Opinion
NO. 14-17-00760-CV
03-01-2018
IN THE INTEREST OF R.P.R., JR., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-04660J
MEMORANDUM OPINION
C.M.H. (Mother) and R.J.R. (Father) each appeal from a final decree terminating their parental rights to their son, R.P.R., Jr. (Richard). In a single issue, Mother contends the unrevoked or irrevocable affidavit of voluntary relinquishment of her parental rights did not comply with section 161.103 of the Texas Family Code. Father's appointed counsel filed a brief in which he concludes Father's appeal is wholly frivolous and without merit. We affirm.
We use pseudonyms to refer to appellants, the children, and other family members. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Department of Family and Protective Services received referrals alleging Mother and Father were physically neglecting and neglectfully supervising Richard, who then was four months old. According to the report, Richard had a staph infection due to unsanitary conditions in the home and Mother and Father were using illegal drugs while caring for him.
The Department became involved because Mother reportedly was leaving not-yet-one-year-old Richard alone with Father while she was on a "drug binge." According to reports, the home was in a deplorable condition and the Department had concerns of domestic violence between Mother and Father. Mother agreed to participate in services with Family Based Safety Services (FBSS).
While participating in services with FBSS, the Department placed Richard in a Parental Child Safety Placement with his paternal grandmother. Mother and Father disrupted the placement and took Richard from the grandmother's home. Mother and Father grew uncooperative. Father, who believed Mother had lied about the paternity of her unborn child, later fled with Richard.
The Department received a referral on August 11, 2016, alleging Mother's neglectful supervision of B.H. (Bonnie), a newborn. Mother tested positive for benzodiazepines, amphetamines, and opiates the day Bonnie was born. Bonnie also tested positive for amphetamines and opiates and displayed withdrawal symptoms shortly after her birth. On August 18, 2016, Bonnie was discharged into a Parental Child Safety Placement with Mother's friend.
The next day, the Department received a referral alleging Father's neglectful supervision of Richard. According to the report, Father had been arrested for a bond violation after being found with a gun in his vehicle and testing positive for amphetamines. Father was incarcerated as a result.
The same day (August 19, 2016), Mother's friend who was caring for Bonnie called the Department and indicated that Mother had attempted to pick up Bonnie and was threatening the friend. Mother's friend no longer wanted to serve as a placement for Bonnie and the Department proceeded with emergency removal of both Richard and Bonnie due to Mother's history of taking the children from safe placements and evading the Department.
Trial Court Proceedings
Within a few days, the Department filed its petition for termination in a suit affecting the parent-child relationship, seeking to cut off Mother's and Father's parental rights to Richard and Bonnie. The court appointed the Department temporary sole managing conservator of both children.
Bonnie died of natural causes on August 29, 2016, during the pendency of the trial court proceedings.
During the bench trial that followed, both Mother and Father offered, and the trial court admitted into evidence, irrevocable affidavits of voluntary relinquishment as to Richard. When offering the affidavits into evidence, both Mother's and Father's counsel indicated Mother and Father felt relinquishment of their parental rights was in Richard's best interest.
The Department's stated goal at trial was adoption of Richard by relatives. The Department had placed Richard with his paternal aunt and uncle and they hoped to adopt him. The Department caseworker testified that Richard was doing well in their home and that they were meeting his needs. The caseworker testified that the placement was stable and the paternal aunt and uncle were capable of keeping Richard safe.
Following the bench trial, the trial court terminated Mother's and Father's parental rights based on their execution of unrevoked or irrevocable affidavits of voluntary relinquishment of their parental rights to Richard. The trial court also found that termination of Mother's and Father's parental rights was in Richard's best interest. These appeals followed.
II. ISSUES AND ANALYSIS
A. Mother's Appeal
1. Standard of Review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 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, 685 S.W.2d at 20. Due to the severity and permanency of the termination of parental rights, the law imposes a heightened burden of proof, requiring clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2017); In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). Despite the constitutional magnitude of parental rights, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1); and (2) termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Mother contends her parental rights should not have been terminated because the irrevocable affidavit of voluntary relinquishment she signed is invalid.
2. Validity of Affidavit of Relinquishment
Mother contends her affidavit of voluntary relinquishment does not comply with section 161.103 of the Texas Family Code because one witness was disqualified, leaving only one credible witness. Mother contends one of the witnesses served as the attorney ad litem for the unknown father from August 31, 2016 to October 26, 2016, and that this participation in the case disqualified the attorney ad litem as a witness. The Department argues that (1) section 161.211(c) of the Texas Family Code precludes Mother's challenge to the affidavit and (2) the record does not support Mother's assertions.
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(b)(1)(K), (2); In re A.L.H., 468 S.W.3d 738, 741 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Section 161.103 sets forth detailed requirements for an affidavit of relinquishment. See Tex. Fam. Code Ann. § 161.103 (West Supp. 2017); In re K.S.L., No. 16-0558, 2017 WL 6562860, at *2 (Tex. Dec. 22, 2017). Those requirements include that two credible persons witness the affidavit. Tex. Fam. Code Ann. § 161.103(a)(2).
Section 161.211 of the Texas Family Code, entitled "Direct or Collateral Attack on Termination Order," governs challenges to termination orders based on an unrevoked affidavit of relinquishment. See Tex. Fam. Code Ann. § 161.211 (West 2014). 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 relating to fraud, duress, or coercion in the execution of the affidavit.See id. § 161.211(c).
The proponent of the affidavit carries the initial 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. denied); Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.—El Paso 1990, no writ). An affidavit of relinquishment in proper form constitutes prima facie evidence of its validity. See In re A.L.H., 468 S.W.3d at 741. Once the proponent of the affidavit meets the burden, the party opposing the affidavit must show its execution resulted from fraud, duress, or coercion. See Montes v. Dep't of Family & Protective Servs., No. 01-10-00643-CV, 2011 WL 2089721, at * 3 (Tex. App.—Houston [1st Dist.] May 19, 2011, no pet.) (mem. op.).
Mother challenges the affidavit based on its purported failure to satisfy the requirements of section 161.103. Mother does not complain that the affidavit was executed as a result of fraud, duress, or coercion. Accordingly, we conclude section 161.211(c) bars Mother's challenge on appeal. See In re K.S.L., 2017 WL 6562860, at *3 (argument based on a ground not covered by section 161.211(c)); Moore v. Brown, 408 S.W.3d 423, 38 (Tex. App.—Austin 2013, pet. denied) (161.211(c) bars claim to invalidate affidavit based on failure to execute affidavit within forty-eight-hour waiting period). Having concluded that Mother has challenged the affidavit on a ground not permitted by section 161.211(c), we need not and do not address her contention that one of the witnesses was disqualified.
Mother has not challenged the constitutionality of section 161.211(c).
We overrule Mother's sole issue on appeal.
B. Father's Appeal
Father's appointed counsel filed a brief in which he concludes Father's appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978). The Anders procedures apply to an appeal from the termination of parental rights when an appointed attorney concludes there are no non-frivolous issues to assert on appeal. In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
On January 9, 2018, a copy of Father's counsel's brief was delivered to Father and Father was notified of the right to examine the record and to file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); In re D.E.S., 135 S.W.3d at 329-30. More than thirty days have elapsed and as of this date, no pro se response has been filed.
We have reviewed the record and Father's counsel's brief and agree Father's appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. A discussion of the brief would add nothing to the jurisprudence of the state.
We affirm the judgment of the trial court.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Busby and Wise.