Opinion
NO. 14-16-00342-CV
10-18-2016
IN THE INTEREST OF D.J.L., JR., A CHILD
On Appeal from the 315th District Court Harris County, Texas
Trial Court Cause No. 2014-05086J-C
MEMORANDUM OPINION
Appellant Father appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child David. On appeal Father challenges the legal and factual sufficiency of the evidence (1) to support termination on the basis of an affidavit of relinquishment; (2) to support the finding that termination was in David's best interest; and (3) to overcome the parental presumption of conservatorship. We affirm.
We use pseudonyms to refer to appellant's children in this case. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
The trial court also terminated the mother's parental rights during the same proceeding; however, she has not appealed the termination.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Removal Affidavit
On July 7, 2014, the Department received a referral for neglectful supervision of six children. According to the referral, the children had been left alone in their apartment for more than two days. Their mother reportedly had been incarcerated following a car accident. Neighbors were allegedly "keeping an eye" on the children, during which time they discovered the children were lighting things on fire inside the apartment.
On July 9, 2014, Daanaa Dorsey, a Child Protective Services investigator, contacted Mother in jail. Mother stated she had been incarcerated since June 30th and denied having left her children unsupervised.
Dorsey contacted Father regarding the three children alleged to be his-David and two older sisters, Alice and Anna. Father stated that the children were with his mother. Father stated that he did not know what was going on with Mother, that he did not wish to deal with CPS, and that he would have his mother contact CPS about seeing the children.
Alice and Anna are the subject of a separate appeal. On December 10, 2014, the trial court signed an interlocutory decree of paternity adjudicating Father the biological parent of Alice, Anna, and David. The remaining three children at issue in the Department's suit had different fathers. Although the cases were tried together, the trial court severed them into separate causes.
On September 26, 2014, Mother's cousin, Sonia Brinkley, texted Dorsey with information about David. Brinkley reported that David was at her home but had been living with "Ms. Alix," also a maternal cousin, since birth. According to Brinkley, David was fully bonded with Ms. Alix and appeared to have no attachment to Mother. Dorsey attempted to contact Ms. Alix but was unable to reach her or arrange a visit.
On October 6, 2014, the Department filed its original petition for termination of all parents' parental rights as to all six children.
B. Proceedings
Upon initiation of this suit, the Department sought and was granted temporary managing conservatorship of David. In December 2014, the trial court signed an order continuing the Department's temporary conservatorship and ordering Father to comply with the Department's service plan during the pendency of the case.
In January 2015, Father appeared in court for a status hearing. The trial court signed an order finding that Father had reviewed and understood his service plan. The order further found that Father had been advised that his parental and custodial rights and duties might be restricted or terminated if he was unwilling and unable to provide the children with a safe environment.
On January 29, 2016, following court-ordered mediation, all parties, except for Father, entered into an irrevocable mediated settlement agreement ("MSA"). As it pertains to David, the MSA stated that the parties would request the court terminate Mother's parental rights based solely on her relinquishment and that, should Father sign an affidavit of relinquishment as to David, the parties to the MSA request the court terminate his parental rights based solely on his relinquishment. The parties to the MSA further agreed that David's placement with Edward Small would continue and that Small would adopt David. On the same day that she signed the MSA, Mother also signed her affidavit of relinquishment as to David.
Upon initiation of this suit, it appears that David was placed with Mother's cousin, Brinkley. The record reflects that a home study on Brinkley was denied in March 2015, and that she was unable to take care of such a young child. By June, David was placed in Small's home, where he remained until trial.
Trial to the court as to all six children was held on March 11, 2016. Father appeared through counsel. At the outset, the Department's exhibits, including the MSA, and Father's family plan of service, were admitted without objection. The Department then moved to sever the case into four separate causes.
On March 24, 2016, following trial, the court signed an order to sever the suit affecting the parent-child relationship as to David.
Counsel for Father offered Father's irrevocable affidavit of voluntary relinquishment of parental rights as to all three children to the Department. According to counsel, he read the document "word for word" to Father; Father signed the affidavit in front of two competent witnesses; and Father indicated he was relinquishing his parental rights voluntarily because he felt it was in the best interest of the children. The affidavit was offered without objection.
Although all parties understood Father was seeking to relinquish his parental rights as to all three children, the Department argued that relinquishment was not in Alice's and Anna's best interests. Both the child advocate and Department caseworker agreed that it would not be in the girls' best interests to terminate Father's parental rights as to them. The trial court then made a finding to that effect and clarified that the Department was only asking for the court to accept Father's relinquishment as to David.
On April 7, 2016, the trial court signed a decree for termination, finding by clear and convincing evidence that Father executed an unrevoked or irrevocable affidavit of relinquishment of his parental rights to David and that termination was in David's best interest.
On April 25, 2016, Father filed a Motion to Set Aside Decree and for New Trial. In his motion, Father argued the Department led him to believe that if he executed a voluntary affidavit of relinquishment of his parental rights as to all three of his children, the court would accept relinquishment as the sole ground for termination. According to Father, he was "fraudulently induced" to sign the affidavit of relinquishment as to all of his children based upon a representation that all would be accepted. Father argued he would not have signed an affidavit of relinquishment as to David if he had known the relinquishment as to Alice and Anna would not be accepted by the court.
II. ANALYSIS
A. Affidavit of Relinquishment
In his first issue Father argues the evidence is legally and factually insufficient to support termination on the basis of an affidavit of relinquishment, pursuant to section 161.001(b)(1)(K) of the Texas Family Code. Specifically, Father contends the trial court never admitted the affidavit into evidence and, even if admitted, the affidavit was not knowingly executed and fails to comply with the requirements of section 161.103. The Department argues Father should be estopped from challenging the sufficiency of the evidence to support termination under the doctrines of invited error and acceptance of benefits. Because we find the evidence sufficient to support the trial court's decision to terminate Father's parental rights, however, we do not address the Department's estoppel arguments.
All statutory references herein are to the Texas Family Code. --------
A trial court may terminate the parent-child relationship if it finds by clear and convincing evidence that the parent has executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by the family code and that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2). Section 161.103 lists the requirements for an affidavit of voluntary relinquishment of parental rights. See id. § 161.103. Evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with section 161.103 is prima facie evidence of its validity. In re R.B., 225 S.W.3d 798, 804 (Tex. App.—Fort Worth 2007, no pet.). Section 161.211(c) limits any 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. See Tex. Fam. Code Ann. § 161.211(c). The party opposing the affidavit bears the burden of proving any such wrongdoing. In re D.E.H., 301 S.W.3d 825, 830 (Tex. App.—Fort Worth 2009, pet. denied.).
We first address Father's contention that the affidavit was not admitted into evidence and, therefore, may not be used to support the final decree of termination. Contrary to Father's allegations, the record unequivocally reflects that the parties and trial court treated the affidavit as admitted. Counsel for Father offered the affidavit to the trial court, and no objections were raised. Although the trial court did not expressly state that the affidavit was admitted, the affidavit appears in the certified reporter's record as "partially admitted." Further, the trial court made clear that termination of Father's parental rights as to David would be based on Father's affidavit. Subsequently, the trial court's reliance on the affidavit was fully realized when the court entered its decree of termination which states the sole ground for termination as Father's affidavit of relinquishment. Because all parties, including Father, treated the affidavit as evidence, and no contested issues were presented, we find Father may not complain now on appeal that the affidavit was not in evidence. See McGary v. First Bancredit Corp., 273 S.W.2d 905, 907 (Tex. Civ. App.—Texarkana 1954, writ ref'd n.r.e.) (holding note sued on was introduced into evidence where trial court considered note, made findings with respect to it, and court reporter copied note in the statement of facts, to which all parties agreed and approved).
Father's reliance on Parex Resources, Inc. v. ERG Resources, LLC, 427 S.W.3d 407, 419 (Tex. App.—Houston [14th Dist.] 2014, aff'd by 2016 WL 341828 (Tex. 2016)), is misplaced. In Parex, almost 400 exhibits were offered and filed by the defendant at trial, to which some objections were made, and some rulings were rendered; but the trial court expressed that it was not admitting certain exhibits, would consider objections to them, and would hold a hearing, if necessary, to address the objections. Id. Under these circumstances, we declined to accept the defendant's argument that we must "assume" all exhibits were considered by the trial court. Id. at 418-19; see also Petrie v. UDR Texas Properties, L.P., No. 14-13-00123-CV, 2014 WL 7174242, at *2 (Tex. App.—Houston [14th Dist.] Dec. 9, 2014, pet. granted) (mem. op.). Here, the record is clear that the trial court relied on the affidavit in terminating Father's parental rights. Accordingly, we find the affidavit of relinquishment may be considered as evidence on appeal.
We next address Father's contention that his affidavit was not executed in compliance with section 161.103. Specifically, Father contends the affidavit of relinquishment fails to comply with the statute because there is no evidence that the Department consented in writing to its designation as the managing conservator of David.
Section 161.103 governs the requirements for a valid affidavit of voluntary relinquishment of parental rights. Relevant here, the statute states that the affidavit "must" include "the designation of . . . the Department of Family and Protective Services, if the department has consented in writing to the designation . . . to serve as managing conservator of the child and the address of the person or agency." Tex. Fam. Code Ann. § 161.103(b)(12). Notably, the statute does not mandate the manner in which written consent must be provided. Here, the Department signed the MSA, agreeing to Father's relinquishment of David and the future adoption of David by Small. Therefore, we find there is evidence of the Department's written consent, and Father's affidavit complied with the statutory requirements.
Finally, we address Father's contention that his affidavit was not knowingly executed. Implicit in the family code is the requirement that an affidavit of relinquishment of parental rights must be executed voluntarily. Monroe v. Alternatives in Motion, 234 S.W.3d 56, 61-62 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Williams v. Williams, 150 S.W.3d 436, 447 (Tex. App.—Austin 2004, pet. denied); In re V.R.W., 41 S.W.3d 183, 192 (Tex. App.—Houston [14th Dist.] 2001, no pet.), overruled on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002); Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000, pet. denied); Neal v. Tex. Dep't of Human Servs., 814 S.W.2d 216, 218-19 (Tex. App.—San Antonio 1991, writ denied)). Moreover, an affidavit of relinquishment waives a constitutional right, and, thus, must be made voluntarily, knowingly, intelligently, and with full awareness of its legal consequences. Monroe, 234 S.W.3d at 62 (citing V.R.W., 41 S.W.3d at 192; Vela, 17 S.W.3d at 759). The proponent of the affidavit bears the burden to establish by clear and convincing evidence that the affidavit was executed in compliance with section 161.103. Monroe, 234 S.W.3d at 62 (citing Tex. Fam. Code Ann. § 161.103 (Vernon Supp. 2006); V.R.W., 41 S.W.3d at 192-93; Vela, 17 S.W.3d at 758.). An affidavit of relinquishment in proper form is prima facie evidence of its validity. Monroe, 234 S.W.3d at 62 (citing V.R.W., 41 S.W.3d at 190). Once the proponent of the affidavit 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. Monroe, 234 S.W.3d at 62 (citing V.R.W., 41 S.W.3d at 193; Vela, 17 S.W.3d at 758); see also Tex. Fam. Code Ann. § 161.211(c). An involuntarily executed affidavit is a complete defense to a termination decree based solely upon a finding under section 161.001(b)(1)(K). Monroe, 234 S.W.3d at 62 (citing V.R.W., 41 S.W.3d at 193; Vela, 17 S.W.3d at 759; Neal, 814 S.W.2d at 219).
Not only is there no evidence in the record that Father's affidavit was executed involuntarily or was somehow the result of fraud, duress, or coercion, Father's counsel introduced the affidavit into evidence and spoke to its execution. Trial counsel confirmed that he reviewed the document and read it to Father "word for word." Trial counsel stated that Father signed the affidavit in front of two competent witnesses and that Father indicated to counsel that he was not under the influence of any drugs or alcohol or being treated for any mental illness at the time of signing. Trial counsel further stated that Father indicated he was executing the affidavit voluntarily because Father believed it was in the children's best interests. Although counsel emphasized that Father sought to relinquish his parental rights as to all three children, he did not object to the relinquishment of David after the trial court indicated it would not accept relinquishment as to Alice and Anna.
Father contends counsel's statements in support of his affidavit do not constitute evidence in the formal sense, and we agree. In certain circumstances, however, unsworn statements of counsel may be relied on by the court. See, e.g., Goode v. Shoukfeh, 943 S.W.2d 441, 451 (Tex. 1997) (unsworn statements of counsel offered to explain why peremptory challenges exercised); Parra v. State, 935 S.W.2d 862, 868 n.1 (Tex. App.—Texarkana 1996, pet. ref'd) (non-evidence introduced and considered by court without objection during Batson hearing becomes evidence). The Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court. See Tex. Disciplinary R. Professional Conduct 3.03(a)(1) (stating that a "lawyer shall not knowingly make a false statement of material fact or law to a tribunal."). "Reliance on counsel's statements is justified by Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct which forbids a lawyer from making a false statement of material fact to a tribunal. . . ." United States Gov't v. Marks, 949 S.W.2d 320, 327 (Tex. 1997). Given "the ethical canons' requirement of candor" as well as the acceptance of unsworn statements of counsel in other types of proceedings, we believe the trial court was entitled to rely on counsel's representations that Father voluntarily executed his affidavit of relinquishment. See id.
Moreover, we disagree that the trial court's decision to accept Father's relinquishment as to only David somehow renders the affidavit involuntary. Indeed, there is no evidence in the record that Father's affidavit of relinquishment of David was premised on the condition that the trial court must accept relinquishment as to all three children. Cf. Queen v. Goeddertz, 48 S.W.3d 928, 930-32 (Tex. App.—Beaumont 2001, no pet.) (holding evidence conclusively established affidavit of relinquishment involuntary where it stated relinquishment was "subject to the understanding that I will have reasonable visitation with my child"); Vela, 17 S.W.3d at 762-63 (holding evidence conclusively established affidavit of relinquishment involuntary where it was based on adoption agency's "empty promise" of mother's post-adoption visits with child).
Because we find there is clear and convincing evidence that Father executed an irrevocable affidavit of relinquishment of parental rights as provided by the Family Code, we overrule Father's first issue.
B. Best Interest of the Child
In his second issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in David's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). Father declared in his affidavit of relinquishment that termination is in the best interest of the children, which includes David. In Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 394 (Tex. 1982), the Supreme Court of Texas found "it was the intent of the Legislature to make such an affidavit of relinquishment sufficient evidence on which the trial court can make a finding that termination is in the best interest of the children." See also In re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Lumbis v. Texas Dep't of Protective & Regulatory Servs., 65 S.W.3d 844, 851 n.1 (Tex. App.—Austin 2002, pet. denied); Ivy v. Edna Gladney Home, 783 S.W.2d 829, 833 (Tex. App.—Fort Worth 1990, no writ) ("An affidavit of waiver of interest in child, in and of itself, is sufficient to find termination is in the best interest of the child."). Furthermore, there was evidence before the court that David, in accordance with the MSA admitted into evidence at trial, would be adopted by Edward Small. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.-Dallas 2007, no pet.) (A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in the best-interest determination.)
We find the record contains sufficient evidence from which the trial court reasonably could form a firm belief or conviction that termination is in the best interest of David. We overrule Father's second issue.
III. CONCLUSION
Having overruled Father's first two issues and found the evidence was sufficient to support termination of Father's parental rights, we need not address his third issue.
We affirm the trial court's judgment.
/s/ Martha Hill Jamison
Justice Panel consists of Justices Jamison, McCally, and Wise.