COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Clements 

Argued at Salem, Virginia 

TAZEWELL COUNTY DEPARTMENT OF 

 SOCIAL SERVICES, BOBBY THOMAS WEBB 

 AND SANDRA LEA WEBB 

 MEMORANDUM OPINION* BY 

v. Record No. 1388-01-3 JUDGE JEAN HARRISON CLEMENTS 

 MARCH 5, 2002 

MARY E. BOOTHE 

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY 

Donald R. Mullins, Judge 

 Stephen E. Arey; Kelly C. Necessary, Guardian 

ad litem for the minor children (F. Bradley 

Pyott; Stephen E. Arey, P.C.; Dudley, 

Galumbeck, Necessary & Dennis; Gillespie, 

Hart, Altizer & Whitesell, on brief), for 

appellants. 

 No brief or argument for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Appellants Tazewell County Department of Social Services 

(DSS) and prospective adoptive parents Bobby Thomas Webb and 

Sandra Lea Webb appeal the decision of the Circuit Court of 

Tazewell County (trial court) invalidating the permanent 

entrustment agreements executed by Mary E. Boothe as to her two 

minor children and the orders based thereon of the juvenile and 

domestic relations district court (juvenile court) terminating 

Boothe's residual parental rights. The trial court concluded 
that, although Boothe had not, as she claimed, been coerced by 

her attorney or the social worker into executing the permanent 

entrustment agreements and had not revoked those agreements or 

objected to or appealed from the orders terminating her residual 

parental rights, Boothe's feeling "that her consent in signing 

the entrustment agreements was not voluntary" constituted a 

sufficient basis for rescinding the entrustment agreements and 

the juvenile court's orders terminating her parental rights. 

Appellants contend the trial court erred in reaching that 

conclusion. We agree and reverse the trial court's judgment. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding of the 

disposition of this appeal. 

I. BACKGROUND 

 The record in this case includes a written statement of 

facts in lieu of a transcript. By order dated October 22, 1998, 

the trial court, upon hearing evidence in a custody and visitation 

proceeding, placed Boothe's two children, D.A.B. and B.T.B., born 

November 8, 1993, and July 13, 1995, respectively, in foster care 

with DSS and remanded the matter to the juvenile court for further 

proceedings. By order dated May 25, 2000, the juvenile court 

approved, in accordance with the children's best interests, DSS's 

foster care plan amending the goal for the children to adoption. 

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On May 31, 2000, DSS filed a petition with the juvenile court for 

termination of Boothe's residual parental rights to her children. 

A termination hearing was set for July 13, 2000. 

 On July 13, 2000, having been advised by her counsel of the 

consequences of signing such documents, Boothe executed 

entrustment agreements permanently relinquishing legal custody of 

her two children to DSS for the purpose of adoption. The 

agreements executed by Boothe provided that they may be revoked 

"until the child is 25 days old and fifteen days have elapsed from 

the signing of this Agreement" or "any time prior to the child's 

placement in the home of the adoptive parents." The juvenile 

court entered an order on July 13, 2000, noting Boothe's execution 

of the permanent entrustment agreements and setting the matter 

over to July 28, 2000, to allow Boothe the requisite fifteen days 

to revoke the agreements, if she wished. On July 28, 2000, Boothe 

not having revoked the permanent entrustment agreements, the 

juvenile court, finding by clear and convincing evidence that it 

was in the children's best interests to do so, entered final 

orders approving the permanent entrustment agreements and 

terminating Boothe's residual parental rights to the two children. 

Boothe did not object to the entry of those orders or note an 

appeal from them. 

 On November 8, 2000, the Webbs filed petitions with the trial 

court to adopt D.A.B. and B.T.B. The trial court entered orders 

of reference regarding the two children on November 9, 2000, 

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noting, inter alia, that the children had already been placed in 

the Webbs' home. 

 In a letter to the juvenile court dated December 18, 2000, 

Boothe asked the court to stop the adoption proceedings and to 

hold a trial on the termination of her parental rights. In the 

letter, Boothe claimed that her attorney and the DSS social 

worker assigned to the case pressured her into signing the 

entrustment agreements on July 13, 2000. She further noted that 

she was not in the "right state of mind" when she executed the 

agreements because her husband had been sentenced on June 2, 

2000, to sixty years in prison. She also noted that she was 

sentenced to three years in prison on August 16, 2000. In a 

subsequent letter to the trial court dated January 2, 2001, 

Boothe made the same claims and requests. 

 Upon receipt of Boothe's letter, the trial court, sua

sponte, set a hearing for April 11, 2001, to determine whether 

Boothe had been coerced into executing the permanent entrustment 

agreements. At that hearing, Boothe testified that she was 

"under a great deal of stress" at the time she entered into the 

permanent entrustment agreements. She stated that her husband 

had been sentenced to sixty years in prison and she could not 

eat, sleep, or hold a job. She also stated that, on July 13, 

2000, before the scheduled termination hearing, both her 

attorney and the social worker showed her the entrustment 

agreements and told her that, "if she loved her children enough, 

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she would do the right thing." According to Boothe, the social 

worker advised her that the children would stay together if they 

were adopted. Boothe was also advised that DSS would go ahead 

with the termination hearing if she did not execute the 

entrustment agreements. 

 Boothe further testified that she spoke with her attorney 

for approximately fifteen minutes after the social worker left 

the room. Boothe recalled that, while her attorney never told 

her to sign the agreements, she did tell her that "it was no use 

to proceed with the termination hearing." Ultimately, according 

to Boothe, her attorney convinced her that signing the 

entrustment agreements "was the right thing to do." Her 

attorney, Boothe further recalled, also advised her that she 

would have fifteen days after executing the agreements to revoke 

them if she changed her mind. Thus, according to Boothe, 

although she initially wanted to proceed with the termination 

hearing, she ended up signing the agreements. 

 Boothe further testified that she was not threatened during 

this matter and that she did not get angry. She also stated 

that she spoke with the guardian ad litem for the children 

during that time, but they did not discuss the entrustment 

agreements. 

 Social worker Dominica Asbury testified that, prior to the 

scheduled termination hearing on July 13, 2000, she discussed 

with Boothe, in the presence of Boothe's attorney, the 

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possibility of executing entrustment agreements in lieu of 

proceeding with the termination hearing. She stated that she 

told Boothe that such agreements would be in the best interests 

of her children. Asbury further testified that, following the 

discussion, she left Boothe with her attorney. 

 Attorney Susan Henderson, who represented Boothe at the 

termination proceedings on July 13, 2000, testified that she was 

aware at the time of Boothe's pending criminal proceedings and 

her husband's recent incarceration. Henderson further testified 

that Boothe did not mention either matter during their 

discussions about the entrustment agreements, either in the 

presence of the social worker or later when they were alone. 

She added that Boothe was not under medical or psychological 

treatment at the time she executed the agreements. 

 Henderson also testified that, following the social 

worker's departure from the room, she advised Boothe that she 

was prepared to go forward with the termination hearing. She 

also stated that she advised Boothe that getting the hearing 

continued was not likely and that, "based on the facts and the 

testimony of the witnesses who were summoned to testify, the 

judge would probably enter an order of termination." She 

further testified that Boothe initially wanted to go ahead with 

the hearing but ultimately decided to execute the permanent 

entrustment agreements. Henderson recalled that she 

specifically advised Boothe that she had fifteen days in which 

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to revoke the entrustment agreements, as did the juvenile court 

judge when they informed him that permanent entrustment 

agreements had been executed. 

 Upon the evidence heard at the April 11, 2001 hearing, the 

trial court found, inter alia, (1) that Boothe did not revoke 

the entrustment agreements she executed on July 13, 2000, or 

object to or appeal from the juvenile court's final orders of 

July 28, 2000, approving those agreements and terminating Boothe's 

residual parental rights and (2) that Boothe was not coerced by 

her attorney, the social worker, or anybody else associated with 

the proceedings into executing the permanent entrustment 

agreements she entered into on July 13, 2000. Nevertheless, the 

trial court nullified the entrustment agreements and the 

juvenile court's orders based on those agreements and remanded 

the matter to the juvenile court for a termination hearing 

because the trial court was "of the opinion" that Boothe 

felt that her consent in signing the 

entrustment agreements was not voluntary 

because among other reasons, she had entered 

a plea of guilty to certain criminal charges 

in the Circuit Court of Tazewell County, 

Virginia on July 12, 2000 and her husband 

. . . had been sentenced by a jury to sixty 

years in the state penitentiary upon 

conclusion of a trial on June 2, 2000. 

This appeal followed. 

II. ANALYSIS 

 Appellants contend that the trial court erred when it 

invalidated the entrustment agreements and the juvenile court's 

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orders terminating Boothe's parental rights on the basis of its 

finding that Boothe "felt that her consent in signing the 

entrustment agreements was not voluntary." We agree. 

 Code § 63.1-219.30, which sets forth the method by which a 

permanent entrustment agreement may be revoked, provides, in 

pertinent part, as follows: 

 A valid entrustment agreement 

terminating all parental rights and 

responsibilities to the child shall be 

revocable by either of the birth parents 

until (i) the child has reached the age of 

twenty-five days and (ii) fifteen days have 

elapsed from the date of execution of the 

agreement. In addition, a valid entrustment 

agreement shall be revocable by either of 

the birth parents if the child has not been 

placed in the home of adoptive parents at 

the time of such revocation. 

 Here, Boothe did not object in any manner to the permanent 

entrustment agreements she executed on July 13, 2000, until she 

sent a letter dated December 18, 2000, to the juvenile court and 

a similar letter dated January 2, 2001, to the trial court, 

stating that she was pressured by her attorney and the DSS 

social worker into signing the entrustment agreements and that 

she was not in the "right state of mind" at the time. Clearly, 

then, the entrustment agreements were not revoked in accordance 

with the provisions of Code § 63.1-219.30. Not only did Boothe 

fail to revoke the entrustment agreements within the allowable 

fifteen days following their execution, the subject children 

were more than twenty-five days old at all times pertinent to 

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these proceedings and the children had been placed in the home of 

the adoptive parents well before Boothe manifested her intent to 

challenge the entrustment agreements. 

 Our analysis, however, does not end there. Code 

§ 63.1-219.28 provides that the parental rights of a birth 

parent who has executed a permanent entrustment agreement may be 

restored to the birth parent "by circuit court order prior to 

the entry of a final order of adoption upon proof of fraud or 

duress." Thus, to set aside the permanent entrustment 

agreements executed in the present case by Boothe, the trial 

court had to make a finding of fraud or duress. 

 Upon our review of the record, we conclude that the trial 

court made no such finding. Indeed, no allegation of fraud was 

ever made, and no evidence of any fraud was presented. 

Furthermore, the trial court specifically found, upon the 

evidence presented at the April 11, 2001 evidentiary hearing, 

that Boothe was not coerced by her attorney, the social worker, 

or anybody else associated with the proceedings into executing 

the permanent entrustment agreements. Rather, the trial court 

invalidated the entrustment agreements solely on the basis of 

its finding that Boothe "felt that her consent in signing the 

entrustment agreements was not voluntary" due to, "among other 

reasons," her continuing criminal proceedings and her husband's 

incarceration. In our view, such a finding does not constitute 

a finding of duress. 

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 In considering the issue of whether a parent had entered 

into a permanent entrustment agreement under the influence of 

duress in Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va. 

App. 420, 345 S.E.2d 533 (1986), we described duress as follows: 

 "Duress . . . means that degree of 

constraint or danger, either actually 

inflicted or threatened and impending, which 

is sufficient in severity or in apprehension 

to overcome the mind and will of a person of 

ordinary firmness. . . . 

* * * * * * * 

 Duress may exist whether or not the 

threat is sufficient to overcome the mind of 

a man of ordinary courage, it being 

sufficient to constitute duress that one 

party to the transaction is prevented from 

exercising his free will by reason of 

threats made by the other and that the 

contract is obtained by reason of such fact. 

Unless these elements are present, however, 

duress does not exist. . . . Authorities 

are in accord that the threatened act must 

be wrongful to constitute duress." 

Id. at 434-35, 345 S.E.2d at 541 (quoting 6B Michie's 

Jurisprudence Duress and Undue Influence §§ 2-3 (Repl. Vol. 

1985)). "The general rule is that 'duress must have been 

exercised upon him or her who sets it up as a defense, by him 

who claims the benefit of the contract, or by someone acting in 

his behalf or with his knowledge.'" Id. (quoting 25 Am. Jur. 2d 

Duress and Undue Influence § 21 (1966)). 

 Here, the trial court's finding that Boothe "felt that her 

consent in signing the entrustment agreements was not voluntary" 

was based not on any wrongful threats or coercion exercised upon 

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Boothe by those who had any interest in the entrustment 

agreements, or by those acting in their behalf. Rather, it was 

based on unfortunate circumstances in Boothe's life, at least 

partly of her own doing, that were beyond the control of DSS and 

Boothe's attorney. Thus, while there can be little doubt that 

Boothe's decision to execute the permanent entrustment 

agreements was fraught with stress and accompanied by a wide 

range of feelings, we conclude that the trial court made no 

finding of duress in connection with Boothe's execution of those 

agreements. 

 We hold, therefore, that, because it had no legal basis for 

doing so, the trial court erred in rescinding the permanent 

entrustment agreements executed by Boothe and the juvenile 

court's orders based thereon terminating Boothe's residual 

parental rights. Accordingly, we reverse the trial court's 

judgment and remand for further adoption proceedings consistent 

with this opinion. 

 Reversed and remanded.

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