                               Fourth Court of Appeals
                                      San Antonio, Texas
                                              OPINION
                                         No. 04-13-00178-CV

                       IN THE INTEREST OF A.H., N.K.L., J.A.S., and A.I.S.

                      From the 150th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-PA-00416
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 28, 2013

REVERSED AND RENDERED IN PART; AFFIRMED IN PART

           This is an accelerated appeal from the trial court’s order terminating appellant’s parental

rights to her four children. The three fathers of the four children also had their parental rights

terminated, but they are not the subject of this appeal. We reverse that portion of the trial court’s

order terminating appellant’s parental rights and affirm in all other respects.

                                            DISCUSSION

           The trial court terminated appellant’s parental rights on two grounds: (1) that she had

“executed before or after the suit [was filed by the Department of Family and Protective Services]

an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter

161, Texas Family Code,” and (2) termination is in the children’s best interest. See TEX. FAM.
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CODE ANN. § 161.001(1)(K), (2) (West Supp. 2013). On appeal, appellant challenges the legal

and factual sufficiency of the evidence in support of both grounds.

                                   STANDARD OF REVIEW

       Judgments terminating parental rights must be supported by clear and convincing evidence.

TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). “‘Clear and convincing evidence’ means

the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Id. § 101.007 (West 2008);

see also In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). To terminate parental rights under the Family

Code, the State must prove by clear and convincing evidence that (1) the parent has committed an

act or omission listed in section 161.001 and (2) termination is in the child’s best interest. TEX.

FAM. CODE ANN. § 161.001(1), (2).

                                           ANALYSIS

       Shortly before the termination hearing, appellant executed an “Affidavit of Voluntary

Relinquishment of Parental Rights to the Texas Department of Family and Protective Services”

(“Affidavit”) as to all four children. Appellant was not present when the termination trial began,

but appeared after the parties had each rested. She told her attorney, who was present throughout

the proceeding, she had been “upset” when she signed the Affidavit, she had “changed her feelings

on it,” and she wanted to revoke her relinquishment. The trial court did not allow her attorney to

reopen the evidence and place appellant on the witness stand. Instead, after a short recess to

consider the law, the trial court terminated the parental rights of all four parents. Appellant did

not file a motion for new trial raising any basis on which to revoke her Affidavit.

       In her first issue, appellant asserts the trial court erred in terminating her parental rights

because the Affidavit does not satisfy the requirement that the form be “as provided by Chapter

161, Texas Family Code.” More specifically, appellant asserts the Affidavit does not satisfy the
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requirements of Family Code section 161.103 that the Affidavit state the relinquishing parent’s

county of residence and the county of residence of other parents. Id. § 161.103(b)(1), (7)(A) (West

2008). Appellant also points to other deficiencies in the Affidavit regarding the names of the

children in relation to their fathers. For example, in her Affidavit, appellant listed the child of

Andrew O. as A.O. when no such child is the subject of the termination. However, Andrew O.’s

Affidavit for Voluntary Relinquishment identifies A.H. as the child. In her Affidavit, appellant

did not identify any of the children of the fathers Michael S. or Brian D.L. However, the Affidavit

signed by Brian D.L. identifies the child as N.K.L. Appellant argues the requirements of Family

Code sections 161.001(K) and 161.103 should be strictly construed in her favor because, other

than best interest, no other ground supported termination.

       Proceedings to terminate an individual’s parental rights must be strictly scrutinized. In the

Int. of G.M., 596 S.W.2d 846, 846 (Tex. 1980); Neal v. Tex. Dep’t of Human Servs., 814 S.W.2d

216, 218 (Tex. App.—San Antonio 1991, writ denied). However, “[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.” TEX. FAM. CODE at § 161.211(c); see also

Neal, 814 S.W.2d at 219 (holding “an involuntarily executed affidavit is a complete defense to a

termination suit or decree based solely upon a finding under section [161.001(1)(K)] of the Family

Code”).

       Here, appellant made no claim of duress, overreaching, coercion, or fraud at the time she

signed the Affidavit. The case worker stated the Department was willing to accept the voluntary

relinquishments as the sole grounds for termination of appellant’s, Andrew O.’s, and Brian D.L.’s

parental rights. At trial, Michael S. was identified as the father of J.A.S. and A.I.S., and his rights

were terminated on other statutory grounds. At the beginning of trial, appellant’s attorney
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informed the court that appellant was not present but that she had voluntarily signed the Affidavit.

At the end of trial, when appellant appeared, in addition to telling the court appellant “was really

upset,” counsel also represented to the court that appellant had finished most of her services, but

“was never able to get into her drug treatment program, for one reason or another” and “she just

appeared to ask the Court for more time to do that.” Nothing in the record indicates appellant

signed the Affidavit due to fraud, duress, coercion, or that she involuntarily executed the affidavit.

In re M.A.W., 31 S.W.3d 372, 376 (Tex. App.—Corpus Christi 2000, no pet.) (trial court did not

err in accepting appellant’s affidavit and overruling her motion for new trial because evidence

showed only that she had changed her mind and wanted her children returned to her). Therefore,

on this record we conclude the evidence supporting the trial court’s finding that appellant had

“executed before or after the suit [was filed by the Department of Family and Protective Services]

an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter

161, Texas Family Code,” is supported by clear and convincing evidence.

       In her second issue, appellant challenges the legal and factual sufficiency of the evidence

in support of the trial court’s best interest finding. There is a strong presumption that keeping a

child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In

determining whether termination of parental rights is in a child’s best interest, courts may apply

the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–

72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional

and physical needs of the child now and in the future, (3) the emotional and physical danger to the

child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the

programs available to assist these individuals to promote the best interest of the child, (6) the plans

for the child by these individuals or by the agency seeking custody, (7) the stability of the home

or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing
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parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the

parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may

also constitute evidence illustrating that termination is in the child’s best interest. See In re C.H.,

89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(1) grounds and

best interest).

        Appellant’s signing the Affidavit of Voluntary Relinquishment of Parental Rights as to all

four children is relevant to the best interest inquiry. See id. However, such a relinquishment is

not ipso facto evidence that termination is in the children’s best interest. To hold otherwise would

subsume the requirement of proving best interest by clear and convincing evidence into the

requirement of proving an act or omission listed in section 161.001 by clear and convincing

evidence. TEX. FAM. CODE § 161.001. Termination of parental rights requires the State prove by

clear and convincing evidence both subsection (1) and subsection (2) of section 161.001.

Therefore, even if a parent has voluntarily and irrevocably relinquished his or her parental rights

under subsection (1), the State must still establish by clear and convincing evidence that

termination of parental rights is in the child’s best interest under subsection (2). See In re C.H.,

89 S.W.3d at 28 (proof of act or omission under section 161.001(1) “does not relieve the petitioner

from proving the best interest of the child”); see also Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.

1976) (holding both elements must be established and requirements of subsection (1) are not

excused because a court may be of the opinion that subsection (2) has been proved).

        The only evidence of best interest was offered by the caseworker who testified termination

of all parental rights was in the children’s best interest “because the children need a loving family

that will care for them and take care of their needs,” and the children were to be adopted by their

current care givers. The State argues that although the evidence regarding best interest was

“limited,” no evidence was offered to contradict the caseworker’s testimony and appellant offered
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no proof that termination of her parental rights was not in the children’s best interest. But due

process and the Texas Family Code place the burden of proof on the Department to prove the

necessary elements by the heightened burden of “clear and convincing evidence.” See TEX. FAM.

CODE § 161.001. Thus, conclusory testimony, such as the caseworker’s, even if uncontradicted

does not amount to more than a scintilla of evidence. And, “[a]lthough [a parent’s] behavior may

reasonably suggest that a child would be better off with a new family, the best interest standard

does not permit termination merely because a child might be better off living elsewhere.” In re

W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.) (concluding appellant’s

offending behavior was not egregious enough, on its own, to warrant a finding that termination

was in children’s best interests; therefore, other independent facts must support jury’s best interest

finding).

        Prompt and permanent placement of the child in a safe environment is presumed to be in a

child’s best interest. TEX. FAM. CODE § 263.307(a); In re R.R., 209 S.W.3d at 116 (stability of

proposed placement a factor in best interest determination). Here, other than the caseworkers

conclusory testimony and the children’s ages, no other evidence about the children or appellant

was offered. Other than the identity of the caregivers, no information about the caregivers or the

nature of the environment these caregivers would provide for the children was offered. On this

record, we cannot conclude the evidence rises to the level of “clear and convincing” or of proof

that would produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegation that termination was in the children’s best interest. Therefore, we must conclude the

evidence is legally insufficient to support the trial court’s best interest finding.

                                           CONCLUSION

        We reverse that portion of the trial court’s order terminating appellant’s parental rights and

render judgment that the Department of Family and Protective Services’ petition requesting
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termination of her rights is denied. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (holding

rendition of judgment in favor of parent generally required if there is legally insufficient evidence).

We affirm the remainder of the trial court’s order terminating the parental rights of the children’s

individual fathers and awarding sole managing conservatorship of the children to the Department.

See In re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007) (holding that, because elements and burden with

respect to termination and conservatorship differ, reversal of termination does not affect trial

court’s conservatorship appointment absent assigned error).


                                                   Sandee Bryan Marion, Justice




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