IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS OF JESSICA L. IBANEZ OVER K.S.M., K.L.M. and D.F.M., MINOR CHILDREN
ARGUED ON MARCH 19, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA, THE HONORABLE KATHLEEN K. CALDWELL Retired Judge
JASON R. SUTTON THOMAS J. WELK of Boyce, Greenfield, Pashby & Welk, LLP, Attorneys for appellant Jessica L. Ibanez.
CLINT L. SARGENT RALEIGH HANSMAN of Meierhenry & Sargent, LLP, Attorneys for appellees Jared and Amy Miller
[¶1.] In seeking to set aside her voluntary termination of parental rights, a mother alleged "fraud upon the court" because she was "secretly paid monetary consideration" and given "unenforceable secret promises" of continued visitation with her children, all of which were not disclosed in the step-parent adoption proceedings. The circuit court denied relief and she appeals.
[¶2.] Jessica Ibanez, the mother, was born in El Salvador in 1978. When she was four years old, her family moved back to South Dakota. She grew up here, attended Northern State University, and obtained a degree in International Business. It was at Northern State that she met Jared Miller. They married on May 27, 2000. They had three girls: K.S.M., K.L.M., and D.F.M.
[¶3.] Jessica stayed home with their daughters while Jared worked. They enjoyed an upper-middle class lifestyle. In 2006, Jessica learned that Jared was having an affair. He moved out and began divorce proceedings. His attorney was Steven Siegel, who would later become a witness. Jessica chose to proceed without counsel. She later explained that she trusted Jared and his family for advice and support during the divorce. Jared's family, she recalled, had told her that she need not hire a lawyer because she "would be taken care of." In a letter, Attorney Siegel advised Jessica that he was not her lawyer and that she should hire her own.
[¶4.] In January 2007, the parties stipulated to the terms of the divorce. But the stipulation was rejected by the circuit court because it failed to address alimony for Jessica. A second stipulation was approved, when it changed a $21, 000 property settlement for Jessica into a $21, 000 lump sum alimony payment. Jessica received custody of the children. She was permitted to stay in the marital home, but was required to pay rent and utilities.
[¶5.] After the divorce, Jessica worked various jobs, but could not maintain consistent employment and never earned an annual salary of more than $30, 000. Some of her jobs required travel, which made it difficult for her to spend time with her daughters. At some point, diagnosed with depression and suffering "emotional difficulties, " Jessica found herself "financially bankrupt." She asked Jared to share custody of the children. Attorney Siegel drafted a third stipulation wherein Jared received physical custody. Jessica thought at the time that this arrangement would only be temporary while she got her life in order.
[¶6.] In June 2008, Jared married Amy, the woman with whom he had had the affair. In Jessica's perception, Jared and Amy belittled her and tried to make her feel inadequate. And Jessica began to suffer decreased access to her girls. Her situation became more difficult when, in 2009, Jared sought child support. After a hearing, she was ordered to pay $463 per month, effective September 1, 2009. She fell behind on her payments, and with delinquent child support, her insurance license, necessary for her work, could not be renewed.
[¶7.] Jessica met with Amy and Jared at a coffee shop. Their purpose was to discuss whether Jessica would terminate her parental rights so that Amy could adopt the girls. They would later disagree on whose proposal it was, but, regardless, after the meeting, their joint plan was for Jessica to terminate her parental rights; Jared would forgive her past-due child support; and Jessica and her parents would have visitation with the children. At that time, Jessica was dating a man living in Austin, Texas, and believed it best for herself to move there. Multiple emails, admitted in evidence, reflect these arrangements.
[¶8.] On November 3, 2009, Attorney Siegel sent a letter to Jessica "to outline the terms of future visitation" for her and her parents. He wrote that Jared and Amy would "agree to let you know about the activities and events going on in the girls' lives, and they will send you pictures and information now and again to keep you updated." As for Jessica's parents, Jared and Amy found "unrealistic" Jessica's proposal to allow them visitation for one week a summer. But it was agreed "to let the girls visit [Jessica's] parents for one weekend in the summer." The letter also provided: "As you know, terminating your parental rights means terminating all birth family rights as well." On the subject of child support, Attorney Siegel warned: "If you do not agree with any of the terms listed above, you, of course, are not required to terminate your parental rights. We will simply go back to the original child support Order, and you will ...