Dep't of Human Servs. v. K. J. V. (In re J. L. V.)

320 Or.App. 56

512 P.3d 469

In the MATTER OF J. L. V., a Child.

Department of Human Services, Petitioner-Respondent,

v.K. J. V., Appellant.

A177361 (Control), A177360

Court of Appeals of Oregon.

Argued and submitted April 26, 2022.

June 2, 2022

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Inge D. Wells, Assistant Attorney General, Eugene, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

JOYCE, J.

Appellant signed documents relinquishing her parental rights to J and giving the Department of Human Services (DHS) the right to consent to J's adoption. Approximately 10 months later, appellant asked the juvenile court for a review hearing, stating that she had revoked her relinquishment. The juvenile court concluded that appellant could not revoke her relinquishment. Because we conclude that the juvenile court applied the wrong legal standard, we vacate the juvenile court's review judgment and judgment terminating jurisdiction and wardship and remand.

On October 2, 2020, appellant signed two documents related to J. One was a "release and surrender[,]" in which appellant agreed that she was "absolutely, permanently and irrevocably" relinquishing "full custody, guardianship and control" of J to DHS. She further authorized DHS to place J for adoption and to consent to J's adoption. Appellant also signed a "certificate of irrevocability and waiver[.]" That document was similar to the release and surrender document but contained an additional clause stating that the release and surrender "shall become irrevocable as soon as the child is placed by" DHS in the custody of those who intend to adopt the child. DHS subsequently designated J's adoptive placement on May 20, 2021.

In August 2021, appellant filed a motion and requested a review hearing. In that motion, appellant asserted that she had "revoked" the release and surrender and her consent to adoption. At the hearing on that motion, DHS presented testimony about the process around appellant signing the relinquishment documents and subsequent contacts with appellant about those documents. Appellant's caseworker, Matheny, testified that she and appellant's original caseworker, Decker, obtained appellant's counsel's permission to go through the relinquishment process directly with appellant. Both caseworkers, but not appellant's attorney, were present when appellant signed the relinquishment documents. Matheny testified that they answered several of appellant's questions about the documents and that they fully explained them to her. Appellant indicated that she "completely understood."

Appellant then contacted DHS on several occasions with questions about the release and surrender. Matheny testified that appellant had contacted her within "maybe" 30 days of appellant signing the documents and again in August 2021, but no further testimony was elicited about what action, if any, Matheny took in response to either of those contacts.¹

Consistent with Matheny's testimony, appellant testified that the caseworkers read the relinquishment documents to her and, at that point, she "thought [she] understood everything in the document." However, about a month after signing the relinquishment documents, appellant realized that she "made a mistake in signing those papers, because they had essentially coerced [her] into signing those papers[.]" Appellant testified that DHS had been "fraudulent in trying to obtain [her] signature" and were not concerned about J's best interests.

When asked to elaborate, appellant testified that "DHS has made little reasonable efforts[,]" had not "done their due diligence[,]" and had been "constantly lying to the court, making up things." She said that she signed the relinquishment documents because she "felt like [she] had no other choice"; DHS had indicated that it was going to file to terminate appellant's parental rights, she became scared, and "so [she] signed it out of fear." Appellant testified that she sent a text to her caseworker stating that she "wanted to revoke [her] relinquishment because" she had not been given an opportunity to parent J. Appellant testified that she did not receive a response to that text. Appellant stated that she contacted the caseworker again about 60 days later, indicating that she wanted to revoke her relinquishment. Appellant testified that she again did not receive a response.

Appellant was represented by counsel up through March 11, 2021, but stated that when she tried to contact her attorney "in regards to revoking the relinquishments[,]" she never received a response.

During the hearing, DHS noted that J had been physically placed with an adoptive family and the adoption was close to finalization. DHS argued that the time for appellant to revoke "has passed. And she just cannot, at this point in time, unless she can prove fraud or duress, come in here and have this [relinquishment] set aside." DHS cited ORS 418.270(4), which provides, in part, that after placement for adoption, a parent can have a relinquishment set aside only if they prove fraud or duress. J's attorney echoed DHS's argument, noting that once the child's adoptive placement has been designated, a party cannot revoke their relinquishments unless a parent proves fraud or duress.

Appellant in turn argued she did not have the "benefit of counsel" when she signed the relinquishment and that she "has been trying, in her own way, and on her own terms, to revoke her relinquishments."

After taking judicial notice of the relinquishment documents, the juvenile court denied appellant's motion. It found that appellant signed the relinquishment documents on October 2, 2020, that the adoptive placement was designated on May 20, 2021, and that the documents stated that appellant was "absolutely, permanently, and irrevocably" relinquishing her parental rights. The juvenile court further concluded that "I do not find that duress or fraud was affirmatively proven from the testimony, and for that reason, as I said, I am not allowing the [revocation][.]"

In response to the juvenile court's finding that the relinquishment documents provided that appellant was irrevocably relinquishing her parental rights, appellant's counsel asked the juvenile court if it was interpreting the term "irrevocably" to "indicate that at the time she signed the document it could not be revoked?" The juvenile court responded, "I'm noting for the record that the word appears, it says ‘irrevocably.’ I'm noting that and basing the decision on that, but primarily on subsection (4) of ORS 418.270."

The juvenile court then entered two judgments. In the first judgment, the juvenile court found that appellant had "failed to prove that her relinquishments were rendered out of fraud. The adoptive placement has been designated legal risk and as such her relinquishment cannot be revoked." The juvenile court ordered that J's adoption could proceed. The second judgment terminated DHS's jurisdiction and wardship over J. J's adoption was finalized on September 22, 2021.

Appellant appeals both of the juvenile court's judgments. She argues that she did not have the assistance of counsel when she signed the relinquishment documents and that she was entitled to, and did, revoke her relinquishment before J was placed for adoption. DHS responds that because J has been adopted, the appeal is moot and that in all events, the juvenile court correctly concluded that appellant could not revoke her relinquishment.

We reject DHS's threshold contention that this appeal is moot. The party moving for dismissal has the burden to establish that a case is moot, including that the "decision being challenged on appeal will have no further practical effect on the rights of the parties." Dept. of Human Services v. A. B. , 362 Or. 412, 426, 412 P.3d 1169 (2018). The decision on appeal here—determining whether appellant revoked her relinquishment—will unquestionably have a practical effect on appellant. DHS can consent to the adoption of a child whose parent has surrendered the child for purposes of adoption. ORS 418.270(1). During the adoption proceeding, DHS must provide a copy of the biological parent's surrender to the court. ORS 109.325(4)(a). If appellant in fact revoked the relinquishment of her parental rights, DHS was in no position to consent to the adoption. Moreover, ORS 109.381(3) provides a one-year time limit on finalization of adoptions: "After the expiration of one year from the entry of a judgment of adoption in this state the validity of the adoption shall be binding on all persons * * * irrespective of jurisdictional or other defects in the adoption proceeding." See also In re Walker/Pitman/Parris , 59 Or. App. 641, 645, 652 P.2d 362 (1982) ("statute of limitations for challenging decrees of adoptions is one year"). Under that statute, then, J's adoption—though final—has not yet become conclusively binding irrespective of any defects. Because the outcome of this appeal could have significant practical effects on appellant and...