












 
 
                                                                                                        
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-05-357-CV
 
 
IN THE INTEREST OF R.B., J.B., 
S.B., T.B., A.B., AND J.B., CHILDREN                                                    
 
                                              ------------
 
           FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                       OPINION
 
                                              ------------
 
I.  Introduction
Appellants Ronald and Willie
Jean B. appeal the trial court=s order terminating their parental rights to their children, R.B.,
J.B., S.B., T.B., A.B., and J.B.  We
affirm.
II.  Factual and Procedural Background




In November 2003, Ronald and
Willie Jean were living in a motel with seven of their children, R.B., J.B.,
S.B., T.B., A.B., J.B., and B.B.[1]
when CPS received a report that while appellants were in the motel hot tub,
their four-year-old daughter jumped into the pool and appeared to be
drowning.  According to the report,
appellants did nothing to save their daughter from drowning, and another hotel
guest had to jump into the pool to rescue her. When the rescuer confronted
appellants about their failure to help their daughter, Ronald yelled at
her.  
Within two days of the report
about the pool incident, CPS received another report that appellants= two-year-old child was walking down the stairs from the third floor
of the motel unsupervised and carrying a knife. 
The same child had also been observed walking around the motel
unsupervised as late as 11:00 p.m. on two other occasions. 
Based on these reports, CPS
began its investigation.  During the
investigation, several of the children made outcry statements about sexual
abuse and neglect.  The Department of
Protective and Regulatory Services (the State) eventually removed the children
from appellants= care. 
On April 19, 2005, the State
filed a petition to terminate the parent-child relationship between appellants
and the children.  One month later, the
trial court ruled that outcry statements made to a counselor, the children=s foster parents, and a CPS caseworker would be admissible during
trial. 




At the final hearing on the
State=s petition, appellants appeared through their trial attorney, Jim
Lane, who presented to the court affidavits of relinquishment for all six
children executed by both appellants. 
Lane also announced that appellants had entered into a Rule 11 agreement
with the State, in which the State agreed not to initiate proceedings to
terminate appellants= rights to
their other children based on the allegations and proof in this case.[2]   The following day, on September 23, 2005,
the trial court entered an order terminating appellants= parental rights to the children on the basis of the affidavits of
relinquishment. 
Eleven days after the order
terminating their parental rights was rendered, appellants filed affidavits
revoking their affidavits of relinquishment pursuant to section 161.1035 of the
Texas Family Code.[3]





On October 7, 2005,
appellants filed a motion for new trial asserting, among other things, that the
evidence was legally and factually insufficient to show that they had executed
the affidavits of relinquishment freely and voluntarily.  After a hearing, the trial court denied
appellants= motion for
new trial.[4]
III.  Constitutionality of Section 161.103(e) of
the Texas Family Code  
In the second issue raised in
their supplemental brief, appellants assert that section 161.103(e) of the
Texas Family Code is unconstitutional on its face under the Equal Protection
Clause of the Fourteenth Amendment[5]
because parents who relinquish their parental rights to a private individual
can reserve a right of revocation while parents who relinquish their parental
rights to the State or to a licensed child placing agency cannot.[6]  The State asserts that appellants have waived
their Equal Protection claim because they failed to present it to the trial
court.  We agree.




It is well settled that
challenges to the constitutionality of a statute may be waived.[7]  The presumption is that a statute enacted by
our legislature is constitutional, and attacks on that presumption should
generally be raised as an affirmative defense to enforcement of the statute.[8]  In the absence of such a complaint in the
trial court, we are without authority to consider it.[9]
In this case, appellants did
not raise their constitutional challenge to section 161.103(e) in the trial
court as an affirmative defense or otherwise.[10]  The first time they raised the complaint is
in their supplemental brief on appeal. 
We hold, therefore, that the complaint is waived.[11]




We recognize that in criminal
cases, constitutional claims may be brought for the first time on appeal.[12]  The rationale for allowing such claims for
the first time on appeal, however, is that criminal statutes go to the subject
matter jurisdiction of the court.[13]  A conviction or sentence based on a statute that
is unconstitutional on its face is void from its inception, confers no power or
authority on the court, and justifies no acts performed under it.[14]  Therefore, a conviction based on a void
statute is fundamental error and may be raised for the first time on appeal.[15]  




In contrast, subject matter
jurisdiction exists in civil cases when the nature of the case falls within a
category of cases that the court is empowered to adjudicate under the
applicable constitutional and statutory provisions.[16]
Challenges to the constitutionality of a civil statute ordinarily go to the
merits of a claim or cause of action, not to the civil court=s subject matter jurisdiction.[17]
Therefore, if a civil court renders judgment on a claim that is within its
subject matter jurisdiction, but a relevant statute is determined to be
unconstitutional on its face, the judgment is merely rendered erroneous or
voidable, not void.[18]                             




Here, it is undisputed that
the trial court had subject matter jurisdiction over this parental termination
case and that we have jurisdiction over the appeal.  Appellants= constitutional complaint is unrelated to either court=s subject matter jurisdiction. If we were to hold that the statute at
issue is unconstitutional, our ruling would merely render the trial court=s order erroneous and subject to reversal; it would not render the
order void.  Because appellants= constitutional claim would not render the trial court=s order void, it is not fundamental error and cannot be asserted for
the first time on appeal.[19]  We overrule appellants= second issue raised in their supplemental brief.  




IV.  Unsigned Rule 11 Agreement 
In their second issue, appellants assert that the trial court erred by
terminating their parental rights based on the Rule 11 agreement because they
did not sign the agreement.[20]
Under the
Texas Rules of Civil Procedure, 
Unless otherwise provided in
these rules, no agreement between attorneys or parties touching any suit
pending will be enforced unless it be in writing, signed and filed with the
papers as part of the record, or unless it be made in open court and entered of
record.[21]
It is well settled that the attorney‑client
relationship is an agency relationship; the attorney=s acts and omissions within the scope of his or her employment are
regarded as the client=s acts.[22]  Thus, an attorney may execute an enforceable
Rule 11 agreement on his client=s behalf.[23]  




In this case, Lane signed the
agreement as @Attorney for
Respondent Parents.@  Ronald admitted at the motion for new trial
hearing that he understood that Lane had signed the agreement on appellants= behalf. Therefore, the mere fact that appellants did not sign the
Rule 11 agreement does not render it unenforceable.  We overrule appellants= second issue.
V.  Voluntariness of the Affidavits of
Relinquishment
In their third issue,
appellants argue that the trial court erred by terminating their parental
rights based on their affidavits of relinquishment and the Rule 11 agreement
because the evidence is legally and factually insufficient to show that they
executed the affidavits voluntarily and knowingly.  Appellants contend that the preponderance of
the evidence shows that their affidavits were executed as a result of fraud,
duress, and coercion. 




Under the Texas Family Code,
the trial court may terminate parental rights upon a finding, by clear and
convincing evidence, that the parent has Aexecuted before or after the suit is filed an unrevoked or irrevocable
affidavit of relinquishment of parental rights as provided by this chapter@ and that termination is in the best interest of the child.[24]  Implicit in the family code is the
requirement that the affidavit of voluntary relinquishment be voluntarily
executed.[25]   Evidence that an affidavit of voluntary
relinquishment was signed, notarized, witnessed, and executed in compliance
with family code section 161.103[26]
is prima facie evidence of its validity.[27]

Once it has been shown by
clear and convincing evidence that the affidavit of relinquishment was executed
according to the requirements of section 161.103 of the family code, courts
have traditionally held that the affidavit may be set aside only upon proof, by
a preponderance of the evidence, that the affidavit was executed as a result of
Afraud, coercion, duress, deception, undue influence, or overreaching.@[28] The burden of proving such wrongdoing is on the party opposing the
affidavit.[29]  




Recently, however, a
plurality of the Supreme Court of Texas, in separate concurring and dissenting
opinions, has opined that both the burden and standard of proof for setting
aside an affidavit of relinquishment should be Areformulated.@[30]  According to the plurality in In
re L.M.I., when an issue of involuntariness is raised, due process requires
that the burden be on the proponent of the affidavit to establish, by clear and
convincing evidence, that the affidavit was executed voluntarily.[31]  As one justice stated in her dissenting and
concurring opinion in In re L.M.I.: 
The United States Supreme
Court has held that the Due Process Clause of the Fourteenth Amendment requires
that before a state can irrevocably sever the rights of a parent, the evidence
of grounds for termination must at least be clear and convincing.  Accordingly, when the basis for termination
is an affidavit of relinquishment, there must be clear and convincing evidence
that the waiver was knowing, intelligent, and voluntary.[32]




We agree with our sister
court in Dallas that Athere is
considerable merit in applying the standard of review suggested in the
concurring and dissenting opinions in [In re] L.M.I.@[33]  However, we need not expressly
decide that issue here because under either standard the result is the sameCthe evidence is sufficient to show that appellants voluntarily
executed the affidavits.  Rather than
showing that appellants= execution
of their affidavits was the result of wrongdoing, the evidence in this case
establishes that appellants voluntarily, knowingly, and intelligently
relinquished their rights to the children with full awareness of the legal
consequences.  
Prior to signing the
affidavits of relinquishment, appellants met with their attorneys, their
pastor, their pastor=s wife,
Willie Jean=s sister,
and Ronald=s
brother.  Lane discussed the strengths
and weaknesses of appellants= case with appellants, including his concerns that the State might
prosecute them for child sexual assault and attempt to remove their unaffected
children.  After a discussion with Lane,
appellants decided to sign the affidavits of relinquishment because they Adid not want to lose [their unaffected child]@ even though they knew that they Adidn=t do
anything wrong to [the] children.@  




Lane=s co-counsel, Patty Tillman, testified that she made sure that
appellants fully understood the ramifications, finality, and magnitude of their
decision to sign the affidavits by permitting appellants to consult their
family members and pastor and allowing them to make the decision away from the
courthouse.  According to Tillman,
appellants agonized over their decision but were not coerced by anyone into
signing the affidavits.
Paul Sanchez, appellants= pastor, testified that appellants were Aemotionally distressed that morning [when they signed the affidavits].
. . . [and] not very coherent [about] what they were fixing to do, because [of]
the time frame that was given to them to decide about the facts of their kids.@  He stated that Lane Akept on insisting . . . [that appellants] sign [their] parental
rights, then [the unaffected children] will not be taken, will not be removed
from the home.@  Sanchez=s wife, Gloria, noted that Willie Jean was Aunder total duress,@ Ashe wasn=t thinking clearly,@ Ashe was
crying, . . . complaining, she didn=t understand why she was to this point.  Why did she have to sign these papers.  She claimed to be innocent, her husband as
well.@  Gloria said that when Ronald
signed the affidavits, he Abarely looked at [them], and he did not want to sign@ and that he was Asobbing [and] . . .  shaking his
head.@
Nancy Cearley, Willie Jean=s sister, stated that when Willie Jean signed the affidavits, Ashe didn=t read the
documents, she just scribbled her name@ and that appellants were very upset when they signed the
affidavits.  Nancy also said that she
told Willie Jean to sign the affidavits because Nancy was concerned about
appellants losing the unaffected children. 





In addition to consulting
with their attorneys, pastor, relatives, and friends before executing the
affidavits, appellants also heard the testimony of the children=s foster parents and a CPS caseworker regarding the children=s outcries.   These outcry
statements included allegations that Willie Jean had sexually assaulted J.B.,
appellants=
thirteen-year-old daughter; that both appellants had sexually assaulted and
Willie Jean had physically assaulted A.B., appellants= six-year-old daughter; that at least two of appellants= male family friends had sexually assaulted J.B., A.B., and S.B.,
appellants=
twelve-year-old daughter; that Ronald had sexually assaulted J.B., appellants= three-year-old son; that the children frequently watched pornographic
movies together, which their parents encouraged; and that the children engaged
in sexual activities together.




Based on this evidence, we
hold that there is not only clear and convincing evidence that appellants
executed the affidavits of relinquishment voluntarily, but there is no evidence
that appellants= execution
of the affidavits of relinquishment was the result of coercion, duress, fraud,
or any other form of wrongdoing.   While
appellants may have been under considerable pressure to make a decision, the
record shows that they were represented by counsel, were aware of the documents
they were signing, and understood the consequences.[34]  Ronald admitted that it was A[his] decision and [his] wife=s decision to go ahead and sign the affidavits . . . based on all of
the advice that [he was] receiving from both of [his] lawyers as well as his
support system@ but that Anow [he] regret[s] that.@  The fact that appellants may
have been faced with potential criminal charges or the removal of their
unaffected children does not prove that the affidavits of relinquishment were
wrongfully procured.[35]  We overrule appellants= third issue.
VI.  Hearing on Motion for New Trial




In their first issue,
appellants complain that the trial court erred by failing to hold a hearing on
their motion for new trial within the statutory time period.[36]  Appellants, however, conceded during oral
argument that the issue was rendered moot because the trial court did, in fact,
hold such a hearing.  We, therefore,
overrule appellant=s first
issue as moot.
 VII.  Conclusion 
Having overruled appellants= four issues, we affirm the trial court=s judgment.         
 
JOHN CAYCE
CHIEF JUSTICE
 
PANEL A: 
CAYCE, C.J.; DAUPHINOT and WALKER, JJ. 
 
WALKER, J. concurs without opinion.
 
DELIVERED: 
May 10, 2007                  
 




[1]B.B.
was nonsuited from this case because she turned eighteen during the pendency of
the suit. 


[2]During
the pendency of this suit, Willie Jean gave birth to another child, also named
J.B., who is not the subject of the suit, and became pregnant with another
child, who is also not a subject of this suit. We will refer to these two
children as the Aunaffected
children.@


[3]See Tex. Fam. Code Ann. '
161.1035 (Vernon 2002) (providing that an affidavit of relinquishment of
parental rights that does not state that it is irrevocable may be revoked
before the eleventh day after the original affidavit=s
execution).


[4]We
abated appellants=
appeal so that the trial court could hold a hearing on appellants=
motion for new trial.


[5]See U.S. Const. amend. XIV.  


[6]See Tex. Fam. Code Ann. '
161.103(e) (Vernon 2006) (stating that the relinquishment in an affidavit that
designates the State as managing conservator is irrevocable but that a
relinquishment in any other affidavit of relinquishment is revocable unless it
expressly provides that it is not).


[7]In re
K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (stating that constitutional
complaints may be waived) cert. denied, 126 S. Ct. 483 (2005); Tex.
Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861
(Tex. 2001) (holding that failure to assert constitutional claim in trial court
bars appellate review of claim).


[8]See
In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000).


[9]Wall
v. Tex. Dep't of Family & Protective Servs.,
No. 03‑04‑00716, 2006 WL 1502094, at *1 (Tex. App.CAustin
June 2, 2006, no pet.) (mem. op.) (holding that parent=s
constitutional challenge to section 161.001(e) of the family code was waived by
the failure to make such a challenge in the trial court); see Doe 2, 19
S.W.3d at 284 (holding that the constitutionality of a statute should be
considered only when the question is properly raised by a party in the trial
court).


[10]Appellants
do not contend that they were in any way prevented from asserting their
constitutional complaint in the trial court.


[11]Wall,  2006 WL 1502094, at *1 (holding
constitutional claim waived when raised for the first time on appeal); see
Kaye v. Harris County Mun. Util. Dist., 866 S.W.2d 791, 795‑96 (Tex.
App.CHouston
[14th Dist.] 1993, no writ) (holding that if not properly raised in the trial
court, court of appeals may consider only fundamental errors of
constitutionality, i.e., errors affecting the court=s
jurisdiction or the general public interest); Dallas Mkt. Ctr. Dev. Co. v.
Beran & Shelmire, 824 S.W.2d 218, 222‑23 (Tex. App.CDallas
1992, writ denied) (stating that the constitutionality of a statute must be
raised in the trial court or it is waived). But see In re D.L., 160
S.W.3d 155, 160 n.1 (Tex. App.CTyler 2005, no pet.); In
re B.S.W., 87 S.W.3d 766, 771-72 (Tex. App.CTexarkana
2002, pet. denied) (both holding that constitutional claims may be raised for
the first time on appeal). 


[12]See,
e.g., Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 1005 (1995); Rabb v. State, 730 S.W.2d 751, 752
(Tex. Crim. App. 1987); see also 43A George E. Dix et al., Texas Practice: Criminal Practice &
Procedure ''
42.253‑54 (2d ed. 2001). 


[13]See
Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)
(stating that jurisdiction consists of the power of the court over the subject
matter of the case, conveyed by statute or constitutional provision, coupled
with personal jurisdiction over the accused, which is invoked by indictment or
information); see also Prater v. State, 903 S.W.2d 57, 59 (Tex. App.CFort
Worth 1995, no pet.) (appellant could raise for the first time on appeal
constitutionality of statute providing mandatory life sentence upon
conviction). 


[14]See
Reyes v. State, 753 S.W.2d 382, 383‑84 (Tex. Crim. App.
1988). 


[15]See
id.; Barnett v. State, 201 S.W.3d 231, 232-33 (Tex. App.CFort
Worth 2006, no pet.); see also Lasher v. State, 202 S.W.3d 292, 298 (Tex.
App.CWaco
2006, pet. ref=d); Webb
v. State, 899 S.W.2d 814, 818 (Tex. App.CWaco 1995, pet. ref=d) (all
holding that a defendant may challenge the constitutionality of a statute he is
charged with violating for the first time on appeal). 


[16]See
Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex. 1969), cert.
denied, 397 U.S. 997 (1970). 


[17]See
Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 220
(1942), cert. denied, 320 U.S. 210 (1943).  Examples of constitutional challenges to
civil statutes that may go to the subject matter jurisdiction of the court
include (1) an assertion that a statute violates the separation of powers doctrine,
Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987) (discussing
separation of powers challenges) and (2) a complaint that a statute violates
the open courts provision of the Texas Constitution.  See Tex. Ass=n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.
1993) (discussing how the open courts provision is a limitation on subject
matter jurisdiction).  In addition, it
has been held that a statute that is unconstitutionally vague is void.  See Grayned v. City of Rockford, 408 U.S.
104, 108, 92 S. Ct. 2294, 2299 (1972).


[18]See
Davis, 168 S.W.2d at 220; Kaye, 866 S.W.2d at 795‑96; Beran
& Shelmire, 824 S.W.2d at 222‑23;  Wall, 2006 WL 1502094, at *1.


[19]In
re  B.L.D., 113
S.W.3d 340, 350‑52 (Tex. 2003) (stating that except for fundamental
error, appellate courts are not authorized to consider issues not properly
raised by the parties and declining to apply the criminal fundamental error
doctrine in parental rights termination cases), cert. denied, 541 U.S.
945 (2004).  In addition, the Supreme
Court of Texas does recognize fundamental error in the limited situations Ain
which error directly and adversely affects the interest of the public
generally, as that interest is declared by the statutes or Constitution of our
State.@ See
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).   Where an alleged error affects the rights of
only particular litigants, as in this case, however, it does not adversely
affect the interest of the public generally and does not rise to the level of
fundamental error.  See Newman v. King,
433 S.W.2d 420, 422 (Tex. 1968) (holding that error affecting a child plaintiff=s
rights affects the rights of only the particular minor and the particular
litigants, does not adversely affect the interest of the public generally, and
does not constitute fundamental error warranting reversal in the absence of
objection); see also Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187,
190-191 (1949) (holding no violation of fundamental public policy in a court=s
judgment of child custody). 


[20]See Tex. R. Civ. P. 11.  


[21]Id.


[22]Gavenda
v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986); see
also Parker v. Poole, 12 Tex. 86, 87 (1854) (A[T]he
general maxim [is] that whatever a man sui juris may do of himself, he may do
by another.@).


[23]See,
e.g., Sw. Bell Tel. Co. v. Perez, 904 S.W.2d 817, 822 (Tex.
App.CSan
Antonio 1995, no writ) (stating that an attorney may consent to a Rule 11
agreement on his client=s
behalf).


[24]Tex. Fam. Code Ann. '
161.001(1)(K), (2) (Vernon Supp. 2006); In re D.R.L.M., 84 S.W.3d 281,
296‑98 (Tex. App.CFort
Worth 2002, pet. denied); In re V.R.W., 41 S.W.3d 183, 190 (Tex. App.CHouston
[14th Dist.] 2001, no pet.), disapproved on other grounds by In re J.F.C.,
96 S.W.3d 256 (Tex. 2002).


[25]V.R.W., 41
S.W.3d at 192; Neal v. Tex. Dep't of Human Servs., 814 S.W.2d 216, 218‑19
(Tex. App.CSan
Antonio 1991, writ denied). 


[26]Tex. Fam. Code Ann. '
161.103 (Vernon Supp. 2006) (listing the information that an affidavit
relinquishing parental rights must contain). 


[27]V.R.W., 41
S.W.3d at 190; In re B.B.F., 595 S.W.2d 873, 875 (Tex. Civ. App.CSan
Antonio 1980, no writ). 


[28]In re
Bruno, 974 S.W.2d 401, 405 (Tex. App.CSan Antonio 1998, no pet.)
(quoting Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.CEl
Paso 1990, no writ)); see also In re N.P.T., 169 S.W.3d 677, 681
(Tex. App.CDallas
2005, pet. denied); D.R.L.M., 84 S.W.3d at 296‑98; Vela v.
Marywood, 17 S.W.3d 750, 758-59 (Tex. App.CAustin
2000), pet. denied, 53 S.W.3d 684 (2001) (all holding that the burden is
on the party opposing the affidavit to show that it was executed as a result of
fraud, duress, coercion, or some other wrongdoing).  


[29]See
N.P.T., 169 S.W.3d at 681; D.R.L.M., 84 S.W.3d at 296‑98;
Vela, 17 S.W.3d at 758-59. 


[30]See
In re L.M.I., 119 S.W.3d 707, 715-16, 720, 739 (Tex. 2003)
(Wainwright, J., concurring), (Owen, J., concurring and dissenting, joined by
Phillips, C.J., and joined in part by Hecht and Jefferson, JJ.), (Hecht, J.,
dissenting, joined by Jefferson, J.), cert. denied, 541 U.S. 1043
(2004).  


[31]See
id. at 715-16, 720, 739 (Wainwright, J., concurring), (Owen, J.,
concurring and dissenting), (Hecht, J., dissenting).   


[32]Id. at
716 (Owen, J., concurring and dissenting) (citing Santosky v. Kramer, 455
U.S. 745, 753, 102 S. Ct. 1388 (1982); Brady v. United States, 397 U.S.
742, 748, 90 S. Ct. 1463 (1970)). 


[33]See
N.P.T., 169 S.W.3d at 680.


[34]See
Lumbis v. Tex. Dep=t of
Protective & Regulatory Servs., 65 S.W.3d 844, 850-51 (Tex.
App.CAustin
2002, pet. denied) (holding that when mother extensively discussed the
consequences of an affidavit of relinquishment with her attorney, the affidavit
of relinquishment was voluntarily signed even though mother was emotionally
upset and believed that she might be able to have post-adoption contact with
her children at the time she signed it). 


[35]Cf.
N.P.T., 169 S.W.3d at 681(Abeing faced with an
unfavorable jury decision does not automatically warrant a finding that the
affidavit of relinquishment was wrongfully procured@);
Bruno, 974 S.W.2d at 402‑03, 405‑06 (holding that affidavit of
relinquishment was voluntarily executed even though mother signed affidavit
while emotionally upset and was afraid of what her family would think).


[36]See Tex. Fam. Code Ann. '
263.405(d) (Vernon Supp. 2006) (providing that a trial court must hold a
hearing not later than the thirtieth day after the date the final order is
signed to determine whether a new trial should be granted).


