In the matter of the adoption of C.J.F.T , a minor

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In the matter of the adoption of C.J.F.T , a minor, No. 981093-CA Filed, February 11, 1999 IN THE UTAH COURT OF APPEALS
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In the matter of the adoption of C.J.F.T., a minor.
______________________________
C.T.,
Appellant,

v.

J.W. and C.W.,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981093-CA

F I L E D
February 11, 1999

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First District, Logan Department
The Honorable Clint S. Judkins

Attorneys:
Randy S. Kester, Springville, for Appellant
Daniel W. Anderson and John D. Dunn, Salt Lake City, for Appellees

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Before Judges Greenwood, Bench, and Davis.

DAVIS, Judge:

Appellant challenges the trial court's denial of her motion to withdraw her consent to the adoption of Baby Boy C.J.F.T. (C.J.F.T.). The trial court made the following determinations: (1) appellant failed to show that she lacked the mental capacity to consent to the adoption; (2) appellant failed to establish that her consent was given under duress, coercion, unlawful restraint or threat; and (3) appellant failed to meet her burden of establishing that her consent to the adoption of C.J.F.T. was not knowingly and voluntarily given. We affirm.

ANALYSIS
a. Mental Capacity

We first review the trial court's determination that appellant failed to establish that she lacked the mental capacity to give her consent to the adoption of C.J.F.T. We note that "[t]he district court is in the best position to weigh conflicting testimony [and] assess credibility." In Re Estate of Beesley, 883 P.2d 1343, 1349 (Utah 1994). Rule 11(e)(2) of the Utah Rules of Appellate Procedure reads as follows: If the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. Neither the court nor the appellee is obligated to correct appellant's deficiencies in providing the relevant portions of the transcript. Utah R. App. P. 11(e)(2). In this case, the First District Judge's determination was, apparently, based in part upon a video tape of the proceedings before the Fifth District Judge. On appeal, this court has not been provided with a transcript of the adoption consent proceedings. Because appellant failed to provide this court with all relevant evidence bearing on the issues raised on appeal as required by Rule 11(e)(2), we may presume that the trial court's determination, to the extent it may have been based upon the video, was correct and supported by competent evidence. See State v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct. App. 1992); State v. Nine Thousand One Hundred Ninety-Nine Dollars, 791 P.2d 213, 217 (Utah Ct. App. 1990). Furthermore, because appellant has failed to properly marshal the evidence adduced at the hearing on her motion,(1) instead focusing almost exclusively on the facts that support her position, we assume the trial court's determination that she failed to establish that she lacked the mental capacity to consent to the adoption is correct and proceed to review the propriety of its other determinations. See Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1287 (Utah 1993); Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992); see also State v. Pena, 869 P.2d 932, 935 (Utah 1994) (commenting that state of mind is a factual question).

b. Duress and Coercion Because of the need for finality in obtaining the necessary written consent to adoption of a child, there is a presumption of regularity when such a consent is executed before and accepted by a judge. The consenting party can overcome this presumption only by showing that the consent to adoption, with the accompanying relinquishment of all parental rights, was not entered into voluntarily but was induced through duress, undue influence, or under some misrepresentation or deception, or other grounds which would justify release from the obligations of any contract. In Re Adoption of Infant Anonymous, 760 P.2d 916, 919 (Utah Ct. App. 1988) (citations omitted). The trial court determined that appellant failed to establish her consent to the adoption was given under duress, coercion, unlawful restraint or threat.(2) Appellant asserts that her consent to the adoption was induced through duress and coercion in the form of economic hardship, post-partum depression, bi-polar disorder, and the abusive relationship she maintained with Felt, the father of C.J.F.T.

i. Duress

Even accepting that the actions of Felt were contemptible and may have amounted to an improper threat to appellant,(3) "[a] threat, even if improper, does not amount to duress if the victim has a reasonable alternative to succumbing and fails to take advantage of it." Restatement (Second) of Contracts § 175 cmt. c (1981). Based on the evidence in the record, it is evident that appellant was acquainted with alternatives that she apparently chose not to pursue. For example, she had previously separated herself from Felt and his abuse entirely by seeking refuge at her parents' home, which was also the home of her two oldest children. She had phoned her family, the police, and a family welfare agency and informed them that she needed assistance. We do not underestimate the difficulty of appellant's situation, but the record indicates that appellant was aware of alternatives.

ii. Coercion or Undue Influence

Undue influence is a form of unfair persuasion that makes the contract voidable if it is exercised on "a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare." Id. § 177(1). Although Felt had often been abusive and manipulative, appellant has shown in the past that she is capable of minimizing his influence in her life: she has had a protective order issued against Felt when his conduct was too severe to cope with; she has found refuge at an area shelter; and she has also found refuge at her parents' home in Salt Lake City when her relationship with Felt was particularly troubling. In addition, there has been no suggestion that appellant may have been justified in assuming that Felt would not act in a manner inconsistent with appellant's welfare. That notion is a direct contradiction to all the evidence we have before us. Appellant was well aware of Felt's desire to escape the responsibilities of another child and she nevertheless maintained a relationship with him. We agree with the logic of In Re Adoption of Minor Child, 287 A.2d 115 (R.I. 1972), and note that the contemplation of giving up one's own child is often the cause of severe emotional and mental stress, and such a surrender should not be required to be carried out free from emotion, tension, and pressure caused by the circumstances in order to be legally valid. See id. at 121. Although the conditions surrounding appellant prior to and during the adoption consent proceedings were difficult, we agree with the trial court's determination that appellant has failed to show that her consent was the product of undue influence or coercion.

c. Knowing and Voluntary Consent

Next, appellant challenges the trial court's determination that she failed to show her consent to the adoption of C.J.F.T. was not "knowingly and voluntarily given." Based on the evidence in the record before us, we agree with the determination of the trial court. We do not question that appellant acted in part due to economic hardship, the abusive and manipulative character of Felt, as well her own emotional state. Cf. D.P. v. Social Service and Child Welfare Dep't, 19 Utah 2d 311, 431 P.2d 547, 547 (1967) (stating a woman under circumstances similar to appellant's was subject to unusual pressures). Here, a woman with a troubled relationship and the parental pressures of raising several children made, under all of the circumstances, what appears to be a rational, courageous decision with the best interests of C.J.F.T. in mind. The evidence does not show that her consent was not knowingly and voluntarily given.

CONCLUSION

The evidence presented to the trial court supports its determinations. We hold that appellant failed to show that she lacked the mental capacity to consent to the adoption. In addition, she failed to establish that her consent to the adoption was given under duress, coercion, or undue influence. Accordingly, the trial court correctly concluded that appellant's consent to the adoption of C.J.F.T. on September 2, 1997 was voluntarily and knowingly given.
 
 

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James Z. Davis, Judge -----

I CONCUR:
 
 

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Russell W. Bench, Judge

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I CONCUR IN THE RESULT:
 
 

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Pamela T. Greenwood,
Associate Presiding Judge

1. Notwithstanding appellant's failure to provide a complete record on appeal or to properly marshal the evidence, we note that the evidence in the record before us supports the trial court's finding that appellant failed to establish she lacked the mental capacity to give her consent.

2. Because appellant has not briefed the issues of unlawful restraint or threat, we focus our analysis on duress and coercion (undue influence).

3. We make no ruling with regard to whether the actions of Felt amounted to an improper threat.