In the Matter of the Welfare of the Child of:  W.M.W., Parent.

In the Matter of the Welfare of the Child of:  W.M.W., Parent. A07-134, Court of Appeals Unpublished, June 19, 2007.

This opinion will be unpublished and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

A07-134

 

In the Matter of the Welfare of

the Child of:  W.M.W., Parent.

 

 

Filed June 19, 2007

Affirmed Hudson, Judge

 

Anoka County District Court

File Nos. J4-06-50896, J3-05-52922

 

Michael C. Hager, 301 Fourth Avenue South, Suite 270, Minneapolis, Minnesota 55415 (for appellant parent)

 

Mark D. Fiddler, Fiddler Law Office, P.A., 510 Marquette Avenue South, Suite 200, Minneapolis, Minnesota 55402 (for guardian ad litem for child)

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, Seventh Floor, 2100 Third Avenue, Anoka, Minnesota 55303 (for respondent county)

 

Randall Tietjen, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, Minnesota 55402 (for intervenors)

 

Kathleen Cater, P.O. Box 859, Anoka, Minnesota 55303 (guardian ad litem for parent)

 

            Considered and decided by Halbrooks, 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 dispute, appellant-mother argues that the district court should have granted her petition to vacate her voluntary termination of her parental rights because (a) the record shows that her voluntary petition to terminate her parental rights was a result of undue influence; and (b) the record does not show "good cause" for termination.  Because the record does not support appellant's argument that she was subject to undue influence, and because the issue of good cause is not within the scope of this appeal, we affirm.

FACTS

Appellant-mother W.M.W.'s child was born on November 1, 2002.  In April 2004, the child was placed in foster care because appellant was hospitalized due to deteriorating mental health.  The child was returned to appellant's care on July 6, 2004.  Between February 2004 and August 2004, the child's weight dropped from the 25th percentile to the 10th percentile.  Between August 2004 and September 2004, the child lost more weight and dropped from the 10th to the 3rd percentile.  No medical reasons could be found for the child's weight loss.  On November 5, 2004, the child was returned to foster care.  On March 4, 2005, the child was again returned to appellant's care but remained under the protective supervision of the county.

            Appellant's mental condition deteriorated further, and on August 4, 2005, appellant reported to a service provider that she had washed the child's mouth out with soap and had kicked the child after the child had kicked her.  On August 29, 2005, appellant reported to another service provider that she was "fed up" with the child's behavior and that she "could have thrown her down the stairs." 

            Police visited appellant on September 2, 2005, to pick up the child and return her to foster care, but they found that the child was not at appellant's house.  Appellant told the police that the child was in Wisconsin with a friend and did not seem to know when the child would return.  The child was eventually returned to foster care on September 5, 2005.

            In November 2005, Anoka County filed a petition to involuntarily terminate appellant's parental rights.  In late February 2006, appellant was hospitalized after overdosing on Ativan.  The termination-of-parental-rights (TPR) trial originally scheduled for early March was continued to April 4, 2006.  In late March 2006, appellant was hospitalized for depression and suicidal thoughts.  Civil commitment of appellant was considered, but her caregivers ultimately decided that she should enter a supervised treatment program.

            On April 4, 2005, the morning of the TPR trial, appellant filed a petition to voluntarily terminate her parental rights.  After taking testimony, the district court accepted appellant's petition and determined that she was "making a knowing, intelligent, voluntary although difficult decision to terminate her parental rights."  The district court issued the order terminating appellant's parental rights on June 7, 2006.  Claiming that she had been subject to undue influence when she filed the petition to voluntarily terminate her parental rights, on September 5, 2006, appellant moved the district court for vacation of the June 7, 2006 order.  The district court denied appellant's motion on December 22, 2006, concluding that she had failed to allege any facts that would support her argument that her petition to terminate her parental rights was not voluntary and that good cause existed to terminate appellant's parental rights.  This appeal, which was filed on January 18, 2007, follows.

The child's guardian ad litem moved this court for dismissal of the appeal as untimely.  On February 13, 2007, this court issued an order limiting the scope of appellant's appeal to the part of the December 22, 2006 district court order denying her motion to vacate the June 7, 2006 order on the ground that her consent to the termination of her parental rights was not voluntary.

D E C I S I O N

            Appellant argues that the district court abused its discretion by refusing to vacate its June 7, 2006 order terminating her parental rights and grant her an evidentiary hearing.  Appellant maintains that her petition to terminate her parental rights was not voluntary because she was subject to undue influence.  Specifically, appellant argues that she was subject to undue influence because (1) medical professionals advised her that a trial would not be good for her mental health; (2) her attorney advised her that she may not be successful at a trial; and (3) she was not offered a continuance to consider her decision.

A district court has discretion to decide a motion to vacate a judgment, and this court will not disturb a district court's decision absent an abuse of that discretion.  Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988).  Under the Minnesota Rules of Juvenile Protection Procedure, "[u]pon motion and upon such terms as are just," a court may relieve a party from a final order and may grant a new trial or other relief because of:

(a) mistake, inadvertence, surprise, or excusable neglect;

(b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial;

(c) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(d) the judgment is void; or

(e) any other reason justifying relief from the operation of the order.

 

Minn. R. Juv. Prot. P. 46.02.

"A parent who has consented to a termination order cannot have that order set aside simply because she has changed her mind or her circumstances have otherwise changed. . . .  [O]nly where fraud, duress or undue influence are proven will a termination order based on parental consent be rescinded."  In re Welfare of K.T., 327 N.W.2d 13, 18 (Minn. 1982) (citation 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."  In re Welfare of N.M.C., 447 N.W.2d 14, 16 (Minn. App. 1989) (quotation omitted). 

Appellant argues that "[t]he waiving of parental rights in order to avoid exposure to a medically harmful trial, that might trigger suicidal ideation, presents sufficient factual basis to require a full evidentiary hearing."  She also maintains that her "volition had been influenced and overpowered by immediate medical concerns and advice."  Appellant's arguments are not supported by the record.

First, while being questioned by the district court regarding her decision to tender the petition to voluntarily terminate her parental rights, appellant stated that (1) she was of sound mind; (2) her mental illness did not interfere with her ability to decide to terminate her parental rights; (3) she was not under the influence of any medication that would influence her decision to terminate her parental rights; (4) she did not need any additional time to consider her decision; (5) she understood the termination of her parental rights would be permanent; (6) she had discussed how her CHIPS/TPR case should proceed with her attorney since its inception in 2004; and (7) she understood that she had a right to trial and to present and question witnesses.  All of these statements, made on the record before the district court, contradict appellant's present assertion that she was subject to undue influence.

Second, appellant has not shown that any of the circumstances surrounding the TPR trial amounted to undue influence.  Appellant suggests that she was subject to undue influence because her attorney was concerned about her chance for success at trial.  But she does not show that her attorney's legal advice destroyed her own free will by means of "importunities, flatteries, insinuations, suggestions, arguments, or . . . artifice."  In re Welfare of N.M.C., 447 N.W.2d at 16.  Appellant also argues that she was subject to undue influence because her caregivers and attorney were concerned for her mental health, but she does not show that this in any way affected her own free will or ability to make decisions.  Given appellant's history, it is not surprising that there were concerns regarding her mental health in the context of the TPR proceeding.  More to the point, appellant was plainly aware of her own mental state; her attorney and caregivers were not telling appellant anything that she did not already know.  That concerns regarding appellant's mental health were expressed by caregivers and her attorney does not mean that appellant's will was overcome such that her decision to voluntarily terminate her parental rights was not voluntary.  Appellant has not shown that the decision to proceed with the voluntary termination was the product of anyone's will but her own.

Appellant also argues that she is entitled to relief because she was not asked specifically whether her decision to terminate her parental rights was made freely and without undue influence.  But all of appellant's statements made during the TPR hearing clearly indicate that her decision was made freely and without undue influence.  Nothing in the record suggests otherwise.  The "great anxiety, stress and grief" felt by a parent in a TPR proceeding should not "be confused with undue influence and duress as a means of regaining that child when the natural parent changes her mind."  Welfare of N.M.C., 447 N.W.2d at 17 (quotation omitted).  If a parent were always permitted to argue that he or she "was unduly influenced or placed under duress during an otherwise emotional decision to give up a child . . . the door of certainty and finality would never be closed and the best interests of the child could never be served."  Id. (quotation omitted).  We conclude that appellant has failed to make a prima facie case of undue influence. 

            Appellant also argues that the district court should have offered to continue the proceedings to give her sufficient time to consider her decision and "stabiliz[e] in the community."  "The decision to grant or deny a continuance is within the district court's sound discretion and will not be reversed absent an abuse of discretion."  Cargill, Inc. v. Jorgenson Farms, 719 N.W.2d 226, 231 (Minn. App. 2006). 

Appellant did not request a continuance of the June 7 proceedings.  Additionally, there was nothing to suggest to the district court that a continuance was necessary.  Appellant relies on Welfare of N.M.C. and Welfare of K.T. for her argument that the court should have heeded "procedural caution" and, sua sponte, granted a continuance.  Appellant provides no authority to support her argument that because a continuance was offered in Welfare of N.M.C. and a continuance was granted in Welfare of K.T., it was error for the district court not to grant a continuance in this case even though none was requested.  Also, in Welfare of K.T., the appellant specifically stated on the record that she did not understand certain aspects of the proceedings.  327 N.W.2d at 15.  In contrast, here, appellant made no such declaration.  All of her statements to the court indicated that she fully understood the decision she was making.  The district court did not abuse its discretion by not granting a continuance when none was requested. 

For all these reasons, we conclude that the district court did not abuse its discretion by denying appellant's motion to vacate its June 7, 2006 order terminating her parental rights or by refusing to grant an evidentiary hearing.

            Affirmed.