Henry E. Wood, III, Esquire
James A. Walker, Esquire
Wood Law Office, L.C. Logan, West Virginia
Charleston, West Virginia Attorney for the Appellee,
Attorney for the Appellant William D. A., Sr.
David Alan Barnette, Esq.
Monica L. Hussell, Esq.
Jackson & Kelly, P.L.L.C.
Charleston, West Virginia
Attorneys for Amici Curiae
Burlington United Methodist Family
Services, Inc. and South Central
Christian's Home, Inc., dba
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT did not participate in the decision in this case.
JUDGE FRED RISOVICH, II, sitting by temporary assignment.
CHIEF JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
The term 'duress,' as used in W. Va. Code, 48-4-1a , means a condition
that exists when a natural parent is induced by the unlawful or unconscionable act of another
to consent to the adoption of his or her child. Mere 'duress of circumstance' does not
constitute duress under W. Va. Code, 48-4-1a . Syllabus Point 2, Wooten v. Wallace,
177 W. Va. 159, 351 S.E.2d 72 (1987)
In this appeal, Renee A. C., the mother of two infant children, Shawna Renee
A. and Stephen Everett A., claims that a consent to adoption signed by her was obtained
through the duress of the children's paternal grandfather, and that the Circuit Court of Logan
County erred in recognizing the consent to adoption and in allowing the children's paternal
grandfather, to adopt the children.
In the course of the divorce action, the appellant and her husband entered into a separation agreement which provided that the appellant was to have the care and custody of the parties' two infant children, Shawna Renee A. and Stephen Everett A., and that the appellant's husband would pay $500 per month child support. The provisions of the separation agreement relating to child custody and child support were subsequently adopted by the circuit court and were incorporated into the order granting the parties a divorce.
In the present proceeding, the appellant alleges that her former husband never made the child support payments due and that as a result of a series of disasters she became impoverished. Specifically, she claims that on May 15, 1996, a flood destroyed the premises occupied by her tanning bed business, her only source of income, and that subsequently she was involved in a disabling automobile accident. As a consequence of her improverishment, her utilities were cut off, and she was unable to buy groceries or other necessities for herself and her children.
The appellant further alleges that in the desperation growing out of her bad
luck, she turned to her former father-in-law, William D. A., Sr., who, she claims, had been
a father figure to her. After the flood, she entrusted her tanning beds to him for safekeeping,
and when she was having difficulty in providing for her children, she allowed William D. A.,
Sr., to take the children on a beach vacation to Florida.
Following the return of the children from Florida, William D. A., Sr. proposed
to adopt the children and later asked the appellant to sign a Consent to Adoption. After
some time, the appellant, on July 26, 1996, signed the document.
After the appellant signed the consent to adoption, William D. A., Sr. instituted
an adoption proceeding in the Circuit Court of Logan County. In the course of this
proceeding, in late October 1996, approximately three months after the Consent to
Adoption was executed, the appellant moved to intervene and took the position that she had
not voluntarily signed the Consent to Adoption and it had been obtained by duress, fraud
and other unconscionable conduct.
The Circuit Court of Logan County allowed the intervention and conducted
hearings on January 30, 1998 and March 6, 1998. At the conclusion of the hearings, the
judge, on August 3, 1998, entered an order which included extensive findings of fact and
conclusions of law. The judge specifically found that William D. A., Sr., did not threaten,
coerce, trick, or commit any unconscionable act to induce Ida Renee C. . . into executing the
consent form. The court noted that the appellant testified under oath that she understood
all the words contained in the consent form and that all the statements contained in the
document were true at the time she signed it. The judge also found that the minor children
who had been living with William D. A., Sr., and his wife, were enrolled in school and were
doing well, both academically and in terms of attendance, and that William D. A., Sr., and
his wife has provided for the educational, social and health needs of both of the children.
The judge concluded that the appellant had given her written consent to the adoption of the
children, as required by West Virginia law and:
That it would be in the best interests of both of the minor children to approve the requests contained in the prayer of the petition and allow the Petitioner to adopt the children in order to provide closure to this matter and to provide stability in the lives of the children.
The court went on to state that William D. A., Sr. was credible in describing how he and his wife had attempted to stay uninvolved in the domestic problems of their son and the appellant, and that the appellant's level of credibility was rather low, and that the appellant was unable to recall the details of the events which she alleged had constituted the duress, fraud, and unconscionable conduct resulting in the Consent to Adoption. The court noted that the appellant likely suffered from emotional difficulties, but that there was no evidence that these difficulties in any way affected the voluntariness of her consent. The court, therefore, authorized the adoption of the children by William D. A., Sr. It is from that ruling that the appellant now appeals.
In Wooten v. Wallace, 177 W. Va. 159, 351 S.E.2d 72 (1987), the Court
examined the type of conduct which would constitute duress sufficient to overturn a consent
to adoption. We concluded that something more than difficulty inherent in a natural parent's
personal circumstances, or duress of circumstance, had to be present for these to constitute
duress sufficient to justify the overturning of a consent to adoption. This conclusion was
summarized in Syllabus Point 2 of Wooten v. Wallace, id., as follows:
The term duress, as used in W. Va. Code, 48-4-1a , means a condition that exists when a natural parent is induced by the unlawful or unconscionable act of another to consent to the adoption of his or her child. Mere duress of circumstance does not constitute duress under W. Va. Code, 48-4-1a .See footnote 1 1
In Wooten v. Wallace, id., the Court indicated that there had to be an act on the
part of the person adopting or some other third party that was so egregious as to be
unconscionable for a finding of duress sufficient to justify the overturning of a consent. We
noted that: It is difficult to conceive of circumstances in which a natural parent would place
a child up for adoption unless the parent's personal circumstances were in some way
incompatible with taking care of the child. Wooten v. Wallace, id., at 161, 351 S.E.2d at 74.
We also noted if we allowed difficulty inherent in a natural parent's circumstances to
constitute duress, it would be difficult to see how any adoption based on consent could ever
stand. In the later case of Baby Boy R. v. Vellas, 182 W. Va. 182, 386 S.E.2d 839 (1989), the
Court stressed that duress in the adoption context:
[M]eans a condition that exists when a natural parent is induced by the unlawful or unconscionable act of another to consent to the adoption of his or her child.
Baby Boy R. v. Vellas, id. at 185, 386 S.E.2d at 842.
In a number of prior cases, this Court has also discussed what constitutes fraud
or duress. In Syllabus Point 3 of Cordial v. Ernst & Young, 199 W. Va. 119, 483 S.E.2d 248
(1996), the Court indicated that the essential elements of fraud are:
(1) [T]hat the act claimed to be fraudulent was the act of the defendant or induced by him;
(2) [T]hat it was material and false; that the plaintiff relief upon it and was justified under the circumstances in relying upon it; and
(3) [T]hat he was damaged because he relied upon it.
In the present case, a substantial portion of what the appellant asserts induced her to sign the Consent to Adoption consisted of evidence that she was poverty stricken. She did claim that her former husband had failed to make child support payments, but there is no indication that his motivation in failing to make the payments was to coerce her into signing the Consent to Adoption.
Of greater significance is a claim that William D. A., Sr., held her tanning beds
hostage to coerce her into entering into the Consent to Adoption. As has previously been
stated, William D. A., Sr., clearly did take possession of the tanning beds, after the
appellant's tanning salon was destroyed by flood waters. It appears that William D. A., Sr.,
was storing the tanning beds as an accommodation to the appellant. The appellant claimed
that William D. A., Sr., issued ultimatums and demands which led to her signing the
Consent to Adoption to which she was required to agree before he would release her
tanning beds. William D. A., Sr., specifically denied that he had made any ultimatums or
demands relating to the tanning beds or that he held them hostage. Further, there is
evidence that the appellant and William D. A., Sr. did not discuss the tanning bed business
after October 25, 1995, some two months prior to July 26, 1996, when she executed the
Consent to Adoption.
The records available to the Court in this case show that the Consent for
Adoption was prepared and provided to the appellant sometime before its execution on July
26, 1988. The appellant had an opportunity to examine and consider it out of the presence
of William D. A., Sr. She also had an opportunity to obtain independent advice concerning
it. The documents filed indicate that the appellant, after receiving the Consent to
Adoption, and after having an opportunity to examine it, carried the consent form to
William D. A., Sr.'s work office in Danville, West Virginia, at which time William D. A.,
Sr. procured a notary to acknowledge the appellant's signature. The appellant executed the
consent in the presence of the notary and turned it over to William D. A., Sr.
After reviewing the record before the Court, we cannot conclude that the trial
court committed reversible error in concluding that William D. A., Sr. did not procure the
consent to adoption through duress. Further, although the appellant took the position during
a portion of the time prior to the execution of the Consent to Adoption trusted in William
D. A., Sr. and held him in high esteem, there was a factual basis for the court to conclude that
she executed the Consent to Adoption through her own volition and that William D. A.,
Sr. did not make material and false representations upon which the appellant relied in
executing the Consent to Adoption suggesting that he did not commit fraud and indicating
that the trial court did not err in refusing to hold that the Consent to Adoption was procured
through fraud or other unconscionable conduct.
The judgment of the Circuit Court of Logan County is, therefore, affirmed.
(a) Parental consent or relinquishment, whether given by an
adult or minor, may be revoked only if:
(2) The person who executed the consent or relinquishment
proves by clear and convincing evidence, in an action filed
either within six months of the date of the execution of the
consent or relinquishment or prior to the date an adoption order
is final, whichever date is later, that the consent or
relinquishment was obtained by fraud or duress.
W. Va. Code 48-4-5(a)(2).