Oral Argument Preview: Validity of Permanent Surrender Agreement in Adoption Case. In re: (C.C.S.), (C.L.S.) v. Adoption by Gentle Care.

Update: On October 27, 2016, by a vote of 4-3, this case was dismissed as improvidently accepted. Voting to dismiss were Chief justice O’Connor, and Justices O’Donnell, Lanzinger and O’Neill. Justices Pfeifer, Kennedy, and French dissented. 

Read an analysis of the oral argument here.

On August 31, 2016, the Supreme Court of Ohio will hear oral argument in the case of In re: (C.C.S.), (C.L.S.) v. Adoption by Gentle Care, 2016-0395. At issue is the validity of the permanent surrender agreement in the case, and whether an adoption agency owes a fiduciary duty to a relinquishing parent to ensure that relinquishment is given without duress.

Case Background

Petitioner-Appellant C.L.S. and her five children lived with J.G. J.G. was not the father of any of the children. J.G. was the family breadwinner, while C.L.S. stayed home with the children. In 2013 C.L.S., then 38, became pregnant. J.G. again was not the father. J.G. told C.L.S. she could not bring the new baby into the household.

On March 27, 2014, C.L.S. contacted Respondent-Appellee Adoption by Gentle Care (“Gentle Care”) about the potential surrender of her sixth child, who was due to be born in less than a week. C.L.S. met with Kelly Shumaker (“Shumaker”), a social worker with the agency.  At the meeting, Shumaker gave C.L.S. a number of pamphlets and packets of information about adoption and alternatives to adoption. The parties dispute whether there was any discussion about the pamphlets and C.L.S.’s options, but agree that at the end of the meeting, C.L.S. had stated that she wanted to place her child up for adoption.

Four days later, on March 31, C.L.S. gave birth to a son, C.C.S. On April 4, a day longer than was statutorily required, C.L.S. executed an affidavit of relinquishment and a permanent surrender of the child to Gentle Care in front of two social workers who explained the alternatives to surrender as well as the surrender process and ramifications. This meeting was recorded, but some portions are unintelligible. Gentle Care subsequently filed the permanent surrender agreement in juvenile court and placed the child with an adoptive family, who then filed a petition for adoption in probate court.

Several weeks later, C.L.S. informed Shumaker that she wanted the child back and that the surrender was never her decision to make. She told Shumaker that J.G. had forced her to agree to the adoption, but now regretted the decision. Shumaker denied the request, causing C.L.S. to file a petition to withdraw the permanent surrender with the probate court where the adoption petition was pending.

When the adoptive parents learned of C.L.S.’s petition, they voluntarily dismissed their adoption petition and returned the child to Gentle Care. Gentle Care, however, refused to return the child to C.L.S., thus prompting C.L.S. to file a petition for a writ of habeas corpus in juvenile court, challenging the validity of the permanent surrender agreement. C.L.S. claimed that the permanent surrender was made involuntarily, as a result of duress, misrepresentation, undue influence and lack of informed consent.

The juvenile court then held a five-day trial, in which the permanent surrender, affidavit of relinquishment, and recorded colloquy of the permanent surrender were read into the record, and C.L.S. presented her case in chief. Before Gentle Care presented its case, it moved for an involuntary dismissal pursuant to Civ.R. 41(B)(2), which was granted by the juvenile court.

First Appeal

C.L.S. appealed the dismissal to the 10th District, which reversed and remanded in a 2-1 decision. The appeals court held that the juvenile court entry did not contain sufficient factual findings for the appeals court to determine whether the involuntary dismissal of C.L.S.’s habeas corpus petition was appropriate.

What Happened On Remand

On remand, the juvenile court held a status conference with the parties and then submitted a 35-page decision that detailed the evidence presented and the reasoning for the involuntary dismissal. In particular, the juvenile court concluded that C.L.S. was not sufficiently credible and that she was not forced into the adoption. Instead, the juvenile court held that involuntary dismissal was appropriate because the evidence showed that C.L.S.’s decision to execute the permanent surrender was a product of free will.

Second Appeal

C.L.S. again appealed the dismissal to the 10th District. However, this time with the aid of the juvenile court’s detailed decision, the appeals court unanimously affirmed the dismissal. In its decision, authored by Judge Tyack and joined by Judges Klatt and Brunner, the court held that there was ample evidence of a valid permanent surrender agreement. The juvenile court’s involuntary dismissal was upheld.

 Votes to Accept the Case

Yes: Justices Pfeifer, French, Kennedy and O’Neill

No: Chief Justice O’Connor, and Justices O’Donnell and Lanzinger.

Key Statutes and Precedent

Civ.R.42 (B)(2)(in a bench trial, after the plaintiff’s case, defendant can move for dismissal for failure to prove any right to relief.)

OAC 5101:2-42-09(B)(1) (Sets forth obligations of public or private agency at least seventy-two hours prior to the execution of the permanent surrender agreement.)

In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996) (defining “undue influence” as “any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would do if left to act freely.”)

Tallmadge v. Robinson, 158 Ohio St. 333, 109 N.E.2d 496 (1952) (“In determining whether a course of conduct results in duress, the question is not what effect such conduct would have upon an ordinary man but rather the effect upon the particular person toward whom such conduct is directed, and in determining such effect the age, sex, health and mental condition of the person affected, the relationship of the parties and all the surrounding circumstances may be considered.”)

Morrow v. Family & Cmty. Servs. of Catholic Charities, Inc., 28 Ohio St. 3d 247, 504 N.E.2d 2 (1986) (“The real and ultimate fact to be determined in every case is whether the [birth parent] really had a choice; whether she had [her] freedom of exercising [her] will.”)

Strock v. Pressnell, 38 Ohio St. 3d 207, 527 N.E.2d 1235 (1988) (defining a “fiduciary” as “a person having a duty, created by his undertaking, to act primarily for the benefit of another.”)

C.L.S.’s Argument

The relationship between a natural parent and her child is critically important. As a fiduciary for the relinquishing parent, the adoption agency must take all steps necessary to ensure that the parent’s decision to relinquish is made without duress. Since C.L.S. was under duress when she made the decision to relinquish her child, Shumaker and Gentle Care breached their duties, thereby warranting the grant of the writ of habeas corpus.

A permanent surrender agreement made under duress or undue influence is invalid. The determination of whether a parent was under duress when she relinquished her child is a subjective inquiry; the court must look at the particular circumstances endured by the particular parent. A review of the facts reveals that C.L.S. was under duress when she made her decision to surrender her child. Had J.G. not given her an ultimatum to surrender her child or be put out on the streets with her other children, she would not have given up her child. This ultimatum, given just weeks before C.L.S.’s scheduled caesarian, gave her no choice but to give up her child. The validity of a permanent surrender comes down to whether the party affected really had a choice. C.L.S. had none. The threats made by J.G. in conjunction with the effects of the prescription painkillers and the natural hormonal increase put C.L.S. in an extremely emotional state where she could not make an informed or voluntary decision.

Additionally, Gentle Care did not fulfill its duty in preventing C.L.S. from making a decision while under duress, but rather, contributed to it. By law, Gentle Care was required to fully discuss the options available to C.L.S. before she signed the permanent surrender agreement.  When Shumaker met with C.L.S. she merely presented the packets of information to C.L.S. and did not discuss what they contained. Moreover, Shumaker did not listen to C.L.S. when she repeatedly told Shumaker that she was being forced to surrender her child. Instead, Shumaker was more interested in enriching Gentle Care instead of advocating for C.L.S. Such conduct is a breach of fiduciary duty that the juvenile court ignored.

C.L.S.’s execution of the permanent surrender was made under duress and therefore, not really her choice. When a permanent surrender agreement is made under duress, it is not valid.  C.C.S. must be returned to his mother. Additionally, by allowing C.L.S. to execute the agreement without taking the necessary steps to ensure the relinquishment was made without duress, Gentle Care breached its fiduciary duty. As a result, the juvenile court erred in granting the involuntary dismissal of C.L.S.’s petition for a writ of habeas corpus.

Gentle Care’s Argument

A permanent surrender agreement is irrevocable and can be invalidated only if the birth parent establishes that the execution of the agreement was involuntary. In this case, C.L.S.’s decision to surrender her child was an informed and voluntary decision. It was an exercise of free will. C.L.S.’s attempt to invalidate the permanent surrender by claiming that it was made under duress and that she had no other option is simply not supported by the facts. The juvenile court relied on competent and credible evidence to conclude that C.L.S. herself was not credible and that her decision to surrender was truly her own choice. C.L.S. is essentially asking the court to disregard the well-reasoned decision of the juvenile court based on nothing more than what was presented at trial, and as such, her appeal should be rejected.

Gentle Care acknowledges that the determination of whether an individual was under duress is an inquiry specific to the particular person in her particular circumstances. The juvenile court conducted such an inquiry and determined that C.L.S. was not under duress when she agreed to surrender her child. For example, the juvenile court found that C.L.S. was a 38 year-old, college-educated, strong-willed woman who had dealt with five out-of-wedlock pregnancies before and was capable of making her own decisions. C.L.S. presented her case of duress to the juvenile court, which, after making specific findings, the court rejected.  While C.L.S. persists in her narrative that J.G. gave her an ultimatum to surrender her child or get turned out on the street, she cites no trial testimony in support of that position. There is no doubt that C.L.S. felt some pressure and uncertainty when she executed her permanent surrender agreement. However, this is common to most mothers who agree to surrender their children. It certainly does not amount to the extreme circumstances that are present in the cases where courts have concluded that the surrender was a product of duress.

Finally, C.L.S.’s argument that Shumaker and Gentle Care were fiduciaries who failed in their duty to protect C.L.S. and the child is without merit. First, the relationship between a relinquishing parent and an adoption agency has never been, nor should be, characterized as a fiduciary one. Second, Shumaker and Gentle Care fulfilled their duties under Ohio law. Despite C.L.S.’s unsupported allegations, Shumaker did discuss the surrender procedure and the alternative options with C.L.S. Shumaker waited a day longer than the statutorily-required 72-hour period to have C.L.S. execute the permanent surrender agreement. Additionally, although it was not required, Shumaker also had C.L.S. sign an affidavit of relinquishment which stated that she could seek counsel and that she had the absolute right to refuse to place her child for adoption. C.L.S. voluntarily signed these agreements. Therefore, even if the court finds this relationship to be fiduciary, Shumaker and Gentle Care fulfilled their duties.

Gentle Care also argues that this appeal is nothing more than error correction and should be dismissed as improvidently accepted.

C.L.S.’s Proposed Proposition of Law:

When determining if a parent is voluntarily relinquishing custody of her child it is imperative that all steps be taken to insure that such relinquishment is given without duress and duress is particular to that individual at the time she makes her decision. The fiduciary provided by the Appellee must protect the Appellant.

Amicus In Support of C.L.S.

Amicus, Ohio Birthparent Group (“OBG”) and Kate Livingston, Ph.D. (“Dr. Livingston”), filed a joint brief in support of C.L.S.  OBG is an organization dedicated to advocating for the rights of birthparents. Dr. Livingston is the founding director of OBG and teaches and conducts research on birthparent experiences, adoption law, and adoption politics. Collectively, OBG argues that the 10th District erred in its decision to affirm the juvenile court’s involuntary dismissal. Like C.L.S., OBG asserts that Gentle Care failed to discuss alternative options meaningfully with C.L.S. Moreover, OBG argues that there was not competent and credible evidence for the juvenile court to conclude that such discussion did occur. Shumaker did not fulfill her duties in fully inquiring into C.L.S.’s motivation for surrendering her decision or else she would have realized that the decision was being made under duress.

 Amicus In Support of Gentle Care

Amicus, American Academy of Adoption Attorneys (“Academy”), filed a brief in support of Gentle Care. Academy is a non-profit organization of legal professionals throughout the U.S. and Canada dedicated to the practice of adoption law.  Its mission is “to support the rights of children to live in safe, permanent homes with loving families, to protect the interests of all parties to adoptions, and to assist in the orderly and legal process of adoption.”  The Academy asserts that when determining whether a permanent surrender agreement is valid, the court should look to whether the parent’s decision was an exercise of free will.  After reviewing the issues of fact and law, the juvenile court did not find clear or convincing evidence of fraud, duress or undue influence that would invalidate the surrender. Since this was a reasonable conclusion within the juvenile court’s discretion, the supreme court should uphold the decision of both lower courts. Private adoptions rely on the permanency of surrenders.

Student Contributor: Danielle List

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