Opinion
No. 02-07-347-CV
Delivered: December 4, 2008.
Appeal from the 323rd District Court of Tarrant County.
PANEL: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
CAYCE, C.J. concurs without opinion.
LIVINGSTON, J. filed a dissenting opinion.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant E.L. appeals the termination of her parental rights to her daughter, D.E.H. In a single point, she argues that she involuntarily executed the affidavit relinquishing her parental rights to D.E.H. and that the trial court abused its discretion by denying her motion for new trial. We will affirm.
D.E.H. was born in February 2006 to E.L. and A.H. Appellee Texas Department of Family and Protective Services ("TDFPS") received a referral sometime in September 2006 regarding a concern of physical abuse to D.E.H. D.E.H. had been taken to Cook Children's Medical Center, where it was determined that she had two fractures to each femur, four fractures to each tibia, multiple rib fractures in multiple stages of healing, a liver contusion, and a spleen laceration — injuries consistent with child abuse. The bone in her hip area had also been completely snapped off of her growth plate.
A TDFPS supervisor visited the hospital and gathered information from hospital staff, family members, and friends. A.H. admitted to punching and slapping D.E.H. on the back, twisting her leg, and shaking her and squeezing her on multiple occasions. A.H. admitted to an investigator that he caused D.E.H.'s injuries when he became irritated and "lost control" after D.E.H. started crying at night; on about three separate occasions, he grabbed her, shook her, and punched her in the stomach. TDFPS accordingly found reason to believe that D.E.H. had been physically abused by E.L. and A.H., negligently supervised by E.L., and medically neglected by both E.L. and A.H. TDFPS removed D.E.H. from E.L.'s and A.H.'s custody and care and placed her in foster care with Appellees S.G. and B.G., reasoning that she would be in extreme danger if returned to her parents' care.
In September 2006, TDFPS filed its petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship. On September 10, 2007, E.L., her attorney, and a few of E.L.'s family members participated in a mediation with the foster parents. E.L. executed an affidavit relinquishing her parental rights to D.E.H. at some point during the mediation. She also entered into a mediated settlement agreement with the foster parents, which set forth a post-termination contact schedule for her and D.E.H.
The trial court subsequently signed an order on September 19, 2007, terminating the parent-child relationship between E.L. and D.E.H. The trial court found by clear and convincing evidence that E.L. had executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by chapter 161 of the family code and that termination of E.L.'s parental rights to D.E.H. is in D.E.H.'s best interest. The order appointed TDFPS as permanent managing conservator of D.E.H. and the foster parents as possessory conservators of D.E.H.
The trial court also terminated A.H.'s parent-child relationship with D.E.H.
E.L. filed a motion for new trial and notice of points of appeal on October 4, 2007. She filed her first amended motion for new trial and notice of points of appeal five days later, listing her "points of appeal" as follows:
a. Extreme coercion by other parties to the suit, both through promises and threats, was used to induce Movant to sign the affidavit of relinquishment.
b. The mother was placed under great duress by other parties to the suit, both through promises and threats, in order to induce her to sign the affidavit of relinquishment.
c. Fraud in the inducement was used to convince Movant that she had no choice but to sign the affidavit of relinquishment.
On October 18, 2007, the trial court held a hearing on E.L.'s motion for new trial, which it denied.
In her sole point, E.L. argues that the trial court abused its discretion by denying her motion for new trial because she established that she did not voluntarily execute the affidavit of relinquishment that underlies the trial court's termination order. She contends that she executed the relinquishment affidavit in exchange for the rule 11 agreement with the foster parents (the prospective parents) providing for post-termination visits between her and D.E.H. E.L. argues that the visitation agreement is unenforceable for its failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062 and that she would not have signed the affidavit of relinquishment "but for the visitation agreement." Consequently, E.L. argues that she did not voluntarily sign the affidavit of relinquishment because she executed it in exchange for a legally unenforceable promise — the rule 11 post-termination visitation agreement.
Although E.L. lists three "Issues Presented," her single "Point of Error" encompasses each issue.
Section 161.206(b) provides that "[a]n order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides." Tex. Fam. Code Ann. § 161.206(b) (Vernon Supp. 2008). Section 161.2061(a) reads as follows:
If the court finds it to be in the best interest of the child, the court may provide in an order terminating the parent-child relationship that the biological parent who filed an affidavit of voluntary relinquishment of parental rights under Section 161.103 shall have limited post-termination contact with the child as provided by Subsection (b) on the agreement of the biological parent and the Department of Protective and Regulatory Services.
Id. § 161.2061(a) (Vernon Supp. 2008). Section 161.2062(a) provides that "[a]n order terminating the parent-child relationship may not require that a subsequent adoption order include terms regarding limited post-termination contact between the child and a biological parent." Id. § 161.2062(a) (Vernon Supp. 2008).
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, if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). The complaint on appeal must be the same as that presented in the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex.App.-Houston [14th Dist.] 2005, pet. denied), cert. denied, 127 S. Ct. 666 (2006) ("To have preserved error, a party's argument on appeal must comport with its argument in the trial court."); Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 151 (Tex.App.-Amarillo 2001, pet. denied) ("[G]iven that the contention before us does not comport with the objection raised below, that before us was and is waived."). An appellate court cannot reverse based on a complaint not raised in the trial court. Banda, 955 S.W.2d at 272. "[A]llowing appellate review of unpreserved error would undermine the Legislature's intent that cases terminating parental rights be expeditiously resolved." In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003).
E.L.'s argument that she did not voluntarily sign the affidavit of relinquishment because the rule 11 agreement regarding post-termination contact is unenforceable for failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062 does not comport with the arguments that she made in her original motion for new trial, in her amended motion for new trial, or at the hearing on her motion for new trial. Specifically, E.L. alleged coercion, duress, fraud in the inducement, and ineffective assistance of counsel as the grounds for a new trial in her original motion for new trial. With the exception of the ineffective assistance ground, her amended motion for new trial listed the same grounds.
At the hearing on her motion for new trial, she testified that it was her understanding that she would continue to be able to visit D.E.H. if she signed the affidavit relinquishing her parental rights to D.E.H.; otherwise, she would lose her rights to D.E.H. Although "it was [her] decision" to sign the affidavit and that she "more or less" understood what was written therein, she confirmed that she was never threatened during the mediation, but she testified that she felt "pressured" to sign the affidavit. E.L. further testified that she felt like she was "forced" to sign the relinquishment. According to E.L.'s counselor, E.L. felt "distressed," "pressured," and as though her choices were limited to either never seeing D.E.H. again or signing the affidavit of relinquishment. Consistent with the grounds listed in her motion for new trial, the evidence thus focused on duress and coercion.
At no point during the hearing on her motion for new trial did E.L. argue — nor is it apparent that she was attempting to argue — that her execution of the affidavit of relinquishment was involuntary because the rule 11 agreement is unenforceable for failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062. There is a reason for this. A party seeking to overturn a termination order based on an unrevoked affidavit of relinquishment is limited in her attack to arguing fraud, duress, or coercion in the execution of the affidavit. See Tex. Fam. Code Ann. § 161.211(c) (Vernon 2002). Hence the fraud, duress, and coercion grounds specifically set forth in E.L.'s amended motion for new trial and the testimony at the hearing relating to duress and coercion. E.L.'s argument on appeal, however, is that she did not voluntarily sign the affidavit of relinquishment because the Rule 11 agreement is unenforceable. She does not argue that fraud, duress, or coercion played any role in her signing of the affidavit of relinquishment.
Coercion occurs if someone is compelled to perform an act by force or threat. Arnett v. Arnett, No. 03-05-00056-CV, 2008 WL 1912058, at *1 (Tex.App.-Austin May 2, 2008, pet. filed) (mem. op.); see also Tex. Penal Code Ann. § 1.07(a)(9) (Vernon Supp. 2008) (setting forth definition of "coercion"). Duress occurs when, due to some kind of threat, a person is incapable of exercising her free agency and unable to withhold consent. Arnett, 2008 WL 1912058. Fraud may be committed through active misrepresentation or passive silence and is an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking of an undue and unconscientious advantage. Id.
E.L.'s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because she was compelled to perform some act by force or threat. E.L.'s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because she was incapable of exercising her free agency and was unable to withhold consent due to some kind of threat. E.L.'s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because there was some active misrepresentation or passive silence which was an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed that caused her injury or caused her to be unduly and unconscientiously taken advantage of. Thus, E.L.'s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she involuntarily signed the affidavit of relinquishment because of fraud, duress, or coercion.
Because E.L.'s appellate argument does not comport with the grounds asserted in her amended motion for new trial or the testimony at the hearing on her motion for new trial, she has waived her complaint for appellate review. See Tex. R. App. P. 33.1(a)(1); L.M.I., 119 S.W.3d at 710-12 (holding that appellant failed to preserve for appeal complaints regarding signed affidavits relinquishing parental rights). Accordingly, we overrule E.L.'s sole point and affirm the trial court's judgment.
DISSENTING OPINION
Repeatedly throughout the motion for new trial hearing, appellant, E.L., testified that she would not have signed the affidavit of relinquishment as required by the mediated settlement agreement if she had known that the promised visitation would not continue. For this reason, I respectfully dissent to the plurality opinion.
The plurality opinion states that appellant has waived her complaint on appeal because it was not presented at trial and does not comport with any complaint she did present at trial. In particular, the plurality opinion contends that appellant did not raise the Rule 11 and mediated settlement agreements' failure to comply with the family code at trial. See Tex. Fam. Code Ann. § 161.2061(a) (Vernon Supp. 2008). Obviously, appellant could not object or complain until she actually saw that the Order of Termination completely failed to incorporate the terms of the mediated settlement agreement or the Rule 11 agreement into it. See In re D.R.L.M., 84 S.W.3d 281, 297 (Tex.App.-Fort Worth 2002, pet. denied) (holding mother could not have pleaded in trial court the involuntariness of her affidavit on the ground that she believed the trial court was required to follow her choice of managing conservator and therefore had not waived right to challenge voluntariness of affidavit). A review of the amended motion for new trial and the reporter's record from the hearing on the motion for new trial show more clearly what occurred.
The amended motion for new trial attacks quite clearly the sole basis for the termination: appellant's affidavit of relinquishment. The motion challenges the voluntariness of the affidavit, a fundamental prerequisite for termination granted solely on this basis. See Tex. Fam. Code Ann. § 161.001(1)(K), (2) (Vernon Supp. 2008). The voluntariness of her relinquishment is appellant's sole complaint. The motion broadly claims coercion "through promises and threats" to induce appellant to sign the affidavit of relinquishment, along with fraud in the inducement to convince appellant she had no choice but to sign the affidavit. While it does not mention the mediated settlement agreement's failure to comply with specific provisions of the Texas Family Code, it clearly mentions promises, threats, or fraud being involved.
Furthermore, as explained by the plurality, appellant signed two documents at the end of the mediated settlement conference: a mediated settlement agreement and an attached Rule 11 agreement, which was properly filed as part of the record in the termination proceeding. The mediated settlement agreement and the Rule 11 agreement clearly provide for appellant's post-termination visitation with her daughter. Additionally, the agreements state that it is the intent of the parties that the agreements shall be enforceable under sections 6.602 and 153.0071 of the Texas Family Code, both of which provide for the enforceability of such agreements as judgments in court. See id. §§ 6.602, 153.0071 (Vernon 2006 and Supp. 2008). The agreements also clearly contemplate the preparation of additional documents to effect the agreements and require the parties' future cooperation in the preparation and execution of such documents. Moreover, throughout the hearing on appellant's motion for new trial, appellant continuously and repeatedly testified to her main complaint, without objection: that she would not have signed any affidavit of relinquishment and would have gone to trial if she had not been given the promises of the continuous right to see and visit her daughter in the future.
For example, at the beginning of her direct examination, appellant testified without objection, "The agreement wasn't done by my own will. The agreement, I did it because they told me, whether I signed or not, they were going to take my rights." And she continued, "[T]hey told me about the paper, it says that with this paper, neither the [foster parents] or me could break the plan that we made," again without objection. And again, on redirect, appellant testified, "[I believed] that the [mediated settlement] agreement was going to be held. It was going to be in place forever."
Furthermore, the mediated settlement agreement says that the parties will appear in court "to present evidence and secure rendition of judgment in accordance with [it]" and that "EITHER PARTY SHALL BE ENTITLED TO JUDGMENT ON THIS AGREEMENT UNDER THE PROVISIONS OF SECTION 153.0071 OR SECTION 6.602 OF THE TEXAS FAMILY CODE."
Additionally, the record shows that appellant is non-English speaking. She was not provided an interpreter prior to the hearing on the motion for new trial, although her trial counsel and the Department's caseworker were Spanish-speaking. However, a careful reading of the record shows — even with this help — the obvious problems with the language barrier and counsels' ability to inform or examine appellant. Appellant had to rely on what her attorney told her because she could not understand what people were saying when they testified. The record also shows that appellant had numerous difficulties in terminology, both legal and otherwise.
For example, appellant testified on cross-examination that no one read the entire English Affidavit of Relinquishment to her: "Well, they explained it to me, but it wasn't read to me." No one was telling appellant what was being asked or said during questions in the hearing. And in support of her claim of pressure or coercion, appellant called her therapist to the stand, who said that appellant telephoned her during the mediation process because she was "very distressed" and "pressured" to sign the mediated agreement or risk losing seeing her child forever. Her therapist, who spoke Spanish, said that appellant had a difficult time understanding English, especially in terms of the court or legal system. Ultimately, in the therapist's opinion, appellant signed the agreement because she thought it was irrevocable and would ensure her lifetime visitation.
The Law
"Implicit in the family code is the requirement that the affidavit of voluntary relinquishment be voluntarily executed." D.R.L.M., 84 S.W.3d at 296. An involuntarily executed affidavit is a complete defense to a termination decree based solely on such an affidavit. Id. (citing Vela v. Marywood, 17 S.W.3d 750, 759 (Tex.App.-Austin 2000), pet. denied, 53 S.W.3d 684 (Tex. 2001)). The proponent of the voluntary affidavit of relinquishment has the burden to establish by clear and convincing evidence that the affidavit was executed in accordance with family code section 161.103. Tex. Fam. Code Ann. § 161.103 (Vernon Supp. 2008); D.R.L.M., 84 S.W.3d at 96 (citing In re V.R.W., 41 S.W.3d 183, 190 (Tex.App.-Houston [14th Dist.] 2001, no pet.), and Vela, 17 S.W.3d at 758). Previously, we have recognized that evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with family code section 161.103 is prima facie evidence of its validity. See D.R.L.M., 84 S.W.3d at 296. The opponent of the affidavit may set it aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. Id. (citing Tex. Fam. Code Ann. § 161.211(c) (Vernon 2002)).
Recently, however, this court has noted a shift in the way some Texas Supreme Court's justices would handle reviews of terminations based upon a challenge to the voluntariness of an affidavit of relinquishment. See In re R.B., 225 S.W.3d 798, 804 (Tex.App.-Fort Worth 2007, no pet.). In R.B., we noted that the supreme court "has opined that both the burden and standard of proof for setting aside an affidavit of relinquishment should be `reformulated.'" Id. at 804 (citing In re L.M.I., 119 S.W.3d 707 (Tex. 2003), cert. denied, 541 U.S. 1043 (2004)). In L.M.I., the plurality noted that when there is an issue on the voluntariness of an affidavit of relinquishment, due process requires that the proponent of the affidavit retain the burden to prove, by clear and convincing evidence, that it was executed voluntarily. Id. (citing L.M.I., 119 S.W.3d at 715-16 (Wainwright, J., concurring), 720 (Owen, J., concurring and dissenting), 739 (Hecht, J., dissenting)). According to L.M.I. — and likewise R.B., in which we looked with favor on the analysis in L.M.I., but declined to adopt it as unnecessary,
The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires that before a state can irrevocably sever the rights of a parent, the evidence of grounds for termination must at least be clear and convincing. Accordingly, when the basis for termination is an affidavit of relinquishment, there must be clear and convincing evidence that the waiver was knowing, intelligent, and voluntary.
L.M.I., 119 S.W.3d at 716 (Owen, J., concurring and dissenting) (citations omitted); R.B., 225 S.W.3d at 804-05. In other words, the plurality would not shift the burden of proof to the opponent of the affidavit — usually a parent — to show that the affidavit was not executed voluntarily, and instead would have the clear and convincing burden to prove the affidavit's voluntariness remain with the proponent of the affidavit. Neither our court in R.B. nor the Dallas court in N.P.T. specifically adopted the standard because it was unnecessary to the disposition of those cases — both courts held that the proponent of the affidavit would have been successful under either standard. R.B., 225 S.W.3d at 805; N.P.T., 169 S.W.3d at 680. Here, however, the answer is less clear. For that reason, we should adopt the L.M.I. standard in this case to ensure that all parents' due process rights are protected.
We did, however, indicate agreement with the Dallas Court of Appeals's acknowledgment in N.P.T. that "there is considerable merit in applying" the standard proposed by the supreme court plurality in L.M.I. See R.B., 225 S.W.3d at 805 n. 33 (citing In re N.P.T., 169 S.W.3d 677, 680 (Tex.App.-Dallas 2005, pet. denied)).
I would hold that appellant timely and properly preserved her complaint as to the voluntariness of the affidavit of relinquishment by raising the issue in her motion for new trial, that she offered sufficient evidence to show the lack of voluntariness in the execution of the affidavit because the terms of the mediated settlement aqgreement and Rule 11 agreement were not properly incorporated into the Order on Termination as agreed, and that we should retain and ensure the application of the clear and convincing burden of proof on the proponents of the affidavit in conformity with the L.M.I. plurality. Therefore, I would further hold that the trial court abused its discretion in denying appellant's motion for new trial, reverse the termination order, and remand this case for a new trial.