In re Interest of K.L.

• Decision Date: 31 May 2012
• Docket Number: No. 09–11–00083–CV.,09–11–00083–CV.
• Citation: 442 S.W.3d 396
• Parties: In the Interest of K.L.
• Court: Texas Court of Appeals

442 S.W.3d 396

In the Interest of K.L.

No. 09–11–00083–CV.

Court of Appeals of Texas, Beaumont.

Submitted on March 16, 2012.

Decided May 31, 2012.

Kathleen E. Matheu, Michael L. Davis, Kerry Carl Hagan, Kerry C. Hagan, P.C., Coldspring, TX, for Appellants.

Luisa P. Marrero, Office of General Counsel, Austin, TX, for Appellee.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

MEMORANDUM OPINION

HOLLIS HORTON, Justice.

This is a parental-rights termination case. Following a jury trial, the trial court signed a judgment terminating the parental rights of appellants M.L. (Mother) and J.A.J. (Father) to their minor child, K.L. Based on the jury's findings, the trial court appointed the Texas Department of Family and Protective Services (the Department) to serve as K.L.'s sole managing conservator. Mother, Father, and an intervenor, A.T. (Grandmother), have each appealed from the trial court's judgment.

Background

In August 2009, shortly after receiving a report that K.L. had sustained a serious injury while at home, the Department initiated proceedings to remove K.L. from Grandmother's home. Before her removal, K.L. resided with Grandmother. Shortly before K.L.'s injury, Grandmother, her two sons, and K.L. moved into a one-bedroom loft apartment. When they moved to the apartment, K.L. was two years old, and neither of Grandmother's sons were yet fifteen. Grandmother left the three children without adult supervision in the apartment to shop for groceries. While Grandmother was gone, K.L. fell from the apartment's interior stairs to the tile floor below, suffering several fractures to her jaw

. At the time, the apartment's interior stairs did not have rails.

Following a trial in January 2011, the jury found four separate grounds to support terminating Mother's parental rights, the jury also found that terminating Mother's rights was in K.L.'s best interest. See Tex. Fam.Code Ann. § 161.001(1)(D), (E), (K), (O) and (2) (West Supp.2011).¹ The jury also terminated Father's parental rights, and found that terminating his rights was in K.L.'s best interest. Id. § 161.001(1)(D), (N), (O) and (2). The jury named the Department as K.L.'s sole managing conservator, and found that Grandmother should not be named as K.L.'s possessory conservator.

Relinquishment

On appeal, Mother and Grandmother challenge the sufficiency of evidence to support the jury's finding that Mother voluntarily relinquished her parental rights. Mother and Grandmother also challenge several of the trial court's evidentiary rulings. Before we address whether there is sufficient evidence to support the jury's findings, we address Mother's and Grandmother's claims that challenge the trial court's rulings admitting certain evidence, as these rulings relate to the evidence supporting the jury's findings on the relinquishment issues.

Four of Mother's fifteen issues and Grandmother's first issue address the validity of Mother's June 2010 affidavit and whether it was properly admitted at trial.² On June 4, 2010, Mother signed an affidavit of relinquishment, and the trial court admitted the affidavit during trial. See Tex. Fam.Code Ann. § 161.001(1)(K) (The court may order termination of the parent-child relationship if the court finds 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[.]”).

Mother and Grandmother argue that Mother's June 2010 affidavit was inadmissible because the jurat accompanying the affidavit does not assert that the information in the affidavit is true and correct. See id. § 161.103 (West 2008) (providing that certain provisions are to be included in an affidavit of voluntary relinquishment of parental rights). During the trial, Mother and Grandmother objected to the Department's request to admit the June 2010 affidavit on this basis, but the trial court overruled their objections. Mother and Grandmother also argue that the Department failed to prove, by clear and convincing evidence, that Mother's June 2010 affidavit contains the verification they contend Section 161.103 of the Texas Family Code requires. See id. The verification accompanying Mother's affidavit does recite that it was signed under oath in the presence of witnesses.

Generally, “[a]n affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient.” Humphreys v. Caldwell, 888 S.W.2d 469, 470–71 (Tex.1994). “However, where the affidavit reflects that it is based on personal knowledge and it is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct.” Franks v. Brookshire Bros., Inc., 986 S.W.2d 375, 378 (Tex.App.-Beaumont 1999, no pet.).

Mother's June 2010 affidavit recites that Mother appeared and swore under oath to various facts as denoted by the paragraphs in the affidavit that are in quotation marks. It is obvious that the facts within the quotation marks of the affidavit are the parts that Mother verified as being true and correct. We conclude that Mother has sworn to the truth of the facts found within the quotation marks of her June 2010 affidavit, as required by section 161.103 of the Family Code. We hold that Mother attested to the facts in her affidavit that are in quotations, so it is a verified affidavit; therefore, the trial court did not err in overruling the objections that Mother and Grandmother made to Mother's June 2010 affidavit.

Mother and Grandmother also challenge the sufficiency of the evidence supporting Mother's termination, arguing that the jury could not form a firm conviction that Mother had voluntarily relinquished her parental rights from the evidence before the jury. In resolving the issues, the jury chose to reject the argument that Mother did not understand the consequences resulting from a decision to sign the affidavit of relinquishment. To give appropriate deference to the jury's conclusions in a legal sufficiency review, we “must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so[ ]” and “disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). In a factual sufficiency review, we “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id. Under a factual sufficiency standard, the findings are sufficient unless, based on the entire record, “the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction[ ]” that the fact at issue was true. Id.

In this trial, the jury heard testimony that is inconsistent with Mother's claim that she did not voluntarily relinquish her parental rights. Stephanie Miller, a licensed professional counselor, treated Mother on a regular basis from November 2009 through November 2010. According to Miller, she and Mother discussed the prospect of Mother relinquishing her parental rights before Mother signed the June 2010 affidavit. At numerous sessions, according to Miller, she and Mother discussed the advantages and disadvantages of terminating Mother's parental rights. During these sessions, Mother told Miller that she did not feel that she could raise K.L. by herself, but, on the other hand, Mother also stated that she was very bonded with K.L. and wanted to be able to spend time with her. As of their session in early June 2010, the one nearest the date that Mother executed the affidavit at issue, Mother “was leaning towards relinquishing.” Miller testified:

I felt like it was my job to help her look at the pros and cons, not to lead her to any certain direction, and she appeared to be able to weigh those pros and cons. And the last session I had, she was leaning towards relinquishing her rights, and she seemed to have a good grasp on that. She didn't seem to be confused.

Miller's progress note of June 1, 2010, states that Mother “indicated that she does not believe that she can properly care for her child and also does not believe that her mother would do any better job raising her child based on her own childhood experiences.” Miller's June 1, 2010 progress note also states that Mother indicated that she was leaning toward relinquishing her parental rights because the foster family where K.L. was currently living “would be able to provide her with a better life” than she could. In the same progress note, Miller noted: “I am impressed with [Mother's] maturity and insight into the situation.” Finally, Miller's note states that Grandmother “has created so much chaos and has not been a source of support for [Mother] during this CPS case.” Miller's progress note of June 8, 2010, reflects that Mother told Miller that she had approached the Department supervisor before the hearing and stated that she wanted to go forward with the termination. During trial, Miller also testified that despite Mother's mental handicap, she had good insight, loved K.L., but knew “that she couldn't take care of her by herself at this point in her life.” Miller's testimony and progress notes generally support the jury's determination that Mother's decision to terminate her rights to K.L. was a decision that Mother understood and made voluntarily.

In reaching its conclusion that Mother's decision relinquishing her parental rights was voluntary, the jury apparently chose to give little weight to Grandmother's guardianship application and the decision of the San Jacinto County Judge to grant the application. Reasonable jurors can also reasonably decide to ignore some of the testimony of the...