*1 post judgment interest rate the trial we it Accordingly,
court. hold has appeal.
waived this issue for We overrule ninth issue.
Marauder’s
Conclusion
We sustain Marauder’s fifth issue to the
extent that it of the complains injunction too
being modify injunc- broad we protection
tion to limit its to Beall. We eighth
sustain Marauder’s issue to the ex- complains
tent $300.00 damages
additional under the Texas De-
ceptive Act. Trade Practices We reverse
the trial judgment respect court’s damages.
the award of the We $300.00
sustain Marauder’s sixth with respect issue attorney’s fees on appeal and reverse attorney’s
and remand the issue of fees to respects, court. all other we
affirm judgment. the trial court’s D.E.H.,
In the Interest of
a Minor Child.
No. 2-07-347-CV. Texas, Appeals
Court of
Fort Worth.
Dec. Gault, Worth, TX,
Marc F. Fort Appellant. *2 Swanda, hospital A supervisor TDFPS visited Kellye & Swanda
Dean Swanda hospital TX, and information from Swanda, P.C., gathered Arlington, Joe Shan- & members, staff, A.H. family friends. and Jr., non, Attorney, District Criminal D.E.H. punching slapping admitted to and Mallín, Sec- Appellate M. Chief Charles back, shaking twisting and leg, her Miloud, Messerli, tion, Meegan As- Shelly multiple her occa- squeezing her and Attorneys District sistant Criminal investigator A.H. admitted to an sions. Worth, TX, Ap- Fort County, Tarrant when he injuries that he caused D.E.H.’s pellee. and control” after became irritated “lost crying night; on about D.E.H. started her, occasions, separate grabbed he three her, punched her in the stom- shook and ENON OPINION BANC reason to accordingly ach. TDFPS found RECONSIDERATION physically that D.E.H. had been believe HOLMAN, DIXON Justice. W. A.H., E.L. and su- by negligently abused E.L., neglected pervised by medically the court en banc majority A ordered by removed both E.L. and A.H. TDFPS prior opin- of the court’s reconsideration custody and D.E.H. from E.L.’s and A.H.’s ion. See P. with- Tex.R.App. 49.7. We care placed care and in foster with opinion judgment draw our of Decem- B.G., Appellees reasoning S.G. and 4, 2008, opinion ber and substitute if re- danger she be in extreme would judgment place. in their parents’ turned to her care. appeals E.L. the termination Appellant pe- its September In TDFPS filed parental rights daughter, to her child, protection tition for of a for conser- single point, argues D.E.H. a she af- vatorship, and for termination suit re- involuntarily executed parent-child relationship. On fecting parental rights to D.E.H. linquishing E.L., September attorney, and that the trial court its discre- abused partic- and a few of E.L.’s members tion her motion for new trial. denying par- ipated in a mediation with the foster We will affirm. ents. relin- E.L. executed an affidavit D.E.H. quishing parental rights D.E.H. born in 2006 to February also point during some mediation. She Appellee E.L. and A.H. Texas Department agree- entered into mediated settlement Family and Protective Services foster which parents, ment with the set (“TDFPS”) received a referral sometime forth a contact schedule post-termination September regarding concern of D.E.H. for her and D.E.H. had physical abuse to D.E.H. taken
been to Cook Children’s Medical subsequently signed The trial court Center, where it was determined that she September terminating order on femur, two each four frac- had fractures to parent-child relationship) between tibia, multiple tures to each rib fractures and D.E.H.1 The trial clear court found healing, a multiple stages of liver contu- convincing evidence that E.L. had exe- sion, and a con- spleen injuries unrevoked or cuted an irrevocable affidavit laceration' — in her sistent child abuse. bone parental family code hip completely snapped provided by chapter area also been 161 of the growth parental off of her termination of E.L.’s plate. relationship par- D.E.H. 1. The trial terminated A.H.’s enl-child court also rights to D.E.H. is in best inter- the trial D.E.H.’s lies court’s termination order.2 appointed per- est. TDFPS as The order She contends that executed the relin- managing manent conservator D.E.H. quishment in exchange for the *3 parents possessory con- and the foster rule 11 foster parents the (the D.E.H. servators of prospective parents) for providing post-termination visits between her and E.L. a for trial filed motion new and D.E.H. E.L. argues that the visitation 4, points appeal notice of of on October is unenforceable its failure first 2007. She filed her amended motion comply to with family code sections points for new trial and notice of of appeal 161.206(b), 161.2061(a), and 161.2062 and later, days listing “points five her of ap- that she would signed not have the affida- peal” as follows: vit relinquishment of “but for the visitation a. by parties Extreme coercion other agreement.”3 Consequently, E.L. argues suit, through to the both promises and that she did not voluntarily sign the affida- threats, was to induce Movant used to vit of she because executed sign relinquishment. the exchange a legally unenforceable placed b. mother great was under promise 11 post-termination rule visi- suit, parties duress other to the —the both agreement. tation threats, through promises and in order sign to induce the affidavit of review, To preserve complaint a for our relinquishment. a party presented must have to the trial c. Fraud was inducement used timely court a request, objection, or motion to convince Movant that she had no that specific states the grounds for the sign choice but to relin- ruling, they desired if apparent are not quishment. from the context the request, objection, 18, 2007, the On October trial court held a 33.1(a); Tex.R.App. motion. P. see also trial, hearing on E.L.’s motion 103(a)(1). Tex.R. Evid. party If a fails
which it denied.
this,
do
error
not preserved,
and
point,
E.L. argues
Dean,
sole
that the
complaint waived.
v.
Bushell
711,
(Tex.1991)
trial court abused its
denying
(op.
discretion
reh’g).
on
for new
complaint
trial
she
appeal
estab- The
be
must
the same
lished
she
voluntarily
presented
that
did not
execute
as that
in the trial court. See
of relinquishment
Garcia,
270,
the affidavit
that
v.
under- Banda
955 S.W.2d
Although
biological
three
ship
parent
lists
"Issues Present-
who filed an
ed,”
single
encompasses
"Point
Error”
voluntary
pa-
each issue.
rights
rental
under Section 161.103 shall
post-termination
have limited
contact with
161.206(b) provides
3. Section
"an
order
(b)
provided by
the child as
Subsection
terminating
parent-child
relationship di-
biological parent
of the
parent
legal
all
vests the
child of
Department
Regulato-
Protective
other,
rights
respect
and duties with
to each
ry Services.
except
right
child retains the
to inher-
161.2061(a).
161.2062(a)
§
pro-
Id.
Section
through
parent
it from
unless the
terminating
parent-
that "[a]n
vides
order
provides.”
court otherwise
Tex. Fam.Code
may
relationship
require
child
a sub-
2008).
161.206(b) (Vernon
Section
sequent adoption
regard-
order include terms
161.2061(a) reads as follows:
ing
post-termination
limited
contact between
If the court finds it to be in the best interest
biological parent.”
the child and
Id.
child,
may
provide
in an
161.2062(a).
terminating
parent-child
order
relation-
.the
otherwise,
D.E.H.;
she would lose
(Tex.1997);
Holloway, 172
v.
Wohlfahrt
“it
[her]
D.E.H.
Although
(Tex.App.-Houston
639-40
denied) (“To
sign
the affidavit
that she
decision”
[14th Dist.]
writ-
eiTor,
less”
what was
on “more or
understood
party’s argument
preserved
therein,
she confirmed
she
argument
its
in ten
comport with
appeal must
mediation,
denied,
court.”),
never
during
549 U.S.
threatened
cert.
“pressured”
felt
830 relinquishment] out of by denying [the motion new discretion will,” trial. signed the affida- [her] own “pressured” vit because she felt courts review a trial Appellate “forced,” and that did not denying court’s decision agreement under “free will.” The lack of discretion trial under abuse standard will,” “pressure,” and the “free Dir., Employees of review. State Workers’ experienced “force” that E.L. testified she Evans, Comp. Div. v. 268 mediation, however, at the not coer- (Tex.1994). A trial court its discre abuses cion, fraud, or duress as identified arbitrary it acts in an or unrea tion when Gaspard, defined above. See 36 S.W.3d at sonable manner or when acts without 234-35; Home, Gladney Edna princi guiding reference to rules or Arnett, 831; 2008 WL *1. ples. Aquamarine Operators, v. Downer Bartholomew, counselor, Norma Inc., (Tex.1985), 241-42 that E.L. was that if testified informed denied, cert. 106 S.Ct. U.S. trial, the likely case went outcome (1986). L.Ed.2d would be that she would have her has shown Once an affidavit been terminated and never that she would see comply requirements of section again. option D.E.H. E.L.’s other was to code, sign the affidavit of may only upon proof, be set aside enter into a rule 11 with the evidence, preponderance of the intervenors limited visitation *6 fraud, as a of affidavit was executed result options, D.E.H. Consistent E.L.’s R.B., duress, In or coercion. re 225 specifically Bartholomew identified the (Tex.App.-Fort 804 Worth S.W.3d pressure experi- source of the that E.L. N.P.T., re 169 pet.); In S.W.3d “losing enced parental rights her 2005, pet. (Tex.App.-Dallas 679 de being again never able to see her child nied); D.R.L.M., In re hope versus some limited denied), visitation for (Tex.App.-Fort Worth the superseded by grounds, on other the life of child until the child was statute (Vernon grown.” [Emphasis Tex. added.] Fam.Code As for the 263.405© 2008); also Tex. see Fam.Code Ann. that purportedly experi- “coercion” E.L. 161.211(c). of proving enced, The burden such testified, Bartholomew “I think wrongdoing party opposing is on the the very frightened her op- [E.L.] about R.B., 225 S.W.3d at affidavit. felt losing tions and she a threat contact child.” [Emphasis with her Al- added.] that she E.L. contends executed affi- though thought Bartholomew there was exchange davit “some degree” coercion based on how agreement rule 11 visitation and that be- (if options explained cause the rule 11 visitation court, case went to E.L. would never see unenforceable, involuntarily she executed again), opined child Bartholomew that relinquishment. At confusion, uncertainty, anguish it was trial, hearing on she experienced that E.L. her lim- weighing “[t]he testified that wasn’t done will,” by options. ited sign own she “didn’t [her] R.B., R.B., adopt adopt did not here. at this court the stan- See suggested concurring (stating expressly dard “we not of review need decide L.M.I., here”). dissenting opinions nor do we that issue Masek, attorney, opined discussed rule 11 James and affi- similarly. He that there was not davit of at length testified with her by attorney, on E.L. pressure undue exerted or less” under- “[m]ore Instead, he at the mediation. tes- stood the anyone “finality signing agree- [the ment],” just very emotional tified and that she with her spoke “[fit’s attor- ney giving up She’s a child. She was about having jury prior time. to the ” Masek, emotional very at the time.... Masek mediation. is fluent in Span- who ish, a “thoughtful spent that E.L. made agreed least half of the mediation decision, decision,” very talking albeit a emotional to E.L. about the affidavit of relin- sign relinquishment. the affidavit of quishment. He interpreted affidavit of her, relinquishment he read it to her at with Bartholomew’s Consistent and.Ma- (some least twice parts twice), more than testimony, E.L. herself identified the sek’s and he went over it with her line line. “pressure” and nature of the source E.L. acknowledged that Masek discussed expe- “force” that she claimed to have meaning of affidavit of feeling at the like rienced mediation as relinquishment and that Masek told her is, out,” any way only “didn’t that it was her sign choice to it or were to options sign the relin- it. E.L. every page initialed of the affida- visitation quishment agree- and the rule 11 vit, and placed her initials every beside and hope to have limited future visi- single line of a paragraph that is written in tation with D.E.H. or trial and take go bold letters and located the end of the parental the chance of having affidavit that states as follows: She as follows: terminated. testified You attorney]: testified [Intervenors’ REALIZE THAT I SHOULD NOT you signed of relin- [the SIGN THIS AFFIDAVIT UNTIL I you Do quishment] under duress. re- HAVE READ AND UNDERSTOOD member that word? WORD, SENTENCE, EACH AND Yes. [E.L.]: PARAGRAPH IN IT. REALIZE
THAT I SHOULD NOT SIGN THIS RELINQUISH- AFFIDAVIT OF attorney]: What does du- [Intervenors’ MENT IF THERE IS ANY you? ress mean to MIND THOUGHT IN MY THAT I Pressure. [E.L.]: MIGHT SEEK SOMEDAY TO attorney]: What kind of [Intervenors’ CHANGE MY I MIND. REALIZE pressure? THAT I SIGN SHOULD NOT THIS anything That I have didn’t [E.L.]: RELINQUISH- AFFIDAVIT OF more to do. MENT IF I AM NOT THINKING Anything attorney]: else? [Intervenors’ ILLNESS, CLEARLY OF BECAUSE I way didn’t have another out. [E.L.]: MEDICATION, EMOTIONAL MY attorney]: That %vasthe [Intervenors’ STATE, OR ANY REASON. OTHER that your pressure, you extent didn’t I BECAUSE REALIZE HOW IM- any tvay your out? Is testi- PORTANT DECISION IS FOR THIS mony? CHILD, THE MY FUTURE OF I [Emphasis Yes. added.] [E.L.]: HAVE PUT MY INITIALS BESIDE Further, E.L. testified the conse- EVERY LINE THIS PARA- OF quences signing the affidavit of relin- GRAPH SO THAT IT WILL ALWAYS her, quishment were THAT I explained BE UNDERSTOOD HAVE which she did pellate argument appeal, OF RELIN- AFFIDAVIT READ THIS IT, do, not abuse its not the trial did QUISHMENT, UNDERSTAND denying TO SIGN IT. for new discretion her motion AND DESIRE trial. that she in the affidavit was E.L. declared parental rights freely relinquishing and affirm point We overrule sole The affidavit states voluntarily. judgment. court’s part as follows:
relevant fully I understand I declare LIVINGSTON, J, dissenting filed a relinquish- meaning of this opinion. finality action in my ment and the WALKER, J., concurring filed this, and, it, understanding all signing in which DAUPHINOT dissenting opinion voluntarily, and freely, signing am JJ., GARDNER, join. that this deci- the firm conviction alternative for is the best available sion Justice, LIVINGSTON, TERRIE my [Emphasis added.] child. dissenting opinions on en banc family members were Three of E.L.’s reconsideration. participated mediation and present throughout Repeatedly Masek, According to a certain extent. E.L., appellant, hearing, new trial testified did it relin- [W]e [review signed not have the affida- would slowly. stop. would quishment] We required vit of judge was judge And the there. if she mediated settlement ... so would also— spoke Spanish, promised known visitation would say, of back off and we we would kind reason, respect- For this continue. rest for a little while and would kind of fully plurality opinions dissent to the talk. went really would It family rehearing resulting judg- en banc slowly. ment. also to E.L. that rule explained Masek between The Law and that it
only her and the intervenors take not “a that we could contract “Implicit in the code is the re testimony, the end court.” Towards quirement voluntary said, line, my it was deci- “[B]ottom voluntarily relinquishment be executed.” sion.” (Tex. D.R.L.M., re *8 2002,
Bartholomew’s, denied), Masek’s, su App.-Fort pets. and tes Worth experi perseded by grounds, statute on Tex. timony clarifies that did other (Vernon fraud, coercion, contem or duress as Fam.Code Ann. ence 263.405® 161.211(c). 2008). involuntarily by family code section An executed affidavit plated 234-35; a a Gaspard, complete 36 S.W.3d at Edna defense to termination See 831; Home, solely at decree on an affidavit. Gladney 677 S.W.2d Ar based such 1912058, nett, 17 Marywood, *1. E.L. Id. v. (citing 2008 WL at failed Vela S.W.3d 750, 2000), pet. by preponderance (Tex.App.-Austin of the 759 de to demonstrate (Tex.2001)). nied, The pro evidence that her execution of the affidavit 53 684 S.W.3d relinquishment ponent voluntary in for an of the affidavit relin exchange al by promise quishment re has the burden to establish legedly legally unenforceable fraud, duress, convincing that the affi from or coercion. clear and evidence sulted in with was executed fam Assuming preserved ap that E.L. had davit accordance
833 looked favor on the in ily analysis 161.103. Tex. Fam.Code L.M.I. code section D.R.L.M., (Vernon 2008); adopt but it unnecessary, declined 161.103 V.R.W., (citing 41 at 296 In re 84 S.W.3d Supreme States Court The United has 183, (Tex.App.-Houston [14th S.W.3d 190 held that the Due Process Clause Vela, pet.), no and 17 S.W.3d Dist.] requires Fourteenth Amendment 758). Previously, we recognized at irrevocably before a state can sever the voluntary an that evidence that affidavit of rights parent, aof the evidence of notarized, wit signed, grounds at for termination must least be nessed, compliance and executed clear convincing. Accordingly, and prima facie code section when the basis for termination is an D.R.L.M., validity. See 84 evidence of its of relinquishment, there must opponent at The of the affi S.W.3d be clear and convincing evidence that only may upon proof, davit set aside was knowing, intelligent, waiver evidence, preponderance of voluntary. fraud,
affidavit was executed as a result of
L.M.I.,
(Owen, J.,
S.W.3d at
119
716
con-
duress,
Id.
Fam.
(citing
or coercion.
Tex.
(citation omitted);
curring
dissenting)
161.211(c)(Vernon 2008)).
§Ann.
Code
R.B.,
225 S.W.3d
804-05.1 Neither our
however,
nor
Recently,
this court
noted
in R.B.
the Dallas court
has
specifically adopted
N.P.T.
way
Supreme
a shift in the
the standard
some Texas
unnecessary
disposi-
ter
because it was
justices
Court
would handle reviews of
upon a
to the
tion of
cases—both
held that
challenge
minations based
those
courts
of the
relinquish
proponent
voluntariness of an affidavit of
affidavit would have
R.B.,
been
ment.
225
804
successful under either standard.
See In re
R.B.,
805; N.P.T.,
In
225 S.W.3d
(Tex.App.-Fort
pet.).
Worth
however,
Here,
R.B.,
court S.W.3d at 680.
the an-
supreme
we noted that
reason,
swer is less clear. For
we
opined
“has
that both the burden
stan
proof
setting
adopt
dard of
aside an affidavit
should
L.M.I. standard
pro-
case
that all
parents’
should be ‘reformulat
to ensure
due
”
L.M.I.,
protected;
plurality
cess
are
ed.’
Id.
In re
(citing
denied.,
(Tex.2003),
opinion
rehearing
on
en banc in this case
cert.
541 U.S.
(2004)).
proof
fails to shift
burden of
back to
S.Ct.
at 715-16 en concurring), plurality *9 (Owen, J., concurring and 739 has waived dissenting), appellant banc also states (Hecht, J., on it not dissenting)). According complaint appeal to her R.B., comport we trial presented L.M.I.—and likewise in which at and does not however, R.B., did, agreement plurality supreme 1. We indicate with the in L.M.I. See N.P.T., acknowledg- Appeals's (citing of & In re the Dallas Court 805 n. 33 (Tex.App.-Dallas ment in N.P.T. that "there is considerable denied)). applying" proposed merit in the standard preserved conclude and hold that E.L. complaint presented trial. any she on the of her affi- opinion challenge the re- to voluntariness particular, plurality appellant hearing en banc contends davit. and mediated raise the Rule 11 not
did comply failure to of Voluntariness of Affidavit agreements’ Evidence settlement See Tex. at trial. with the code Furthermore, plural- the explained as (Vernon 161.2061(a) § Ann. Fam.Code banc, appellant ity opinion rehearing on en 2008). However, could not appellant ob- signed two at the end the documents actually saw that ject complain or until she settlement conference: mediat- mediated completely of Termination failed the Order agreement and an ed settlement attached of the incorporate the terms mediated to properly agreement, Rule 11 which were Rule agreement the or settlement part as of the record in the termi- filed D.R.L.M., into it. See proceeding. nation The mediated settle- could (holding at 297 mother not agree- Rule 11 ment and the court the involuntari- pleaded have trial clearly provide appellant’s post- ground the ness of affidavit on daughter. termination visitation with her required believed the trial court was to she Additionally, the that it agreements state managing follow her choice of conservator agree- intent of parties is the the to right therefore had not waived chal- be under ments shall enforceable sections affidavit). There- lenge voluntariness of Family 6.602 and 153.0071 of the Texas fore, clearly brought the issue the Code, provide both of which en- practica- court’s attention as soon as trial forceability judg- agreements such A review of amended motion for ble. (Vernon ments court. See id. reporter’s record from new trial (Vernon 2006), Supp.2009). § 153.0071 for new trial hearing the motion agreements clearly contemplate The also clearly what occurred. show more preparation documents to additional new trial at- The amended motion for par- agreements require effect the clearly the sole basis quite tacks cooperation preparation ties’ future in the appellant’s termination: affidavit of relin- and execution such documents. More- challenges The quishment. motion over, appel- throughout hearing affidavit, voluntariness fundamen- trial, appellant motion for con- lant’s granted prerequisite tal for temrination tinuously repeatedly testified this solely on See Tex. Fam.Code basis. complaint, objection: main without (2) (Vernon 161.001(1)(K), Supp. not signed she would 2009). The relin- voluntariness of gone relinquishment and would have complaint. sole quishment appellant’s given prom- she had been if claims coercion broadly see right ises continuous “through promises and threats” to induce daughter visit future. relinquish- appellant sign the affidavit of example, beginning For of her at the ment, along with in the inducement fraud examination, appellant direct testified appellant to convince objection, “The wasn’t without choice but to the affidavit. While it by my agreement, own will. The I done not mention the settlement does mediated me, whether they did it because told specific agreement’s comply failure to not, Code, they going my or to take Family signed it were provisions Texas threats, continued, “[Tjhey clearly rights.” mentions And told promises, Therefore, that with paper, says me about the being fraud involved. would *10 cion, parents] the or me her appellant therapist neither called the paper, [foster to made,” stand, plan again the we appellant could break who telephoned said redirect, again, And objection. during without her the actual process mediation testified, appellant believed] “[I “very was distressed” and go- settlement] [mediated “pressured” the mediated settle- ing going place to be held. It was to be in or losing risk seeing professional forever.” The licensed coun- child forever. Her therapist, spoke who that appellant selor testified believed “she Spanish, appellant said that had a difficult would be allowed to see her child for the understanding time English, especially in life because had rest there been a system. terms of the or legal Ulti- judge who overseen mediation.” mately, therapist’s opinion, appellant signed the agreement thought because she
Moreover, the mediated settlement it was irrevocable and would ensure her agreement says that the parties ap- will lifetime visitation. present in court “to evidence pear judgment rendition of secure accordance greater Of even testimony concern and that “EITHER PARTY [it]” caseworker, specialist who, the CPS ENTITLED SHALL BE TO JUDG- on direct examination the assistant dis- THIS AGREEMENT MENT ON UN- attorney during trict pro- the termination DER THE PROVISIONS OF SECTION stated, ceeding OF THE OR SECTION 6.602 Q And your understanding it’s TEXAS FAMILY CODE.” a Relinquishment has executed [E.L.] the lack supporting Further of voluntari- Rights? Parental ness, that appellant the record shows A Yes. non-English She was not speaking. pro- Q your knowledge, And in it interpreter prior hearing vided to the signed freely voluntarily? trial, although on the motion for new Yes, A it was. Department’s tidal counsel and the case- Q Did the Department promise [E.L.] However, Spanish-speaking. worker were anything relinquishment? signing reading
a careful record shows— problems promises with this help even obvious A No were made. [Empha- —the language with the barrier and sis added.] counsel’s ability inform or appellant. examine technically While this was a correct re- Appellant rely had to what attorney sponse Department because the was not told because she could not understand signatory to the mediated settlement people saying they
what were when testi- agreement or agreement, the Rule 11 at appellant fied. The record also shows that the very misleading least the statement is in terminology, had numerous difficulties court; ignores actuality legal and both otherwise. negotiations settlement Rule example,
For appellant parents testified on the foster between mother, cross-examination that no despite Department’s one read the clear Relinquishment English knowledge entire Affidavit of the basis for the settlement. “Well, me, they explained her: it to for new arguments but final the motion telling hearing, attorney it wasn’t read to me.” No one was the Depart- being what was ment even was not misled appellant asked said said that “[E.L.] during promises in the questions hearing. believing any given And in into were support pressure her claim of or coer- her Department point. from
836 1, 2009, January Justice William C. mediation On part We were 2, Meier in to Place Senior was sworn we were not in that proceedings vacated seat. previously Justice Holman’s Thus, Depart- while the her.” room with Thus, participated also Justice Meier upon Affidavit of rely ment wants motion rehear- ruling on the court’s for termi- the basis Relinquishment as required by en as the rules. See ing banc rights, it is un- parental nation Tex.R.App. granted P. 49.7. Our court very at the recognize even willing to oral the case for and resubmitted permanence was about the least she misled 1, 2009, then April but argument on adoption after an of the visitation jus- composed eight was en banc court importantly, more complete. was And tices, justices.3 seven regular instead of Department’s tes- would conclude that the of a is disfa En banc consideration case court at the hear- before the trial timony 41.2(c). P. It Tex.R.App. vored. See incom- for new trial was ing on the motion necessary be “unless reasons, should not ordered all plete at best. For these uniformity of the secure or maintain sufficiently that E.L. submitted would hold extraordinary court’s or unless decisions showing lack of voluntariness evidence require” (emphasis it. circumstances Id. Relin- in the of the Affidavit of execution added). There have been several different execution of the medi- quishment interpretations of what extraor constitutes ated Rule settlement circumstances, dinary Su but the Texas agreement. 11 acknowledged appel has
preme Court right late courts have the “consider a En Banc Review require case en if the circumstances banc initially was filed in our court This case to do so.” See Wal- the court votes 10, 2007; it was submitted on October Stores, Miller, Mart Inc. v. 1, justices April on 2008. panel of three 706, (Tex.2003); Unifund, n. 1 see also 708 panel plurality opinion original Villa, 385, v. CCR Partners by Justice Dixon Holman on De- authored 2008) (Marion, Antonio (Tex.App.-San 2008; 4, justice the chief concurred cember J., dissenting) (stating, “when there is no while I opinion without dissented decisions, panel the exis among conflict the trial court’s opinion to denial ‘extraordinary tence circumstances’ Appellant filed a motion for new trial. required may before en banc consideration banc December rehearing rev’d, motion for en on added)), (emphasis be ordered” appellant Ellis, At the time filed her (Tex.2009); 2008. parte Ex S.W.3d 92 en this court rehearing motion for banc (Tex.App.-Austin (observ jus- (Henson, composed J., was still of the same seven granted) dissenting) Cayce, tices: Justice Dau- ing Chief Justices for en banc review must be that need Holman, Walker, Gardner, McCoy, phinot, with court’s mandate to do sub balanced hear myself. justice On December Jus- stantial and to accelerated time, mandatory practicable tice Holman reached retire- matters at the earliest 41.2(c)); citing Tex.R.App. P. 31.2 and ment.2 41.2(a) Appellate Procedure appointed 3. Texas Rule of Holman to sit Justice participate requires partici- case to hear and court’s all members of rehearing en banc motion for justice originally decision pate, prior who well as pending. while the motion was See Tex. 41.2(a). Tex.R.App.P. heard the case. 41.2(a). R.App. P. *12 Cuellar, Rodriguez v. 263- of voluntariness in the execution of the (Tex.App.-San Antonio de affidavit because terms of the mediat- nied) C.J., dissenting) (Lopez, (complaining settlement agreement ed and Rule 11 opinion en majority granting of banc re agreement were properly incorporated not degree of the of “high public view because into the Order on Termination agreed, ... uniformity interest and maintain of and that we retain should and ensure the decisions,” the impropriety the court’s application of the clear convincing bur- majority of en banc review because the of proof den proponents of the disagreed with result “simply affidavit in conformity the L.M.I. plu- reached”). majority panel rality. Therefore, I would hold that the trial court abused discretion in its denying “plurality opinion” “appellate A is trial, appellant’s motion new reverse without opinion enough judges’ votes to order, the termination and remand this a majority, having constitute but received Thus, case for a new trial. I respectfully of of greatest number votes dissent to the result in this case for those Garner, Bryan filed.” A. opinions A Dic- reasons and also because there is no ma- (1987) tionary Legal Usage Modem jority or opinion even plurality en added). (emphasis “Majority” is “a num- banc case. ber that more than half of a total.” (9th Law Dictionary Black’s ed. WALKER, Justice, SUE concurring and 2009). Thus, opinion today we issue dissenting opinion enon banc majority opinion not a even really reconsideration. opinion; merely plurality majority it is thus judgment, ultimately justifying en For below, the reasons set forth agree I submission, banc we something could not with the dissenting opinion that E.L. pre- have known at the time voted go we en served her appellate complaint that her banc. affidavit of relinquishment was not execut- voluntarily; ed from dissent the plurality plurality opinion The final on rehearing opinion’s But, holding contrary. following: en reflects the jus- banc four because I believe that mediated settle- preserved that appellant tices believe ment entered into the par- at trial complaint appeal regarding and on is, fact, enforceable, ties legally concur the voluntariness of her signing affida- with the plurality opinion’s holding that relinquishment, justices vit of and four be- the trial court did not abuse its discretion However, lieve did not. because three by denying E.L.’s motion new trial. (those justices joining the concurring and dissenting opinion) appellant also believe attorney, and her both of the foster has other remedies available to her to parents attorney, and their and the attor- rights, justices join enforce seven in ney ad litem all signed for D.E.H. a medi- only. the judgment ated settlement agreement. The mediated settlement agreement complies with the
Conclusion requirements code section Therefore, I appellant 153.0071(d), would hold that binding making par- on the timely properly preserved agreement. com- ties to the See Tex. Fam.Code 153.0071(d) (Vernon plaint 2009). as to the voluntariness the affida- Ann. Supp. vit by raising issue When a mediated settlement trial, her motion requirements of- meets section 153.0071(d), fered sufficient evidence to show the lack party “a is entitled to judg- agree- post-termination post- vided her with the mediated settlement ment on notwithstanding Rules Texas adoption visitation D.E.H. E.L. now Procedure, or another rule Rules Civil par- complains appeal that because *13 153.0071(e). § of Id. law.” un- agreement purportedly legally ties’ is enforceable, fraudulently she was induced body parties’ of the mediated settle- The executing relinquish- of into affidavit simply boiler- agreement ment contains ment. plate concerning the enforce- provisions it contains no ability agreement; of agree plurality opin cannot Instead, the specific agreed terms. medi- ion’s E.L. did not raise conclusion that agreement states ated settlement appellate complaint in the trial court. out in of the settlement are set “[t]erms expressly code authorizes agreement.” to Exhibit ‘A’ attached this parent attack a ter pursue to direct on agreement, At after the the end par mination that on order is based provision PARTY UNDER- “EACH voluntary of relinquishment ent’s affidavit AND STANDS AGREES THAT THIS on the in the of ground of fraud execution REVOCABLE,” IS NOT
AGREEMENT
of
id.
relinquishment.
See
is a handwritten notation that
the “at-
161.211(c) (Vernon 2008).
§
The Texas
parties.”
agreement
tached Rule
is
of
Supreme
numerous
of
Court and
courts
A
“Rule
three-page document
titled
appeals
recognized
rep
that a
false
to
Agreement”
attached
the mediated
continued,
right
post-
resentation of a
agreement.
agree-
The rule 11
settlement
biological
visitation
to a
termination
made
incorporated
ment attached to and
encourage
parent
parent
that
agreement
mediated settlement
also
signed by
parties.
voluntary relinquishment
all the
That document
an affidavit of
See,
agreed-upon
outlines the
terms of the
v.
e.g., Rogers
constitutes fraud.
post-termination
Searle,
(Tex.1976)
post-adoption
and
visita-
544 S.W.2d
tion of D.E.H.
E.L.1
(recognizing
proceeding
bill of 1'eview
misrepresentations
that fraudulent
induc
Following
of
the execution
the mediated
ing
voluntary
re
execution
agreement
incorporating
settlement
fraud);
linquishment constitute extrinsic
an
agreement,
rule 11
E.L. executed
affi-
Dep’t
Regulatory
v. Tex.
&
Jones
Protective
voluntary relinquishment,
davit of
relin-
(Tex.
vs.,
492-93
parental rights
quishing
to D.E.H. The Ser
denied)
(same);
App.-Austin
pet.
subsequently signed
trial court
an order
Queen
Goeddetz,
terminating
parental
v.
931—
solely
D.E.H. based
her affidavit of 32 (Tex.App.-Beaumont
pet.)
voluntary
relinquishment.
(same);
S.A.B.,
See
id.
In re
No. 04-01-00795-
161.001(1)(K)(Vernon
2009).
§
Supp.
CV,
1573431, at *3 (Tex.App.-
2002 WL
denied)
17, 2002,
July
San Antonio
E.L. filed a motion for
trial
new
(not
(same).
designated
publication)
at the
testified
hear-
complaint
Because E.L.’s
appellate
ing
signed
the affidavit
voluntarily sign
she did not
the affidavit
voluntary
relinquishment
reliance
is, exactly,
argument
provisions
agreement,
of the rule 11
which
signed
involuntarily
the affidavit
incorporated
parties’
into the
mediat-
fraud, I re
agreement
pro-
ed settlement
which
because of
example,
if
forth
misses
For
sets
visi-
two consecutive visits
D.E.H.,
provides
contact
tation “after the child turns 3" and
all
for E.L. shall cease.
161.206(b)
plurality
spectfully
opin notwithstanding
dissent from the
sections
(the
that E.L.
holding
preserve
ion’s
failed
provisions
161.2062
E.L. claims make
complaint.2
mediated
legally
settlement
unenforceable).
(Ver
161.206(b)
See id.
plurality
concur with the
nonetheless
2008) (providing
non
that termination or
opinion’s
appeal
of this
disposition
parent
der divests
child
legal
of all
parties’
settle
I believe that
mediated
inheritance);
rights except
right of
the rule
child’s
incorporates
(Vernon 2008)
agreement providing
post-termi
II
(providing
post-adoption
visita
nation
continued
“may
require
termination order
that a
*14
by
legally
of
enforce
tion D.E.H.
is
subsequent adoption order
terms
include
able,
by
to the
taken
the
contrary
position
regarding
post-termination
limited
con
by
dissenting
and
the
plurality opinion
tact”);
Roberts,
354,
Beyers v.
199 S.W.3d
opinion.
family
expressly pro
The
code
(Tex.App.-Houston
2006,
358-59
[1st Dist.]
that, when a
settlement
vides
mediated
denied)
pet.
(holding section 153.0071’s
agreement
requirements
meets the
of sec
“notwithstanding any
provision
other law”
153.0071(d),
party
“a
is entitled to
tion
the
meant that
trial court
could enforce
the
settlement
judgment on
mediated
agreement providing
mediated settlement
11,
agreement
Rule
notwithstanding
Tex
joint
managing conservatorship with no
Procedure,
Civil
or
as Rules of
another
of
designation
right
conservator who had
See
rule
law.”
Tex. Fam.Code Ann.
primary
determine child’s
de
residence
153.0071(e)
added). Here,
(emphasis
the
153.133(a)(l)’s
spite
requirement
section
agreement
mediated settlement
meets the
designation);
for such
see also In re
153.0071(d).
requirements of section
Con L.M.M.,
809,
(Tex.App.-
247 S.W.3d
811-12
sequently,
par
both E.L.
the foster
and
denied)
2008, pet.
Dallas
(enforcing medi
ents,
parties
to the
settlement
mediated
agreement
custody
ated settlement
in child
agreement,
judgment
are “entitled to
dispute);
generally, e.g.,
see
In Mar
re
agreement
the mediated settlement
not
(Tex.
riage
Joyner, 196 S.W.3d
withstanding Rule
Texas Rules of Civil
denied)
App.-Texarkana
pet.
(recog
Procedure,
another
law.”
or
rule
See
nizing
enforceability
absolute
of mediated
added).
(emphasis
“Notwithstanding
id.
agreements).
settlement
Procedure,
Rule
Texas Rules of Civil
Moreover,
means,
holding
parties’
that the
me-
plain
another rule of law”
its
agreement
diated settlement
language, notwithstanding another rule of
enforceable
code,
is,
set
the family
provisions
law
forth
is not inconsistent with the
plurality
position
opin
[Biological
taken
out
affidavit]
the
of context.
moth-
threatened,
argument
coerced,
appellate
ion—that "E.L.'s
that she
or defraud-
er]
voluntarily sign
did not
the affidavit
signing
relinquish-
because
physically
ed
the
into
the Rule 11
is unenforceable is not
signed
time
ment affidavit. At
she
the
the
argument
involuntarily signed
affidavit,
that she
[biological
did not know
mother]
fraud,
because
post-adoption plan
that the
was unenforcea-
duress,
expressly
or coercion”—has been
re
thus
ble and
had no reason to believe that
jected
Mary
Vela v.
a similar case. See
would not
her child.
have access to
wood,
(Tex.App.-Austin
[Biological
testimony cannot be
mother's]
denied,
2000),
(Tex.2001).
Finally, sections terminating pa generally
deal orders 153.0071(d) rights
rental while section specifically with mediated settlement
deals principle A fundamental agreements. Tammy HOWLETT, Appellant, spe more statutory is that a construction v. general controls over a more cific statute at 359 Beyers, (citing one. COUNTY, Appellee. TARRANT Auld, v. Corp. Healthcare Horizon/CMS No. 2-07-373-CV. (Tex.2000)). gov The provides general ernment code Texas, of Appeals Court construed, if specific provisions should be Fort Worth. both, but when possible, give effect to 3, 2009. Dec. reconciled, specific pro be they cannot Id.; prevail. Tex. Gov’t vision should (Vernon 2005).
Code although parents point also sec- parents point that while a ter out 3. The foster out (as 161.206(b) adop- opposed biological parent to an termination decree tion divests decree) require post-termination, cannot "innately accompany- tion legal rights and duties adoptive post-adoption because the visitation ing parent-child relationship” it does not visitation, parents permit cannot be forced to biological parent divest a contractual nothing prohibit adoption would an decree negotiated biological parent by the including between the from those set in the mediated settle- such as forth parent biological adoptive parents and the agreement here. permitting post-adoption fos- visitation.