MODIFY and AFFIRM; and Opinion Filed March 3, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-01465-CV


                     IN THE INTEREST OF A.B. & D.Y., CHILDREN


                      On Appeal from the 304th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 13-1047W

                                         OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                Opinion by Justice Lang-Miers
       Mother appeals the trial court’s termination of her parental rights to her children, A.B.

and D.Y. She argues that the trial court abused its discretion by basing the termination decree on

a Rule 11 agreement that is void because of mutual mistake. She also argues that the decree

contains errors and terms not contained in the Rule 11 agreement and should be reformed. For

the reasons that follow, we modify the decree of termination and affirm as modified.

                                          Background

       A.B. and D.Y. were under the care of Mother’s friend while Mother was incarcerated.

The friend was reported to have a long history of crack cocaine use. The Texas Department of

Family and Protective Services took custody of the children pursuant to a referral alleging

neglectful supervision and filed a petition to terminate Mother’s and Father’s parental rights.

The trial court appointed attorneys to represent the parents and an attorney/guardian ad litem to
represent the children. The day before the case was set for trial, the guardian ad litem and the

attorneys for Mother, Father, and the Department signed a Rule 11 agreement, which stated:

                   The undersigned parties agree that per Rule 11 of the Rules of Civil
           Procedure the following terms shall be made the final orders of the Court and that
           said agreement is in the best interest of the subject children: [A.B.] . . . and [D.Y.]
           ....

                   1)     The parents . . . shall have their parental rights to the subject
           children, [A.B.] and [D.Y.], terminated pursuant to Section 161.001(1)(O) 1 of the
           Texas Family Code for failure to complete services ordered by the Court and
           stipulate they did not complete all of the services requested by Petitioner as set
           out in the Family Service Plan.

                    2)     The Petitioner agrees to provide to the parents cards, pictures and
           letters at a permanent address provided . . . to Petitioner by the parents; such items
           shall be sent to said address twice a year.

                  3)      In the event the cards, pictures and letters sent to the parents are
           returned undeliverable, the duty of Petitioner or the adoptive parent shall cease.

                  4)     The Petitioner shall make best efforts to identify an adoptive
           family who will agree to provide cards, pictures and letters to the parents[.]

           The agreement was filed with the court that same day. The next day when the case was

called for trial, neither Mother nor Father appeared. 2 The trial court stated, “Let the record

reflect that we held this case over from yesterday for trial in that there was a last minute contact

by the respondent mother with respondent mother’s counsel.”                                            When the court asked the

attorneys to announce, Mother’s attorney moved for a continuance. Mother’s attorney advised


     1
       Subsection (O) states that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the
parent has
           failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to
           obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of
           Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under
           Chapter 262 for the abuse or neglect of the child.

TEX. FAM. CODE ANN. § 161.001(1)(O) (West 2014).

     2
       The record is unclear about whether Mother was in jail at the time of trial. The February 2014 summary report to the court from the Dallas
Court Appointed Special Advocates (CASA) stated that Mother “was released from incarceration in December. She was arrested again on
1/13/14 for Prostitution and remains incarcerated at this time. She attended some parent/child visits at CPS during the time she was out. [Mother]
has not completed any of the court ordered services.” The April 2014 summary report stated that Mother was “currently incarcerated.” The last
CASA report in our appellate record is dated June 2014. It stated that Mother was “currently incarcerated” in one section of the report, but, in
another section of the same report, stated Mother “has been released from jail[.]” Trial began in September 2014.



                                                                      –2–
the court that Mother had a criminal matter set for disposition the next day and that Mother

might be placed on probation through a mental health program. The attorney advised the court

that if Mother was placed on probation, “the mental health court . . . will work with her on

services, medication management, housing, and help her through her probation stabilizing her

life” and Mother would be in a better position to complete the Department’s services and provide

a stable environment for her children. Mother’s attorney asked for a short continuance pending

the outcome of Mother’s criminal matter. The Department opposed the continuance and asked to

proceed on the Rule 11 agreement “that was signed by all parties yesterday[.]” Father’s attorney

did not oppose the motion for continuance. The guardian ad litem deferred to the court, but

stated, “We did sign the Rule 11 yesterday, although it was prior to more contact from mom.”

The court denied the motion and called the case for trial.

        The Department called one witness: its case worker, who testified that “[t]he parties

entered into a Rule 11 agreement yesterday[.]” No other witnesses were called. Then Mother’s

attorney told the court that she “believe[d] under the circumstances with my client not having

contact with the Department or having visitation with her children or completing her services

that this agreement is in her best interest.”

        The trial court ordered termination of Mother’s and Father’s parental rights based “on ‘O’

and best interest grounds.” The court signed a decree terminating Mother’s parental rights based

on the Rule 11 agreement, and also finding that Mother “failed to comply with the provisions of

a court order that specifically established the actions necessary for [her] to obtain the return of

the children . . . .”




                                                –3–
                                            Discussion

       In issue one, Mother argues that the trial court abused its discretion by rendering a

termination decree based on a Rule 11 agreement that was void due to a mutual mistake on a

material matter. Mother contends that the Rule 11 agreement was based on her failure to comply

with court-ordered services, but the record shows that she was never ordered to complete

services, and, consequently, the Rule 11 agreement was based on a mutual mistake.

       The Department has not responded.

       It is undisputed that Mother was in jail when the Department took custody of the

children. At the second hearing in the case, the court made a docket sheet entry stating, “Mom -

TPC - No orders.” Our appellate record contains one Family Service Plan relating to Mother. In

it, the Department stated that Mother “will be referred to services upon release . . . .” Our record

does not contain an order from the trial court “specifically establish[ing] the actions necessary

for [Mother] to obtain the return of the child[ren].” See TEX. FAM. CODE ANN. § 161.001(1)(O)

(West 2014).

       In the termination decree, the trial court found “that the parties have entered into a Rule

11 Agreement . . . .” The court attached the Rule 11 agreement as an exhibit to the decree and

“adopted [it] as the Order of this Court.” Additionally, in a separate section of the termination

decree, the trial court found that Mother “failed to comply with the provisions of a court order

that specifically established the actions necessary for the [Mother] to obtain the return of the

children . . . pursuant to Section 161.001(1)(O) of the Texas Family Code.” However, Mother

does not argue that the evidence is insufficient to support the termination decree on “O” grounds.

Instead, she argues only that the Rule 11 agreement upon which the termination decree was

based should be rendered void because of mutual mistake.




                                                –4–
       “Mutual mistake” is an affirmative defense that states “when the parties to an agreement

have contracted under a misconception or ignorance of a material fact, the agreement will be

avoided.” Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). The burden to establish mutual

mistake is on the party seeking to avoid the agreement. Id. It is a fact issue to be determined by

the trier of fact. Id. at 265; see Smith-Gilbard v. Perry, 332 S.W.3d 709, 714 (Tex. App.—Dallas

2011, no pet.). But Mother did not raise mutual mistake below either before the decree was

signed or in a motion for new trial or other post-judgment motion, and, as a result, the trial court

never considered or determined this issue. Because this issue was not presented below, it

presents nothing for our review on appeal. TEX. R. APP. P. 33.1. We resolve issue one against

Mother.

       In issue two, Mother argues that the termination decree contains numerous errors that we

should correct. She argues that the names of the attorneys who represented the parties are

wrong, the gender of D.Y. is wrong, and the terms of the Rule 11 agreement as stated in the

decree are wrong.

       When we have the necessary information to do so, we may correct clerical errors in the

judgment. See TEX. R. APP. P. 43.2(b); In re M.D., 333 S.W.3d 600, 601 (Tex. App.—Dallas

2007, no pet.). The record reflects that Pamela Baeza, not Ron Aland, represented Mother; Ron

Aland, not William Ashe, represented Father; and Bryan Arnold, not Jacqueline Dodd, was the

guardian/attorney ad litem for the children. The record also reflects that D.Y. is a female, not

male, child.   Consequently, we sustain this part of issue two and modify the decree of

termination as follows:

       On page one of the decree, we delete “Ron Aland” as the attorney of record for the

Respondent Mother and replace it with “Pamela Baeza.” We delete “William Ashe” as the

attorney of record for the Respondent Father and replace it with “Ron Aland.” We delete

                                                –5–
“Jacqueline Dodd” as the appointed “Guardian and Attorney Ad-litem” for the children and

replace it with “Bryan Arnold.” On page two of the decree, we delete “Male” under “Sex” of the

child D.Y. and replace it with “Female.”

       However, we do not have the necessary information to make substantive changes to the

judgment concerning the terms of the Rule 11 agreement. Those alleged errors must be brought

to the trial court’s attention by a motion to modify or correct the judgment. See TEX. R. CIV. P.

316, 329b(f), (g). Although we may review the evidence supporting the decree for legal and

factual sufficiency, Mother does not complain about the sufficiency of the evidence to support

the decree. See Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986). Consequently, we

resolve this part of issue two against Mother.

       We modify the trial court’s decree of termination and affirm as modified.




                                                       /Elizabeth Lang-Miers/
                                                       ELIZABETH LANG-MIERS
                                                       JUSTICE

141465F.P05




                                                 –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF A. B. & D.Y.,                      On Appeal from the 304th Judicial District
CHILDREN                                              Court, Dallas County, Texas
                                                      Trial Court Cause No. 13-1047W.
No. 05-14-01465-CV                                    Opinion delivered by Justice Lang-Miers,
                                                      Justices Bridges and Myers participating.


        In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows. On page one of the Decree of Termination, we delete “Ron Aland” as
the attorney of record for the Respondent Mother, Dorothy Denise Edwards AKA Dorothea
Maria Mendez, and replace it with “Pamela Baeza.” We delete “William Ashe” as the attorney
of record for the Respondent Father, Anthony Kimball Young, and replace it with “Ron Aland.”
We delete “Jacqueline Dodd” as the guardian/attorney ad litem for the children and replace it
with “Bryan Arnold.” On page two of the Decree of Termination, we delete “Male” under “Sex”
of the child Danijah Young and replace it with “Female.”

       It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

      It is ORDERED that appellee Dallas County Child Protective Services Unit of the Texas
Department of Family and Protective Services recover its costs of this appeal from appellant
Dorothy Denise Edwards a/k/a Dorothea Maria Mendez.


Judgment entered this 3rd day of March, 2015.




                                                –7–
