SUMMARY: The court erred in denying a motion by the parent to withdraw a voluntary relinquishment without a hearing based on her claims of fraud and coercion, which if proven are proper bases for withdrawal.
DHHS submitted a court report stating that the mother, Linda, had relinquished her parental rights on January 8, 2009 and that DHHS accepted the relinquishment. There is no court record of the relinquishment or DHHS acceptance. On February 27, 2009, the mother filed a motion to withdraw the voluntary relinquishment on the basis of fraud and coercion, alleging that the contractual agreement she had entered into with the adoptive parents was not being followed through on by them. The hearing on the motion was set for April 9, 2009. After a review hearing on March 4, 2009, in which neither the mother nor her attorney was present, the court entered an order finding that DHHS had accepted the relinquishment and overruled the mother’s motion. The mother appealed.
The Nebraska Court of Appeals reversed and remanded the decision. It first rejected the State’s contention that the juvenile court could not hear the mother’s motion to withdraw on the basis that it lacked jurisdiction over the mother, holding that the court lacked evidence establishing a relinquishment had been entered and accepted. Secondly, the Court of Appeals noted that although a voluntary relinquishment is not revocable, it is in cases of threat, coercion, fraud, or duress. Gaughan v. Gilliam, 224 Neb. 836, 401 N.W.2d 687 (1991). In this case, because the court did not have an evidentiary hearing to determine whether there was an accepted voluntary relinquishment made without fraud or coercion, it should have not denied her motion.