in the Interest of C.E., C.E., and M.E., Children ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00054-CV
IN THE INTEREST OF C.E., C.E.,
AND M.E., CHILDREN
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. D2013105
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MEMORANDUM OPINION 1
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Appellant Mother appeals from the trial court’s judgment terminating her
parent-child relationships with her sons, C.E. and C.E., and with her daughter,
M.E. 2 In four issues, Mother contends that termination based solely on her
affidavit of relinquishment which was allegedly not executed voluntarily is not
1
See Tex. R. App. P. 47.4.
2
Mother’s eldest son, D.F., turned eighteen before trial; he is therefore not
a part of this appeal.
proper and does not comply with the family code; that the trial court’s judgment
should be reversed because she timely revoked her relinquishment of her
parental rights under a plain reading of section 161.1035 of the family code; 3 that
the application of section 161.103(e) of the family code denies her due process
by providing no means of revoking her allegedly involuntary relinquishment of
parental rights; 4 and that the evidence is legally and factually insufficient to
support the trial court’s best interest finding and finding under section
161.001(1)(K). 5 Because we hold that Mother’s affidavit of relinquishment is
valid and irrevocable, that the application of section 161.103(e) did not violate
Mother’s due process by preventing her from revoking the affidavit of
relinquishment, and that the evidence is legally and factually sufficient to support
the trial court’s findings that termination is in the children’s best interest and that
Mother executed an irrevocable affidavit of relinquishment of her parental rights,
we affirm the trial court’s judgment.
Background Facts
Mother signed a mediated settlement agreement (MSA) and an irrevocable
affidavit of relinquishment before trial. In the MSA, the Texas Department of
Family and Protective Services (TDFPS) and Mother agreed that Mother would
3
Tex. Fam. Code Ann. § 161.1035 (West 2014).
4
Id. § 161.103(e).
5
Id. § 161.001(1)(K), (2).
2
owe no past or future child support for the children and that TDFPS would seek
adoption of all the children first by the daughter’s foster parent and alternatively
by the sons’ former foster parent. In her “Affidavit of Voluntary Relinquishment of
Parental Rights to the Department of Family and Protective Services,” Mother
stated under oath that
• she was presently obligated to pay child support;
• she had been told of and understood her parental rights and duties
as set out in the family code (and they were also listed in the
affidavit);
• “[t]ermination of the parent-child relationship is in the best interest of
the children”;
• “by naming the Department of Family and Protective Services as
managing conservator in this Affidavit of Relinquishment, [she gave]
up all [her] parental rights and grant[ed] them to the Department
and/or to the adoptive parents with whom [the] children may be
placed”;
• she “designate[d] the Department of Family and Protective
Services . . . managing conservator of the children”; and
• she “freely, voluntarily, and permanently g[a]ve and relinquish[ed] to
the Department all [her] parental rights and duties” and “consent[ed]
to the placement of the children for adoption or in substitute care by
the Department or by a licensed child-placing agency.”
Information about the nature of the affidavit of relinquishment was set out
in bold in two separate places in the document. Mother swore under oath:
7. Affidavit of Relinquishment Irrevocable
“This Affidavit of Relinquishment of Parental Rights is
and shall be final, permanent, and irrevocable. I fully
understand that, if I change my mind at any time, I can
never force the agency to destroy, revoke or return this
affidavit.
3
....
9. Acknowledgment of Receipt and that Affidavit is
Irrevocable
“I fully understand that this affidavit, once signed, is
irrevocable, and I will not be further informed of any
hearings or proceedings affecting the children named in
this affidavit, including any termination suit.
“I have received a copy of this Affidavit of Relinquishment
at the time of signing.”
After a brief trial, the trial court terminated Mother’s parental rights to the
children based on her affidavit of voluntary relinquishment and the trial court’s
best interest finding. Five days later, the trial court received Mother’s letter
seeking to revoke her affidavit. She also timely filed a motion for new trial
alleging that she had signed the affidavit of relinquishment under duress and
because of undue influence. Mother stated in her motion for new trial that
[o]nly after [she] was led to believe that the father had signed an
affidavit of relinquishment, that her mother-in-law supported the
termination[,] and that her children wanted her to allow them to be
adopted[] did she agree to sign the affidavit. Mo[ther]’s
acquiescence to the termination was a direct result of the undue
influence of the mediation participants. Without the influence of
those persons at mediation, and without being misinformed of crucial
facts during mediation, Mo[ther] would not have signed the affidavit
of relinquishment.
In her motion, Mother also requested that the trial court take judicial notice
of its file. Mother’s affidavit and the affidavit of the paternal grandmother
accompanied her motion for new trial. After a hearing, the trial court denied
Mother’s motion for new trial. Mother timely appealed.
4
Best Interest Finding
In her fourth issue, Mother contends that TDFPS failed to prove that
termination was in the children’s best interests. In a termination case, the State
seeks not just to limit parental rights but to erase them permanently—to divest
the parent and child of all legal rights, privileges, duties, and powers normally
existing between them, except the child’s right to inherit. 6 Consequently, “[w]hen
the State seeks to sever permanently the relationship between a parent and a
child, it must first observe fundamentally fair procedures.” 7 We strictly scrutinize
termination proceedings and strictly construe involuntary termination statutes in
favor of the parent. 8
Termination decisions must be supported by clear and convincing
evidence. 9 “[C]onjecture is not enough.” 10 Due process demands this
heightened standard because “[a] parental rights termination proceeding
6
Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).
7
In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer,
455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).
8
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–
55; Holick, 685 S.W.2d at 20–21.
9
Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2014); E.N.C., 384
S.W.3d at 802.
10
E.N.C., 384 S.W.3d at 810.
5
encumbers a value ‘far more precious than any property right.’” 11 Evidence is
clear and convincing if it “will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.” 12
For the trial court to properly terminate the parent-child relationship,
TDFPS needed to establish by clear and convincing evidence that Mother
“executed before or after the suit [was] filed an unrevoked or irrevocable affidavit
of relinquishment of parental rights” and that termination was in the best interest
of the children. 13 In evaluating the evidence for legal sufficiency in parental
termination cases, we determine whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction that Mother “executed before or
after the suit [was] filed an unrevoked or irrevocable affidavit of relinquishment of
parental rights” and that termination was in the best interest of the children. 14
We review all the evidence in the light most favorable to the finding and
judgment. 15 We resolve any disputed facts in favor of the finding if a reasonable
11
E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102
S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C.,
384 S.W.3d at 802.
12
Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at
802.
13
See Tex. Fam. Code Ann. § 161.001(1)(K), (2); E.N.C., 384 S.W.3d at
803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
14
See Tex. Fam. Code Ann. § 161.001(1)(K), (2); In re J.P.B., 180 S.W.3d
570, 572–73 (Tex. 2005).
15
J.P.B., 180 S.W.3d at 573.
6
factfinder could have done so. 16 We disregard all evidence that a reasonable
factfinder could have disbelieved. 17 We consider undisputed evidence even if it
is contrary to the finding. 18 That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. 19 “A lack of evidence does not
constitute clear and convincing evidence.” 20
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. 21 And
even when credibility issues appear in the appellate record, we defer to the
factfinder’s determinations as long as they are not unreasonable. 22
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. 23 We
determine whether, on the entire record, a factfinder could reasonably form a firm
16
Id.
17
Id.
18
Id.
19
See id.
20
E.N.C., 384 S.W.3d at 808.
21
J.P.B., 180 S.W.3d at 573, 574.
22
Id. at 573.
23
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
7
conviction or belief that Mother “executed before or after the suit [was] filed an
unrevoked or irrevocable affidavit of relinquishment of parental rights” and that
termination was in the best interest of the children. 24
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. 25 Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. 26
We review the entire record to determine the child’s best interest. 27 The
same evidence may be probative of both the subsection (1) ground and best
interest. 28 Nonexclusive factors that the trier of fact in a termination case may
also use in determining the best interest of the child include
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
24
See Tex. Fam. Code Ann. § 161.001(1)(K), (2); In re C.H., 89 S.W.3d 17,
28 (Tex. 2002).
25
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
26
Tex. Fam. Code Ann. § 263.307(a) (West 2014).
27
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
28
C.H., 89 S.W.3d at 28; see E.C.R., 402 S.W.3d at 249.
8
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent. 29
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. 30 Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. 31 On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. 32
“[A]n affidavit of relinquishment, in and of itself, can provide sufficient
evidence that termination is in a child’s best interest.” 33
29
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations
omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest
finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384
S.W.3d at 807.
30
C.H., 89 S.W.3d at 27.
31
Id.
32
Id.
33
S.H. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-13-00151-CV,
2013 WL 3013874, at *3 (Tex. App.—Austin June 12, 2013, no pet.); see Brown
v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 394 (Tex.
1982); Ivy v. Edna Gladney Home, 783 S.W.2d 829, 833 (Tex. App.—Fort Worth
1990, no writ).
9
The TDFPS caseworker testified at trial that TDFPS received a court report
after Mother tested positive, apparently for methamphetamine, while on
probation, which was about to be revoked. Mother admitted to TDFPS that she
was having issues with methamphetamine again. Her methamphetamine use
was the reason for the removal of the children in a prior TDFPS case. In the
prior case, the maternal grandmother (Grandmother) was named the permanent
managing conservator (PMC), and the trial court had ordered that Mother have
no unsupervised contact. We note from the clerk’s record that Grandmother was
named PMC in June 2011, more than two and a half years before trial. But by
the time TDFPS received the probation report, Grandmother had moved to
Florida, leaving the children with Mother. When the new case began, Mother
avoided TDFPS for about a month but then dropped the children off at their
previous foster care agency.
The TDFPS caseworker also testified that the MSA is in the children’s best
interest and that Mother signed an affidavit of voluntary relinquishment of her
parental rights as part of that agreement. The caseworker further testified that
the children could be placed in an adoptive home, are readily adoptable, and do
not have any educational, psychiatric, or emotional problems that would
significantly impede adoption.
The CASA worker testified that the termination of Mother’s parental rights
is in the children’s best interest and that the daughter’s foster mother is a good
potential candidate to adopt all the children.
10
The trial court took judicial notice of Mother’s affidavit of relinquishment,
which provides that the children were fourteen, thirteen, and twelve years old
respectively when she signed the affidavit a few days before trial. Mother also
swore in her affidavit of relinquishment that “[t]ermination of the parent-child
relationship is in the best interest of the children.”
Thus, the trial court could glean from the evidence that Mother’s life was
unstable, that her probation was subject to revocation, that she had a chronic
methamphetamine problem, that her children had been removed and formally
placed with her mother in 2011 and that she had been limited to supervised
visitation, that she had violated that order, that she had avoided CPS for a
month, that the caseworker, the CASA worker, and Mother all thought that
termination of her parental rights was in the children’s best interest, and that the
children, even at their ages, were readily adoptable with two potential placements
available that were already known to the children and that would allow them to
live together. Applying the appropriate standards of review, we hold that the
evidence is legally and factually sufficient to support the trial court’s best interest
finding. We overrule Mother’s fourth issue.
Voluntariness of Affidavit of Relinquishment
In her first issue, Mother contends that “[t]he trial court’s order should be
reversed because termination based solely under Texas Family Code
§ 161.001(1)(K), pursuant to an affidavit of relinquishment that was not executed
voluntarily, is not proper, and does not comply with the Texas Family Code:
11
Texas Family Code § 161.001(1)(K) was not satisfied.” While Mother also claims
that the motion for new trial challenged the legal and factual sufficiency of the
evidence to support the trial court’s judgment, it did not. The motion for new trial
was focused solely on presenting newly discovered evidence to the trial court in
order to have Mother’s affidavit of relinquishment set aside. Essentially, Mother
challenges the trial court’s denial of her motion for new trial and rejection of her
arguments that her affidavit of relinquishment was involuntary. But Mother
misstates the burden of proof.
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. 34 Relevant to the facts before us, section 161.001 allows a trial court
to terminate the parent-child relationship if the trial court finds by clear and
convincing evidence that termination is in the best interest of the child and that
the parent has “executed before or after the suit is filed an unrevoked or
irrevocable affidavit of relinquishment of parental rights.” 35 Section 161.103 has
a list of requirements that the affidavit of relinquishment must satisfy. 36 Mother
does not contend that the affidavit fails to meet the explicit statutory
requirements, and our review of the affidavit yields the conclusion that it does
meet those requirements. No contrary evidence was admitted at trial. To that
34
R.R., 209 S.W.3d at 114.
35
Tex. Fam. Code Ann. § 161.001(1)(K), (2).
36
Id. § 161.103(a)–(b).
12
extent and to address Mother’s sufficiency complaint, we hold that the evidence
was legally and factually sufficient to support the trial court’s finding under
subsection (K) as of the date of the judgment. 37
But implicit in the family code is the requirement that the affidavit must be
voluntarily executed. 38 An involuntarily executed affidavit is a complete defense
to a termination decree based solely on such an affidavit. 39 After the proponent
of the affidavit demonstrates that it complies “with the requirements of section
161.103,” the party opposing it must prove, “by a preponderance of the
evidence,” that it “was executed as a result of fraud, duress, or coercion” to get
the affidavit set aside. 40 This was the purpose of Mother’s motion for new trial.
“Undue influence,” “misrepresentation,” “duress,” and “overreaching” are
the terms used by Mother in her motion for new trial to argue that her affidavit
was involuntarily executed. We do not believe that her single use of “fraud” for
the first time in her brief seeks to enlarge her contention below that her affidavit
37
See id. § 161.001(1)(K).
38
See id.; see also In re D.R.L.M., 84 S.W.3d 281, 296 (Tex. App.—Fort
Worth 2002, pet. denied).
39
D.R.L.M., 84 S.W.3d at 296.
40
See Tex. Fam. Code Ann. § 161.211(c) (West 2014); In re D.E.H., 301
S.W.3d 825, 830 (Tex. App.—Fort Worth 2009, pet. denied) (en banc) (citations
omitted); D.R.L.M., 84 S.W.3d at 297.
13
was involuntarily executed. 41 Mother also contends in her brief that the MSA
requirement that she execute the affidavit of relinquishment made it involuntary.
The heart of a claim of undue influence is the overcoming of a person’s
free will and replacing it with the will of someone else, causing the person to do
something that she otherwise would not have done. 42 Influence is not “undue”
just because it is persuasive and effective. 43 “[T]he law does not condemn all
persuasion, entreaty, importunity, and intercession.” 44
[O]verreaching is tricking, outwitting, or cheating a person into doing
[something that] he would not otherwise have done. Duress occurs
when, due to some kind of threat, a person is incapable of exercising
her free agency and unable to withhold consent. Fraud may be
committed through active misrepresentation . . . and is an act,
omission, or concealment in breach of a legal duty, trust, or
confidence justly imposed, when the breach causes injury to another
or the taking of an undue and unconscientious advantage. A
misrepresentation is a falsehood or untruth with the intent to
deceive. 45
Mother claimed in her motion for new trial that someone at the mediation
told her (1) that the paternal grandmother thought she should sign the affidavit of
relinquishment and (2) that her sons wanted to be adopted. Mother also claimed
41
See Tex. R. App. P. 33.1.
42
D.E.H., 301 S.W.3d at 828–29.
43
Id.44
B.A.L. v. Edna Gladney Home, 677 S.W.2d 826, 830 (Tex. App.—Fort
Worth 1984, writ ref’d n.r.e.).
45
D.E.H., 301 S.W.3d at 829 (citations and selected internal quotation and
other punctuation marks omitted).
14
that TDFPS obtained the presumed father’s signature to the MSA and affidavit of
relinquishment first because TDFPS somehow knew that that would persuade
her to sign the affidavit of relinquishment. Mother’s affidavit attached to her
motion for new trial supported her allegations in the motion. In the paternal
grandmother’s affidavit, also filed in support of the motion for new trial, the
paternal grandmother states that she never said that Mother “sign[ing] over her
rights” to the children was best for them.
In Mother’s lawyer’s opening statement at the hearing on the motion for
new trial, he contended that she would not have signed the MSA or affidavit had
undue influence not been exerted on her.
Mother testified at the hearing on her motion for new trial that she placed
the children with the Lifeline agency because she knew that she “was going to
have to be incarcerated.” She admitted that she had participated in mediation
but acknowledged that she had alleged that “things happened in mediation
that . . . caused [her] to do things that [she] would not have otherwise done.” She
testified that she wanted to testify about mediation, even though it was
confidential, and that she did so freely and voluntarily. Mother contended that
she had attended mediation with the intent to go to jury trial. She claimed that
she had told her trial lawyer of her intent as well as various attendees of a
permanency meeting at Somervell, including her daughter. Mother admitted that
her trial lawyer told “that one lady” that Mother wanted to talk to the paternal
grandmother. According to Mother, the unnamed woman said,
15
“Well, they already think that you should go ahead and just sign over
your rights. They told us that you should sign over your rights and
everything, because it’s in the best interests of the kids,” and she
was really forceful about it, like real flamboyant, you know, “Hey.”
And then she said, “Anyway, your boys told me that they
wanted—they told us that they wanted to be adopted.” The only
reason she could say my boys was because that my daughter at the
PMC meeting said she—she knows I’ll do anything, she doesn’t
have a doubt in her mind that I’ll do anything to get them back,
and—and it doesn’t mean—it’s just the moment I heard that my
boys, you know, I thought something like that, I—I got that idea
that I was, you know, the world’s worst mother for a minute,
you know. I couldn’t quit crying. I was an emotional wreck.
And—I’m sorry. Anybody that—they both knew in that room
that I did not want to sign my rights over. The reason I signed
my rights was because, okay, my ex . . . was nowhere involved in
the case, I mean he was on the phone and stuff and everything, but
they knew that I would not sign that paper if somebody else’s
signature wasn’t on there, and he was bench-warranted back
for the case, okay, which is understandable, I understand that
he has to come to sign over his own rights, but they knew that
if they pulled him out before me and I seen his signature on
there, I would think that he talked to my mother-in-law, which is
his mother, thinking that there was nothing else that we could
do about the well-being of my children, staying with family, that
there was nothing else we would be able to do, so I know that
they had me follow suit with him, seeing his signature on there,
me thinking that he talked to his mom and everything, them
telling me that my mother-in-law thinks it’s in the best interests
I sign my kids over, you know, and them pulling him out and his
signature being on that paper, you know, so I followed suit, I
did. Did I want to? No. These are my children, and I love them.
And, you know, I—I’m sorry. I—I couldn’t even concentrate, I was
shaking so bad when I signed that paper and everything, any lawyer
in their right mind would have said, “Wait. I think you need a little bit
to think about this. Are you sure?” When Shelly Fowler walked into
the room, [my trial lawyer] knew that I didn’t want to sign my rights,
he could have said, “Don’t say another word. We’ll take it to jury
trial,” that’s what he should have said, but that’s not what he said.
He said—he let her do all the talking, let her bombard me, and then
the moment that I thought that my children wanted me to put
them up for adoption, he’s like, “You do realize that [the first foster
mother named as a potential adoptive mother] could die tomorrow or
get hit by a bus, so there’s no guarantee,” I mean he went—I’m not
16
saying that anybody is ugly, I’m just saying that he should have told
me to keep silent, once he found out what I wanted to do, once he
knew what I wanted to do, but he didn’t, he let—he allowed the lady
to interrogate me. [Emphasis added.]
Mother testified that “the undue influence that occurred was . . . aggressive
behavior by the mediator and a misrepresentation as to what [the paternal
grandmother] wanted to have happen or thought was in the best interests of the
children.” The following dialogue between Mother and her postjudgment lawyer
then occurred:
Q And you’re saying that that caused your mind to change
so much that you didn’t take the action that you would
have otherwise taken?
A No.
Q Okay. Then—then what are you saying? What are you
saying, that—what effect did those elements have on you at
mediation?
A It broke my heart, and I didn’t—no mother wants to hear
that their kids don’t want them, you know, and I—they
couldn’t get me with my daughter, because my daughter wrote
me a letter that one day, and they couldn’t get me with my
daughter, and they knew that I haven’t talked to my boys,
so I mean they—it—it—it killed me. I mean it—ever—I
mean I went—it just—it was the worst news that I ever
heard. And then after that mediation with—and then like we
went and we had to go sign the paper and everything and they
all stopped and they said, “Oh, well, we’re going to do it right
here in the hall of the jail, and—in—in the courthouse
building,” instead of going into some room to sign papers and
sit at a table like—they wanted to get it all done, so we
crammed into the corner of a hall, and they’re like, “Okay, and
you know this,” and [my trial lawyer] is having to hold the
paper, and I’m crying and bawling, I’m sorry, any lawyer who
knew what their client wanted from the get-go, it’s not like any
(inaudible)—
17
COURT REPORTER: Excuse me. Repeat what you said. I didn’t
hear what you said.
A Any lawyer that knows what their client wants ain’t just going
to voluntar[il]y hold the paper and say, “Here, go ahead and
sign your life away,” you know, I mean you know that’s not
what I wanted, I’m bawling, I can’t even—I can’t see the
papers to sign the paper, you know, I mean I was so
distraught, I think that I—I—I wasn’t represented right, good
enough, for the simple fact I think he knew—he knew I wanted
to take it to jury trial, he knew that, and they knew that they
couldn’t get me to sign them papers, or they knew to send
somebody in before me to sign them papers, they knew.
Why did it—[her ex-husband] have to be present but
[another of the fathers] didn’t have to be present to
relinquish his rights on his children? You know? I—I—I
don’t understand. [Emphasis added.]
Mother offered the MSA at the hearing, and the trial court admitted it.
TDFPS stated that it had no objection. Mother testified that she signed the MSA
before she signed the affidavit of relinquishment. She further testified that it
provided that she would sign an affidavit of voluntary relinquishment and that she
would not owe any past or future child support. She admitted that she
understood that once she signed the MSA, it was binding upon her. She denied
reading “the bold, capitalized, underlined section” of the MSA but testified that “it
was told to [her that] if [she] signed this and saying that [she] signed over the
rights to [her] kids, is how it was told to [her], and that [she] can’t appeal it, and
then [she] put [her] signature on it . . . [and she] initialed it.” She testified that
after she signed the MSA, she believed that she “had to sign” the affidavit of
voluntary relinquishment. She stated that “once [she] put [her] initials on here
18
and once [she saw her ex’s] initials on here, [she] thought there was nothing
else that [she] could do.” [Emphasis added.]
In her brief, Mother does not raise ineffective assistance of counsel at trial.
The record shows that she had a lawyer during the signing of the MSA and of the
affidavit of relinquishment and that she admitted at the hearing that she
understood the binding nature of the MSA. She also testified at the hearing that
the statement allegedly made regarding the paternal grandmother’s wishes did
not compel her to sign the MSA or affidavit of relinquishment when she had not
intended to do that. Instead, she testified that the statement that the boys
wanted to be adopted and the presence of the presumed father’s signature on
the documents were what influenced her decision. She raised no evidence
showing that the boys did not want to be adopted or that the presumed father’s
signature was improper or invalid.
Facing the apparent desires of her sons and the presumed father at the
same time as deciding whether to terminate her rights and duties as a parent
peaceably by agreement and a run-of-the-mill prove-up hearing or to gear up for
a full-blown, adversarial trial understandably produced strong emotions in
Mother, but the trial court could have rightfully determined that none of those
influences were undue, no duress was shown, and to the extent that there was
overreaching or a misrepresentation by TDFPS or the meditator, Mother by her
own testimony did not rely on it in making her decision to sign the affidavit of
relinquishment. We hold that Mother did not prove fraud, duress, or coercion by
19
a preponderance of the evidence, and she therefore did not prove that her
affidavit of relinquishment was involuntarily executed regardless of the MSA.
Accordingly, the trial court did not abuse its discretion by denying Mother’s
motion for new trial. For clarity, we also point out that the evidence remained
legally and factually sufficient to support termination even after the hearing on the
motion for new trial. We overrule Mother’s first issue.
Irrevocability of Affidavit of Relinquishment
In her second issue, Mother contends that the trial court’s judgment
terminating the parent-child relationship should be reversed because she timely
revoked her relinquishment under a plain reading of section 161.1035 of the
family code. Section 161.1035 provides that
[a]n affidavit of relinquishment of parental rights that fails to
state that the relinquishment or waiver is irrevocable for a stated
time is . . . revocable only if the revocation is made before the 11th
day after the date the affidavit is executed[] and . . . irrevocable on or
after the 11th day after the date the affidavit is executed. 46
It is true that Mother’s letter to the trial court would have been timely to revoke
her affidavit if section 161.1035 controlled this case. But section 161.1035 does
not apply in this case. Section 161.103(e) of the family code specifically provides
that
[t]he relinquishment in an affidavit that designates the Department of
Protective and Regulatory Services . . . to serve as the managing
conservator is irrevocable. A relinquishment in any other affidavit of
relinquishment is revocable unless it expressly provides that it is
46
Tex. Fam. Code Ann. § 161.1035.
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irrevocable for a stated period of time not to exceed 60 days after
the date of its execution. 47
Texas Department of Protective and Regulatory Services is the prior name
of TDFPS. 48 Mother’s affidavit designates TDFPS as the children’s managing
conservator. Consequently, this case falls squarely under section 161.103(e),
the more specific and therefore controlling law. 49
Mother argues that we are to strictly construe termination statutes in favor
of the parent and that a strict construction of the termination statutes in favor of
the parent would allow her to revoke her affidavit under section 161.1035. But
that outcome could only occur if we completely ignored section 161.103(e),
something we cannot do when construing statutes. 50 We hold that the affidavit is
irrevocable under section 161.103(e), and we overrule this issue.
47
Id. § 161.103(e).
48
In re J.A.J., 243 S.W.3d 611, 612 n.1 (Tex. 2007); In re C.C., No. 02-04-
00206-CV, 2005 WL 1244672, at *1 n.5 (Tex. App.—Fort Worth May 26, 2005,
no pet.).
49
See Tex. Fam. Code Ann. § 161.103(e); Tex. Gov’t Code Ann. §
311.026(b) (West 2013); Jackson v. State Office of Admin. Hearings, 351 S.W.3d
290, 297 (Tex. 2011); see In re Lee, 411 S.W.3d 445, 455 (Tex. 2013) (noting
that “the specific statutory language of section 153.0071(e) trumps section
153.002’s more general mandate”).
50
See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238,
256 (Tex. 2008) (“The Court must not interpret the statute in a manner that
renders any part of the statute meaningless or superfluous.”).
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Mother’s As-Applied Challenge
In her third issue, Mother contends that section 161.103(e) as applied
violates her right to due process because her affidavit of relinquishment was
involuntary but that provision does not allow her to revoke the affidavit. Another
provision of the family code, however, allows a parent to set aside an affidavit of
relinquishment if the parent can prove by a preponderance of the evidence that
the affidavit was involuntary—executed as a result of fraud, duress, or
coercion. 51 We have already held that Mother failed to prove that her affidavit
was involuntary in the face of TDFPS’s prima facie showing. Further, a valid
affidavit signed by the parent is a valid ground for involuntary termination under
section 161.001(1)(K), 52 the constitutional validity of which Mother does not
challenge. We overrule her third issue.
Conclusion
Having overruled Mother’s four issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: August 7, 2014
51
See Tex. Fam. Code Ann. § 161.211(c).
52
See id. § 161.001(1)(K).
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