Court of Appeals of Texas, Second District, Fort Worth
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, KERR, and PITTMAN, JJ.
ELIZABETH KERR JUSTICE.
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
• 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;
• 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.
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.
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.
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.
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,
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.
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). The Department's petition raised
termination as a possibility if reunification could not be
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).
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).
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. §
and Mother filed separate answers.
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
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
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.
Department requested, in early July 2016 the trial court
removed the Smiths and appointed the Joneses as the
children's temporary possessory conservators.
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.
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).
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. See id. § 263.401 (West
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