Abigail Fredericksen v. Jennifer Olsen, Esq., in Her Individual Capacity Jennifer Olsen, Esq., in Her Capacity as the Court Appointed Guardian and Custodian of Plaintiff's Infant Daughter, Acting Under Color of State Law A.M. and B.M., a Married Couple ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0779
Filed October 12, 2016
ABIGAIL FREDERICKSEN,
Plaintiff-Appellant,
vs.
JENNIFER OLSEN, ESQ., in her individual capacity; JENNIFER OLSEN,
ESQ., in her capacity as the Court appointed Guardian and Custodian of
Plaintiff's Infant daughter, acting under color of State law; A.M. and B.M., a
married couple,
Defendant-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Paul L. Macek,
Judge.
The biological mother appeals the district court’s grant of summary
judgment in favor of her former attorney and the adoptive parents. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED.
Harold J. Cassidy of The Cassidy Law Firm, Shrewsbury, New Jersey,
and Kenneth L. Butters Jr. of Brick Gentry, P.C., West Des Moines, for appellant.
Robert V.P. Waterman Jr. and Andrea D. Mason of Lane & Waterman
L.L.P., Davenport, for appellee Jennifer Olsen.
Deborah M. Tharnish of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, and Ralph W. Heninger of Heninger and Heninger, P.C., Davenport, for
appellees A.M. and B.M.
Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
Abigail Fredericksen appeals from the district court’s grant of summary
judgment in favor of Jennifer Olsen—an attorney involved with the termination of
her parental rights and adoption of Fredericksen’s biological child—and A.M. and
B.M.—the couple who adopted the child. Fredericksen maintains the district
court wrongly dismissed her claims against Olsen for legal malpractice, tortious
interference with custody, and civil conspiracy to commit fraudulent inducement.
Additionally, she maintains the district court erred in dismissing her claims
against A.M. and B.M. for civil conspiracy to commit fraudulent inducement and
tortious interference with custody. Lastly, Fredericksen maintains that “under the
unique facts of this case, [her] constitutional rights were violated” because she
was deprived, through fraud and misrepresentation, of her constitutional right to
parent her child.
I. Background Facts and Proceedings.
In July 2011, when she was still a minor, Fredericksen learned she was
pregnant and due to give birth in February 2012. Sometime later, Fredericksen
disclosed to her parents and the child’s father that she was pregnant.
Fredericksen would be eighteen years old by the time of the child’s birth.
Fredericksen’s parents accompanied her to a pregnancy help center,
where Fredericksen met with a counselor. At the center, the idea of placing the
child for adoption was raised. Afterward, Fredericksen began thinking about an
“open adoption.” Fredericksen understood an “open adoption” to mean she
would have continued contact, and could have some type of ongoing
relationship, with the child.
3
The center gave Fredericksen a list of attorneys who had professional
experience with adoptions; from the list, Fredericksen found and contacted
Olsen. Fredericksen first met with Olsen in August 2011. Olsen met with
Fredericksen, the biological father, and both of their families several times.
In September, A.M. and B.M. reached out to Fredericksen and told her
they were interested in adopting the child.1 They continued to have discussions
about the possibility of A.M. and B.M. adopting the child; during their
conversations, A.M. and B.M. assured Fredericksen she would be able to
maintain a relationship with the child. Fredericksen asserts A.M. and B.M. never
intended to allow her to have an ongoing relationship with the child.
After her discussions with A.M. and B.M., Fredericksen met with Olsen
and expressed her wish to pursue an open adoption. The biological father was
supportive of Fredericksen’s desire for an open adoption, and he also met with
Olsen to discuss the process. At some point, Olsen told Fredericksen the
ongoing contact and relationship Fredericksen understood to be part of an open
adoption were not enforceable terms.
In December 2011, Fredericksen and the biological father told A.M. and
B.M. they would like them to adopt the child in an open adoption. Around the
same time, Fredericksen told Olsen she had “decided to work with A.M. and
B.M.”
Fredericksen and the biological father maintained contact with A.M. and
B.M. throughout Fredericksen’s pregnancy. Both Fredericksen and the biological
1
Fredericksen talked to A.M.’s mother at church about her decision to place the child for
adoption. Evidently, A.M.’s mother told A.M. about Fredericksen and the child.
4
father spent time with A.M. and B.M. going to restaurants and talking;
Fredericksen felt they were friends.
Sometime in the days leading up to the birth of the child, in mid-February
2012,2 Olsen sent Fredericksen and the biological father the “hospital adoption
plan,” which stated Olsen would need to meet with them after the child’s birth to
sign some “legal documents to assist in the finalization of the adoption.” The
plan outlined that Fredericksen would sign “all necessary paperwork prior to her
discharge. (i.e. release of information, release of baby to Attorney Olsen and the
temporary custody agreement).”
The child was born on February 15.
Fredericksen and the child were discharged from the hospital on February
18. Fredericksen gave the child to A.M. and B.M. in the hospital parking lot.
Between February 17 and February 21, Fredericksen began to believe
that A.M. resented Fredericksen’s ongoing contact and relationship with the child.
After A.M. took the child, she restricted Fredericksen’s access to the child by not
allowing Fredericksen to visit the child as often or for as long as Fredericksen
wished.
However, on February 20, Fredericksen and the child’s biological father
signed a release of custody in a meeting with Olsen. The release advised that
they had ninety-six hours to revoke the release, and if they did not do so, a
petition to terminate each of their parental rights would be filed soon thereafter.
Olsen assumed legal custody of the child pursuant to the terms of the release.
2
The letter attached to the “hospital adoption plan” is dated February 10 while the plan
itself is dated February 11. Fredericksen maintains she received the document on
February 14.
5
On February 22, Fredericksen met with A.M. and B.M. Fredericksen
presented a document entitled “expectations of the future,” in which she
explained her understanding of the parties’ arrangement and how it would work
going forward. A.M. and B.M. agreed Fredericksen would continue to be a part
of the child’s life.
On February 24, Olsen, as the guardian and custodian of the child, filed a
petition for the termination of Fredericksen’s and the biological father’s parental
rights. The petition stated Fredericksen and the biological father “[did] not object
to the termination after having been given proper notice and opportunity to
object.” The same day, the court set a hearing on the petition for March 6.
On March 2, Fredericksen accepted service and notice of the petition to
terminate her parental rights and notice of the scheduled termination hearing.
Fredericksen continued to have contact with the child until March 3, when
A.M. and B.M. left with the child to return to their home in Texas.
On March 6, following the hearing on the petition, the court terminated
Fredericksen’s parental rights. Olsen appeared as guardian and custodian of the
child; another attorney appeared as guardian ad litem. Neither Fredericksen nor
the biological father chose to attend the hearing.
According to Fredericksen, within a couple of weeks of returning to Texas,
A.M. and B.M. began to restrict or cut-off communication with Fredericksen.
A.M. and B.M. stopped allowing Fredericksen access to their Facebook page,
which she had used to see pictures of the child. Fredericksen expressed her
dissatisfaction, but A.M. and B.M. did not provide her access.
6
Fredericksen and her mother told A.M. they wanted the child returned. On
March 30, according to Fredericksen, A.M. called Fredericksen and said she
should take the child back. Fredericksen agreed she would do so, and she
contacted Olsen to request her to do whatever needed to be done for the return
of the child. On April 2, Olsen told Fredericksen she could not legally have the
child returned to her because Olsen had talked to the biological father and he
refused to consent to it.3
Eventually, Fredericksen was given some access to see photos of the
child on Facebook. According to Fredericksen, she was only allowed to visit the
child on May 13, 2012, and one time in late 2013.
On August 30, 2012, Fredericksen’s new attorney, Rebecca Sharpe, sent
A.M. and B.M. a letter. In it, Sharpe stated she had been retained by
Fredericksen and had “been in frequent contact with [Fredericksen] . . . over the
last few months.” The letter stated that A.M. and B.M. had failed to follow
through with the agreement they had with Fredericksen and Fredericksen was
“prepared to take this matter to the highest court in the land to overturn the
termination of her parental rights.”
Notwithstanding, Fredericksen took no action to set aside the judgment or
intervene in the adoption, which was finalized in Texas in November 2012.
3
Fredericksen asserts the biological father never made such a statement to Olsen.
However, in her recitation of the facts, she states that after Olsen told her the biological
father made such a statement, Fredericksen and her parents “visited [the biological
father] and his family. They begged them to agree to allow [Fredericksen] to take
custody of [the child]. [The biological father] and his family declined.”
7
Fredericksen filed the present suit on February 19, 2014. In February
2015,4 Olsen, A.M., and B.M. filed motions for summary judgment.
The district court held a hearing on the motions on March 13, 2015.
Following the hearing, the district court granted Olsen’s and A.M. and B.M.’s
motions for summary judgment in their entirety and dismissed each of
Fredericksen’s claims.
Fredericksen appeals.
II. Standard of Review.
On review of summary judgment rulings, we review for errors of law. Bass
v. J.C. Penney Co., 880 N.W.2d 751, 755 (Iowa 2016). We view the entire
record in the light most favorable to the nonmoving party, making every
legitimate inference that the evidence in the record will support in favor of the
nonmoving party. Id. Summary judgment is appropriate when “there is no
genuine issue as to any material fact” and “the moving party is entitled to a
judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “‘An issue of fact is
‘material’ only when the dispute involves facts which might affect the outcome of
the suit, given the applicable governing law.’” Nelson v. Lindaman, 867 N.W.2d
1, 6 (Iowa 2015) (citation omitted).
“We review legal issues necessary for resolution of the constitutional
claims presented within the context of the summary judgment proceeding de
novo.” Varnum v. Brien, 763 N.W.2d 862, 874 (Iowa 2009).
4
In the interim, the case was removed to federal court. The federal court determined it
did not have subject matter jurisdiction, and the case was remanded to the state court.
8
III. Discussion.
A. Legal Malpractice.
Fredericksen maintains the district court erred in granting Olsen’s motion
for summary judgment and dismissing Fredericksen’s claim of legal malpractice
against Olsen. Fredericksen maintains the district court incorrectly decided
Fredericksen’s injury—the loss of her parental rights—was not a direct result of
Olsen’s negligence. In the alternative, Fredericksen maintains there is a genuine
issue of material fact, which prevents summary judgment from being proper on
this claim.
“To establish a prima facie claim of legal malpractice, the plaintiff must
produce evidence showing the attorney’s breach of duty caused ‘actual injury,
loss, or damage.’” Vossoughi v. Polaschek, 859 N.W.2d 643, 649 (Iowa 2015)
(citation omitted). “An attorney breaches the duty of care owed to the client when
the attorney fails to use ‘such skill, prudence and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the performance of the task
which [is undertaken].’” Schmitz v. Crotty, 528 N.W.2d 112, 115 (Iowa 1995)
(alteration in original) (citation omitted). To establish causation, the plaintiff must
establish the attorney’s breach was the cause in fact of the damage and the
damages were within the scope of liability. See Thompson v. Kaczinski, 774
N.W.2d 829, 838–39 (Iowa 2009).
Here, the district court, viewing the evidence in the light most favorable to
Fredericksen, found there was an attorney-client relationship between Olsen and
9
Fredericksen,5 and Olsen breached6 her duty to Fredricksen. However, the court
determined summary judgment dismissing the Fredericksen’s claim of legal
malpractice was appropriate because any breach by Olsen was not the
proximate cause of Fredericksen’s damages, namely the loss of her parental
rights and relationship with the child.
The court cited Ruden v. Jenk, 543 N.W.2d 605, 611 (Iowa 1996), for the
proposition that an attorney’s negligence cannot be the proximate cause of a
plaintiff’s damages when the plaintiff hired a new attorney within the statutory
limitations to appeal or correct the issue. Fredericksen maintains the present
facts are distinguishable from Ruden because “no action by a subsequent
attorney could eliminate the harm or even greatly reduce [it].” She argues the
applicable statute of limitations in her case was the thirty-day period following the
order terminating her rights, which is the time limit for motions to vacate the
termination order under Iowa Code section 600A.9 (2). We agree. The facts
here show that Olsen gave incorrect advice to Frederickson when A.M. and B.M.
were prepared to return the child to Frederickson within the thirty-day period.
Frederickson relied on the advice that the baby could not be returned unless the
biological father agreed, as indicated by the family’s visit to him.
5
Olsen characterizes herself as an “adoption facilitator,” apparently to justify her
advising the biological mother and father and their families, the adoptive parents (who
paid her fees), and becoming custodian of the child.
6
Based on both Fredericksen’s and the district court’s recitation of the facts, there were
multiple times throughout the proceedings when Olsen could have advised Fredericksen
differently or Fredericksen could have contested or revoked her consent for the
termination. We focus on Fredericksen’s allegation Olsen told her on April 2, 2012—
three days before the deadline to have the court vacate the termination order pursuant to
section 600A.9(2) (2011)—there was nothing that could be done legally to have the child
returned to Fredericksen.
10
Fredericksen’s parental rights were terminated on March 6, 2012. The
thirty days to vacate the order had passed before Fredericksen hired new
counsel. See Iowa Code § 600A.9(2) (stating that if a termination order is
granted, “the juvenile court shall retain jurisdiction to change a guardian or
custodian and to allow a terminated parent or any putative biological parent to
request vacation or appeal of the termination order which request must be made
within thirty days of issuance of the granting of the order.”). The statute does not
outline the bases for vacating the order, other than the requirement that vacating
the order be in the child’s best interests, and case law does not indicate any
other finding the district court must make. See, e.g., In re E.C.G., 345 N.W.2d
138, 141 (Iowa 1984) (stating the “standard for granting a motion to vacate
termination of parental rights under section 600A.9(2) is ‘the best interests of the
child’”); In re Adoption of M.M.B., 376 N.W.2d 900, 902 (Iowa 1985) (stating
section 600A.9(2) allows a parent whose rights have been terminated to seek to
have the court vacate the order and the court may grant the order only if it is in
the child’s best interests). Although Fredericksen had new representation by
August 30, 2012,7 within the one-year period during which the court can “correct,
vacate, or modify a final judgment” if there was “irregularity or fraud practiced in
obtaining it,” Iowa Rs. Civ. Pro. 1.1012, 1.1013, Fredericksen had a greater
burden after the thirty-day period expired and less likelihood of mitigating the
harm of the termination of her parental rights.
7
The new attorney, Sharpe, sent a letter on behalf of “[her] client” Fredericksen to A.M.
and B.M. on August 30, 2012. In the letter, Sharpe indicated she had “been in frequent
contact with Ms.Fredericksen over the last few months.”
11
To get the order vacated on April 2, 2012, when Fredericksen alleges she
told Olsen to do anything necessary to get the child back, Fredericksen only
needed to establish that the court’s vacation of the order would be in the best
interests of the child. See Iowa Code § 600A.9(2) (“The juvenile court shall grant
the request only if it is in the best interest of the child.”). Based on the facts
alleged by Fredericksen, that A.M. and B.M. were willing to return the child and
Fredericksen and her parents were ready and able to take the child into their
home, we believe the district court might have granted the request.
But to have the termination order vacated under Iowa Rule of Civil
Procedure 1.1012, Fredericksen had the burden to establish it was in the best
interests of the child and that termination had been obtained using extrinsic
fraud. See In re Adoption of B.J.H., 564 N.W.2d 387, 392 (Iowa 1997) (“Although
proof of extrinsic fraud would ordinarily by itself be sufficient under rule [1.1012]
to support vacation of a judgment, an additional requirement must be imposed
where an adoption decree is the judgment to be vacated. When the adoption of
a child is involved, the court must consider the best interests of the child.”).
Moreover, we believe her burden of establishing that the vacation of the order
was in the best interests of the child would have been more difficult
approximately six months after A.M. and B.M. began caring for the child than it
would have been on April 2, 2012. See, e.g., Iowa Code § 232.116(1)(h)
(allowing courts to terminate parental rights after a child under the age of three
has been out of the physical custody of the parent for six months); In re Marriage
of Weidner, 338 N.W.2d 351, 360 (Iowa 1983) (focusing on the importance of
stability in the lives of young children).
12
Although the causation language in Ruden indicated the harm caused by
the attorney’s mistaken advice is reparable until the statute of limitations expires
on attorney malpractice, the same is not true for a situation involving child
custody—a harm not compensable by money damages. Here, all parties had
reached a decision to vacate the termination of parental rights decision within the
thirty-day window of Iowa Code section 600A.9(2) and to return the child to its
biological mother. But for Olsen’s mistaken advice and her lack of action on the
Fredericksens’ request, the court may have vacated the termination order. In
other words, we believe the causation language of Ruden would only be
applicable here if Fredericksen hired the second attorney before the thirty-day
window to vacate the termination order closed. 543 N.W.2d at 612 (noting the
first attorney’s negligence is not the proximate cause of damages if the
successor attorney is hired at a time when the action is not barred). Although
Fredericksen retained an opportunity to challenge the termination order after the
thirty days, the type of challenge available to her and the burden she had to carry
to sustain that challenge had increased dramatically.
It is not clear whether the events took place as Fredericksen alleges. 8 It is
also unclear whether there was an attorney-client relationship between Olsen
and Fredericksen.9 Moreover, material facts include communication with A.M.
and B.M., communication with Olsen, and the sequence of these conversations.
8
As the district court noted, “Defendants filed their statements of undisputed facts.
Plaintiff filed her Statement of Disputed and Other Material Facts. This was not precisely
a statement of facts which Plaintiff disputed. Instead, it was a recitation of ‘facts’ from
Plaintiff’s perspective.”
9
Fredericksen and Olsen each filed an affidavit from an expert; Fredericksen’s asserted
there was an attorney-client relationship between the two parties, while Olsen’s asserted
Olsen worked as a facilitator, as “is the normal custom and practice in Iowa.”
13
For these reasons, we believe there is a genuine issue of material fact regarding
whether Olsen’s alleged inaction was the cause of harm to Fredericksen. See
Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998) (“It is well established the
questions of negligence, contributory negligence, and proximate cause are
generally for the jury and only in exceptional cases can they be decided as a
matter of law.”). As such, the district court erred in granting summary judgment
and dismissing Fredericksen’s claim against Olsen for legal malpractice.
B. Civil Conspiracy to commit Fraudulent Inducement.
1. Olsen. Fredericksen maintains the district court erred in granting
summary judgment for Olsen and dismissing Fredericksen’s claim of civil
conspiracy to commit fraudulent inducement.
Under Iowa law, “[a] conspiracy is a combination of two or more persons
by concerted action to accomplish an unlawful purpose, or to accomplish by
unlawful means some purpose not in itself unlawful.” Wright v. Brooke Grp., Ltd.,
652 N.W.2d 159, 171 (Iowa 2002) (alteration in original) (citation omitted).
“Under this theory of liability, ‘an agreement must exist between the two persons
to commit a wrong against another.’” Id. at 172 (citation omitted). However, civil
conspiracy is not in itself actionable. Id. In other words, there must be an
underlying, actionable claim for an independent tort. See id.The district court dismissed Fredericksen’s claim against Olsen because
she failed to plead the claim of fraudulent inducement. See Hanson v. Lassek,
154 N.W.2d 871, 873 (Iowa 1967) (“[T]he functions of a pleading are to put the
other party on notice of what the pleader intends to prove at trial [a]nd to define
the issues. . . . [A]ny relief granted must be consistent with the case made by the
14
pleading . . . .” (citation omitted)); see also Auston v. Schubnell, 116 F.3d 251,
255 (7th Cir. 1997) (stating plaintiff’s claims that were not included in the
complaint failed and could not be added at the summary judgment stage
because it was “too late in the day to be adding new claims”). We find no error in
the district court’s decision.
2. A.M. and B.M. Fredericksen maintains the district court erred in
granting summary judgment for A.M. and B.M. and dismissing her claim against
them for civil conspiracy to commit fraudulent inducement.10
To establish a common-law claim for fraudulent inducement, the plaintiff
must establish:
(1) defendant made a representation to the plaintiff, (2) the
representation was false, (3) the representation was material,
(4) the defendant knew the representation was false, (5) the
defendant intended to deceive the plaintiff, (6) the plaintiff acted in
reliance on the truth of the representation and was justified in
relying on the representation, (7) the representation was a
proximate cause of plaintiff's damages, and (8) the amount of
damages.
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 400 (Iowa 2001).
The district court dismissed Fredericksen’s claim because it found she
could not have reasonably or justifiability relied on any promises made by A.M.
and B.M. regarding an “open adoption” and ongoing contact between her and the
child. Fredericksen admitted Olsen advised her open adoptions are not
enforceable. Notwithstanding, Fredericksen continues to maintain she should be
10
A.M. and B.M. claim this issue is not preserved for our review because Fredericksen
does not include a heading in her brief specifically stating she is challenging the district
court’s ruling on her claim for fraudulent inducement. While the Iowa Rules of Appellate
Procedure require an appellant to present each issue for our review numbered and
stated separately, we decline to take such a Draconian approach to error preservation.
See Iowa R. App. Pro. 6.903(2)(c) (requiring the appellant’s brief to contain a statement
of the issues presented for review, with each issue numbered and stated separately).
15
allowed to recover damages because she did, in fact, believe A.M. and B.M and
made a decision based on their statements. However, even if Fredericksen
believed and relied on the statements made by A.M. and B.M., “plaintiffs who
close their eyes to a known or obvious danger that a statement is fraudulent
cannot recover losses they suffer from reliance on it.” Restatement (Third) of
Torts: Liab. For Econ. Harm § 11 cmt. d (Am. Law Inst., Tentative Draft No. 2,
2014); see also Spreitzer v. Hawkeye State Bank, 779 N.W.2d 726, 738 (Iowa
2009) (“This approach is consistent with the established view that the justifiable-
reliance element means a plaintiff cannot close his or her eyes to an obvious
contradiction.”).
We agree with the district court that even if A.M. and B.M. intentionally lied
to Fredericksen regarding the promise of ongoing contact with the child, because
Fredericksen knew that such promises were unenforceable, she cannot have
justifiably relied on such promises. As such, Fredericksen’s underlying claim of
fraudulent inducement fails as a matter of law, and the district court properly
dismissed the claim of civil conspiracy to commit fraudulent inducement.
C. Tortious Interference with Custody.
Fredericksen maintains the district court erred in granting the defendants’
motions for summary judgment and dismissing Fredericksen’s claims of tortious
interference with custody.
To establish a prima facie claim of tortious interference with custody, the
plaintiff must show:
(1) the plaintiff has a legal right to establish or maintain a parental
or custodial relationship with his or her minor child; (2) the
defendant took some action or affirmative effort to abduct the child
16
or to compel or induce the child to leave the plaintiff's custody; (3)
the abducting, compelling, or inducing was willful; and (4) the
abducting, compelling, or inducing was done with notice or
knowledge that the child had a parent whose rights were thereby
invaded and who did not consent.
Wolf v. Wolf, 690 N.W.2d 887, 892 (Iowa 2005). Here, the district court found
that this cause of action was not applicable to any of the defendants because, at
the time they took the child, Fredericksen had signed a release consenting to the
removal of the child from her care and custody.
Fredericksen maintains this cause of action is applicable in cases such as
hers, where the defendants’ tortious actions are meant to lead to the termination
of a parent’s rights. As such, she maintains the district court was wrong to rely
on her consent to defeat her claim. She asserts the consent was invalid because
she was fraudulently induced into giving up her parental rights. Without valid
consent, she maintains the defendants’ taking of the child was an abduction or
kidnapping, which is actionable under tortious interference with custody. 11
However, Fredericksen has not established that is what happened in her
case. As stated above, Fredericksen did not plead a claim of fraudulent
inducement against Olsen. Moreover, her claims for fraudulent inducement
against A.M. and B.M. fail for the reason stated above.
11
Although we have not found a case where the cause of action was applied in the
situation described by Fredericksen, we believe it is a fair reading. In Wolf, the supreme
court stated that the common-law claim of tortious interference had since been codified
in chapter 710 (2001), which is in the section of the code on “kidnapping and other
related offenses.” The definition of kidnapping contemplates that one may “seize or take
away (a person) by force or fraud.” Kidnap, Black’s Law Dictionary (10th ed. 2014)
(emphasis added). In a case where the parent consents to the taking of the child, but
the consent is the result of fraud, we believe the cause of action for tortious interference
with custody is applicable.
17
Because Fredericksen cannot establish she was fraudulently induced to
consent to the revocation of custody and the termination of her rights, the district
court properly concluded Fredericksen’s claims for tortious interference with
custody cannot stand.
D. Unconstitutional As Applied.
Fredericksen maintains the order terminating her parental rights was
unconstitutional. She asserts that she is not facially or categorically challenging
the statute but rather is claiming, “under the unique facts of this case,” her
constitutional rights were violated.
Fredericksen argues the order terminating her parental rights is void
because her waiver of her constitutional right to have a relationship with her child
was not knowing and voluntary. “The interest of parents in their relationship with
their children is a fundamental liberty interest protected by the Fourteenth
Amendment.” In re B.G.C., 496 N.W.2d 239, 244 (Iowa 1992).
Although Fredericksen characterizes her decision to consent to the
termination as uninformed, the record establishes she was consistently provided
the necessary, correct information throughout the period of time leading up the
termination of her rights.
On February 11, 2012, four days before the child’s birth, Olsen sent
Fredericksen the “hospital adoption plan,” which stated Olsen would need to
meet with Fredericksen after the child’s birth to sign some “legal documents to
assist in the finalization of the adoption.” The plan outlined that Fredericksen
would sign “all necessary paperwork prior to her discharge. (I.e. release of
information, release of baby to Attorney Olsen and the temporary custody
18
agreement).” Additionally, it provided, “Baby will be discharged to the Attorney,
for placement with the adoptive couple. This is a legal risk placement case as
the adoptive couple will accept child at discharge and care for child during the 96
hour period prior to legal action.”
On February 20, Fredericksen signed a release of custody. The release
included the following provisions:
I have been further advised and understand that Jennifer
Olsen will immediately Petition the Juvenile Court in and for Scott
County, Iowa, for [her] appointment as Guardian and Custodian of
said child.
I have been further advised and understand that the signing
of this Release shall be followed, within a reasonable time, by the
filing of a Petition for Termination of Parental Rights under Section
600A.5 of the 2011 Code of Iowa.
I have been further advised and understand that the purpose
of this Release is to permit said child to be placed for adoption.
....
I have been further advised and understand that if this
Release is not revoked as hereinafter set forth, it may be grounds
for termination of the parent-child relationship currently existing
between said child and myself.
I have been further advised and understand that I may, at
any time prior to the entry of an Order terminating parental rights,
request the Juvenile Court in and for Scott County, Iowa to Order
the revocation of this Release of Custody by filing such request with
said Court at Juvenile Court Services, . . . If such request is made
within ninety-six (96) hours of the time I signed this Release of
Custody, said Juvenile Court shall order this Release revoked.
Otherwise, said Juvenile Court shall order this Release revoked
only upon clear and convincing evidence that good cause exists for
revocation. Good cause for revocation includes but is not limited to
a showing that the Release was obtained by fraud, coercion, or
misrepresentation of law or fact which was material to its execution.
In determining whether good cause, other than fraud, coercion or
misrepresentation exists for revocation, said Juvenile Court shall
give paramount consideration to the best interests of the child and
due consideration to the interests of the parents of the child and of
any person standing in the place of the parents.
19
Four days later, after the ninety-six hour to revoke had passed, Olsen filed
a petition for the termination of Fredericksen’s parental rights. The petition stated
Fredericksen “[did] not object to the termination after having been given proper
notice and opportunity to object.”
The same day, the court set a hearing on the petition for March 6.
On March 2, Fredericksen accepted service and notice of the petition to
terminate her parental rights and the termination hearing. Fredericksen chose
not to attend the hearing.
As we have stated above, Fredericksen was aware throughout the
process that after she consented to the termination of her rights, there was no
way to enforce the promises made to her by A.M. and B.M. regarding her future
contact with the child. Thus, regardless of her subjective belief, she was
informed of the lack of enforcement mechanism throughout. Additionally, as the
facts above establish, she was also informed of the process involved with the
release of custody and what she needed to do to revoke or undo the process
within ninety-six hours, in order to forestall the termination of her parental rights.
Even if Fredericksen did not read the documents she signed, we impute such
knowledge to her, as she is bound by the documents she signed. See, e.g.,
Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317, 323 (Iowa 1977)
(stating a party is generally “bound by the documents [the party] signs even
though . . . it has not expressly accepted all of the contract provisions or is even
aware of them”); Preston v. Howell, 257 N.W. 415, 418 (Iowa 1934) (“It is also
the settled rule of law that if a party to a contract is able to read, has the
opportunity to do so, and fails to read the contract, he cannot thereafter be heard
20
to say that he was ignorant of its terms and conditions, for the purpose of
relieving himself from its obligation.”).
In considering whether Fredericksen’s waiver was voluntary, we
acknowledge the Nebraska case cited by Fredericksen, which found that parents
who signed a relinquishment of their parental rights after being “led to believe
that they could continue to see their son following an adoption” had been coerced
by the promise of the “open” adoption. McCormick v. State, 354 N.W.2d 160,
161–62 (Neb. 1984); see Monty S. v. Jason W., 863 N.W.2d 484, 488 (Neb.
2015) (noting the district court had “found that the open adoption agreement itself
acted as coercion and invalidated the relinquishments”). No party has provided a
case from Iowa where the promise of an “open adoption” has been found to be
coercive, and we are not persuaded that any promises made to Fredericksen rise
to that level. See Coercion, Black’s Law Dictionary (10th ed. 2014) (“Compulsion
of a free agent by physical, moral, or economic force or threat of physical force.”).
Here, we agree with the district court that Fredericksen’s waiver of her
parental rights was knowing and voluntary, and as such, there was no
unconstitutional application of Iowa Code chapter 600A in this case.
IV. Conclusion.
Because there is a genuine issue of material fact regarding whether
Olsen’s alleged inaction was the cause of harm to Fredericksen, the district court
erred in granting summary judgment in favor of Olsen and dismissing
Fredericksen’s claim of legal malpractice. We reverse on that claim.
21
We affirm the district court’s ruling on all other claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.