In re D.R. , 1988 D.C. App. LEXIS 64 ( 1988 )

ROGERS, Associate Judge,

concurring in part and dissenting in part:

In this appeal the court is presented with another occasion on which to construe the requirements of the District’s statute on the termination of parental rights. The present form of the statute, of recent vintage, reflects a determination by the Council of the District of Columbia, in accordance with that of the surrounding jurisdictions, that birth parents should have a period of time within which to revoke a prior relinquishment of their rights to their child. The Council Committee on Human Services explained that the bill “supports the District’s policy of strengthening opportunities for a child to grow up in his or her own family.” REPORT of the Committee on Human SeRvices on Bill No. 5-135, DistRict of Columbia Relinquishment FOR Adoption REFORM Act of 1983, at 1 (Nov. 17, 1983). The legislation sought to accomplish this by ' “mandatpng] provision of counseling services and extra protections for natural parents who are under a great deal of stress when making the complex decisions surrounding relinquishment.” Id. As one witness testifying before the Council Committee on the Judiciary in support of the legislation stated, the bill would “support efforts to return relinquished children to their birth families by allowing birth parents a definite period of time to rethink their decision [to relinquish their parental rights], especially after all the pressures and stresses are lifted, [so that] they will have one last opportunity to be sure that their decision is the best for them and their children.” REPORT of the Committee on THE JUDICIARY ON BILL NO. 5-135, DISTRICT of Columbia Relinquishment for Adoption REFORM Act of 1983, at 4 (Nov. 16, 1983).

Other witnesses pointed out to the Council Committee considering the bill that the social service agencies did not have a good track record of preparing parents for relinquishment. Id. at 5-6. A number of suggestions for improvements in the bill were made by a variety of witnesses, and the Committee recommended the adoption of many to the Council. Interestingly, the director of the Child Advocacy Center even suggested that “an exact meaning of the term ‘verified writing’ [in the legislation should be provided in the statute].” Id. at 5.

By enacting the legislation to provide a ten-day grace period within which birth parents could revoke a prior relinquishment of their rights, the Council apparently rejected the view expressed by opponents of the legislation that the existing law on revocation was adequate, see J.M.A.L. v. Lutheran Social Servs. of Nat’l Capital Area, Inc., 418 A.2d 133 (D.C.1980) (absent written consent of all parties, revocation only upon showing that relinquishment was not “voluntary” because induced by fraud, coercion, material mistake or other factors bearing on voluntariness), a view consistent with the practice of the courts of giving the highest priority in such cases to providing a stable environment for the child. It also appears to have rejected the warning that the legislation would discourage adoptions. Id. at 5-6. At least insofar as the legislative history reveals the Council’s emphasis, the interests of the birth parents and the child in remaining a unit were of paramount concern.

This brief summary of the legislative history explains my approach in the instant case. The history reveals that the Council sought to address some of the problems in the instant case and highlights the importance of strictly construing the provisions of D.C.Code § 32-1007 (1987 Supp.). The legislative history makes clear that the Council was not only informed of differing views about the merits of the proposed ten-day grace period, but reaffirmed a District of Columbia policy that children should be raised by their birth parents notwithstanding the emphasis of the courts on stability for the child. Birth parents are to be afforded a specific period of time within which to consider whether or not they want to undo their prior decision to relinquish their rights to their child. Parents are to be fully informed, orally and in writing, by the social agency preparing the parents for relinquishment, of their right to revoke and given a period of time, free from the pressures and turmoil involved, in which to consider whether they have made the right decision in forever relinquishing their rights to their child.

This court must interpret a statute in accordance with the intent of the legislature. Rosenberg v. United States, 297 A.2d 763, 765 (D.C.1972). Upon so doing I conclude that the majority correctly decides that the verified writing requirement must be stated in writing as part of the relinquishment form given to birth parents pri- or to their decision to relinquish, but errs in applying a harmless error analysis that might diminish the full ten-day grace period, to which a birth parent is statutorily entitled, within which to reconsider the relinquishment decision. See ante at 1265 & n. 4. The mother’s counsel persuasively points out in her brief to this court the coercive atmosphere surrounding the agency’s efforts to obtain a signed relinquishment from the mother. At most I would apply harmless error to a finding that the mother was orally informed of the verified writing requirement for revocation at the time of relinquishment. This approach, at least, is consistent with the statute. See § 32-1007(h) (oral advice of rights).

I also conclude that the majority fails to come to grips with aspects of the record before us. The trial court’s finding that “the [relinquishment] form [the mother] executed ... fully explains her options and rights,” ante at 1262, is clearly erroneous; since the relinquishment form did not provide the required notice that a revocation be in the form of a verified writing, it did not fully explain her options and rights. Indeed, to this day, I am unclear about what constitutes a “verified writing” under § 32-1007. Is a notarized (signature) writing sufficient? Must a witness also sign the revocation? If so, should the witness be a neutral third party as opposed to a social worker directly or indirectly involved in the relinquishment? Since the Council declined to define the term in the statute, a definition, based upon the Council’s intent, surely should be provided in the rules authorized by the statute, id. § 32-1003 (1981 & 1987 Supp.), as well as in all future relinquishment forms.

Furthermore, in the absence of evidence that the mother was, in fact, advised or aware of the verified writing requirement, the trial court also erred in ruling that she had not effectively revoked her prior relinquishment when she informed her social worker’s supervisor of her decision to revoke within ten days after signing the relinquishment form. The majority holds that if the trial court finds on remand that the mother was not informed or aware of the verified writing requirement, then the court must determine whether she orally revoked her relinquishment. Ante at 1264 -1265. The government represents in its brief on appeal that, “It is undisputed that the mother stated [in the conversation with her social worker’s supervisor on the second day of the ten-day grace period] that she had changed her mind and wished to withdraw the relinquishment of her parental rights.” It follows then that the mother effectively revoked at that time. Thus, in my view, the majority errs in focusing on events occurring after this telephone call. The conversation on the ninth day (which was initiated by the social worker, not the mother, as the trial court erroneously found) is irrelevant in determining whether the mother effectively revoked on the second day. Under the same reasoning relied upon by the majority, ante at 1265 n. 6, any “wavering” of the mother's resolve after her effective revocation on the second day could not reinstate her relinquishment which had been already revoked.

In addition, I think the majority errs in not providing guidance for the trial court upon remand with respect to the proper allocation of the burden of proof. Since I conclude that the relinquishment was invalid, or alternatively, that there was an effective revocation, I would reverse and vacate the relinquishment of parental rights. But even under the majority’s approach, I would hold that on remand the burden is on the government to show that the mother failed effectively to revoke, and if the trial court finds that the revocation was effective, the government would have to show that the relinquishment should nevertheless be given effect. O’Connell v. Koob, 16 App.D.C. 161, 169 (1900) (“even in the absence of any special relation between the parties, where a person gains a great and manifest advantage over another by a voluntary instrument, the burden of proof is undoubtedly thrown upon the person receiving the benefit”); Blum v. Blum, 59 Md.App. 584,-, 477 A.2d 289, 294 (1984) (“When a confidential relationship has been shown to exist ... the burden [of proof] is upon the dominant party to establish that the agreement was fair in all respects.”); Robert O. v. Ecmel A., 460 A.2d 1321, 1323 (Del.1983) (“if the parties stand in a confidential or fiduciary relationship ... ‘equity raises a presumption against the validity of a transaction by which the superior obtains a possible benefit at the expense of the inferior, and casts upon him the burden of showing affirmatively his compliance with all equitable requisites.’ ” (citation omitted)). The latter, I submit, would appear to be an impossible burden to meet in view of the Council’s intent in amending the law on revocation of relinquishments of children for adoption. See Committee RepoRts, supra. The government’s suggestion that the legal standard of J.M.A.L. v. Lutheran Social Servs. of Nat’l Capital Area, Inc., supra, 418 A.2d 133, applies in determining the validity of a relinquishment fails to consider the Council’s intent in providing a grace period for revocation.

I agree with the majority’s holding that the right to counsel provided by D.C.Code § 16-2304(b)(l) (1987 Supp.) for a parent who is invoked in a neglect proceeding includes a right to counsel when a neglect proceeding leads to a proceeding to terminate parental rights. The latter is no less than the ultimate resolution of the neglect proceeding, and denial of the right at the termination stage of the proceedings, the most critical stage of the neglect proceeding, hardly makes sense.