




Affirmed in Part and Reversed and Remanded in Part and Opinion filed
February 19, 2009







 
Affirmed in Part and Reversed and Remanded in Part and Opinion
filed February 19, 2009.
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-07-00820-CV
____________
 
IN THE INTEREST OF A.G.C., A MINOR
CHILD
 
 

 
On Appeal from the 247th
District Court
Harris County, Texas
Trial Court Cause No. 2006-28246
 

 
O P I N I O N




In this case, A.G.C.=s father executed
an affidavit of voluntary termination of his parental rights to A.G.C., entered
into a mediated settlement agreement incorporating the affidavit, and submitted
an order to the trial court agreeing to the termination of his parental
rights.  On appeal, the father  seeks to reverse the termination of his
parental rights to A.G.C., contending that his affidavit is invalid because it
does not satisfy the statutory prerequisites of Texas Family Code section 161.103,
the mother failed to demonstrate by clear and convincing evidence that he
voluntarily signed the affidavit or that termination is in A.G.C.=s best interest,
and the trial court wrongly excluded evidence bearing on both.  Further, the
father contends the judgment does not conform to the mediator=s rulings.  For
the reasons explained below, we affirm in part and reverse and remand in part.
Factual
and Procedural Background
Because of the conduct of the proceedings below and the
procedural posture on appeal, few facts may be gleaned from the evidentiary
record.[1] 
A.G.C. was born to AMother@ on February 5,
2006.  Mother and AFather@ never married,
but it is undisputed that Father is the biological parent of A.G.C.  Mother
sued to terminate Father=s parental rights.  After participating in
mediation, on July 10, 2007, the parties signed a Mediated Settlement Agreement
(AMSA@).  Among other
things, the MSA provided that Father would execute a voluntary relinquishment
of his parental rights to A.G.C.  That same day, Father signed and notarized a
document entitled AFather=s Affidavit for
Voluntary Relinquishment of Parental Rights.@  The MSA and
Father=s affidavit were
filed with the court on June 11, 2007.




Relevant here, the MSA provided that APER '161.2061@ of the Family
Code, Father was to have limited, supervised visits with A.G.C. and agreed to
take drug tests before the visits and to also take random drug tests at Mother=s expense.  The
MSA also provided that the mediator would act as the arbiter of any
disagreement over the details of the final order or decree prior to the date of
entry, and his decision would be final and binding.  Similarly, the parties
agreed to resolve any other disputes arising with regard to the interpretation
or performance of the MSA or its provisions with the mediator, and if no
agreement could be reached, the mediator would act as an arbiter and resolve
the issue.  Mother and Father subsequently met with the mediator on two
occasions to address disagreements over the wording of the final order
terminating Father=s parental rights.
On September 7, 2007, just before the expiration of the
sixty-day period in which Father=s affidavit was
irrevocable, Mother and attorneys for Mother, Father, and A.G.C=s amicus attorney
appeared before a visiting judge for a hearing on the termination order.[2]
Attorneys for Mother and Father each presented proposed termination orders. 
The proposed orders were substantively similar, except that Father=s proposed order
contained certain additional details concerning notice, visitation, and drug
testing.  Mother also testified briefly, and requested that her order be
signed.  After a discussion with the attorneys in which Father=s attorney
represented that the differences between the two orders were not significant,
the trial court signed Mother=s proposed order terminating Father=s parental rights
to A.G.C.  The order recited that the parties reached the agreements contained
in the order in mediation, and that the order represented a Amerger@ of the MSA.  The
order also recited that the trial court found by clear and convincing evidence
that Father, voluntarily and after advice of counsel, executed an affidavit of
relinquishment of parental rights and that termination of the parent-child
relationship between Father and A.G.C. was in the best interest of the child.




Consistent with the MSA, the order further recited the
parties= agreement that, Apursuant to '161.2061,@ Father was to
have limited post-termination contact with A.G.C. on specified terms and
conditions.  Among other things, the order provided for Father to have
four-hour, supervised visits with A.G.C. twice a month during any nine months
of the year as designated by Mother.  The order also required that Father
submit to an observed drug test before each scheduled visit, as well as random
drug tests, and provided that Father=s supervised
access to A.G.C. would be immediately and finally terminated if Father failed a
drug test or otherwise violated certain terms of the order.  Additionally, the
order acknowledged that Mother and Father agreed to act in good faith with
respect to the terms of the order, and detailed the consequences if either
party willfully violated those terms. 
On September 9, 2007, two days after the termination order
was signed and just after the sixty-day period in which the affidavit of
relinquishment was irrevocable had expired, Father filed with the court an AAffidavit to
Revoke the Father=s Affidavit for Voluntary Relinquishment
of Parental Rights.@  Father also presented several
post-judgment motions to the trial court.  Among other things, Father contended
that a new trial should be granted because the evidence was legally and
factually insufficient to support the judgment, he did not voluntarily sign the
affidavit of relinquishment, and the trial court=s order did not
comply with the mediator=s rulings.  He also argued that the trial
court failed to consider the report prepared by the court-appointed
psychologist, Dr. Jean Guez, who had determined that there was no evidence that
termination of Father=s parental rights was in A.G.C.=s best interest.[3]

Mother responded to Father=s motions and
moved to strike Father=s affidavit in support of his motion for
new trial.  At a hearing on the motion for new trial, the trial court denied
Father=s motion without
hearing evidence, but allowed Father to make an offer of proof.  The trial
court granted Mother=s motion to strike Father=s affidavit, and attached
to its order as an exhibit a copy of the affidavit with the stricken portions
blacked out.  At a later hearing, the trial court also denied Father=s motion to reform
the judgment, and overruled his objections to the trial court=s findings of fact
and conclusions of law.




Father=s Issues
On appeal, Father contends the trial court erred by:  (1)
terminating Father=s parental rights; (2) refusing to
consider evidence bearing on the propriety of the termination; and (3)
alternatively, refusing to reform the judgment to conform to the mediator=s rulings.  We
address the issues below.
I.        The
Affidavit of Relinquishment
In his first issue, Father contends that there can be no
termination of parental rights without an affidavit of relinquishment that
strictly complies with the statutory requirements of Family Code Chapter 161. 
Section 161.001 provides that one ground upon which a court may order a
parent-child relationship terminated is if it finds by clear and convincing
evidence that (1) a parent has executed an unrevoked or irrevocable affidavit
of relinquishment of parental rights as provided by Chapter 161, and (2)
termination is in the best interest of the child.  See Tex. Fam. Code
Ann. ' 161.001(1)(K),
(2) (Vernon 2008).  Father complains that his affidavit failed to comply with
the requirement of Family Code subsection 161.001(1)(K), because it does not
designate a Aprospective adoptive parent@ as managing
conservator as a condition precedent to termination.  Specifically, former
Family Code subsection 161.103(b)(12) provided that the affidavit must, among
other things,  contain:
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.




See Act of May 20,
1997, 75th Leg., ch. 561, ' 9, 1997 Tex. Gen. Laws 1983, 1989, amended
by Act of May 22, 2007, 80th Leg., ch. 1412, ' 1, 2007 Tex. Gen.
Laws 4855, 4856, current version at Tex. Fam. Code Ann. ' 161.103(b)(12)
(Vernon 2008).[4] 





Father contends that, because his affidavit does not name a
prospective adoptive parent, the Department, an adoption agency, or anyone else
as a managing conservator, it is fatally defective.  He gives three reasons for
this conclusion.  First, Father argues that this statutory prerequisite
constitutes a condition precedent that Amust@ be complied with,
and a court may not disregard the legislature=s directive.  See
Tex. Gov=t Code Ann. ' 311.016(3)
(Vernon 2008) (A>Must= creates or
recognizes a condition precedent.@); Helena Chem.
Co. v. Wilkins, 47 S.W.3d 486, 493B94 (Tex. 2001)
(the term Amust@ in a statute is generally recognized as
mandatory unless its context requires a different construction).  Second, he
argues that strict compliance is required because the relationship between a
parent and child involves fundamental constitutional rights and a presumption
exists that the parent-child relationship should not be disturbed.  See Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Colbert v. Dep=t of Family &
Protective Servs., 227 S.W.3d 799, 808 (Tex. App.CHouston [1st
Dist.] 2006), pet. denied, In re D.N.C., 252 S.W.3d 317 (Tex.
2008).  Finally, Father contends that section 161.103(b) was intended to facilitate
the termination of parental rights in anticipation of adoption only, and to
permit the use of an affidavit of relinquishment in a custody dispute
contravenes Texas public policy to involve both parents in a child=s upbringing.  See
Tex. Fam. Code Ann. ' 153.001(a) (Vernon 2008) (providing that,
among other things, Texas public policy is to Aassure that
children will have frequent and continuing contact with parents@ and to Aencourage parents
to share in the rights and duties of raising their child@).
We first respond to Father=s contention that
the word Amust@ as used in the statute necessarily
imposes a mandatory requirement.  A review of Helena Chemical Co. v. Wilkins,
the case on which Father relies, actually undercuts his argument.  In Helena
Chemical, the supreme court acknowledged that courts have often interpreted
the use of Amust@ in a statute as mandatory, creating a
duty or obligation.  47 S.W.3d at 493.  However, the court went on to explain
that it has also held that language that may appear to impose a mandatory duty
is only directory Awhen this interpretation is most
consistent with the Legislature=s intent.@  Id.  To
determine whether the legislature intended a provision to be mandatory or
directory, therefore, courts must consider the plain meaning of the words used,
as well as the entire act, its nature and object, and the consequences that
would follow from such construction.  Id. at 494.




Family Code subsection 161.103(b) requires that an affidavit
for voluntary relinquishments of paternal rights Amust contain@ specific
information about the child and the parents, including the designation of an
prospective adoptive parent or consenting agency to serve as a managing
conservator for the child.  However, in the present situation no such person or
agency is necessary.  Mother is A.G.C.=s biological
parent, and as such has all the rights and duties of a parent.  See Tex.
Fam. Code Ann. ' 151.001 (Vernon 2008).  Mother sought to
terminate Father=s parental rights, no adoption has been
sought, and no change was contemplated in the relationship between Mother and
A.G.C.  Further, Father stipulated that Mother should be appointed A.G.C.=s sole managing
conservator.  Consequently, in this circumstance of a private agreement between
the parents in which the child was to remain with the mother and no adoption
was contemplated, no designation of anyone else under section 161.103(b)(K) was
necessary.  Although the statute does not directly speak to this situation, we
conclude that the legislature would intend the requirement of this subsection
to be directory only when the parties have agreed and the court has determined
the termination is in the best interest of the child.  See Helena Chem. Co.,
47 S.W.3d at 493B94.
This conclusion is supported by reference to Family Code
section 161.207, which provides:
(a)  If the court terminates the
parent‑child relationship with respect to both parents or to the only
living parent, the court shall appoint a suitable, competent adult, the
Department of Protective and Regulatory Services, a licensed child‑placing
agency, or an authorized agency as managing conservator of the child. 
An agency designated managing conservator in an unrevoked or irrevocable affidavit
of relinquishment shall be appointed managing conservator.
Tex.
Fam. Code Ann. 161.207(a) (Vernon 2008) (emphasis added).  This section
reflects that a designation of a managing conservator is required in the order
of termination when the court terminates the parent-child relationship with
respect to both parents or to the only living parent.  Father=s argument that
the designation of someone or some agency is always required would preclude the
possibility of a single-parent household after a voluntary relinquishment of
parental rights that is in the best interest of the childCa result contrary
to logic and practical realities.[5] 
We are not persuaded that the legislature would have intended such a result.




Father=s constitutional argument fares no
better.  We understand it to be that the Aplain meaning@ of the statute
should be strictly enforced to protect his constitutional right to maintain his
parent-child relationship.  Although recognizing that the parent-child
relationship is one of constitutional dimension, see Holick v. Smith,
685 S.W.2d at 20, Father does not explain how the failure to name a managing
conservator in any way affected his constitutional rights.  He does not contend
that the absence of the designation has affected his full knowledge of the
rights he is relinquishing or impaired his understanding of the legal
consequences of his decision.  We have already concluded that in this
circumstance the use of the word Amust@ is directory
only, not mandatory, and that this interpretation effectuates the legislature=s intent. 
Therefore, we are not impermissibly thwarting a legislative directive as Father
implies.  Moreover, Father=s stipulation that Mother should be
appointed A.G.C.=s managing conservator substantively cures
any perceived impairment of rights resulting from the technical omission of
this information from the affidavit. 
Further, we reject Father=s argument that Athe law permitting
an affidavit of relinquishment to have legal effect references only adoptions
as a valid purpose for termination@ and that its use
in this circumstance violates Texas public policy.  Father argues that section
161.103 is inextricably linked to the adoption process, and that here it was
improperly used to resolve a custody dispute rather than to accomplish an
adoption.  As support, Father points out that the chapter on termination of
parental rights (Chapter 161) is Apaired@ with the chapter
on adoption (Chapter 162).  He also notes that adoptions are conditioned on a
termination of parental rights, and that the affidavit of relinquishment
provision cross-references adoption.  See Tex. Fam. Code '' 161.103(b)(12),
162.001(b) (Vernon 2008).  Therefore, Father posits that termination and
adoption Ago hand-in-hand in the structure of the Family Code.@ 




However, although the placement of the chapters is logical
because adoption may require a termination of parental rights, it does not
necessarily follow that the inverse is trueCthat there can
only be a termination if there is an adoption.  First, although the adoption
chapter of the Family Code follows the termination chapter, the two are
separate.  Second, termination may be sought by an agency or, as in this case,
by the parent.  See Tex. Fam Code Ann. ' 102.003 (Vernon
2008).  In at least one other case, a mother brought a termination suit that
was not combined with an adoption, and the termination based on the father=s voluntary
execution of an affidavit of relinquishment of his parental rights to his
children was affirmed.  See In re N.P.T., 169 S.W.3d 677 (Tex. App.CDallas 2005, pet.
denied) (affirming termination of father=s parental rights
to children in divorce proceeding when father executed affidavit of
relinquishment as part of plea bargain in criminal case).  Third, nothing in
the statutes prohibits the use of an affidavit of voluntary relinquishment to
terminate one=s parental rights in situations not involving
adoption.  In the absence of an express indication that the legislature
intended to limit the use of an affidavit of voluntary relinquishment only when
adoption was contemplated, we decline to read such a limitation into the Family
Code. 
Finally, we reject Father=s assertion that
the result must be different in this case because Texas public policy
encourages both parties to be involved in a child=s upbringing.
Although we agree that these policy considerations are significant, they are
generally applied in the context of custody disputes, not the termination of
parental rights.  And, although Father describes this case as a Acustody dispute,@ he agreed to
resolve the dispute with Mother by terminating his parental rights to A.G.C.,
as opposed to making some other type of custody arrangement.  Moreover, we note
that an overriding policy concern is the child=s best interest,
and many circumstances exist in which the best interest of the child involves
terminating a parent=s rights, whether voluntarily or
involuntarily.  See Tex. Fam. Code Ann. ' 153.002, ' 161.001.  In such
circumstances, the policy concerns Father urges would not apply.  Contrary to
Father=s assertion,
therefore, we conclude that limiting the available avenues for terminating
parental rights as Father suggests, particularly when the statutes contain no
such limitation, may in certain circumstances actually impede the primary
public policy of attaining the best interest of the child.




We therefore overrule Father=s first issue.
II.       The
Evidence Supporting the Judgment and Motion for New Trial
In his second issue, Father contends the judgment cannot be
supported because the record does not establish that there is clear and
convincing evidence that he voluntarily signed his affidavit of relinquishment
and that the termination was in A.G.C.=s interest.  See
Tex. Fam. Code Ann. ' 161.001.  Additionally, Father contends
that the trial court erred in refusing to hear evidence bearing on these issues
when it heard Father=s motion for new trial. 
A.      Evidence of
Voluntariness and Best Interest of Child
First, Father contends that there was no evidence that his
affidavit of relinquishment was voluntary.  Specifically, he contends that
Mother=s testimony did
not raise a fact issue on voluntariness and that the pleadings, his affidavit,
and the MSA not are in evidence and so cannot be considered on appeal.  Even if
the affidavit was considered evidence, he argues, it is not sufficient by itself
to demonstrate voluntariness, and the record establishes that the affidavit was
involuntary because it was based on an unenforceable promise of
post-termination visitation.  An involuntarily executed affidavit is a complete
defense to a termination suit based on section 161.001(1)(K) of the Family
Code.  In re V.R.W., 41 S.W.3d 183, 193 (Tex. App.CHouston [14th
Dist.] 2001, no pet.), overruled on other grounds sub nom., In re
J.F.C., 96 S.W.3d 256 (Tex. 2002).




At the September 7 termination hearing, Mother, her
attorneys, Father=s attorney, and A.G.C.=s amicus attorney
were present.  Mother testified that she moved for termination because Father
had done things that endangered A.G.C., and that it was in A.G.C.=s interest that
Father=s parental rights
be terminated.  She also testified that there was Aclear and
compelling@ evidence of which she was aware to justify that
Father=s parent-child
relationship with A.G.C. be terminated.  Additionally, Mother testified that
she understood that A.G.C. would not be able to inherit through Father upon
termination of his parent-child relationship, but that this was in A.G.C.=s best interest,
and that Mother=s family had sufficient funds to guarantee
A.G.C.=s schooling,
health, and the necessities of life.  Father=s attorney did not
cross-examine Mother.
During the hearing, the court and the parties confirmed
that the MSA and Father=s affidavit of relinquishment were in the
court=s file.  Attorneys
for Mother and Father also submitted to the court proposed termination orders,
which were substantively identical except that Father=s included some
variations on matters unrelated to termination.  Father=s proposed order
acknowledged that it reflected the agreements reached by the parties in
mediation and in the MSA filed with the court, and recited that termination was
in A.G.C.=s best interest.  Similarly, in Father=s affidavit of
relinquishment, he averred that he freely and voluntarily relinquished all of
his parental rights and duties, and that termination of the parent-child
relationship was in the best interest of the child.  Similarly, the MSA
reflected that the parties agreed that the parties= agreement was in
the best interest of the child.  The trial court stated that it was entering
its order to terminate parental rights based on the MSA and Father=s affidavit of
relinquishment. 
Father cites Coleman v. Smallwood, 800 S.W.2d 353,
356 (Tex. App.CEl Paso 1990, no writ), to support his contention that
his affidavit alone could not support termination.  However, Smallwood
simply reiterates that the statutory grounds for termination, including
termination based on an affidavit of voluntary relinquishment, must be proved
by clear and convincing evidence.  Here, the trial court had not only Father=s affidavit of
relinquishment and the MSA to consider, it also had Father=s own proposed
order requesting that his parental rights be terminated.  Therefore, Smallwood
does not compel a different result, because the court had before it much more
than just Father=s affidavit.  Moreover, unlike in Smallwood,
there was no issue raised or evidence offered that the affidavit was not
voluntary.  Indeed, Father sought to have his own order of termination signed,
compelling the opposite conclusion.  




Further, all the parties agreed that Father=s affidavit and
the MSA were filed with the court and formed the basis for the agreed-upon
termination of parental rights.  Because all the parties treated these
documents as evidence, and no contested issues were presented, Father may not
now complain that the documents were not in evidence and so may not be
considered on appeal.  See Bradford v. Bradford, No.
14-94-00881-CV, 1995 WL 613060, at *2 (Tex. App.CHouston [14th
Dist.] Oct. 19, 1995, no writ) (not designated for publication) (holding that
appellant was estopped to complain that documents were not admitted in evidence
and so could not be considered on appeal when the trial court and parties
treated the documents as if they were in evidence and appellant voiced no
objection below); cf. Branard v. Branard, 133 S.W.3d 782, 788
(Tex. App.CFort Worth 2004, pet. denied) (holding that it was
error for the trial court to divide community property based on divorcing
parties= separate
inventories and settlement proposals not admitted into evidence when a later
prove-up hearing was clearly contemplated and there was no settlement agreement
between the parties). 




Father also argues that his affidavit was not voluntarily
executed because Mother=s promise of post-termination visitation
is unenforceable as a matter of law.  Specifically, he contends that in the MSA
Mother purported to promise him that he would have post-termination visitation
pursuant to section 161.2061 indefinitely, but that section provides only for
limited post-termination contact and permits a parent whose parental rights
have been terminated to enforce visitation only Auntil the court
renders a subsequent adoption order with respect to the child.@  See Tex.
Fam. Code Ann. '161.2061(f)(2) (Vernon 2008).[6] 
Father also cites several cases he contends stand for the proposition that an
affidavit of relinquishment cannot be voluntary when it is induced by an
unenforceable promise of post-termination visitation as a matter of law.  See
Jones v. Tex. Dep=t of Protective
& Regulatory Servs., 85 S.W.3d 483 (Tex. App.CAustin 2002, no
pet.); Queen v. Goeddertz, 48 S.W.3d 928 (Tex. App.CBeaumont 2001, no
pet.); Vela v Marywood, 17 S.W.3d 750, 759 (Tex. App.CAustin 2000), pet.
denied, 53 S.W.3d 684 (Tex. 2001) (per curiam); In re S.A.B., No.
04-01-00795-CV, 2002 WL 1573431 (Tex. App.CSan Antonio July
17, 2002, pet. denied) (not designated for publication).
Initially, we note that this issue was not raised until
Father=s motion for new
trial, which is discussed in greater detail below, and so was not an issue at
the September 7 termination hearing.  In any event, we find Father=s argument of no
merit under these circumstances.  First, although he contends that he was
induced to execute the affidavit of voluntary relinquishment based on a promise
of post-termination visitation that was illusory because it was limited by
section 161.2061, that limitation was clearly set out as a basis for the MSA,
which provided in its Exhibit AA@ the following:
1.       [FATHER] EXECUTES A VOLUNTARY
RELINQUISHMENT OF HIS PARENTAL RIGHTS.
2.       AN AGREED ORDER TERMINATING HIS PARENTAL
RIGHTS, RETAINING [FATHER=S] RIGHTS AS OUTLINED UNDER '161.2061 IN PARAGRAPH 3 HEREIN BELOW, WILL
BE APPROVED AND SIGNED BY THE COURT.
3.       PER '161.2061, VISITATION OF 4
HOURS ON THE 2nd SATURDAY AND 4th SATURDAY OF 9 MONTHS
EACH CALENDAR YEAR SELECTED BY [MOTHER] BY DECEMBER 15 FOR THE NEXT CALENDAR
YEAR. . . . 




(emphasis
added).  Father signed this exhibit indicating his approval, and his attorney
also signed it.  Nothing in the MSA or its Exhibit AA@ includes any
promise of unlimited visitation until the child reaches majority.  Father=s own proposed
order terminating his parental rights also expressly limited his visitation to
that provided in section 161.2061.  The order recited, under a section entitled
APost-Termination
Contact,@ that Athe parties have
agreed that pursuant to ' 161.2061 of the Texas
Family Code, [Father] shall have limited post-termination contact with the
child only as specified herein and the Court hereby approves the parties[=] agreement@ (emphasis
added).  Under these facts, Father=s argument that he
was somehow duped into agreeing to limited visitation Aper '161.2061@ is untenable.
Father is a mature man and the father of an older child, his agreement was made
as the result of a private, negotiated settlement in which he was represented
by counsel, the proviso that visitation was to be in accordance with section
161.2061 was expressly and repeatedly referenced in the documents Father
executed, visitation was not the only consideration for the agreement, and
Father=s own proposed
order included the statutory limitation. 




Moreover, contrary to Father=s argument, the
cases he relies on for support do not involve analogous circumstances or
procedural postures and so are easily distinguishable.  In general, these cases
presented situations in which persons were induced into terminating their
parental rights when they were teenagers, or they were unrepresented by
counsel, or they were affirmatively misinformed, or they did not understand
what they were signing, or some combination of these or other circumstances not
present here.  See Jones, 85 S.W.3d at 492B93 (on bill of
review, held that mother, who was fourteen when she became pregnant while in
the Department=s care, had not completed high school, was treated for
depression while she remained in Department=s care and was a
teenager when she signed an affidavit of relinquishment without counsel
present, presented prima facie evidence that Department provided incomplete and
false information in violation of a legal duty owed to her to induce her to
sign the affidavit); Queen, 48 S.W.3d at 930B32 (on bill of
review, holding father presented meritorious defense that he involuntarily
executed affidavit of relinquishment when unenforceable promise of visitation
was sole consideration for termination concurrent with child=s adoption, the
affidavit was not witnessed, and the Family Code did not allow a parent to
retain visitation rights after termination); Vela, 17 S.W.3d at 760B64 (holding
relinquishment affidavit executed by young, unwed mother unrepresented by
counsel was not voluntarily executed when adoption agency induced her to
execute it by withholding information and promising unenforceable Asharing plan@ after child was
adopted in violation of duty owed to mother); In re S.A.B., 2002 WL
1573431, *2B3 (holding trial court did not err in granting bill of
review when father, who had agreed to terminate his parental rights in exchange
for continued access and his setting up a trust fund for son, presented some
evidence that mother, who subsequently denied access to child, fraudulently
induced father to sign relinquishment affidavit).  As discussed above, there is
no evidence that, as in these cases, Mother induced Father to sign the
affidavit of relinquishment based on any unenforceable promise or
misrepresentation.
Father next contends that there was no evidence that
termination was in A.G.C.=s best interest, and parental rights
cannot be terminated using an affidavit of relinquishment without clear and
convincing evidence that the termination is in the best interest of the child. 
See Tex. Fam. Code ' 161.001(1)(K) & (2); Vela, 17
S.W.3d at 759 (proof of both elements is required).  Further, he contends that
the trial court was required to make an independent determination of best
interest.  However, in Brown v. McLennan County Children=s Protective
Services, 627 S.W.2d 390 (Tex. 1982), in which a mother appealed the
termination of her parental rights to her two children based on a state agency=s petition and the
mother=s voluntarily executed
affidavit of relinquishment, the supreme court determined that under the facts
before it, Awe find it was the intent of the Legislature to make
such an affidavit of relinquishment sufficient evidence on which the trial
court can make a finding that termination is in the best interest of the
children.@  Id. at 394.  Consequently, it held that the
absence of a statement of facts below did not deprive the mother of her ability
to appeal because A[t]he affidavit and the agency=s petition is the
record which supports the trial court=s judgment.@  Id.  




Following Brown, the Fort Worth Court of Appeals
held in Ivy v. Edna Gladney Home that Aan affidavit of
waiver of interest in child, in and of itself, is sufficient to find termination
is in the best interest of the child.@  783 S.W.2d 829,
833 (Tex. App.CFort Worth 1990, no writ).  Accordingly, the court
held that the trial court did not err in failing to separately consider the Holly[7]
factors when presented with an affidavit of relinquishment and testimony from
the mother and a social worker.  Id.; see also Lumbis v. Tex.
Dep=t of Protective & Regulatory Servs., 65 S.W.3d 844,
850 (Tex. App.CAustin 2002, pet. denied) (AAn irrevocable
affidavit relinquishing a parent=s rights and a
petition for termination can support a finding that termination is in the best
interest of the child and a judgment of termination.@); Beyers v.
Roberts, 199 S.W.3d 354, 360 (Tex. App.CHouston [1st Dist.
2006, pet. denied) (noting in custody case that neither the statutes nor the
common law require that a court must conduct a hearing to determine whether a
mediated settlement agreement is in child=s best interest).
As noted above, the trial court had before it not only
Father=s affidavit of
relinquishment, it also had the MSA and Father=s proposed order
requesting termination, both of which reflected Father=s agreement that
termination was in A.G.C.=s best interest.  Mother also testified
that termination was in the child=s best interest. 
And, even if her testimony alone was conclusory, the trial court could have
found it credible based on the MSA and Father=s proposed order. 
Therefore, on these facts, the trial court did not err in finding that
termination was in A.G.C.=s best interest.  See Brown,
627 S.W.2d at 394; Ivy, 783 S.W.2d at 833
B.      The
Evidence Father Sought to Present at a Hearing on His Motion for New Trial




Father also contends that the trial court should have heard
newly discovered evidence at a new trial hearing that allegedly would have
shown that his affidavit was involuntary and that termination was contrary to
the best interest of the child.  He contends the court should have heard the
evidence because it was necessary to show lack of agreement to an agreed
judgment and because it was newly discovered. 
Specifically, Father contends that he was unaware at the
time that Dr. Jean Guez, who was appointed by the trial court to evaluate the
best interest and safety of A.G.C., had prepared and filed with the court a
report in which she opined that Athere is not
sufficient evidence or reason to terminate [Father=s] rights.@  Had he known of
this report, he contends, he would not have signed the affidavit.  In addition
to Dr. Guez=s report, Father also points to his attorney=s offer of proof
in which he represented that Father would testify that he was not aware that
the promises made by Mother to give him visitation rights were unenforceable,
the judgment would include terms not in the MSA, his visitation rights would
end if A.G.C. were adopted pursuant to section 161.2061, the DPRS was required
to agree to the visitation arrangement, and he did not know that Mother
intended to act in bad faith concerning requests for drug testing that would
trigger the end of visitation.[8] 
Father argues that he should have been permitted to introduce this evidence to
demonstrate that he was not fully aware of the effects of signing the affidavit
and that he signed it based on misrepresentations.




A party seeking a new trial on the ground of newly
discovered evidence must show: (1) new evidence has been discovered since
trial; (2) the failure to discover the evidence prior to trial was not because
of lack of due diligence; (3) the evidence is not cumulative; and (4) the
evidence is so material that it would probably produce a different verdict.  Jackson
v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other
grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003).  Whether a motion
for new trial on the ground of newly discovered evidence will be granted or
refused is generally a matter addressed to the sound discretion of the trial
court.  Id.  However, in matters relating to child custody, it can be
error to refuse to grant a motion for new trial even though the evidence is not
newly discovered, when there is an extreme case and the evidence is
sufficiently strong.  See C. v. C., 534 S.W.2d 359, 361 (Tex.
Civ. App.CDallas 1976, writ dism=d w.o.j.) (holding
evidence of a parent=s violent temper and striking of children
warranted relaxed standard). 
Here, Father has failed to establish that the evidence was
discovered since the final judgment hearing or that he exercised due diligence
to discover it.  Much of the evidence Father contends the trial court should
have heard is directed to his alleged lack of awareness and understanding of
the consequences of agreeing to visitation pursuant to section 161.2061.  We
have already determined that his arguments concerning this statutory limitation
on visitation, which was expressly referred to in both the MSA and his own
proposed order terminating parental rights, did not in the circumstances
presented constitute an unenforceable promise of visitation.  Father does not
explain how, why, or when he came to understand the meaning of the statutory
limitation or why he or his attorneys did not discover its meaning until after
Father had executed documents expressly agreeing to the limitation on
visitation and affirmatively requesting the court to enter his order containing
that limitation. 
Additionally, concerning Dr. Guez=s report, Father
presents no evidence that he or his attorneys exercised due diligence to
discover the report before the hearing.  In his affidavit in support of his
motion for new trial, Father averred that Dr. Guez=s report was filed
with the trial court on July 26, 2007, well over a month before the final
judgment hearing on September 7, 2007.  Father was aware that the trial court
had appointed Dr. Guez and that she was to prepare a report to assist the court
in addressing the best interest of the child; the report itself reflects that
Father participated in a lengthy evaluation by Dr. Guez in preparation of the
report.   Father does not explain why he or his lawyers failed to contact Dr.
Guez before the mediation or before the hearing to obtain the results of the
report.  




Apparently conceding that the evidence he sought to present
in the motion for new trial was not newly discovered, Father argues that it
should be considered under the more relaxed standard of C. v. C., 534
S.W.2d at 361.  Although Father asserts that the facts in this case are Aalmost identical@ to those in C.
v. C., and therefore he is entitled to a new trial, we disagree.
In C v. C., evidence was presented at the motion for
new trial that the father, who had been appointed managing conservator of the
divorced parents= two children, had a violent temper and
harshly disciplined the children.  Id. at 360.  As examples, affiants
averred that on one occasion, the father whipped his son for soiling his diaper
and screamed at him that he was a Apig@; on another
occasion, the father struck his son so severely that the son was bruised; and
in another instance he struck his daughter causing her nose to bleed.  Id.
at 362. This evidence had not been elicited during the trial.  Id. at
361-62.  Based on the facts before it, the court held that the trial court
abused its discretion in overruling the motion for new trial.  Id. at
362.




However, the C. v. C. court cautioned that its
holding Ashould not be
interpreted as meaning that the court must grant a new trial whenever the
losing party brings forth new evidence bearing on the issue of the best
interests of the children.@  Id.  Instead, the court explained
that an abuse of discretion is not shown unless the evidence presented in
support of the motion, and not offered at the original trial, strongly shows
that the original custody order would have a seriously adverse effect on the
interest and welfare of the child, and that presentation of such evidence at a
new trial would probably change the result.  Id.  We do not agree with
Father that the nature of the evidence in this case is so extreme that the
trial court=s refusal to hear it constitutes an abuse of
discretion.  See id. at 361B62; see also In
re C.B.M., 14 S.W.3d 855, 862 (Tex. App.CBeaumont 2000, no
pet.) (AWe would hold that
in custody cases the trial court is not required to hear evidence at the
hearing on the motion for new trial where the offer of proof indicates that the
evidence is not newly discovered and is not evidence of the character outlined
in C. v. C. and the line of cases relying upon it.@).  
Therefore, we overrule Father=s second issue.
III.      Father=s Request to Reform
the Judgment
In his third issue, Father requests that, even if the
judgment is not reversed and remanded for a new trial or for the consideration
of additional evidence, this court should remand with instructions to refer the
case to the arbiter to resolve the differences between the parties.  The MSA
provides that any disputes between the parties in the interpretation or
performance of the MSA should be resolved by the mediator acting as arbiter. 
As Father points out, the two orders submitted by the parties on September 7,
2007, demonstrate that differences existed in the parties= understanding of
the MSA.  Mother agrees that the judgment should be reformed to permit the
arbiter to decide the parties= dispute about the provisions Father
included in his proposed order that were not included in the final order. 
However, Mother requests that any remand should encompass only those additional
terms that Father sought to have added to the order.  We agree.
Accordingly, we sustain Father=s third issue and
remand the case to the trial court to order the parties referred to the arbiter
as provided in the MSA so that the arbiter may render a decision concerning
those portions of the order that Father submitted to the court but that were
not contained in the trial court=s order to terminate
parental rights, signed September 7, 2007.  The remainder of the trial court=s order is
affirmed. 
Conclusion




We overrule Father=s first and second
issues, but sustain his third issue.  Accordingly, we remand the case to the
trial court to order the parties referred to the arbiter as provided in the
Mediated Settlement Agreement so that the arbiter may render a decision
concerning those portions of the order that Father submitted to the court but
that were not contained in the trial court=s order to
terminate parental rights, signed September 7, 2007.  We affirm the remainder
of the court=s order.
 
 
 
 
 
/s/      Jeffrey V. Brown
Justice
 
 
 
 
Panel consists of
Chief Justice Hedges and Justices Guzman and Brown.




[1]  Citing as her directive Texas Rule of Appellate
Procedure 38.1(f) (providing that, in a civil case, Athe court will accept as true the facts stated unless
another party contradicts them@ and requiring
statements to be supported by the record), Mother spends nine pages of her
brief complaining about Father=s statement of
facts, primarily arguing that most of it comes from an offer of proof made at
the hearing on Father=s motion for new trial, and so is not Atrial evidence.@ 
Mother details at length the offending paragraphs and sentences within each
paragraph, and requests that they be struck.  We acknowledge Mother=s concern that we not accept Father=s statement of facts as true and that we recognize
that the facts are disputed; however, we have carefully reviewed the record
that is properly before us, and so find it unnecessary to reach Mother=s request.


[2]  In his affidavit in support of his motion for new
trial, Father avers that he went to court on the morning of September 7, 2007,
to review the order he was proposing, and his attorney told him there would not
be a hearing on that date and that the orders would be submitted for the trial
judge to consider the next week.  Father then left for work, and after lunch,
his attorney called to inform him that Mother=s order was signed by a visiting judge, and that Mother had testified
and asked that her order be entered.  Because he had been told there would be
no hearing, Father complains that he Awas
not at the hearing to protect [himself].@ 


[3]  The trial court appointed Dr. Guez on November 7,
2006, to evaluate the parties and the child to assist the court in determining
the child=s best interests, and ordered that she provide a
written report by December 1, 2006.  However, Dr. Guez=s report, dated July 25, 2007, was not filed with the
court until July 26, 2007.  The report reflected that it was copied by fax to
attorneys for Mother, Father, and A.G.C.=s
amicus attorney.


[4]  The 2007 amendment to section 161.103(b)(12)
substituted AFamily and Protective@ for AProtective and Regulatory,@ a change that is not material to our discussion. 
However, for consistency we will cite to the former version because it applies
to this case.  See Act of May 27, 2007, 80th Leg., ch. 1412, ' 3, 2007 Tex. Gen Laws 4855, 4856 (AThe change in law made by this Act applies only to an
affidavit of voluntary relinquishment of parental rights executed on or after
the effective date [Sept. 1, 2007] of this Act.  An affidavit executed before
the effective date of this Act is governed by the law in effect on the date the
affidavit was executed, and the former law is continued in effect for that
purpose.@).


[5]  In his reply brief, Father notes that there are many
situations not involving adoption in which parental rights may be terminated as
to only one parent, see Tex. Fam. Code section 161.001(1), and therefore
section 161.207 merely acknowledges that such other situations exist. 
Additionally, Father argues that the affidavit-of-relinquishment provision
requires that a conservator be named precisely because it was intended for use
only when a conservator is necessary, i.e., when the contemplated termination
of parental rights would leave a child without a parent, such as when an
adoption is contemplated.  However, nothing in the Family Code prohibits the
use of an affidavit of relinquishment when one of two parents has voluntarily
agreed to terminate his parental rights and the court has found that the termination
is in the best interest of the child.  See id. ' 161.001(1)(K). 


[6]  Father also contends that the promise is
unenforceable because section 161.2061(a) requires the agreement of the
biological parent and the Department of Protective and Regulatory
Services, which was not given here.  However, because there was no agency involvement,
the Department=s approval was not required in this situation.


[7]  Holly v. Adams, 544 S.W.2d 367 (Tex. 1976) (listing factors relevant
to determining best interest of child).


[8]  Father made similar allegations in an affidavit
supporting his motion for new trial.  As noted above, on Mother=s motion, the trial court struck portions of the
affidavit. Father does not appeal the trial court=s ruling.  


