In the Interest of V.R.W.

• Decision Date: 22 February 2001
• Citation: 41 S.W.3d 183
• Parties: <!--41 S.W.3d 183 (Tex.App.-Houston 2001) In The INTEREST Of V.R.W. NO. 14-00-00687-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 183

41 S.W.3d 183 (Tex.App.-Houston [14th Dist.] 2001)

In The INTEREST Of V.R.W.

NO. 14-00-00687-CV

Court of Appeals of Texas, Houston (14th Dist.).

February 22, 2001.

On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Cause No. 99FD2577

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Yates, Wittig, and Frost.

OPINION

Frost, Justice

Appellant, A.W., appeals the trial court's termination of her parental rights to her daughter, V.R.W. Appellees, G.L. and E.L., sought the termination so that they could adopt V.R.W. The trial court based its termination of A.W.'s parental rights on a mother's affidavit of the relinquishment of parental rights. In eight points of error, A.W. complains (1) the trial court erred in denying her a jury trial, (2) the affidavit of relinquishment is void, and (3) the affidavit of relinquishment was obtained as a result of fraud. We conclude that the trial court abused its discretion in denying A.W. a jury trial and, therefore reverse the judgment of the trial court and remand the case for further proceedings.

I. Factual Background

A.W. gave birth to a baby girl on October 17, 1999. Shortly thereafter, she gave her infant daughter to G.L. and E.L. and signed an affidavit of relinquishment of her parental rights. The facts concerning G.L. and E.L.'s taking possession of A.W.'s daughter and A.W.'s signing the affidavit of relinquishment are disputed.

At trial, Jackie Smith testified that A.W. called her and told her that she was pregnant, but she would not be able afford to keep the baby because she had two other children. A.W. asked Smith if she would be interested in taking the baby. Smith informed A.W. that she could not take the child, but she would try to think of someone who would. Smith claims A.W. stated, at the hospital after her daughter was born, that she was sure that she wanted to "give her up." Contradicting Smith's testimony, A.W. testified that she neither called Smith nor asked her if she would take her baby. A.W., instead, claims she did not know Smith until Smith came to the hospital with Sandra Thomas Crookshire, the aunt of A.W.'s other two children.¹ A.W. claims Smith advised her that she should give her newborn to someone who did not have children because A.W. already had two children.

G.L. testified that she heard about A.W.'s newborn infant from Smith on October 18, 1999. G.L. claims that during a visit with A.W. at the hospital, A.W. stated that her intention to give her daughter up for adoption. G.L. stated that when she asked A.W. if she was sure that she wanted to give up her child, A.W. replied that she was. G.L. further testified that A.W. had said G.L. could name the child and take her home from the hospital. A.W., on the other hand, testified that when G.L. visited her at the hospital, they discussed temporary care for the child, not adoption.

On October 19, 1999, Galveston County Children's Protective Services ("CPS") received a report that A.W. had tested positive for cocaine. CPS investigated the complaint and prepared a safety plan to be implemented when A.W. and her newborn daughter left the hospital. In accordance with the safety plan, CPS made arrangements for A.W. to stay at a drug treatment center in Beaumont, Texas. Although the safety plan provided for the child to be under the primary care of A.W.'s mother, A.W. would be allowed to take her child with her to the treatment center. CPS was not aware of any arrangement between A.W. and G.L.

On October 21, 1999, one of A.W.'s sisters called G.L. and informed her that the child had gone home from the hospital with A.W. G.L. testified that she let the adoption matter drop. On October 29, 1999, A.W. was to go to the drug treatment center in Beaumont, but, instead, she changed her mind and remained in Galveston. A.W. contacted G.L. and told her she could pick up the child. A.W. testified that her understanding of the arrangement with G.L. was that G.L. would take care of the baby temporarily until A.W. could "pretty much get [herself] together." G.L., on the other hand, testified that she understood that she and her husband were to adopt the baby.²

On November 5, 1999, A.W. went with G.L. and E.L. to the office of G.L. and E.L.'s attorney, Robert Hoskins, where A.W. signed a mother's affidavit to relinquish parental rights. A.W. testified that G.L., E.L., and Hoskins told her that it was necessary for A.W. to sign some documents so that G.L. and E.L. could obtain medical care for the baby. A.W. stated that she did not read the documents she was asked to sign because she relied on Hoskins to explain them to her.

Subsequently, CPS learned that A.W. had not gone to the drug treatment center and advised A.W.'s mother that it would take custody of the baby because A.W. had not followed the terms of the safety plan. A.W.'s mother then informed CPS the child was with G.L. and E.L. On November 21, 1999, A.W. went to G.L. and E.L.'s house to retrieve A.W.'s child. G.L. and E.L., however, would not return the child. A few days later, G.L., E.L., A.W., and A.W.'s mother and sisters met at the CPS office. CPS arranged the meeting to ascertain the arrangements for care of the child. At the meeting, A.W. stated that she had signed documents so that her daughter could receive medical care and she was not aware that she had signed a document that terminated her parental rights to her daughter. Although A.W. and her family wanted custody of the child, CPS decided that the child should remain with G.L. and E.L.

II. Procedural Background

On November 5, 1999, G.L. and E.L. filed a petition to terminate the parent-child relationship and to adopt A.W.'s daughter on the basis of the affidavit of relinquishment. On December 1, 1999, A.W. filed a revocation of affidavit as well as a response to the termination suit, claiming the affidavit of relinquishment had been procured by misrepresentations. On December 14, 1999, A.W. filed a request for a jury trial and paid the jury fee. On December 22 and 23, 1999, the trial court held a two-day hearing on the petition to terminate, but deferred any ruling on A.W.'s request for a jury trial. Ultimately, the court denied this request. On February 1, 2000, the trial court granted G.L. and E.L.'s petition to terminate A.W.'s parental rights and entered a decree of termination.

III. Issues Presented on Appeal

In eight points of error, A.W. claims: (1) the trial court erred in denying her request for a jury trial; (2) the affidavit of relinquishment is void because it was not properly verified by a notary and it contains inconsistent statements; and (3) the evidence is legally and factually insufficient to support the trial court's finding that she signed the affidavit of relinquishment voluntarily and that it was not secured by fraud, i.e., GL. and E.L.'s and their attorney's alleged misrepresentations that the affidavit was merely for the purpose obtaining medical care for the baby.³

A. Validity of Affidavit of Relinquishment

In her second through fourth points of error, A.W. challenges the validity of the affidavit of relinquishment.⁴ The natural right between parents and their children is one of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). A termination decree is complete, final, and irrevocable, divesting forever that natural right, as well as all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings must be strictly scrutinized in favor of the parent. In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980); Cawley v. Allums, 518 S.W.2d 790, 792 (Tex. 1975).

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. Tex. Fam. Code Ann. § 161.001(1)(K), (2) (Vernon Supp. 2000); Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex. 1982).⁵ Section 161.103 of the Family Code sets forth the requirements for an affidavit of relinquishment. Tex. Fam. Code Ann. § 161.103 (Vernon Supp. 2000). The proponent of the affidavit has the burden to establish by clear and convincing evidence that the affidavit was executed according to the terms of section 161.103 of the Family Code. Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.--Austin 2000, pet filed); Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.--El Paso 1990, no writ). An affidavit of relinquishment in proper form is prima facie evidence of its validity. In re B.B.F., 595 S.W.2d 873, 875 (Tex. Civ. App.--San Antonio 1980, no writ).

1. Standard of Review

We review the trial court's findings of fact for legal and factual sufficiency of the evidence by the same standards applied in reviewing the evidence supporting a jury's finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Skrepnek v. Shearson Lehman Bros., Inc., 889 S.W.2d 578, 579 (Tex. App.--Houston [14th Dist.] 1994, no writ). The clear and convincing evidence standard is an intermediate burden of proof falling between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re K.R., 22 S.W.3d 85, 89 (Tex. App.--Houston [14th Dist.] 2000, pet. filed) (en banc). When reviewing the legal sufficiency of the evidence, the appellate court considers only the evidence and inferences tending to support the trial court's finding, and disregards all contrary evidence and inferences. Southwestern Bell Mobil Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998) (per curiam). The clear and...