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In re A.G.

Court of Appeals of Texas, Seventh District, Amarillo

January 9, 2018

IN THE INTEREST OF A.G., A.R., AND K.C., CHILDREN

         On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2011-559, 868, Honorable William R. Eichman II, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Judy C. Parker Justice

         Mother appeals the termination of her parental rights to her children, A.G., A.R., and K.C.[1] In two issues, Mother argues that her execution of an affidavit relinquishing her parental rights to her three children was involuntary and that the affidavit was obtained as a result of fraud or misrepresentation. For the reasons set forth below, we affirm the judgment of the trial court.

         Background

         In May of 2016, the Department of Family and Protective Services sent a representative to investigate a report of domestic violence in the home where Mother lived with her children and her boyfriend, who is the father of K.C. Soon thereafter, the Department removed the children from Mother's care. In June, the Department was granted temporary managing conservatorship over A.G., A.R., and K.C. The Department eventually determined that reunification of the children with Mother was not feasible, and filed a petition to terminate the parent-child relationship between Mother and the children.

         After a bench trial, the presiding associate judge terminated Mother's parental rights on June 27, 2017. Mother then requested a de novo jury trial. The de novo jury trial was set for July 17 in district court. That morning, Mother signed an irrevocable affidavit of voluntary relinquishment of her parental rights. Mother and the children's foster parent also entered "Stipulations and Agreement, " a document setting forth terms for future contact between Mother and the children. Mother was represented by counsel at trial and when she signed the affidavit and agreement. The trial court signed an order terminating Mother's parental rights based on its findings that Mother voluntarily executed the affidavit and termination was in the best interest of the children.[2] The trial court designated the Department as the managing conservator of the children.

         Mother then filed this appeal. She argues that her execution of the affidavit of voluntary relinquishment was rendered involuntary because it was signed in exchange for unenforceable promises in the post-termination visitation agreement, and further, that she signed the affidavit due to fraud or misrepresentation.

         Analysis

         Under the Texas Family Code, the trial court may terminate parental rights upon a finding, by clear and convincing evidence, that the parent has "executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter, " and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2) (West Supp. 2017). The express requirements of such an affidavit of relinquishment are identified in section 161.103. Id. § 161.103 (West Supp. 2017). Implicit in the Family Code is the requirement that the affidavit of voluntary relinquishment be voluntarily executed. Neal v. Tex. Dep't of Human Servs., 814 S.W.2d 216, 218 (Tex. App.-San Antonio 1991, writ denied). An involuntarily executed affidavit is a complete defense to a termination decree based solely on such an affidavit. In re D.R.L.M., 84 S.W.3d 281, 296 (Tex. App.-Fort Worth 2002, pet. denied).

         After the proponent of an affidavit demonstrates that it complies with the requirements of Texas Family Code § 161.103, the party opposing the affidavit must prove, by a preponderance of the evidence, that it was executed as a result of "fraud, duress, or coercion" for the affidavit to be set aside. Tex. Fam. Code Ann. § 161.211(c) (West 2014); see In re D.E.H., 301 S.W.3d 825, 830 (Tex. App.-Fort Worth 2009, pet. denied) (en banc).

          Issue 1

         In her first issue, Mother contends that her affidavit of relinquishment was involuntary because it was executed in exchange for unenforceable promises. Specifically, she argues that the "Stipulations and Agreement, " contemplating post-termination contact between Mother and the children, is unenforceable.

         Mother's affidavit of relinquishment meets the requirements of section 161.103 of the Texas Family Code, which is prima facie evidence of its validity. See In re R.B., 225 S.W.3d 798, 804 (Tex. App.-Fort Worth 2007, no pet.). Moreover, neither the affidavit nor the record of the termination hearing establishes that Mother conditioned the voluntary termination of her ...


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