J.O.M. and B.T. v. Department of Family and Protective Services

Opinion issued May 19, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00643-CV

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Jose Montes and Brandy Taylor, Appellants

V.

Department of Family and Protective Services, Appellee

On Appeal from the 506th Judicial District Court

Grimes County, Texas

Trial Court Case No. 31349

MEMORANDUM OPINION

          In this accelerated appeal, appellants, Jose Montes and Brandy Taylor, challenge the trial court’s decree, entered after appellants had signed a rule 11 agreement[1] and affidavits of relinquishment, terminating their parental rights to two of their minor children.  In two issues, appellants contend that the trial court erred in finding their appeal frivolous[2] and the evidence is legally and factually insufficient to support a finding that they had knowingly and voluntarily executed the affidavits of relinquishment.[3] 

          We affirm.  

Background

          After the Texas Department of Family and Protective Services (“DFPS”) filed a petition for conservatorship and to terminate appellants’ parental rights to their three children, the trial court empanelled a jury to consider the termination of appellants’ parental rights to two of the children.  During the jury trial, appellants’ trial counsel requested a fifteen minute recess to “finalize [a] conversation” that she was having with appellants.  The trial court granted the request, and, approximately four hours later, appellants informed the trial court that they were waiving their right to proceed with the jury trial and had signed affidavits relinquishing their parental rights to the two children.  DFPS then moved for a trial amendment to include the additional ground that the parents had executed “an unrevoked or irrevocable affidavit of relinquishment of parental rights,” and the trial court granted DFPS’s request.  See Tex. Fam. Code Ann. § 161.001(1)(K) (Vernon Supp. 2010).  The trial court then conducted a bench trial on the sole ground of the voluntary relinquishment of appellants’ parental rights to the two children.  Appellants also entered into a rule 11 agreement with the children’s foster parents to allow appellants access to the two children four times a year.  In proving up their affidavits of relinquishment, appellants testified that they had consulted with their attorney and reviewed the affidavits with her, it was in the best interest of their children to execute the affidavits, they signed the affidavits voluntarily, and, by signing the affidavits, they knew that they were giving up their parental rights and could not change their minds.

          At the conclusion of the bench trial, the trial court found by clear and convincing evidence that appellants “did, in fact, voluntarily relinquish [their] parental rights in and to the [two] children” and it was in the best interest of the two children that appellants’ parental rights be terminated.  Subsequently, the trial court entered the order terminating appellants’ parental rights to the two children.  Appellants later filed a “Statement of [Appellate] Points,” alleging nine points for appeal.  The trial court found appellants to be indigent, held a hearing to determine whether any appeal from the termination order would be frivolous, and found the appeal would be frivolous.[4]

After making the frivolousness finding, the trial court allowed appellants’ attorney to make a bill of exception, in which Montes testified about the circumstances surrounding his execution of the affidavit of relinquishment of his parental rights.  Appellants’ trial counsel and Kim Arredondo, appellants’ counselor and therapist, also testified about the circumstances surrounding the execution of the affidavits of relinquishment. 

Standard of Review

When an appeal is sought from an order terminating the parent-child relationship, a trial court must determine whether “the appeal is frivolous as provided by section 13.003(b)” of the Texas Civil Practices and Remedies Code.  Tex. Fam. Code Ann. § 263.405(d)(3).  Section 13.003(b) provides that, “[i]n determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review.”  Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002).  Generally, an appeal is frivolous when it lacks an arguable basis either in law or in fact.  See In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.) (citing De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.)). 

If a trial court makes a frivolousness finding, an aggrieved parent may appeal, but the appeal is initially limited to the frivolousness issue.  See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2008); In re K.D., 202 S.W.3d at 865 (“[O]nce the trial court determines that an appeal is frivolous, the scope of appellate review is statutorily limited to a review of the trial court’s frivolousness finding.”).  That is, before we can reach the substantive merits of an appeal in which a frivolousness finding has been made, we must first determine whether the trial court properly found the appeal to be frivolous.  See Lumpkin v. Dep’t of Family and Protective Servs., 260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re S.T., 239 S.W.3d 452, 454 (Tex. App.—Waco 2007, order) (per curiam). We review a trial court’s frivolousness finding under an abuse of discretion standard.  In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San Antonio 2006, no pet.); In re K.D., 202 S.W.3d at 866.  Applying that standard, we decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Voluntariness of Affidavit

In their first issue, appellants argue that the trial court erred in finding their appeal frivolous because appellants’ testimony that “they felt pressured and felt like they had no other choice” but to sign the affidavits of relinquishment created a substantial question for appellate review “based on a question of law and facts.”  In their second issue, appellants argue that the trial court could not have found, by clear and convincing evidence, that the affidavits were knowingly and voluntarily executed.[5] 

An appeal of a termination order is limited to the issues presented in a statement of appellate points.  See Tex. Fam. Code Ann. § 263.405(i); see Pool v. Tex. Dep’t of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Thus, if a trial court has determined that an appeal would be frivolous, the court has necessarily determined that each of the issues identified in the statement of appellate points is frivolous; that is, they lack a substantial basis in law or fact.  See In re S.T., 263 S.W.3d 394, 403–04 (Tex. App.—Waco 2008, no pet.).  Here, appellants identified nine appellate issues in their statement of appellate points; however, at the hearing they chose to proceed on only one ground: “The Affidavits of Relinquishment signed by both Brandy Taylor and Jose Montes were not executed voluntarily, but were executed under duress.” 

Family Code section 161.001 authorizes a trial court to terminate a parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an unrevoked affidavit of relinquishment of parental rights and termination is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001(1)(K), (2).  “A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.”  Id. § 161.211 (Vernon 2008).

Implicit in the Family Code is the requirement that an affidavit of relinquishment of parental rights must be voluntarily executed.  See Williams v. Williams, 150 S.W.3d 436, 447 (Tex. App.—Austin 2004, pet. denied); Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied, 53 S.W.3d 684 (Tex. 2001); Neal v. Tex. Dep’t of Human Servs., 814 S.W.2d 216, 218–19 (Tex. App.—San Antonio 1991, writ denied).  Moreover, because an affidavit of relinquishment waives a constitutional right, it must be made voluntarily, knowingly, intelligently, and with full awareness of its legal consequences.  See Vela, 17 S.W.3d at 759.  The proponent of the affidavit has the burden to establish by clear and convincing evidence that the affidavit was executed according to the terms of section 161.103 of the Family Code.  Tex. Fam. Code Ann. § 161.103 (Vernon 2008); Vela, 17 S.W.3d at 758.  An affidavit of relinquishment in proper form is prima facie evidence of its validity.  In re B.B.F., 595 S.W.2d 873, 875 (Tex. Civ. App.—San Antonio 1980, no writ).  Once the proponent has met that burden, the burden then shifts to the affiant to establish by a preponderance of the evidence that the affidavit was executed as a result of fraud, duress, or coercion.  Vela, 17 S.W.3d at 758; see also Tex. Fam. Code Ann. § 161.211(c).  Duress occurs when, due to some kind of threat, a person is incapable of exercising his free agency and unable to withhold consent.  In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied). 

Appellants assert that Montes’s testimony, presented in their bill of exception, “that they felt pressured” and “had no other choice” but to sign the affidavits “created a substantial question for appellate review based on a question of law and facts.”  A review of the record reveals that when proving up his affidavit of relinquishment in the bench trial, Montes testified that he had had an opportunity to review the Affidavit of Voluntary Relinquishment of Parental Rights, reviewed everything in the document with his attorney, understood all of his rights under the Texas Family Code, understood exactly what he would be waving by signing the affidavit, and did not have any questions about the agreement.  He then stated, “What I want to say is I’m in agreement.”  Montes also stated that he understood that once the document was signed and entered with the court he could not change his mind.  The following exchange between Montes and his counsel then occurred:

[Appellants’ Counsel]:  And are you asking the Court to review the affidavit of voluntary relinquishment and understand that you voluntarily and fully enter into this?

[Montes]:              No.

[Appellants’ Counsel]:  You do not voluntarily signed this?

[Montes]:              Oh, yes, yes.

[Appellants’ Counsel]:  And after voluntarily signing this, do you want the Court to accept and approve it; is that correct?

[Montes]:              Yes.

          Taylor similarly testified that she had reviewed every statement in the affidavit of relinquishment with her attorney and her attorney explained the affidavit to her and gave her the opportunity to ask questions about the affidavit.  She understood her legal rights under the Texas Family Code, and she understood that, by signing and filing the affidavit with the court, she was giving up her parental rights, and, once the document was filed, she could not change her mind. 

At the hearing on the issue of the frivolousness of this appeal, appellants’ counsel asserted that Montes speaks very little English, “he believes that he was forced into signing” the affidavit, and he “felt that he [did not] clearly understand what he was signing when he executed the affidavit.” Counsel, referring to the testimony of Montes, asserted that it revealed some “confusion” and Montes did not “fully understand[] the questions.”  Taylor was not present at the hearing, and counsel made no argument specifically as to the circumstances surrounding the execution of her affidavit. 

However, the record reveals that Montes testified that he was in “agreement” with terminating his parental rights.  Moreover, after the “confusion” alluded to by his counsel, Montes was asked again, in order to clarify, if he had voluntarily signed the affidavit.  Montes answered, “Oh, yes, yes.”  Furthermore, an interpreter was present throughout the trial and during the four-hour break, after which appellants signed the affidavits of voluntary relinquishment.  Based on the evidence presented in the record, we conclude that appellants raised no evidence of duress.  The only evidence presented to and considered by the trial court was appellants’ testimony, from the initial transcript at trial, as to their signing of the affidavits.  Although appellants may have felt “pressured” to execute their affidavits, and “forced” to sign the affidavits, there is no evidence of any “threat” that would have rendered them unable to withhold consent.  The trial court took judicial notice of the record, and, because no motion for new trial was filed, there was no other evidence presented before the trial court entered its frivolous finding. 

We note that appellants, on appeal, cite to several statements made by Montes in the bill of exception.  Montes testified that he felt forced to sign the affidavit, he felt as if he had no other choice but to sign the affidavit, he felt pressured because he did not have any other options, he believed that the jury was going to believe the “lies” of DFPS and take away his children, and he felt “blocked.”  Montes also testified that he believed that if he did not sign the affidavit, DFPS would take his third child away from him.  He also thought that signing the affidavit was “a temporary relief to all the lies.”  However, Montes’s testimony, presented in appellants’ bill, that appellants felt pressured to make a decision and were faced with the possible removal of their third child does not establish that their relinquishment was the result of duress or other wrongdoing.  See D.E.H., 301 S.W.3d at 830; In re R.B., 225 S.W.3d 798, 806 (Tex. App.—Fort Worth 2007, no pet.).  

Accordingly, we hold that the trial court did not abuse its discretion in finding appellants’ issues to be frivolous. 

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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[1]           See Tex. R. Civ. P. 11.

[2]           See Tex. Fam. Code Ann. § 263.405(d) (Vernon 2008).

[3]           See id. § 161.001(1)(K) (Vernon Supp. 2010).

[4]           See Tex. Fam. Code Ann. § 263.405(d).  Although appellants filed a statement of appellate points, they did not file a motion for new trial.  Counsel for DFPS objected to the relevance of the factual information that appellants wanted to present in their bill of exception, stating, “If no motion for new trial was filed thereby extending the court’s plenary power and ability to have a fact-finding hearing, then strictly you are limited to the frivolousness determination which I don’t believe supports the ability of the [appellants] in this case to offer evidence as to the facts surrounding the execution of the affidavits of relinquishment in this case.”  The trial court sustained the objection, allowed the respective parties to present an argument, and took judicial notice of the reporter’s record from the bench trial. 

[5]           DFPS argues that appellants have waived their second issue on appeal because, at the frivolousness hearing, they abandoned all but one of their issues in their statement of appellate points.  DFPS notes that this issue is similar to issue seven in their statement, which reads, “The Trial Court lacked sufficient evidence to support a finding by clear and convincing evidence that [appellants] voluntarily executed an Affidavit of Relinquishment as to each child the subject of this suit.”  It asserts, however, that on appeal, a party seeking to overturn a termination order based on an unrevoked affidavit of relinquishment is limited to arguing fraud, duress, or coercion in the execution of the affidavit.  See Tex. Fam. Code Ann. § 161.211(c) (Vernon 2008).  Appellants’ argument in their second issue on appeal is that the trial court could not have found that they had executed the affidavits voluntarily because they were acting under duress.  In their issues presented, appellants ask (1) “Whether the appeal lacks an arguable basis in either law or fact and is frivolous” and (2) “Whether the Affidavits of Voluntary Relinquishment of Parental Rights signed by [appellants] were not executed voluntary but were executed under duress.” Accordingly, their second issue is necessarily intertwined with their first issue and has not been waived.