IN THE MATTER OF: N.R.A. and V.A.A., Youths in Need of Care.
Submitted on Briefs: September 20, 2017
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.
Appellant: Dana A. Henkel, Terrazas Clark Henkel, P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana, Mark E.
Westveer, Glacier County Attorney, Cut Bank, Montana.
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:
the District Court err by denying Mother's motion to set
aside her relinquishment of parental rights?
AND PROCEDURAL BACKGROUND
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.
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.
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
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.
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.
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 ...