Matter of Kira M.

864 P.2d 803, 116 N.M. 514

• Court: New Mexico Court of Appeals
• Decided: November 23, 1993
• Docket: 14446
• Status: Published

Opinions

OPINION

APODACA, Judge.

Mother appeals the children’s court’s denial of her motion to revoke her relinquishment of parental rights and consent to adoption and the court’s granting summary judgment to the Human Services Department (HSD). The issue presented to us is whether a relinquishment of parental rights and consent to adoption can be withdrawn on the grounds that it was involuntary. Because we hold that Mother has alleged facts sufficient to raise an issue concerning the voluntariness of her consent, we reverse and remand for an evidentiary hearing on Mother’s claim that her relinquishment of parental rights and consent to adoption was involuntary. In light of our disposition, we need not reach Mother’s issue of whether NMSA 1978, Section 40-7-38(F) (Repl.Pamp.1989), violates Mother’s constitutional rights to due process. See Huey v. Lente, 85 N.M. 597, 598, 514 P.2d 1093, 1094 (1973) (constitutional questions decided only if necessary to the disposition of the case).

FACTS

In August 1991, HSD filed a petition alleging that Kira, Mother’s nine-year-old daughter, was a neglected and abused child. The petition requested custody of Kira and .named Mother and James M., Kira’s biological father, as respondents. On August 30, 1991, after a hearing, Mother stipulated to an order continuing custody of Kira with HSD, which placed Kira with a foster parent.

In November 1991, a social worker employed by HSD counseled Mother regarding her alternatives to relinquishing her parental rights to Kira. The record shows that the counseling included discussion of the meaning and consequences of voluntary relinquishment; alternatives to voluntary relinquishment; parental preferences for adoptive placement; and whether Mother was voluntarily deciding to relinquish her parental rights to Kira. Later, a hearing was held, at which the children’s court asked Mother whether she was voluntarily relinquishing her parental rights. Mother stated that she was voluntarily relinquishing such rights, without coercion or threats. After a lengthy inquiry, the children’s court found that Mother was signing the relinquishment voluntarily, knowingly, and intelligently. Mother signed the relinquishment in the presence of the court, which certified the document.

In May 1992, Mother filed a motion to revoke or withdraw her relinquishment of parental rights. She alleged that she signed the relinquishment “under threats from her husband [Stepfather], at the time, which overrode her own free will and desire.” Stepfather allegedly threatened to prevent Mother from ever seeing her other child again if Mother did not relinquish her parental rights to Kira. Because of Stepfather’s personality and previous hostile acts, Mother said she believed that he would carry out his threats if she didn’t do what he demanded. At the time the motion was filed, no adoption petition had been filed.

HSD later filed a motion to dismiss Mother’s motion or for summary judgment on the grounds that, under Section 40-7-38(F), the sole basis for withdrawing a relinquishment of parental rights was fraud and Mother did not allege fraud. HSD further asserted that, even if duress was a proper ground for setting aside a relinquishment, the duress alleged by Mother was insufficient to support withdrawal of her relinquishment. No evidence, other than Mother’s affidavit alleging the threats, was presented or considered. The children’s court granted HSD’s motion and denied Mother’s withdrawal motion on the grounds that there was “no genuine issue of material fact and this matter can be decided as a matter of law,” and “[t]here is no sufficient basis to void the relinquishment.”

DISCUSSION

This appeal involves the interplay of two subsections of NMSA 1978, Section 40-7-38 (Repl.Pamp.1989). On the one hand, Section 40-7-38(A)(4) requires a relinquishment of parental rights to state “that the person executing the consent or relinquishment has been counseled regarding alternatives to adoptive placement and with this knowledge is voluntarily and unequivocally consenting to the adoption of the named adoptee.” Section 40-7-38(F), on the other hand, states:

A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a judgment of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a minor for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a final decree of adoption.

The issue raised by Mother requires us to apply pertinent rules of statutory interpretation. In construing a statute, this Court’s primary concern is to ascertain and give effect to the legislature’s intent. State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). To achieve this, we read the legislation in its entirety and "construe each part in connection with every other part to produce a harmonious whole.” Id. If possible, we give effect to each portion of the statute. Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980). Unless the legislature indicates otherwise, we give the words of the statute their ordinary meaning. Klineline, 106 N.M. at 735, 749 P.2d at 1114.

HSD contends that Section 40-7-38 is unambiguous and should be applied as written. See Johnson v. Francke, 105 N.M. 564, 566, 734 P.2d 804, 806 (Ct.App.1987). HSD also argues that strictly interpreting the statute as allowing only one ground for revocation of a relinquishment of parental rights — fraud—would promote the intent of the legislature to promote the child’s best interests and welfare while protecting the biological parents’ rights. See Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); In re Adoption of Bradfield, 97 N.M. 611, 614, 642 P.2d 214, 217 (Ct.App.1982). HSD views Section 40-7-38 as establishing a two-step process. In the first stage, the biological parent’s rights are protected by providing a procedure in which the biological parent is counseled regarding alternatives to adoptive placement, see § 40-7-38(A), and requiring that the consent be signed before and approved by a judge or individual appointed to take consents by an agency certified or licensed to place children for adoption. See NMSA 1978, § 40-7-39(A) (Repl.Pamp.1989). In the second stage, HSD argues, the focus shifts from consideration of the biological parent’s rights to the protection of the child’s best interests, and at this stage the legislature has determined that, in the absence of fraud, it is in the child’s best interests to proceed with adoption. See In re Adoption of Doe, 87 N.M. 253, 255, 531 P.2d 1226, 1228 (Ct.App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975).

However, because we discern no clear legislative intent to establish such a two-step process, when reading the statute as a whole, and also discern a possible inconsistency between Section 40-7-38(A)(4) and Section 40-7-38(F), we reject HSD’s contention that the statute is unambiguous. Additionally, it is not clear from the language of Section 40-7-38(E) that the subsection necessarily applies to the facts of this appeal, where no adoption petition had been filed at the time Mother filed her withdrawal motion. The subsection’s references to “the entry of a judgment of adoption,” to “the petitioner,” and to “the agency placing a minor for adoption” could be interpreted to mean that Section 40-7-38(F) may apply only when a petition for adoption of the child is actually pending. Cf. In re TR, 777 P.2d 1106, 1116-18 (Wyo.1989) (Golden, J., dissenting) (concluding that irrevocability provision does not apply where no adoption petition has been or is likely to be filed). However, the parties do not raise this argument on appeal. We thus have assumed, without deciding, that Section 40-7-38(F) is applicable to the facts of this case. Although the fact that an adoption petition was not pending is important to our reasoning, we have followed a different path to our resolution of the issue.

HSD draws our attention to Doe, in which this Court interpreted NMSA 1953, Section 22-2-27(D) (Supp.1973), the predecessor to Section 40-7-38, as compelling the conclusion that a consent may be withdrawn only on the basis of fraud. In that case, after an adoption petition for the child was filed, the biological mother filed a motion to intervene in the adoption proceedings, attempting to withdraw her relinquishment of parental rights and consent to adoption. She contended that her consent was involuntary because it was signed within twenty-four hours of the child’s birth while she was still in the hospital and emotionally upset. Doe, 87 N.M. at 254, 531 P.2d at 1227.

In response to her contention, this Court stated that:

Since the adoption of children is solely a creature of statute, unknown to the common law, it is important to note that our legislature has seen fit to provide but a single ground for the revocation of consent, namely, fraud____ Our legislature has created a presumption that once there has been a consent by the natural parent, absent fraud, it is in the best interests of the child to proceed with the adoption.

Id. at 254-55, 531 P.2d at 1227-28 (citations omitted). Doe further concluded that the specific facts alleged by the biological mother (“(1) emotional upset, (2) hospitalization and (3) timeliness after birth”) were insufficient as a matter of law to void the consent. Id. at 255, 531 P.2d at 1228. However, this Court also stated that, under the facts presented, it was “unnecessary to decide whether in all cases that do not allege fraud a claim is stated if the allegation is involuntariness of consent.” Id. We thus conclude that Doe was limited to its facts. We also deem it important to note that Judge Hernandez, in his dissent to the majority’s opinion, would have read Section 22-2-27(D) as if the word “valid” had been inserted before the word “consent.” Id. (Hernandez, J., dissenting). Thus, under the dissent’s analysis, a valid consent could be withdrawn only if fraud was alleged; however, a consent could be otherwise shown to be invalid on other grounds, including that it was involuntarily given. See also § 40-7-38(D) (no consent or relinquishment shall be valid if executed within forty-eight hours of adoptee’s birth).

Although HSD concedes that Doe “seems to have left open the possibility that a plea of involuntariness might withstand a motion to dismiss,” it argues that the additional procedural protections contained in the current statute have eliminated that possibility. We disagree. In Bar-win, our Supreme Court apparently recognized the possibility that a parent might consent to an adoption as a result of improper duress or coercion, and that the consent might be ineffective as a result. Our Supreme Court stated:

“Duress in law books is defined to be an actual or threatened violence or restraint of a man’s person, contrary to law, to compel him to enter into a contract or discharge one____ By duress in its more extended sense is meant that degree of severity, either threatened or impending or actually inflicted, which is sufficient to overcome the mind of a person of ordinary firmness____”

Id. 62 N.M. at 197-98, 307 P.2d at 185 (quoting McDonald v. Carlton, 1 N.M. 172, 176-77 (1857)). Barwin also noted that “ ‘[tjhat species of compulsion which does not appear in overt acts of violence or threats, but in overpersuasion and advantage taken by parties in peculiar relations of trust or influence over the weak and ignorant, comes within the purview of constructive fraud____’” Barwin, 62 N.M. at 198, 307 P.2d at 185 (emphasis added) (quoting McDonald, 1 N.M. at 177-78). Although our Supreme Court concluded that the duress alleged in Barwin — the poverty of the biological parents — was “duress of circumstances” that did not render the biological parents’ consent to the adoption of their child ineffective, id., we could conceivably determine in this appeal that this definition of “constructive fraud” was considered by the legislature when it drafted Section 40-7-38(F) and its predecessors. Instead, we prefer to base our holding on the grounds that equal effect must be given to all parts of Section 40-7-38 to fully effectuate the legislature’s intent to ensure that a parent freely and voluntarily consents to his or her child’s adoption.

We have no quarrel with HSD’s argument that the public policy and objective concerning adoption is to promote the best interests of the child. Nevelos v. Railston, 65 N.M. 250, 254, 335 P.2d 573, 576 (1959). At the same time, however, the parents’ rights must also be protected. In re Adoption of Doe, 101 N.M. 34, 37, 677 P.2d 1070, 1073 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984); Bradfield, 97 N.M. at 614, 642 P.2d at 217. Although we agree with HSD’s premise that an unambiguous statute should be applied as written, Johnson, 105 N.M. at 566, 734 P.2d at 806, at the same time we agree with Mother that general rules of statutory interpretation require us to read Section 40-7-38 as a whole, with each section reconciled with the other sections, to effectuate the purpose of the legislation. See In re Samantha D., 106 N.M. 184, 186, 740 P.2d 1168, 1170 (Ct.App.), cert. denied (August 14, 1987); Mathieson v. Hubler, 92 N.M. 381, 394, 588 P.2d 1056, 1069 (Ct.App.), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978). Thus, it is clear that Section 40-7-38 in its entirety is intended both to protect the biological parent’s rights and ensure that a parent consents with a full understanding of the consequences of relinquishing his or her child for adoption and to promote the best interests of the child by creating finality. Consent of the biological parent to the adoption of the child is at the foundation of adoption statutes. Nevelos, 65 N.M. at 254, 335 P.2d at 576. An involuntary consent cannot be considered valid. See § 40-7-38(A)(4). We conclude that, to give effect to this subsection, the children’s court is required to determine at an evidentiary hearing whether the consent was obtained involuntarily, despite the court’s initial certification of the consent document.

In our view, adopting HSD’s narrow interpretation of Section 40-7-38 would mean promoting form over substance in that a consent that was apparently voluntary on the surface but in fact could be shown to be involuntary could not be withdrawn. We believe such an interpretation would be contrary to the legislature’s intent to ensure that relinquishments of parental rights and consents to adoption were voluntarily made under the specific requirements of Section 40-7-38(A)(4). Here, although the formal requirements were met, there is an issue concerning whether the intent of Section 40-7-38(A)(4) was fulfilled if Mother’s consent was given as the result of a threat. We believe that it would not promote the legislature’s goals to accept HSD’s argument that Mother’s parental rights were fully protected when the children’s court inquired of Mother concerning the “voluntariness” of her relinquishment and consent. If Stepfather had threatened and coerced Mother to relinquish her parental rights, it stands to reason that Mother would anticipate that the children’s court’s inquiries had to be answered so as to convince the court that nothing was amiss and that the consent was voluntarily signed. To do otherwise would only assure Mother that the threats would be carried out. Although allowing Mother the opportunity to present evidence on this issue could be viewed as “rewarding” Mother for her possible perjury, we believe the legislative intent of Section 40-7-38(A)(4) is best promoted by requiring an evidentiary hearing.

We also disagree with the dissent’s implicit suggestion that our interpretation of Section 40-7-38 somehow expands the basis for withdrawal of a parent’s consent. Such is not the case. Mother is simply attempting to withdraw a consent that she essentially alleges was invalid ab initio because involuntary and therefore not in compliance with Section 40-7-38(A)(4). Cf. Doe, 87 N.M. at 255, 531 P.2d at 1228 (circumstances alleged by mother were common to many adoption situations and hence did not show that her consent was involuntary). Allowing a hearing on the issue of whether Mother’s consent was voluntary harmonizes Section 40-7-38(F) with Section 40-7-38(A)(4). Our holding is therefore intended to give meaningful effect to what we consider to be the legislative intent.

HSD contends that, even if duress can render a consent involuntary, the circumstances alleged by Mother as a matter of law do not rise to that level. In HSD’s view, Mother “chose” to relinquish her parental rights to Kira and remain with Stepfather and her other child. Stepfather’s threat, claims HSD, was not “ ‘sufficient to overcome the mind of a person of ordinary firmness.’ ” See Barwin, 62 N.M. at 198, 307 P.2d at 185. We disagree that the circumstances alleged by Mother are akin to “duress of the circumstances” as a matter of law.

Unlike the situation in Doe, the facts alleged by Mother are not necessarily circumstances common to many adoption situations. As noted earlier, a threat, such as that alleged by Mother, would probably not be revealed in the initial hearing because the threatened party would realize what answers should be given to achieve the result desired by the person making the threat. The public interest of ensuring that parents have voluntarily released their children for adoption will be promoted by allowing parents to show their consents were involuntary. This is particularly important where, as here, no other party has acted in reliance on the relinquishment and is attempting to adopt the child. In Doe, there was a greater interest in finality for the child because other parties were actively seeking to adopt the child involved and the biological parent was interfering in the adoption proceedings. Doe, 87 N.M. at 254, 531 P.2d at 1227. In this case, although HSD argues that Kira’s current foster parent had indicated an interest in adopting Kira, no adoption petition has been filed. Mother in this appeal is not interfering with any adoption proceedings. See generally Gary D. Spivey, Annotation, Right of Natural Parent to Withdraw Valid Consent to Adoption of Child, 74 A.L.R.3d 421 § 22 (1976).

Additionally, although we see little uniformity in the case law from other jurisdictions, see Gary D. Spivey, Annotation, What Constitutes “Duress” in Obtaining Parent’s Consent to Adoption of Child or Surrender of Child to Adoption Agency, 74 A.L.R.3d 527 (1976), we note that some courts have held that marital difficulties constitute duress that justifies a parent’s withdrawal of a consent to adoption. Id. at 538-39. In our attempt to reach a correct disposition of the sensitive issue raised in this appeal, we reviewed numerous decisions from other jurisdictions on the subject. A review of those decisions left no doubt that there is a broad spectrum of divergent views by other tribunals. That was not surprising, given the difficult nature of deciding issues that may play a part in determining the course of the lives of those persons who may be profoundly affected by the court’s disposition. Although our research uncovered a few cases from other jurisdictions with somewhat similar or analogous facts, we came to the realization that, ultimately, our decision turned on the statutory construction and interpretation of only one statute, that enacted by our legislature. Our holding gives force to the legislative intent, which, in our view, was to protect and preserve the rights of both the parent and the child. Our decision carries out that mandate.

We thus determine that Mother has timely alleged facts sufficient to raise an issue concerning the voluntariness of her relinquishment of parental rights and consent to adoption. Because no evidence other than Mother’s affidavit concerning whether Mother’s free will was overborne was presented at the hearing below, we reverse the children’s court’s grant of summary judgment and remand for an evidentiary hearing on the voluntariness of Mother’s consent. We believe that this issue is for the children’s court to decide in the first instance. See NMSA 1978, § 40-7-49(D) (Repl.Pamp.1989).

We observe, however, that even if the children’s court determines that Mother’s relinquishment of parental rights was involuntary and thus ineffective, the children’s court properly has jurisdiction to determine who should have custody of Kira. See Samantha D., 106 N.M. at 188, 740 P.2d at 1172. In making this determination, Kira’s best interests are, of course, paramount. See id.; see also Barwin, 62 N.M. at 199, 307 P.2d at 185-86.

CONCLUSION

We conclude that Mother has stated a claim sufficient to defeat a motion for summary judgment. We thus reverse and remand for an evidentiary hearing on the question of whether Mother’s consent was involuntary.

IT IS SO ORDERED.

CHAVEZ, J., concurs. BLACK, J. dissents.