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In re N.R.A.

Supreme Court of Montana

October 17, 2017

IN THE MATTER OF: N.R.A. and V.A.A., Youths in Need of Care.

          Submitted on Briefs: September 20, 2017

         APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause Nos. DN 13-09 and DN 13-10 Honorable Robert G. Olson, Presiding Judge.

          For Appellant: Dana A. Henkel, Terrazas Clark Henkel, P.C., Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Mark E. Westveer, Glacier County Attorney, Cut Bank, Montana.



         ¶1 A.N. (Mother) appeals the termination of her parental rights to her children, N.R.A. and V.A.A., by the Ninth Judicial District Court, Glacier County. Mother raises three issues on appeal, but we address only the following issue, and affirm:

         Did the District Court err by denying Mother's motion to set aside her relinquishment of parental rights?


         ¶2 On April 24, 2013, the Department of Public Health and Human Services, Child and Family Services Division (DPHHS or Department), filed a Petition for Emergency Protective Services and Temporary Investigative Authority as to N.R.A., then two years old, and V.A.A., six months old. The children had been left with family members by their parents. The family members discovered that V.A.A. had severe diaper rash, urine burns, and a yeast infection. The parents were arrested on outstanding warrants, and Father admitted they had used methamphetamine in front of the children, though Mother denied this allegation. DPHHS took protective custody of the children and placed them with relatives in Cut Bank, who lived near the parents. In September 2013, the Cut Bank relatives were no longer able to care for the children, and they were moved to another kinship placement in Gardiner, a significant distance from the parents. Mother asserted that this placement made visitation very difficult, and the District Court ordered DPHHS to make "every effort" to increase visits between her and the children.

         ¶3 In December 2013, the District Court determined the children were youths in need of care due to physical neglect and exposure to dangerous drugs, and granted temporary legal custody to DPHHS. Treatment plans were approved for both parents. The parties would later dispute whether a proper adjudicatory hearing had been conducted.

         ¶4 In November 2014, DPHHS filed a petition to terminate Father's and Mother's parental rights based on their failure to successfully complete their treatment plans. In May 2015, the District Court terminated Father's parental rights due to continued drug use, failure to complete treatment, and exposing the children to a sex offender, among other grounds. However, with regard to Mother, the District Court concluded that, while Mother had initially done poorly on her treatment plan, she had made positive improvements in her life, and "earned the right to try to parent her children." The District Court approved a second treatment plan.

         ¶5 In August 2015, the DPHHS case worker met with Mother and explained that she was not complying with the second treatment plan, and that the Department was contemplating filing a second time for termination of her parental rights. The case worker told Mother that she could avoid a second termination proceeding by voluntarily relinquishing her parental rights. Mother testified that she was advised by DPHHS representatives that it was more likely she would be able to see her children after her rights were terminated if she voluntarily relinquished them. Mother declined voluntary relinquishment, and canceled the relinquishment counseling that had been scheduled for her.

         ¶6 On December 1, 2015, DPHHS filed a petition to terminate Mother's parental rights, based on her failure to complete her second treatment plan. The same day, Mother notified DPHHS that she wanted to relinquish her parental rights. On December 4, 2015, a DPHHS permanency planning specialist met with Mother and conducted a three-hour counselling session regarding relinquishment, as required by § 42-2-409, MCA. At the end of the session, Mother signed an affidavit waiving all her parental rights and relinquishing her children for adoption, affirming therein that she was signing voluntarily and without undue influence. Although encouraged to speak with her attorney, Mother declined the opportunity to do so before signing.

         ¶7 On January 6, 2016, Mother's attorney asserted during a hearing that Mother was acting under duress when she had waived her rights to the children, and she wished to withdraw her relinquishment. On February 1, 2016, the District Court conducted a hearing to consider the validity of Mother's relinquishment. Mother, the DPHHS case worker, the placement specialist, and a CASA advocate testified. On March 10, 2016, the District Court entered an ordering denying Mother's motion to revoke her relinquishment of parental rights, finding that Mother's relinquishment was made "knowingly, intelligently, and ...

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