                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00220-CV


IN THE INTEREST OF G.V., III
AND G.V., CHILDREN




                                    ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 323-102780-16

                                    ----------

      DISSENTING OPINION FROM ORDER DENYING
 MOTHER AND FATHER’S MOTION FOR REHEARING EN BANC

                                    ----------

                                I. INTRODUCTION

      I would grant Mother and Father’s motion for rehearing en banc. I would

hold that the binding mediated settlement agreement (MSA) reached in this case

pursuant to the provisions of family code section 153.0071 is not enforceable in

this termination suit brought by the Department of Family and Protective Services
under chapter 161 of the family code because Mother and Father revoked their

consent to the agreement before the trial court entered judgment on it. See Tex.

Fam. Code Ann. § 153.0071 (West Supp. 2017), §§ 161.001–.211 (West 2014 &

Supp. 2017).    Because the majority opinion1 holds otherwise and because a

majority of this court has voted to deny Mother and Father’s motion for rehearing

en banc, I respectfully dissent.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      The Department initiated the present lawsuit on January 27, 2016, by filing

an “Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent Child Relationship.” The Department

pleaded that it had taken possession of three-month-old Betty2 without a court

order in accordance with section 262.104 of the family code; requested that the

trial court issue emergency orders concerning two-year-old Andrew; requested

that the trial court immediately, without notice or an adversary hearing, appoint

the Department as temporary sole managing conservator of Betty and Andrew;

and sought termination of the parental rights of Mother and Father to Betty and

Andrew if family reunification could not be achieved. See id. § 262.104 (West



      1
     See In re G.V., No. 02-17-00220-CV, 2017 WL 6422132, at *8 (Tex.
App.—Fort Worth Dec. 18, 2017, no pet. h.) (mem. op.)
      2
       For ease of reading, I utilize the same aliases adopted by the majority
opinion. See G.V., 2017 WL 6422132, at *1–8; see also Tex. Fam. Code Ann.
§ 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8(b)(2).

                                       2
Supp. 2017) (setting forth procedures for Department to take possession of a

child in an emergency without a court order).

        The affidavit of removal supporting the Department’s petition explained

that Mother, who is employed by a public school, had received a call from Betty

and Andrew’s day care stating that Betty was not acting right; Betty had attended

that day care since she was six weeks old. Mother went to the day care, fed

Betty a bottle, and soothed her.    Mother returned to work but later that day

received another call from the day care saying that Betty was not acting right.

Mother picked up Betty from the day care and took her to a hospital emergency

room based on the concerns expressed by the day care. At the emergency

room, doctors determined that Betty had suffered fractures to almost all of her

ribs; that the fractures were in various stages of healing; that Betty had

fingerprint-shaped bruises on her back, buttocks, and right temple; that her

clavicle was fractured and a knot was visible there; and that her femur had been

previously fractured. Doctors ruled Betty’s injuries as child abuse and called the

Department.

        Father, who was a licensed vocational nurse employed by John Peter

Smith Hospital, and Mother both denied causing Betty’s injuries and denied that

Betty had the bruises or fracture to her clavicle when she was dropped off at day

care.    Mother and Father have no criminal convictions, have no prior CPS

referrals, and have been married for thirteen years.



                                        3
      Doctors subsequently examined Andrew and determined that he had not

sustained any prior injuries. Throughout the case, the Department consistently

pleaded that the perpetrator of Betty’s injuries was unknown and that a criminal

investigation remained open.

      The Department created a service plan for Mother and Father, and Mother

and Father began working their plans.

      The Department, Mother, Father, the Joneses,3 and an intervenor named

Jane Doe mediated their claims and signed a “Binding Medi[]ated Settlement

Agreement.”4 In the MSA, the parties did not agree to termination of Mother’s

and Father’s parental rights but did agree to appoint the Joneses as the

children’s managing conservators; to appoint Mother, Father, and Jane Doe as

possessory conservators; to permit Mother and Father to have four hours of

visitation with the children every second and fourth Saturday from 9:00 a.m. to

noon; and to have Mother and Father’s visits supervised by the Smiths. The

MSA also called for Mother and Father to pay child support to the Joneses. The

MSA gave Jane Doe—on whom the record does not reflect that the Department

conducted any type of home study or fitness investigation—possession of the

children from 6:00 p.m. Friday to 6:00 p.m. Sunday every six weeks, for one

week in the summer, and from December 27 at noon until December 29 at noon.


      3
      The Joneses are relatives of Father.
      4
      A copy of this MSA with names redacted is attached to this opinion.

                                        4
The MSA stated that there would be “no modification until after 48 months” and

separately stated that no modification is to be filed “unless emergency.” The

handwritten MSA was purportedly executed pursuant to section 153.0071 of the

family code. After signing the MSA, Mother and Father filed a written “Objection

to Binding Mediated Settlement Agreement” in which they revoked their consent

to the MSA.5

       The Department moved to remain managing conservator of Betty and

Andrew and to extend the 180-day disposition deadline for its termination suit

because the Joneses needed additional time “to qualify for permanency care

assistance.”6 The trial court granted the extension.

       About five months later, the Department filed a motion for judgment on the

MSA.       Mother and Father filed a response to the Department’s motion for

       Mother and Father’s written objection asserted that the MSA was not
       5

enforceable and should be set aside “for the following reasons:”

       (1). The MSA is not in the best interest of the children made subject
       of this suit, and moreover, In Re: Stephanie Lee, 411 S.W.3d 445
       (Tex. 2013), and Tex. Fam. Code Ann. § 153.0071(d), are not
       controlling in this case; (2). The MSA is illegal because the ability to
       seek a modification of the Permanent Managing Conservator is a
       statutory right and is not waivable; (3). The MSA is void for
       vagueness as the term “Emergency” as used therein is vague and
       not defined; (4). The MSA was signed by Respondents while under
       duress; and (5). The MSA is contrary to public policy.
       6
       In addition to this statement in its motion for extension, the Department
subsequently explained on the record, “The reason why we extended the case
was so that the [Joneses] who had possession of [Andrew] and [Betty] would be
licensed and be able to get foster connection benefits by being licensed for six
months before we close the case.”

                                          5
judgment, alleging that the MSA was not enforceable because Mother and Father

had withdrawn their consent to the MSA, because MSAs are not enforceable in

termination suits, because the 48-month-no-modification provision in the MSA is

contrary to Mother and Father’s statutory rights and renders the MSA illegal and

contrary to public policy, and because Mother and Father had signed the MSA

under duress—the Department’s pending threat of termination of their parental

rights. Affidavits by Mother and Father were attached to their response; the

affidavits stated that Mother and Father did not believe the MSA was in the best

interest of Andrew or Betty; that at the mediation, Mother and Father were

threatened with termination of their parental rights if they did not sign the MSA;

and that Mother and Father “would never have entered into the MSA but for the

threat of termination.”

      The trial court conducted a hearing on the Department’s motion for

judgment on the MSA. At the hearing, Mother and Father again argued that the

MSA was not enforceable, specifically asserting the same grounds they had

raised first in their written objection to the MSA and again in their response to the

Department’s motion for judgment on the MSA.           The Department put on no

evidence at the hearing, moving for judgment based solely on the MSA’s

enforceability under family code section 153.0071.        The trial court signed a

judgment enforcing all but a few provisions of the MSA.

      Mother and Father then perfected this appeal.



                                         6
III. SECTION 153.0071 MSAS ARE NOT BINDING––THAT IS, ARE REVOCABLE PRIOR
              TO JUDGMENT––IN CHAPTER 161 TERMINATION SUITS

                                   A. The Law

                    1. Concerning Chapter 153.0071 MSAs

      The legislature has announced that the public policy of Texas with respect

to conservatorship, possession, and access to children under chapter 153 of the

family code is to (1) assure that children will have frequent and continuing

contact with parents who have shown the ability to act in the best interest of the

child; (2) provide a safe, stable, and nonviolent environment for the child; and (3)

encourage parents to share in the rights and duties of raising their child after the

parents have separated or dissolved their marriage. See id. § 153.001(a) (West

2014). In furtherance of chapter 153’s stated policies of protecting children and

encouraging parents to share in the rights and duties of child-rearing, even after

they have divorced, the legislature enacted section 153.0071, providing for

binding MSAs. See id. § 153.0071; Lee, 411 S.W.3d at 454–55 (explaining the

legislature’s goal of protecting children is furthered by section 153.0071, which

incentivizes parents to work collaboratively for their children’s welfare). Under

section 153.0071, settlement agreements involving suits affecting the parent-

child relationship (SAPCRs) that comply with section 153.0071(d)’s provisions—

which require that the MSA contain a specific type of prominent notice that the

MSA is nonrevocable and that it be signed by the parties and the parties’

attorneys who attend the mediation—are immediately enforceable; are not


                                         7
subject to repudiation by a party; and, with certain limited exceptions, are binding

on the trial court without approval or determination of whether the agreement’s

terms are just and right or in the child’s best interest. See Tex. Fam. Code Ann.

§ 153.0071(d); Lee, 411 S.W.3d at 454 (explaining that in enacting section

153.0071, the legislature merely recognized that parents themselves are able to

determine “what is best for their children within the context of [their] collaborative

effort to reach and properly execute an MSA”); Scruggs v. Linn, 443 S.W.3d 373,

378 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding trial court generally

does not have discretion to decline to render judgment on or deviate from MSA);

In re M.A.H., 365 S.W.3d 814, 819–20 (Tex. App.—Dallas 2012, no pet.)

(distinguishing MSAs satisfying elements of section 153.0071(d), which are not

subject to revocation of consent, from unmediated settlement agreements, which

are); see also In re S.A.D.S., 413 S.W.3d 434, 438–39 (Tex. App.—Fort Worth

2010, no pet.) (modifying trial court’s order and affirming order as modified

because, pursuant to family code section 153.0071(e), “the trial court had no

authority to enter an order that varied from the terms of the [MSA]”).

           2. Concerning Suits for Termination of Parental Rights

      A parent’s rights to his or her children involve a right more precious than

any mere property right. See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct.

2054, 2060 (2000) (recognizing that the Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents concerning the care,

custody, and control of their children); Zablocki v. Redhail, 434 U.S. 374, 384, 98

                                          8
S. Ct. 673, 680 (1978) (recognizing that the right to bring up children is a central

part of the liberty protected by the Due Process Clause); In re E.R., 385 S.W.3d

552, 555 (Tex. 2012) (same). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.”    E.R., 385 S.W.3d at 554 (citing Santosky v.

Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).

      Chapters 2627 and 2638 of the family code were enacted to provide this

requisite due process and fundamental fairness in termination suits brought by

the Department and to ensure speedy placement of a child in a permanent home

when the Department has been named temporary or permanent managing

conservator of a child. See Tex. Fam. Code Ann. §§ 262.001–.352, 263.001–

.608; In re K.D., 471 S.W.3d 147, 167–68 (Tex. App.––Texarkana 2015, no pet.)

(explaining that chapter 262 of the family code was enacted to provide due

process requisites in parental termination cases) (citing In re B.L.D., 113 S.W.3d

340, 353 (Tex. 2003), cert. denied, 541 U.S. 945 (2004)); In re A.J.K., 116

S.W.3d 165, 171 (Tex. App.––Houston [14th Dist.] 2003, no pet.) (stating that


      7
       Chapter 262 is titled “Procedures in Suit by Governmental Entity to
Protect Health and Safety of Child” and governs suits in which the Department
seeks termination of parental rights. See Tex. Fam. Code Ann. §§ 262.001–.352
(West 2014 & Supp. 2017).

      Chapter 263 is titled “Review of Placement of Children Under Care of
      8

Department of Family and Protective Services” and governs suits in which the
Department is named temporary or permanent managing conservator of a child.
See Tex. Fam. Code Ann. §§ 263.001–.608 (West 2014 & Supp. 2017).

                                         9
“[t]he [l]egislature’s intent to further this goal [of a permanent home for a child in

Department custody] has been recognized as one of the express purposes

behind the enactment of [c]hapter 263”) (citing “Cynthia Bryant & Charles G.

Childress, Introductory Comment to Chapter 263, SAMPSON & TINDALL’S

TEXAS FAMILY CODE ANNOTATED at 950”). Due process and fundamental

fairness in termination suits are further served by application of a higher standard

of proof at trial—clear and convincing evidence.        See Tex. Fam. Code Ann.

§§ 161.001(b), 161.206(a); In re A.B., 437 S.W.3d 498, 502 (Tex. 2014).

                                    B. Analysis

      Courts of appeals that have addressed the issue of whether family-code-

section-153.0071 MSAs—custody contracts—are enforceable in chapter-161-

termination-of-parental-rights suits have held that they are not, although in a

context   different   than   the   revocability-of-consent-prior-to-entry-of-judgment

context presented here. See In re Morris, 498 S.W.3d 624, 634 (Tex. App.—

Houston [14th Dist.] 2016, orig. proceeding [mand. denied]) (holding that “section

153.0071(e) does not apply to suits for termination of the parent-child relationship

under [c]hapter 161 of the [f]amily [c]ode”); K.D., 471 S.W.3d at 169 (holding that

“because [c]hapter 153 only involves suits for conservatorship, possession, and

access to children, then only cases for conservatorship, possession, and access

to children that are referred to mediation under [s]ection 153.0071(c) can

produce [an MSA] that forecloses the trial court’s best-interest review. Because

termination cases are governed by [c]hapter 161, [s]ection 153.0071(e) would not

                                          10
apply to such cases”); see also generally Richardson v. Green, 677 S.W.2d 497,

500 (Tex. 1984) (recognizing a “significant distinction between a custody suit and

a termination action” because “‘[t]ermination does not merely end the right of the

parent to physical possession of the child, subject to modification; it is an action

with constitutional dimensions, terminating forever the natural right which exists

between parents and their children”); Martin v. Black, 909 S.W.2d 192, 195 (Tex.

App.—Houston [14th Dist.] 1995, writ denied) (explaining the contractual nature

of an MSA).

      The majority distinguishes K.D. and Morris on the ground that the MSA

here, unlike the MSAs in K.D. and Morris, did not include an agreement to

terminate parental rights. Because the MSA here—and the judgment on the

MSA—addressed conservatorship issues, the majority holds that section

153.0071 and the Texas Supreme Court’s holding in Lee construing section

153.0071 applies.9 I cannot agree for the following reasons.

                    1. The Department’s Suit Filed Against
                    Mother and Father Is a Termination Suit

      The Department obtained emergency removal of Betty and Andrew from

Mother’s and Father’s custody without a court order. See Tex. Fam. Code Ann.

§ 262.102. When the Department filed suit against Mother and Father, it sought

to be named temporary possessory conservator of Betty and Andrew and

      9
       See G.V., 2017 WL 6422132, at *5 (stating that “under Lee[,] the trial
court was required to enter judgment on the mediated settlement agreement—
and to do so essentially without any judicial oversight or review”).

                                        11
pleaded for termination of Mother’s and Father’s parental rights if family

reunification was not possible. The Department’s suit pleaded seven statutory

grounds supporting the termination of Mother’s and Father’s parental rights and

pleaded that termination of Mother’s and Father’s parental rights was in Betty’s

and Andrew’s best interest. Consequently, this suit is a termination suit. See id.

§ 161.101 (providing that “[a] petition for the termination of the parent-child

relationship is sufficient without the necessity of specifying the underlying facts if

the petition alleges in the statutory language the ground for the termination and

that termination is in the best interest of the child”); see also In re N.R.T., 338

S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (holding Department’s

“Petition to Modify Parent-Child Relationship” sufficient to support termination of

parents’ rights because petition alleged statutory grounds for termination and

stated that termination was in the best interest of the children).

      The fact that the MSA in this case did not include an agreement to

terminate Mother’s and Father’s parental rights but instead includes only an

agreement to restrict Mother’s and Father’s possessory rights to Betty and

Andrew to four hours every other Saturday for four years does not transform the

Department’s suit into something other than a termination suit; it just means that

the termination issue was resolved at mediation in Mother’s and Father’s favor.

Cf. A.J.K., 116 S.W.3d at 167–69 (holding section 263.405’s accelerated appeal

provision for termination suits applied even when the Department had

abandoned its request for termination yet remained a party). Thus, I would hold

                                         12
that this appeal stems from a termination suit and falls within the parameters of

K.D.’s and Morris’s holdings that section 153.0071 binding MSAs are not binding

in termination suits.

                             2. Lee Does Not Apply

      Lee involved parents who had previously been appointed joint managing

conservators of a child. 411 S.W.3d at 448. The father filed a motion to modify

the prior order, and ultimately, the parents entered into a section 153.0071 MSA.

Id. The mother filed a motion for judgment on the MSA, but the trial court refused

to enter such a judgment after hearing evidence and concluding that the MSA

was not in the child’s best interest.    The supreme court ruled that––absent

evidence of the applicability of section 153.0071(e-1)’s narrow exception to

enforcement––the trial court was required to enter judgment on the MSA. The

supreme court explained:

      [S]ection 153.0071(e) reflects the [l]egislature’s determination that it
      is appropriate for parents to determine what is best for their children
      within the context of the parents’ collaborative effort to reach and
      properly execute an MSA. This makes sense not only because
      parents are in a position to know what is best for their children, but
      also because successful mediation of child-custody disputes,
      conducted within statutory parameters, furthers a child’s best interest
      by putting a halt to potentially lengthy and destructive custody
      litigation.

Id. at 454. Thus, in Lee, the Texas Supreme Court outlined the legislature’s logic

in making section 153.0071 MSAs judicially enforceable by entry of a judgment:

first, such MSAs allow parents acting in their children’s best interest to

collaboratively determine what is best for their children; and second, judicial

                                        13
enforcement of such MSAs promotes quicker resolution of lengthy custody

litigation, which is also in children’s best interests. Id. at 454–55 (explaining that

“section 153.0071(e) encourages parents to peaceably resolve their child-related

disputes through mediation” and that the lower courts’ failure to enforce the MSA

in Lee “erod[es] parents’ incentive to work collaboratively for their children’s

welfare”) (emphasis added); see also Justice Debra H. Lehrmann, Protecting our

Children, The Legacy of In re Lee, 80 Tex. B.J. 506, 506–07 (2017) (discussing

Lee’s application to “custody battles” between two “adequate parents”).

      The logical reasons articulated by the supreme court as underlying its

holding in Lee—mandating entry of judgment on a section 153.0071 MSA

between parents—do not apply here.            Unlike the MSA in Lee, Mother and

Father’s MSA does not resolve a custody suit between them as the parents of

Betty and Andrew; it resolves a termination suit instituted by the Department

against Mother and Father. Unlike the mother and father in Lee, Mother and

Father here were not collaboratively involved in negotiating an MSA dividing

between the two of them their possessory rights to their children in a manner

promoting the best interest of their children; Mother’s and Father’s affidavits state

that they entered into the MSA with the Department, the Joneses, and Jane Doe

to avoid termination of their parental rights to Betty and Andrew.10 And unlike the


      10
         Mother’s and Father’s affidavits filed in support of their response
opposing the Department’s motion for judgment on the MSA both state that
“[d]uring the October 3, 2016, mediation, I was threatened with the termination of
my parental rights if I did not sign the Mediated Settlement Agreement. . . . I
                                         14
“custody battles” between “two adequate parents” addressed in Lee that are

more quickly and peaceably resolved by an MSA entered as a judgment, the

legislature has already set a statutory deadline for disposition of suits in which

the Department seeks to terminate parental rights or to retain conservatorship of

children. See Tex. Fam. Code Ann. § 263.401 (providing mandatory one-year

dismissal deadline, subject to one 180-day extension, in SAPCR brought by the

Department).

         To me, it is clear that the Texas Supreme Court’s holding in Lee—requiring

the trial court to enforce the MSA entered into by Stephanie Lee’s mother and

father in Stephanie’s father’s suit to modify custody—does not control the present

facts.

3. Family Code Chapters 161, 262, and 263 Do Not Contain a Binding MSA
              Provision, and Family Code Section 153.0071
            Cannot be Construed to Apply to Those Chapters

         Texas Family Code section 6.604(b) and section 153.0071(d) both contain

the exact same binding MSA provision. See Tex. Fam. Code Ann. § 6.604(b)

(West 2006), § 153.0071(d). Chapter 6 governs suits for dissolution of marriage

while chapter 153 governs suits for conservatorship, possession, and access to

children. Both sections provide, in identical language, that an MSA is binding on

the parties if the agreement (1) provides, in a prominently displayed statement

that it is in boldfaced type or capital letters or underlined, that the agreement is

would have never entered into the October 3, 2016 mediated settlement
agreement but for the threat of termination.”

                                         15
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. §§ 6.604(b), 153.0071(d); see also Milner v. Milner, 361 S.W.3d

615, 618 n.2 (Tex. 2012) (discussing MSAs under chapter 6 of the family code);

In re C.C.E., 530 S.W.3d 314, 320 (Tex. App.—Houston [14th Dist.] 2017, no

pet.) (discussing MSAs under family code section 153.0071).           A party to a

statutorily-compliant MSA may not later revoke consent. Lee, 411 S.W.3d at

454; C.C.E., 530 S.W.3d at 320 (“If a party attends mediation and enters into a

mediated settlement agreement that complies with section 153.0071(d), the party

may not later revoke consent.”); Scruggs, 443 S.W.3d at 378; S.A.D.S., 413

S.W.3d at 438–39.

      Thus, the legislature knows how to statutorily make certain settlements

binding and nonrevocable in suits for divorce (chapter 6) and custody suits

(chapter 153), yet it did not do so in suits to terminate a parent’s rights to his or

her child (chapter 161) or in the family code chapters setting forth procedures

applicable to suits by a governmental entity to protect the health, safety, and

welfare of a child (chapter 262) or to suits in which the Department is named

temporary or permanent managing conservator of a child (chapter 263). See,

e.g., In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 706 (Tex. 2015) (orig.

proceeding) (refusing to construe section 160.007(b) of the occupations code

concerning confidentiality of medical peer review records as placing an

evidentiary burden on the plaintiff because “[t]he [l]egislature knows how to

                                         16
provide this type of gatekeeping function, and subsection (b) is devoid of any

language indicating intent to do so”). When the legislature expresses its intent

regarding a subject in one setting (in family code chapters 6 and 153), but, as

here, remains silent on that subject in another (in family code chapters 161, 262,

and 263), we generally abide by the rule that such silence is intentional. See

Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 n.4 (Tex. 2013).11 I would

hold that the legislature’s express inclusion of a binding mediated settlement

provision in both chapter 6 and chapter 153 of the family code—which govern

divorces and child custody, respectively—when reviewed in the context of its

failure to include such a provision in chapters 161, 262, and 263 was intentional

and should be respected.

      This construction is further supported by the fact that the binding,

irrevocable nature of statutory MSAs under family code sections 6.604(b) and


      11
         Citing as support, among other cases, Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 859 (Tex. 2002) (“[T]he [l]egislature knows
how to clearly and unambiguously waive sovereign immunity from suit. . . . Here,
neither section 5.351 nor 5.352 clearly and unambiguously waives the [Texas
Natural Resource Conservation Commission]’s sovereign immunity from suit for
breach-of-contract claims.”); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d
352, 358 (Tex. 2001) (“The [l]egislature could have added similar language to
[s]ection 51.014(a)(3) and permitted appeals from orders refusing to decertify a
class, but did not.”); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
885 (Tex. 2000) (“Section 26.177(d) shows the [l]egislature knows how to provide
a right of appeal to persons affected by a water quality plan or government action
relating to a plan. Yet, the [l]egislature chose not to provide such a right to
persons affected by section 26.179 plans or [Texas Natural Resource
Conservation Commission] approval of plans.”).


                                       17
153.0071(d) is contrary to the common law. While, as set forth above, statutorily-

compliant MSAs are generally binding when they are signed, at common law, a

party may revoke his or her consent to a settlement agreement at any time

before judgment is rendered on the agreement. See S & A Rest. Corp. v. Leal,

892 S.W.2d 855, 857 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654

S.W.2d 442, 444 (Tex. 1983); Samples Exterminators v. Samples, 640 S.W.2d

873, 874–75 (Tex. 1982). At common law, a judgment rendered after one of the

parties revokes his consent is void. Samples, 640 S.W.2d at 875. If a party

revokes his consent, the settlement agreement may still be enforceable but only

as a breach-of-contract action.       See Tex. Civ. Prac. & Rem. Code Ann.

§ 154.071 (West 2011); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995)

(stating that “after proper notice and hearing,” a party may enforce a settlement

agreement complying with rule 11 as a binding contract “even though one side

no longer consents to the settlement”).

      The legislature is certainly free to modify or abrogate common-law rules

via statutes, but we are to construe a statute as doing so “only when that was

what the [l]egislature clearly intended.”      Abutahoun v. Dow Chem. Co., 463

S.W.3d 42, 51 (Tex. 2015) (quoting Energy Serv. Co. of Bowie v. Superior

Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007)). We are to decline to

construe statutes to deprive citizens of common-law rights unless the legislature

clearly expressed that intent. Id. (citing Satterfield v. Satterfield, 448 S.W.2d 456,

459 (Tex. 1969)). There is nothing in chapter 161 or chapter 262 indicating the

                                          18
legislature intended to statutorily deprive a parent—sued by the Department for

termination of his or her parental rights—of his or her common-law right to revoke

his or her consent to a settlement agreement prior to the entry of judgment. See

Tex. Fam. Code Ann. §§ 161.001–. 211, 262.001–.608.

      Additional statutory-construction analysis of section 153.0071 and its

applicability to termination suits was conducted by the Houston Fourteenth Court

of Appeals in Morris and by the Texarkana Court of Appeals in K.D. See Morris,

498 S.W.3d at 633–34 (recognizing that custody MSAs under section 153.0071,

although initially binding, may subsequently be modified while section 153.0071

MSAs utilized in termination suits present modification problems—similar to the

48-month-no-modification provision Mother and Father challenge in this appeal);

K.D., 471 S.W.3d at 172–74, n.17 (explaining that section 153.0071 MSAs are

not binding in termination suits in part because family code chapters 153 and 161

are not in pari materia, that is, they do not share a common purpose and are not

intended to be construed together). Without belaboring the statutory-construction

analysis conducted by these courts, I would adopt it, along with the statutory-

construction analysis set forth above, to hold that section 153.0071 MSAs are not

binding—that is, enforceable by a judgment after revocation of consent by a party

to the MSA—in termination suits.12


      12
        The absurdity of construing section 153.0071 MSAs as irrevocable at the
time of signing in termination suits would be more amply demonstrated if it were
the Department seeking to revoke its consent prior to judgment and Mother and
Father or even Jane Doe moving for judgment on the MSA.

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             IV. MOTHER AND FATHER’S REMAINING POINTS ARE RIPE

      The majority opinion holds that Mother and Father’s remaining two

issues—attacking the MSA’s provisions imposing a 48-month limitation on the

filing of any motions to modify absent some undefined “emergency”—are not

ripe. See G.V., 2017 WL 6422132, at *7–8. I respectfully cannot agree.

      Mother and Father contend in their remaining two issues, as they did in the

trial court, that the entire MSA is unenforceable because it is void as against

public policy.13 A contention that an entire MSA is void as against public policy is

ripe in an appeal from the judgment on the MSA. See, e.g., Philadelphia Indem.

Ins. Co. v. White, 490 S.W.3d 468, 490–91 (Tex. 2016) (recognizing that when

agreement cannot be performed without violating public policy, it is per se void);

C.C.E., 530 S.W.3d at 320 (addressing issue of whether certain provision in MSA

made the entire MSA unenforceable).          Thus, I would address the merits of

Mother and Father’s remaining two issues.

                                 V. CONCLUSION

      I would grant Mother and Father’s motion for rehearing en banc. For the

above reasons, I would hold that section 153.0071’s MSA provisions cannot be

enforced as binding in a chapter 161 termination suit when a party revokes

consent prior to judgment on the MSA and that here Mother and Father revoked

      13
         Mother and Father asserted this argument three times in the trial court:
once in their filed, written objections to the MSA; once in their response to the
Department’s motion to enforce the MSA; and again at the hearing before the
trial court on the Department’s motion to enforce the MSA.

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their consent to the MSA in this termination suit before judgment was entered on

the MSA. Of course, if no party to a section 153.0071 MSA revokes consent to it

prior to judgment, then judgment may be entered on the MSA just as on any

other agreed-to settlement.14      I would also hold that Mother and Father’s

remaining issues are ripe, and I would address them on the merits. Because a

majority of the court holds otherwise, I respectfully dissent.



                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE


DELIVERED: January 25, 2018




      14
       See, e.g., In re A.C., No. 05-16-01531-CV, 2017 WL 1684649, *4–5,
(Tex. App.––Dallas May 2, 2017, no pet.) (mem. op.) (enforcing MSA terminating
mother’s parental rights when not objected to prior to judgment); In re J.R.W.,
No. 05-15-00493-CV, 2015 WL 5050169, at *3 (Tex. App.––Dallas Aug. 27,
2015, pet. denied) (mem. op.) (same).

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APPENDIX




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