      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00716-CV



                                       Hydi Wall, Appellant


                                                  v.


                Texas Department of Family and Protective Services, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
          NO. FM307244, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


               On August 25, 2005, this Court issued an opinion abating Hydi Wall’s appeal from

a judgment terminating the parent-child relationship with her children W.C.C. and T.C. because the

district court failed to hold a mandatory hearing on Wall’s motion for new trial. See Wall v. Texas

Dep’t of Family & Protective Servs., 173 S.W.3d 178,183-84 (Tex. App.—Austin 2005, no pet.).

In that opinion we overruled all of Wall’s other issues but permitted her to file supplemental briefing

regarding any issues relating to the hearing on her motion for new trial. See id. at 183. Pursuant to

our direction, the district court held a hearing on Wall’s motion for new trial, and Wall now raises

two issues in a supplemental brief. Wall contends that the statute governing the voluntary
relinquishment of parental rights to the Department is unconstitutional and that the district court

abused its discretion in denying her motion for new trial. Because Wall failed to establish that the

relinquishment of her parental rights was involuntary and because she has waived her constitutional

arguments, we affirm the judgment of the district court severing the parent-child relationship with

W.C.C. and T.C.


Constitutional Challenge

               In her first issue, Wall contends that section 161.103(e) of the family code is

unconstitutional. Section 161.103(e) states that the relinquishment of parental rights in an affidavit

that designates the Department as managing conservator is irrevocable. Tex. Fam. Code Ann.

§ 161.103(e) (West Supp. 2005). Under this statute, a relinquishment in any other affidavit is

generally revokable and may provide that it is irrevocable only for a stated period of no more than

sixty days. Id. Wall contends that this statutory provision is inconsistent with the constitutionally

recognized bond between parent and child. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

However, Wall did not raise this constitutional issue in the district court or in her prior appellate

brief. Generally, a party may not raise an issue, even a constitutional claim, for the first time on

appeal. Carrizales v. Texas Dep’t of Protective & Regulatory Servs., 5 S.W.3d 922, 925 (Tex.

App.—Austin 1999, pet. denied); see also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (due

process claim in parental rights termination waived when raised for the first time on appeal).

Because Wall raised her constitutional claim for first time in her supplemental appellate brief, she

has waived this issue.




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Voluntariness of Relinquishment

               In her second issue, Wall contends that she established by a preponderance of the

evidence that her affidavit of relinquishment was executed as a result of coercion, fraud, deception,

undue influence or overreaching and, therefore, the district court erred by overruling her motion for

new trial. See Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000, pet. denied)

(involuntarily executed affidavit complete defense to termination based on that affidavit); Neal v.

Texas Dep’t of Human Servs., 814 S.W.2d 216, 219 (Tex. App.—San Antonio 1991, writ denied).

Specifically, Wall points to evidence that (1) her attorney had been only recently appointed and (2)

she was told she could not win at trial and that her pregnancy would be used against her. The record

shows that Wall was also told that an involuntary termination of the parent-child relationship with

W.C.C. and T.C. would be grounds on which the Department could terminate the parent-child

relationship with her unborn child. See Tex. Fam. Code Ann. § 161.001(1)(M) (West Supp. 2005).

               When the Department seeks to terminate the parent-child relationship on the basis

of an irrevocable affidavit of relinquishment, it must establish by clear and convincing evidence that

the affidavit was executed according to the terms of section 161.103 of the family code. Vela, 17

S.W.3d at 758. Once this showing has been made by the Department, the affidavit may be set aside

only upon proof by the parent, by a preponderance of the evidence, that the affidavit was executed

as a result of coercion, duress, fraud, deception, or undue influence. Id.; see also Brown v.

McLennan County Children’s Protective Servs., 627 S.W.2d 390, 394 (Tex. 1982).

               Wall relies primarily on her own testimony at the hearing on the motion for new trial.

At that hearing, she testified about the events of the mediation at which she signed the affidavit of



                                                  3
relinquishment. She explained that she was eight months pregnant at the time and that she was

fatigued, hungry and feeling sick by the time she signed the affidavit. She testified that she signed

the affidavit because she had been told that she would lose if she went to trial and that, if she

relinquished her rights to W.C.C. and T.C., the Department “would be out of my life and they would

have . . . no reason whatsoever to come into my life with my youngest.” Further, she testified that

the Department promised to place W.C.C. and T.C. with one of two persons that she had named as

possible adoptive placements. Wall testified that she did not really understand the documents that

she signed but signed them because “I was tired and I wanted to hurry up and go to the house.” Later

that evening, she contacted her attorney and expressed her desire to revoke the relinquishment of her

parental rights. The following day, Wall signed affidavits attempting to revoke the relinquishment

of her parental rights and the rule 11 agreement.

               The Department established at the hearing on the motion for new trial that Wall was

represented by an attorney throughout the mediation. For several hours Wall was being advised by

two attorneys.1 Participants in the mediation testified that Wall appeared healthy. Child Protective

Services Supervisor Anna Warde testified that Wall seemed “clear headed . . . . [I]t seemed like her

focus was on her new unborn child . . . like she was trying to move on with her life.” The

Department’s witnesses denied making any promises to Wall that were not reflected in the rule 11

agreement. Specifically, they denied telling Wall that the Department would not become involved

with her unborn child. Mediator Paula James testified that she likely told Wall that an involuntary




       1
          Attorney John Hindera testified that he participated in the mediation for several hours and
that he advised Wall not to sign the affidavit of relinquishment.

                                                    4
termination of rights to W.C.C. and T.C. could be statutory grounds to terminate the parent-child

relationship with Wall’s unborn child; James denied that Wall was told that “the department would

definitely take away her newborn baby once it was born.”

               There was also a dispute as to whether the Department had fulfilled the promises

made in the rule 11 agreement signed by the parties. Pursuant to the agreement, Wall signed the

irrevocable affidavit of relinquishment in exchange for promises by the Department to allow Wall

to continue visitation with the children and to place W.C.C. and T.C. with persons named by Wall

if those persons were found qualified by the Department’s home study. Wall alleged that the

promised visitation did not occur and that the Department did not investigate persons she identified

as potential adoptive parents. However, witnesses attributed the lack of visitation to scheduling

problems. Furthermore, it appears from the record that Wall never submitted any names of potential

adoptive parents to the Department in accordance with the agreement.2

               On this record, giving appropriate deference to the trier of fact, we hold that Wall

failed to establish by a preponderance of the evidence that her relinquishment of parental rights was

obtained through coercion, duress, fraud, deception, or undue influence. Her testimony regarding

promises made by the Department was directly contradicted by other witnesses. Importantly, Wall

was represented by counsel at the time she signed the affidavit of relinquishment. The district court

explained:




       2
         Testimony at the hearing reflects that Wall provided the mediator with the names of two
persons who were contacted during the mediation. However, these names were never forwarded to
the Department by the mediator or Wall’s counsel.

                                                 5
       I did some research over the break also, and one of the things that seems important
       . . . is whether or not the parent signing the relinquishment was represented by an
       attorney. So it begs the question, since she was—Ms. Wall was in fact represented
       by an attorney the entire time, it’s hard to imagine a coercive situation when she has
       one and at times during the mediation two lawyers present for counsel, and advice,
       and protection from such undue influences as you allege occurred in this case.


Indeed, courts routinely reject claims that a relinquishment of parental rights was involuntary when

the party was represented by an attorney at the time the affidavit was signed. See In re N.P.T., 169

S.W.3d 677, 681 (Tex. App.—Dallas 2005, pet. denied); In re D.R.L.M., 84 S.W.3d 281, 298-99

(Tex. App.—Fort Worth 2002, pet. denied); Lumbis v. Texas Dep’t of Protective & Regulatory

Servs., 65 S.W.3d 844, 850 (Tex. App.—Austin 2002, pet. denied); Heiser v. Texas Dep’t of

Protective & Regulatory Servs., No. 03-03-00098-CV, 2002 Tex. App. LEXIS 7018, *11-*14 (Tex.

App.—Austin 2002, no pet.) (mem. op.). Moreover, Wall has not challenged the effectiveness of

counsel in protecting her interests at the mediation.

               There can be no doubt that a mediation in which a parent is asked to sign an affidavit

forever terminating her relationship with her children is an extremely stressful event. This was

exacerbated by the fact that Wall was faced with the unsavory dilemma of choosing between

voluntarily relinquishing her rights to W.C.C. and T.C., and risking trial and the establishment of

new grounds to terminate the parent-child relationship with her unborn child. See Tex. Fam. Code

Ann. § 161.001(1)(M). But these are inherent pressures in the process and do not alone establish that

Wall’s actions were involuntary. See In re N.P.T., 169 S.W.3d at 681 (“being faced with an

unfavorable jury decision does not automatically warrant a finding that the affidavit of

relinquishment was wrongfully procured.”). Wall was represented by counsel and arrived at a



                                                 6
bargained-for agreement with the Department. The voluntariness of Wall’s assent to the agreement

is also not implicated by scheduling problems in visitation or Wall’s failure to take advantage of the

agreement by providing names of potential adoptive parents to the Department. Accordingly, we

hold that Wall failed to establish by a preponderance of the evidence that she did not voluntarily

execute her affidavit of relinquishment. We overrule Wall’s second issue.

               Having overruled both of Wall’s issues, we affirm the district court’s order overruling

Wall’s motion for new trial and the judgment terminating the parent-child relationship with W.C.C.

and T.C.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: June 2, 2006




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