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In re K.S.L.

Supreme Court of Texas

December 22, 2017

IN THE INTEREST OF K.S.L., A CHILD

          Argued September 15, 2017

         On Petition for Review from the Court of Appeals for the Fourth District of Texas

          OPINION

          Don R. Willett Justice.

         Under exacting provisions of the Texas Family Code, parents may relinquish their parental rights by executing an affidavit of voluntary relinquishment. In this parental-termination case, even though the parents executed statutorily compliant affidavits, the court of appeals held that the trial-court order terminating parental rights could be overturned on appeal on grounds that clear and convincing evidence of the child's best interest was lacking. We disagree and reverse the court of appeals' judgment regarding termination of parental rights.

         I. Background

         In February 2015, the Department of Family and Protective Services in San Antonio brought this suit on behalf of K.S.L., an infant. The petition requested that the Department be appointed temporary managing conservator of K.S.L., and requested termination of the parents' parental rights if reunification could not be achieved and termination was in the child's best interest. The petition attached an affidavit of a Department employee stating that the mother, SC (Mother), had recently tested positive for methamphetamine, amphetamine, and marijuana. A drug test for the father, K.L. (Father), was pending at the time, but he later admitted he had relapsed in January 2015. The parents had also appeared to be under the influence of an intoxicating substance when they turned their children over to a caseworker. All of this had occurred while there was already an open legal case concerning the parents and another daughter. The affidavit detailed several incidents of possession, use, and sale of illegal drugs by both parents. It detailed one occasion on which the Father was driving a car with the Mother and the other daughter as passengers, and led police on a high-speed chase exceeding 100 miles per hour. The Father eventually stopped and left the Mother and daughter on the side of the road. He later admitted during a psychological assessment that he had panicked because he was under the influence of methamphetamine and hydrocodone. He conceded that at times he and the Mother used methamphetamine daily. The Mother admitted during a psychological assessment that during the high-speed chase she too was under the influence of drugs.

         After a hearing, the trial court appointed the Department temporary managing conservator of K.S.L. The Department caseworker initially sought reunification of the family. A May 2015 hair-follicle test on the Father tested positive for methamphetamine. May 2015 psychosocial assessments and reports state that both parents had criminal histories as well as extensive histories of drug abuse, and that both had relapsed and were using methamphetamine in January 2015, a few months after K.S.L.'s birth. In September 2015, the Department recommended that it continue as temporary managing conservator. At a September 2015 permanency hearing, [1] the court's handwritten notes referenced the parents' "drug and lingering issues." The court's permanency hearing order of the same date found that the Department had made reasonable efforts to finalize a permanency plan. But based on plans and reports submitted to the court, it concluded that the parents were not able to provide K.S.L. with a safe environment and that returning her to the parents was not in her best interest. In an October 2015 report the caseworker changed the "primary permanency goal" from family reunification to relative adoption.

         After the permanency hearing, both parents initially demanded a jury trial, but in December 2015 both parents signed affidavits of voluntary relinquishment of parental rights. Among other provisions, the affidavits recite that the parents have been informed of and understand their parental rights and duties, and that "termination of the parent-child relationship is in the best interest of the child(ren)." As to the effect of signing the affidavits, they state: "I understand that by naming the Texas Department of Family and Protective Services as Managing Conservator in this Affidavit of Relinquishment, I give up all my parental rights and grant them to the Department and/or to the adoptive parents with whom my child(ren) may be placed." As to the voluntary nature of the relinquishments, the affidavits state: "I freely, voluntarily, and permanently give and relinquish to the Department all my parental rights and duties. I consent to the placement of the child(ren) for adoption or in substitute care by the Department or by a licensed child-placing agency." Throughout the proceeding in the trial court and on appeal, the parents have been represented by counsel.

         The trial court conducted a brief trial. Counsel for each parent was present. Counsel offered the affidavits and requested that the court take judicial notice of them. The Court reviewed the affidavits and did so. The Department called the caseworker who testified that in her belief the relinquishments were in K.S.L.'s best interest and that arrangement had been made for an uncle to adopt her. The trial court stated in open court that it "will make all necessary findings for termination as required by law, including, but not limited to, best interest." The court signed an order of termination that day, terminating the parent-child relationship of both parents. The order recited that the court had examined the record and heard the evidence and argument of counsel presented at trial. The order found by clear and convincing evidence that (1) the parents had signed irrevocable affidavits of relinquishment, and (2) the terminations were in K.S.L.'s best interest. The order also appointed the Department permanent managing conservator of K.S.L.

         A few days later, both parents appealed the termination of their parental rights on the sole ground that the evidence was legally and factually insufficient to support the trial court's best-interest finding. The record and briefs are devoid of any explanation as to why the parents changed their minds and sought to restore their parental rights.

         A divided court of appeals reversed the trial-court judgment terminating parental rights, holding, "the Department did not meet its burden to establish by clear and convincing evidence that termination of Mother's and Father's parental rights to K.S.L. is in the child's best interest."[2]

         II. Discussion

         A. The Interplay of Family Code sections 161.001(b) and 161.211

         The Legislature has set out detailed requirements for an affidavit of voluntary relinquishment of parental rights. Reflecting the grave significance of such a procedure, Family Code section 161.103 includes 28 subparts. The statute requires, among other elements for a valid affidavit: (1) a waiting period after birth; (2) two witnesses; (3) verification by the parent that termination of the parent-child relationship is in the child's best interest; (4) designation of the person or agency to serve as the child's managing conservator; (5) a statement that the parent has been informed of parental rights and duties; and (6) a statement that the termination is irrevocable if that is (as here) the case.[3] The parents' affidavits complied with all statutory directives. For example, as to the requirement that the parent be informed of her parental rights and duties, the affidavit sets out 11 such rights and duties.[4] As to the irrevocable nature of the affidavits, they state:

7. Affidavit of Relinquishment is Irrevocable
I fully understand that this Affidavit of Relinquishment of Parental Rights, once signed, is and shall be forever final, permanent, and irrevocable. I fully understand that if I change my mind at any time, I can never force the agency to destroy, revoke, or return this affidavit. I also understand that I will no longer be informed of any hearings or proceedings or decrees affecting the child(ren) named in this Affidavit, including any termination suit.

         This case concerns the interplay of two Family Code sections: 161.001(b) (governing grounds for termination orders) and 161.211 (governing attacks on termination orders).

         The grounds-for-termination provision, section 161.001(b), states:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has: . . . .
. . . .
(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;
. . . . and
(2) that the termination is in the best interest of the child.

         The parents emphasize that section 161.001(b) requires both a ground for termination set out in subsection (b)(1) and a separate finding under subsection (b)(2) that termination is in the child's best interest. We agree that the statute is unmistakably written in the conjunctive and requires both a statutorily-compliant affidavit and a finding that termination is in the child's best interest. But the trial court made the required best-interest finding, expressly finding "by clear and convincing evidence" in its order of ...


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