In re D.E.H.

Decision Date03 December 2009
Docket NumberNo. 2-07-347-CV.,2-07-347-CV.
Citation301 S.W.3d 825
PartiesIn the Interest of D.E.H., a Minor Child.
CourtTexas Court of Appeals

Dean Swanda & Kellye Swanda, Swanda & Swanda, P.C., Arlington, TX, Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Chief Appellate Section, Shelly Messerli, Meegan Miloud, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for Appellee.

Before the court en banc.

OPINION ON EN BANC RECONSIDERATION

DIXON W. HOLMAN, Justice.

A majority of the court ordered en banc reconsideration of the court's prior opinion. See Tex.R.App. P. 49.7. We withdraw our opinion and judgment of December 4, 2008, and substitute this opinion and judgment in their place.

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.1 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.

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.2 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."3 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.

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) ("To have preserved error, a party's argument on appeal must comport with its argument in the trial court."), cert. denied, 549 U.S. 1052, 127 S.Ct. 666, 166 L.Ed.2d 514 (2006); 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), cert. denied, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004).

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.

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, Tex. Fam.Code Ann. § 161.211(c) (Vernon 2008); see In re M.A.W., 31 S.W.3d 372, 375-76 (Tex.App.-Corpus Christi 2000, no pet.), 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 purporting to relate 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. This is made further apparent by examining the meanings of fraud, duress, or coercion.

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.2009) (setting forth definition of "coercion"); B.A.L. v. Edna Gladney Home, 677 S.W.2d 826, 831 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e) (stating that the "essence of an `undue...

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