsel adequately questioned her regarding her consent, and it saw no evidence that she was under undue influence.  The court concluded that mere surprise does not support vacation and found that M.A.W. decided to terminate her parental rights knowingly and voluntarily while represented by competent counsel throughout all the proceedings.  This appeal follows.

D E C I S I O N

I

M.A.W. argues that the district court erred by denying her motion to vacate her consent to voluntarily terminate her parental rights to her newborn twins.  Specifically, M.A.W. asserts that good cause did not support the voluntary termination, she was not thoroughly examined regarding her right-to-trial waiver, and she consented to termination only under undue influence by the county.  We find no merit to M.A.W.'s claims.

Our role on appeal from a termination-of-parental-rights proceeding is "limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous."  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  The evidence must be clear and convincing that at least one statutory basis for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see also Minn. Stat. § 260C.301, subd. 1(a) (2004) (permitting termination of parental rights based on written consent of parent, who for good cause desires to terminate parental rights).  In any termination proceeding, the best interests of the children must be the paramount consideration.  Minn. Stat. § 260C.301, subd. 7 (2004); R.W., 678 N.W.2d at 55 (observing that an appellate court will affirm a termination of parental rights "as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child[ren]'s best interests").

An order affirming the voluntary termination of parental rights is a final adjudication that can be set aside only upon a showing of fraud, duress or undue influence.  In re Welfare of K.T., 327 N.W.2d 13, 17-18 (Minn. 1982).  A parent who consents to terminate her parental rights "cannot have that order set aside simply because she has changed her mind or her circumstances have otherwise changed."  Id. at 18.  Rather, the parent must demonstrate a "serious and compelling" reason, analogous to the "grave and weighty" reasons required to involuntarily terminate parental rights, to justify withdrawal of consent.  Id.  "Duress" means "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."  In re Welfare of N.M.C., 447 N.W.2d 14, 16 (Minn. App. 1989) (quotation omitted). "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. (quotation omitted).  There is no evidence of duress or undue influence in the record.

M.A.W.'s motion to vacate her consent to voluntary termination was based wholly on her supporting affidavit and the argument of her attorney.  But her affidavit did not make any allegation of fraud, duress, or undue influence; at most, it showed that she had a change of heart.  She acknowledges that she agreed to waive her right to a trial and to voluntarily terminate her parental rights, and her claims that she was caught by surprise, felt rushed, and expected to have a trial are insufficient to constitute coercive undermining of her free will.  M.A.W. asserted that it was only "after the hearing" and talking with family that she reconsidered her feelings and her decision and "believes that she made a serious mistake in agreeingto the voluntary termination."  (Emphasis added.)  In N.M.C., we rejected almost identical assertions.  See N.M.C., 447 N.W.2d at 16-17 (rejecting reasons of inadequate time to make decision, realization of mistake, desire to reverse decision, and support of family and friends).  And we reject them here.

M.A.W. also argues that a voluntary termination requires a showing by the parent of "good cause" and that the record fails to show that good cause exists.  We will uphold the district court's finding of good cause if it is supported by substantial evidence and not clearly erroneous.  D.D.G., 558 N.W.2d at 485.  M.A.W. swore in her affidavit that her consent to terminate her parental rights was for good cause and in the best interests of her children.  The district court found that good cause existed also because of M.A.W.'s inability to care for her children now or in the foreseeable future.  M.A.W. did not argue a lack of good cause in her motion to vacate, which explains why the district court did not make detailed good-cause findings.  Other reasons support the district court's conclusion: the permanent removal of M.A.W.'s eight prior children; the multiple determinations that she is palpably unfit to parent; the presumption of her continued unfitness; her refusal or failure to abide by her interim case plan; and her decision not to even visit the children in the first two months of their lives after she abandoned them in the hospital at two days old.  The district court's finding of good cause is not clearly erroneous.

M.A.W. contends that her court-appointed counsel failed to conduct an adequate waiver-of-trial colloquy before she admitted to the termination petition.  Our review of the record leads us to a different conclusion.  Contrary to her argument, M.A.W. did not admit to the petition for involuntary termination but instead agreed to voluntarily terminate her parental rights.  M.A.W. affirmed that she had been informed of the consequences of signing the affidavit and that her parental rights would not be terminated until she "appeared in court, affirm[ed] [her] decision before the presiding judicial officer, and a final order terminating parental rights is issued by the [c]ourt."  Her affidavit supporting the motion to vacate admits that "she testified, under oath, that she wanted to waive a trial on the matter."  During the colloquy with her counsel, she acknowledged her understanding that she was scheduled to have a trial, that the trial would not be continued, and that she was giving up her right to trial.  She also agreed with her counsel's explanation that by voluntarily terminating her parental rights, "it wouldn't be necessary then to have a trial."  She confirmed that she told her counsel that she "would rather do that than to have a trial" and that, at the time of the hearing, she still wanted to forgo trial.   She further agreed with her counsel's summation that "instead of asking the [c]ounty to try to prove the case and then our fighting about the case . . . we would simply say ‘we're not going to have a fight; we agree at this point that we will go ahead this way' . . . trying to make sure that your mom adopts the children."  She also acknowledged her familiarity with voluntary termination and child-protection proceedings because of her extensive history with child-protection matters.  And she concedes on appeal that she faced a likely insurmountable challenge at trial based on the statutory presumption of her palpable unfitness to parent.  M.A.W. has not alleged nor shown that a more extensive waiver-of-trial colloquy would have affected her decision to voluntarily terminate her parental rights.

Finally, M.A.W. alleges that the county unduly influenced her to execute the affidavits consenting to termination.  She attempts to bolster her conclusory allegation with her counsel's arguments during the hearing, insinuating that the county exerted undue influence by affording M.A.W. what counsel characterized as a choice between the risk of involuntary termination after a trial or voluntary termination with the hope that her mother would adopt the twins.  But a lawyer's arguments are not evidence and there is no support in the record that the county made the alleged representations.  The district court, which is in the best position to assess a witness's credibility, observed M.A.W. execute her affidavits consenting to voluntary termination and found no undue influence.  There is no evidence on the record compelling a different finding.

It is also difficult to conceive how the best interests of M.A.W.'s children would be served by invalidating her consent to voluntary termination and requiring a trial that she admits she has virtually no chance of winning on these facts.  The paramount consideration of the children's best interests argues convincingly against M.A.W.'s appeal.  "At some point permanence for the child and adoptive parents becomes more important than the natural parent's right to reconsider her decision."  K.T., 327 N.W.2d at 18.  M.A.W. gives us no basis to reverse the district court's decision to deny her motion to vacate her voluntary termination.

II

After the filing and briefing of this appeal, M.A.W. moved to strike the state's appendix to its brief, which consists of the county's petition for involuntary termination and copies of five prior child-protection orders regarding M.A.W.'s eight other children.  M.A.W. argues that these documents regarding her other children were not introduced at the July 2006 hearing and that they are irrelevant to the present termination.  We deny the motion.

The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. P. 110.01.  The court "may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below."  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  The documents in the respondent's appendix are copies of the petition and exhibits filed by the county with the district court in February 2006.  Because the petition and exhibits are part of the record on appeal, M.A.W.'s motion to strike is unfounded.

Affirmed; motion denied.