Angelica Mitchell Moore and Kevin Alexander Moore v. Donna M. Brown and Alvin Benard Brown , 2013 Tex. App. LEXIS 1755 ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00886-CV
Angelica Mitchell Moore and Kevin Alexander Moore, Appellants
v.
Donna M. Brown and Alvin Benard Brown, Appellees
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 235,235-E, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
OPINION
On the second day after the birth of their third child, appellants Angelica Mitchell
Moore and husband Kevin Alexander Moore executed affidavits relinquishing their parental rights
to the infant and designating as managing conservators appellees Donna M. Brown and
husband Alvin Benard Brown.1 Relying on these affidavits, the Browns obtained an order from the
district court terminating the Moores’ parental rights and, subsequently, an order granting the
Browns’ adoption of the child.
In the meantime, however, the Moores initiated attempts to revoke their
relinquishment affidavits and reassert their parental rights, but they did not appear at the termination
hearing or timely perfect an appeal from the termination order. Ultimately, the Moores sought to
challenge both the termination order and adoption order via bill of review and purported attack on
1
The spelling of Ms. Moore’s first name appears in the record as both “Angelica” and
“Anjelica.” Because it appears from the record and the Moores’ appellate briefing that Ms. Moore
prefers “Angelica,” we will use that spelling as well.
a “void” order. Following an evidentiary hearing, the district court denied the Moores relief on their
claims. The Moores now appeal that judgment to this Court.
Concluding that the Moores’ claims are barred by requirements of the Texas Family
Code and Texas civil procedure intended to ensure the finality of the termination and adoption
orders, and that the Moores have not shown any constitutional deprivation from the enforcement of
those requirements, we will affirm the district court’s judgment.
BACKGROUND
M.K.B., the third child born to the Moores, arrived on March 8, 2009, in the
Commonwealth of Virginia, where the Moores reside. Among M.K.B.’s early visitors was
appellee Donna Brown, a distant cousin and close friend of Kevin Moore’s mother, and whose
relationship with Kevin was such that he had termed Donna his “aunt” during his youth.2 At the time
of M.K.B.’s birth, Donna and her husband, Alvin, resided in Harker Heights, Bell County, Texas,
near Fort Hood, where Alvin’s U.S. military unit was based—though he was deployed to Iraq—and
Donna also was employed.
The parties agree that, in advance of M.K.B.’s birth, the Moores had discussed giving
up the child to the Browns for adoption and, in fact, agreed that M.K.B. would live with the
Browns following birth. It is likewise undisputed that, following birth, the Moores consented to
giving the child the surname “Brown” on the child’s birth certificate (hence the initials “M.K.B.”
rather than “M.K.M.”) and executed several documents granting the Browns custody and laying legal
groundwork for an adoption.
2
Given the parties’ common surnames, we will use first names as necessary to avoid
confusion.
2
On March 10, 2009, the Browns, as “prospective adoptive parents,” and the Moores,
as “birth parents of the child to be known as [M.K.B.],” executed before a notary an “Entrustment
Agreement and Power of Attorney” giving the Browns “all legal rights and authority over said child
as if they were the birth parents,” including the power to receive M.K.B. upon discharge from the
hospital, and further directing the hospital to discharge M.K.B. to the Browns’ care.3 The agreement
also authorized the Browns to transport M.K.B. to their Harker Heights address, “which will be
the primary residence of the child.” The parties additionally agreed that they would keep each other
advised of their addresses and telephone numbers “until an Order accepting the consent of the birth
parents and granting the custodians custody of said child for purposes of adoption has been entered
by the appropriate court . . . .”
On the same day, the Browns filed a petition for “temporary custody” in Virginia state
court, attaching the aforementioned Entrustment Agreement and Power of Attorney. The petition
alleged that the Moores “have agreed to place [M.K.B.] with the [Browns] for the purpose of
adoption of their child,” that the Browns “are prepared to file a petition for custody for the purpose
of adoption of [M.K.B.],” and that the Moores had consented to granting the Browns “temporary
legal and physical custody of [M.K.B.]” so the Browns could arrange for M.K.B.’s discharge
from the hospital and take the child home. The Browns requested “interim temporary legal and
physical custody over [M.K.B.] until such time as the above-referenced petition is submitted to
the Court. . . .” The court forthwith issued a March 10, 2009 “consent order” granting the Browns
“custody” of M.K.B., subject to the Moores’ right to be apprised of the child’s address and phone
3
As Alvin Brown was deployed overseas, Donna executed this and other instruments on his
behalf by power of attorney.
3
number and to access medical and educational records. Both the Moores and the Browns signed the
order under oath to verify their agreement with its terms.
Also on March 10, 2009, the Moores each executed before a notary and two witnesses
a three-page “Affidavit for Voluntary Relinquishment of Parental Rights” designating the Browns
as managing conservators for M.K.B. and relinquishing to the Browns all of their parental rights
and duties.4 The Moores do not dispute that their affidavits, at least in form, satisfied each of the
4
Each further averred that, among other things:
• “I fully understand that a lawsuit will be filed in a court of competent jurisdiction to
terminate forever the parent-child relationship between me and [M.K.B.]. I fully understand
that the termination suit may or may not be combined with a suit to adopt my child. I
understand that either way, once the Court terminates my parental rights, I have no further
say concerning my child, whether or not my child is adopted then or at some later time.”
• “Termination of the parent-child relationship is in the best interest of the child. I understand
that I make this termination possible by executing this affidavit.”
• “I DECLARE THAT THIS AFFIDAVIT FOR VOLUNTARY RELINQUISHMENT
OF PARENTAL RIGHTS IS AND SHALL BE IRREVOCABLE FOR SIXTY DAYS.
I FULLY UNDERSTAND THAT, IF I CHANGE MY MIND, I CANNOT FORCE
THE MANAGING CONSERVATOR TO DESTROY, REVOKE, OR RETURN THIS
AFFIDAVIT AND THAT I CANNOT TAKE BACK OR UNDO THIS AFFIDAVIT
IN ANY WAY DURING THE SIXTY-DAY PERIOD. I FURTHER UNDERSTAND
THAT MY PARENTAL RIGHTS PROBABLY WILL HAVE ALREADY BEEN
ENDED FOR ALL TIME BEFORE THIS SIXTY-DAY PERIOD EXPIRES . . . .”
(Emphasis in original).
• “I know that DONNA M. BROWN and ALVIN BENARD BROWN, in accepting my child
for adoptive placement and assuming responsibility for my child, are relying on my promise
that I will not attempt to reclaim my child.”
• “I have carefully considered alternative plans for my child’s future and have obtained the
advice of whatever family members, friends, or other persons and professionals I feel were
necessary to help me make this decision. This decision is very difficult for me to make, and
under other circumstances I might have made a different decision . . . . I declare that I fully
understand the meaning of this affidavit of relinquishment and the finality of my action
in signing it, and I am signing it freely, voluntarily, and with the firm conviction that this
decision is the best available alternative for my child.”
4
requirements of Texas Family Code section 161.103, the provision of the family code that prescribes
the requirements for affidavits of voluntary relinquishment of parental rights, for an affidavit that
would remain irrevocable for sixty days after execution, or through May 9, 2009. See Tex. Fam.
Code Ann. § 161.103 (West 2008). Each affidavit also incorporated a waiver of notice and process
concerning any further court proceedings involving M.K.B.5 See id. § 161.103(c) (relinquishment
• “I am signing this affidavit today because I want to sign it and not because DONNA M.
BROWN and ALVIN BENARD BROWN or any other person or persons want me to
sign it.”
• “I REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT FOR VOLUNTARY
RELINQUISHMENT OF PARENTAL RIGHTS IF THERE IS ANY THOUGHT IN MY
MIND THAT I MIGHT SOMEDAY SEEK TO GAIN CUSTODY OF MY CHILD.”
(Emphasis in original).
• “AT THE TIME OF THE SIGNING OF THIS AFFIDAVIT FOR VOLUNTARY
RELINQUISHMENT OF PARENTAL RIGHTS, I FEEL THAT I AM PHYSICALLY AND
EMOTIONALLY PREPARED TO SIGN THE DOCUMENT. I AM NOT CURRENTLY
UNDER THE INFLUENCE OF ANY SUBSTANCE AND/OR MEDICATION THAT
WOULD AFFECT MY ABILITY TO EXECUTE THIS AFFIDAVIT.” (Emphasis in
original).
• “I AM SIGNING THIS AFFIDAVIT FOR VOLUNTARY RELINQUISHMENT OF
PARENTAL RIGHTS MORE THAN FORTY-EIGHT HOURS AFTER THE BIRTH OF
THE CHILD NAMED IN THE DOCUMENT.” (Emphasis in original).
5
The waiver stated:
I know that I have the right to appear personally before the Court, with an attorney
of my choice, to testify about my desires with respect to the child. However, I do not
want to go to court in person and choose not to be represented by a lawyer . . . .
Because I do not want to testify in person before the Court, I freely and voluntarily
waive and give up my right to the issuance, service, and return of citation, notice, and
all other process in any suit to terminate my parental rights or in any suit to terminate
my parental rights joined with a suit to adopt. I do not want to be informed further
about the lawsuit. I specifically agree that a final hearing in the lawsuit may be held
at any time without further notice to me. I waive and give up my right to have the
official court reporter make a record of the testimony in the lawsuit. Furthermore,
I do not want to be mailed or given a copy of the judgment terminating my parental
5
affidavits may incorporate “a waiver of process in a suit to terminate the parent-child relationship
filed under this chapter or in a suit to terminate joined with a petition for adoption”); see also Brown
v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 392-94 (Tex. 1982) (observing
that parent who signs an affidavit voluntarily relinquishing parental rights nonetheless maintains a
justiciable interest in a suit to terminate parental rights until the termination order is rendered, but
may waive right to notice of such proceedings).
A few days thereafter, Donna Brown left Virginia with M.K.B. and returned to Texas.
On March 20, 2009, the Browns filed in Bell County district court a petition to terminate the
Moores’ parental rights and to adopt M.K.B. The petition alleged the sole statutory termination
ground that the Moores had each executed an irrevocable affidavit of relinquishment of parental
rights, as provided in family code section 161.103, and that termination of the Moores’
parental rights was in M.K.B.’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(k), (2) (West
Supp. 2012).6 A hearing on the termination issue was set for April 30, 2009.
Consistent with the waiver the Moores had signed, they were not served either with
process in the Browns’ suit or notice of the termination hearing. However, the Moores attempted
to reassert their parental rights in both the Bell County district court where the Browns’ suit was
rights and do not want to be notified of the signing, rendition, or entry of that
judgment . . . .
...
I FULLY UNDERSTAND THAT I MAY NOT BE FURTHER INFORMED
ABOUT THE TERMINATION SUIT OR ABOUT ANY OTHER HEARINGS OR
PROCEEDINGS AFFECTING THE CHILD NAMED IN THIS AFFIDAVIT.
(Emphasis in original).
6
As there have been no material intervening substantive changes to the relevant statutes, we
cite their current versions for convenience.
6
pending and in the Virginia state court that had issued the March 10 consent order. On April 13,
2009, Kevin Moore filed in the Virginia court a pro se motion to amend the consent order to grant
custody of M.K.B. to the Moores, urging that “[t]he [b]iological parents wish to terminate the
ongoing adoption and regain custody of the minor child.” On April 24, the Moores, with assistance
from a Virginia attorney, filed in the Browns’ suit affidavits purporting to revoke their “ill-
conceived” March 10 affidavits relinquishing their parental rights, requesting custody of M.K.B.,
and stating their opposition to the child’s adoption by the Browns.
The termination hearing went forward as scheduled, with only Donna Brown, the
Browns’ counsel, and M.K.B.’s attorney ad litem present.7 Following the hearing, the district court
signed an order terminating the Moores’ parental rights based on findings that each had “executed
an irrevocable affidavit of relinquishment of parental rights as provided in chapter 161 of
Texas Family Code” and that termination of parental rights was in M.K.B.’s best interest.8
See id.§ 161.001(1)(k), (2).
On May 14, 2009, the Moores’ Virginia counsel, obviously aware of the termination
ruling, wrote the Bell County District Clerk requesting a copy of the “Termination Order entered
on April 30, 2009” in the Browns’ suit. Subsequently, on June 1, 2009, the Moores filed a pro se
“motion to reconsider” the district court’s termination order, and the record reflects that the Moores
7
Alvin Brown was still deployed to Iraq.
8
The record from the hearing reflects that the district court inquired of counsel concerning
the purported revocations filed by the Moores. Although indicating certainty that the revocations
remained binding under Texas law, the court voiced concern that the Moores nonetheless might
be entitled to notice and an opportunity to be heard. Counsel responded that any such issue was
obviated by the waivers of notice incorporated into the affidavits, and at some point that day
furnished authority to that effect, In re McAda, 780 S.W.2d 307, 312 (Tex. App.—Amarillo 1989,
no writ). At the conclusion of the hearing, the district court initially took the matter under
advisement but ultimately signed the termination order later that same day.
7
made attempts to obtain a ruling on the motion. And, sometime that month, the Moores retained
new counsel—the Texas attorney who represents them in the present proceeding—who filed a notice
of appeal of the termination order on July 23, 2009. But unfortunately for the Moores, their deadline
for perfecting an appeal from the termination order, May 20, 2009, had already expired in the
meantime, and it was likewise too late to obtain an extension. See Tex. R. App. P. 26.1(b) (twenty-
day deadline for filing notice of appeal in accelerated appeal); see also Tex. Fam. Code Ann.
§ 109.002(a) (West Supp. 2012) (appeals of termination orders governed by accelerated appeal
rules). Accordingly, we ultimately dismissed the Moores’ appeal for want of subject-matter
jurisdiction. See Moore v. Brown, No. 03-09-00449-CV, 2010 Tex. App. LEXIS 3519, at *4
(Tex. App.—Austin Apr. 20, 2010, no pet.) (mem. op.).
Meanwhile, the Browns proceeded to a May 8, 2009 hearing on their petition to adopt
M.K.B. The district court granted the adoption by order signed on June 11, 2009.
The Moores also continued their attempt to regain custody through the Virginia state
court system. On July 1, 2009, the Virginia court that had issued the March 10 consent order heard
the Moores’ motion to amend. Records from this proceeding, in evidence below, reflect that the
court considered testimony from the Moores and Donna Brown, as well as “adoption orders &
paperwork from Texas” and a “Consent Order signed by Mr. & Mrs. Moore,” and found that “Mr. &
Mrs. Moore voluntarily signed the documents and were not under any duress.” Based on these
findings, the court “dismissed” the Moores’ motion. A subsequent appeal of this ruling was
dismissed for want of jurisdiction on November 10, 2009.
On November 2, 2009, while the Moores’ appeals in both Texas and Virginia
remained pending, the Moores filed an original petition for bill of review in the Bell County
district court that had rendered the termination and adoption orders. As their pleading was ultimately
8
amended, the Moores sought to invalidate via bill of review, or to have declared “void,” both the
district court’s April 30, 2009 termination order and its June 11, 2009 adoption order. The Moores’
principal assertion was that their execution of their relinquishment affidavits had not complied
with one of the requirements of family code section 161.103—that “[a]n affidavit for voluntary
relinquishment must be . . . signed after the birth of the child, but not before 48 hours after the birth
of the child, by the parent . . . .” Tex. Fam. Code Ann. § 161.103(a)(l). The Moores also complained
that the district court had exercised its jurisdiction over M.K.B. in violation of the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) because the Virginia state court had
acquired continuing, exclusive jurisdiction over the child by virtue of its March 10, 2009 consent
order. See id. §§ 152.001-.317 (West 2008 & West Supp. 2012).
An evidentiary hearing was held at which the Moores and Browns each testified. The
evidence centered on the timing and other circumstances surrounding the Moores’ execution of
their relinquishment affidavits. The Moores urged that a comparison between their relinquishment
affidavits, which indicated a time of execution, and hospital records from M.K.B.’s birth, which
were not previously before the district court, established that (1) M.K.B. had been born at 3:28 p.m.
on March 8, 2009, yet (2) the Moores had executed their affidavits at 2:30 p.m. on March 10,
2009—approximately one hour short of the forty-eight-hour waiting period required by family code
section 161.103. See id. § 161.103(a)(1). The Moores also insisted that they had never intended to
give M.K.B. up for adoption and had understood that they were consenting only to a temporary
custodial arrangement in which they would continue to have visitation with the child. As for their
affidavits and other instruments stating otherwise, the Moores professed that they had not read them
before signing, but “trusted” Donna Brown, whose counsel had prepared them. The Moores likewise
claimed that Angelica had been under the influence of pain-killers or other medications when she
9
executed the documents and had done so, at the office of the Browns’ counsel, immediately after
being discharged from the hospital. The Browns testified to the contrary, including asserting that
the parties had agreed to an adoption all along and that the Moores had merely changed their
minds after the fact.
At the conclusion of evidence, the district court signed an order denying the Moores
relief on their claims. The court did not specify the grounds on which it relied in its order, nor did
it prepare findings of fact and conclusions of law. This appeal followed.
ANALYSIS
The Moores bring four issues on appeal. Before turning to those contentions, it is
helpful to begin with some broader threshold observations suggested by the Browns. First, as they
point out, and which the Moores seem to acknowledge, the Moores would lack standing to challenge
the adoption order unless and until they first succeed in having set aside the order terminating their
parental rights. See Durham v. Barrow, 600 S.W.2d 756, 761 (Tex. 1980) (explaining that birth
parent whose parental rights were terminated would have standing to challenge child’s adoption only
to extent the termination order was first set aside). Consequently, we will initially focus our analysis
on the Moores’ appellate complaints as they relate to the termination order.
The Browns also emphasize that the district court did not prepare findings of fact
and conclusions of law elaborating on its bases for denying the Moores relief, nor did the Moores
preserve error as to any complaint regarding the district court’s failure or refusal to do so.9
Accordingly, we presume that the district court impliedly found facts as necessary to support
9
Although the Moores requested findings of fact and conclusions of law from the
district court, they did not timely file a notice of past-due findings or preserve error on appeal. To
the contrary, the Moores suggest that findings and conclusions are “unnecessary.”
10
its judgment on any legal theory presented. See BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789, 795 (Tex. 2002) (“When a trial court does not issue findings of fact and conclusions
of law . . . all facts necessary to support the judgment and supported by the evidence are implied.”);
see also S.C. v. Texas Dep’t of Family & Protective Servs., No. 03-12-00518-CV, 2013 Tex. App.
LEXIS 288, at *16 (Tex. App.—Austin Jan. 10, 2013, no pet. h.) (mem. op.) (implying failure to find
facts in absence of findings of fact and conclusions of law).
Finally, the Browns emphasize the procedural posture of the Moores’ claims and the
requirements for obtaining relief by bill of review.10 The Moores’ suit is in the nature of a direct
attack on the termination order, inasmuch as it was initiated for the purpose of correcting claimed
error in that order. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271-72 (Tex. 2012) (explaining
that a “direct attack” on a judgment refers to a proceeding initiated for the purpose of correcting
claimed error in the judgment). At this procedural juncture, the Moores must bring their direct attack
through a bill of review. See id. A bill of review is an equitable action brought by a party to a prior
suit who seeks to set aside a judgment that can no longer be challenged by a motion for new trial or
appeal. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). A bill-of-review petitioner like the
Moores must ordinarily plead and prove not only a meritorious defense to the underlying cause of
10
The Browns also urge that the Moores’ briefing is so lacking in substantive analysis,
citations to authority, and supporting record references that we should deem them to have waived
their appellate complaints altogether and dismiss their appeal. See Tex. R. App. P. 38.1(i), 42.3.
We decline to do so. Although certain portions of the Moores’ briefing are somewhat truncated or
oblique, we can nonetheless discern the basic substance of their complaints and the legal authorities
on which they rely. See id. R. 38.9. But this does not mean that we will sua sponte address
appellate issues and arguments that the Moores might have raised, but did not. See Jelinek v. Casas,
328 S.W.3d 526, 540 n.10 (Tex. 2010) (citing Tex. R. App. P. 38.1([i]); State v. Brown, 262 S.W.3d
365, 370 (Tex. 2008); Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 410 (Tex. 1997)); see also
In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003) (observing that appellate review of unpreserved
error in parental-termination cases was not required by due process and would run counter to “the
Legislature’s dual intent to ensure finality in these cases and expedite their resolution”).
11
action (here, the Browns’ suit to terminate their parental rights), but also that the petitioner should
be allowed to litigate the defensive issue because (1) the party was prevented from presenting that
ground within the normal procedural framework of trial and appeal by accident, fraud, or wrongful
act of the opposing party, or “official mistake,” that is (2) unmixed with any fault or negligence on
the petitioner’s own part. See id. A bill-of-review petitioner also must prove that it exercised due
diligence in pursuing all available legal remedies after the challenged judgment was rendered, or else
show good cause for failing to exhaust those remedies. See Sweetwater Austin Props., L.L.C. v. SOS
Alliance, Inc., 299 S.W.3d 879, 886 (Tex. App.—Austin 2009, pet. denied) (citing Tice v. City of
Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)). We review a trial court’s order granting or denying
a bill of review for abuse of discretion, indulging every presumption in favor of the trial court’s
ruling. See id.
As the Browns emphasize, we must imply that the district court failed to find each
of the elements that the Moores were required to prove to obtain relief from the termination order
by bill of review. See S.C., 2013 Tex. App. LEXIS 288, at *16. The Browns further assert that the
Moores have effectively waived any challenge to the district court’s denial of bill-of-review relief
by failing to challenge all of these underlying implied factual determinations on appeal. The Moores
do not appear to contend otherwise, but instead ultimately rely solely on their claim seeking to
declare the judgment “void.” Consequently, the district court did not abuse its discretion in denying
the Moores’ bill-of-review claim seeking to challenge the termination order.
Texas law permits a narrow category of “void” judgments to be attacked
“collaterally,” i.e., in a proceeding seeking to avoid the judgment’s binding effect in order to obtain
specific relief that the judgment currently impedes. See PNS Stores, 272 S.W.3d at 272. While the
Moores’ suit is in part a direct attack on the termination order, it is arguably also a collateral attack,
12
inasmuch as it seeks to set aside the termination order to remove an impediment to their ability to
obtain relief from the adoption order. A judgment may be “void” and subject to collateral attack if
any one of the following applies to the court rendering the judgment: (1) no jurisdiction of the
parties or property; (2) no jurisdiction of the subject matter; (3) no jurisdiction to enter the judgment;
or (4) no capacity to act as a court. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).
Additionally, the Texas Supreme Court in the past has appeared to recognize an exception to
the requirements of a bill of review that permits a direct attack on judgments that the trial court
entirely lacked “jurisdictional power” to render. See McEwen v. Harrison, 345 S.W.2d 706, 710
(Tex. 1961); see also SOS Alliance, 299 S.W.3d at 889. “Without jurisdictional power” in this sense
refers to a tribunal’s lacking “jurisdiction over the subject matter, the power to hear and determine
cases of the general class to which the particular one belongs.” SOS Alliance, 299 S.W.3d at 889
(quoting Deen v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974)). Neither party addresses whether the
Moores’ claim seeking to declare the judgment “void” is the sort of jurisdiction-based collateral or
direct attack that would be permitted under these principles. However, the Browns do not appear
to contend that the Moores’ inability to satisfy the bill-of-review elements is singularly fatal to their
claim seeking to declare the judgment “void.” We will assume without deciding that it is not (either
because their claim is considered a permissible direct attack on the termination order, a collateral
attack, or both) because there are independently dispositive statutory bars to all of the Moores’
claims in any event.
Compliance with forty-eight-hour waiting period
The Moores’ central contention, raised in their first issue, is that “undisputed”
evidence they presented below in this proceeding—chiefly, the hospital records from M.K.B.’s
13
birth—establishes that they executed their affidavits relinquishing parental rights less than forty-eight
hours after the child’s birth, and contrary to the requirements of family code section 161.103. The
Moores urge that this defect not only negates the sole statutory ground for the district court’s
termination order, but renders the affidavit a “nullity” or “void” for all purposes and effectively
returns the parties to the status quo that existed before the affidavits were executed. Consequently,
the Moores reason, the Browns lacked standing to file their suit seeking termination and adoption,
the district court lacked subject-matter jurisdiction to grant either order, the orders were thus
themselves void and had no effect on the Moores’ parental rights, and basically the underlying
termination and adoption proceedings unravel completely.
In support of these propositions, the Moores appear to rely on language in this Court’s
opinion dismissing the Moores’ untimely appeal of the termination order. The Court posited, with
reference to the Moores’ claims that the affidavits were not executed in compliance with the forty-
eight-hour waiting period, that “[s]uch a defect, if proved, might render the affidavit of
relinquishment a nullity . . . and arguably defeat a party’s standing to file a suit affecting the parent-
child relationship on the basis that he or she is a person ‘designated as the managing conservator in
an affidavit of relinquishment,’ see Tex. Fam. Code Ann. § 102.003(a)(10) (West Supp. 2009).”
Moore, 2010 Tex. App. LEXIS 3519, at *3. For the proposition that an affidavit of relinquishment
failing to comply with the forty-eight-hour requirement is a “nullity,” the Court cited Sims
v. Adoption Alliance, 922 S.W.2d 213 (Tex. App.—San Antonio 1996, writ denied), on which the
Moores also rely here. In Sims, the Fourth Court of Appeals, applying the then-newly enacted forty-
eight-hour waiting-period requirement in a direct appeal from a termination order brought by a
birth mother, held that the trial court had “erred” in terminating the mother’s rights based on an
14
“invalid” relinquishment affidavit she had executed only twenty-six hours after her child’s birth.
See id. at 217-18.
The aforementioned statement from the first Moore opinion was dicta, being wholly
unnecessary to the Court’s holding that the Moores had failed to perfect a timely appeal or preserve
a right to an extension of time. See Moore, 2010 Tex. App. LEXIS 3519, at *4. As for Sims, the
case merely holds that a termination order predicated on an affidavit of relinquishment that failed
to comply with the forty-eight-hour waiting period was reversible error, at least on direct appeal.
Sims, 922 S.W.2d at 217-18 (“[T]he affidavit of relinquishment was invalid and the trial court erred
in terminating the parental rights . . . on that basis.”). The procedural posture of the Moores’
challenge here is different, as the Browns emphasize. But more importantly, Sims predates
statutory limitations the Browns raised that constrain this sort of challenge to orders terminating
parental rights.
Enacted in 1997,11 subsection (a) of family code section 161.211 states, in
relevant part:
Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order
terminating the parental rights of a person . . . who has executed an affidavit of
relinquishment of parental rights . . . is not subject to collateral or direct attack after
the sixth month after the date the order was signed.
11
See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 1, 1997 Tex. Gen. Laws 2108, 2108
(amended 1999) (current version at Tex. Fam. Code Ann. § 161.211 (West 2008)); Act of May 28,
1997, 75th Leg., R.S., ch. 601, § 2, 1997 Tex. Gen. Laws. 2118, 2118 (amended 1999) (current
version at Tex. Fam. Code Ann. § 161.211).
15
Tex. Fam. Code Ann. § 161.211(a) (West 2008).12 In the same bills, the Legislature enacted
subsection (c) to section 161.211, which further limits the permissible scope of such “collateral or
direct attacks” on termination orders based on affidavits of relinquishment:
A direct or collateral attack on an order terminating parental rights based on an
unrevoked affidavit of relinquishment of parental rights . . . is limited to issues
related to fraud, duress, or coercion in the execution of the affidavit.
Id. § 161.211(c) (West 2008).13 In reply, the Moores insist that the “voidness” of their affidavits
of relinquishment negates the application of either provision. Relying on their premise that their
affidavits of relinquishment were “void” and effectively nonexistent by virtue of noncompliance
with section 161.103’s forty-eight-hour waiting period, the Moores conclude that neither of them
was “a person . . . who has executed an affidavit of relinquishment of parental rights” within the
meaning of subsection (a), rendering inapplicable the provision’s six-month deadline.14 Similarly,
the Moores reason that the district court’s termination order was not “an order terminating parental
rights based on an unrevoked affidavit of relinquishment of parental rights” within the meaning of
12
Texas courts are currently split as to whether this deadline is a jurisdictional bar or is in
the nature of a limitations period that must be pleaded as an affirmative defense. See In re E.R.,
385 S.W.3d 552, 567 n.27 (Tex. 2012). The Browns raised it both ways in the district court,
pleading an affirmative defense of “limitations” and moving to dismiss the Moores’ action for want
of jurisdiction.
13
See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 1, 1997 Tex. Gen. Laws 2108, 2108
(amended 1999) (current version at Tex. Fam. Code Ann. § 161.211); Act of May 28, 1997,
75th Leg., R.S., ch. 601, § 2, 1997 Tex. Gen. Laws 2118, 2118 (amended 1999) (current version
at Tex. Fam. Code Ann. § 161.211).
14
Subsection (a)’s six-month deadline also applies when the order terminates the parental
rights of a person “who has been personally served or who has executed . . . an affidavit of waiver
of interest in a child or whose rights have been terminated under Section 161.002(b).” Tex. Fam.
Code Ann. § 161.211(a). It is undisputed that the Moores were not “personally served,” as they had
waived service, and that the sole potential basis of application of the provision to them was that each
was a “person . . . who has executed an affidavit of relinquishment of parental rights.” Id.
16
subsection (c) because there was no “affidavit of relinquishment of parental rights” that could be the
basis for the order.
The Moores’ arguments rest upon a critical predicate assumption—that they can still
litigate the issue of whether their affidavits of relinquishment were executed in compliance with
section 161.103’s forty-eight-hour waiting period. To be more precise, the Moores seek to re-litigate
this issue, as the district court previously decided it when rendering its termination order and finding
they each had “executed an irrevocable affidavit of relinquishment of parental rights as provided
in chapter 161 of Texas Family Code.” That order and finding are final and binding unless the
Moores can succeed in having it set aside through collateral or direct attack. See Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 863, 865-66 (Tex. 2010). And such a remedy is foreclosed, the Browns
urge, by not only the Moores’ inability to satisfy the procedural requirements of their bill-of-review
claim, but also by the language of subsections (a) and (c) of section 161.211 themselves. We agree.
Resolution of this issue turns on statutory construction, which presents a question
of law that we review de novo. See Texas W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177
(Tex. 2012). When construing a statute, our primary objective is to ascertain and give effect to the
Legislature’s intent. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
To discern that intent, we begin with the statute’s words. Id. “Where text is clear, text is
determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
(Tex. 2009) (op. on reh’g). The words cannot be examined in isolation, but must be informed by the
context in which they are used. TGS-NOPEC Geophysical, 340 S.W.3d at 441. We rely on the plain
meaning of the words, unless a different meaning is supplied by legislative definition or is apparent
from context, or unless such a construction leads to absurd results. See City of Rockwall v. Hughes,
246 S.W.3d 621, 625-26 (Tex. 2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005)
17
(“Words and phrases shall be read in context and construed according to the rules of grammar and
common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.”). We further
presume that the Legislature chooses a statute’s language with care, including each word chosen for
a purpose, while purposefully omitting words not chosen. In re M.N., 262 S.W.3d 799, 802
(Tex. 2008).
Turning to the text of subsections (a) and (c) of section 161.211, we begin by
observing that both provisions constrain both “direct” and “collateral” attacks, without limitation or
qualification. As previously discussed, “collateral” attacks include—indeed, are permitted solely
for—challenges to the trial court’s jurisdiction. See Browning, 698 S.W.2d at 363. Consequently,
the Legislature’s unqualified use of “direct” and “collateral” attack denotes intent that
subsections (a) and (c) have sweeping, all-encompassing breadth, applying to complaints of
everything from procedural errors to jurisdictional defects. See HCBeck, Ltd. v. Rice, 284 S.W.3d
349, 363 (Tex. 2009) (“We use definitions prescribed by the Legislature and any technical or
particular meaning the words have acquired . . . .” (citing Tex. Gov’t Code Ann. § 311.011));
In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“We presume the Legislature is aware of relevant
case law when it enacts or modifies statutes.” (citing Acker v. Texas Water Comm’n, 790 S.W.2d
299, 301 (Tex. 1990))).
Turning now to the text of subsection (a) in particular, it bars any “collateral or direct
attack” on “the validity of an order terminating the parental rights of a person . . . who has executed
an affidavit of relinquishment of parental rights” “after the sixth month after the date the order was
signed.” Tex. Fam. Code Ann. § 161.211(a). The Moores plainly bring a “collateral or direct attack”
on the “validity of an order terminating [their] parental rights,” and they likewise are each a person
18
“who has executed an affidavit of relinquishment of parental rights.” Although the Moores insist
that the phrase “person who has executed an affidavit of relinquishment of parental rights” presumes
and requires “an affidavit of relinquishment of parental rights” that complies with each of the
requirements of section 161.103, subsection (a) does not actually say this, and in any event the
termination order resolved that question unless and until the Moores could show themselves
entitled to relief from that order. Finally, the “order” terminating the Moores’ parental rights “was
signed” on April 30, 2009, making “the sixth month after th[at] date” October 30, 2009, a Friday.
See Tex. Gov’t Code Ann. 311.014(c) (West 2005) (when counting “months” in codes, look to
corresponding date in successive months).15 Because the Moores did not file their petition below
until the following Monday, November 2, it was untimely under subsection (a) of section 161.211.
The Moores urge that subsection (a)’s six-month period should instead begin on
May 1, 2009, when the signed termination order was filed with the Bell County District Clerk, but
that is contrary to the provision’s text, which states that the period shall begin on “the date the order
was signed.” See Tex. Fam. Code Ann. § 161.211(a). In the further alternative, the Moores urge in
their fourth issue that their suit was timely because 161.211(a)’s six-month deadline, if applicable,
was tolled under the Servicemembers Civil Relief Act by virtue of Alvin Brown’s military service.
We need not address that issue because even if the Moores’ suit might be considered timely by virtue
of tolling, their challenges to the termination order are barred by subsection (c) of section 161.211.
Subsection (c) limits “[a] direct or collateral attack on an order terminating parental
rights based on an unrevoked affidavit of relinquishment of parental rights . . . to issues relating to
fraud, duress, or coercion in the execution of the affidavit.” Id. § 161.211(c). It is beyond dispute
15
Thus, we reject the Browns’ assertions that the deadline was October 27, 2009.
19
that the termination order here is “an order terminating parental rights” under chapter 161 of the
family code. The order is likewise plainly “based upon” the Moores’ affidavits of relinquishment,
which were made irrevocable under family code section 161.103 and were thus “unrevoked.”16 As
for the “issues related to fraud, duress, or coercion in the execution of the affidavit” to which
the Moores’ attacks on the termination order are limited, the phrase contemplates a procedural
framework predating section 161.211 that Texas courts have followed in parental-termination cases
founded on affidavits of relinquishment.
Under that framework, a person seeking to terminate parental rights based on an
affidavit of relinquishment has the initial burden of proving, by clear and convincing evidence, that
the affidavit was executed in accordance with section 161.103’s requirements. See, e.g., Coleman
v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.—El Paso 1990, no writ) (citing Terrell v. Chambers,
630 S.W.2d 800, 802-03 (Tex. App.—Tyler), writ ref’d n.r.e., 639 S.W.2d 451 (Tex. 1982)); accord
Monroe v. Alternatives in Motion, 234 S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2007,
no pet.); Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.—Austin 2000, pet. denied). An
affidavit of relinquishment in proper form is itself prima facie evidence of its validity. See Brown,
627 S.W.2d at 394; accord Monroe, 234 S.W.3d at 62; In re R.B., 225 S.W.3d 798, 804
(Tex. App.—Fort Worth 2007, no pet.). And, once that burden is met, the longstanding rule has
been that the affidavit may be set aside only on proof that the affidavit was executed as a result of
“fraud,” “coercion,” “duress,” or related factors going ultimately to whether the waiver of parental
16
The Moores make a passing assertion that their affidavits were not “unrevoked” because
they purported to revoke them. However, the affidavits were made irrevocable at all relevant times
under family code section 161.103, so the Moores’ purported revocations were in themselves
ineffective. See Wall v. Texas Dep’t of Family & Protective Servs., 173 S.W.3d 178, 181
(Tex. App.—Austin 2005, no pet.) (trial court properly denied mother’s attempt to revoke an
irrevocable affidavit of voluntary relinquishment).
20
rights in the affidavit was made voluntarily, knowingly, intelligently, and with full awareness of the
legal consequences, as is constitutionally required. See Brown, 627 S.W.2d at 394; accord Monroe,
234 S.W.3d at 61-62; Vela, 17 S.W.3d at 758-59.17 An involuntarily executed affidavit of
relinquishment is a complete defense to a termination order. See Vela, 17 S.W.3d at 759.
We are to presume that the Legislature crafts its statutes with awareness of
background law such as this.18 Against that backdrop, subsection (c)’s reference to “issues relating
to fraud, duress, or coercion in the execution of the affidavit” denotes a category of complaints that
is distinct from, and is preceded by, the question of whether the affidavit complies with all of
the requirements of section 161.103. This is understandable. Section 161.103 prescribes a number
of regulations that, while perhaps serving as prophylactic safeguards calculated to ensure the
voluntariness of execution, are somewhat formalistic and technical in nature. These include not only
the forty-eight-hour waiting period that is the Moores’ focus, but such requirements as that the
affidavits be witnessed by two credible persons; must be verified before a person authorized to take
oaths; and must contain certain detailed information about the child and the parents, an “allegation
17
This Court and others have further reasoned that the parent had not only the burden of
producing evidence of fraud, duress, coercion, etc., but also has the ultimate burden of proving
same by a preponderance of the evidence. See Monroe v. Alternatives in Motion, 234 S.W.3d 56,
62 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Vela v. Marywood, 17 S.W.3d 750, 758
(Tex. App.—Austin 2000, pet. denied). In 2003, a plurality of the Texas Supreme Court questioned
whether the ultimate burden of proving fraud, duress, or coercion could properly be placed on the
parent, urging that the ultimate burden should remain with the affidavit proponent to prove, by clear
and convincing evidence, and notwithstanding the evidence of fraud, duress, or coercion, that the
affidavit was voluntarily executed. See In re L.M.I., 119 S.W.3d 707, 720 (Tex. 2003) (Owen, J.,
concurring and dissenting). However, the plurality agreed that the parent bore the burden of
producing evidence to challenge the voluntariness of the affidavit. See id.
18
See In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“We presume the Legislature is aware
of relevant case law when it enacts or modifies statutes.” (citing Acker v. Texas Water Comm’n,
790 S.W.2d 299, 301 (Tex. 1990))).
21
that termination of the parent-child relationship is in the best interest of the child,” “a statement that
the parent has been informed of parental rights and duties,” a designation of a prospective adoptive
parent, and a statement as to whether the relinquishment is revocable, irrevocable, or irrevocable for
a specified period of time. Tex. Fam. Code Ann. § 161.103. These requirements are not the same
as “fraud,” “duress,” and “coercion,” and are not in themselves determinative of whether the affidavit
was voluntarily executed.
Consequently, subsection (c)’s limitation of “direct or collateral attack[s] on an order
terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights” to
“issues relating to fraud, duress, or coercion in the execution of the affidavit” proscribes challenges
based solely on a complaint that the affidavit violated one of section 161.103’s requirements.
Subsection (c) thus bars the Moores’ claims seeking to invalidate or set aside the termination order
on the ground that their affidavits of relinquishment were executed within the forty-eight-hour
waiting period.
Beyond urging that subsection (c) of section 161.211 does not apply to their claims,
the Moores refer in their reply brief to In re E.R., in which the Texas Supreme Court held that the
enforcement of subsection (b) of section 161.211, which imposes a six-month deadline for persons
served by publication in a parental-termination cases, must yield to the extent required by due
process. 385 S.W.3d 552, 567 (Tex. 2012). The Moores suggest that the district court’s reliance on
their “defective” affidavits of relinquishment violates due process in the same manner that the
constitutionally defective service by publication addressed in E.R. Leaving aside that the Moores
did not raise this argument in their opening brief,19 they do not present authority for this proposition
19
See Sunbeam Envtl. Servs. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851
(Tex. App.—Austin 2002, no pet.) (finding waiver of appellate issue raised for first time in reply
brief rather than opening brief); see also In re B.L.D., 113 S.W.3d at 353.
22
or otherwise explain why this is so. We cannot conclude that the Moores have demonstrated that
the application of subsection (c) violates their due process rights.
Absent a showing of such a constitutional bar to subsection (c)’s enforcement, we are
bound to give it effect. Because the Moores’ claims seeking to invalidate or set aside the termination
order on the ground that their affidavits of relinquishment were executed within the forty-eight-hour
waiting period are not “limited to issues related to fraud, duress, or coercion in the execution of the
affidavit,” they are barred by subsection (c). We overrule the Moores’ first issue.
UCCJEA
In their second issue, the Moores urge that the Virginia state court had continuing,
exclusive jurisdiction over M.K.B. and that the district court’s termination order and subsequent
adoption order were “void” for this reason. As with their complaints about compliance with the
forty-eight-hour requirement, the Moores assert a challenge to the termination order that is beyond
the scope permitted by subsection (c) of section 161.211. We must presume that the Legislature
meant what it said—“a direct or collateral attack . . . ” (which, as we have seen, can include
jurisdictional challenges) “. . . on an order terminating parental rights based on an unrevoked
affidavit of relinquishment of parental rights . . .” (which is the case with the termination order at
issue here) “ . . . is limited to issues related to fraud, duress, or coercion in the execution of the
affidavit” (which a challenge based on the UCCJEA is not). Accordingly, we overrule the Moores’
second issue.
Fraud, duress, or coercion?
In their third issue, the Moores complain of “fraud” through misstatements or
omissions in the Browns’ petition in their termination and adoption suit that, in their view,
23
contributed to the district court’s decision to exercise jurisdiction rather than deferring to the
Virginia court under the UCCJEA. However, these complaints do not concern fraud in procurement
of the Moores’ affidavits of relinquishment, and are thus not permissible avenues of attack under
subsection (c) of section 161.211. We overrule the Moores’ third issue.
Although the Moores appeared to contest the issue below, we cannot discern
anywhere in their appellate briefing that they are claiming error or seeking relief predicated on a
claim of fraud, duress, or coercion in the procurement of their affidavits of relinquishment. To the
extent that their briefs might be so construed, we would conclude that any evidence to that effect,
which was limited almost entirely to the Moores’ oral testimony, fell within the district court’s
discretion to disregard, especially in the face of the Browns’ testimony that the parties had intended
an adoption all along, the extensive documentary evidence consistent with such a plan, and the fact
that the Moores even consented to giving the child the Browns’ surname rather than their own. See
In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (noting that “the factfinder, not the appellate court,
is the sole arbiter of the witnesses’ credibility and demeanor”); In re J.F.C., 96 S.W.3d 256, 266-67
(Tex. 2002). In short, the Moores have not provided us any basis for holding that they did not
execute their affidavits relinquishing parental rights voluntarily, knowingly, intelligently, and with
full awareness of the legal consequences.20
CONCLUSION
“A parental rights termination proceeding encumbers a value ‘far more precious than
any property right.’” In re E.R., 385 S.W.3d at 554 (quoting Santosky v. Kramer, 455 U.S. 745, 747-
20
And the same would be true for their waiver of process and service that was incorporated
in those affidavits, to the extent that issue might otherwise be relevant.
24
48 (1982)). But the law recognizes that this precious right may be waived, and litigation concerning
the validity of such waivers is further governed by statutes such as family code section 161.211,
which were enacted to “ensure that children’s lives are not kept in limbo while judicial processes
crawl forward,” In re B.L.D., 113 S.W.3d at 353, and by the more general requirements of Texas trial
and appellate procedure. See id. Applying those legal principles here, and absent any showing of
a constitutional barrier to their enforcement, we have concluded that the Moores’ waivers of their
parental rights to M.K.B. must be given effect.
We have overruled the Moores’ first, second, and third issues challenging the
district court’s order terminating the Moores’ parental rights to M.K.B., and need not reach their
fourth. These holdings likewise dispose of the Moores’ appellate complaints as they relate to the
district court’s adoption order. See Durham, 600 S.W.2d at 761. We affirm the district court’s
judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Field
Affirmed
Filed: February 22, 2013
25