In re L.M.I.

Decision Date18 September 2003
Docket NumberNo. 02-0244.,02-0244.
Citation119 S.W.3d 707
PartiesIn the Interest of L.M.I. and J.A.I., minor children.
CourtTexas Supreme Court

Shawn Casey, Houston, Maria Luisa Mercado, Galveston, Kathleen M. McCumber, Cagle & McCumber, League City, for Petitioner.

Otto D. Hewitt, III, Christine L. Mangle, Texas City, Emily A. Fisher, Martin, Garza & Fisher, Galveston, for Respondent.

Justice O'NEILL delivered the Court's judgment, and the opinion of the Court as to Parts I, II, and IVA, in which Justice ENOCH, Justice SCHNEIDER, Justice SMITH, and Justice WAINWRIGHT joined, and an opinion as to Part III and IVB, in which Justice ENOCH, Justice SCHNEIDER, and Justice SMITH joined.

Almost four years ago, Ricardo Duenas and Luz Sylvestre Inocencio signed sworn affidavits of voluntary relinquishment of their parental rights to five-month-old twin boys. At the same time, they placed the boys in the care of Miles and Monica Montegut, a couple who wanted to adopt them. The boys have grown from infants to toddlers to pre-school age children in the Monteguts' care as this case has taken its excruciatingly slow course through our judicial system. Duenas and Inocencio have been represented by counsel since the beginning of their quest to set the affidavits aside. As today's fractured opinions illustrate, appellate review has been greatly hampered by the shifting, indistinct focus of their complaints—although the case has been pending for more than a year, we still disagree about what the complaints are and whether they were preserved. In this context, adhering to our preservation rules isn't a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose. As we recently said, "[a]ppellate review of potentially reversible error never presented to a trial court would undermine the Legislature's dual intent to ensure finality in these cases and expedite their resolution."

In re B.L.D. and B.R.D., 113 S.W.3rd 340, 353 (Tex.2003); see also Tex. Fam.Code § 161.211(a) (prohibiting direct or collateral attack on order terminating parental rights based on affidavit of relinquishment after six months). Injecting any greater uncertainty and complexity into the process would only serve to discourage potential adoptive parents, who are already turning to simpler and less expensive foreign adoptions in record numbers. See Genard C. Armas, Many U.S. Parents Look Abroad to Adopt, Census Bureau Says, Miami Herald, Aug. 22, 2003, available at herald/2003/08/22/news/nation/6591007. htm; United States Census bureau, United States Department of Commerce, Adopted Children Stepchildren: 2000-11 (Aug. 2003).

Here, after hearing evidence regarding the circumstances surrounding the affidavits' execution and the boys' best interests, the trial court ordered termination of Duenas's and Inocencio's parental rights. The court of appeals affirmed. 117 S.W.3d 1. Duenas argues that the affidavit he signed was procured in a manner that violated his right to due process because he neither speaks nor reads English, and the affidavit was not translated into Spanish. We granted Duenas's petition for review to consider this constitutional issue, but on further review we conclude that the issue was not preserved. We also granted Inocencio's petition for review to decide whether the order terminating her parental rights should be set aside because her relinquishment affidavit was procured as the result of fraud or undue influence. A majority of the Court concludes that the record contains legally sufficient evidence to support termination of her parental rights. Accordingly, we affirm the court of appeals' judgment.


In April 1999, fifteen-year-old Inocencio gave birth prematurely to twin boys, L.M.I. and J.A.I., allegedly fathered by twenty-five-year-old Ricardo Duenas. Duenas and Inocencio were not married or living together at the time. At some point before the boys' birth, Inocencio had become acquainted with Texas City police detective Brian Goetschius, who had responded to a report that Inocencio was working as a nude dancer at a sexually oriented business. Detective Goetschius began offering Inocencio occasional advice, sometimes at her mother's behest. After learning of her pregnancy, Goetschius drove Inocencio to several doctor's appointments and helped her apply for governmental assistance. Five months after the boys were born, Inocencio's sister, Esther Gonzalez, contacted the detective asking for help in placing the children for adoption. Eventually, Goetschius and his wife, Dawnell, arranged for the children to be adopted by Monica and Miles Montegut, Dawnell's sister and brother-in-law.

On September 24, 1999, Gonzalez went to her mother's home, where Inocencio and the boys lived, and told Inocencio that the Monteguts wanted to adopt the children. Gonzalez, Inocencio, and their mother, Guillerma Pruitt, all testified that Inocencio at first rejected the idea of allowing the adoption, but was ultimately persuaded that it would be in the boys' best interest. Gonzalez then drove Inocencio, the twins, and Pruitt to pick up Duenas at the restaurant where he worked. The group proceeded to the office of the Monteguts' attorney, Mark Ciavaglia, who had prepared irrevocable affidavits of relinquishment of parental rights for Inocencio and Duenas to sign. Duenas, a Honduran citizen, testified that he does not understand English, that none of the affidavit was translated for him, and that he did not understand the affidavit's import. Other witnesses testified that Duenas appeared to understand Ciavaglia's explanation of the affidavit, and that significant portions of the affidavit were translated. Ciavaglia then explained the affidavit to Inocencio, who testified that Ciavaglia advised her not to sign if she had any reservations. Inocencio initially refused to sign the affidavit, but changed her mind after the adoptive parents agreed to send her pictures and information about the boys' condition twice a year. After both Inocencio and Duenas signed their respective affidavits, they left the boys with Ciavaglia to be surrendered to the Monteguts.

A few days later, Inocencio had a change of heart and decided to pursue legal action to regain custody of the children. On October 1, 1999, the Monteguts filed their petition to terminate the parent/child relationship. The same day, the trial court issued a temporary order giving the Monteguts custody of the children. Three days later, Inocencio filed a motion to revoke her affidavit. On November 17, 1999, Duenas filed his answer to the Monteguts' petition and a counter-petition for voluntary paternity. He also filed a motion to revoke his affidavit of relinquishment.

On November 23, 1999, the trial court held a hearing on the motions to revoke the affidavits to determine whether the affidavits were executed involuntarily. After hearing testimony from nine witnesses, the trial court found that the affidavits were voluntarily executed. The court also found that Duenas was not the children's presumed father, and that the legal parent-child relationship did not exist at the time Duenas signed his affidavit of relinquishment. The trial court further found by clear and convincing evidence that it was in the children's best interest to terminate Duenas's and Inocencio's parental rights. The court ordered Duenas's and Inocencio's rights terminated, and awarded the Monteguts custody of the children. The court of appeals affirmed the trial court's decision. 117 S.W.3d 1.


Duenas's petition for review argues that "the order terminating [his] parental rights should be set aside since [his] signature on the affidavit of relinquishment was procured in a manner that violated [his] due process rights." Upon further review of the record, we conclude that Duenas failed to preserve this issue in the trial court. His answer and counterpetition to the termination proceedings cite no constitutional authority, and he did not raise the issue in any post-judgment motion. In fact, the only reference to the constitution in the entire record appears when Duenas's attorney, in arguing for a continuance, explained that she had only recently been hired after Duenas's coworkers told him that the termination "was probably not constitutional and not right." Duenas's "Revocation of Affidavit" merely states that "[t]he Affidavit of Relinquishment was not translated for me." The trial court obviously did not discern a due process challenge in Duenas's argument, because the court specifically found that "RICARDO DUENAS present[sic] issues of fraud, duress, and overreaching to the Court to deny that his Father's Affidavit of Relinquishment of Parental Rights was signed voluntarily." See Vela v. Marywood, 17 S.W.3d 750, 760 (Tex.App.-Austin 2000, pet. denied, 53 S.W.3d 684 (Tex.2001) (noting that at common law "the word `fraud' refers to an ... omission, or concealment in breach of a legal duty ... when the breach causes injury to another or the taking of an undue and unconscientious advantage")).

Duenas, who was represented by counsel, sought no finding and raised no legal argument before the trial court about a constitutional claim. Given that Duenas was afforded an extensive evidentiary hearing on the voluntariness of his affidavit, it was not apparent from the context that Duenas was attempting to raise a due process challenge. Under our Rules of Appellate Procedure, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling. Tex.R.App. P. 33.1. As noted above, allowing appellate review of unpreserved error would undermine the Legislature's intent that cases terminating parental rights be expeditiously resolved, thus "`[p]romot[ing] the child's interest in a final decision and thus placement in a safe and stable home.'" In...

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