In re R.B.

• Decision Date: 10 May 2007
• Docket Number: No. 2-05-357-CV.,2-05-357-CV.
• Citation: 225 S.W.3d 798
• Parties: In the Interest of R.B., J.B., S.B., T.B., A.B., and J.B., Children.
• Court: Texas Court of Appeals

225 S.W.3d 798

In the Interest of R.B., J.B., S.B., T.B., A.B., and J.B., Children.

No. 2-05-357-CV.

Court of Appeals of Texas, Fort Worth.

May 10, 2007.

Danna Kirk Mayhall, Athens, for Appellant.

Randy Bowers, Fort Worth, for Ad-Litem.

Duke Hooten, Austin and Charles M. Mallin, Chief, Appellate Division District Attys. Office, Fort Worth, for Appellee.

Panel A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

OPINION

JOHN CAYCE, Chief Justice.

I. Introduction

Appellants Ronald and Willie Jean B. appeal the trial court's order terminating their parental rights to their children R.B., J.B., S.B., T.B., A.B., and J.B. We affirm.

II. Factual and Procedural Background

In November 2003, Ronald and Willie Jean were living in a motel with seven of their children, R.B., J.B., S.B., T.B., A.B., J.B., and B.B.¹ when CPS received a report that while appellants were in the motel hot tub, their four-year-old daughter jumped into the pool and appeared to be drowning. According to the report, appellants did nothing to save their daughter from drowning, and another hotel guest had to jump into the pool to rescue her. When the rescuer confronted appellants about their failure to help their daughter, Ronald yelled at her.

Within two days of the report about the pool incident, CPS received another report that appellants' two-year-old child was walking down the stairs from the third floor of the motel unsupervised and carrying a knife. The same child had also been observed walking around the motel unsupervised as late as 11:00 p.m. on two other occasions.

Based on these reports, CPS began its investigation. During the investigation, several of the children made outcry statements about sexual abuse and neglect. The Department of Protective and Regulatory Services (the State) eventually removed the children from appellants' care.

On April 19, 2005, the State filed a petition to terminate the parent-child relationship between appellants and the children. One month later, the trial court ruled that outcry statements made to a counselor, the children's foster parents, and a CPS caseworker would be admissible during trial.

At the final hearing on the State's petition, appellants appeared through their trial attorney, Jim Lane, who presented to the court affidavits of relinquishment for all six children executed by both appellants. Lane also announced that appellants had entered into a Rule 11 agreement with the State, in which the State agreed not to initiate proceedings to terminate appellants' rights to their other children based on the allegations and proof in this case.² The following day, on September 23, 2005, the trial court entered an order terminating appellants' parental rights to the children on the basis of the affidavits of relinquishment.

Eleven days after the order terminating their parental rights was rendered, appellants filed affidavits revoking their affidavits of relinquishment pursuant to section 161.1035 of the Texas Family Code.³

On October 7, 2005, appellants filed a motion for new trial asserting, among other things, that the evidence was legally and factually insufficient to show that they had executed the affidavits of relinquishment freely and voluntarily. After a hearing, the trial court denied appellants' motion for new trial.⁴

III. Constitutionality of Section 161.103(e) of the Texas Family Code

In the second issue raised in their supplemental brief, appellants assert that section 161.103(e) of the Texas Family Code is unconstitutional on its face under the Equal Protection Clause of the Fourteenth Amendment⁵ because parents who relinquish their parental rights to a private individual can reserve a right of revocation while parents who relinquish their parental rights to the State or to a licensed child placing agency cannot.⁶ The State asserts that appellants have waived their Equal Protection claim because they failed to present it to the trial court. We agree.

It is well settled that challenges to the constitutionality of a statute may be waived.⁷ The presumption is that a statute enacted by our legislature is constitutional, and attacks on that presumption should generally be raised as an affirmative defense to enforcement of the statute.⁸ In the absence of such a complaint in the trial court, we are without authority to consider it.⁹

In this case, appellants did not raise their constitutional challenge to section 161.103(e) in the trial court as an affirmative defense or otherwise.¹⁰ The first time they raised the complaint is in their supplemental brief on appeal. We hold, therefore, that the complaint is waived.¹¹

We recognize that in criminal cases, constitutional claims may be brought for the first time on appeal.¹² The rationale for allowing such claims for the first time on appeal, however, is that criminal statutes go to the subject matter jurisdiction of the court.¹³ A conviction or sentence based on a statute that is unconstitutional on its face is void from its inception, confers no power or authority on the court, and justifies no acts performed under it.¹⁴ Therefore, a conviction based on a void statute is fundamental error and may be raised for the first time on appeal.¹⁵

In contrast, subject matter jurisdiction exists in civil cases when the nature of the case falls within a category of cases that the court is empowered to adjudicate under the applicable constitutional and statutory provisions.¹⁶ Challenges to the constitutionality of a civil statute ordinarily go to the merits of a claim or cause of action, not to the civil court's subject matter jurisdiction.¹⁷ Therefore, if a civil court renders judgment on a claim that is within its subject matter jurisdiction, but a relevant statute is determined to be unconstitutional on its face, the judgment is merely rendered erroneous or voidable, not void.¹⁸

Here, it is undisputed that the trial court had subject matter jurisdiction over this parental termination case and that we have jurisdiction over the appeal. Appellants' constitutional complaint is unrelated to either court's subject matter jurisdiction. If we were to hold that the statute at issue is unconstitutional, our ruling would merely render the trial court's order erroneous and subject to reversal; it would not render the order void. Because appellants' constitutional claim would not render the trial court's order void, it is not fundamental error and cannot be asserted for the first time on appeal.¹⁹ We overrule appellants' second issue raised in their supplemental brief.

IV. Unsigned Rule 11 Agreement

In their second issue, appellants assert that the trial court erred by terminating their parental rights based on the Rule 11 agreement because they did not sign the agreement.²⁰

Under the Texas Rules of Civil Procedure,

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.²¹

It is well settled that the attorney-client relationship is an agency relationship; the attorney's acts and omissions within the scope of his or her employment are regarded as the client's acts.²² Thus, an attorney may execute an enforceable Rule 11 agreement on his client's behalf.²³

In this case, Lane signed the agreement as "Attorney for Respondent Parents." Ronald admitted at the motion for new trial hearing that he understood that Lane had signed the agreement on appellants' behalf. Therefore, the mere fact that appellants did not sign the Rule 11 agreement does not render it unenforceable. We overrule appellants' second issue.

V. Voluntariness of the Affidavits of Relinquishment

In their third issue, appellants argue that the trial court erred by terminating their parental rights based on their affidavits of relinquishment and the Rule 11 agreement because the evidence is legally and factually insufficient to show that they executed the affidavits voluntarily and knowingly. Appellants contend that the preponderance of the evidence shows that their affidavits were executed as a result of fraud, duress, and coercion.

Under the Texas Family Code, the trial court may terminate parental rights upon a finding, 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" and that termination is in the best interest of the child.²⁴ Implicit in the family code is the requirement that the affidavit of voluntary relinquishment be voluntarily executed.²⁵ Evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with family code section 161.103²⁶ is prima facie evidence of its validity.²⁷

Once it has been shown by clear and convincing evidence that the affidavit of relinquishment was executed according to the requirements of section 161.103 of the family code, courts have traditionally held that the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of "fraud, coercion, duress, deception, undue influence, or overreaching."²⁸ The burden of proving such wrongdoing is on the party opposing the affidavit.²⁹

Recently, however, a plurality of the Supreme Court of Texas, in separate concurring and dissenting opinions, has opined that both the burden and standard of proof for setting aside an affidavit of relinquishment should be "reformulated."³⁰ According to the plurality in In re L.M.I., when an issue of involuntariness is raised, due process requires that the burden be on the proponent of the affidavit to establish, by clear and convincing evidence, that the affidavit was executed voluntarily.³¹ As one justice stated in her dissenting and concurring opinion in In re L.M.I.:

The United States Supreme Court has held...