S. v. Department of Social & Health Services

Green, J* Mr. and Mrs. S. relinquished their parental rights to their daughter, A., at a hearing in which they waived their right to counsel. Four months later, they moved to vacate the relinquishment order, contending they were misinformed by A.'s caseworker that A. had cerebral palsy. The Superior Court denied Mr. and Mrs. S.'s motion and they appeal. We reverse. The following evidence was presented at the hearing on the motion to vacate: In February 1990, Mr. and Mrs. S. moved back to Spokane from California to look for work. At the time, their daughter, A., was 1 year 4 months old. They lived with friends for a while. On February 28, Mr. S. took Mrs. S. and A to live in Ogden Hall. Mr. S. testified he intended to sleep in his car until he earned enough money to afford housing for his family. However, a Child Protective Services (CPS) caseworker removed A. from Ogden Hall [633] almost immediately, based upon bruise marks observed on A's face. Mr. and Mrs. S. testified the bruise marks were the result of their attempts to squeeze A's mouth open to force her to eat. A pediatrician had recommended A. gain weight, and suggested this course of action to them. Although no dependency or other action was pending, the caseworker informed Mr. and Mrs. S. they would have to participate in parenting services while their daughter was in foster care for between 8 and 12 months.1 At that point, Mr. and Mrs. S. discussed giving A. up for adoption. After A. was placed in foster care, the caseworker referred her to a pediatric nurse practitioner for a complete physical examination, which took place on March 1. During the examination, the nurse noticed A. was walking on her tiptoes. She consulted a pediatric textbook, which stated that toe walking may indicate cerebral palsy. The nurse told the caseworker A. should be reevaluated in 1 to 2 months to rule out cerebral palsy. Mr. and Mrs. S. kept a scheduled appointment with the caseworker on March 15. The caseworker had prepared relinquishment documents, pursuant to Mr. and Mrs. S.'s earlier discussion of that option. Mr. S. testified that prior to the meeting they had "some very strong feelings" as to whether they "were doing the right things". But when they met with the caseworker, she advised them there was a "strong possibility" A. had cerebral palsy. Mr. S. stated they "were just about to change [their] minds when she came up with that". They went ahead and signed the relinquishments. On March 19, the relinquishment hearing was held. The court asked Mrs. S.: Q: Why do you want to give her up? A: Because I feel that, since me and my husband are low income, that she would be better off in a better home with all the medical attention that she can get. Q: All right. Does she have some medical problems? A: Yes. She's got cerebral palsy. [634] Q: She does? A: Yeah. (Italics ours.) Mr. S. followed Mrs. S. on the witness stand and testified: Q: Okay. Why do you want to give [A.] up? A: The same reasons my wife gave. We can't provide a good home for her. (Italics ours.) Although the caseworker was present at the hearing and from the audience responded to some questions, neither she nor the Department of Social and Health Services (DSHS) attorney informed the court that cerebral palsy was only a possibility. The court approved Mr. and Mrs. S.'s petitions and entered the relinquishment order on May 14. Mr. S. testified they had requested A.'s medical records before the hearing, but DSHS never honored that request. Sometime after the hearing, Mr. S. made a direct request to Rockwood Clinic for A.'s files. Those records did not indicate any possible diagnosis of cerebral palsy. On July 20, Mr. and Mrs. S. moved to vacate the order. The Superior Court denied their motion, and this appeal followed.2 Once approved by the court, a relinquishment and consent to adoption may not be revoked, except for "fraud or duress practiced by the person, department, or agency requesting the consent, or for lack of mental competency on the part of the person giving the consent at the time the consent was given". RCW 26.33.160(3). Fraud, as used in the predecessor statute to RCW 26.33.160, has been defined by this court as: anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. In re Adoption of Hernandez, 25 Wn. App. 447, 455, 607 P.2d 879 (1980) (quoting 37 Am. Jur. 2d Fraud and Deceit § [635] 1, at 19 (1968)).3 Proof of fraud must be by clear, cogent and convincing evidence. Hernandez, at 456. Utilizing this standard, we are convinced the trial court erred when it denied Mr. and Mrs. S.'s motion to vacate their relinquishments. Specifically, the undisputed evidence is that the caseworker advised Mr. and Mrs. S. there was a "strong possibility" A. had cerebral palsy. In fact, the nurse practitioner who examined A. testified she told the caseworker only that A. should be reevaluated in 1 to 2 months to rule out cerebral palsy. The caseworker made her representation about cerebral palsy to Mr. and Mrs. S. at a time when they were considering the wisdom of choosing relinquishment. Although DSHS argues Mr. and Mrs. S. had already made the decision to relinquish, Mr. and Mrs. S.'s undisputed testimony was that they were about to change their minds when the caseworker told them about the cerebral palsy. Further, the decision to relinquish is not final until the court determines the parent is acting knowingly and voluntarily. Mr. S. also stated he asked for A.'s medical records prior to the hearing, but CPS did not provide them. When he later obtained those records directly from A.'s medical clinic, he found no mention of cerebral palsy therein. Finally, and perhaps most importantly, Mr. and Mrs. S. clearly advised the court in the original relinquishment hearing that A. had cerebral palsy. The caseworker was present in the courtroom, but did not clarify A.'s condition. She should have taken the opportunity to advise the court that cerebral palsy was only a possible diagnosis. Had she done so, the court could have asked the parents if they understood this fact and made further inquiries to ensure they were making a knowledgeable decision. If this had been done, the appeal would have been unnecessary. In sum, we hold there is clear, cogent and convincing evidence that CPS, through its caseworker, deceived Mr. [636] and Mrs. S. and the court by "acts, omissions, and concealments" which breached its legal and equitable duties. Hernandez, at 455. Relinquishments must be clean cut and unclouded by any mistake as to the facts. The permanent loss of one's parental rights is extremely serious. Whether the relinquishment is initiated by the agency or by the parents, a caseworker has a grave responsibility not only to the child, but to the parents and the court, to ensure compliance with the statute. There must be no question that the relinquishment procedure and purposes of the statute have been satisfied in a particular case. Here, cerebral palsy played a significant role in Mr. and Mrs: S.'s final decision to relinquish. In these circumstances, the caseworker's failure to speak undermined the integrity of the relinquishment proceeding. Consequently, we vacate the relinquishment order.4 Reversed. Thompson, J., concurs. Footnotes [*] Judge Dale M. Green is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150. [1] A was born in Washington in October 1988. Mr. and Mrs. S. had been referred to CPS services following her birth due to her failure to thrive. [2] We note the dissent questions the accuracy of the facts as set forth above. We have reviewed the record and remain convinced that these facts are supported. [3] The dissent cites Beckendorf v. Beckendorf, 76 Wn.2d 457, 457 P.2d 603 (1969), which sets forth the nine elements of common law fraud. However, Beckendorf is a real property case. It does not purport to define fraud as that term is used in RCW 26.33.160(3). [4] We recognize that since the trial court granted the State's motion to dismiss at the close of the parents’ case, the State did not present its case in chief at the hearing on the motion to vacate the relinquishment. However, such presentation is unnecessary because our decision is based primarily upon the record of the original relinquishment hearing which showed that the caseworker failed to clarify A.'s condition after the parents told the court A. had cerebral palsy. That record speaks for itself. Our decision is also based upon the parents' testimony as to the effect of the representation about cerebral palsy on their mental state and their consequent decision to relinquish, a subject about which outsiders could only speculate.