                                           NO. 12-16-00190-CV

                                 IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                              TYLER, TEXAS

                                                              §   APPEAL FROM THE 321ST
IN THE INTEREST OF E.T.,
                                                              §   JUDICIAL DISTRICT COURT
A CHILD
                                                              §   SMITH COUNTY, TEXAS

                                           MEMORANDUM OPINION
       S.J. appeals the termination of her parental rights. In one issue, she argues that the trial
court abused its discretion by issuing an order of termination based on a mediated settlement
agreement because she was not represented by counsel at the mediation. We affirm.


                                                    BACKGROUND
       S.J. and W.T. are the parents of E.T.1 On June 25, 2015, the Department of Family and
Protective Services (the Department) filed an original petition for protection of the child, for
conservatorship, and for termination of S.J.’s parental rights. The Department was appointed
temporary managing conservator of the child, and S.J. was appointed temporary possessory
conservator with limited rights and duties.
       On July 9, 2015, S.J. completed an affidavit of indigence and request for a court-appointed
attorney. The trial court appointed an attorney ad litem to represent her. Shortly thereafter, S.J.’s
appointed attorney ad litem moved to withdraw, stating that S.J. had retained new counsel. The
trial court issued an order finding that “good cause exist[ed]” for the attorney ad litem to withdraw
and recognized S.J.’s retained counsel as counsel of record. S.J.’s retained counsel represented
her until sometime after December 2015. In early 2016, S.J. retained another attorney. During a
permanency hearing in April 2016, the trial court set the case for mediation on May 27.
Approximately one week before the mediation, S.J. fired her attorney. On the day before the
       1
           The father, W.T., is not a party to this appeal.
mediation, S.J.’s attorney filed a motion to withdraw, and the trial court signed an order granting
the motion on that same date. The mediation took place as scheduled and S.J. attended pro se.
The resulting mediation settlement agreement (MSA) included an agreement that S.J. would
complete an affidavit of relinquishment of parental rights and an agreement regarding future
visitation and contact between S.J. and the child. In accordance with the MSA, S.J. signed an
affidavit of voluntary relinquishment. At a hearing regarding the MSA, S.J. requested that the
MSA be modified and stated that she did not have counsel during mediation. The trial court
refused her request, stating that it was prohibited by law from changing the terms of the MSA.
       Accordingly, the trial court found, by clear and convincing evidence, that by executing an
unrevoked or irrevocable affidavit of relinquishment, S.J. had engaged in one or more of the acts
or omissions necessary to support termination of her parental rights under subsection (K) of Texas
Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child
relationship between S.J. and E.T. was in the child’s best interest. Based on these findings, the
trial court ordered that the parent-child relationship between S.J. and E.T. be terminated. This
appeal followed.


                             MEDIATED SETTLEMENT AGREEMENT
       In her sole issue on appeal, S.J. argues that the trial court abused its discretion by issuing
an order of termination based on the MSA because she was not represented by counsel at the
mediation.
Standard of Review
       We review the trial court’s issuance of a termination order pursuant to an MSA under an
abuse of discretion standard. See Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso
2005, no pet.); Garcia–Udall v. Udall, 141 S.W.3d 323, 331-32 (Tex. App.—Dallas 2004, no pet.)
(trial court has no discretion to vary from terms of MSA). The test for an abuse of discretion is
whether the trial court acted without reference to any guiding rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Applicable Law
       In a suit filed by a government entity in which termination of the parent-child relationship
is requested, the court shall appoint an attorney ad litem to represent the interests of an indigent
parent of the child who responds in opposition to the termination. See TEX. FAM. CODE ANN.



                                                 2
§ 107.013(a)(1) (West Supp. 2016). An attorney appointed to serve as an attorney ad litem for a
parent continues to serve in that capacity until the date the attorney is relieved of the attorney’s
duties or replaced by another attorney after a finding of good cause is rendered by the court on the
record. See id. § 107.016(2) (West 2014). At the status hearing and at each permanency hearing
held after the date the court renders a temporary order appointing the Department as temporary
managing conservator of the child, the court shall inform each parent not represented by an
attorney of the right to be represented by an attorney, and if a parent is indigent and appears in
opposition to the suit, the right to a court-appointed attorney. See id. § 263.0061(a) (West 2014).
       An MSA is binding on the parties if it (1) 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. See id. § 153.0071(d) (West 2014). If
an MSA meets the requirements of section 153.0071(d), a party is entitled to judgment on the
MSA. See id. § 153.0071(e).
Analysis
       In this case, the record shows that the trial court appointed an attorney ad litem to
represent S.J. See id. § 107.013(a)(1). When S.J. obtained retained counsel, the trial court found
that “good cause exist[ed]” and allowed the attorney ad litem to withdraw. See id. § 107.016(2).
Therefore, the trial court did not violate its duty towards S.J. regarding representation before the
mediation. See id. § 107.013(a)(1), 107.016(2).
       Later, S.J. chose to retain her own counsel, hired two different attorneys, and ultimately
fired both of them. She fired her second attorney by email on May 19, 2016, and the attorney
filed a motion to withdraw on May 26. A copy of S.J.’s email stating that counsel was “fired” is
attached as an exhibit to the motion, and the certificate of service shows that counsel sent S.J. a
copy of the motion on May 25. The trial court granted the motion on May 26, and the mediation
was scheduled for May 27.
       S.J. does not argue on appeal that counsel’s motion to withdraw should not have been
granted. Instead, she contends that the trial court abused its discretion by issuing an order of
termination based on the MSA because she was not represented by counsel at the mediation. S.J.
fired her attorney approximately one week before the scheduled mediation. However, the record
does not show that, after S.J. fired her attorney, she asked the trial court to reschedule the



                                                  3
mediation or appoint new counsel for her. As a result, she waived her complaint on appeal that
“[i]nstead of considering a pauper’s affidavit, or simply rescheduling the mediation in order to
allow [her] to retain counsel, the trial court allowed the mediation to proceed” and rendered
judgment on the MSA. See TEX. R. APP. P. 33.1(a) (stating that to present a complaint for
appellate review, record must show a complaint was made to the trial court by timely request,
objection, or motion).
         Even if S.J. had not waived her complaint, however, she could not prevail. S.J. attended
the mediation pro se, signed an MSA, and complied with the MSA by signing an affidavit of
voluntary relinquishment of parental rights. The MSA included the warning and signatures
required by the family code. See TEX. FAM. CODE ANN. § 153.0071(d) (providing that MSA is
binding if it includes warning of irrevocability and signatures required by subsection (d)). A court
may decline to enter a judgment on the MSA only if it finds that (1) a party to the agreement was
the victim of family violence, and that circumstance impaired the party’s ability to make
decisions; and (2) the agreement is not in the child’s best interest. See id. § 153.0071(e-1) (West
2014).       S.J. does not contend that these circumstances are present here.         Therefore, the
Department was entitled to judgment on the MSA.             See id. § 153.0071(e) (“If a mediated
settlement agreement meets the requirements of Subsection (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.”).
         S.J. maintains that the holding in In re V.L.B., 445 S.W.3d 802 (Tex. App.–Houston [1st
Dist.] 2014, no pet.), requires reversal of the termination order in this case. In V.L.B., however,
the trial court failed to appoint an attorney ad litem for the indigent parent before proceeding with
a trial on the merits even after the parent filed an affidavit of indigence. Id. at 807-08. Here,
however, the trial court appointed an attorney ad litem for S.J., who ultimately decided to hire and
subsequently fire two different attorneys. Thus, the facts in V.L.B. are not similar to the facts of
this case.
         The trial court did not abuse its discretion by issuing the order of termination in
accordance with the MSA. Accordingly, we overrule S.J.’s sole issue.


                                            DISPOSITION
         Having overruled S.J.’s sole issue on appeal, we affirm the judgment of the trial court.



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                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered November 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



                                                              5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        NOVEMBER 30, 2016


                                         NO. 12-16-00190-CV


                             IN THE INTEREST OF E.T., A CHILD


                                 Appeal from the 321st District Court
                          of Smith County, Texas (Tr.Ct.No. 15-5146-D)

                        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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
