                                       NO. 12-14-00122-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

IN THE INTEREST OF                                       §       APPEAL FROM THE

A.C, Z.C., J.C., S.C., AND A.C.,                         §       COUNTY COURT AT LAW #1

MINOR CHILDREN                                           §       GREGG COUNTY, TEXAS

                                       MEMORANDUM OPINION
        M.M. and C.C. appeal the termination of their parental rights to A.C., Z.C., J.C., S.C.,
and A.C.1. They jointly raise two issues on appeal.1 We affirm.


                                                BACKGROUND
        M.M. and C.C. (collectively Appellants) are the parents of A.C, Z.C., J.C., S.C., and
A.C.1. The Department of Family and Protective Services (the Department) filed an original
petition for protection of the children, for conservatorship, and for termination on April 24, 2013.
The Department‟s initial goal of family reunification changed to termination, and the contested
bench trial was set for March 17, 2014. M.M. and C.C. did not appear at trial, but affidavits of
voluntary relinquishment of parental rights to the Department with Appellants‟ signatures were
filed and offered into evidence. The trial court terminated Appellants‟ parental rights to their five
children based on the relinquishments and found that termination was in the children‟s best
interest. Appellants filed motions for new trial, each stating that they intended to appeal the trial
court‟s finding that they executed an “unrevoked or irrevocable affidavit of relinquishment of
parental rights.” The trial court conducted a hearing on Appellants‟ motions and denied their
requests for a new trial. This appeal followed.


        1
           To protect the identity of the children who are the subject of this suit, we use aliases to identify the
various parties involved. See TEX. R. APP. P. 9.8(b)(2).
                               TERMINATION OF PARENTAL RIGHTS
       The natural right between a parent and child is one of constitutional dimensions; thus,
termination proceedings must be strictly scrutinized. In re K.M.L., No. 12-0728, 2014 WL
4252270, at *7 (Tex. Aug. 29, 2014) (not yet released for publication) (citations omitted).
Section 161.001 of the Texas Family Code permits the termination of parental rights if two
elements are met. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re C.L.C., 119 S.W.3d 382,
390 (Tex. App.—Tyler 2003, no pet.). First, the parent must have engaged in any one of the acts
or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN. § 161.001(1);
In re C.L.C., 119 S.W.3d at 390. Second, termination must be in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(2); In re C.L.C., 119 S.W.3d at 390. Both elements must be
proved by “clear and convincing evidence,” and proof of one element does not alleviate the
petitioner‟s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; In re C.L.C., 119
S.W.3d at 390. “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. TEX. FAM. CODE ANN. § 101.007 (West 2014).
       When the burden of proof is clear and convincing evidence, we conduct a legal
sufficiency review by looking at all of the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or conviction that its
finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id.
Thus, it follows that the reviewing court should disregard all evidence that a reasonable fact
finder could have disbelieved or found to have been incredible, but this does not mean that the
reviewing court must disregard all evidence that does not support the finding. Id. Disregarding
undisputed facts that do not support the finding could skew the analysis of whether there is clear
and convincing evidence. Id. If, after conducting our legal sufficiency review, we determine
that no reasonable fact finder could form a firm belief or conviction that the matter which must
be proven is true, then we will conclude that the evidence is legally insufficient. Id.
       When we conduct a factual sufficiency review, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our
inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the Department‟s allegations.          Id.   We consider whether the



                                                  2
disputed evidence is such that a reasonable fact finder could not have resolved that disputed
evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed
evidence is so significant that a fact finder could not have reasonably formed a firm belief or
conviction, then the evidence is factually insufficient.            Id.   In finding evidence factually
insufficient, the appellate court should detail why it has concluded that a reasonable fact finder
could not have credited disputed evidence in favor of its finding. Id. at 267.
        The standard of review for legal and factual sufficiency challenges maintains a
deferential standard for the fact finder‟s role, which means the trier of fact is the exclusive judge
of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d
17, 26-27 (Tex. 2002); Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston
[1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that the only fact
findings which could withstand review are those established beyond a reasonable doubt. In re
C.H., 89 S.W.3d at 26.


                                VOLUNTARINESS OF RELINQUISHMENT
        In their first issue, Appellants ask this court to determine whether “the affidavit of
relinquishment of parental rights signed by the parents [was] voluntarily executed.” We construe
this issue as a challenge to the sufficiency of the evidence supporting termination under Section
161.001(1)(K) of the family code and a challenge to the trial court‟s denial of their motions for
new trial.
Termination Under Section 161.001(1)(K)
        A trial court may terminate the parent-child relationship if it finds by clear and
convincing evidence that the parent has executed an unrevoked or irrevocable affidavit of
relinquishment of parental rights as provided by the family code. See TEX. FAM. CODE ANN.
§§ 161.001(1)(K), 161.103 (West 2014). The party seeking termination has the burden to prove
the elements necessary to support termination of the parent-child relationship. In re K.M.L.,
2014 WL 4252270, at *8. It is implicit in Section 161.001(1)(K) that the affidavit of parental
rights be voluntarily executed. Id.; see also TEX. FAM. CODE ANN. § 161.103 (West 2014).2


        2
           Section 161.103 requires that the affidavit be “for voluntary relinquishment.” TEX. FAM. CODE ANN.
§ 161.103(a) (West 2014); see also In re K.M.L., No. 12-0728, 2014 WL 4252270, at *8 (Tex. Aug. 29, 2014) (not
yet released for publication).




                                                      3
Thus, the burden is on the party seeking termination to prove by clear and convincing evidence
that the parent voluntarily—that is, knowingly and intelligently—executed the affidavit of
relinquishment. In re K.M.L., 2014 WL 4252270, at *8, 10; Monroe v. Alternatives in Motion,
234 S.W.3d 56, 61-62 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citations omitted)
(“[B]ecause an affidavit of relinquishment waives a constitutional right, it must be made
voluntarily, knowingly, intelligently, and with full awareness of its legal consequences.”).
        An affidavit of relinquishment in proper form is prima facie evidence of its validity. See
Monroe, 234 S.W.3d at 62 (citing In re V.R.W., 41 S.W.3d 183, 190 (Tex. App.—Houston [14th
Dist.] 2001, no pet.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex.
2002). But an involuntarily executed affidavit is a complete defense to a termination suit based
on Section 161.001(1)(K). In re K.M.L., 2014 WL 4252270, at *8.
The Trial
        A contested bench trial on the Department‟s petition for termination was scheduled to
begin on March 17, 2014. When the case was called, trial counsel advised the trial court that
Appellants had signed affidavits of relinquishment earlier that morning, had given him the
authority to “stand in for them,” and were “a little verklempt.”3 The affidavits were filed, and
each was entitled “Affidavit of Voluntary Relinquishment of Parental Rights to the Department
of Family and Protective Services.” One affidavit contains M.M.‟s signature and the other
contains C.C.‟s signature.
        Trial counsel confirmed that he had sufficient time to speak to Appellants about
relinquishing their parental rights. He explained that they had met “for several hours” the
previous day, and that he counseled with them about trial, revocations, and “relinquishment[] of
their rights.” He advised Appellants to think about relinquishment overnight and to return the
next morning (the day of trial). Trial counsel informed the court that Appellants called him early
that morning and advised that they wanted to relinquish. Trial counsel explained that


        [t]he State prepared the documents this morning. We went over them each. We read through
        every line. They understood everything, in my opinion. We had two witnesses and a notary when
        they decided to conclude; and then at the conclusion of their signatures, they both decided they did
        not want to appear in court today.


        3
          “Verklempt” (also “farklempt”) is a Yiddish word that means “[u]nable to speak because of emotion;
choked up.”        See The American Heritage Dictionary of the English Language, available at
https://www.ahdictionary.com/word/search.html?id=F5038500.



                                                         4
The following discourse then took place:


       Court: So they fully understood that they had the right to challenge the evidence of the State and
       to actually have a trial today, in which the State would have had the burden to prove to the Court
       by clear and convincing evidence the matters in the petition?

       Trial Counsel: They understood, Your Honor.

       Court: And they had the opportunity to ask you and to counsel with you about the effects of
       signing this document relinquishing parental rights?

       Trial Counsel: Yes, ma‟am, they do.

       Court: And do you believe they executed these documents of their own will and free choice?

       Trial Counsel: I do, Your Honor.


The Department offered, and the trial court admitted, the affidavits into evidence. Each affidavit
contains a statement that the parent has “been informed of and understand[s]” his or her parental
rights. Each affidavit also states that


       by naming the Department of Family and Protective Services as managing conservator in this
       Affidavit of Relinquishment, I give up all my parental rights and grant them to the Department
       and/or to the adoptive parents with whom my children may be placed.


Each affidavit designates the Department as the managing conservator of the children and states
that the parent


       freely, voluntarily, and permanently give[s] and relinquish[es] to the Department all my parental
       rights and duties. I consent to the placement of the children for adoption or in substitute care by
       the Department or by a licensed children-placing agency.

       ....
       This Affidavit of Relinquishment of Parental Rights is and shall be final, permanent, and
       irrevocable. I fully understand that, if I change my mind at any time, I can never force the agency
       to destroy, revoke[,] or return this affidavit.


Lastly, the affidavit contains the following acknowledgement above the relinquishing parent‟s
signature:




                                                       5
       I fully understand that this affidavit, once signed, is irrevocable, and I will not be further informed
       of any hearings or proceedings affecting the children named in this affidavit, including any
       termination suit.

       I have received a copy of this Affidavit of Relinquishment at the time of signing.



No evidence was presented at trial to show that the execution of the affidavits was involuntary.
       After viewing the evidence in the light most favorable to the trial court‟s ruling, we
conclude that a reasonable fact finder could form a firm belief or conviction that Appellants
knowingly, intelligently, and voluntarily executed their affidavits of relinquishment. See In re
J.F.C., 96 S.W.3d at 266. After reviewing the entire record, we hold that a fact finder could
reasonably have formed a firm belief or conviction about the truth of the Department‟s
allegations under Section 161.001(1)(K) of the family code.                       See TEX. FAM. CODE ANN.
§ 161.001(1)(K); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is both legally and
factually sufficient to support termination of Appellants‟ parental rights under Section
161.001(1)(K) of the family code.
Motion for New Trial
       We review a trial court‟s denial of a motion for new trial for abuse of discretion. In re
R.R., 209 S.W.3d 112, 114 (Tex. 2006). Absent an abuse of discretion, the trial court‟s ruling
will not be disturbed on appeal. See Dir. State Employees Workers’ Comp. Div. v. Evans, 889
S.W.2d 266, 268 (Tex. 1994).
       An order terminating parental rights based on an affidavit of relinquishment may be set
aside upon proof, by a preponderance of the evidence, that the affidavit was executed as a result
of fraud, duress, or coercion. See TEX. FAM. CODE ANN. § 161.211(c) (West 2014); In re
D.E.H., 301 S.W.3d 825, 830 (Tex. App.—Fort Worth 2009, pet. denied); see also In re C.E.,
No. 02-14-00054-CV, 2014 WL 3866159, at *5 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.)
(mem. op.) (proponent showed compliance with section 161.103; thus, it was mother‟s burden,
for purposes of motion for new trial, to prove by preponderance that affidavit was executed due
to fraud, duress, or coercion); but see In re L.M.I., 119 S.W.3d 707, 716 (Tex. 2003)
(Wainwright, J., concurring) (expressing concern that placing burden on parents to set aside
affidavit “may run afoul of constitutional and statutory mandates for the burden of proof and
quantum of evidence necessary to terminate parental rights”).




                                                         6
        Fraud may be committed through active misrepresentation or passive silence and is an
act, omission, or concealment in breach of a legal duty, trust, or confidence jointly imposed
when the breach causes injury to another or the taking of an undue and unconscientious
advantage. Id. at 710 (citing Vela v. Marywood, 17 S.W.3d 750, 760 (Tex. App.—Austin 2000),
pet. denied, 53 S.W.3d 684 (Tex. 2001)); In re D.E.H., 301 S.W.3d at 829 (citations omitted).
Duress occurs when, due to some kind of threat, a person is incapable of exercising her free
agency and unable to withhold consent. Id. Coercion occurs if someone is compelled to perform
an act by force or threat. Id. at 828 (citations omitted).
New Trial Hearing
        Appellants contend that testimony elicited during the hearing on their motions for new
trial shows their affidavits of relinquishment were not voluntarily executed. M.M. testified that
when she signed the affidavit, it was her understanding that the Department was going to
terminate her parental rights regardless of what she did and that “it was going to be a messy,
messy thing that really didn‟t have to happen. . . .” She confirmed that she “didn‟t really want to
sign [the] affidavit.” She also testified that she understood appealing the issue of voluntarily
relinquishing her parental rights was possible, but “we thought we were going to have to hire an
appeals attorney, which was going to be extremely expensive.”
        M.M. further testified that the affidavits were not read to them, that trial counsel
“summed it up,” and that they “were just shown where to sign on the paper.”4 She confirmed
that she and C.C. had met with trial counsel one or two days prior to the trial setting and that
when they arrived at the courthouse on the day of trial, she and C.C. intended to sign affidavits
of relinquishment. M.M. knew the Department was ready for trial, but stated that she signed the
affidavit “[b]ecause I didn‟t have any other choice.” However, M.M. confirmed that no one
forced her to sign the affidavit and that she had signed it voluntarily.
        C.C. substantially agreed with M.M.‟s testimony, and confirmed he understood that there
would not be a trial or an opportunity for him to present any defenses to the Department‟s
allegations upon his execution of the affidavit of relinquishment. C.C. contended that in the
months leading up to trial, “all of „em” (referring to representatives from the Department) had
threatened him that his parental rights would be terminated. But C.C. confirmed that on the


        4
          C.C. testified that trial counsel “skimmed over” the affidavit of relinquishment and explained that most of
their conversation with trial counsel on that day concerned witness testimony if the case proceeded to trial.



                                                         7
morning he signed the affidavit, no one had threatened him into executing the affidavit. He also
stated that at the time he signed the affidavit, he believed he could appeal.
       Appellants‟ trial counsel confirmed that he reviewed the affidavits with Appellants “for
some period of time and also discussed their options.” He stated that he was satisfied that they
had executed the affidavits freely and voluntarily. Trial counsel described Appellants‟ chance of
success at trial as “dire.”    He testified that there had always been some confusion with
Appellants on some of the explanations that he would give them regarding their rights, but he
explained that “we would always clarify[, and that once] we did find exactly what they were
looking for, we were able to clarify.”
       Although there is some evidence that Appellants may have been confused about their
right to appeal the trial court‟s termination order, they did not show by a preponderance of the
evidence that the affidavits of relinquishment were signed due to fraud, duress, or coercion. See
TEX. FAM. CODE ANN. § 161.211(c). Therefore, the trial court did not abuse its discretion in
denying Appellants‟ motions for new trial. See In re R.R., 209 S.W.3d at 114; Evans, 889
S.W.2d at 268.
Conclusion
       We have held that the evidence is sufficient to support termination of Appellants‟
parental rights under Section 161.001(1)(K) and that the trial court did not abuse its discretion by
denying Appellants‟ motions for new trial. Accordingly, we overrule Appellants‟ first issue.


                                  BEST INTEREST OF THE CHILD
       In their second issue, Appellants challenge the sufficiency of the evidence supporting
termination under Section 161.001(2) of the family code.
Applicable Law
       The party seeking termination must prove by clear and convincing evidence that
termination of a parent‟s rights is in the children‟s best interest. See TEX. FAM. CODE ANN.
§ 161.001(2). Parental rights may not be terminated merely because a child might be better off
living elsewhere. In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.).
       In determining the best interest of the child, the courts consider a number of factors
including (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



                                                  8
parental abilities of the individuals seeking custody; (5) the programs available to assist these
individuals; (6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
        The family code also provides a list of factors that we will consider in conjunction with
the above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2014).
Here, the applicable statutory factors include (1) the children‟s age and physical and mental
vulnerabilities, (2) whether the children are fearful of living in or returning to their home, (3)
whether there is a history of abusive or assaultive conduct by the children‟s family or others who
have access to the children‟s home, (4) whether there is a history of substance abuse by the
children‟s family or others who have access to the children‟s home, (5) the willingness and
ability of the children‟s family to seek out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency‟s close supervision, and (6) the willingness
and ability of the children‟s family to effect positive environmental change.               See id.
§ 263.307(b)(1), (5), (7), (8), (10), (11).
        The Department need not prove all of the statutory or Holley factors to show that
termination of parental rights is in the children‟s best interest. See Holley, 544 S.W.2d at 372; In
re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed
evidence of just one factor may be sufficient in a particular case to support a finding that
termination is in the children‟s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex. App.—
Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will not
support such a finding. Id. Evidence supporting termination of parental rights is also probative
in determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d
at 28-29.
Discussion
        At the time of trial, Appellants‟ four oldest children were eight, seven, five, and two
years old.   Their youngest child was eleven months old.         Nikki Payne, a conservatorship
supervisor for the Department, testified that the children were removed from Appellants‟ care
due to Appellants‟ drug use and domestic violence. Despite being offered drug treatment
services, M.M. continued to use drugs during the pendency of the case and had a positive drug



                                                 9
strip test the week before trial. These facts weigh in favor of termination. See TEX. FAM. CODE
ANN. § 263.307(b)(1), (7), (8), (11); Holley, 544 S.W.2d at 372.
       Payne‟s testimony showed that Appellants failed to demonstrate an ability to provide the
children with a safe, drug-free home, and that they both failed to complete the Department‟s
service plan.    These facts weigh in favor of termination.           See TEX. FAM. CODE ANN.
§ 263.307(b)(10); Holley, 544 S.W.2d at 372.
       Payne confirmed that throughout the pendency of the case, the children have continued to
suffer from emotional difficulties upon seeing their parents. According to Payne‟s testimony,
Appellants‟ oldest child, A.C., had expressed in an interview that she would be scared when
Appellants fought and said that the children would hide behind the bed during the fighting. In
discussing the measures needed to correct the children‟s emotional and behavioral issues, Payne
confirmed that it would be an ongoing process requiring consistency and structure. These facts
weigh in favor of termination. See TEX. FAM. CODE ANN. § 263.307(b)(1), (5), (7); Holley, 544
S.W.2d at 372.
       Payne testified that it was in the children‟s best interest that Appellants‟ parental rights be
terminated. She explained that the Department‟s plans for the three oldest children were to place
them with their maternal grandmother through their “Fostering Connections Program.” She
confirmed that the children have responded positively to being in their grandmother‟s home and
are doing fairly well in school. The two youngest children had not been placed with their
grandmother at the time of trial, but Payne testified that they “can be placed” with her. These
facts weigh in favor of termination. See id.
       Charlie Kennington, a CASA volunteer, testified that he favored termination of
Appellants‟ parental rights because Appellants did not follow the court‟s suggestion “as far as
drug rehab and what the Court has asked them to do.” Lastly, Appellants signed affidavits that
state, “Termination of the parent-child relationship is in the best interest of the children.” These
facts also weigh in favor of termination. See TEX. FAM. CODE ANN. § 263.3007(b)(10), (11); In
re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Brown
v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 394 (Tex. 1982) (“[W]e 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.”)); but see In re A.H., 414 S.W.3d 802, 806 (Tex. App.—San Antonio 2013, no pet.)



                                                 10
(“[R]elinquishment is not ipso facto evidence that termination is in the children‟s best
interest[.]”).
Conclusion
         The evidence supporting the trial court‟s best interest finding is undisputed.        After
viewing the evidence in the light most favorable to the finding, we conclude that a reasonable
trier of fact could have formed a firm belief or conviction that termination of Appellants‟
parental rights was in the children‟s best interest. See TEX. FAM. CODE ANN. § 161.001(2); In re
J.F.C., 96 S.W.3d at 266. After viewing the entire record, we hold that a fact finder could
reasonably have formed a firm belief or conviction about the truth of the Department‟s
allegations that termination of the parent-child relationship between Appellants and their five
children was true. See TEX. FAM. CODE ANN. § 161.001(2); In re J.F.C., 96 S.W.3d at 266.
Accordingly, we overrule Appellants‟ second issue.


                                                    DISPOSITION
         Having overruled Appellants‟ two issues, we affirm the judgment of the trial court.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered October 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



                                                           11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          OCTOBER 22, 2014


                                          NO. 12-14-00122-CV


                  IN THE INTEREST OF A.C, Z.C., J.C., S.C., AND A.C.,
                               MINOR CHILDREN

                            Appeal from the County Court at Law No. 1
                        of Gregg County, Texas (Tr.Ct.No. 2013-858-CCL1)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
