Himmelberger v. Robinson

BAKES, Chief Justice. This appeal concerns an attempt to revoke a consent for adoption given by the natural parents of an infant. A consent was signed in Utah on July 10, 1975, and filed with a petition for adoption in the Fourth Judicial District of Idaho on July 31, 1975. The consent contained a waiver of notice, and consequently, the natural parents received no notice of where the adoption was taking place or of the identity of the parties involved. Prior to entry of the final decree, but after filing of the petition, the natural parents apparently had a change of heart. However, not knowing the location of the adoption proceeding or identity of persons involved, the natural parents were confronted with a considerable barrier in any attempt to revoke their consent. Various communications eventually took place before and after the final decree which raise a factual question of whether a revocation ever occurred. Sometime after discovering the identity of the attorneys involved, and the location of the court in which the adoption occurred, the natural parents filed a Rule 60(b) motion to set aside the adoption decree. They claimed primarily that the consent was invalid because it had been procured by duress, had been revoked, and also because they had not been given notice of the time and place for hearing, which denied them due process. The magistrate denied their motion to set aside the order of adoption. The natural parents appealed to the district court. The court reversed holding that an improper burden of proof had been placed upon the natural parents and remanded the case for further proceedings in the magistrate division. The natural parents then further appealed to this Court. From the briefs filed in this case, it is unclear in what way the natural parents question the district court’s decision. However, at oral argument the appellants identified the single issue which they raise as follows: Should the adoption decree be set aside as a matter of law because the natural parents were not given notice of the time and place of the hearing? The basic argument of appellants is that the right to revoke a consent for adoption, recognized by this Court in Andersen v. Crapo (In the Matter of Andersen), 99 Idaho 805, 589 P.2d 957 (1979), is meaningless unless the parents are given notice of the location of the proceedings and parties involved so that timely revocation might be made. In Andersen, we recognized that the “due process rights of notice and hearing prior to civil judgment are subject to waiver.” Id. at 815, 99 P.2d at 967; D. H. Overmyer Co., Inc., of Ohio v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972). When a consent and waiver of notice is signed, the natural parents indicate their intent and consent to terminate their relationship with and responsibility for the subject child without further notice to them. Such an action necessarily includes all the consequences which naturally flow from the consent and waiver. One consequence is that the waiver of notice may make it difficult to revoke the consent. Moreover, when viewed from the perspective that the parents have ostensibly severed all of their rights in the child, it cannot be said that the burden of attempting to revoke consent without knowledge of the location of the proceedings or the identity of the parties involved is a denial of due process. The burden is one which the parents have placed upon themselves. Anonymity is a vital facet of adoption proceedings which the adopting parents must have the right to preserve. On the basis of the record before us, appellants have not as a matter of law persuaded us that the magistrate erred in the disposition made by him. Respondents assert on appeal that the district court in its appellate review of this matter erred in concluding that the magistrate improperly placed the burden of proof upon the natural parents. Since this matter is now before us on appeal, we make the same review which the district court made on appeal from the magistrate. The [227] general rule is that the party seeking to set aside a judgment pursuant to Rule 60(b) bears the burden of proving his right to relief. Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979); see Lisher v. Krasselt, 96 Idaho 854, 538 P.2d 783 (1975). The magistrate in the present case made the following conclusion of law: “It was the petitioner’s burden of proof to show the consent was given other than knowingly and voluntarily. There being no showing of undue duress, fraud, misrepresentation, or incapacity on the part of the petitioners, petitioners have failed to meet that burden of proof.” Although the district court on appeal recognized that the usual rule places the burden of proof on the moving party, it reversed the magistrate on the basis that Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), mandated a different result in this case. Mamo involved an action by a father to set aside a decree granting the adoption of his daughter by his former wife’s new husband. The father had never executed a written consent and waiver of notice, as in this case, and had never been sent notice of the original adoption proceeding. He was therefore attacking the decree by way of a subsequent motion to set it aside. The adoption had been sought and granted not on the basis of parental consent, but rather on the statutorily permitted ground of non-support of the child. In the original Mamo proceeding, the burden was on the party petitioning for adoption to prove non-support. The adoption was granted on the basis of an unrebutted affidavit of the mother alleging non-support by the father. In the subsequent action by the father, the burden was placed upon him to show the invalidity of the adoption decree. After a hearing, the motion to set aside was denied, and the father unsuccessfully appealed through the state courts. On appeal to the United States Supreme Court, the denial of the motion to set aside was reversed, the Supreme Court holding that (1) the failure to notify the father about the adoption proceedings denied him due process of law, and (2)the subsequent hearing on the motion did not cure the constitutional violation because the burden of proof had been shifted from the adoption petitioner to the natural father. In effect, the father had to be given the same chance the second time as he would have had the first time, had he received notice. In the case at bar, the district court concluded that the adoptive parents had the burden of proving a valid consent, and that since the natural parents had not been sent notice of the adoption proceedings, it would violate Mamo to require the natural parents to prove in a later action that the consent was invalid. Mamo, however, is distinguishable because in that case there was no waiver of notice. By its terms, Mamo is inapplicable where the notice requirement has been fulfilled. As recognized earlier in this opinion, that requirement can be met by a signed waiver of notice, Andersen v. Crapo, supra; D. H. Overmyer Co., Inc., of Ohio v. Frick Co., supra. The problem in this case is complicated by the fact that the waiver of notice, which is jurisdictional, and the grant of consent, which goes to the merits, are tied together in one document. In Mamo, the issues concerning notice and the merits were distinct. However, it is clear from Mamo that an analysis of the notice requirement is a prerequisite to reaching the issue of shifting the burden of proof as to the merits. Since the notice requirement in the case at bar was fulfilled by waiver, Mamo is not applicable, and the district court erred in reversing the decision of the magistrate. Since the findings of fact made by the magistrate are otherwise supported by the evidence, we also affirm the decision of the magistrate. The cause is remanded to the district court with directions to affirm the decision of the magistrate. Costs to respondents. McFADDEN, BISTLINE and DONALDSON, JJ., concur.