                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-302-CV


IN THE INTEREST OF S.A.D.S. A CHILD

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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                                     OPINION

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                                   I. INTRODUCTION

      In this suit affecting the parent-child relationship, Appellant Natalie 1 appeals

a certain provision contained in the trial court’s order that varies from the mediated

settlement agreement between her and Appellee Texas Department of Family and

Protective Services. Because we determine that the trial court had no authority to

include a provision in its final order that varied from the parties’ mediated settlement

agreement, we will modify the trial court’s order and affirm as modified.

                                   II. B ACKGROUND

      1
        For purposes of maintaining the confidentiality of this appeal, we will refer
to the parents and child by fictitious names. See Tex. R. App. P. 9.8; Tex. Fam.
Code Ann. § 109.002(d) (Vernon 2008).
      The Department removed Steven, the subject child of this suit, from Natalie’s

custody upon his birth based on prior terminations of parental rights involving Natalie

and her other children.     The Department then sought termination of Natalie’s

parental rights to Steven. The Department also alleged that Natalie previously used

illegal drugs; that she was often homeless; and that she occasionally resided with

a sex offender.

      After Steven’s removal, the Department provided Natalie with a service plan.

According to the assigned caseworker, Natalie completed her service plan but failed

to demonstrate the ability to provide Steven with a stable living environment—she

does not own a home and lives with others. Eventually, the trial court ordered that

the case be sent to mediation.

      At mediation, the Department and Natalie entered into a mediated settlement

agreement whereby Steven’s maternal grandfather would be appointed sole

managing conservator and Natalie would be appointed possessory conservator.

The agreement reads “MEDIATED SETTLEMENT AGREEMENT” across the top of

the first page, and it is signed by Natalie, a Department representative, and the

attorneys who attended the mediation, including Steven’s ad litem. The agreement

was filed with the trial court. The agreement states, “The Parties, by their signatures

to this agreement, hereby waive their right to have the issues resolved herein tried

to the court or to a jury, save and except for any motion for entry of the order of

enforcement of this agreement.”


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      The mediated settlement agreement covers possession, conservatorship, and

child support. On June 18, 2009, the trial court held a hearing for the purpose of

entering an order based on the agreement. At the hearing, the Department asked

the trial court to sign an order that included a finding that appointing Natalie as

managing conservator would not be in Steven’s best interest because it would

significantly impair Steven’s physical health or emotional development.              This

provision is not found anywhere within the mediated settlement agreement.

      The Department alleged that the trial court was required to make the finding

pursuant to Texas Family Code section 153.131, which the Department argued is

required any time a trial court appoints a non-parent as managing conservator. Tex.

Fam. Code Ann. § 153.131 (Vernon 2008). Natalie argued that the agreement was

the basis for the order to be entered by the trial court and that, because the

agreement did not include this provision, it would be error for the trial court to include

it in its order. The trial court overruled Natalie’s objection and entered an order

containing the Department’s requested finding. This appeal followed.

                                    III. D ISCUSSION

      In three issues, Natalie argues that the trial court abused its discretion by

adding the above-mentioned term; that the judicial findings set forth in Texas Family

Code section 153.131 are not required whenever there is a mediated settlement

agreement; and that the evidence is insufficient to support the trial court’s significant




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impairment finding. W e agree that the trial court erred by including the significant

impairment finding in its final order.

      Texas Family Code section 153.131(a) states that

      [s]ubject to the prohibition in Section 153.004, unless the court finds
      that appointment of the parent or parents would not be in the best
      interest of the child because the appointment would significantly impair
      the child’s physical health or emotional development, a parent shall be
      appointed sole managing conservator or both parents shall be
      appointed as joint managing conservators of the child.

Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008). This provision provides for the

general presumption that a parent be appointed managing conservator in a suit

affecting the parent-child relationship unless doing so would significantly impair the

child. Id. Another Texas Family Code provision, however, applies to mediated

settlement agreements.

      Section 153.0071 states that a mediated settlement agreement is binding on

the parties if (1) it provides, in a prominently displayed statement that is in boldfaced

type or capital letters or underlined, that the agreement is not subject to revocation,

(2) is signed by each party to the agreement, and (3) is signed by the party’s

attorney, if any, who is present at the time the agreement is signed.                 Id.

§ 153.0071(d) (Vernon Supp. 2009). The statute further provides that, if a mediated

settlement agreement meets the requirements of section 153.0071(d), “a party is

entitled to judgment on the mediated settlement agreement notwithstanding Rule 11,

Texas Rules of Civil Procedure, or another rule of law.” Id. § 153.0071(e).



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      This court has held that the “notwithstanding” clause contained in Texas

Family Code section 6.602(c)—which is identical to section 153.0071(e) but applies

to divorce actions rather than child custody lawsuits—means that the requirements

of rule 11 and the common law that ordinarily apply to the enforcement of settlement

agreements do not apply to mediated settlement agreements in divorce proceedings

if the agreements meet the three requirements listed in Section 6.602(b), which is

identical to section 153.0071(d). Id. §§ 6.602(b),(e); 153.0071(d),(e); Boyd v. Boyd,

67 S.W .3d 398, 403 (Tex. App.—Fort W orth 2002, no pet.). This court has also held

that a trial court need not determine the best-interest-of-the-child finding from Texas

Family Code 153.007 when issues of conservatorship, possession, and access to

children are resolved by a rule 11 agreement. In re K.N.M., No. 02-08-00308-CV,

2009 W L 2196125, at *7 (Tex. App.—Fort W orth July 23, 2009, no pet.) (mem. op.).

      The Department argues that this court’s decision in Critz v. Critz supports its

position that 153.131’s presumption must be overcome in order for a trial court to

appoint a non-parent as joint managing conservator in a suit affecting the parent-

child relationship. 297 S.W .3d 464, 471 (Tex. App.—Fort W orth 2009, no pet.) (“The

plain wording of the statute makes clear that this presumption applies when a

non-parent seeks managing conservatorship in lieu of or in addition to both

parents.”)   But Critz is inapplicable to the facts of this case.     Critz dealt with

conservatorship issues tried to the bench, whereas this case involves a mediated




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settlement agreement that specifies that all parties have “waive[d] their right to have

the issues resolved herein tried to the court or to a jury.” Id. at 468.

      The Department further argues that there is no language in section 153.131

that indicates that the parental presumption is inapplicable to the appointment of

non-parents as joint managing conservators as long as the parties agree to such an

appointment in a mediated settlement agreement.              Thus, according to the

Department, the trial court was required to make a significant impairment finding in

order to issue its order on the mediated settlement agreement. But the lack of

language indicating whether the presumption applies is not controlling under the

facts of this case. Although section 153.131 states that “unless the court finds . . .

significant[] impair[ment to] the child’s physical health or emotional development, a

parent shall be appointed sole managing conservator,” (emphasis added) it does not

otherwise require a court to enter such a finding when there is a mediated settlement

agreement that complies with section 153.0071 where section 153.131’s

presumption is not met.

      W hile section 153.131 deals generally with conservatorship, section

153.0071(d) deals specifically with mediated settlement agreements. A fundamental

principle of statutory construction is that a more specific statute controls over a more

general one. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W .3d 887, 901 (Tex.

2000). Indeed, the government code provides that general and specific provisions

should be construed, if possible, to give effect to both, but when they cannot be


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reconciled, the specific provision should prevail.      See Tex. Gov. Code Ann.

§ 311.026 (Vernon 2005); State v. Alley, 137 S.W .3d 866, 868 (Tex. App.—Houston

[1st Dist.] 2004), aff’d, 158 S.W .3d 485 (Tex. 2005). For example, in Garcia-Udall

v. Udall, the Dallas Court of Appeals determined that section 153.0071 controlled

over section 153.007’s requirement that a trial court find that an amicable settlement

between parties be in the child’s best interest.       141 S.W .3d 323, 331 (Tex.

App.—Dallas 2004, no pet.). This is so because section 153.0071 deals specifically

with mediated settlement agreements, while section 153.007 deals generally with

agreements ‘“containing provisions for conservatorship and possession of the

child.”’ Id.

       Like section 153.007, section 153.131 deals generally with conservatorship

in a suit affecting the parent-child relationship.    Thus, as long as a mediated

settlement agreement complies with section 153.0071, its failure to address the

parental presumption or a trial court’s finding of significant impairment under section

153.131 does not render it void. Furthermore, as long as a mediated settlement

agreement complies with section 153.0071, the trial court must comply with the

specific edicts of that section and not the more general section 153.131. Therefore,

a trial court does not need to add such a finding to a mediated settlement

agreement, and it errs if it does place such a finding contrary to the parties’

agreement in an order.




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      Our conclusion that a mediated settlement agreement that complies with

153.0071, like the mediated settlement agreement in this case, requires a trial court

to enter an order in compliance with the agreement without making a significant

impairment finding when one is not in the agreement is further supported by

analyzing the different provisions found in section 153.0071 itself. Section 153.0071

contains provisions for both arbitrators’ awards and mediated settlement

agreements. For arbitration, section 153.0071(b) gives the trial court discretion not

to enforce the arbitrator’s award if “the court determines at a non-jury hearing that

the award is not in the best interest of the child.”        Tex. Fam. Code Ann.

§ 153.0071(b) (Vernon Supp. 2009). The express provision on mediated settlement

agreements, however, contains no express exceptions giving the trial court

discretion not to enforce the mediated settlement agreement.                See id.

§ 153.0071(c)–(f); see also Garcia-Udall, 141 S.W .3d at 330–32 (reasoning that

153.0071's different language regarding arbitration versus mediation supported its

holding that trial court lacked authority to enter judgment that varied from terms of

a mediated settlement agreement). Additionally, section 153.0071(e-1) addresses

when the trial court can decline to enter a judgment on a mediated settlement

agreement, and that provision does not apply in this case. See Tex. Fam. Code.

Ann. § 153.0071(e-1) (Vernon Supp. 2009) (instructing that a court may decline to

enforce a mediated settlement agreement when a party to the agreement was a

victim of family violence).


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      In this case, the trial court had no authority to enter an order that varied from

the terms of the mediated settlement agreement, and we conclude that the trial court

erred by doing so. See In re Circone, 122 S.W .3d 403, 407 (Tex. App.—Texarkana

2003, no pet.) (“Under the terms of [section 153.0071], the trial court had no

authority to go behind the signed agreement of the parties . . . .”). Accordingly, we

render judgment that the trial court’s order be reformed to reflect the express

mediated settlement agreement only. Specifically, we reform the order and delete

the provision, “The Court finds that appointment of the parent as Managing

Conservator would not be in the best interest of the child because the appointment

would significantly impair the child’s physical health or emotional development.” W e

resolve Natalie’s first and second issues in her favor.

                                  IV. C ONCLUSION

      Having resolved Natalie’s first two issues in her favor, we need not address

her third issue. See Tex. R. App. P. 47.1. W e modify the trial court’s order and

affirm the order as modified.




                                              BILL MEIER
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: August 12, 2010




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