Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re G.V.

Court of Appeals of Texas, Second District, Fort Worth

December 18, 2017

IN THE INTEREST OF G.V., III AND G.V., CHILDREN

         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-102780-16

          PANEL: WALKER, KERR, and PITTMAN, JJ.

          OPINION

          ELIZABETH KERR JUSTICE.

         This case of first impression calls on us to decide whether we should apply Chapter 153 ("Conservatorship, Possession, & Access") or Chapter 161 ("Termination of the Parent-Child Relationship") of the family code to a mediated settlement agreement, where

• the Department of Family and Protective Services initiated a suit to appoint a managing conservator and to terminate Father's and Mother's parental rights if reunification could not be achieved;
• while the termination proceeding was pending, Father and Mother entered into a mediated settlement agreement ("MSA") that changed the managing conservatorship but did not terminate their rights;
• the MSA recited that the agreement was "in the best interest" of the children and met the statutory requirements of section 153.0071 to be binding and enforceable;
• the Department then dropped its request to terminate Father's and Mother's parental rights and moved to modify managing conservatorship in accordance with the MSA; and
• after Father and Mother unsuccessfully objected and asked to back out of the MSA, the trial court entered a final order enforcing it under section 153.0071 and without requiring the Department to put on any best-interest proof.

         Because we are unpersuaded that the mere possibility of termination at the time an MSA is entered into suffices to make section 153.0071 inapplicable-that is, because we disagree that the parents ought to have been able to revoke an otherwise-binding MSA that modified managing conservatorship simply because the Department initially and conditionally pleaded for termination-we affirm.

         The MSA here reflected Father's and Mother's agreement that (1) their two young children would be placed with relatives who would be made the managing conservators, (2) the parents would have limited supervised visitation twice a month, (3) they would pay a combined $2, 000 per month in child support, (4) they would not file a motion to modify for 48 months, but (5) they could move to modify in the event of an emergency. The MSA did not actually terminate Father's or Mother's parental rights, nor did either of them voluntarily relinquish their parental rights under the agreement, by a section 161.103 affidavit or otherwise. Father and Mother then sought to revoke their consent to the MSA after the Department moved the trial court to enter judgment. Over the parents' objections, the trial court rendered judgment on the mediated settlement agreement under section 153.0071 of the family code. Tex. Fam. Code Ann. § 153.0071 (West 2014). Father and Mother appealed.

         In three issues, Father and Mother assert that (1) the trial court erred by relying on section 153.0071(e), (2) the trial court erred by adopting the MSA's moratorium on any motions to modify for 48 months, and (3) the trial court erred by adopting the MSA's "emergency" prerequisite before any motion to modify could be filed in the interim. We affirm.

         Background

         On January 27, 2016, the Department of Family and Protective Services filed its "Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship" against Father and Mother. The children involved were their two-year-old son, Andrew, and their three-month-old daughter, Betty.[1]

         According to the supporting affidavits, three-month-old Betty had suffered non-accidental trauma. The perpetrator was unknown, and the record contains multiple references (one as late as April 10, 2017) both to an ongoing criminal investigation and to the fact that "a perpetrator has not been identified." Betty had numerous fractures in various stages of healing, including rib fractures, a clavicular fracture, a femur fracture, and distal femur corner fractures. Andrew had no injuries consistent with abuse or neglect. Betty attended a daycare, and it was the daycare that first expressed concerns on January 25, 2016. Father and Mother took Betty to a hospital that same evening. The Department's petition came two days later.

         The petition sought to terminate Father's and Mother's parental rights to their two children under family code Chapter 161 ("Termination of the Parent-Child Relationship") of Subtitle B ("Suits Affecting the Parent-Child Relationship") of Title 5 ("The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship"). See Tex. Fam. Code Ann. §§ 161.001-.211 (West 2014 & Supp. 2017).[2] The Department's petition raised termination as a possibility if reunification could not be achieved.

         The petition also encompassed conservatorship and child-support issues under Chapter 153 ("Conservatorship, Possession, and Access") and Chapter 154 ("Child Support"), respectively, which-like Chapter 161-are also under Subtitle B of Title 5 of the family code. See id. §§ 153.001-.709, 154.001- .309 (West 2014 & Supp. 2017).

         On the same date that the Department filed its petition, the trial court entered ex parte emergency orders appointing the Department as Betty's and Andrew's sole managing conservator; placing the children with the Smiths, who were family friends; and setting a date for a full adversary hearing in accordance with section 262.201 of the family code. See id. § 262.201 (West Supp. 2017).

         At the February 5, 2016 full adversary hearing, the trial court signed an agreed temporary order to the same effect. As temporary managing conservator, the Department was specifically given all the rights and duties as set forth in section 153.371 of the family code. See id. § 153.371.

         Father and Mother filed separate answers.

         On March 2, 2016, the Smiths were appointed Betty's and Andrew's temporary possessory conservators, and the trial court ordered that both Father and Mother have only supervised visitation.[3]

         On June 28, 2016, the Department filed a motion to remove the Smiths as temporary possessory conservators and, in their place, sought to appoint the Joneses as the children's temporary possessory conservators. Mr. Jones is Father's paternal great uncle.

         The following week, Jane Doe, a person who had regular contact with the children before their removal, filed a petition in intervention. She asserted that appointing either parent as sole managing conservator or both parents as joint managing conservators would significantly impair the children's physical health or emotional development. She sought to be appointed the children's possessory conservator.

         As the Department requested, in early July 2016 the trial court removed the Smiths and appointed the Joneses as the children's temporary possessory conservators.

         On August 31, 2016, the trial court ordered Father to pay $1, 200 per month in child support and ordered Mother to pay $800 per month in child support.

         On October 5, 2016, the Department, the Joneses, Father, Mother, and Jane Doe filed a "Binding [Mediated] Settlement Agreement." See id. § 153.0071(e). There is no allegation that the parties failed to meet the prerequisites to a binding agreement under section 153.0071(d). See id. § 153.0071(d).

         As the case approached its one-year anniversary, the trial court signed an order in December 2016 retaining the suit on the court's docket and resetting the case's dismissal date to July 26, 2017.[4] See id. § 263.401 (West Supp. 2017).

         On March 28, 2017, the Department filed a "Motion to Modify Managing Conservatorship in a Suit Affecting the Parent-Child Relationship." The Department sought to have itself removed as managing conservator and to have the Joneses appointed as managing conservators. The Department additionally ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.