                              NUMBER 13-16-00510-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


EDNA BERENICE PUENTE,                                                         Appellant,

                                             v.

GERTRUDIS LITTLE AND
JAMES R. LITTLE,                                                              Appellees.


                On appeal from the County Court at Law No. 4
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Benavides

       By one issue, appellant Edna Puente challenges the trial court’s denial of her bill of

review. At the trial court, Puente filed a bill of review in response to an order terminating

her parental rights to her son and a subsequent order of adoption by the appellees,

Gertrudis and James Little (collectively the Littles). We affirm.
                                             I.       BACKGROUND1

        This case stems out of a voluntary relinquishment of parental rights and subsequent

adoption. On October 27, 2015, Puente executed a voluntary relinquishment of parental

rights regarding her son, S.C.T.2 On December 16, 2015, the trial court granted an

adoption of S.C.T. to the Littles.

        On January 26, 2016, Puente filed suit challenging the voluntary relinquishment

and adoption through a bill of review. A hearing on Puente’s bill of review was conducted

on June 8, 2016, and the trial court entered findings of fact and conclusions of law and

denied Puente’s bill of review on June 13, 2016. Her motion for new trial was overruled

by operation of law, and this appeal followed.

                                             II.     BILL OF REVIEW

        By her sole issue, Puente challenges the trial court’s denial of her bill of review.

        A.      Standard of Review and Applicable Law

        A bill of review is an independent action to set aside a judgment that is no longer

appealable or subject to challenge by a motion for new trial. Wembley Inv. Co. v. Herrera,

11 S.W.3d 924, 926–27 (Tex. 1999). Although it is an equitable proceeding, the fact that

an injustice has occurred is not sufficient to justify relief by bill of review. Id. at 927.

Generally, bill of review relief is available only if a party has exercised due diligence in

pursuing all adequate legal remedies against a former judgment, and through no fault of




         1 As this is a memorandum opinion and the parties are familiar with the facts of the case, we will
not recite them here except as necessary to advise the parties of this Court's decision and the basic reasons
underlying it. See TEX. R. APP. P. 47.4.
        2   Pursuant to Rule 9.8(b) of the Texas Rules of Appellate Procedure, we will utilize aliases when
referring to the child in this proceeding. See TEX. R. APP. P. 9.8(b).

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its own, has been prevented from making a meritorious claim or defense by the fraud,

accident, or wrongful act of the opposing party. Id.

       In reviewing the granting or denial of a bill of review, every presumption is indulged

in favor of the court’s ruling, which will not be disturbed unless it is affirmatively shown that

there was an abuse of discretion. Barnes v. Deadrick, 464 S.W.3d 48, 53 (Tex. App.—

Houston 2015, no pet.). The trial court may be reversed for abusing its discretion only if it

has acted in an unreasonable or arbitrary manner or without reference to any guiding rules

and principles. Id.

       A bill of review complainant must prove three elements: (1) a meritorious defense

to the cause of action alleged to support the judgment, or a meritorious claim, (2) which

he or she was prevented from making by the fraud, accident, or wrongful act of the

opposing party or official mistake, and (3) unmixed with the fault or negligence of the

complainant. Jones v. Tex. Dep’t. of Protective & Regulatory Serv., 85 S.W.3d 482, 487

(Tex. App.—Austin 2002, pet ref’d.).

       The procedure for conducting a bill of review proceeding is set out in Baker v.

Goldsmith, 582 S.W.2d 404 (Tex. 1979). First, the bill of review complainant must file a

petition alleging factually and with particularity the three elements of a bill of review. Id. at

408. The complainant must then present, as a pretrial matter, prima facie proof to support

the meritorious defense alleged in the petition. Id. The only relevant inquiry at this

preliminary stage is whether (1) the complainant's defense is barred as a matter of law

and (2) the complainant will be entitled to judgment on retrial if no evidence to the contrary

is offered. Id. at 408–09. This is a question of law for the court. Id. at 409. In making its

determination, the district court may consider discovery documents, affidavits, and such



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other evidence that the court admits under its discretion. Id. The bill of review defendant

may also present proof, but is limited to showing that the meritorious defense is barred as

a matter of law; any factual questions arising out of factual disputes are resolved in favor

of the complainant at this preliminary stage of the proceeding. Id. If the court determines

that the complainant has failed to establish a prima facie meritorious defense, the court

shall terminate the bill-of-review proceeding and dismiss the case. Id.

       On the other hand, if the district court determines that the complainant has

presented a prima facie meritorious defense, the court may then conduct a trial, during

which the complainant must prove, by a preponderance of the evidence: (1) whether the

complainant was prevented from asserting the meritorious defense due to fraud, accident,

or wrongful conduct by the opposing party or official mistake, (2) unmixed with the fault or

negligence of the complainant. Id. If the complainant satisfies this burden, the underlying

controversy between the parties is retried. Id. The district court may try these remaining

two elements in conjunction with the retrial of the underlying case or may conduct a

separate trial on the elements. Id.; Martin v. Martin, 840 S.W.2d 586, 591 (Tex. App.—

Tyler 1992, writ denied). The complainant may demand a jury trial on the two remaining

elements. Martin, 840 S.W.2d at 592.

       B.     Discussion

       Puente alleges that she established by a preponderance of evidence that her

parental rights relinquishment affidavit was obtained by fraud, deception, and undue

influence or overreaching, due to the Littles’ misconduct, and was unmixed with her own

fault or negligence.




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        Under the Family Code, a trial court may order termination of the parent-child

relationship if the court finds by clear and convincing evidence that termination is in the

best interest of the child and that the parent has executed a valid, irrevocable affidavit of

relinquishment of parental rights. See TEX. FAM. CODE ANN. § 161.001(1)(K), (2) (West,

Westlaw through 2017 1st C.S.). Section 161.103 of the Family Code provides a litany of

requirements that must be met for the affidavit of voluntary relinquishment of parental

rights to form the basis for termination of the parent-child relationship under section

161.001(1)(K). In re K.M.L., 443 S.W.3d 101, 108 (Tex. 2014).

        The trial court held a hearing on Puente’s bill of review. 3 During the hearing, Puente

testified regarding the affidavit. She stated that James Little had woken her up and taken

her to an attorney’s office. Puente claimed that she believed the affidavit was to allow the

Littles to pick up S.C.T. from school and take him to doctor’s appointments, which she later

agreed was more like a guardianship. Puente told the trial court she had been out drinking

and taking Xanax pills the night before and could have still been “buzzed.” She also

explained to the court that she “can’t function” when she takes Xanax. Puente also agreed

that although she can read the English language, she did not read the document she was

signing or ask any questions regarding what it contained. Puente believed she was

“tricked” or “stupid” for signing the relinquishment but also stated that she did not feel she

had to sign the document because she was told to sign it.

        Puente’s nurse practitioner, Trenton Carlos Apodaca, testified that he had been

seeing Puente since January 2016 and that he diagnosed her with major depressive order


          3 Although Puente argues that the trial court proceeded with the bill of review trial and disregarded

any preliminary matters, Puente requested the trial court to set her bill of review for a “hearing.” Although
the trial court did not hold a two-step proceeding, Puente did not object to the trial court’s hearing. Therefore,
Puente has waived this issue on appeal. See TEX. R. APP. P. 33.1.

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and bipolar disorder. He told the trial court that drug use can exacerbate Puente’s

disorders and affect her cognitive disabilities. He also stated that he could not testify as

to her condition when she signed the documents, as he was not treating her at that time.

       Puente’s mother, Claudia, also testified that she was not aware of the

relinquishment until Puente called her in December 2015. Puente had attempted to pick

up S.C.T. from school and was told she was not allowed to by school officials. Puente

then found papers at the Littles’ home that showed they had adopted S.C.T. and phoned

her mother. Claudia testified that Puente sometimes asked her to explain documents so

Puente could understand them and that Puente did not understand the relinquishment

affidavit she signed. Claudia also explained that they attempted to get legal assistance

from legal aid sources to no avail, approached a commissioner for assistance, and then

finally retained legal counsel, who then filed the bill of review.

       James Little testified on behalf of himself and his wife. Little told the trial court that

when S.C.T. was an infant, they were given guardianship of S.C.T. by the Texas

Department of Family and Protective Services (CPS).                Little stated that Puente had

previously signed a guardianship agreement at the attorney’s office in order for the Littles

to take S.C.T. on vacation with them. Little explained the adoption was Puente’s idea

because she wanted a better life for her son. Little said Puente knew why they were going

to the lawyer’s office that morning, and he believed she understood what was going on.

Little said it was not a trick to get her to sign, but her idea.

       Following the hearing, the trial court entered findings of fact and conclusions of law.

In its findings, the trial court found that Puente could read the English language; admitted

to signing the voluntary relinquishment affidavit; that Puente did not read the affidavit, but



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could have; had taken one Xanax but was not intoxicated; that Puente had personal

knowledge by December 18, 2015 of the termination and adoption of S.C.T.; and that

Puente filed no legal action until January 26, 2016 when she filed the bill of review. The

trial court also concluded that Puente was negligent in allowing the termination and

adoption to become final by not reading the relinquishment affidavit, by not promptly filing

a challenge to the termination and adoption, and Puente did not show entitlement to relief

under the bill of review.

       In order for the trial court to set aside the relinquishment affidavit, it was required to

find by preponderance of the evidence there was coercion, duress, fraud, deception,

undue influence, or overreaching. Lumbis v. Tex. Dep’t. of Prot. & Reg. Serv., 65 S.W.3d

844, 850 (Tex. App.—Austin 2002, pet. denied). Based on the evidence presented,

Puente has not provided prima facie proof that she was “duped” into signing the

relinquishment affidavit. See Baker, 582 S.W.2d at 408 (bill of review procedure). Puente

admitted to not reading the affidavit or asking questions before signing it, as well as to not

feeling like she was being forced to sign the affidavit. Additionally, James Little testified

that it was Puente’s idea that the Littles adopt S.C.T., that she appeared to understand

what was going on, and they did not discuss it further upon leaving the attorney’s office.

No evidence presented to the trial court showed a meritorious defense where Puente was

not at fault. See Jones, 85 S.W.3d at 487. Therefore, we conclude that the trial court did

not abuse its discretion by denying Puente’s bill of review. See Barnes, 464 S.W.3d at 53.

We overrule Puente’s sole issue.




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                                      III.    CONCLUSION

      We affirm the judgment of the trial court.



                                                           GINA M. BENAVIDES,
                                                           Justice



Delivered and filed the
29th day of March, 2018.




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