                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                   NO. 2-10-107-CV


IN RE THE GLADNEY CENTER

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                              ORIGINAL PROCEEDING

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                           MEMORANDUM OPINION 1

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       Mother signed an irrevocable affidavit for voluntary relinquishment of her

parental rights and designated The Gladney Center as the managing conservator

of her child. Mother’s affidavit waived her right to issuance of service, return of the

citation, notice, and all other process in the suit filed to terminate her parental rights.

Mother thereafter retained an attorney, signed a purported revocation of her affidavit

of voluntary relinquishment, and sent a copy of the revocation to The Gladney

Center. The trial court subsequently signed a judgment terminating Mother’s rights

to her child.




       1
            See Tex. R. App. P. 47.4.
      Mother timely filed an unverified motion for new trial, alleging that the evidence

was legally and factually insufficient to terminate her rights, that there was newly

discovered evidence, and that she had signed the affidavit of relinquishment as the

result of coercion, duress, undue influence, and overreaching by The Gladney

Center.2 The trial court conducted a hearing on Mother’s motion for new trial and

granted it without stating a reason. Later, while this mandamus proceeding was

pending, the trial court signed an amended order granting a new trial on the ground

that Mother did not receive proper notice of the termination proceeding.

      The Gladney Center seeks mandamus relief from the trial court’s order

granting a new trial.     The Gladney Center claims that Mother’s affidavit of

relinquishment is irrevocable, that Mother waived all notice of the termination

proceeding, that Mother submitted no evidence at the new trial hearing, that the trial

court abused its discretion by granting a new trial, and that The Gladney Center has

no adequate remedy at law because it is entitled to enforcement of Mother’s

irrevocable affidavit of relinquishment and the waiver provisions therein.

      Texas Family Code section 161.103 sets forth the requirements of an affidavit

of voluntary relinquishment. Tex. Fam. Code Ann. § 161.103 (Vernon 2008).

Section 161.103(e) provides that an affidavit of relinquishment that designates a



      2
        Mother also filed a verified, amended motion for new trial, but it was not
timely because it was not filed within thirty days of the termination judgment. See
Tex. R. Civ. P. 329b(a) (requiring motion for new trial to be filed within thirty days of
the judgment).

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licensed child-placing agency, like The Gladney Center, as the child’s managing

conservator “is irrevocable.”    Id. § 161.103(e). 3   The family code specifically

authorizes a parent executing a voluntary affidavit of relinquishment to waive, in the

affidavit of relinquishment, process in the subsequent termination suit. Id. And

finally, section 161.211(c) provides that a direct or collateral attack on an order

terminating parental rights based on an unrevoked affidavit of relinquishment of

parental rights is limited to issues relating to fraud, duress, or coercion in the

execution of the affidavit. Id. § 161.211(c) (Vernon 2008).

      Mother signed an irrevocable affidavit of relinquishment under 161.103(e).

That affidavit also provided:

      I FREELY AND VOLUNTARILY WAIVE AND GIVE UP MY RIGHT TO
      THE ISSUANCE, SERVICE, AND RETURN OF CITATION, NOTICE,
      AND ALL OTHER PROCESS IN THE TERMINATION LAWSUIT. I
      waive and give up my right to be given notice about any proceedings in
      the termination lawsuit. I agree that The Gladney Center may amend
      its petition at any time without notice to me. I agree that hearings may
      be held in the termination lawsuit at any time without notice to me. I do
      not want to be informed about the termination lawsuit, and I waive and
      give up my right to be given notice about anything going on in the
      lawsuit. I fully understand that I will not be further informed about the
      termination of parental rights suit. I SPECIFICALLY AGREE THAT A
      FINAL HEARING IN THE TERMINATION LAW SUIT MAY BE HELD AT
      ANY TIME. I DO NOT W ISH TO RECEIVE A COPY OF THE FINAL
      JUDGMENT.



      3
         Section 161.103(g) sets forth procedures to revoke an affidavit of
relinquishment, but this subsection applies only to relinquishments that are
revocable. Id. § 161.103(g). And even when an affidavit of relinquishment is
revocable, it must be revoked within ten days of the date on which the affidavit is
executed. Id. § 161.1035 (Vernon 2008).

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The trial court’s amended order granting a new trial indicates that the trial court

granted a new trial because it found “that The Gladney Center did not give [Mother’s

attorney] notice of the scheduled termination trial, violating [Mother’s] right to due

process.”

      The provision in Mother’s affidavit of relinquishment waiving process in the

termination suit is expressly authorized by the family code. See id. § 161.103(c)(1)

(“The affidavit may contain: (1) a waiver of process in a suit to terminate the parent-

child relationship . . . .”); see also In re C.T., 749 S.W .2d 214, 215–16 (Tex.

App.—San Antonio 1988, no writ). Such a waiver of process is binding on Mother

absent pleading and proof relating to fraud, duress, or coercion in the execution of

the affidavit. See Tex. Fam. Code Ann. § 161.211(c) (limiting attacks on termination

judgment based on affidavit of voluntary relinquishment to issues relating to fraud,

duress, or coercion in the execution of the affidavit); Brown v. McLennan Co. CPS,

627 S.W .2d 390, 393–94 (Tex. 1982) (upholding statutory waiver of process

provision against constitutional challenge); C.T., 749 S.W .2d at 217; see also In re

Prudential, 148 S.W .3d 124, 132 (Tex. 2004) (orig. proceeding) (holding contractual

jury waiver binding on party absent evidence waiver was not knowingly and

voluntarily executed). Mother offered no evidence at the motion for new trial hearing.

Consequently, no evidence exists on the issues of fraud, duress, or coercion in

Mother’s execution of her affidavit of voluntary relinquishment. In the absence of

such evidence, the trial court abused its discretion by granting a new trial based on


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lack of notice to Mother when she expressly waived such notice in her affidavit of

voluntary relinquishment.

       W e conditionally grant the writ of mandamus requested by The Gladney

Center.   The trial court shall immediately set aside the March 19, 2010 order

granting a new trial and the April 9, 2010 amended order granting a new trial. The

writ will issue only if the trial court fails to do so. Once the trial court sets aside the

March 19, 2010 order granting a new trial and the April 9, 2010 amended order

granting a new trial, our stay order of April 7, 2010 is ordered dissolved.



                                                        SUE W ALKER
                                                        JUSTICE

PANEL: W ALKER and MCCOY, JJ.

DELIVERED: May 20, 2010




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