| (Cite
as: 110 Wash.App. 524, 42 P.3d 424)
Court
of Appeals of Washington,
Division
1.
In
re the Dependency of M.D., a minor.
State
of Washington Department of Social and Health Services and Linda
Damon,
Appellants,
v.
Native
Village Of Tatitlek and Casa, Respondents.
No.
48813-9-I.
March 11, 2002.
**428 *526
Catherine Cruikshank, Asst. Atty. Gen., Seattle, for Appellants State
and DSHS.
Dana M. Nelson, Nielsen
Broman & Koch PLLC, Seattle, for Linda Damon.
Craig Jones Dorsay, Portland, Carol Farr, Renton, for Respondent Native
Village of Tatitlek.
Jennifer Shaw, Seattle,
for Amicus Curiae Charles W. Totemoff and Kimberly A. Benton.
*527
AGID, C.J.
Linda Damon and the Washington
Department of Social and Health Services (DSHS) appeal from an order granting
the Tatitlek Native Village's CR 60(b) motion to vacate a prior court
order which allowed Damon to revoke her consent to the relinquishment
of her parental rights. Damon gave birth to MD in April 1998. About three
months later, Damon voluntarily relinquished her parental rights to MD
and DSHS filed a petition to terminate her parental rights. An order terminating
the parent-child relationship was entered in due course. Almost two years
later, Damon sought to revoke her consent to the termination of her parental
rights. Appellants argue that under both the Indian Child Welfare Act
(ICWA) and Washington law, Damon has the right to revoke her consent at
any time before an order of adoption is entered. Damon also argues, in
the alternative, that the consent form she signed is not enforceable.
We hold that neither
ICWA nor Washington law gives Damon the right to revoke her
consent to termination after a final order terminating her parental rights
has been entered. However, because the language of the consent form Damon
signed was misleading, Damon may be entitled to rescind her consent under
the doctrine of mutual mistake. Therefore, we remand the case to the trial
court to determine whether Damon can show that she would not have signed
the consent form had she been properly informed about the nature of her
statutory right to withdraw her consent.
FACTS
Damon gave birth to MD on April 6, 1998. Both Damon and MD are enrolled
members of the federally recognized tribe of the Native Village of Tatitlek
("the Tribe"). Because MD had a positive toxicology screen for
cocaine at birth, *528
the hospital made a referral to Children's Protective Services. Damon
admitted to using cocaine and marijuana in the weeks before she gave birth
to MD and immediately expressed her desire to voluntarily relinquish her
parental rights.
[FN1]
FN1.
According to the Dependency Petition filed on April 27, 1998, Damon was
offered a Voluntary Placement Agreement along with a CPS/Parent Contract
for services, which she declined, stating that she did not want to care
for the child.
MD went to the Pediatric Interim Care Center for observation and treatment
for prenatal exposure to cocaine, marijuana, alcohol, and tobacco. She
was released to the temporary care of her maternal aunt on May 4, 1998.
There were no family members in the Seattle area able to provide MD with
a permanent home at the time, so the family contacted Chuck Totemoff and
Kim Benton, who agreed to take MD to their home in Alaska with the expectation
of adopting her. Totemoff is Damon's first cousin and is also a member
of the Tribe. MD has lived in Alaska with Totemoff and Benton since she
was about seven weeks old.
On July 8, 1998, Damon
appeared in court with counsel and executed a document entitled "Relinquishment
of Custody, Consent to Termination/Adoption and Court Certification (Indian
Child)." Six days later, then-Commissioner James Doerty entered an
order **429
terminating the parent-child relationship between Damon and MD. The alleged
birth father's parental rights were terminated by default on February
22, 1999.
In late 1999, questions
arose about whether the pre-adoptive placement of MD remained appropriate
in light of marital conflict that had arisen between Benton and Totemoff.
The trial court denied the DSHS' motion to remove MD from the Benton/Totemoff
home but directed that the planned adoption could not proceed in Alaska
until concurrent jurisdiction in Washington was established.
On June 1, 2000, nearly
two years after Damon's parental rights were terminated,
Damon filed a document called "Mother's Revocation of Consent to
Termination." About a *529
month later, she filed a motion to set aside the voluntary termination
of her parental rights, arguing that she had an absolute right to revoke
her consent before MD was adopted.
[FN2] DSHS supported the motion to restore Damon's parental rights. Benton
and Totemoff opposed the motion, arguing that under both ICWA and Washington's
adoption code, a consent to termination of parental rights cannot be revoked
after a final order of termination is entered. On August 11, 2000, Commissioner
Eric Watness denied Damon's request, stating that allowing Damon to revoke
her relinquishment two years after the termination order was entered would
"fl[y] in the face of [MD's] best interests."
FN2.
Damon never filed a motion to revoke her consent to adoption.
Damon sought revision
of the Commissioner's ruling. On November 7, 2000, Judge Julie Spector
revised the Commissioner's ruling in part, granting Damon's motion to
set aside the voluntary relinquishment of her parental rights. Judge Spector
found "clear and convincing evidence to support a finding that Ms.
Damon believed and relied upon her right to revoke her consent prior to
an adoption order being entered." The court reasoned that Damon's
consent to relinquish her parental rights "was void from its inception"
because the language
of the consent she signed was "contradictory, misleading and void."
[FN3]
FN3.
Although Judge Spector granted Damon's motion to set aside the relinquishment,
she also affirmed Commissioner Watness' finding that it was in MD's best
interests to remain with the pre-adoptive parents.
On May 11, 2001, the
Tribe filed a CR 60 motion seeking to set aside Judge Spector's order
and reinstate the order terminating Damon's parental rights.
[FN4] The Tribe argued that Damon's counsel made material factual misrepresentations
to Judge Spector in the Motion for Revision of Commissioner Watness' order.
The Tribe also argued that as a critical party to the proceedings, it
should have been *530
given an opportunity to be heard on the Motion for Revision. Judge Mary
Yu agreed with the Tribe on both grounds, setting aside Judge Spector's
order and reinstating Commissioner Watness' ruling that Damon could not
revoke the relinquishment of her parental rights after an order terminating
those rights had been entered.
FN4.
CR 60(b)(4) allows the court to relieve a party from an order, judgment
or proceeding if there is a finding of "[f]raud ..., misrepresentation,
or other misconduct of an adverse party."
Damon and DSHS now appeal Judge Yu's order. The Tribe and the CASA are
respondents here, and Totemoff and Benton have filed an amicus curiae
brief.
ANALYSIS
CR 60 motions
to set aside a court order "are addressed to the sound discretion
of the trial court, whose judgment will not be disturbed absent a showing
of a clear or manifest abuse of that discretion."
[FN5] An abuse of discretion exists when no reasonable person would take
the view adopted by the trial court.
[FN6] However, construction of a statute is a question of law that we
review de novo.
[FN7]
FN5.
Hope v. Larry's
Markets, 108
Wash.App. 185, 197, 29 P.3d 1268 (2001).
FN6.
Id.
FN7.
City of Pasco
v. Pub. Employment Relations Comm'n,
119 Wash.2d 504, 507, 833 P.2d 381 (1992).
**430
Indian Child
Welfare Act (ICWA)
Congress passed ICWA in 1978 in response to a situation where Indian children
were being removed from their birth families at a highly disproportionate
rate in comparison with non-Indian children.
[FN8] ICWA formally recognized a national policy "to protect the
best interests of Indian children and to promote the stability and security
of Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their *531
families and the placement of such children in foster or adoptive homes
which will reflect the unique values of Indian culture...."
[FN9]
FN8.
See
Kim Laree, When
the Bough Breaks: Federal and Washington State Indian Child Welfare Law
and its Application,
17 U. Puget Sound L.Rev. 101, 104-108 (1993). Studies conducted in the
late 1960s and early 1970s showed that in Washington, "there were
nineteen times as many Indian children as non-Indian children in adoptive
homes, and Indian children were placed in foster care at a rate almost
ten times higher than that of non-Indian children." Id.
at 104-105.
FN9.
25 U.S.C.A. § 1902.
Under ICWA, a voluntary
termination of parental rights by an Indian parent must be executed in
writing, recorded before a judge, and accompanied by the
judge's certification that the terms and consequences of the consent were
fully explained and fully understood by the Indian parent.
[FN10] Section 1913(c) of ICWA further provides:
FN10.
See
25 U.S.C.A. § 1913(a).
In any voluntary proceeding
for termination of parental rights to, or adoptive placement of, an Indian
child, the consent of the parent may be withdrawn for any reason at any
time prior to the entry of a final decree of termination or adoption,
as the case may be, and the child shall be returned to the parent.[
[FN11]]
FN11.
25 U.S.C.A. § 1913(c).
The Washington Supreme
Court addressed ICWA for the first time in In
re Adoption of Crews.
[FN12] The birth mother in Crews
voluntarily consented to the termination of her parental rights and to
an adoptive placement under state law.
[FN13] After a final order terminating the parent-child relationship had
been entered, Crews attempted to revoke her consent on the grounds that
ICWA, and not state law, governed the adoption.
[FN14] The Crews
court ultimately determined that ICWA did not apply, but the court stated
in
dicta that even if it were applicable, "its provisions would not
invalidate the termination of Crews' parental rights" because under
ICWA § 1913(c), a parent's right to withdraw consent to termination
expires "once a final *532
decree of termination is entered even if the adoption is not yet final."
[FN15]
FN12.
118 Wash.2d 561, 566, 825 P.2d 305 (1992).
FN13.
See id.
at 564, 825 P.2d 305.
FN14.
See id.
at 565-66, 825 P.2d 305.
FN15.
Id.
The court did not address an Indian parent's statutory right to revoke
consent under Washington law.
Although the Crews
court limited its ruling to "the narrow circumstances presented by
the specific facts of the case," the court cited with approval the
interpretation of section 1913(c) first set forth by the Alaska Supreme
Court in In
re J.R.S.
[FN16] The J.R.S.
court construed the provision as follows:
FN16.
690 P.2d 10, 12-13 (Alaska 1984).
Section 1913(c) applies
to two kinds of proceedings: to voluntary proceedings for termination
of parental rights and to voluntary proceedings for the adoptive placement
of Indian children. The consent it refers to may be one of two kinds:
a consent to termination of parental rights or a consent to adoptive placement.
A consent to termination may be withdrawn at any time before a final decree
of termination is entered; a consent to adoption at any time before a
final decree of adoption. If Congress had intended consents to termination
to be revocable at any time before entry of a final decree of adoption,
the words "as the case may be" would not appear in the statute....
[[[[
[FN17]]
FN17.
Id.
at 13-14.
Although the Crews
court's interpretation of section 1913(c) is dicta, its logic is sound.
And, other courts that have considered the issue have unanimously adopted
the interpretation **431
set forth in J.R.S.
[FN18] Therefore, we conclude that in the context of proceedings for voluntary
termination of parental rights, ICWA does not give a birth mother the
right to revoke her consent after a final order of termination has been
entered.
FN18.
See In re Kiogima,
189 Mich.App. 6, 9-13, 472 N.W.2d 13 (1991), cert.
denied, 502
U.S. 1064, 112 S.Ct. 952, 117 L.Ed.2d 120 (1992); B.R.T.
v. Executive Dir.,
391 N.W.2d 594, 599 (N.D.1986).
We reject Damon's argument that the proceeding during which she executed
her consents to termination and adoption "cannot be exclusively characterized
as either a voluntary *533
termination proceeding or an adoptive placement proceeding." ICWA
defines "adoptive placement" as "the permanent placement
of an Indian child for adoption, including any action resulting in a final
decree of adoption."
[FN19] The proceeding during which Damon consented to the termination
of her parental rights could not have resulted in a final decree of adoption.
[FN20] Rather, it could and did only result in entry of an order terminating
the parent-child relationship.
[FN21] We conclude that the proceeding can only be characterized as a
voluntary termination proceeding, and not an adoptive placement proceeding.
Accordingly, under § 1913(c), Damon's right to revoke her consent
expired upon the entry of the final order terminating her parental rights.
FN19.
25 U.S.C.A. § 1903(1)(iv).
FN20.
Proceedings resulting in a final decree of adoption are governed by RCW
26.33.150, which provides that "[a]n adoption proceeding is initiated
by filing with the court a petition for adoption." RCW 26.33.150(1).
A petition for adoption was never filed in the proceedings at issue here.
FN21.
See
RCW 26.33.090(4).
Chapter
26.33 RCW
We must next decide
whether Washington law affords an Indian birth mother greater protection
than ICWA, entitling her to revoke her consent to termination after entry
of an order of termination, but prior to entry of an adoption decree.
ICWA states that if applicable state law "provides a higher standard
of protection to the rights of the parent ... of an Indian child,"
the stricter state standard controls.
[FN22] Chapter 26.33 RCW governs relinquishment
[FN23] and adoption proceedings in Washington. The Legislature amended
these laws in 1987 to comply with ICWA.
[FN24] *534
Revocation of an Indian parent's consent to adoption in Washington is
governed by RCW 26.33.160(4)(h), which provides in part:
FN22.
25 U.S.C.A. § 1921.
FN23.
"The statutes speak of 'relinquishment' when parental rights are
terminated by the voluntary consent of a birth parent. When parental rights
are terminated without consent, the statutes speak of 'termination.' "
3 Washington
Family Law Deskbook,
§ 60.5(5)(b) (Wash. St. Bar Assoc.2d ed.2000).
FN24.
See
Laws of 1987, ch. 170; S.B. Rep. 2SHB 480 at 1-2, 50th Leg. (Wash.1987);
H.B. Rep. 2SHB 480 at 1-2, 50th Leg. (Wash.1987).
In the case of a consent
to an adoption of an Indian child, no consent shall be valid unless the
consent is executed in writing more than ten days after the birth of the
child and unless the consent is recorded before a court of competent jurisdiction
pursuant to 25 U.S.C. Sec.1913(a). Consent
may be withdrawn for any reason at any time prior to the entry of the
final decree of adoption.
... [
[FN25]]
FN25.
(Emphasis added.)
Appellants maintain that this provision gives Damon the right to revoke
her
consent to the termination of her parental rights at any time prior to
the finalization of MD's adoption, even after entry of a final order of
termination. Respondents and amicus counter that the provision does not
apply to withdrawals of consent to termination of parental rights, but
only to withdrawals of consent to adoption. Respondents and amicus also
argue that entry of a final order of termination permanently cuts off
a birth mother's parental rights, thus prohibiting the natural parent
from revoking her consent to either termination or adoption. We agree
with respondents and amicus.
We apply general principles
of statutory construction in giving meaning to the provision. If the language
of a statute is plain and unambiguous, the statute's meaning **432
must be derived from the statutory language itself.
[FN26] However, if the language of the statute is susceptible to more
than one reasonable interpretation, an ambiguity exists and we attempt
to give effect to the intent and purpose of the Legislature.
[FN27] To discern the Legislature's intent, we look to the legislative
history of the statute as well as to other statutes dealing with the same
subject matter.
[FN28] We *535
attempt to construe the statute so that no portion of it is rendered meaningless
or superfluous.
[FN29]
FN26.
Harmon v. Dep't
of Soc. & Health Servs.,
134 Wash.2d 523, 530, 951 P.2d 770 (1998).
FN27.
See id.
FN28.
See id.
FN29.
See State v.
Glas, 106 Wash.App.
895, 902, 27 P.3d 216 (2001).
In interpreting the provision
Damon relies on, two questions must be addressed. First, we must decide
whether RCW 26.33.160(4)(h) applies to withdrawal of consents to termination.
Second, we must determine whether the provision allows an Indian parent
to revoke his or her consent after an order terminating parental rights
has been entered but before the adoption is finalized.
I.
Does RCW 26.33.160(4)(h) Apply to Revocations of Consent to Termination?
We hold that the language of RCW 26.33.160(4)(h) is plain and unambiguous.
This provision speaks only to "consent to an adoption of an Indian
child," and does not purport to address an Indian parent's right
to withdraw a consent to termination of parental rights. The provision
is consistent with the revocation rights granted by ICWA, and does not
afford Indian parents any rights beyond those set forth in 25 U.S.C.A.
§ 1913(c). We
are not convinced by appellants' argument that consent to adoption and
consent to termination are one and the same under Washington law.
First, we reject appellants'
contention that Washington law makes no distinction between consents to
adoption and consents to termination of parental rights. Appellants correctly
note that in voluntary termination proceedings, RCW 26.33.080 requires
the natural parent to file a petition to relinquish custody of the child
and directs that the parent's "consent to adoption shall
accompany the petition."
[FN30] But it does not necessarily follow that consent to adoption is
the equivalent of consent to termination. Rather, RCW 26.33.090(3), the
provision governing hearings on petitions for relinquishment, makes an
explicit distinction between *536
consents to relinquishment and consents to adoption in the context of
Indian adoptions.
[FN31]
FN30.
RCW 26.33.080 (emphasis added).
FN31.
RCW 26.33.090(3) states: "However, if the child is an Indian child,
the court shall require the consenting parent to appear personally before
a court of competent jurisdiction to enter on the record his or her consent
to the relinquishment or adoption."
(Emphasis added.)
In addition, a review of the legislative history of this section indicates
that the Legislature recognized a distinction between consents to termination
and adoption in the context of Indian adoptions. As stated above, the
Legislature amended our adoption code in 1987 to bring Washington law
into compliance with ICWA.
[FN32] RCW 26.33.160(4) was added as part of these 1987 revisions.
[FN33] Section 1903(1) of ICWA defines four discreet legal proceedings
and makes a clear distinction between the "termination of parental
rights" and the "adoptive placement" of an Indian child.
In passing ICWA, Congress recognized that these terms "may not be
current in the legal lexicon of domestic relations and might have some
different or overlapping meaning in normal usage."
[FN34] To **433
avoid confusion, Congress stated that "[t]he terms are intended to
have the meaning given to them in [section 1903(1) ]."
[FN35] Although Washington's adoption code does not define "termination"
or "adoptive placement," ICWA states that "termination
of parental rights" means "any action resulting in the termination
of the parent-child relationship," and that "adoptive placement"
means "the permanent placement of an Indian child for adoption, including
any action resulting in a final decree of adoption."
[FN36] Because the Legislature intended to conform Washington law with
ICWA in passing RCW 26.33.160(4)(h), we *537
can only conclude that "consent to adoption," as it is used
in that subsection, is not the equivalent of consent to termination of
parental
rights. To hold otherwise would require us to ignore the distinctions
between relinquishment, termination, and adoption set forth in both the
Washington adoption code and ICWA.
FN32.
See
S.B. Rep. 2SHB 480 at 1-2, 50th Leg. (Wash.1987); H.B. Rep. 2SHB 480 at
1-2, 50th Leg. (Wash.1987). There is no indication that the Legislature,
in the 1987 amendments, intended to give Indian parents additional rights
beyond those granted by ICWA.
FN33.
See
Laws of 1987, ch. 170, § 7(4)(g).
FN34.
H.R.Rep. No. 95-1386, at 20 (1978), reprinted
in 1978 U.S.C.C.A.N.
7530, 7542.
FN35.
Id.
FN36.
25 U.S.C.A. § 1903(1)(ii), (iv).
We also disagree with appellants' assertion that treating consent to termination
and consent to adoption as separate and distinct consents will render
RCW 26.33.160(4)(h) meaningless. Appellants essentially
argue that revoking one's consent to adoption can have no practical effect
unless in doing so, one is also revoking one's consent to the termination
of the parent-child relationship. It is true that the Washington Legislature
has provided a means by which an Indian parent may revoke consent to adoption,
but has not adopted a similar provision allowing for revocations of consent
to termination. However, as discussed above, ICWA allows an Indian parent
to revoke his or her consent to termination "at any time prior to
the entry of a final decree of termination."
[FN37] Thus, reading Washington law in conjunction with ICWA, an Indian
parent is entitled to revoke his or her consent to termination at any
time prior to the entry of a final order of termination.
FN37.
25 U.S.C.A. § 1913(c).
II.
Does RCW 26.33.160(4)(h) Allow an Indian Parent to Revoke His or Her Consent
to Adoption After Entry of an Order Terminating Parental Rights but Before
Entry of a Final Adoption Decree?
We hold that RCW 26.33.160(4)(h) does not give an Indian parent the right
to revoke his or her consent to adoption following entry of a final order
of termination. RCW 26.33.130 provides:
An
order terminating the parent-child relationship divests the parent and
child
of all legal rights, powers, privileges, immunities, duties, and obligations
with respect to each other *538
except past-due child support obligations owed by the parent.[
[FN38]]
FN38.
RCW 26.33.130(2).
This provision goes on
to state:
The
parent or alleged father whose parent-child relationship with the child
has been terminated is not thereafter entitled to notice of proceedings
for the adoption of the child by another, nor has the parent or alleged
father any right to contest the adoption or otherwise to participate in
the proceedings unless an appeal from the termination order is pending
or unless otherwise ordered by the court.[
[FN39]]
FN39.
RCW 26.33.130(4).
The obvious purpose of a termination order is to permanently and unassailably
bring an end to the parent-child relationship. Construing RCW 26.33.160(4)(h)
to allow a natural parent to withdraw his or her consent to adoption or
termination after entry of a termination order would require us to ignore
the clear mandate of RCW 26.33.130. The only way to give effect to
both RCW 26.33.160(4)(h) and RCW 26.33.130 in the context of adoption
proceedings involving an Indian child is to interpret the former provision
as allowing withdrawal of consent to adoption before entry of an adoption
decree, but not after entry of a termination order.
Appellants argue that under this interpretation, there would be no circumstance
**434
under which a consenting Indian parent could take advantage of the right
to revoke referenced in RCW 26.33.160(4)(h). Appellants are mistaken.
First, RCW 26.33.090 provides that the hearing on a petition for relinquishment
"may not be held sooner than forty-eight hours after the child's
birth or the signing of all necessary consents to adoption, whichever
is later." Because an order of termination cannot be entered until
after the hearing, an Indian parent always has a minimum of 48 hours to
exercise the revocation right granted by RCW 26.33.160(4)(h).
[FN40] Second, appellants apparently ignore the *539
fact that under Washington's adoption code, a petition for relinquishment
may be consolidated with a petition for adoption.
[FN41] Thus, in many cases there is a combined hearing after which the
court simultaneously enters both an order of termination and an adoption
decree.
[FN42] Under this scenario, there is no time prior to entry of an adoption
decree where an Indian parent would be precluded from exercising the right
to withdraw his or her consent to the adoption. Presumably, in enacting
RCW 26.33.160(4)(h), the Legislature did not
contemplate a situation where, as here, there is a large gap in time between
entry of an order of termination and entry of a final decree of adoption.
Indeed, counsel informed us during oral argument that this is a very unusual
situation because final adoption decrees are usually entered within six
months. The rules of statutory construction prohibit us from adopting
an interpretation of RCW 26.33.160(4)(h) that would effectively require
us to write RCW 26.33.130 out of the statute.
FN40.
See
RCW 26.33.090. This time period may be significantly longer, depending
on when the petition is filed and/or the court schedules the hearing on
the petition.
FN41.
See
RCW 26.33.030(2) ("A petition under this chapter may be consolidated
with any other petition under this chapter. A hearing under this chapter
may be consolidated with any other hearing under this chapter.").
FN42.
See
RCW 26.33.090; RCW 26.33.240.
We also note that construing
RCW 26.33.160(4)(h) to permit revocation of consent to adoption after
entry of a final order of termination would
be contrary to the best interests of the child and the strong policy favoring
finality in adoption proceedings. As this court has stated, "statutes
should be construed to effect the legislative purpose and to avoid unlikely,
strained or absurd results."
[FN43] The Legislature has provided that in applying the adoption statute,
"[t]he guiding principle must be determining what is in the best
interest of the child."
[FN44]
FN43.
State v. Landrum,
66 Wash.App. 791, 797, 832 P.2d 1359 (1992).
FN44.
RCW 26.33.010.
As respondents and amicus
point out, allowing an Indian parent to revoke consent to termination
after an order terminating parental rights has been entered would convert
*540
a final order of termination to a conditional one. Under appellants' theory,
an order terminating the parental rights of an Indian parent would be
meaningless because the parent would retain the right to have the order
vitiated at any time for any reason until the final adoption order is
entered. As this case shows, it can take years before an adoption becomes
final. Allowing a birth mother whose parental rights have been terminated
to reclaim her child at any time before the adoption is finalized would
undoubtedly conflict with the best interests of the child, especially
where, as here, the child has been living in the pre-adoptive home for
nearly all of her life. And, as the CASA points out, if RCW 26.33.160(4)(h)
is construed to apply in cases like Damon's, parents facing involuntary
termination trials would have an end-run around the law because they could
opt to voluntarily relinquish their rights and then withdraw their consent
at any time prior to the child's adoption. Because it is highly improbable
that the Legislature intended such results when it enacted RCW 26.33.160(4)(h),
we cannot adopt the interpretation Damon and DSHS urge.
Enforceability
of Consent Form
Because RCW 26.33.160(4)(h) does not give Damon the right to revoke her
**435
consent to the termination of her parental rights to MD, we must next
decide whether the "Relinquishment of Custody and Consent to Adoption/Termination"
form that Damon signed is enforceable. The language of the consent form
is ambiguous and misleading. The form stated in part:
4.4
I understand that my decision to relinquish the child is an extremely
important one. I understand that after I sign this consent in Court and
it is approved by the Court, an order permanently terminating my parental
rights will be entered. The
termination order will take away all my legal rights and obligations as
a parent except for my rights to revoke this consent as set forth in Paragraphs
4.10 and 4.11 below.
...
....
*541
4.6 I hereby consent to termination of my parental rights and request
the Court to enter an order permanently terminating all of my parental
rights to the child. I further consent to the child's adoption and also
authorize the Department of Social and Health Services to consent, on
my behalf, to the child's adoption.
....
4.8
I understand that the legal effect of an order permanently terminating
my parental rights will be to divest me of all legal rights and obligations
with respect to the child, except for past due child support obligations
with respect to the child, and
except for my rights to revoke this consent as set forth in 4.10 and 4.11
below. ...
....
4.10
I understand
that I have the right to withdraw and revoke this consent for any reason
and at any time before the Court enters an adoption decree regarding the
child. I understand
that an Order of Termination will not be entered until a minimum of forty-eight
(48) hours after I sign the consent in Court. I also understand that if
I wish to revoke my consent, I must revoke it in one of the following
ways: (i) written revocation may be delivered or mailed to the Clerk of
the Court and such revocation will be effective if received by the Clerk
of the Court prior to entry of the adoption decree or (ii)
revocation may be made orally to the Court at any time prior to entry
of the adoption decree.
4.11
I understand that, if I withdraw and revoke this consent before the Court
enters an adoption decree regarding the child, I have the right to have
the child promptly returned to my custody unless the return of custody
would likely cause imminent physical harm to the child or unless a court
order *542
for foster care placement of the child has been entered.[
[FN45]]
FN45.
(Emphasis added.)
As discussed above, neither
ICWA nor Washington law gives an Indian parent the right to revoke consent
to termination after an order of termination has been entered. In contrast,
paragraphs 4.4 and 4.8 of the form Damon signed could be interpreted to
mean that an order of termination is subject to Damon's right to revoke
her consent at any time prior to the entry of an adoption decree. In other
words, the language of the consent form could have led Damon to mistakenly
believe she was entitled to revoke her consents to termination and adoption
after entry of the termination order.
Damon argues she is entitled
to rescind her consent to termination and adoption based on the doctrine
of mutual mistake. A contract may be rescinded where "there is a
clear bona fide mutual mistake regarding a material
fact."
[FN46] The language of the consent form Damon signed suggests that both
Damon and DSHS were mistaken about the nature of Damon's right to revoke
her consent.
[FN47] But in order to justify recission, Damon **436
must also establish (1) that the mistake was one of fact, and (2) that
the mistake was material.
FN46.
Simonson v.
Fendell, 101
Wash.2d 88, 92, 675 P.2d 1218 (1984).
FN47.
As discussed above, the form stated: "I further understand that after
my parental rights are terminated, I am not thereafter entitled to notice
of proceedings regarding the child's adoption, nor do I have any right
to contest the adoption or otherwise participate in the child's adoption
proceedings, except
as set forth in Paragraphs 4.10 and 4.11 below."
(Emphasis added.)
Damon concedes that absent fraud or deceit, a mistake of law is not grounds
for avoidance of a contract.
[FN48] However, Washington courts treat mistakes about a party's "antecedent
rights" which form the basis of an agreement as mistakes of fact
which do constitute grounds for avoidance.
[*543
FN49] In In
re Estate of Geer,
[FN50] we found a mutual
mistake of fact where the parties relied on erroneous advice from an attorney
in executing a settlement agreement. The attorney in Geer
incorrectly advised the parties that under Washington law, the decedent's
surviving wife was entitled only "to the joint bank accounts in which
she held a right of survivorship and an undivided one-half interest in
the community property."
[FN51] A Washington statute actually gave the surviving spouse the right
to all of the community property and to one-half of the separate property.
[FN52] The court determined that the parties "were mutually mistaken
as to their antecedent rights which formed the basis of the agreement"
and voided the agreement.
[FN53] As in Geer,
both Damon and DSHS were mistaken about Damon's statutory right to revoke
her consent and the language of the consent form evinces that misunderstanding.
Therefore, we conclude that the parties' mistake in this case was one
of fact.
FN48.
See Schwieger
v. Harry W. Robbins & Co.,
48 Wash.2d 22, 24, 290 P.2d 984 (1955).
FN49.
In re Estate
of Geer, 29
Wash.App. 822, 825, 629 P.2d 458, review
denied, 96
Wash.2d 1004 (1981).
FN50.
Id.
FN51.
Id.
at 824, 629 P.2d 458.
FN52.
See Id.
FN53.
Id.
at 826, 629 P.2d 458.
In determining whether the mistake was material, we consider "whether
the contract would have been entered into had the parties been aware of
the mistake."
[FN54] To satisfy this test, Damon must show that she would not have signed
the consent form had she known that she would not be entitled to withdraw
her consent after an order terminating her parental rights was entered.
Because there is not sufficient evidence in the record before us to determine
whether or not Damon can meet this burden, we remand the case to the trial
court to resolve this issue.
FN54.
Simonson,
101 Wash.2d at 92, 675 P.2d 1218.
Reversed and remanded
for further proceedings.
GROSSE, J., and KENNEDY,
J., concur.
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