












 
 
 
 
 
 
                                                COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                                 NO.
2-09-302-CV
 
 
IN
THE INTEREST OF S.A.D.S. A CHILD
 
                                                       ------------
 
               FROM
THE 362ND DISTRICT COURT OF DENTON COUNTY
 
                                                       ------------
 
                                                       OPINION
 
                                                       ------------
I.  Introduction
In
this suit affecting the parent-child relationship, Appellant Natalie[1]
appeals a certain provision contained in the trial court=s
order that varies from the mediated settlement agreement between her and
Appellee Texas Department of Family and Protective Services.  Because we determine that the trial court had
no authority to include a provision in its final order that varied from the
parties=
mediated settlement agreement, we will modify the trial court=s
order and affirm as modified.
II.  Background
The
Department removed Steven, the subject child of this suit, from Natalie=s
custody upon his birth based on prior terminations of parental rights involving
Natalie and her other children.  The
Department then sought termination of Natalie=s
parental rights to Steven.  The
Department also alleged that Natalie previously used illegal drugs; that she
was often homeless; and that she occasionally resided with a sex offender.
After
Steven=s
removal, the Department provided Natalie with a service plan.  According to the assigned caseworker, Natalie
completed her service plan but failed to demonstrate the ability to provide
Steven with a stable living environmentCshe
does not own a home and lives with others. 
Eventually, the trial court ordered that the case be sent to mediation.
At
mediation, the Department and Natalie entered into a mediated settlement
agreement whereby Steven=s maternal grandfather would
be appointed sole managing conservator and Natalie would be appointed
possessory conservator.  The agreement
reads AMEDIATED
SETTLEMENT AGREEMENT@ across the top of the first
page, and it is signed by Natalie, a Department representative, and the
attorneys who attended the mediation, including Steven=s ad
litem.  The agreement was filed with the
trial court.  The agreement states, AThe
Parties, by their signatures to this agreement, hereby waive their right to
have the issues resolved herein tried to the court or to a jury, save and
except for any motion for entry of the order of enforcement of this agreement.@
The
mediated settlement agreement covers possession, conservatorship, and child
support.  On June 18, 2009, the trial
court held a hearing for the purpose of entering an order based on the
agreement.  At the hearing, the
Department asked the trial court to sign an order that included a finding that
appointing Natalie as managing conservator would not be in Steven=s
best interest because it would significantly impair Steven=s physical
health or emotional development.  This
provision is not found anywhere within the mediated settlement agreement.
The
Department alleged that the trial court was required to make the finding
pursuant to Texas Family Code section 153.131, which the Department argued is
required any time a trial court appoints a non-parent as managing
conservator.  Tex. Fam. Code Ann. '
153.131 (Vernon 2008).  Natalie argued
that the agreement was the basis for the order to be entered by the trial court
and that, because the agreement did not include this provision, it would be
error for the trial court to include it in its order.  The trial court overruled Natalie=s
objection and entered an order containing the Department=s
requested finding.  This appeal followed.
III.  Discussion
In
three issues, Natalie argues that the trial court abused its discretion by
adding the above-mentioned term; that the judicial findings set forth in Texas
Family Code section 153.131 are not required whenever there is a mediated settlement
agreement; and that the evidence is insufficient to support the trial court=s
significant impairment finding.  We agree
that the trial court erred by including the significant impairment finding in
its final order.
Texas Family Code section 153.131(a) states
that
 
[s]ubject
to the prohibition in Section 153.004, unless the court finds that appointment
of the parent or parents would not be in the best interest of the child because
the appointment would significantly impair the child=s physical health or
emotional development, a parent shall be appointed sole managing conservator or
both parents shall be appointed as joint managing conservators of the child.
 
Tex. Fam. Code Ann. ' 153.131(a)
(Vernon 2008).  This provision provides
for the general presumption that a parent be appointed managing conservator in
a suit affecting the parent-child relationship unless doing so would
significantly impair the child.  Id.  Another Texas Family Code provision, however,
applies to mediated settlement agreements.
Section
153.0071 states that a mediated settlement agreement is binding on the parties
if (1) it provides, in a prominently displayed statement that is in
boldfaced type or capital letters or underlined, that the agreement is not
subject to revocation, (2) is signed by each party to the agreement, and
(3) is signed by the party=s
attorney, if any, who is present at the time the agreement is signed.  Id. ' 153.0071(d)
(Vernon Supp. 2009). The statute further provides that, if a mediated settlement
agreement meets the requirements of section 153.0071(d), Aa
party is entitled to judgment on the mediated settlement agreement
notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of
law.@  Id. ' 153.0071(e).
This
court has held that the Anotwithstanding@
clause contained in Texas Family Code section 6.602(c)Cwhich
is identical to section 153.0071(e) but applies to divorce actions rather than
child custody lawsuitsCmeans that the requirements
of rule 11 and the common law that ordinarily apply to the enforcement of
settlement agreements do not apply to mediated settlement agreements in divorce
proceedings if the agreements meet the three requirements listed in Section
6.602(b), which is identical to section 153.0071(d).  Id. ''
6.602(b),(e); 153.0071(d),(e); Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex.
App.CFort
Worth 2002, no pet.).  This court has
also held that a trial court need not determine the best-interest-of-the-child
finding from Texas Family Code 153.007 when issues of conservatorship,
possession, and access to children are resolved by a rule 11 agreement.  In re K.N.M., No. 02‑08‑00308‑CV,
2009 WL 2196125, at *7 (Tex. App.CFort
Worth July 23, 2009, no pet.) (mem. op.).
The
Department argues that this court=s decision
in Critz v. Critz supports its position that 153.131=s
presumption must be overcome in order for a trial court to appoint a non-parent
as joint managing conservator in a suit affecting the parent-child
relationship.  297 S.W.3d 464, 471 (Tex.
App.CFort
Worth 2009, no pet.) (AThe plain wording of the
statute makes clear that this presumption applies when a non‑parent seeks
managing conservatorship in lieu of or in addition to both parents.@)  But Critz is inapplicable to the facts
of this case.  Critz dealt with
conservatorship issues tried to the bench, whereas this case involves a
mediated settlement agreement that specifies that all parties have Awaive[d]
their right to have the issues resolved herein tried to the court or to a jury.@  Id. at 468.
The
Department further argues that there is no language in section 153.131 that
indicates that the parental presumption is inapplicable to the appointment of
non-parents as joint managing conservators as long as the parties agree to such
an appointment in a mediated settlement agreement.  Thus, according to the Department, the trial
court was required to make a significant impairment finding in order to issue
its order on the mediated settlement agreement. 
But the lack of language indicating whether the presumption applies is
not controlling under the facts of this case. 
Although section 153.131 states that Aunless
the court finds . . . significant[] impair[ment to] the child=s
physical health or emotional development, a parent shall be appointed
sole managing conservator,@
(emphasis added) it does not otherwise require a court to enter such a finding
when there is a mediated settlement agreement that complies with section
153.0071 where section 153.131=s
presumption is not met.
While
section 153.131 deals generally with conservatorship, section 153.0071(d) deals
specifically with mediated settlement agreements.  A fundamental principle of statutory
construction is that a more specific statute controls over a more general
one.  Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 901 (Tex. 2000). 
Indeed, the government code provides that general and specific
provisions should be construed, if possible, to give effect to both, but when
they cannot be reconciled, the specific provision should prevail.  See Tex. Gov. Code Ann. ' 311.026
(Vernon 2005); State v. Alley, 137 S.W.3d 866, 868 (Tex. App.CHouston
[1st Dist.] 2004), aff=d,
158 S.W.3d 485 (Tex. 2005).  For example,
in Garcia‑Udall v. Udall, the Dallas Court of Appeals determined
that section 153.0071 controlled over section 153.007=s
requirement that a trial court find that an amicable settlement between parties
be in the child=s best interest.  141 S.W.3d 323, 331 (Tex. App.CDallas
2004, no pet.). This is so because section 153.0071 deals specifically with
mediated settlement agreements, while section 153.007 deals generally with
agreements >Acontaining
provisions for conservatorship and possession of the child.@=  Id.
Like
section 153.007, section 153.131 deals generally with conservatorship in a suit
affecting the parent-child relationship. 
Thus, as long as a mediated settlement agreement complies with section
153.0071, its failure to address the parental presumption or a trial court=s
finding of significant impairment under section 153.131 does not render it
void.  Furthermore, as long as a mediated
settlement agreement complies with section 153.0071, the trial court must
comply with the specific edicts of that section and not the more general
section 153.131.  Therefore, a trial
court does not need to add such a finding to a mediated settlement agreement,
and it errs if it does place such a finding contrary to the parties=
agreement in an order.




Our
conclusion that a mediated settlement agreement that complies with 153.0071,
like the mediated settlement agreement in this case, requires a trial court to
enter an order in compliance with the agreement without making a significant
impairment finding when one is not in the agreement is further supported by
analyzing the different provisions found in section 153.0071 itself.  Section 153.0071 contains provisions for both
arbitrators=
awards and mediated settlement agreements. 
For arbitration, section 153.0071(b) gives the trial court discretion
not to enforce the arbitrator=s
award if Athe court
determines at a non‑jury hearing that the award is not in the best
interest of the child.@  Tex. Fam. Code Ann. ' 153.0071(b)
(Vernon Supp. 2009).  The express
provision on mediated settlement agreements, however, contains no express
exceptions giving the trial court discretion not to enforce the mediated
settlement agreement.  See id. ' 153.0071(c)B(f);
see also Garcia‑Udall, 141 S.W.3d at 330B32
(reasoning that 153.0071's different language regarding arbitration versus mediation
supported its holding that trial court lacked authority to enter judgment that
varied from terms of a mediated settlement agreement).  Additionally, section 153.0071(e-1) addresses
when the trial court can decline to enter a judgment on a mediated settlement
agreement, and that provision does not apply in this case.  See Tex. Fam. Code. Ann. ' 153.0071(e-1)
(Vernon Supp. 2009) (instructing that a court may decline to enforce a mediated
settlement agreement when a party to the agreement was a victim of family
violence).
In
this case, the trial court had no authority to enter an order that varied from
the terms of the mediated settlement agreement, and we conclude that the trial
court erred by doing so.  See In re
Circone, 122 S.W.3d 403, 407 (Tex. App.CTexarkana
2003, no pet.) (AUnder the terms of [section
153.0071], the trial court had no authority to go behind the signed agreement
of the parties . . . .@).  Accordingly, we render judgment that the
trial court=s
order be reformed to reflect the express mediated settlement agreement
only.  Specifically, we reform the order
and delete the provision, AThe
Court finds that appointment of the parent as Managing Conservator would not be
in the best interest of the child because the appointment would significantly
impair the child=s physical health or
emotional development.@  We resolve Natalie=s
first and second issues in her favor.
IV.  Conclusion
Having
resolved Natalie=s first two issues in her
favor, we need not address her third issue. 
See Tex. R. App. P. 47.1. 
We modify the trial court=s
order and affirm the order as modified.
 
 
BILL MEIER
JUSTICE
 
PANEL:  LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
 
DELIVERED:  August 12, 2010




[1]For purposes of maintaining
the confidentiality of this appeal, we will refer to the parents and child by
fictitious names.  See Tex. R.
App. P. 9.8; Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2008).


