
COURT OF 
APPEALS
SECOND 
DISTRICT OF TEXAS
FORT 
WORTH
 
NO. 2-03-074-CV
 
  
IN 
THE INTEREST OF E.S.S.
 
 
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FROM 
THE 322ND DISTRICT COURT OF TARRANT COUNTY
 
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OPINION
 
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        Appellant 
Gary Wayne Stanfield seeks reversal of the trial court’s agreed order 
terminating his parental rights and granting adoption to Gary Wayne Smith.  
We reverse and remand.
Factual and Procedural Background
        Appellant 
and Appellee, parents of E.S.S., were divorced in 1995. In 1996, Appellee 
married Gary Wayne Smith and E.S.S. has lived with them since that time. 
Appellant is currently serving a life sentence in the Texas Department of 
Criminal Justice - Institutional Division (TDCJ-ID) for murder. In August 2000, 
Appellee and Mr. Smith filed a petition for the involuntary termination of 
Appellant’s parental rights in conjunction with a request by Mr. Smith to 
adopt E.S.S.
        On 
July 30, 2002, the trial court held a trial on the petition for termination of 
Appellant’s parental rights. Prior to the trial’s commencement, the parties 
announced that they had reached an agreement. According to the terms of the 
agreement, Appellant would voluntarily relinquish his parental rights to E.S.S. 
in exchange for having his mother and brother named possessory conservators with 
visitation rights. After Appellee’s attorney dictated the settlement agreement 
and details of the visitation rights on the record, Appellant testified that he 
was relinquishing his rights to E.S.S. as follows:
 
THE 
COURT: Okay. Mr. Stanfield, I want you to understand exactly what we’re doing 
today. I think you know the purpose of this hearing is to determine whether or 
not your parental rights of this child should be terminated forever.

Now, 
it’s my understanding that you’re currently serving a life sentence in the [TDCJ-ID] 
for murder; is that correct?
 
THE 
DEFENDANT: Yes, sir.
 
THE 
COURT: You understand that even though you’re under those circumstances at 
this time that you still have a right to have a trial in this matter, do you 
understand that?
 
THE 
DEFENDANT: Yes, sir.
 
THE 
COURT: Okay. Do you concur and agree that your parental rights to this child 
should be terminated forever?
 
THE 
DEFENDANT: Yes, sir.
 
THE 
COURT: All right. And are you doing that freely and voluntarily?
 
THE 
DEFENDANT: Yes, sir.

 
The 
trial court approved the agreement and ordered termination of Appellant’s 
parental rights. Appellant thereafter did not sign an affidavit for voluntary 
relinquishment of parental rights.
        On 
February 6, 2003, Appellee filed a motion for entry of an agreed order 
terminating Appellant’s parental rights and granting adoption. Appellee’s 
motion included a proposed agreed order, which not only included the terms of 
the agreement as stated on the record, but also an order granting adoption and 
the following findings:
 
The 
Court finds by clear and convincing evidence that GARY WAYNE STANFIELD has -
 
a. 
engaged in conduct or knowingly placed the child with persons who engaged in 
conduct that endangers the physical or emotional well-being of the child; and
 
b. 
knowingly engaged in criminal conduct that has resulted in his conviction of an 
offense and confinement or imprisonment and inability to care for the child for 
not less than two years from the date the petition was filed.
 
The 
Court also finds by clear and convincing evidence that termination of the 
parent-child relationship between GARY WAYNE STANFIELD and the child the subject 
of this suit is in the best interest of the child.

 
In 
response, Appellant did not sign the proposed agreed order and instead wrote a 
letter to the trial court seeking to revoke his consent to the agreement.
        On 
February 28, 2003, a hearing was held on Appellee’s motion for entry of the 
agreed order. Appellant claims that he again attempted to revoke his agreement 
to relinquish his parental rights and repudiate his agreement to the 
termination. At the conclusion of the hearing, the trial court overruled 
Appellant’s attempted revocation and signed the proposed agreed order. In five 
issues, Appellant argues that the trial court erred in signing the agreed order.
Standard of Review
        A 
parent’s rights to “the companionship, care, custody, and management” of 
his or her children are constitutional interests “far more precious than any 
property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 
1388, 1397 (1982). In a termination case, the State seeks not just to limit 
parental rights but to end them permanently—to divest the parent and child of 
all legal rights, privileges, duties, and powers normally existing between them, 
except for the child’s right to inherit. TEX. 
FAM. CODE 
ANN. § 161.206(b) (Vernon Supp. 2004); Holick 
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination 
proceedings and strictly construe involuntary termination statutes in favor of 
the parent. Holick, 685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 
625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the family code, the petitioner must establish one or more of the 
acts or omissions enumerated under subdivision (1) of the statute and must also 
prove that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 
161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 
1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. 
denied). Both elements must be established; termination may not be based solely 
on the best interest of the child as determined by the trier of fact. Tex. 
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
        Termination 
of parental rights is a drastic remedy and is of such weight and gravity that 
due process requires the petitioner to justify termination by “clear and 
convincing evidence.” TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re G.M., 
596 S.W.2d 846, 847 (Tex. 1980). This intermediate standard falls between the 
preponderance standard of ordinary civil proceedings and the reasonable doubt 
standard of criminal proceedings. G.M., 596 S.W.2d at 847; D.T., 
34 S.W.3d at 630. It is defined as the “measure or degree of proof that will 
produce in the mind of the trier of fact a firm belief or conviction as to the 
truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007.
        The 
higher burden of proof in termination cases alters the appellate standard of 
legal sufficiency review. In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002). 
The traditional no-evidence standard does not adequately protect the parent’s 
constitutional interests. Id. In reviewing the evidence for legal 
sufficiency in parental termination cases, we must determine “whether the 
evidence is such that a factfinder could reasonably form a firm belief or 
conviction” that the grounds for termination were proven. Id. at 
265-66. We must review all the evidence in the light most favorable to the 
finding and judgment. Id. at 266. This means that we must assume that the 
factfinder resolved any disputed facts in favor of its finding if a reasonable 
factfinder could have done so. Id. We must also disregard all evidence 
that a reasonable factfinder could have disbelieved. Id. We must 
consider, however, undisputed evidence even if it does not support the finding. Id. 
If we determine that no reasonable factfinder could form a firm belief or 
conviction that the grounds for termination were proven, then the evidence is 
legally insufficient, and we must render judgment for the parent. Id.
        The 
higher burden of proof in termination cases also alters the appellate standard 
of factual sufficiency review. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 
“[A] finding that must be based on clear and convincing evidence cannot be 
viewed on appeal the same as one that may be sustained on a mere 
preponderance.” Id. In considering whether the evidence of termination 
rises to the level of being clear and convincing, we must determine “whether 
the evidence is such that a factfinder could reasonably form a firm belief or 
conviction” that the grounds for termination were proven. Id. Our 
inquiry here is whether, on the entire record, a factfinder could reasonably 
form a firm conviction or belief that the parent violated one of the conduct 
provisions of section 161.001(1) and that the termination of the parent’s 
parental rights would be in the best interest of the child. Id. at 28. 
“When reversing on insufficiency grounds, the reviewing court must detail the 
evidence relevant to the issue of parental termination and clearly state why the 
evidence is insufficient to support a termination finding by clear and 
convincing evidence.” Id. at 18.
        Nonexclusive 
factors that the trier of fact in a termination case may use in determining the 
best interest of the child include:
 

(1)    
  the desires of the child;
(2)    the 
  emotional and physical needs of the child now and in the future;
(3)    the 
  emotional and physical danger to the child now and in the future;
(4)    the 
  parental abilities of the individuals seeking custody;
(5)    the 
  programs available to assist these individuals to promote the best interest of 
  the child;
(6)    the 
  plans for the child by these individuals or by the agency seeking custody;
(7)    the 
  stability of the home or proposed placement;
(8)    the acts or 
  omissions of the parent which may indicate that the existing parent-child 
  relationship is not a proper one; and
(9)any 
  excuse for the acts or omissions of the parent.
    

Holley 
v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not 
exhaustive; some listed factors may be inapplicable to some cases; other factors 
not on the list may also be considered when appropriate. C.H., 89 S.W.3d 
at 27. Furthermore, undisputed evidence of just one factor may be sufficient in 
a particular case to support a finding that termination is in the best interest 
of the children. Id. On the other hand, the presence of scant evidence 
relevant to each Holley factor will not support such a finding. Id.
Discussion
        In 
Appellant’s first issue, he argues that the trial court erred in rendering 
judgment on the grounds of Appellant’s relinquishment without a properly 
executed affidavit of relinquishment tendered to the court and offered as 
evidence.1  The family code provides that the 
relinquishment of parental rights can be grounds for the termination of the 
parent-child relationship when 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.” Tex. Fam. Code Ann. § 161.001(1)(K). Under section 
161.103(a) of the family code, a valid affidavit of voluntary relinquishment 
must be 1) signed, 2) witnessed by two credible persons, and 3) verified before 
a person authorized to take oaths. Id. § 161.103(a) (Vernon Supp. 2004). 
Appellant points out that there is no statutory provision that an oral 
relinquishment will suffice to comply with the strict requirements of section 
161.103. Further, we find no common law authority allowing acceptance of an oral 
relinquishment in lieu of a signed affidavit.
        Even 
if an oral statement on the record in open court would sufficiently meet the 
requirements set forth in 161.103(a), Appellant’s oral statements at trial do 
not encompass the laundry list of information that must be included in an 
affidavit of voluntary relinquishment as set forth in 161.103(b). Subsection (b) 
lists several requirements that are not encompassed in Appellant’s oral 
relinquishment. The reporter’s record for the trial on the termination of 
Appellant’s parental rights does not contain the following required 
information:
 
(1) 
the address and age of the parent whose parental rights are being relinquished;
 
(2) 
the age, and birth date of the child;
 
(3) 
the names and addresses of the guardians of the person and estate of the child, 
if any;
 
(4) 
a statement that the affiant is or is not presently obligated by court order to 
make payments for the support of the child;
 
(5) 
a full description and statement of value of all property owned or possessed by 
the child;
 
(6) 
an allegation that termination of the parent-child relationship is in the best 
interest of the child;
 
(7)(A) 
the name and address of the other parent;
 
(8) 
a statement that the parent has been informed of parental rights and duties;
 
(9) 
a statement that the relinquishment is revocable, that the relinquishment is 
irrevocable, or that the relinquishment is irrevocable for a stated period of 
time;
 
(10) 
if the relinquishment is revocable, a statement in boldfaced type concerning the 
right of the parent signing the affidavit to revoke the relinquishment only if 
the revocation is made before the 11th day after the date the affidavit is 
executed;
 
(11) 
if the relinquishment is revocable, the name and address of a person to whom the 
revocation is to be delivered.
 
See 
id. § 161.103. We sustain Appellant’s first issue.
        In 
Appellant’s second and third issues, he asserts that the trial court erred in 
granting termination based solely on evidence of the parties’ agreement and 
without evidence or a finding that termination was in the best interest of 
E.S.S. We construe Appellant’s argument to be that the evidence is factually 
and legally insufficient to support the termination of his parental rights.
        The 
trial court’s order includes findings that Appellant’s conduct fell within 
two of the enumerated grounds for involuntary termination under section 161.001 
of the family code. First, the court found that Appellant engaged in conduct or 
knowingly placed the child with persons who engaged in conduct that endangers 
the physical or emotional well-being of the child. See id. § 
161.001(1)(E). Section 161.001(1)(E) requires us to look at the parent's conduct 
alone, including actions or omissions or failures to act. See id.; D.T., 
34 S.W.3d at 634; In re R.F., 115 S.W.3d 804, 810 (Tex. App.—Dallas 
2003, no pet.). “Endanger” under section 161.001(1)(E) means to expose to 
loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533; D.T., 34 
S.W.3d at 634. The term means more than a threat of “metaphysical injury,” 
but it is not necessary that the conduct be directed at the child or that the 
child actually suffer injury. Boyd, 727 S.W.2d at 533. Nevertheless, 
there must be evidence of endangerment to the child's physical or emotional 
well-being as the direct result of the parent's conduct. In re J.B.W., 99 
S.W.3d 218, 226 (Tex. App.—Fort Worth 2003, pet. denied); In re R.D., 
955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). Additionally, 
termination under section 161.001(1)(E) must be based on more than a single act 
or omission; a voluntary, deliberate, and conscious “course of conduct” by 
the parent is required. J.B.W., 99 S.W.3d at 226; D.T., 34 S.W.3d 
at 634.
        Here, 
the evidence in support of a finding that Appellant engaged in a course of 
conduct that endangers the physical or emotional well-being of E.S.S. is a 
single statement regarding Appellant’s prison sentence for murder. Texas cases 
have considered the involuntary termination of the rights of an imprisoned 
parent, and have held that mere imprisonment will not, standing alone, 
constitute engaging in conduct which endangers the emotional or physical 
well-being of a child. See Boyd, 727 S.W.2d at 533-34 (holding 
imprisonment alone is not conduct endangering a child); In re C.L.C, 119 
S.W.3d 382, 397 (Tex. App.—Tyler 2003, no pet.); In re S.D.H., 591 
S.W.2d 637, 638 (Tex. Civ. App.—Eastland 1979, no writ) (holding imprisonment 
alone is not conduct endangering a child). Therefore the only evidence before 
us, Appellant’s admission that he is serving a life sentence in prison, cannot 
support a termination on endangerment grounds under section 161.001(1)(E).
        The 
court’s second finding in favor of terminating Appellant’s parental rights 
is based on section 161.001(1)(Q), which requires proof that Appellant:
 
(Q) 
knowingly engaged in criminal conduct that has resulted in the parent’s:


(i) conviction of an offense; and



(ii) confinement or imprisonment and inability to care 
  for the child for not less than two years from the date of filing the 
  petition.


Tex. Fam. Code Ann. § 161.001(1)(Q). Although Appellant 
admitted that he is currently serving a prison term that will exceed two years, 
there is no evidence that Appellant is unable to care for E.S.S. Proof that 
Appellant is unable to care for E.S.S. is an additional requirement not met by 
showing incarceration alone. In re B.M.R., 84 S.W.3d 814, 818 (Tex. 
App.—Houston [1st. Dist.] 2002, no pet.); see In re Caballero, 53 
S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied). Otherwise, the 
termination of parental rights could become an additional punishment 
automatically imposed along with imprisonment for almost any crime. In re 
D.R.L.M., 84 S.W.3d 281, 294 (Tex. App.—Fort Worth, pet. denied); D.T., 
34 S.W.3d at 636; see also Holick, 685 S.W.2d at 20-21 (stating we are 
required to strictly construe the involuntary termination statutes in favor of 
the parent).
        In 
In re Caballero, the Amarillo Court of Appeals construed section 
161.001(1)(Q) as requiring a three-step process. 53 S.W.3d at 396. First, the 
party seeking termination must establish that the parent's knowing criminal 
conduct resulted in incarceration for more than two years. Id. Second, 
the parent must produce some evidence as to how he would provide or arrange to 
provide care for the child during that period. Id. Finally, the party 
seeking termination would then have the burden of persuasion that the 
arrangement would not satisfy the parent's duty to the child. Id.
        We 
conclude that Appellant’s statement at trial regarding his prison term is 
sufficient to establish Appellee’s initial burden to prove that Appellant is 
incarcerated for more than two years. Likewise, Appellant met his burden of 
production regarding how he would arrange for the care of E.S.S. in that the 
agreement reached by the parties included naming Appellant’s mother and 
brother possessory conservators with visitation rights. Appellee consequently 
had the burden of persuasion to establish that this arrangement would not meet 
Appellant’s duty to E.S.S. Because no evidence was presented by Appellee 
regarding Appellant’s plan to care for E.S.S., Appellee has not met her burden 
of persuasion. See id. Consequently, the evidence is insufficient to 
establish that Appellant’s conduct falls within the grounds for involuntary 
termination enumerated in subsection Q. We also conclude that the scant evidence 
before us cannot support a finding of best interest. Of the nine previously 
mentioned Holley factors that may be used in determining the best 
interest of the child, the record before us sheds light on only one 
factor—whether the acts or omissions of the parent indicate that the existing 
parent-child relationship is not a proper one. See Holley, 544 S.W.2d at 
371-72. A single statement on the record regarding Appellant’s prison term 
without weighing any other factors is not sufficient to support a best interest 
finding by clear and convincing evidence. See C.H., 89 S.W.3d at 27. We 
sustain Appellant’s second and third issues.
        In 
Appellant’s fourth issue, he asserts that the trial court erred in entering 
judgment because Appellant revoked his oral agreement to relinquish his parental 
rights prior to the entry of the order. Appellant’s fifth and final issue 
takes the position that the trial court did not have authority to enter an 
agreed order based on grounds which were different from the parties’ Rule 11 
agreement.2  Because we conclude that the 
agreement is unenforceable, we do not address whether the Appellant properly 
revoked his agreement or whether the agreed order is in compliance with the 
parties’ Rule 11 agreement.
        While 
people are generally free to contract, contracts which violate public policy as 
captured in statutory mandate are unenforceable. Williams v. Patton, 821 
S.W.2d 141, 147-48 (Tex. 1991) (orig. proceeding) (Doggett, J., concurring). 
Furthermore, a Rule 11 agreement is nothing more than a contract that satisfies 
the terms of Rule 11 of the Texas Rules of Civil Procedure. In re T.M., 
33 S.W.3d 341, 347 (Tex. App.—Amarillo 2000, no pet.). It too is regulated by 
laws pertaining to contracts in general and is therefore unenforceable if it 
violates public policy. See Padilla v. LaFrance, 907 S.W.2d 454, 460-61 
(Tex. 1995); Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 819 (Tex. 
App.—Fort Worth 2001, no pet.); T.M., 33 S.W.3d at 347. The family code 
expressly states that:

The 
public policy of this state is to:
 
(1) 
assure that children will have frequent and continuing contact with parents who 
have shown the ability to act in the best interest of the child;
 
(2) 
provide a safe, stable, and nonviolent environment for the child; and
 
(3) 
encourage parents to share in the rights and duties of raising their child after 
the parents have separated or dissolved their marriage.

Tex. Fam. Code Ann. § 153.001(a) (Vernon 2002).

        Here, 
the Rule 11 agreement does not comply with the required findings for termination 
under the family code. The relevant evidence on the record consists only of 
Appellant’s statement that he is in prison for murder and his statement that 
he would relinquish his parental rights in exchange for naming his mother and 
brother possessory conservators. This alone does not establish by clear and 
convincing evidence that termination is in the best interest of E.S.S. or that 
any of the statutory grounds for termination in the family code were met. Given 
the clear public policy encompassed within sections 153.001 and 161.001 of the 
family code, we conclude that the agreement in this case is unenforceable. See 
T.M., 33 S.W.3d at 347. We sustain Appellant’s fifth issue.
Conclusion
        From 
the record, it is apparent that the trial court did not proceed with a trial on 
the merits of Appellee’s petition for involuntary termination of Appellant’s 
parental rights in reliance on the settlement agreement reached between the 
parties. Because we find the agreement unenforceable, we reverse the judgment of 
the trial court and remand for a new trial on the merits. See Tex. R. App. P. 43.3(b).
 
   
                                                                  DIXON 
W. HOLMAN
                                                                  JUSTICE

 
PANEL 
B:   DAUPHINOT, HOLMAN, and McCOY, JJ.

DELIVERED: 
March 11, 2004


 
NOTES
1.  
Although the trial court’s judgment at trial was clearly based on 
Appellant’s oral relinquishment of his parental rights, we note that the 
resulting agreed order does not include a finding that Appellant relinquished 
his parental rights nor does it indicate that the decision was based on 
Appellant’s oral relinquishment.
2.  
See Tex. R. Civ. P. 11.
