DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.J.G., the Mother,
Appellant,
v.
A. JULIA GRAVES,
Appellee.
No. 4D21-1675
[January 5, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312020DR000518.
Nikie Popovich of Popovich Law Firm, P.A., Orlando, for appellant.
A. Julia Graves of Law Office of A. Julia Graves, P.A., Vero Beach, for
appellee.
CIKLIN, J.
M.J.G. (“the mother”) timely appeals a “Final Judgment of Termination
of Parental Rights for Purpose of Adoption of Minor Child” entered in favor
of A. Julia Graves, the adoption entity (“the intermediary”). Specifically,
the mother challenges the trial court’s denial of her motion to withdraw
her consent. She argues the trial court erred by determining she did not
meet her burden of proving that the consent was the product of duress by
the father’s conduct and the intermediary’s conduct and statutory
violations. Recognizing that our standard of review is abuse of discretion,
we affirm.
This appeal arises from a termination of parental rights (TPR) action for
the purpose of adoption, whereby the trial court entered judgment
terminating the parental rights of the mother and the father based on their
respective consents to adoption.
The mother discovered she was pregnant in late April 2019,
approximately five months into her pregnancy. She attempted to contact
the father concerning the pregnancy, but the father did not respond to her
calls and messages.
In June 2019—after still not hearing from the father—the mother
considered adoption and contacted an agency known as “Heart of
Adoptions” (“HOA”), which is not a party to this action. HOA provided the
mother with a written disclosure form, obtained her signed
acknowledgment, and gathered information regarding her social and
medical history. As part of the process with HOA, the mother was informed
of all alternatives to adoption. The mother voluntarily chose a family in
Michigan and accepted at least $3,000 from the Michigan family. HOA
also contacted the father concerning the adoption and mailed him the
disclosures.
Some weeks after the initial contact, the father finally responded to the
mother’s messages and proposed that any arrangements with the
Michigan family be abandoned and that the father’s cousin and the
cousin’s fiancée adopt the child. In doing so, the father insinuated that
an adoption by his family members would allow the mother to see the child
in the future. The cousin and her fiancée hired the intermediary to
facilitate the adoption and promised the mother $5,000 and additional
funds to cover her expenses. Up until the time the child was born, the
father continued to encourage the mother to allow his cousin to adopt the
child. The mother ultimately canceled the adoption process with the
Michigan family.
On July 17, 2019, the mother gave birth to a boy. Prior to giving birth,
the mother notified the intermediary that she was being induced. The
mother notified the father of the child’s birth, sent the father a picture of
the child, and wrote: “I’m scared of losing him forever,” and “I asked [the
intermediary] if they would let me visit him.” The father texted to the
mother: “But you are not [losing] him[,] he will be around,” and “[b]ut he
is going to be very close to us both.”
The mother spent two full days with the child in the hospital. On the
morning of July 19, 2019, the intermediary brought the consent
documents to the hospital. After several hours of deliberation and
discussions with the mother’s brother, who was present at the hospital,
the mother changed the child’s clothes, packed his bag for departure, and
signed the consent to release the child to the intermediary as the adoption
entity.
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After the mother left the hospital, the intermediary delivered part of the
promised $5,000. At that time, the mother did not advise the intermediary
that she had changed her mind.
On the evening of July 19, 2019, the mother emailed the adoptive
parents and urged them to “love him, protect him, don’t let anything
happen to him[.] I want to be able to be in his life.”
During the morning of July 20, 2019, the mother texted the father
indicating that the mother thought she had made “a mistake.”
In June 2020, the intermediary petitioned to terminate the mother’s
and father’s parental rights. As grounds, the intermediary contended that
each parent had executed a valid consent, but it noted that the mother
was now challenging the validity of her consent, making the termination
contested. The mother moved to withdraw her consent on July 21, 2020,
contending that her consent “was obtained by fraud; is fundamentally
flawed because it does not comport with the adoption statutes; and the
adoption entity violated the Mother’s due process rights when obtaining
the consent.”
A final judgment terminating parental rights for the purpose of adoption
of the minor child was entered in April 2021. The mother appeals.
On appeal, the mother argues the trial court erred because she
presented clear and convincing evidence that her consent was the product
of duress. The intermediary argues its evidence revealed that the mother
was fully informed and simply regretful as she signed a disclosure of her
rights with HOA.
This court reviews the denial of a motion to withdraw consent to
adoption for an abuse of discretion. See W.T. v. Dep’t of Child. & Fams.,
846 So. 2d 1278, 1281 (Fla. 5th DCA 2003). “If reasonable [persons] could
differ as to the propriety of the action taken by the trial court, then the
action is not unreasonable and there can be no finding of an abuse of
discretion.” Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980).
“A parent who seeks to invalidate his or her purported consent to the
termination of parental rights has the burden of proving fraud or duress
by clear and convincing evidence.” T.G. v. Dep’t of Child. & Fams.,
9 So.
3d 48, 49 (Fla. 4th DCA 2009) (affirming denial of motion to withdraw
surrender of parental rights where, prior to accepting surrender, the court
engaged in “thorough colloquy” with mother explaining the surrender’s
permanency). This court has defined duress as “[a] condition of mind
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produced by an improper external pressure or influence that practically
destroys the free agency of a party and causes [them] to do an[] act or make
a contract not of [their] own volition.” K.C. v. Adoption Servs., Inc.,
721 So.
2d 811, 812 (Fla. 4th DCA 1998) (quoting Herald v. Hardin,
116 So. 863,
864 (Fla. 1928)). To prove duress, “it must be shown (a) that the act sought
to be set aside was effected involuntarily and thus not as an exercise of
free choice or will and (b) that this condition of mind was caused by some
improper and coercive conduct of the opposite side.”
Id. (quoting City of
Miami v. Kory,
394 So. 2d 494, 497 (Fla. 3d DCA 1981)).
The trial court entered a thorough and well-reasoned order denying the
mother’s motions to dismiss the TPR petition and withdraw her consent.
In part, the trial court reasoned:
I. The Mother spent two full days with the baby. On July
19, 2019, the Mother notified [the intermediary] that it was
okay to come to the hospital. On the same date, [the
intermediary] brought the consent to the hospital. The Mother
texted the Father at 11:57 a.m. “[The intermediary] has been
here twice, I couldn’t get myself to sign papers yet, I’m scared
of losing him forever.” Notwithstanding, the Mother signed
the consent on July 19, 2019 at 3:45 p.m. after several hours
of deliberation and discussions with her brother, . . . who was
present. The consent was witnessed by [a notary], [the
intermediary], the Mother’s brother, . . . and the Father. The
Mother has a college education and can read, write and
understand English. Prior to signing the consent, the Mother
never articulated that she had changed her mind, had second
thoughts or did not want to go through with the adoption . . .
. only that she wanted more time and wanted her brother
present. She was given the time she needed and admitted and
acknowledged that she fully knew what she was signing and
that she voluntarily and knowingly relinquished her rights to
her newborn baby. The Mother changed the child’s clothes,
packed his bag for departure and signed the consent to release
the child to [the intermediary] as the adoption entity.
Although clearly the Mother had a tough decision, she
weighed her options, discussed her options and no one
pressured her or prevented her from leaving the hospital with
her baby and abandoning the adoption.
....
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T. The Mother claims that her written consent was
obtained by fraud or duress; is fundamentally flawed because
it does not comport to the adoption statutes and the
intermediary/adoption entity violated the mother’s due
process rights when obtaining the consent. Specifically, she
asserts that she was manipulated; was not interviewed prior
to the adoption; was not provided or explained the proper
disclosure; was not told of alternatives to adoption or required
counseling; that the child was placed in a home before the
home study; failed to wait 48 hours for consent; and that
adoption entity’s address and telephone number were not
listed in the consent nor was she provided a copy.
U. Procedural safeguards are in place to ensure biological
parents are fully advised on the legal ramifications of
consenting to an adoption and to prevent undue pressure
from being exerted by the adoption entity. Although the Court
finds that there were several procedural violations, the Mother
freely and voluntarily contacted and worked with Hearts of
Adoption, chose her adopters, was interviewed, completed the
disclosures and was advised of alternatives to adoption. She
thereafter initiated contact and reached out to [the
intermediary] to come to the hospital. The Mother’s consent
was signed more than 48 hours after birth and the Mother
was given additional time as requested prior to signing the
consent. Section 63.2325, Florida Statutes, limits the Court’s
authority to revoke consent to an adoption based on a failure
to comply with statutory requirements unless the extent and
circumstances of such failure result in a material failure to
fundamental fairness in the administration of due process or
failure constitutes or contributes to fraud or duress in obtaining
the consent. Due to the Mother’s decision to change the
adoption entity just prior to birth and the mistaken belief that
it would be a relative adoption, not every detail of the statutory
requirements were followed. However, the Mother was fully
informed of her rights at least a month before the child was
born to make her decision. Any prejudicial impact from non-
compliance with the statutory requirements was unlikely and
the record did not demonstrate that the Mother was denied
fundamental fairness in the administration of due process.
See also J.S. v. S.A.,
912 So.2d 650 (Fla. 4th DCA 2005)[.]
V. Section 63.082(4)(b), Florida Statutes, expressly
provides that consent can be withdrawn only if the court finds
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that the consent was obtained by fraud or duress. Duress is
defined as a condition of the mind produced by an external
pressure or influence that practically destroys the free agency
of a party and causes him/her to do an act or make a contract
not of his/her own volition. T.G. v. DCF,
9 So. 3d 48 (Fla. 4th
DCA 2009). The Mother has the burden to prove fraud or
duress by clear and convincing evidence. J.S. v. SA,
912 So.
2d 650 (Fla. 4th DCA 2005). Further, the Mother has the
burden to prove by clear and convincing evidence that her
“reliance on the promise was caused by some improper or
coercive conduct of the opposite side.” See also T.R. v.
Adoption Servs, Inc.,
724 So. 2d 1235 (Fla. 4th DCA 1999); KC
v. Adoption Servs, 721/811 (Fla. 4th DCA 1998); and In Re:
Adoption of Doe,
524 So. 2d 1037 (Fla. 5th DCA 1988). The
Mother’s consent resulted primarily from her own financial
issues rather than fraud or duress. Even though the Father
pressured the Mother to place the child with his family in
Florida instead of the Michigan couple, his behavior did not
rise to the level of improper or coercive conduct necessary to
prove duress. Once the Father learned of the baby, he had
presented and offered several alternatives to adoption with the
Mother, including a 50/50 custody and financial
arrangement. There was no credible evidence that the Mother
was ever promised visitation with the child; only that she
inquired. . . . Based upon all of the facts and circumstances
in this case, the Mother’s decision to consent to the adoption
was not due to reliance upon any of the Father’s
representations and consent to adoption cannot be withdrawn
on a mere whim, change of heart or mistake. See W.T. v. DCF,
846 So. 2d 1278 (Fla. 5th DCA 2003); In re: Adoption of P.R.
McD,
440 So. 2d 57 (Fla. 4th DCA 1983); and J.S. v. S.A.,
912
So. 2d 650 (Fla. 4th DCA 2005).
(footnote omitted).
We agree with the trial court’s reasoning, and, under the specific facts
of this case, we find no abuse of discretion. Consequently, we affirm.
Affirmed.
GROSS and DAMOORGIAN, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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