
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00056-CV


Mary Arnett, Appellant

v.

Angela Marie Arnett, Appellee




FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 14,952, HONORABLE JOE CARROLL, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

	Appellee Angela Marie Arnett gave birth to a son, A.M.A., in September 1992, when
she was seventeen years old.  A.M.A. has severe health issues and requires significant medical care. 
Six days after A.M.A. was born, appellee signed an affidavit relinquishing her parental rights and
designating her parents, appellant Mary Arnett and Howard Arnett, as managing conservators of the
child.  On October 1, 1992, appellant and Howard Arnett filed a suit affecting the parent-child
relationship (SAPCR).  That same day, the trial court signed a "preadoptive temporary order" naming
appellant and Howard Arnett as A.M.A.'s temporary managing conservators. (1)  A.M.A. and appellee
lived with appellant until late 1999 or early 2000, when appellee moved out, leaving A.M.A. with
appellant.  In June 2001, appellant went forward with the termination and adoption proceeding, and
in September 2001, the trial court signed an order terminating appellee's parental rights and naming
appellant as A.M.A.'s adoptive parent.  In November 2002, appellee filed a petition for bill of review
seeking to overturn the termination/adoption order.  In January 2005, the trial court signed an order
granting appellee's bill of review and setting aside the termination of her parental rights and
appellant's adoption of A.M.A. (2)  Appellant appeals from the trial court's orders granting a bill of
review and dismissing the 1992 temporary order and termination/adoption suit.  We reverse and
render judgment denying appellee's petition for bill of review.
	Appellant contends in her second issue that the trial court erred in granting the
petition because appellee did not present legally or factually sufficient evidence to show that her
execution of the affidavit of relinquishment was due to fraud, duress, or coercion.  See Tex. Fam.
Code Ann. § 161.211(c) (West 2002).  
	"A bill of review is an equitable proceeding by a party to a former action who seeks
to set aside a judgment that is no longer appealable or subject to a motion for new trial." 
Ortega v. First RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex. 1990) (op. on reh'g). 
The party seeking a bill of review must show that (1) she has a meritorious claim or defense (2) and
that she was prevented from asserting her claim or defense by the opposing party's fraud, accident
or wrongful conduct, (3) unmixed with any fault or negligence of her own.  Id.  A party seeking to
overturn a termination order based on an unrevoked affidavit of relinquishment is limited in her
attack to arguing fraud, duress, or coercion in the execution of the affidavit.  Tex. Fam. Code
Ann. § 161.211(c).  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 justly imposed,
when the breach causes injury to another or the taking of an undue and unconscientious advantage." 
Vela v. Marywood, 17 S.W.3d 750, 760-61 (Tex. App.--Austin 2000), pet. denied, 53 S.W.3d 684
(Tex. 2001).  Coercion occurs if someone is compelled to perform an act "by force or threat." 
Black's Law Dictionary 252 (7th ed. 1999); see Tex. Penal Code Ann. § 1.07(a)(9)
(West Supp. 2007).  Duress occurs when, due to some kind of threat, a person is "incapable of
exercising [her] free agency" and unable to withhold consent.  Dallas County Cmty. Coll. Dist. v.
Bolton, 185 S.W.3d 868, 877 (Tex. 2005).
	Assuming that appellee's petition for bill of review was properly brought under
section 161.211(a) (limiting time to attack termination order to six months after signing of order),
the evidence in this case does not support the trial court's granting of a bill of review.  There is no
evidence of fraud, duress, or coercion in appellee's execution of the affidavit, without which her
attack on the termination/adoption order cannot succeed.  See Tex. Fam. Code Ann. § 161.211(c).
	At the hearing on her petition for bill of review, appellee testified that despite signing
the affidavit of relinquishment, she always intended to regain custody of A.M.A. after she graduated
from college and stabilized her life.  She said that she and appellant planned to return to court and
have custody "returned . . . back to me."  Appellee graduated from nursing school in 1998 and is now
married and living in Copperas Cove, and testified that when she moved out from appellant's house
in 1999, she wanted to take A.M.A. with her but was told she could not take him from appellant's
care.  Appellee believed until about 1999 that her parental rights had been terminated.  When she
learned that her rights had not been terminated, she consulted with four attorneys but was told there
was nothing she could do to regain custody at the time.  Despite intending to regain custody and even
after seeking legal advice, appellee never attempted to revoke her affidavit of relinquishment.  She
testified that she did not realize her affidavit was revocable and that she did not believe appellant
would go to court to terminate appellee's rights and adopt A.M.A. 
	Appellant testified that in about 2000, appellee asked her not to go forward with the
termination.  Appellant replied that she did not think that holding off with the proceeding was in
A.M.A.'s best interest, and appellee told appellant, "Do what you have to do."  Appellant testified
that she did not proceed with the termination/adoption proceeding until 2001 because her
"understanding was that the termination was done" in 1992, when the trial court entered its
temporary orders.  She said, "I don't know why there was this wait.  I had no idea how adoptions
took place.  I spoke with my attorney.  He said it was still an ongoing case."  Appellant believed
termination and adoption was in A.M.A.'s best interest because it allowed him to collect benefits,
including health benefits, through appellant's deceased husband, who was a veteran.
	In June 2001, appellant filed an amended petition seeking to move ahead with the
termination/adoption proceeding.  Appellant did not inform appellee that she was going to proceed
or that she had proceeded with the termination and adoption. (3)  In September 2001, based on
appellee's affidavit of relinquishment, the trial court signed an order terminating her parental rights
and allowing appellant to adopt A.M.A.  Appellee did not learn of the termination/adoption order
until April 2002, when she found a copy of it in her mother's paperwork; she filed her petition for
bill of review in November 2002. 
	Appellee did not testify that she was misled or tricked into signing the affidavit or into
failing to revoke it in the intervening years, nor did she testify that appellant lied or deceived appellee
into believing that appellant would not move forward to adopt A.M.A.  Appellee testified that she
did not believe appellant would go forward with the termination but did not testify that this belief
was based on any wrongful acts by appellant.  Appellant told appellee repeatedly that she did not
believe that stopping the termination/adoption proceeding was in A.M.A.'s best interest.  When
appellee signed the affidavit of relinquishment, she waived a right to notice of further proceedings,
and appellant's failure to inform appellee that she was moving forward with the termination/adoption
proceeding does not amount to fraud, duress, coercion, or other wrongful conduct. (4) 
	Although the trial court did not file findings of fact and conclusions of law, and
appellant did not file a notice of past-due findings and conclusions, see Tex. R. Civ. P. 297, which
means that we must imply all findings necessary to support the judgment, see Curtis v. Commission
for Lawyer Discipline, 20 S.W.3d 227, 231 (Tex. App.--Houston [14th Dist.] 2000, no pet.), we still
must evaluate those implied findings for evidentiary sufficiency, using the standards we apply to jury
or trial court findings and upholding the trial court's decision if we find evidentiary support for any
legal theory of law applicable to the case.  See Curtis, 20 S.W.3d at 231.  Because there is no
evidence of fraud, duress, coercion, or other wrongful act in the making of the affidavit of
relinquishment, see Tex. Fam. Code Ann. § 161.211(c), the evidence is legally insufficient to support
the trial court's granting of appellee's petition for bill of review.  We sustain appellant's second issue
on appeal.  We reverse the trial court's order and render judgment denying appellee's petition
for bill of review. (5)
 

					__________________________________________
					David Puryear,  Justice
Before Justices Patterson, Puryear and Henson
Reversed and Rendered
Filed:   May 2, 2008
1.   Howard Arnett died in 1994.
2.   We initially dismissed this appeal for want of jurisdiction, explaining that an order granting
a bill of review that does not dispose of the merits of the underlying case is interlocutory in nature,
see Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995); Tesoro Petroleum v. Smith, 796 S.W.2d
705, 705 (Tex. 1990), but then withdrew our opinion and abated the cause to the trial court for entry
of a final order.  See Arnett v. Arnett, No. 03-05-00056-CV, 2005 Tex. App. LEXIS 9507, *4
(Tex. App.--Austin Nov. 10, 2005, no pet.).  On March 21, 2006, the trial court signed a "final
custody order," setting aside all temporary orders, the termination of appellee's parental rights, and
the adoption order.  It is from this final order that the appeal proceeds.
3.   In the affidavit of relinquishment, appellee waived the right to "issuance, service, and
return of all process in any suit to terminate the parent-child relationship . . . without further notice
to me.  I FULLY UNDERSTAND THAT I WILL NOT BE INFORMED FURTHER ABOUT THIS
SUIT."
4.   At oral argument, appellee's counsel conceded as much, agreeing that there was no
evidence of fraud, duress, or coercion to be found in the record.
5.   Due to our resolution of appellant's second issue, we need not decide her remaining two
issues related to the timeliness of appellee's petition and the procedures employed by the trial court.
