In re K.D.

• Citation: 471 S.W.3d 147
• Decision Date: 29 July 2015
• Docket Number: No. 06–15–00012–CV,06–15–00012–CV
• Parties: In the Interest of K.D., a Minor Child
• Court: Court of Appeals of Texas

471 S.W.3d 147

In the Interest of K.D., a Minor Child

No. 06–15–00012–CV

Court of Appeals of Texas, Texarkana.

Submitted: June 3, 2015

Decided: July 29, 2015

Alex Tyra, Law Office of Alex Tyra, PC, Longview, TX, for appellant.

Rebecca L. Safavi, Office of General Counsel, Austin, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

The Texas Department of Family and Protective Services (the Department) filed a petition seeking to terminate Mother's parental rights to her fourteen-year-old daughter, K.D. A trial court “may order termination of the parent-child relationship if the court finds by clear and convincing evidence[ ] (1) that the parent has ... executed ... an ... irrevocable affidavit of relinquishment of parental rights” and “(2) that termination is in the best interest of the child.” Tex. Fam. Code Ann. § 161.001(1)(K), (2) (West 2014). As a result of a mediated settlement, Mother executed an irrevocable affidavit of voluntary relinquishment of her parental rights (the Affidavit) and agreed that termination of her parental rights was in K.D.'s best interest. The trial court entered judgment in accordance with the mediated settlement agreement (the MSA).

On appeal from the termination of her parental rights, Mother argues that both the MSA and the Affidavit were involuntarily executed because they were procured as a result of fraud. She also contends that the evidence is insufficient to support the trial court's finding that termination of her parental rights was in K.D.'s best interest. We find that the Affidavit was voluntarily executed and was not procured by fraud. We decline to consider whether fraud is a defense to a mediated settlement agreement under Section 153.0071 of the Texas Family Code, but because Mother would have to rely on the same facts we find insufficient to prove that the Affidavit was procured by fraud, we likewise find that the MSA is valid and enforceable between the parties. Finally, we conclude that the evidence is factually insufficient to support the trial court's finding that termination of Mother's parental rights was in K.D.'s best interest.

Accordingly, we affirm that part of the trial court's judgment finding that Mother's Affidavit is valid and enforceable against Mother. We reverse that portion of the trial court's judgment finding that termination of Mother's parental rights was in K.D.'s best interest and remand the case to the trial court for a new hearing on whether termination is in K.D.'s best interest.

I. Factual and Procedural Background

A. Mother Entered Into a Mediated Settlement Agreement and an Affidavit of Relinquishment

The Department filed its petition on January 13, 2014. On that same day, Mother signed a document in which she voluntarily consented to the temporary removal of K.D. from the home. On September 22, 2014, K.D. started living with her aunt in Houston, Texas, and was placed in a larger school with better facilities.¹ From the beginning of K.D.'s placement, the Department's representatives told Mother that K.D. was happy in her placement, that her grades were excellent, and that she was participating in counseling with her school counselor. At a permanency hearing on November 5, 2014, the Department's representatives testified to the same information. They also added information that K.D. was making straight A's at school and that she was really enjoying her placement. They also testified that K.D. did not want to have face-to-face meetings with Mother. On December 30, 2014, Mother and the Department mediated this case before Bonnie Leggat Hagan. None of the prior information and testimony presented to Mother and the trial court about K.D.'s status was contradicted at the mediation. Based upon this information, Mother entered into the MSA. In the MSA, Mother agreed to the following terms:

1. Mother ... agrees to execute a voluntary relinquishment of parental rights, a copy of which is attached hereto and incorporated by reference. [Mother] further agrees that the Department of Children's and Protective Services [sic] shall present the affidavit of relinquishment be [sic] to the judge on the date set for the trial of this case and request an order terminating the parental rights pursuant thereto.

2. Mother agrees that termination of her parental rights is in the best interest of the child.

3. Attorney for Mother and Mother agree to withdraw the case from the jury setting forthwith.

Mother also executed an irrevocable affidavit of voluntary relinquishment of her parental rights to K.D.—the Affidavit—in favor of the Department. By signing the Affidavit, Mother made the following agreement: “This Affidavit of Relin quishment of Parental Rights is and shall be final, permanent, and irrevocable. I fully understand that, if I change my mind at any time, I can never force the agency to destroy, revoke or return this affidavit.” In the Affidavit, Mother (1) swore that she had been informed of and understood her parental rights and duties; (2) stated, “I understand that by naming the [Department] as managing conservator in this Affidavit of Relinquishment, I give up all my parental rights and grant them to the Department and/or to the adoptive parents with whom my child may be placed”; (3) agreed that “Termination of the parent-child relationship is in the best interest of the child”; (4) “freely, voluntarily, and permanently [gave] and relinquish[ed] to the Department all [her] parental rights and duties”; and (5) “consent[ed] to the placement of the child for adoption.” The Affidavit was incorporated into the MSA. Upon conclusion of the mediation, Mother texted K.D. that she (Mother) was on dialysis and that if she died, she did not want K.D. to attend her funeral.

B. Mother Claims the Affidavit and the MSA Were Procured by Fraud

Two days after the mediation was concluded, K.D. ran away from her placement home and visited Mother. K.D. told Mother she suspected she (K.D.) was pregnant. Mother also learned that K.D. was associating with an alleged murder suspect, and she called K.D.'s caseworker to report that fact and to request that the caseworker perform a welfare check on K.D. Mother then contacted the school K.D. attended during her placement and learned that contrary to the information provided to her at court and at the mediation, K.D. had never met with the school counselor and was failing Spanish. Mother moved to set aside both the Affidavit and the MSA ten days after they were executed.

Understanding that the Affidavit could only be undone on grounds of fraud, duress, or coercion in its execution,² Mother alleged that she relied on the following fraudulent representations made by the Department in signing the Affidavit and relinquishing her rights to her child: that K.D. (1) was doing well in school and at home, (2) was in a safe and stable home, (3) was happy in her placement home, (4) wished to stay in her placement home, (5) desired infrequent visits by Mother, if any at all, (6) was receiving appropriate counseling, and (7) was living in conditions that were advantageous to her well-being. Because K.D. had run away from her placement home only a few days after the mediation, Mother argued that the Department's representations were fraudulent and were made with the purpose of inducing her to relinquish her parental rights. Mother relies on the same representations to support her claim that the MSA was also procured by fraud.

The trial court found that since K.D. had not run away until after the mediation, there was no evidence that the Department made any misrepresentations at the November hearing or during the mediation at which K.D. was present. The trial court did not find that the Department fraudulently induced Mother to enter into either the Affidavit or the MSA. The trial court did find that there was clear and convincing evidence that it was in K.D.'s best interest to terminate Mother's parental rights.

II. Issues Presented

In her first two points of error, Mother asks, (1) “Was the affidavit of relinquishment of parental rights signed by [her] voluntarily executed?” and (2) “Was the [MSA] signed by [her] procured by fraud or deception?” In her third point of error, Mother challenges the legal and factual sufficiency of the evidence supporting the best-interest finding. As a basis for her first two points of error, Mother asserts that the Affidavit and the MSA are defective because they were executed as a result of fraud or deception. Essentially, we are called to decide two issues: (1) whether the Affidavit and the MSA are binding and enforceable against Mother and (2) whether Section 153.0071(e) foreclosed the trial court's review of whether termination of Mother's parental rights was in K.D.'s best interest?

III. Whether the Affidavit and the MSA Are Binding and Enforceable Against Mother

A. Standard of Review

Section 161.211(c) states, “A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues related to fraud ....” Tex. Fam. Code Ann. § 161.211(c) (West. 2014). Once the Department demonstrated by clear and convincing evidence that Mother executed the Affidavit pursuant to Section 161.103, the burden shifted to Mother to establish by a preponderance of the evidence that the Affidavit was executed as a result of fraud. See In re R.B., 225 S.W.3d 798, 804 (Tex.App.–Fort Worth 2007, pet. denied).³ Here, the “affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with section 161.103 of the Family Code [and, therefore,] is prima facie evidence of its validity.” A.H., 2014 WL 7183973, at *4 (citing D.R.L.M., 84 S.W.3d at 296, superseded by statute, Tex. Fam. Code Ann. § 263.405 (West 2014)). Thus, the burden shifted to Mother to prove by a preponderance of the evidence that the Affidavit was procured by fraud.

Whe...