Opinion
No. 07-17-00298-CV
01-09-2018
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
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Mother appeals the termination of her parental rights to her children, A.G., A.R., and K.C. 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.
To protect the children's privacy, we will refer to the appellant as "Mother" and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b).
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. The trial court designated the Department as the managing conservator of the children.
The father of K.C. also signed an affidavit relinquishing his rights to K.C. He is not a party to this appeal.
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 parental rights on an unenforceable promise. Nonetheless, Mother contends that the affidavit was involuntary.
Before reaching the merits of Mother's contention, we must consider whether she has properly preserved the issue for appeal. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. TEX. R. APP. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushnell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g); In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.).
We do not find any indication in the record that Mother raised in the trial court her complaint that she did not voluntarily sign the affidavit of relinquishment. For example, Mother did not file a motion for new trial or present any evidence in support of her claim.
By failing to assert her claim in the trial court, Mother failed to preserve error on this issue. See TEX. R. APP. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve argument for appellate review, including constitutional arguments, party must present it to trial court by timely request, motion, or objection, state specific grounds therefor, and obtain ruling). We may not consider a complaint that was not ruled on by the trial court. As explained by the Texas Supreme Court, "allowing appellate review of unpreserved error would undermine the Legislature's intent that cases terminating parental rights be expeditiously resolved, thus 'promoting the child's interest in a final decision and thus placement in a safe and stable home.'" In re L.M.I., 119 S.W.3d at 711 (quoting In re B.L.D. & B.R.D., 113 S.W.3d 340, 353 (Tex. 2003)).
Because Mother's argument was not presented to the trial court below, any error was not preserved and we must overrule her first issue. Issue 2
In her second issue, Mother claims that her affidavit of voluntary relinquishment of parental rights was obtained due to the Department's fraud and/or misrepresentation. Mother contends that this fraud or misrepresentation occurred when the Department represented to her that her mother, G.R., would be entitled to a placement hearing, and then subsequently moved to strike G.R.'s petition in intervention, thereby repudiating its agreement to consider G.R. as a placement.
As with her first issue, Mother failed to assert this claim in the trial court. Because she did not preserve error, we must therefore overrule this issue. We note, however, that the record reflects that the complained-of motion to strike filed by the Department is actually a response to a petition in intervention filed by M.C., the paternal grandmother of K.C. The Department's response to M.C.'s petition in intervention has no bearing on the Department's agreement to set a placement hearing for G.R.
Mother's second issue is overruled.
Conclusion
Having overruled both of Mother's issues, we affirm the trial court's judgment.
Judy C. Parker
Justice