in the Interest of G.S. and J. W., Children ( 2015 )

NO. 12-15-00210-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 321ST
G.S. AND J.W., § JUDICIAL DISTRICT COURT
CHILDREN § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
J.N., proceeding pro se, appeals the termination of her parental rights to G.S. and J.W.
We affirm.
BACKGROUND
J.N. is the mother of two children, G.S., born on December 4, 2006, and J.W., born on
June 2, 2014. On July 30, 2014, the Department of Family and Protective Services (the
Department) filed an original petition for protection of G.S. and J.W., for conservatorship, and
for termination of J.N.’s parental rights. That same day, the trial court signed an order for
protection of a child in an emergency and appointed the Department as the temporary sole
managing conservator of the children. On August 14, 2014, J.N. agreed to the trial court’s
appointing the Department as the temporary sole managing conservator of the children and
appointing J.N. as their temporary possessory conservator.1
On July 15, 2015, the trial court terminated J.N.’s parental rights pursuant to Section
161.001, subsections (b)(1)(K) and (b)(2) of the family code.2 This appeal followed.
1
G.S.1 is the father of G.S., and J.W.1 is the father of J.W. G.S.1 and J.W.1 were appointed temporary
possessory conservator for their respective child. Ultimately, their parental rights were terminated, and neither
father is a party to this appeal.
2
Subsections (b)(1)(K) and (b)(2) provide that a trial court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the parent has:
ISSUE ON APPEAL
J.N. writes several statements in the portion of her brief denoted as “Issues Presented,”
but none of them pose a direct challenge to the validity of the trial court’s order of termination. 3
After reviewing J.N.’s summary of the argument and argument sections, we construe her issue
on appeal as a challenge to the voluntariness of her affidavit of relinquishment, which was the
basis for the trial court’s termination order.
The Reporter’s Record
After the hearing on termination, J.N. filed a notice of appeal and a pauper’s oath
affidavit. The trial court set two hearings on J.N.’s oath of indigence, but J.N. did not appear at
either. The trial court denied J.N.’s request for a court appointed attorney, and J.N. did not
appeal the trial court’s ruling.
Correspondence from this court informed J.N. that the reporter’s record had not been
filed because the reporter’s preparation fee had not been paid. We informed J.N. that the appeal
would be submitted on the clerk’s record alone unless proof of full payment to the reporter was
provided to us by a certain date. No court reporter’s record was filed, and J.N. did not respond to
this court’s letter. Thus, we informed J.N. that her case would be submitted on the clerk’s record
alone. Consequently, we can consider and decide only those issues that do not require a
executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of
parental rights as provided by this chapter ;
[and]
that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(b)(1)(K), (b)(2) (West Supp. 2015).
3
J.N.’s issues presented are as follows:
Caseworker did not provide all documents to [J.N.] as required[.]
Mediator gave legal advice to [J.N.] and coerced her into signing relinquishment of her parental
rights.
The affidavit of relinquishment was not subject to revocation. (Three exceptions)
- Evidence of fraud
- Misrepresentation
- Coercion
Two out of the three applies to myself [J.N.]. Yet I was not the one to attempt to revocate the
affidavit.
2
reporter’s record for a decision. See TEX. R. APP. P. 37.3(c) (providing that appellate court may
determine issues not requiring reporter’s record if one has not been filed because appellant failed
to pay or make arrangements to pay reporter’s preparation fee and appellant is not entitled to
proceed without payment of costs).
Effect of Failure to File Reporter’s Record
When no reporter’s record is filed, we must presume the missing evidence supports the
trial court’s ruling. Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31
(Tex. 1998); In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.—Amarillo 1999, no
pet.). We apply the presumption because public policy favors the validity of judgments. Green
v. Grocers Supply Co. Inc., No. 14-14-00320-CV, 2015 WL 3751529, at *2 (Tex. App.—
Houston [14th Dist.] June 16, 2015, no pet.). Moreover, when a trial court’s judgment includes
findings not supplanted by separately filed findings, the findings in the judgment have probative
value. See In re C.A.B., 289 S.W.3d 874, 880–81 (Tex. App.—Houston [14th Dist.] 2009, no
pet.); see also In re C.K.C., No. 12-10-00366-CV, 2011 WL 7099714, at *2 (Tex. App.—Tyler
2011, no pet.) (“In the absence of a reporter’s record and separate findings of fact, we must
presume that all findings made by the trial court in the judgment were supported by evidence at
the trial.”).
AFFIDAVIT OF RELINQUISHMENT
J.N. contends that her parental rights should not be terminated because she was “coerced”
into signing the affidavit of relinquishment of parental rights. The Department waived the filing
of a brief.
Applicable Law
Section 161.001(b)(1)(K) of the family code permits a trial court to terminate the parent-
child relationship if it finds by clear and convincing evidence that the parent has executed an
unrevoked or irrevocable affidavit of relinquishment of parental rights. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(K) (West Supp. 2015). Section 161.103 requires that the affidavit be for
voluntary relinquishment, and it is implicit in Section 161.001(b)(1)(K) that the affidavit be
voluntarily executed. See id. §§ 161.001(1)(K), 161.103 (West Supp. 2015); In re K.M.L., 443
S.W.3d 101, 113 (Tex. 2014). An involuntarily executed affidavit of relinquishment is a
complete defense to a termination suit based on Section 161.001(b)(1)(K). Id.
3
The Clerk’s Record
According to the clerk’s record, this case was referred to mediation. On July 13, 2015,
the parties attended mediation and reached an agreement (MSA) providing, in pertinent part, that
J.N. would execute an affidavit of relinquishment of her parental rights to G.S. and J.W. The
MSA also included terms and conditions regarding the first option for placement and adoption of
the children and a secondary option for placement. In the terms and conditions regarding J.N.’s
relinquishment, the MSA provided that, upon signing and delivering the affidavit of
relinquishment, the Department would seek termination of J.N.’s parental rights based on the
voluntary relinquishment, rather than termination on involuntary grounds.
The MSA contains J.N.’s signature, along with acknowledgements that she (1)
understood and agreed to every provision in the agreement; (2) signed the agreement and any
other documents in connection therewith “voluntarily and not as a result of any fraud, duress, or
coercion by any person, specifically including the mediator”; (3) made her decision based on her
own investigation of the law and facts and not based on representations made by any other party,
including the mediator; (4) understood the agreement represents the entire agreement between
the parties and that no other inducements, representations, or promises were made in order to
convince her to sign it, including by the mediator; and (5) that the mediator did not serve as her
attorney or give her any legal advice.
The clerk’s record also contains an affidavit of voluntary relinquishment of parental
rights to G.S. and J.W. signed by J.N. The affidavit designates the Department as the managing
conservator of the children and consents to their adoption. The affidavit states that termination is
in the children’s best interest and that J.N. “freely, voluntarily, and permanently give[s] and
relinquish[es] to the Department all my parental rights and duties[, and] I consent to the
placement of the children for adoption or in substitute care by the Department or by a licensed
child-placing agency.”
Discussion
J.N. contends that the acknowledgements contained in the MSA and affidavit of
relinquishment are false, and that they were signed as a result of coercion. The record does not
support these contentions, and instead supports the opposite. In its order of termination, the trial
court included a finding by clear and convincing evidence that J.N. “executed before or after the
suit [wa]s filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as
4
provided by Chapter 161, Texas Family Code, pursuant to § 161.001(1)[(B)](K), Texas Family
Code[.]” By finding the affidavit was executed pursuant to Section 161.001(1)(B)(K), the trial
court implicitly found that it was voluntary. See In re K.M.L. 443 S.W.3d at 113.
The trial court made no subsequent findings regarding J.N.’s affidavit of relinquishment.
Because there is no reporter’s record, and the trial court’s findings are probative, we must
presume that J.N.’s affidavit was voluntary. See In re C.A.B., 289 S.W.3d at 880–81; In re
C.K.C., 2011 WL 7099714, at *2. Accordingly, we overrule J.N.’s sole issue on appeal.
DISPOSITION
Having overruled J.N.’s sole issue on appeal, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 16, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
``
(PUBLISH)
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 16, 2015
NO. 12-15-00210-CV
IN THE INTEREST OF G.S. AND J.W., CHILDREN
Appeal from the 321st District Court
of Smith County, Texas (Tr.Ct.No. 14-1915-D)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.