
IN THE SUPREME COURT OF TEXAS
════════════
No. 
02-0244
════════════
In re L.M.I. and J.A.I., minor 
children
════════════════════════════════════════════════════
On Petition 
for Review from the
Court of 
Appeals for the Fourteenth District of Texas
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            Justice Hecht, joined by Justice Jefferson, and joined by Justice Owen on Parts I, IIA, IIIA, and 
IIIB, 
dissenting.            “[T]his 
case,” laments the Court, “has taken its excruciatingly slow course through our 
judicial system.” 

 Lamentably, a little more than a third of the excruciation has been in this 
Court. And just whose fault is that? Whose fault is it that this 
Court has taken 524 days to decide this case? Why, the parties’, of course, 
says the Court. Who else could be to blame? Not us. We’ve tried our very best, 
but “appellate review has been greatly hampered by the shifting, indistinct 
focus of their complaints”. 

 Well, well. The facts here are a bit of a problem. We decided six parental 
rights termination cases last Term, 

 and took, respectively, 199 days, 

 361 days, 

 387 days, 

 540 days, 

 584 days, 

 and 646 days 

 to issue an opinion in each. In none of the three cases that the Court took a 
week, eight weeks, and seventeen weeks longer to decide than it took to decide 
this case was “appellate review . . . greatly hampered” by poor 
briefing. 
            “[W]e 
still disagree about what the complaints are and whether they were preserved”, 
the Court moans. 

 And here again, the fault for our disagreement must in all fairness be laid 
squarely at the parties’ feet. If only the briefing had been better, the Court’s 
decision would have been prompt and unanimous. But before taking the Court’s 
word for this, the reader may wish to know that the parties have filed about 88 
pages of briefs and motions in this Court, the reporter’s record of the one-day 
hearing in the trial court is 328 pages, and the clerk’s record is 117 pages. 
All told, the record and briefs would not take any one of our law clerks more 
than half a day to master. Truth is, the Court knew what the issues were in this 
case from the time it was filed. What the Court has disagreed about for more 
than a year is not what the issues are, but whether these parents’ rights in 
their children can be terminated some technical way without having to address 
their arguments.
            Then 
in what I believe must rank as among the most bizarre statements to be found in 
an opinion from this Court, the Court says that what it is really trying to do 
in this case is: discourage foreign adoptions. This, the Court warns, is 
a mounting plague on our society, and for proof one need look no further than a 
story in last month’s Miami Herald. Thank goodness this case, poorly 
briefed and all, came along when it did, and that we delayed our decision until 
the Miami Herald’s exposé. If we hadn’t turned these parents away for 
poor briefing, no telling where adoptive parents would have had to go for 
“simpler and less expensive” 

 procedures in the future.
            The 
Court says that this case is about appellate procedure. You can’t argue on 
appeal what you don’t raise in the trial court. Pure and simple. Happens all the 
time. Too bad, really. Especially when children are at stake. The Court is 
certainly not unsympathetic to parents who claim that they have been unjustly 
deprived of their children. Absolutely not. Just can’t be helped, that’s 
all.
            With 
respect, and all nonsense aside, this case is not about appellate procedure or 
delay. It is certainly not about discouraging foreign adoptions. It is about the 
process for taking children from their parents, and it is about the Texas legal 
system’s treatment of people who do not speak English.
            Ricardo 
Duenas is Hispanic. His native tongue is Spanish. He was at work in a hotel 
kitchen one day when he was called and told to go immediately to the office of a 
lawyer he had never met, who as it turned out had been hired by a couple who 
wanted to adopt Ricardo’s five-month-old twin sons. There he was handed a 
seven-page, single-spaced affidavit, written in English, and told to sign it. He 
complied, although it took him two tries to get it right. He was told to initial 
every line of part of the affidavit, and he did. He initialed this sentence, 
written in boldface, capital letters:
I REALIZE THAT I SHOULD SIGN THIS AFFIDAVIT OF 
RELINQUISHMENT IF I AM NOT THINKING CLEARLY BECAUSE OF ILLNESS, MEDICATION, MY 
EMOTIONAL STATE, OR ANY OTHER REASON.
Apparently a “not” was left 
out. The affidavit was not read to him in English or Spanish. Parts of it were 
paraphrased to him briefly in Spanish. He understood it had something to do with 
losing his sons.
            Ricardo 
contends that he cannot be said to have voluntarily relinquished all rights to 
his twin sons by signing an affidavit written in English that he could not 
understand and that was not translated for him. This was his position in the 
trial court and the focus of the evidence at the one-day hearing (with an 
interpreter present, appointed by the court); it was his position in the court 
of appeals, was thoroughly briefed by all parties there, and was decided by that 
court on its merits; 

 it is still his position here. His lawyer on appeal has called the termination 
of his parental rights a violation of constitutional due process; his lawyer in 
the trial court did not use those exact words. Based on this relatively minor 
discrepancy and nothing else, the Court refuses to consider Ricardo’s position. 
His trial lawyer could have been more specific, even though she had only two 
days to prepare, and the appellate lawyer could have elaborated in briefs and 
argument. But still there cannot be the slightest doubt what Ricardo’s complaint 
is: he lost his five-month-old sons because he does not speak English.
            Nor 
can there be any doubt what his wife Luz Maria Sylvestre Inocencio’s complaint 
is. She contends that in signing her affidavit of relinquishment she was unduly 
influenced by the kindness of some of the participants in the process and 
defrauded by promises that her sons’ adoptive parents would send her pictures 
and update her on their progress. This was her position in the trial court; it 
was her argument in the court of appeals, was briefed by the parties, and was 
decided by that court; 

 it is still her argument here. For the same technical reasons, the Court 
refuses to consider whether Maria is right. Again, her appointed guardian ad 
litem at trial and her appellate counsel (who also represents Ricardo) might 
have been clearer, but there is still no mistaking Maria’s claim.
            To 
miss the simple arguments these parents make, one would seemingly have to 
understand as little English as Ricardo does. Yet the Court takes an extremely 
restrictive view of Ricardo and Maria’s brief, reading it to raise only narrow 
issues that were not ruled on by the trial court. The termination of parental 
rights, fundamental and constitutional in their magnitude, is thus held to turn 
on trifling points regarding the construction of appellate briefs. It has long 
been “our practice to liberally construe [briefs] in order to obtain a just, 
fair and equitable adjudication of the rights of the litigants,” 

 and our rules mandate this practice. 

 The Court does not follow the practice in this case, where the importance of 
the rights asserted make it all the more essential. It is fair to say that 
Ricardo did not make a due process argument to the trial court, but it is not 
fair to say that his brief, liberally read, makes no broader argument, or that a 
“just, fair and equitable adjudication” of his parental rights can be made if 
the core complaint he has made since he was sued is ignored. The same is true 
for Maria.
            To 
order that children be taken from their parents and given to others is a grave 
responsibility. To do it solely for technical reasons of appellate procedure, 
without regard for the parents’ arguments, is hard to justify. But to terminate 
parental rights as the Court does today, based solely on a rigid reading of a 
brief, is in my view indefensible. I would decide the case on the merits, not on 
procedure, and would reverse and remand to the trial court for further 
proceedings.
            Accordingly, 
I dissent.
I
            The 
Court’s summary of the record is as crabbed as its reading of petitioners’ 
brief. From the Court’s opinion, it is impossible even to begin to appreciate 
the context in which the important issues in this case arise. According to the 
record, here is what happened. Some events are disputed, as I will indicate, but 
many are not.
A
            In 
April 1999, Luz Maria Sylvestre Inocencio, age 15, gave birth to twin boys. She 
contends that Ricardo Duenas, age 25, was their father, and he admits he was. 
Ricardo and Maria were not married until later in the year. Detective Brian 
Goetschius had investigated a report that a minor — Maria, as it turned out — 
had been dancing at a strip joint, 

 and when he learned she was pregnant, he and his wife, Dawnell, took a personal 
interest in her. Maria’s older sister, Esther Gonzalez, age 33, a college 
graduate, deplored Maria’s lifestyle and decided that Maria could not care for 
her sons properly. Maria and the boys were staying with Esther and Maria’s 
mother, Guillerma Pruitt, and on September 2, 1999, Guillerma petitioned to be 
named their sole managing conservator, apparently with Maria’s agreement. 
Nevertheless, on September 21, Esther called Detective Goetschius to ask for 
help in placing the twins for adoption. A day or so later, the Goetschiuses told 
Esther that Dawnell’s sister and brother-in-law, Monica and Miles Montegut, 
would be willing to adopt Maria’s boys.
            On 
September 24, Esther went to Guillerma’s home and announced that she had “great 
news”: she had arranged for Maria to give her sons up for adoption that very 
day. This was certainly news to Maria, since this was the first Esther had 
mentioned it, but it was not “great” news, and Maria furiously refused to give 
up her sons. Maria says that she and Esther fought. Esther says Maria was 
emotional at first but soon calmed down and saw that adoption was best for her 
boys. Maria and Guillerma say that Esther threatened Maria with juvenile 
proceedings for having danced nude as a minor if she did not cooperate. 
Guillerma says that Esther threatened her with truancy proceedings for not 
having kept Maria in school. Guillerma says that she and Maria feared what would 
happen to them if they resisted the adoption, and that she and Maria were like 
“caged animals”, “like sheep to the slaughter”. Esther maintains that she 
threatened no one and that calm reason simply prevailed over all. In any event, 
Maria agreed to go to a lawyer’s office in Texas City within the hour and 
surrender her children. Esther told her that it would be necessary for Ricardo 
to agree as well, so on the way they stopped at a gasoline station, and Maria 
telephoned Ricardo at work in Galveston and demanded that he join her. She 
angrily told him that losing the twins was all his fault.
            Ricardo, 
a native of Honduras with temporary residence in the United States, was working 
as a cook at a hotel restaurant. He speaks and understands a little English, but 
there is no evidence that he can read or write English; Spanish is his language. 
He first heard of the proposed adoption when Maria called him at work on 
September 24 and demanded that he leave immediately and accompany her to a 
lawyer’s office. He says, and Maria and Guillerma agree, that he was told that 
if he failed to cooperate he would be prosecuted for statutory rape. 

 Esther and others present at the lawyer’s office deny that any threats were 
ever made. Ricardo rode with Maria to the lawyer’s office, where they met 
Guillerma and Maria’s brother, Solomon.
            The 
lawyer, Mark Ciavaglia, had been retained by Miles Montegut earlier in the week. 
Ciavaglia had been in court the morning of September 24, and upon his return to 
his office he was met with messages from Miles and Esther insisting that 
adoption papers be signed that day. He drew up the papers while Ricardo, Maria, 
Esther, Solomon, Guillerma, and the babies waited in his office.
            Ciavaglia 
prepared an affidavit entitled “Father’s Affidavit of Relinquishment of Parental 
Rights” for Ricardo to sign. How much Ricardo understood of the seven-page, 
single-spaced affidavit is vigorously disputed. The affidavit was not read to 
Ricardo in English or Spanish, but Ciavaglia paraphrased parts of it briefly and 
asked Guillerma to translate for Ricardo. Ciavaglia’s paralegal, who understood 
some Spanish but could not speak it, testified that Guillerma told Ricardo that 
by signing the affidavit he was giving up his rights to his children but did not 
tell him he could not change his mind later. Guillerma testified that all she 
told Ricardo was to sign the affidavit. There is no evidence that Ricardo was 
able to read the affidavit or that he did read it. He signed it and initialed 
several sentences, one of which stated, apparently incorrectly (or perhaps 
not):
I 
realize that I should sign this affidavit of relinquishment if I am not 
thinking clearly because of illness, medication, my emotional state, or any 
other reason.
(Emphasis added.)
            Ciavaglia 
then attempted to obtain Maria’s signature on an identical affidavit. At first 
she refused, but Ciavaglia offered to have the prospective adoptive parents 
agree that they would provide her periodic reports and pictures of the boys and 
would allow her to give them gifts. At that point Maria relented, and when 
Ciavaglia had discussed the matter with his clients, the Monteguts, and reduced 
the promise to writing, Maria signed the affidavit.
B
            On 
October 1, a week after the affidavits were signed, the Monteguts sued Ricardo 
and Maria to terminate their parental rights. The trial court issued an ex 
parte order temporarily giving the Monteguts custody of the boys. On October 
22, the court appointed a guardian ad litem for Maria because she was a minor. 
The record does not reflect that the guardian filed an answer for Maria.
            On 
November 15, trial was set for a week later, on November 22. On November 17, 
Ricardo filed an original answer in which he acknowledged paternity. Attached to 
the answer was his verified “Revocation of Affidavit”, in which he stated: “The 
Affidavit of Relinquishment was not translated for me.” Ricardo’s attorney 
reiterated this statement in a motion for continuance filed the day the case was 
called for trial. At a hearing on the motion the same day, counsel told the 
trial court:
My basic 
meritorious defense aside from [having only six days to prepare for trial] is 
the fact that my client speaks no English, was not translated the affidavit of 
relinquishment. He was basically picked up at his place of employment [in 
Galveston], taken to a law office in Texas City, and told if you don’t sign this 
document, the detective will take you to prison and that was all that was told 
to him. They did not translate the affidavit word for word or line for line. The 
attorney involved in that case was Mark Ciavaglia of Texas City. The translation 
was — of that comment was done by Esther Gonzalez who’s the older sister of 
Maria Inocencio, the minor mother in this case, and the minor mother also said 
the detective is outside and they’re going to take you to jail if you don’t sign 
this document. But it was never translated to him as to what the document meant 
as far as relinquishing his parental rights. Due to other people at work telling 
him that that was probably not constitutional and not right, they looked around 
for an attorney and he finally did hire me.
Counsel for the Monteguts 
urged the trial court to try the case immediately because the affidavits of 
relinquishment would expire the next day, the sixtieth day after they were 
signed. 

 The court denied the motion for continuance and immediately proceeded to 
trial.
            Ricardo’s 
counsel requested the presence of a court interpreter to translate the 
proceedings into Spanish, and the court attempted to locate one. When a suitable 
interpreter could not be found on such short notice, the court recessed the 
trial until the morning of November 23.
            A 
principal focus of the brief trial was on whether Ricardo could understand 
English and what he knew of the affidavit he signed. There was also testimony 
about the promise the Monteguts made to persuade Maria to sign her affidavit. At 
the close of the evidence, the court ruled from the bench that Maria and Ricardo 
had signed their affidavits voluntarily and without duress. The court 
immediately heard evidence on whether termination of the parents’ relationship 
was in the children’s best interest, and after a few minutes of testimony from 
Miles Montegut, concluded that it was. The court then rendered judgment orally 
terminating Maria’s and Ricardo’s relationship with their sons. The judgment 
signed December 16 recited:
Luz 
Maria Inocencio presented issues of fraud, duress, and overreaching to the Court 
to deny that her Mother’s Affidavit of Relinquishment of Parental Rights was 
signed voluntarily.
 
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.
 
The 
Court found after hearing the evidence that Luz Maria Inocencio executed her 
Mother’s Affidavit of Relinquishment of Parental Rights voluntarily and was not 
influenced by fraud, duress, or overreaching.
 
The 
Court found after hearing the evidence that Ricardo Duenas executed his Father’s 
Affidavit of Relinquishment of Parental Rights voluntarily and was not 
influenced by fraud, duress, or overreaching.
Findings made January 21, 
2000, echoed the judgment, adding that Ricardo and Maria had married:
Luz 
Maria Duenas’ signing of the Mother’s Affidavit of Relinquishment of Parental 
Rights was voluntary, and not secured by fraud, duress, or coercion.
* * *
 
Antonio 
Duenas’ signing of the Father’s Affidavit of Relinquishment of Parental Rights 
was voluntary, and not secured by fraud, duress, or coercion.
 
The 
Court finds that Luz Maria Duenas and Antonio Duenas have married after the 
signing of their Affidavits of Relinquishment of Parental Rights.
            Ricardo 
and Maria filed no post-trial motions.
II
A
            I 
agree with the Court that Ricardo did not raise in the trial court a claim that 
his constitutional due process rights had been violated. His counsel’s single 
mention of the word “constitutional” at the hearing on his motion for 
continuance was insufficient to call the matter to the trial court’s attention, 
especially in the haste in which the trial was conducted. But even a brief 
review of the record leaves no question that Ricardo’s complaint was not merely 
that his due process rights had been violated, but that he could not have 
voluntarily relinquished his sons by signing an affidavit he did not understand 
because it was in English. This was the principal focus of the trial.
            The 
Court concludes that Ricardo has not raised anything but a constitutional 
issue on appeal. It is true that the issue stated in Ricardo’s briefs in the 
court of appeals and this Court, and on which they focus, is whether his 
signature “was procured in a manner that violated Ricardo’s due process rights”, 
and this is the focus of his brief and petition. But we are obliged by rule to 
treat the issue “as covering every subsidiary question that is fairly included.” 


 Moreover, we construe briefs “liberally . . . in order to obtain a 
just, fair and equitable adjudication of the rights of the litigants.” 

 This practice becomes even more important when fundamental rights are at stake. 
Ricardo’s briefs in this Court and the court of appeals can fairly be read to 
raise a broader concern than constitutional due process. After pointing out the 
requirements of chapter 161 of the Texas Family Code, the briefs state: “Ricardo 
relinquished one of his most fundamental rights, i.e., the right of parenthood, 
by signing a document that he could not read and was never put forth to him in 
his native tongue.” One could well expect more elaboration of the argument, but 
when the briefs are read in light of the record, Ricardo’s complaint is 
clear.
            It 
was certainly clear to the Monteguts. In their fifty-page brief in the court of 
appeals, they argued at great length that the evidence showed that Ricardo 
understood enough English to know what he was doing and that the affidavit was 
translated sufficiently for him. The Monteguts devoted only a few sentences of 
their brief to arguing that Ricardo’s sole complaint was of a denial of due 
process. The court of appeals restated Ricardo’s complaint on appeal as one of 
due process, but it also added: “Ricardo claims that because he does not 
understand English, he did not understand what he was signing.” 

 The court concluded that “Ricardo’s right to have the affidavit accurately 
interpreted in a language he understands is a matter of due process,” 

 but concluded that the evidence failed to show that Ricardo did not understand 
what he was signing.
            As 
the Court points out, at one point in oral argument Ricardo’s counsel appeared 
to disavow any complaint except a denial of due process. What the Court does not 
see fit to mention is that Ricardo’s counsel opened his argument stating: “We 
further believe that in terms of the statutory requirements of placing a child 
were totally violated.”
            The 
extent of Ricardo’s understanding of English may be disputed, but there is no 
dispute that it is limited. It seems unjust to me to terminate his parental 
rights despite that limited understanding on the ground that his brief is not 
clearer. To read Ricardo’s brief as rigidly as the Court does simply compounds 
his limitations. I would consider the substance of his argument: was his 
affidavit of relinquishment effective given his limited understanding of 
English?
B
            Maria’s 
guardian ad litem should have been clearer at trial, even though she had only a 
month to prepare. She should have pointed out more directly Maria’s contention 
that she had been misled into signing the affidavit of relinquishment by the 
Monteguts’ promise to her that they would provide her reports and photographs of 
the boys and would let her send them gifts. There is no question that this is 
her principal complaint on appeal.
            The 
Court refuses to consider this complaint because Maria did not ask the trial 
court to rule on whether the Monteguts’ promise was legally unenforceable. But 
even though Maria did not request the trial court to rule, the trial court did 
rule: in its judgment it expressly recognized she had “presented issues of 
fraud, duress, and overreaching to the Court to deny that her [affidavit] was 
signed voluntarily,” and it specifically found against her on those issues. The 
Court offers no authority for imposing a requirement that the trial court have 
ruled on the subsidiary question whether the promises made to Maria were 
enforceable.
            I 
would therefore consider the substance of Maria’s argument: did the promises 
made to her defeat the effectiveness of her affidavit of relinquishment?
III
A
            Section 
161.001 of the Family Code states that a parent-child relationship may be 
terminated
“if the 
court finds by clear and convincing evidence: (1) that the parent has 
. . . (K) executed before . . . the suit is filed an 
unrevoked or irrevocable affidavit of relinquishment of parental rights as 
provided by this chapter . . . ; and (2) that termination is in 
the best interest of the child.” 

 
An affidavit of 
relinquishment of parental rights is not a simple instrument. Section 161.103(b) 
of the Family Code requires that a parent must swear to all of the 
following:
(1) the 
name, address, and age of the parent whose parental rights are being 
relinquished;
            (2)  the 
name, 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) one 
of the following, as applicable:
 
            
(A) the name and address of the other parent;
 
(B)a 
statement that the parental rights of the other parent have been terminated by 
death or court order; or
 
(C) a 
statement that the child has no presumed father and that an affidavit of status 
of the child has been executed as provided by this chapter;
 
(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; and
 
(12) the 
designation of a prospective adoptive parent, the Department of Protective and 
Regulatory Services, if the department has consented in writing to the 
designation, or a licensed child-placing agency to serve as managing conservator 
of the child and the address of the person or agency. 

 
It should go without saying 
that a person who executes such an affidavit must have some idea of all the 
facts to which he is required to swear. It is not enough that an affiant 
understand that he is severing his relationship with his children; he must 
understand what that means. The purpose of the statute is to prescribe the 
specific things a person must swear that he knows before he surrenders his 
children. Furthermore, proof that he did must be clear and convincing.
            So 
the question in this case is this: how much of the affidavit Ricardo signed did 
he understand? The answer, as a detailed review of the evidence below 
demonstrates, is that the most he could possibly have understood was that 
by signing the affidavit he was losing his sons. There is no evidence at all, 
for example, that Ricardo thought relinquishing his sons was in their best 
interest, or that he knew what rights and duties parents have, or that he 
understood his decision was irrevocable for sixty days. The most important part 
of the affidavit, and the only part that may have been paraphrased to him in 
Spanish, omits the word “not” and consequently states the very opposite of what 
was intended. If an English-speaking lawyer could not get the language right, it 
is hard to imagine how Ricardo could have been expected to understand it.
            The 
Court’s view of this case is that the evidence was conflicting and the trial 
court made the call, end of story. But only last Term we held that evidence for 
terminating a parent-child relationship must be carefully reviewed to determine 
whether it is clear and convincing. 

 Specifically, we said:
In a 
legal sufficiency review [of a termination of parental rights], a court should 
look at all the evidence in the light most favorable to the finding to determine 
whether a reasonable trier of fact could have formed a firm belief or conviction 
that its finding was true. 

 
In my view, when one 
considers all the evidence regarding what Ricardo understood or could have 
understood and then reads the affidavit he signed, it is impossible to conclude 
that there is any clear and convincing evidence that he understood a word of 
what he signed.
            Ricardo 
testified through an interpreter. He stated that he had been in the United 
States four years and was working as a cook. His supervisor, he said, spoke only 
English, and a co-worker had to translate for him. He stated that he could 
neither read nor write English. Asked whether he understood some English, he 
answered, “Very little. A word here and there.” Regarding the signing of the 
affidavit of relinquishment, he stated that he understood only that he was 
required to sign and initial the affidavit, nothing else. Specifically, he 
testified as follows, as translated by the interpreter:
Q Now, 
Mr. Duenas, could you tell us what happened on the day that the Affidavits of 
Relinquishment of Parental Rights were signed?
 
A Uh, 
they picked me up at my work. They took me to an office. What they have that 
papers that I signed that I didn’t know what I was signing and nobody explained 
to me anything.
* * *
 
Q Do you 
recall who gave you the papers?
 
A Well, 
I don’t know if it was a lawyer or notary, but they gave me the paper. He said, 
“Sign here, and then date it and initial it there,” and that was it.
* * *
 
Q Did — 
did the man that gave you the papers to initial and to sign, did he translate 
for you what those papers meant?
 
A 
No.
* * *
 
Q So all 
you know is that the last page has your signature; is that correct?
 
A 
Yes.
 
Q And 
the second to the last page has your initials; is that correct? Actually, it’s 
the third.
 
A 
Yes.
 
Q And 
are those the areas where the man told you to put your initials?
 
A 
Yes.
 
Q And in 
putting those initials, did that man or the secretaries or anybody in that room, 
did they translate to you what that document meant?
 
A 
No.
* * *
 
Q And, 
Mr. Duenas, how much English, if any, do you understand?
 
A I only 
understand “put your name” and “initial that thing there.” That’s all.
 
Q Was 
that what was translated to you?
 
A Yes. 
It was translated to me, but I understood that. Only that.
            Maria 
verified that Ricardo does not speak English and cannot understand it. “One 
time,” she testified, “I told him to say the word ‘seagull.’ That’s what I got 
out of him.” Regarding his signing the affidavit of relinquishment, she 
testified as follows:
Q 
. . . [W]ho translated the document for Mr. Duenas?
 
A Nobody 
translated.
 
Q What 
was Mr. Duenas told he was signing?
 
A When I 
got there, I didn’t really tell him what it was. I just told him, “Put your name 
here, put the date there.”
 
Q Did 
any of the secretaries for the attorney translate to Mr. Duenas what was in that 
document?
 
A No. I 
don’t think anybody there spoke Spanish.
 
Q So the 
attorney didn’t translate it either for him?
 
A No. He 
was just reading it in English, pointing and then out — because there would be 
sometimes that Ricardo wouldn’t catch on and he would point and say, “Put your 
name there,” but then he would just initial it. So I’d have to tell him — 
(speaking Spanish) — “Put your whole name.”
 
Q And 
did your mother or your sister translate the seven-page document to Mr. 
Duenas?
 
A My 
sister doesn’t speak good Spanish. My mom — she tried to start out telling him, 
and I told her, “Shush.”
 
Q So no 
one in that office, while Mr. Duenas was signing the Affidavit of 
Relinquishment, explained to him that this document meant that he was giving up 
his rights as a parent forever; is that correct?
 
A 
No.
 
Q And no 
one explained to him by signing this document he couldn’t change his mind until 
after 60 days — 
 
A 
No.
 
Q — is 
that correct? And by that, I mean translating it into Spanish what he understood 
the document meant?
 
A 
No.
 
Q To 
your knowledge, had Mr. Duenas ever talked about giving up his babies for 
adoption or anything like that?
 
A No, of 
course not. He used to tell me if I wanted to be stupid and — and if I didn’t 
act right, that he would take the babies and he would raise them. And I would 
tell him, “You’re crazy.”
            Maria’s 
mother, Guillerma, understands both English and Spanish, and she spoke to Duenas 
in Spanish in the lawyer’s office. This is what she testified:
Q Did 
[the lawyer] read at this time to anybody in Spanish?
 
A No. 
No, he can’t read it in Spanish.
 
Q Okay. 
Did anybody ask you to — or let me rephrase it. Did you translate any of the 
documents for anybody else?
 
A No, 
ma’am. I wasn’t given the chance.
* * *
 
Q Did 
you tell Ricardo Duenas what the papers were about in Spanish?
 
A No, 
no. Uh, I wasn’t given that opportunity.
 
Q So you 
didn’t ever speak Spanish at all during your — the time that you were at Mr 
Ciavaglia’s [the lawyer]?
 
A The 
little words I said, it was not that much. It was my own, uh — Mr. Ciavaglia 
wanted someone to interpret so he could understand what was going on, and that’s 
all.
 
Q And so 
you did say a few words in Spanish, didn’t you?
 
A A few, 
a few.
 
Q And 
what was it that you said? Tell us in English what you told Mr. Duenas.
 
A I 
looked at him and I told him that, uh, Mr. Ciavaglia wanted those papers, uh, 
interpreted to him.
 
Q And 
what else did you tell him?
 
A 
Nothing, nothing.
 
Q And 
didn’t you tell him, Mr. Duenas, that these were papers that they wanted him to 
sign where he was giving up his rights to the babies? Didn’t you tell him that 
in Spanish?
 
A No, 
no. No.
            Esther, 
Maria’s sister who arranged for the adoption, testified that she understood some 
Spanish but could not speak it fluently and could not and did not converse with 
Ricardo. As for what Ricardo understood about what was happening, this is her 
account of the events:
Q 
. . . And then did you discuss the father [with the lawyer] and how to 
get him involved in this process?
 
A The 
babies looked like him, but we weren’t absolutely sure that he was the father. 
DNA testing had not been done. It was assumed that he was. And I am not fluent 
in Spanish, so I cannot communicate with him to — with him. So, if anything, it 
would have to be told to him. My mother and my sister would have to be the 
ones.
* * *
 
Q Did 
Ricardo Duenas make any motions or do anything that would indicate that he knew 
what was going on that day?
 
A 
Yes.
 
Q What 
was that?
 
A He 
agreed to put his initials in the areas where he was — where he needed, and he 
was asked over and over again if he understood.
 
Q And 
who asked him over and over if he understood?
 
A Mark 
[the lawyer] asked him, and my mother asked him also.
 
Q And 
did your mother ask him in Spanish if he understood what he was doing that 
day?
 
A 
Yes.
 
Q But 
Mr. Ciavaglia did not speak Spanish to Ricardo Duenas; is that right?
 
A Right. 
That is correct.
* * *
 
Q [By 
the Court:] Okay. And can you tell me if someone explained each of those lines 
to him, or was it just a cursory summary, or was it a detailed explanation?
 
A Mark 
[the lawyer] explained it in detail. And Ricardo kept on, like he acknowledged 
what was being said. And then my mother made an attempt also in Spanish and 
asked Ricardo did he understand, and he said yes, and he continued putting his 
initials on there.
 
Q [By 
the Court:] But how could he understand if no one went line by line in Spanish 
and read that to him? That is — that’s my dilemma right here.
 
A I 
can’t read his mind, ma’am. I don’t know. He said he understood. That’s all I 
know.
 
Q [By 
the Court:] And who asked him if he understood?
 
A Mark 
did.
 
Q [By 
the Court:] In English?
 
A 
Yes.
 
Q [By 
the Court:] And he answered in English? I mean, if you can remember.
 
A He did 
not speak much. He just nodded his head. I don’t recall him speaking much at 
all.
* * *
 
Q Based 
on your observations of Ricardo Duenas and your sister in Mr. Ciavaglia’s 
office, do you believe both of them understood what was going on?
 
A Yes, I 
do.
 
Q And do 
you believe that the relinquishment document was, in fact, explained to Ricardo 
Duenas in Spanish?
 
A Yes. 
As much as he needed, yes.
* * *
 
Q Okay. 
At one point your mother attempted to translate the document for Mr. Duenas; is 
that correct?
 
A Yes, 
that is correct.
 
Q And 
what happened during that translation?
 
A She 
asked him if he understood all the details, and my little sister also 
communicated with him in Spanish.
 
Q So it 
was actually both your mother and sister that were talking to him in 
Spanish?
 
A Yes. I 
remember both of them doing that, doing some — 
* * *
 
Q And 
the — are you sitting here and telling the Court today that on September 24th, 
when the attorney and the secretaries presented the seven-page document to Mr. 
Duenas, that those seven pages were translated to Mr. Duenas in Spanish?
 
A Each 
page was not translated word for word, no.
* * *
 
Q So the 
total sum of the translations were actually three or four sentences, weren’t 
they?
 
A I 
don’t recall exactly.
 
Q It was 
very quick, wasn’t it, the translation that your mother supposedly — or Maria 
gave to him (indicating)?
 
A It 
wasn’t within, like, 30-minute time intervals, no. They were not that long.
 
Q Would 
three or four sentences be about right, the translation that your mother did or 
that Maria did?
 
A I 
don’t recall exactly how many lines were said.
* * *
 
Q You 
testified earlier that you’re “not very fluent in Spanish.” Wasn’t those your 
exact words?
 
A 
Conversational Spanish, yes.
 
Q Okay. 
So, then, how is it that you can sit here today and tell this Court that Mr. 
Duenas had heard as much as he needed to hear?
 
A I 
didn’t state that.
 
Q Yes, 
you did. You didn’t just say on testimony from [counsel for the Monteguts] — on 
your direct testimony that he heard, and I quote, “as much as he needed”?
 
A Okay. 
As much as he needed apparently to understand because he nodded and he 
acknowledged that he understood repeatedly.
 
Q Okay. 
But it was being read to him in English, correct?
 
A That’s 
corret.
 
Q Okay. 
If I started speaking to you in French right now — you don’t speak French, do 
you?
 
A 
No.
 
Q And I 
kind of nodded my head and was speaking to you in French, would you have any 
idea what I was talking about if I just started speaking French right now?
 
A 
No.
 
Q Okay. 
But if I smiled at you and nodded my head and looked sort of favorably upon you, 
is it possible that you might just nod your head back?
* * *
 
A No, 
because I wouldn’t know what I would be agreeing to.
 
Q But 
how would you even know you were agreeing to anything if you didn’t understand 
the French language?
 
A I 
would not be able to elicit a response if I did not understand what’s being 
said.
 
Q Okay. 
Thank you. Now, you said that on the 21st you called Mr. Ciavaglia’s office and 
you had talked to Detective Goetschius and you got all of this arranged before 
you went over there on the 24th. Didn’t you think it might be a good idea to 
talk to either Ricardo or [Maria] before you got all this arranged to find out 
whether they were even in agreement with it?
 
A I have 
not had any communication with Ricardo one on one because I cannot converse 
fluently in Spanish.
* * *
 
Q On 
September 24th, after Mr. Duenas signed the papers, you spoke to him; is that 
correct?
 
A 
After?
 
Q After 
the papers were signed.
 
A 
Outside of the lawyer’s office.
 
Q And 
would you tell the Court what you said?
 
A I told 
him in English — I walked to him and shook his hand. I told him, “Thank you. 
What you are doing is very courageous.”
 
Q And 
did your mother translate what you said?
 
A I 
asked her so he could make sure to understand what I was saying. And she started 
to — and then she said — I can’t recall word for word, that, “Oh, he says he 
understands. I don’t need to.”
            Mark 
Ciavaglia had been in practice six years when he agreed to represent the 
Monteguts in adopting Ricardo’s and Maria’s sons. He does not understand 
Spanish. Concerning the events in his office, he testified as follows:
Q How 
did you receive the information [for the affidavit of relinquishment] for 
Ricardo Duenas?
 
A I 
asked him verbally.
 
Q And 
was he able to understand what you asked him and relay that information?
 
A He 
seemed to be. He seemed to understand English and responded to questions.
 
Q When 
you asked for his name, did he respond with his name correct — give you a detail 
of his name, or did he write it out? How did he do it?
 
A He 
pronounced it, and I just wrote it. As I wrote his last name, I spelled it out 
loud; and he acknowledged that was correct.
 
Q And 
you don’t speak Spanish, correct?
 
A That’s 
correct.
 
Q And he 
— did he respond to what is your address and other information, what is your 
Social Security number, what is you Texas driver’s license number?
 
A At 
some point when I asked for his Social Security number, I don’t recall who 
responded or — as to the address. I was asking, just writing the information 
down. As to the question about his Social Security number, uh, he didn’t really 
respond. And I don’t remember if it was Maria or [Guillerma] that said he 
doesn’t have a Social Security number, didn’t have his wallet with him.
* * *
 
Q What 
specifically did you tell the parties?
 
A I 
again introduced myself and told them — or stated to them, “Does everyone 
understand why we’re here today? You’re here to sign documents. I’m going to 
offer to you some documents for your inspection and your signature that will 
begin the process of adopting these children.”
 
Q And 
did Ricardo Duenas do anything that would indicate whether he understood what 
you were saying?
 
A He 
said very little. During the course of that statement, I said — I kind of looked 
at each and every one of them. I said, “Do you understand? Do you understand?” 
Ricardo was to my left, and I said, “Do you understand?” And he nodded. I 
specifically said, “Do you understand,” in English. And he nodded his head yes 
and he mouthed yep. Like yep.
* * *
 
Q And 
what discussion was had with Mr. Duenas about his document?
 
A I 
explained that I would offer to each of them two documents. I turned to Mr. 
Duenas and I said, “This document, the first document, is an affidavit that 
acknowledges your paternity.” And I, knowing that sometimes legalese is 
intimidating for laypersons, I asked, uh — I kind of made sure that they were 
aware in common English what that meant. I said, “By signing this document, 
you’re admitting that you’re the father of these children.” And there’s some 
other reference, statutory information.
 
Q Okay. 
Now, did he say yes, he understood, or no, he didn’t? Or did he acknowledge 
anything?
 
A He 
didn’t really acknowledge either way. He just looked at the document.
 
Q Okay. 
Now, with regards to the Affidavit of Relinquishment of his parental rights, did 
you explain what that document was?
 
A I 
did.
 
Q And 
did he make any response whatsoever to your explanation?
 
A Not at 
all.
 
Q Okay. 
Was there any discussion amongst the people in the room whether he understood or 
whether he should have a translator or anything?
 
A The 
documents that I offered first, the Affidavit of Relinquishment, as we were 
going through the form and I was explaining it to him, and I use the same term 
each time, “By signing this document, you fully, finally, and forever give up 
all parental rights to these children.” As I was going through that, Maria noted 
— she was sitting across from Mr. Duenas. She noted that her name was spelled 
incorrectly on the document.
 
Q Okay. 
So what happened then?
 
A Well, 
at that point she corrected the spelling of her last name. I went back and 
corrected all the documents. And this is after he had signed it, okay.
 
Q So, 
then, he had to resign the documents, is that correct?
 
A That’s 
correct.
 
Q Now, 
before he resigned the documents, was there any point in time that anybody in 
Spanish went over any parts or all of those documents?
 
A 
Yes.
 
Q What 
happened and who supposedly was it that went over those documents with him in 
Spanish?
 
A Ms. 
Pruitt.
 
Q And 
would that be Maria’s mother?
 
A That’s 
correct.
 
Q And 
what — what do you recall her doing with regards to that document?
 
A 
There’s a specific part of the form that requires a set of initials by each one. 
It’s a double-spaced section. And it denotes if — I’m paraphrasing — it says 
that they understand the importance of this document. . . . I directed 
his attention specifically to this section and began to read it. And at that 
point, Esther said, “Mom, why don’t you translate that to him to make sure he 
understands?” At that point, Maria turned to her mother in a very agitated 
fashion and said, “He don’t give a shit. He don’t even buy diapers.” So, 
nonetheless, Ms. Pruitt did continue to, uh, what sounded to me was to translate 
that in Spanish.
 
Q Did it 
take her awhile to read that into Spanish?
 
A She 
didn’t seem to read it. She was repeating what I was saying, which was 
paraphrasing this language.
 
Q Okay. 
And was that what you were saying basically that, “I understand that I’m 
executing this relinquishment, and I’m giving up my rights to my children”? 
. . . In your words, how did you explain that in English before it was 
translated.
 
A What I 
told him was that, “This document is very — excuse me — very important. And that 
by signing it, you’re acknowledging that you understand this document and you 
understand the consequences of this document, and that is that you fully, 
finally, and forever give up any parental rights to your children. And you also 
relinquish your right and give up your right to change your mind.”
 
Q [By 
the Court:] And you said that pretty much the way you just told me?
 
A That’s 
correct.
 
Q [By 
the Court:] And you’re telling me that Ms. Pruitt, the grandmother, interpreted 
that after you said it in English?
 
A She 
was speaking in Spanish. I can’t say.
 
Q [By 
the Court:] You can’t speak Spanish. But you think she was translating what you 
said in English?
 
A That’s 
correct.
 
Q [By 
the Court:] Go ahead.
 
Q And 
then what happened after the — Ms. Pruitt said things in Spanish to Mr. 
Duenas?
 
A Uh, 
Mr. Duenas then initialed beside each line. He executed the document in the 
signature spaces as provided in front of the witnesses. Uh, and the witnesses 
signed and, uh, the person that was the notary notarized the document.
* * *
 
Q Mr. 
Ciavaglia, are you telling this Court that Ms. Pruitt translated these seven 
pages to my client, Mr. Duenas?
 
A No, 
ma’am.
 
Q In 
fact, she probably said a sum total of three or four little sentences the whole 
time she was there in Spanish to my client, didn’t she?
 
A She 
said more than that.
 
Q And 
when you would say, “You need to sign on this blank,” and the translation would 
have been (speaking Spanish). If that was repeated several different times, you 
don’t know that the translation was, “You’re giving up your rights to your 
children forever,” and rather the translation is, “You need to sign on this 
line, you need to sign on this line, and you need to sign on this line,” which 
was being translated? Do any of your staff know what Ms. Pruitt was translating 
to Mr. Duenas?
 
A I 
could testify as to what I know; and I do not speak Spanish and I do not know 
what she translated.
* * *
 
Q What 
you’re saying is that you made an assumption that because — when you were 
talking in English and he was nodding his head, that he understood what was 
going on?
 
A I 
believed he knew what was going on, yes.
 
Q And 
would you know that in pointing to him where he needed to sign, that if someone 
was telling him you need to sign there, if there was — you said he was very 
quiet. In fact, he hardly talked at all is what you said a few minutes ago; is 
that correct? Mr. Duenas was very quiet?
 
A 
Yes.
 
Q In 
fact, he hardly talked at all?
 
A 
Correct.
* * *
 
Q And 
you assumed that by Mr. Duenas’ silence, that he was agreeing to everything; is 
that correct?
 
A I 
assumed he understood.
* * *
 
Q Okay. 
And isn’t it true that in the draft that had to be redone because of the 
misspelling of the name, that at one point Mr. Duenas — forgive me — Mr. Duenas 
had either initialed where he was supposed to sign or signed where he was 
supposed to initial or vice versa?
 
A That’s 
correct.
 
Q Okay. 
So what — wouldn’t that kind of indicate to you that he didn’t understand what 
he was supposed to do in that situation?
 
A 
No.
 
Q Okay. 
And while Ms. Pruitt was talking with Mr. Duenas, you don’t have any idea what 
she was talking to him about, do you?
 
A In 
Spanish?
 
Q 
Yes.
 
A 
No.
 
Q Okay. 
And you said that you were basically paraphrasing the document; is that correct? 
And that she was repeating what you were paraphrasing?
 
A 
Yes.
 
Q Don’t 
you think it’s kind of possible since we’re repeating paraphrasing that 
something might have been lost in the translation?
 
A Since 
I don’t know — you’re asking me?
 
Q Is it 
possible?
 
A Is it 
possible? Sure.
            Finally, 
Ciavaglia’s paralegal, Laura Hernandez, was present at the meeting and witnessed 
the Duenas’s execution of the affidavit of relinquishment. Hernandez understands 
Spanish but cannot speak it. She testified to what she observed as follows:
Q Did — 
at the beginning of the conference, did you have occasion to hear Mr. Ciavaglia 
say anything to the parties?
 
A He 
just explained what was going on, and if they didn’t — you know, if they didn’t 
want to go through with it, they didn’t have to. And they wanted to make sure 
that everybody knew what was going on and they understood what was going on.
 
Q Did 
you — did you notice whether Ricardo Duenas actually made any indication that he 
understood? Just from the preliminary statements that Mr. Ciavaglia gave, that 
he understood?
 
A We 
weren’t sure if he understood. And Esther kept saying, “Make sure he understands 
what he’s saying.” And then Maria said, “Well, he don’t care.”
 
Q Okay. 
And are you talking about later on as he was presented with this Affidavit of 
Relinquishment?
 
A 
Right.
* * *
 
Q Okay. 
Did Mr. Ciavaglia explain the papers to Maria Inocencio?
 
A Yes, 
he did.
 
Q Was 
his explanation to her more detailed than it was to Ricardo Duenas?
 
A No, 
because I explained it to Maria, and then she said okay. Then he started to 
explain it to the father, and he, you know — he kind of looked like he didn’t 
know what he was saying. Then the grandma translated it to him, and he was 
shaking his head yes. When she was translating — I understand Spanish. I can 
understand it, but I can’t speak it back. And she was telling him the correct 
things.
 
Q Okay. 
So would you tell the Court what it was that the grandmother was actually 
telling Mr. Duenas?
 
A That 
he was giving up his rights of the children, and that he will no longer be 
responsible for them. And that once this is all through, that’s it, you 
know.
 
Q So did 
she tell him whether or not he would have an opportunity to change his mind 
later?
 
A No, 
she didn’t.
 
Q Okay. 
Based on what you heard that the grandmother translated in Spanish to Mr. 
Duenas, do you believe he fully understood — 
 
A 
Yes.
 
Q — what 
was happening?
 
A Yes, 
because he kept shaking his head yes, he understood. And she just kept telling 
him to sign it, just sign it. Maria kept telling him just to sign it.
 
Q So 
Maria didn’t really want to have much discussion?
 
A No 
. . . .
* * *
 
Q Now, 
you were actually a witness on both the father’s Affidavit of Relinquishment of 
Parental Rights and also the mother’s; is that right?
 
A That’s 
correct.
 
Q And do 
you feel, based on your observations in the room and what you saw and what you 
heard of the parties, that they both understood fully what they were 
signing?
 
A Yes, 
ma’am.
* * *
 
Q And 
you heard what Esther was telling Maria and what Maria was telling Mr. 
Duenas?
 
A 
Yes.
 
Q And in 
the seven pages of the affidavit, you’re saying that Ms. Pruitt translated that 
affidavit to Mr. Duenas?
 
A She 
was just telling him that he was giving up his rights as a father because Maria 
kept saying, “Don’t worry about this. Just tell him to sign it there and he’ll 
sign it.”
 
Q And, 
in effect, Ms. Pruitt didn’t tell him about terminating parental rights. She 
just said, “Sign it,” didn’t she?
 
A 
No.
 
Q “Just 
sign here and sign here”?
 
A Maria 
was saying, “Just sign it.” The grandmother was trying to translate it to him, 
but Maria was the one that kept pushing. “Initial, sign it.”
 
Q In 
fact, the grandmother never translated to him that his rights are going to be 
terminated right then and there?
 
A She’s 
just saying that his father — he wasn’t going to be the father anymore, that 
he’s giving up his rights. That’s what she was telling him.
 
Q And 
you’re saying she was telling him that in Spanish?
 
A Yes, 
she was.
 
Q And 
she wasn’t telling him to sign here and sign there, sign the different parts? 
She never told him that?
 
A Maria 
was pointing out to him where to sign, and he would sign it.
 
Q And 
the attorney was there during the times that Ms. Pruitt was translating, is that 
correct?
 
A Yes, 
ma’am.
 
Q And 
did Mr. Duenas ever say anything during that whole process of signing any of the 
affidavits?
 
A He did 
not.
 
Q Never 
said a word?
 
A Never 
said a word.
 
Q Did 
anyone verify with him that he understood?
 
A They 
asked him if he understood, and he said yes.
            In 
sum, there is no evidence that Ricardo read the affidavit of relinquishment or 
that he was able to read it, and the uncontradicted evidence of several 
witnesses is that the affidavit was not translated to Ricardo. Several witnesses 
testified that they thought or believed or assumed that Ricardo understood, and 
that he indicated by nodding his head or mouthing “yep” that he understood, but 
none of these witnesses stated what it was exactly that Ricardo understood. It 
seems fairly clear that he knew he was losing his children, but the paralegal, 
who understood Spanish, testified without contradiction that he was never told 
in Spanish that his affidavit would be irrevocable for sixty days. There is no 
evidence that Ricardo thought adoption was in his sons’ best interest, as he was 
required by statute to swear, or that he understood the parental rights he was 
losing, again as the statute required him to swear.
            What 
various witnesses’ meant when they testified that Ricardo “understood” cannot be 
appreciated without reading the affidavit Ricardo signed. This is what it 
stated:
FATHER’S 
AFFIDAVIT OF RELINQUISHMENT
OF PARENTAL 
RIGHTS
 
STATE OF 
TEXAS                  }
 
COUNTY OF 
GALVESTON  }
 
       BEFORE 
ME, the undersigned authority, on this day personally appeared RICARDO ANTONIO 
DUENAS who, by me being duly sworn, in the presence of the undersigned credible 
witnesses, made the following statements, and swore that they were 
true:
 
       “My 
name is RICARDO ANTONIO DUENAS. Social Security Number                     , 
Driver’s License Number   [ 
]   in the State of   Texas  . My age 
is 26 years. My residence address in 3714 Avenue S, Galveston, Galveston County, 
Texas 77550.”
 
       “I 
am the father of twin children:
 
       [L.M.I.], 
a male child born on April 9, 1999, and [J.A.I.], a male child born on April 9, 
1999, both twin children born to LUZ MARIA INOCENCIO at UTMB, Galveston, 
Galveston County, Texas.”
 
       “The 
natural mother of the children, LUZ MARIA SYLVESTRE INOCENCIO and the children 
reside at 806c – 3RD Avenue 
South, Texas City, Galveston County, Texas 77590.”
 
       “I 
am not presently obligated by court order or decree to make payments for child 
support in this or any court or jurisdiction.”
 
       “No 
property is owned or possessed by the children.”
 
       “I 
designate   MILES QUENTIN 
MONTEGUT   and   MONICA GAIL 
MONTEGUT  , qualified persons, as managing co-conservators of 
the children. I have been informed that my parental rights, powers, duties, and 
privileges are as follows:
 
1. the right to have physical 
possession, to direct the moral and religious training and the [sic] establish 
the legal domicile of the children;
 
2. the duty of care, control, 
protection, and reasonable discipline of the children;
 
3. the duty to support the 
children, including providing the child with clothing, food, shelter, medical 
care, and education;
 
4. the duty to manage the estate 
of the children, except when a guardian of the estate has been 
appointed;
 
5. the right to the services and 
earnings of the children;
 
6. the power to consent to 
marriage, to enlistment in the Armed Forces of the United States, and to 
medical, psychiatric and surgical treatment;
 
7. the power to receive and give 
receipt for payments for the support of the children and to hold or disburse any 
funds for the benefit of the children;
 
8. the power to represent the 
children in legal action and to make other decisions of substantial legal 
significance concerning the children;
 
9. the right to inherit from and 
through the children; and,
 
10. any other rights, privileges, 
duties and powers existing between a parent and children by virtue of law, 
including decisions concerning medical care and treatment.”
 
I freely and voluntarily give and 
relinquish to the above-named managing co-conservators all of my parental 
rights, powers, duties, and privileges.”
 
       “I 
fully understand that a lawsuit will be promptly filed in a Court in Galveston 
County, Texas to terminate forever the parent-child relationship between me and 
the above-named children. I fully understand that the termination suit may or 
may not be combined with a suit to adopt the children. I understand that either 
way, once the Court terminates my parental rights, I have no further say 
concerning my children, whether or not my children are adopted then or at some 
later time.”
 
       “I 
know that I have the right to appear personally before the Court, with an 
attorney of choice, to testify about my desires with respect to my children. 
However, I do not want to go to court in person. I have been encouraged to seek 
independent legal advice, but I do not feel that is necessary. I want this 
Affidavit of Relinquishment of Parental Rights presented to the 
Court.”
 
       “Because 
I do not want to testify in person before the court, I freely and voluntarily 
waive and give up my right to the issuance, service, and return of citation, 
notice and all other process in any suit to terminate my parental rights or in 
any suit to terminate my parental rights joined with a suit to adopt. By 
executing this affidavit and desiring to having [sic] it presented to the court 
on my behalf, I freely and voluntarily consent to the jurisdiction of a court of 
competent jurisdiction of the State of Texas. I do not want to be informed 
further about the lawsuit, and I waive and give up my right to be given notice 
about anything [sic] proceedings in the lawsuit. I specifically agree that a 
final hearing in the lawsuit may be held at any time without further notice to 
me. I waive and give up my right to have the official court reporter make a 
record of the testimony in the lawsuit. Furthermore, I do not want to be mailed 
or given a copy of the judgment terminating my parental rights and do not want 
to be notified of the signing, rendition, or enty of that judgment. Therefore, I 
waive and give up my right insist [sic] that those things be done. I also 
consent to have any suit affecting the parent-child relationship filed or to be 
filed with respect to the above-identified children be decided by a family law 
master appointed pursuant to Texas Government Code § 54.001.”
 
       “If 
I am in the armed services of the United States at this time, that fact in no 
way interfered with my freedom the [sic] make my decision to execute this 
affidavit, and, insofar as this matter is concerned, I waive all rights, 
privileges, and exemptions existing or that may hereafter exist in my favor 
under the Soldiers’ and Sailors’ Civil Relief Act of 1940, including the 
appointment of counsel to represent me in this cause.”
 
       “I FULLY UNDERSTAND THAT I MAY NOT BE FURTHER INFORMED 
ABOUT THE TERMINATION SUIT OR ABOUT ANY OTHER HEARING OR PROCEEDING AFFECTING 
THE CHILD NAMED IN THIS AFFIDAVIT.”
 
       “Termination 
of the parent-child relationship is in the best interest of the children. I 
understand that I made this termination possible by executing this affidavit. 
With that in mind, I hereby declare that this Affidavit of Relinquishment of 
Parental Rights is and shall be irrevocable for sixty (60) days. I FULLY UNDERSTAND THAT, IF I CHANGE MY MIND, I CANNOT 
FORCE THE MANAGING CONSERVATOR TO DESTROY, REVOKE, OR RETURN THIS AFFIDAVIT AND 
THAT I CANNOT TAKE BACK OR UNDO THIS AFFIDAVIT IN ANY WAY DURING THIS 60-DAY 
PERIOD. I FURTHER UNDERSTAND THAT MY PARENTAL RIGHTS PROBABLY WILL HAVE ALREADY 
BEEN ENDED FOR ALL TIME BEFORE THIS 60-DAY PERIOD EXPIRES. I also 
understand that, if my parental rights have not been ended within this 60-day 
period, this affidavit shall remain in full force and effect until I revoke it. 
I FULLY UNDERSTAND THAT, AT ANY TIME UNTIL THIS 
AFFIDAVIT IS REVOKED, MY PARENTAL RIGHTS MAY BE TERMINATED FOR ALL 
TIME.”
 
       “I 
have carefully considered alternate plans for my children’s future and have 
obtained the advice of whatever family members, friends, or other persons and 
professionals I feel were necessary to help make this decision. This decision is 
very difficult for me to make, and under other circumstances I might have made a 
different decision. Nevertheless, under the circumstances I find myself in, I 
have decided that I cannot provide properly for my children’s physical and 
emotional needs, and I want   MILES QUENTIN 
MONTEGUT   and   MONICA GAIL 
MONTEGUT   to provide my children a permanent home. I declare 
that I fully understand the meaning of this Affidavit of Relinquishment of 
Parental Rights and the finality of my action in signing it, and understanding 
all of this, I am signing it freely and voluntarily, and with the firm 
conviction that this decision is the best available alternative for my 
children.”
 
       “I 
am signing this affidavit today because I want to sign it and not because any 
other person or persons want me to sign it. I am ready emotionally and in every 
other way to make the decision I am making today. I am signing this affidavit in 
the presence of the two undersigned witnesses, each of whom is present and 
acting as a witness. I want them to be here and witness my signature. I am also 
signing this affidavit before a notary public who has asked me under oath 
whether or not each and every statement in this affidavit is true and correct 
and has advised me not to sign it unless it is true.”
 
s/ RD  
s/ RD  
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s/ RD  
s/ RD  
s/ RD  
s/ RD  
s/ RD  
s/ RD  
s/ RD  
s/ RD  
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“I 
REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT UNTIL I HAVE READ AND UNDERSTOOD 
EACH WORD, SENTENCE, AND PARAGRAPH IN IT. I REALIZE THAT I SHOULD NOT SIGN THIS 
AFFIDAVIT OF RELINQUISHMENT IF THERE IS ANY THOUGHT IN MY MIND THAT I MIGHT 
SOMEDAY SEEK TO CHANGE MY MIND. I REALIZE THAT I SHOULD [SIC] SIGN THIS 
AFFIDAVIT OF RELINQUISHMENT IF I AM NOT THINKING CLEARLY BECAUSE OF ILLNESS, 
MEDICATION, MY EMOTIONAL STATE, OR ANY OTHER REASON. BECAUSE I REALIZE HOW 
IMPORTANT THIS DECISION IS FOR THE FUTURE OF MY CHILDREN, I HAVE PUT MY INITIALS 
BESIDE EVERY LINE OF THE PARAGRAPH SO THAT IT WILL ALWAYS BE UNDERSTOOD THAT I 
HAVE READ THIS AFFIDAVIT OF RELINQUISHMENT, UNDERSTAND IT, AND DESIRE TO SIGN 
IT.”
       SIGNED 
on this    24    
day of    Septieber [sic]   , 
1999.
 
 
                                                                              s/ 
Ricardo A. 
Duenas                
 
 
       s/ 
Laura D. 
Hernandez                                  s/ 
Esther 
Gonzalez                    
 
       1232-2nd 
Ave. 
North                                      8161 
½ 
Grofton                          
 
       Texas 
City, TX 
77590                                            Houston 
TX 
77017                    
 
 
VERIFICATION
 
STATE OF 
TEXAS                  }
 
COUNTY OF 
GALVESTON  }
 
       BEFORE 
ME, the undersigned authority and notary public, on this day personally appeared 
RICARDO ANTONIO DUENAS, who, being by me duly sworn on his oath, deposed and 
said that he is the affiant and that he has read the foregoing Affidavit of 
Relinquishment of Parental Rights and that the statements contained therein are 
within his personal knowledge and are true and correct.
 
       This 
Affidavit of Relinquishment of Parental Rights was subscribed and sworn before 
me on the   24th   day of 
  September  , 
1999, by
 
 
       [notary 
seal]                                            s/ 
Claudia 
Tibaldo                           
                                                                Notary 
Public, State [sic] of Galveston
 
 
STATE OF 
TEXAS                  }
 
COUNTY OF 
GALVESTON  }
 
       BEFORE 
ME, the undersigned authority, on this day personally appeared Laura D. Hernandez   
and   Esther 
Gonzalez  , witnesses whose names are subscribed to the 
foregoing instrument in their respective capacity, and both persons being by me 
duly sworn, declared to me, in the presence and hearing of the affiant                , 
[sic] that the affiant had declared to them that the foregoing instrument is an 
Affidavit of Relinquishment of Parental Rights, that he executed it as such and 
wanted each of them to sign it as a witness to his execution of the same; and 
upon the oaths each witness stated further that he/she did sign the same as 
witness, in the presence of the affiant and at his request, that affiant was at 
that time eighteen years of age, or older, was of sound mind, and executed the 
affidavit of his own free will; that each of said witnesses was then at least 
eighteen years of age.
 
 
                                                                       s/ 
Ricardo A. 
Duenas                       
                                                                RICARDO 
ANTONIO DUENAS
 
 
                                                                       s/ 
Laura D. 
Hernandez                     
                                                                Witness
 
 
                                                                       s/ 
Esther 
Gonzalez                           
                                                                Witness
 
       SUBSCRIBED 
AND ACKNOWLEDGED BEFORE ME by RICARDO ANTONIO DUENAS, the Affiant, and 
SUBSCRIBED AND SWORN TO before me by said witnesses   Laura D. 
Hernandez   and   Esther 
Gonzalez   on this   24th   
day of   September  , 
1999.
 
 
       [notary 
seal]                                            s/ 
Claudia 
Tibaldo                           
                                                                Notary 
Public, State of Texas
            Contrary 
to what the affidavit states, there is no evidence that Ricardo had any idea 
what his “parental rights, powers, duties, and privileges were, or that he had 
“the right to appear personally before the Court, with an attorney of choice,” 
or that the affidavit was irrevocable for sixty days. The careful reader will 
note that in what appears to be the most crucial part of the affidavit, where 
the words are all in upper case and bold font, and where the affiant must 
initial every line, Ricardo was required to swear:
I 
realize that I should sign this affidavit of relinquishment if I am not 
thinking clearly because of illness, medication, my emotional state, or any 
other reason.
(Emphasis added.) It seems 
obvious to me that this was an error, but then I speak English. It would be much 
less obvious to me if, like Ricardo, I did not.
B
            To 
recite the evidence exhaustively and verbatim, as I have just done, is what the 
Court calls “effectively second-guess[ing] the trial court’s resolution of a 
factual dispute”. I do not see how one could be truer to the record than by 
quoting it, which of course, the Court does not do. The Court bases its 
second-guessing accusations on a recharacterization of the record that simply 
does not support the Court’s conclusions.
            The 
Court has three points. First, the Court says, “witnesses testified that Duenas 
appeared to understand what was transpiring at the affidavit signing.” 

 That is true, of course, as the record just quoted shows. But none of these 
witnesses testified that Duenas did understand what was transpiring, or 
that he said he did, or that anyone present who spoke Spanish could tell 
from talking with him that he did. From all the witnesses said about Duenas’s 
appearance, one cannot tell whether he was a Shakespearean professor 
bemused into silence or someone for whom all of the English conversation and the 
seven-page affidavit were unintelligible gibberish.
            Second, 
the Court says, “Duenas’s testimony about his ability to understand English was 
inconsistent”. 

 That, too, is true. But the only inconsistency to which the Court points is 
that Ricardo’s statement that he understood no English followed by his admission 
that he understood when he was told, “sign here”. I cannot fathom how that 
inconsistency is any evidence that Ricardo could read and understand a 
seven-page affidavit. If it were, then why did Ciavaglia ask that his summary of 
the affidavit be translated into Spanish for Ricardo?
            Finally, 
the Court says that the trial court could have determined that Ricardo was not a 
credible witness because he could not have worked in a hotel kitchen as long as 
he had and not have understood better English, because he minimized how much of 
the affidavit was translated for him, and because of his responses and demeanor. 


 This, too, is all true; the trial court could have made all of these 
determinations. But a witness’s lack of credibility cannot establish the 
opposite of his assertions. This is simple logic. The trial court may not have 
believed Ricardo when he said he could not understand English, but that 
disbelief is no evidence that Ricardo was a Shakespearean professor. Apart from 
Ricardo’s credibility, there must be some positive evidence that he could 
understand English — and not just some evidence — clear and 
convincing evidence.
            Nothing 
in the record that the Court says has been overlooked has been omitted from the 
recitation of the evidence contained in this opinion. The Court cannot point to 
any evidence whatever that clearly and convincingly shows that Ricardo had the 
knowledge that the Family Code requires before a parent can voluntarily 
relinquish a child.
C
            Conspicuously, 
the Monteguts do not argue that their promise to Maria is enforceable. Even if 
it were, I would hold that such promises precluded Maria’s affidavit of 
relinquishment from being effective. There is no question in this case that the 
promise was made; it was given to Maria in writing. Nor is there any question 
that Maria signed her affidavit of relinquishment only because the promises were 
made. Under these circumstances, I would hold that Maria’s relinquishment was 
not voluntary.
IV
            The 
Court’s strained view of the record casts doubt on the sincerity of its 
assurance that it is not unsympathetic to Ricardo’s and Maria’s claims. One 
ordinarily hopes for a little more generosity from one’s sympathizers. But the 
true measure of the Court’s non-unsympathy is reflected in its argument, never 
raised in the case, that, oh and by the way, Ricardo would not be entitled to 
his children even if his relinquishment had been involuntary because he may not 
have been the father, was unfit, and probably has no constitutional rights 
anyway. Before today, there has not been so much as a whisper of doubt that 
Ricardo was the father of Maria’s twin sons. Both Ricardo and Maria swore to 
that fact. Even Maria’s sister acknowledged that the boys “looked like” Ricardo. 
Were the issue in question, it could easily be determined — but in a proceeding 
not based on his affidavit of relinquishment. There are also procedures for 
challenging Ricardo’s fitness as a father, but they do not include indictment by 
the Supreme Court of Texas. To refuse to consider Ricardo’s argument because it 
has not been raised properly, and then to make an argument against him that no 
one has ever raised, is not what immediately comes to mind when one thinks of 
not unsympathetic.
* * * * *
            The 
record contains no clear and convincing evidence — I agree with Justice Owen for the reasons she 
explains that such evidence is required — that Ricardo understood and swore to 
the statements required by section 161.103(b) of the Family Code for 
relinquishment of parental rights. To the contrary, the evidence is overwhelming 
that Ricardo has lost rights among the most precious guaranteed by law simply 
because he does not understand English. If Ricardo could read the Court’s 
opinion, he would no doubt be surprised (and dismayed) to learn that he is not 
entitled to a decision on the only claim he has ever made because his lawyer in 
the trial court phrased it differently than his lawyer on appeal. The one 
benefit of Ricardo’s inability to understand English is that he will not be able 
to read of the injustice that has been done to him. He should at least have a 
paraphrase of the Court’s opinion, however, just as his affidavit was 
paraphrased for him. I offer the following:
¡Peligro!
Si usted no puede hablar Inglés,
usted puede perder a sus niños.
 
                                                                        
                                                                        Nathan 
L. Hecht
                                                                        Justice
Opinion delivered: 
September 18, 2003