in the Interest of N.C.G., a Child

Opinion filed May 27, 2011
In The
Eleventh Court of Appeals
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No. 11-11-00002-CV
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IN THE INTEREST OF N.C.G., A CHILD
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 09-11-377
MEMORANDUM OPINION
After N.C.G.’s parents each executed an affidavit of relinquishment of parental rights, the
trial court entered an order terminating their parental rights. Both parents filed an appeal. The
trial court held a hearing and found the appeal to be frivolous under TEX. FAM. CODE ANN.
§ 263.405(d) (Vernon 2008) and TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (Vernon 2002).
This is an appeal from the frivolous finding. See Section 263.405(g). We affirm.
Because the trial court found that this appeal is frivolous under Section 263.405(d),
appellate review at this stage is limited to a review of the trial court’s exercise of its discretion in
determining that the appeal is frivolous. In re J.J.C., 302 S.W.3d 436, 442 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied); In re A.B., 269 S.W.3d 120, 124 (Tex. App.—El Paso 2008, no
pet.); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526-27 (Tex. App.—
Houston [1st Dist.] 2008, no pet.); In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort Worth
2006, no pet.). An appeal is frivolous if it lacks an arguable basis in either fact or law. In re
J.J.C., 302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.
In their sole issue on appeal, the parents contend that the trial court abused its discretion
in finding the appeal frivolous because their affidavits of relinquishment were not entered into
freely and voluntarily. The trial court addressed this issue at the hearing and found the appeal to
be frivolous. The parents assert that they were under undue influence, that they were coerced,
and that they did not understand the ramifications of signing the affidavit of relinquishment.
The record shows that N.C.G.’s parents and their attorneys participated in mediation and
that each parent signed an irrevocable affidavit of relinquishment pursuant to TEX. FAM. CODE
ANN. § 161.103 (Vernon 2008) as a result of the mediated settlement agreement. At the post-
trial hearing, N.C.G.’s father wavered between stating that he was coerced and that he was
confused. He testified that he “felt pressured” into signing the affidavit; that there was “no way
[he] would sign [his] son away, period”; that he knew what he was signing when he signed the
affidavit: a document giving up his parental rights; and that he was not really coerced into
signing the affidavit, just confused. N.C.G.’s mother testified that she understood most of what
she was signing but that she did not fully understand what she was signing. She also testified
that she felt “pressured and coerced by CPS.”
Once an affidavit has been shown to comply with the requirements of Section 161.103,
the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the
affidavit was executed as a result of fraud, duress, or coercion. In re D.E.H., 301 S.W.3d 825,
830 (Tex. App.—Fort Worth 2009, pet. denied). The evidence presented by the parents, which
indicated that they felt pressured and coerced, does not rise to the level of showing fraud, duress,
or coercion. See id. The parents’ assertions with respect to the voluntary nature of their
affidavits were conclusory. Neither parent offered evidence showing that any party or attorney
acted inappropriately, threatened the parents in any way, committed fraud, unduly influenced the
parents, or did anything to coerce the parents. Furthermore, the notary public testified at the
hearing that, prior to notarizing the affidavits, she asked both parents whether they understood
what they were signing and whether they were signing of their own free will. N.C.G.’s parents
answered yes to each question, and N.C.G.’s mother cried. Because the parents failed to present
any evidence that would rise to the level required to revoke their irrevocable affidavits, we hold
that the trial court did not abuse its discretion in finding this appeal to be frivolous. The parents’
issue on appeal is overruled.
2
The order of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
May 27, 2011
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2
1
Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.
2
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
3