What’s On Their Minds: 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. 

“I’m just looking for any basis at all to say that the social worker is a fiduciary in this situation.” Justice French, to counsel for C.L.S.

On August 31, 2016, the Supreme Court of Ohio heard 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.

Style Point

Both the briefs and arguing counsel used names rather than initials in this case, but the blog will continue to use initials. Pursuant to the Supreme Court writing manual, “in any case in which a juvenile is a party, the caption and body of the opinion shall refer to the child by initials,” and “to the extent that reference to another person is likely to reveal the identity of the juvenile, that person should also be identified by initials or by familial relationship.” In this post, C.L.S. will also be referred to as the mother.

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 disagree about whether there was any discussion about the pamphlets and C.L.S.’s options, particularly temporary placements, but agree that at the end of the meeting, C.L.S. had stated that she wanted to place her child 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 her son back. She told Shumaker that J.G. had forced her to agree to the adoption, but now agreed that the baby could join the family. 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. The trial court granted an involuntary dismissal to Gentle Care at the end of C.L.S.’s case.

Appeals

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. On remand, the court issued a 35-page opinion that detailed the evidence presented and the reasoning for the involuntary dismissal. C.L.S. again appealed the dismissal to the 10th District, which this time unanimously affirmed the trial court decision. As an aside, Judge Jennifer Brunner, who sat on both appeals, has a pre-law background in social work.

Read the oral argument preview of the case here.

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 a permanent surrender agreement.)

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.”)

At Oral Argument

Arguing Counsel

Erik L. Smith, Columbus, for Amicus Ohio Birthparent Group and Kate Livingston, Ph.D., in support of appellant C.L.S.

Stephen E. Hillman, Dublin, for Appellant C.L.S.

Jon W. Oebker, Tucker Ellis, Cleveland, for Appellee Adoption by Gentle Care

C.L.S.’s Argument

C.L.S. shared her argument time with Amicus Ohio Birthparent Group and its founding director.  As I have observed on many an occasion, this seldom makes for an effective argument.  Usually the lawyer who goes first uses almost all the time despite claiming to use only a small portion. That is exactly what happened here, and the mother’s lawyer, Mr.  Hillman, got so frustrated by this that he physically got up and walked to the podium as Mr. Smith was talking way past his allotted time, as if to whisk him away, and the Chief firmly sat him back down.  And honestly?  I didn’t think Mr. Smith added much to the argument except some genuinely passionate feeling.

Amicus’ Argument in Support of C.L.S.

The issue before the court is not really one of the mother’s credibility as the lower courts tried to make it seem. The real issue is whether Gentle Care social worker Kelly Shumaker and her supervisor did their jobs sufficiently and gave the mother sufficient information so that her permanent surrender agreement would be knowingly and intelligently made.

The facts of what happened here are not disputed. C.L.S. was living with J.G., her domestic partner in the spirit of a common law marriage in a family with 5 other children, and J.G. was not their biological father. When C.L.S. was 3 weeks away from her due date, her partner for the first time said she could not bring the baby home. C.L.S. is a stay-at-home mother, unemployed, her children have lived there for 6 years and considered J.G. a father figure.  They lived as a family.  That is not disputed.  The question is, is that duress? Even if it isn’t, there is still the issue of whether C.L.S. was counseled effectively.  Did Gentle Care follow the law and tell her about her options and give her the information she needed to make the permanent surrender decision?

In this situation, the Ohio administrative code requires an in person meeting with certain requirements. One of those is to discuss options. There was one in person meeting, at a Bob Evans Restaurant, between C.L.S. and social worker Shumaker. At that meeting, Shumaker went over paperwork, and interviewed C.L.S. about her family situation. Nothing in any case note indicates what options were discussed other than adoption and keeping the child. All other contacts were by phone and text messages.

This court must send a message to adoption agencies throughout the state that under the Ohio administrative code, agencies are required to discuss options in lieu of surrender, and not just give lip service to this rule.

There is simply no evidence in this record that temporary custody was discussed—nothing in the case notes, or in the testimony. The only thing discussed was foster care, other than some boilerplate in the permanent surrender agreement that says the person who signs acknowledges all options were discussed, including temporary and foster care options. C.L.S. did sign that agreement, and that is what Gentle Care is hanging its hat on.

C.L.S.’s Argument

This court must make it clear to all adoption agencies that they must follow the law, which does not mean meeting for a few minutes at a Bob Evans, handing over a bunch of papers, and it’s over. The pertinent administrative code regulations are mandatory. Such agencies must follow the law to the letter because the legislature has essentially given them the authority of a probate court.

In this specific situation, this social worker was a fiduciary for C.L.S. When Ms. Shumaker took the position that “I’m here to help you,” then by her own actions, she made herself a fiduciary. Shumaker was supposed to be looking out for C.L.S. She knew C.L.S. had undergone major surgery and was on opioid medication. Is a mother in such circumstance able to relinquish such an important right? Her trial expert certainly thought not, and both the trial court and the appeals court ignored his testimony.

There is simply no evidence in this record that all the options were explained to this mother. In particular, temporary placement simply was not discussed.

Gentle Care’s Argument

The permanent surrender agreement in this case was voluntarily signed by the mother. All options were adequately discussed by Gentle Care. C.L.S. knew what she was doing, and was not under duress. Once signed, it was a valid, irrevocable permanent surrender. That gave legal custody of the child to Gentle Care.

Returning the child to C.L.S. was not an option. As the agency that was responsible for the best interests of C.C.S., Gentle Care had a responsibly and a duty to act in that child’s best interest. Gentle Care got unsolicited, increasingly negative information about the mother, who went on social media and television making false accusations about the agency. The notes indicate the proposed adoptive parents were frightened of C.L.S.

Difficult life circumstances and pressure do not automatically equate to duress. All mothers considering the permanent surrender of a child face very hard decisions, but that is not duress. Duress exists when a person is unable to exercise free will. In this case, C.L.S. had a choice. She may not have liked the choice but she still had a choice—she chose to contact Gentle Care, and she chose to execute the permanent surrender agreement.

The Ohio administrative code only requires that all the options including temporary placement, have to be discussed before a permanent surrender. The evidence in this case is that the document C.L.S. signed stated that the adoption process was explained to her, and that there was discussion and counseling on all options including temporary custody. That document was signed at her house, with two social workers present, and the colloquy surrounding it was recorded and entered into evidence at the trial. Ms. Shumaker testified that she went over all the materials, including the pamphlet that describes temporary surrender. In the recording, which was played for the trial judge, C.L.S. acknowledges that she was informed about the temporary surrender option. Both social workers testified that there was nothing about C.L.S. that day that indicated that her ability to make a decision was compromised.

The trial court heard testimony for a day and a half, and found C.L.S. to be disingenuous, and that her claims of duress were feigned. Opposing counsel and the court may disagree with that viewpoint, but the fact is there was competent, credible evidence to support the trial judge’s determination. The trial court made a factual finding that C.L.S. was informed about temporary placement, and that was affirmed on appeal.

What Was On Their Minds

Legal Principles Involved

What is the standard of law in this case, asked Justice French? She commented right out of the box that she had voted to take this case in because she thought the proposition of law looked like a very general standard the court needed to address, but that it was now seeming more like error correction. She suggested to amicus counsel that he put things in more general terms or the case would be headed (at least for her) for an impov (meaning appeal improvidently accepted.)

What went wrong here from the agency’s standpoint that should be corrected, asked Justice O’Neill? What part of the law was not followed? Didn’t the mother receive a pamphlet that explained the laws? What legal standard does the Supreme Court have at this point when someone is under duress to ensure that all their options have been explained to them carefully by a social worker?

Gentle Care Agency

How did the mother find out about this agency, asked Chief Justice O’Connor? Did they approach her or did she approach them? (answer: she found them online.) How did she get the social worker? Later, she commented that while the law does allow for the surrender to a licensed agency in Ohio, the requirement that the placement be knowingly and voluntarily made, without force, duress, or reward, is a requirement whether the relinquishment takes place in front of a magistrate or probate judge or a private adoption agency. No one disagreed.

Did the agency get compensated for this placement, asked Justice Pfeifer? How much? (answer: $30,000) Did they give that back to the first adoptive parents? Isn’t there a profit motive involved here? Did the agency pay maternity cost for the mother (answer: no)

The Social Worker

Was the mother’s only source of information the social worker from Gentle Care, asked Chief Justice O’Connor? Is the social worker’s ability to be impartial in giving advice being questioned here? Was the social worker not motivated to give the advice? Did she give incomplete advice? Was she not looking out for the mother’s best interest?

The Temporary Surrender Option

Where in the record will it show that the temporary surrender option was discussed with the mother, asked Justice O’Neill? Justice French later asked the same question, commenting that she saw where the social worker said she carefully went through the pamphlet, but saw nothing where she said she specifically discussed temporary placement. She asked if the trial court made a factual finding that the mother was informed about temporary placement, and whether the court had to assume such a finding was made.

Options Discussed and The Permanent Surrender

Was the mother’s only contact the brief meeting at Bob Evans, asked Justice Pfeifer?

Was the mother represented by counsel, asked Chief Justice O’Connor? (answer: no) Did she ever ask for a lawyer? (amicus lawyer didn’t think so). Later, she commented that normally in a private placement adoption, the biological mother will come into probate court and have a hearing before a judge or a magistrate who goes through a litany of questions to ascertain the mother’s motivation to place the child for adoption. None of that took place here, did it, she asked? (no, said plaintiff’s counsel.) Was there any encounter here with the probate court? Later, she asked the agency lawyer whether an alternative would have been to dissolve the permanent surrender, give the child back to the mother, and refer the matter to children’s services if concerned about how the child fares in the home. Was that option discussed or considered, she asked? Why wouldn’t that have been a solution, she asked? She also asked if the agency would knowingly take a relinquishment from a mother who was still on opioid pain medication.

Are there any particular statutes or sections of the administrative code that would govern what an agency is to do in a case like this, asked Justice Lanzinger?

What duty does a social worker have to demonstrate that the options were explained pursuant to the administrative code, asked Justice O’Neill? When and where did that take place here?

When and where did the permanent surrender agreement get signed, asked Justice O’Donnell? Who was present? How long did the meeting take? Was this meeting recorded?

Fiduciary Duty

What precedent is there to support the notion that a social worker is a fiduciary in this kind of situation, asked Justice French? Is it only the agreement between the agency and the mother?

Duress

Is the issue of whether or not there was duress a legal question, asked Justice O’Donnell? Is there any expert guidance in the record the court could look at to confirm actual duress?

How pregnant was the mother when she decided to give the child up for adoption, asked Chief Justice O’Connor? Was the mother under duress when she executed the permanent surrender? The Chief commented that C.L.S. was told at home she could not bring the child into the family. So her motivation for giving up the child was she could not come home with the baby. What is the agency’s definition of duress?

Justice Pfeifer asked this very pointed question to the agency lawyer-The mother is living with a man with 5 children who consider him to be a father figure, with no indication of any problems requiring Children’s Services to be called. Presumably she and her children have some affection for this man, and he says I don’t want that baby to come home. What would you call that if it is not duress, he asked?

Justice O’Neill promptly followed up, commenting that he didn’t think there was any question the mother was under duress. He commented that he thought the agency lawyer was “kind of trying to thin it out so it doesn’t look like it affected the decision.”

The Child’s Fate

Did the first set of potential adoptive parents give the child back to the agency once the biological mother contacted the agency and said she wanted to renege on her consent to the adoption, asked Chief Justice O’Connor? How did the adoptive parents decide not to accept the placement of this child? Once the agency got the child back, why not just give the child back to its mother at that point, she asked, in a key question of the day.

Where is the child now and what is its legal status, asked Justice Pfeifer? Is the plan for adoption by the current foster parents?

Is there presently a case pending in the Franklin County Probate Court, asked Justice O’Donnell? When the agency lawyer first said yes, and then said he believed so, Justice Pfeifer jumped all over him, and asked which it was—yes, or he didn’t know. The latter, he conceded.

But you do know there are parents who want to adopt the child, supplied Justice French, helpfully, to the agency counsel. (yes, he said.)

How it Looks from the Bleachers

To Professor Emerita Bettman

Complicated. The bench in this case was both hot and testy. I think at least three justices—O’Connor, Pfeifer, and O’Neill–would like to find for the mother, but in a way that is more than just error correction. That’s the tricky part. It is most unlikely the court will find a fiduciary duty here, but maybe it will expand the definition of duress. All three, Pfeifer and the Chief in particular, seemed disgusted with the agency, particularly in not simply deciding to return the child to the mother when the mother told them she had changed her mind and the adoptive parents withdrew their adoption petition.  Also, the three of them seemed more than willing to find that a stay-at-home mother being told she could not bring the baby home into the family was clearly under duress. As an interesting aside, according to the court’s website, O’Neill is an adoptive parent.

The key to this case seems to be whether the Gentle Care social workers discussed a temporary relinquishment option with the mother. The wild card on this seems to be Justice French. She made it clear right at the outset she wasn’t going for just error correction, and amicus counsel never successfully answered her question about setting forth a general proposition of law, let along explaining the basis for claiming a fiduciary relationship here.  She wasn’t satisfied with what she had apparently read in the record about the temporary placement option, but wondered whether the supreme court wasn’t obligated to accept the fact that the trial court did make a factual finding on this point.  The way she resolves this question to her satisfaction may well determine the fate of this case.  Or at least her vote.

Justices Lanzinger and O’Donnell were unusually quiet. In other areas of the law, O’Donnell has always been a big proponent of finality, which probably means he will go with the agency here. Add to that the fact that after the 10th district sent the case back once, the trial judge provided a 35-page detailed decision which formed the basis of the affirmance the second time on appeal.  The court cannot simply ignore that, especially if the trial judge did find that temporary relinquishment was an option discussed with the mother. And C.L.S. did sign a document which stated that—a point made by Justice O’Donnell. As the agency lawyer insisted, evidence supported by some competent credible evidence must be affirmed, even if appeals courts disagree with the decision. That is a boilerplate given.  But what is in the record about the temporary placement? That will be key.

As I said, the bench got testy—with everyone. Justice French, who is seldom testy, seemed annoyed right out of the box with amicus counsel’s inability to explain why the case was more than just error correction, and with the mother’s lawyer, who she felt wasn’t quite fairly representing the record. When he replied during rebuttal that he had perhaps been disingenuous, she quite curtly responded, “I don’t think you want to be disingenuous in here.”

Justice Pfeifer was visibly disgusted with the agency position, and his hostility to the agency’s lawyer was pronounced, particularly when Mr. Oebker appeared to waffle on whether there was an adoption petition presently pending in the Franklin County Probate Court. And the Chief went into her cross-examination mode with Oebker, seeming to take him to task for having such a cramped view of duress.

Still, despite all this, the finality of adoption proceedings has got to be of primary importance, and may yet carry the day.

My last thought was this. What if some day, this little boy C.C.S. watches this oral argument?

To Student Contributor Danielle List

I wouldn’t be surprised if this case ended up being improvidently accepted. The clear dispute in this case comes down to the facts. You could tell that this sentiment was felt across the bench throughout most of the argument. Nonetheless, this did not stop several of the justices from painstakingly attempting to draw out a tenable legal dispute.  However, neither Amicus Curiae Ohio Birthparent Group nor C.L.S. gave the bench much to work with. The closest they reached to a question of law was the discussion of a potential fiduciary relationship between a birthparent and an adoption agency. While the justices seemed willing, even wanting, to entertain an argument that could justify characterizing the nature of this relationship as fiduciary, none was given. Instead, C.L.S. posited a very limited and factual argument that the particular social worker in this case made herself a fiduciary to C.L.S. by virtue of her interactions and conversations with C.L.S. in this case. Essentially, without any discussion of agency principles, C.L.S. maintained that the Gentle Care social worker became a fiduciary to C.L.S. by virtue of telling her that “I am your social worker.”

Even if this case does not come out as improvidently accepted, Gentle Care will probably win on the merits. With that being said, however, it was clear that none of the justices were all too pleased about how Gentle Care handled the surrender in this case. Persistent questions about the evidence of duress in this case—from the threats C.L.S. received from her domestic partner to the expedited nature of the process and the apparent lack of meaningful discussion of alternatives—showed that there was some doubt that C.L.S executed the surrender on her own free will. Additionally, there seemed to be some hesitation on the bench to fully accept Gentle Care’s contention that the decisions in this case were made entirely on the basis of the child’s best interest and unaffected by any financial considerations. Especially given the substantial power Gentle Care has been granted as a certified adoption agency, the court didn’t hide its disapproval of Gentle Care’s operation. Despite the tragic and unfortunate nature of this case, it seems that the court’s hands are tied and that the power of this case was with the factfinder.

 

 

 

 

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