in Re the Gladney Center

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-107-CV
IN RE THE GLADNEY CENTER
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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Mother signed an irrevocable affidavit for voluntary relinquishment of her
parental rights and designated The Gladney Center as the managing conservator
of her child. Mother’s affidavit waived her right to issuance of service, return of the
citation, notice, and all other process in the suit filed to terminate her parental rights.
Mother thereafter retained an attorney, signed a purported revocation of her affidavit
of voluntary relinquishment, and sent a copy of the revocation to The Gladney
Center. The trial court subsequently signed a judgment terminating Mother’s rights
to her child.
1
 See Tex. R. App. P. 47.4.
Mother timely filed an unverified motion for new trial, alleging that the evidence
was legally and factually insufficient to terminate her rights, that there was newly
discovered evidence, and that she had signed the affidavit of relinquishment as the
result of coercion, duress, undue influence, and overreaching by The Gladney
Center.2 The trial court conducted a hearing on Mother’s motion for new trial and
granted it without stating a reason. Later, while this mandamus proceeding was
pending, the trial court signed an amended order granting a new trial on the ground
that Mother did not receive proper notice of the termination proceeding.
The Gladney Center seeks mandamus relief from the trial court’s order
granting a new trial. The Gladney Center claims that Mother’s affidavit of
relinquishment is irrevocable, that Mother waived all notice of the termination
proceeding, that Mother submitted no evidence at the new trial hearing, that the trial
court abused its discretion by granting a new trial, and that The Gladney Center has
no adequate remedy at law because it is entitled to enforcement of Mother’s
irrevocable affidavit of relinquishment and the waiver provisions therein.
Texas Family Code section 161.103 sets forth the requirements of an affidavit
of voluntary relinquishment. Tex. Fam. Code Ann. § 161.103 (Vernon 2008).
Section 161.103(e) provides that an affidavit of relinquishment that designates a
2
 Mother also filed a verified, amended motion for new trial, but it was not
timely because it was not filed within thirty days of the termination judgment. See
Tex. R. Civ. P. 329b(a) (requiring motion for new trial to be filed within thirty days of
the judgment).
2
licensed child-placing agency, like The Gladney Center, as the child’s managing
conservator “is irrevocable.” Id. § 161.103(e). 3 The family code specifically
authorizes a parent executing a voluntary affidavit of relinquishment to waive, in the
affidavit of relinquishment, process in the subsequent termination suit. Id. And
finally, section 161.211(c) provides that 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 relating to fraud, duress, or coercion in the
execution of the affidavit. Id. § 161.211(c) (Vernon 2008).
Mother signed an irrevocable affidavit of relinquishment under 161.103(e).
That affidavit also provided:
I FREELY AND VOLUNTARILY WAIVE AND GIVE UP MY RIGHT TO
THE ISSUANCE, SERVICE, AND RETURN OF CITATION, NOTICE,
AND ALL OTHER PROCESS IN THE TERMINATION LAWSUIT. I
waive and give up my right to be given notice about any proceedings in
the termination lawsuit. I agree that The Gladney Center may amend
its petition at any time without notice to me. I agree that hearings may
be held in the termination lawsuit at any time without notice to me. I do
not want to be informed about the termination lawsuit, and I waive and
give up my right to be given notice about anything going on in the
lawsuit. I fully understand that I will not be further informed about the
termination of parental rights suit. I SPECIFICALLY AGREE THAT A
FINAL HEARING IN THE TERMINATION LAW SUIT MAY BE HELD AT
ANY TIME. I DO NOT W ISH TO RECEIVE A COPY OF THE FINAL
JUDGMENT.
3
 Section 161.103(g) sets forth procedures to revoke an affidavit of
relinquishment, but this subsection applies only to relinquishments that are
revocable. Id. § 161.103(g). And even when an affidavit of relinquishment is
revocable, it must be revoked within ten days of the date on which the affidavit is
executed. Id. § 161.1035 (Vernon 2008).
3
The trial court’s amended order granting a new trial indicates that the trial court
granted a new trial because it found “that The Gladney Center did not give [Mother’s
attorney] notice of the scheduled termination trial, violating [Mother’s] right to due
process.”
The provision in Mother’s affidavit of relinquishment waiving process in the
termination suit is expressly authorized by the family code. See id. § 161.103(c)(1)
(“The affidavit may contain: (1) a waiver of process in a suit to terminate the parent-
child relationship . . . .”); see also In re C.T., 749 S.W .2d 214, 215–16 (Tex.
App.—San Antonio 1988, no writ). Such a waiver of process is binding on Mother
absent pleading and proof relating to fraud, duress, or coercion in the execution of
the affidavit. See Tex. Fam. Code Ann. § 161.211(c) (limiting attacks on termination
judgment based on affidavit of voluntary relinquishment to issues relating to fraud,
duress, or coercion in the execution of the affidavit); Brown v. McLennan Co. CPS,
627 S.W .2d 390, 393–94 (Tex. 1982) (upholding statutory waiver of process
provision against constitutional challenge); C.T., 749 S.W .2d at 217; see also In re
Prudential, 148 S.W .3d 124, 132 (Tex. 2004) (orig. proceeding) (holding contractual
jury waiver binding on party absent evidence waiver was not knowingly and
voluntarily executed). Mother offered no evidence at the motion for new trial hearing.
Consequently, no evidence exists on the issues of fraud, duress, or coercion in
Mother’s execution of her affidavit of voluntary relinquishment. In the absence of
such evidence, the trial court abused its discretion by granting a new trial based on
4
lack of notice to Mother when she expressly waived such notice in her affidavit of
voluntary relinquishment.
W e conditionally grant the writ of mandamus requested by The Gladney
Center. The trial court shall immediately set aside the March 19, 2010 order
granting a new trial and the April 9, 2010 amended order granting a new trial. The
writ will issue only if the trial court fails to do so. Once the trial court sets aside the
March 19, 2010 order granting a new trial and the April 9, 2010 amended order
granting a new trial, our stay order of April 7, 2010 is ordered dissolved.
SUE W ALKER
JUSTICE
PANEL: W ALKER and MCCOY, JJ.
DELIVERED: May 20, 2010
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