Opinion filed January 17, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-18-00193-CV
                                     __________

                IN THE INTEREST OF T.N.S., A CHILD


                     On Appeal from the 326th District Court
                              Taylor County, Texas
                         Trial Court Cause No. 8868-CX


                      MEMORANDUM OPINION
      T.N.S.’s father appeals from an order in which the trial court terminated his
parental rights. On appeal, the father presents four issues related to his execution of
an affidavit of voluntary relinquishment of his parental rights. We affirm.
      In his first issue, Appellant contends that the evidence is legally and factually
insufficient to support the trial court’s implicit finding that Appellant signed the
affidavit voluntarily. In the second issue, he complains that he was not afforded a
hearing at which he could have shown that he was not taking his medications at the
time that he signed the affidavit and was therefore unable to understand the nature
and consequences of the affidavit. In his third issue, Appellant asserts that the
affidavit was obtained by fraud, duress, or coercion. In the fourth issue, Appellant
complains that he signed the affidavit as a result of ineffective assistance of counsel.
      To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has           committed     one of     the   acts   listed   in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). In this case, the trial court
found that Appellant had executed an unrevoked or irrevocable affidavit of
relinquishment of his parental rights, as provided for in Section 161.001(b)(1)(K),
and that termination was in the best interest of the child.
      The record reflects that, just prior to the commencement of a jury trial,
Appellant’s counsel informed the trial court that Appellant was considering
settlement negotiations and asked that Appellant be allowed to talk to his mother.
The trial court permitted Appellant to converse with his mother in the presence of
Appellant’s counsel. After a recess of approximately forty-five minutes, Appellant’s
counsel informed the trial court that Appellant had signed an affidavit of
relinquishment. The parties then waived a jury, and the trial court conducted a brief
hearing at which the affidavit of relinquishment was admitted into evidence and
testimony regarding the child’s best interest was offered.
      The affidavit executed by Appellant was an irrevocable affidavit of voluntary
relinquishment of his parental rights; it was admitted as an exhibit at trial. The
affidavit complies with the requirements of the Family Code. See FAM. § 161.103
(setting out the various requirements for affidavits of relinquishment of parental
rights). A Department employee testified that the Department did not coerce
Appellant or offer him anything in exchange for signing the affidavit. In the
affidavit, Appellant acknowledged that he understood he was giving up all of his


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parental rights and that he “freely, voluntarily, and permanently” relinquished those
rights. Nothing in the appellate record suggests otherwise.
      “A direct or collateral attack on an order terminating parental rights based on
an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of
interest in a child is limited to issues relating to fraud, duress, or coercion in the
execution of the affidavit.” Id. § 161.211(c); see In re K.S.L., 538 S.W.3d 107, 110–
11 (Tex. 2017). An involuntarily executed affidavit of relinquishment is a complete
defense to a termination suit based on Section 161.001(b)(1)(K). In re K.M.L., 443
S.W.3d 101, 113 (Tex. 2014).
      In his brief, Appellant makes numerous assertions as to the involuntariness of
his execution of the affidavit of relinquishment, including an assertion that Appellant
was not taking needed medications when he executed the affidavit. He also makes
several assertions in his brief regarding the assistance of his trial counsel. However,
none of those assertions is supported by the record. Appellant did not raise the issue
of voluntariness in the trial court during trial, nor did he file a motion for new trial
or otherwise timely request a hearing to address matters related to his execution of
the affidavit or the assistance of trial counsel. Thus, nothing in the record supports
Appellant’s contentions on appeal regarding his alleged involuntary execution of the
affidavit of relinquishment or the alleged ineffectiveness of trial counsel. We are
not to consider factual assertions that appear in an appellate brief but are not
supported by the record. See Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d
782, 789 (Tex. 2006).
      Based on the record before us, we are constrained to hold that the evidence is
sufficient to show that Appellant voluntarily signed the affidavit of relinquishment;
that the affidavit was not obtained by fraud, duress, or coercion; that Appellant did
not request a hearing on the matter; and that Appellant has not shown that the alleged
ineffective assistance of counsel resulted in an involuntarily executed affidavit of
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relinquishment. Accordingly, we overrule Appellant’s first, second, third, and
fourth issues on appeal.
        We affirm the order of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


January 17, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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