*1 In the Interest of L.M.I. and J., joined part in and con- Wainwright, J.A.I., minor children. part opinion. separately with curred
No. 02-0244. Owen, J., part and dis- concurred Phil- opinion in which part sented in Supreme of Texas. Jefferson, C.J., joined, and Hecht and lips, Argued Feb. 2003. JJ., joined part. 18, 2003. Sept. Decided Hecht, J., opinion dissented with Denied Dec. Rehearing Jefferson, J., joined. which *2 McCumber,
ber, League City, Cagle & Petitioner. Hewitt, III, Christine L. Man-
Otto D. Fisher, Martin, City, Emily Texas A. gle, Galveston, Fisher, Respon- Garza & dent. the Court’s
Justice O’NEILL delivered the Court as opinion of judgment, and the II, IVA, I, in which Justice to Parts SCHNEIDER, ENOCH, Justice Justice SMITH, and Justice WAINWRIGHT Part III and joined, opinion as to and an ENOCH, IVB, Justice in which Justice SCHNEIDER, joined. and Justice SMITH Ricardo Dueñas years ago, Almost four signed sworn Sylvestre and Luz Inocencio voluntary relinquishment affidavits twin parental rights their to five-month-old time, placed they boys. At the same Mon- and Monica boys in the care of Miles adopt them. couple wanted to tegut, a who to tod- from infants boys grown have in the pre-school age children dlers to has taken its Monteguts’ care as this case ju- through our excruciatingly slow course Inocencio system. dicial Dueñas and since the be- represented by counsel been set the affidavits ginning quest of their opinions illus- today’s aside. As fractured trate, greatly has been appellate review focus hampered by shifting, indistinct the case has complaints although of their — year, we still pending for more than a been complaints are disagree about what In this preserved. and whether context, rules adhering preservation to our interests nicety; the isn’t a mere technical to relax rules important are too at stake As we re- purpose. a critical that serve said, poten- “[ajppellate review of cently to a presented tially error never reversible Legisla- would undermine the trial court finality Houston, dual intent to ensure Luisa ture’s Casey, Maria Shawn resolution.” Mercado, Galveston, expedite their M. McCum- these cases Kathleen B.R.D., In re B.L.D. and 113 S.W.3rd (Tex.2003); see also Tex. Fam.Code April fifteen-year-old Inocencio 161.211(a) § (prohibiting direct or collater- gave prematurely boys, birth to twin
al attack on
terminating parental
order
J.A.I., allegedly
L.M.I. and
fathered
*3
rights based on
relinquishment
affidavit of
twenty-five-year-old Ricardo Dueñas.
months).
after six
Injecting any greater
married or
Dueñas
Inocencio were not
uncertainty and complexity
pro-
into the
living
point
at
together
the time. At some
cess would
discourage poten-
serve to
birth,
boys’
before the
be-
Inocencio had
adoptive parents,
tial
already
who are
acquainted
City police
come
with Texas
Goetschius,
turning
simpler
expensive
Brian
less
for-
detective
who had re-
eign adoptions
sponded
report
to a
that Inocencio was
in record numbers. See
Armas,
working
sexually
as a nude dancer at a
Many
Genard C.
U.S. Parents
oriented business. Detective Goetschius
Look Abroad to Adopt, Census Bureau
advice,
began offering Inocencio occasional
Says,
22, 2003,
Aug.
avail-
HeRAld,
Miami
sometimes at her mother’s behest. After
http://www.miami.com/mld/miami
able at
learning of her pregnancy, Goetschius
herald/2003/08/22/news/nation/6591007.
drove
ap-
Inocencio to several doctor’s
htm;
büReau,
United States Census
Unit-
pointments
helped
apply
gov-
her
for
Depaetment
CommeRce,
ed States
of
ernmental assistance. Five months after
Adopted
StepchildREN:
2000-11
ChildRen
born,
sister,
boys
Inocencio’s
2003).
(Aug.
Gonzalez,
Esther
contacted the detective
Here, after hearing evidence regarding
asking
help
for
in placing the children for
the circumstances surrounding the affida- adoption. Eventually, Goetschius and his
vits’
interests,
execution
boys’
and the
best
wife, Dawnell, arranged for the children to
the trial court ordered termination of Due-
adopted by
be
Monica
Miles Monte-
nas’s and
parental rights.
Inocencio’s
gut,
Dawnell’s sister and brother-in-law.
appeals
of
affirmed.
explained the affidavit who Ciavaglia advised her not to testified petition argues Duenas’s review sign if she had reservations. Inocen- terminating that “the order [his] affidavit, initially cio refused to signa should be set since [his] aside changed adoptive but her mind after the affidavit ture on parents agreed pictures send her *4 procured in a [his] manner that violated about the twice boys’ information condition review process rights.” Upon due further a Dueñas year. After both Inocencio and record, Dueñas we that conclude affidavits, signed respective their left trial preserve in the failed this issue Ciavaglia with boys the to be surrendered counterpetition His answer court. Monteguts. to the termination cite no consti proceedings the authority, tutional not raise and he did later, days change a few Inocencio had any post-judgment issue motion. pursue of heart and decided to action legal fact, only to the constitution reference to regain custody of children. On Due- appears in the entire record when 1999, 1, filed their Monteguts October continu attorney, nas’s for a arguing petition to terminate rela- parenVchild ance, recently explained that had she tionship. The same the trial court day, told been hired after Duenas’s coworkers temporary issued a the Mon- giving order probably him that the termination “was Three teguts custody the children. Due- right.” not constitutional not later, to re- days Inocencio filed a motion merely “Revocation of Affidavit” nas’s 17,1999, voke her affidavit. On November Relinquish that “[t]he states Affidavit Monteguts’ Dueñas filed his answer to the The was not for me.” ment translated petition counter-petition and a for volun- obviously a due trial court did not discern He motion to tary paternity. also filed a process challenge argument, in Duenas’s affidavit of relinquishment. revoke his court found that specifically because the 23, 1999, On November the trial present[sic] issues “RICARDO DUEÑAS hearing a on the to revoke held motions fraud, duress, overreaching affidavits to determine whether deny that Affidavit his Father’s Af- involuntarily. were executed affidavits was Relinquishment Rights of Parental witnesses, testimony hearing ter from nine voluntarily.” Mary signed Vela v. See trial court found the affidavits wood, (Tex.App.-Austin 17 S.W.3d also voluntarily executed. The court (Tex.2001) denied, pet. S.W.3d found that Dueñas was not the children’s “the word (noting that common law father, presumed legal par- and that the omission, to an or con ‘fraud’ refers ... relationship not exist at the ent-child ... duty in breach legal cealment of a Dueñas of relin- time his affidavit another injury the breach when causes trial found quishment. court further of an and unconscien- taking or the undue convincing clear evidence advantage”)). tious in the children’s interest to termi- was best Dueñas, represented who nate Duenas’s Inocencio’s counsel, no raised sought finding The court Duenas’s and rights. ordered
7H
of a
convincing evidence
not clear and
argument before the trial court about
legal
119 S.W.3d
statutory
for reversal.
ground
that Dueñas
a constitutional claim. Given
dissenting); 119 S.W.3d
evidentiary
an
J.
was afforded
extensive
at 730
(Hecht,
(Owen, J.,
argu-
At oral
dissenting).
affida
on the voluntariness of his
at 716
hearing
disa-
vit,
ment,
attorney expressly
from the context
apparent
it was not
Duenas’s
his affidavit did
attempting
to raise a due
any argument
that Dueñas
vowed
Rules of
process challenge.
comply
Under our
statute:
Procedure,
party
present
must
Appellate
making
you
Are
also
JUSTICE OWEN:
motion,
timely request,
to the trial court a
it doesn’t
statutory argument
grounds
objection,
specific
state the
the statute?
comply with
Tex.R.App.
therefor,
ruling.
and obtain a
it relates
ATTORNEY: As
DUENAS’S
above,
appel
allowing
P.
As noted
3B.1.
him,
any statutory
made
ar-
I’ve not
unpreserved
would
late review of
error
gument.
Legislature’s intent
undermine the
was due
only argument
Your
OWEN:
terminating parental rights
expe
be
cases
process?
“
resolved,
‘[p]romot[ing] the
ditiously
thus
Yes.
CASEY:
and thus
child’s interest
a final decision
*5
entirely
was
consistent
That concession
”
placement in a safe and
home.’
stable
states the
briefing,
Duenas’s
which
with
B.R.D.,
re B.L.D. and
ing signing: at the affidavit B.
Q: you How did informa- receive the Moreover, assumption the dissenters’ from Ricardo tion Dueñas? relationship mere biological that Duenas’s “rights, him funda- with the twins afforded verbally. CIAVAGLIA: asked him magni- mental and constitutional their Q: And was he able to understand noted, As we have questionable. tude” you relay asked him the infor- what the trial court found that Dueñas was not mation? father, presumed and that Due- the twins’ He CIAVAGLIA: seemed to be. He relationship boys legal ñas had no English seemed understand and re- signed Due- at the time he the affidavit. sponded questions. man, ñas, a twenty-five-year-old admits name, Q: you When asked for his a fifteen- that he fathered sons twin respond with give his name correct — incapable legally child who year-old name, a detail of his you or did he write relationship. Due- consenting to sexual How did he it out? do it? relinquishing ñas *7 it, pronounced He and I five months af- parental rights CIAVAGLIA: more than name, I just birth, wrote it. As last living wrote his boys’ ter the while he was spelled loud; it out and he acknowl- woman. Until he filed a counter- another that was edged (five correct. days petition paternity in this case hearing, the scheduled termination before And Gonzalez testified that after Dueñas relin- signing two months after the almost affidavit, told him in En- she affidavit, more than seven quishment you. glish, you doing “Thank What are is gave after birth to the months Inocencio very courageous.” her She then asked twins), steps took no to establish Dueñas translate, interrupt- to mother but Dueñas Moreover, rights. Dueñas did unnecessary. ed and told mother it was full request a of the relin- translation Moreover, there was Dueñas evidence that affidavit, there was quishment though even working a chef years had been four nothing prevent doing him from so and spoke only English. Although Due- who proceedings that the would affect he knew ñas testified a translated coworker do so directions, boys’ future. His failure to could may chefs the trial And there interpreted as Duenas’s tes- be disinterest. have found self-contradicted little, if timony English that he af- that Dueñas contributed understood evidence 714 importance of the fa support daily “[T]he care.1 tection....
any,
boys’
to the
in
strongly suggests
relationship,
that Inocen-
the individuals
The record
milial
complete
cio’s mother had assumed almost
society, stems from
volved and to the
twins,
responsibility for the
and it is undis-
that derive
the emotional attachments
named
puted that she had moved to be
association,
intimacy
daily
from
managing
boys
their
conservator. The
plays
‘pro-
role it
and from the
public
through
receiving
assistance
in
through
of life’
mot[ing] way
point
program,
and at one
there
WIC
as well as from the
struction of children
support
attempt
was an
to obtain child
relationship.”
fact of blood
through
attorney gener-
Dueñas
from
248, 261,
2985, 77
463
103 S.Ct.
U.S.
al’s office.
(1983) (citations omitted) (em
614
L.Ed.2d
Supreme
has made it abun-
added).
Lehr,
phasis
In
the Court held
biological
dantly clear that a man’s mere
never es
putative
that a
father who had
relationship with a child is insufficient
relationship with
a substantial
tablished
upon
protected liberty interest
confer a
adop
to notice of
his child was not entitled
Robertson,
v.
the Court
him.
Lehr
proc
as a matter of due
proceedings
tion
explained:
265,
2985. This
ess.2 Id. at
103 S.Ct.
developed
The difference between
too,
Court,
long recognized
has
impli
parent-child relationship
father
putative
interest a
constitutional
Illinois,
405 U.S.
Stanleyl v.
cated
acceptance of
may
stems from his
claim
645,
1208,
92
31 L.Ed.2d
551]
S.Ct.
to the
legal
“the
and moral commitment
Caban, Mohammed,
380,
441 U.S.
99
[v.
family,”
biological
a mere
rela
not from
1760,
po
and the
297]
S.Ct.
60 L.Ed.2d
K.,
168, 171
tionship.
In re
535 S.W.2d
Quilloin
relationship involved in
tential
907,
(Tex.1976),
denied, 429
97
cert.
U.S.
549,
Walcott,
246,
434 U.S.
98 S.Ct.
[v.
273,
(1976); see also
715 however, to lost, unnecessary resolve parental rights if the father of tence or is soon appeal. his to demonstrate he is fit and unable responsibilities parent- committed to the of pre- Inocencio agree I Maria if the father has ‘taken con- [or not] hood issue that for review the exe- served our opportunity to to be grasp crete actions relinquishment cution of her affidavit of ”) In re (quoting Adoption a father’ involuntary by the coer- was rendered (La.1990)). B.G.S., 545, 556 So.2d 550 cion, deception undue influence and individuals, including her certain sister V adopt persons seeking the to the and the theories on Dueñas Because which Accordingly, legal sufficiency twins. a seek to reverse court of Inocencio the review of issue Inocencio raises is the appeals’ judgment presented were never I the result required, agree court, preserved the trial were not point. writing on this Justice Owen’s our Accordingly, review. we affirm the appeals’ judgment. court of my express I write con separately in this case. At cern about another issue a Justice WAINWRIGHT delivered trial, represented Inocencio concurring opinion. relinquishment set the affidavit aside, proof by she burden of a had the concurring Justice OWEN delivered a preponderance of the evidence show dissenting opinion, joined by Chief coercion, that it was as a result of executed Parts, as to all Justice PHILLIPS duress, fraud, influence, undue deception, joined by Justice HECHT and Justice overreaching. appeals Some courts JEFFERSON as to Part III. parent likewise held that the who a dissenting Justice HECHT delivered relinquishment executed the has opinion, in which Justice JEFFERSON prove by preponderance the burden joined. not executed vol evidence that was WAINWRIGHT, very concurring. untarily Justice order to avoid serious See, e.g., In consequences of its execution. I join affirming the Court court of (Tex. 281, D.R.L.M., re 296-298 84 S.W.Bd However, appeals’ judgment. join only 2002, denied); App.-Fort pet. In re Worth I, II, sections and IV.A. of Justice O’Neill’s V.R.W., 183, (Tex.App. S.W.3d writing concerning judgment Ricar- 2001, pet.); no [14th Dist.] Houston Cole appeal, do Duenas’s and section VII of Smallwood, man v. 800 S.W.2d writing concerning Justice Owen’s writ). (Tex.App.-El Paso judgment on Maria Inocencio’s appeal. Owen, today applying ap- holds a different The Court that Ricardo Justice under preserve proach, requirement Dueñas failed the issue he cites the Family presented pro- the Texas Code our review—that Constitution and proof, affidavit of that the based on curement of his ultimate burden evidence, convincing remains subsequent pa- termination of his clear to terminate the party seeking rental constituted violation of his with that, right recognizes under ab- process parental rights. to due the United She *9 evidence, a trial court could States Because failed to sent other Constitution. preserve relinquishment affi- peti- the sole issue raised in his base termination on tion, ap- disprove burden If affi- determining proof davit. the burden plicable parents in this to his affidavit davit at trial remains 716
circumstance,
as stated
gard,
commonly
Inocencio at
it differs from affidavits
trial, then
statutory
proceedings,
the constitutional and
used
other civil
such as
containing
affidavits
factual
requirements would be
assertions
violated.
support of a motion or brief. As a waiver
“voluntarily”
maintain that where a
interest,
constitutionally
of a
protected
an
executed relinquishment affidavit is the
affidavit of relinquishment must be a vol-
ground
parental
sole
for termination of
untary, knowing, and intelligent act.2 The
161.001(1)
rights under section
of the Fam-
Supreme
United States
Court has held
Code,
ily
placing
par-
the burden on the
that the Due Process Clause of the Four-
may
ents
set aside the affidavit
run
requires
teenth Amendment
that before a
afoul of
statutory
constitutional and
man-
state can irrevocably
rights
sever the
of a
proof
quantum
dates
the burden of
and
parent,
grounds
the evidence of
for termi-
necessary
paren-
evidence
to terminate
nation
at
must
least be clear and convinc-
briefed,
rights.
tal
This issue was not
nor
ing.3 Accordingly, when the basis for ter-
expressly
itwas
decided in the courts be-
relinquishment,
mination is an affidavit of
low.
convincing
there must be clear and
evi-
appeal
Inocencio’s
is unsuccessful under
knowing,
dence that the waiver was
intelli-
approach.
either
Accordingly, it is not
gent,
voluntary.
In the case before us
necessary to decide
this issue
this case.
today,
convincing,
there is no clear and
legally sufficient evidence that material
OWEN, concurring
Justice
parts of
signed
the affidavit Dueñas
dissenting, joined by Chief Justice
disclosed to him
that he in
and thus
actual-
PHILLIPS, Justice
HECHT
Justice
ity
agreed
swore to and
to be bound
joined
JEFFERSON
in Part III.
affidavit.
I dissent from the judgment terminating
signed
The affidavit that Dueñas
was
parental
Ricardo
rights.
Duenas’s
Al-
entirely in English.
disputes
No one
though I agree that Dueñas did not raise a Dueñas,
citizen,
a Honduran
was unable to
process
court,
due
issue in the trial
English.
accordingly
read
The evidence is
process complaint
therefore no due
confined to
what was said to Dueñas
preserved
appeal,
underlying
Duenas’s
English
Spanish
about the affidavit.
complaint is that
there is no clear and
evidence, however,
There is no
that Due-
convincing, legally sufficient evidence that
spoken English
nas’s command of the
lan-
of relinquishment
guage was such that he understood what
knowingly
voluntarily
and thus
execut-
him in
language.
was said to
ed. An affidavit relinquishing
Court concludes that the trial court could
constitutionally pro-
is a waiver of a
have surmised that Dueñas understood
tected,
liberty
“fundamental
interest of
English
more
than he and others said he
care,
parents
all,
natural
custody,
in the
But
could.
a surmise is no evidence
management
convincing
of their child.”1 In that re- much less clear and
evidence.4
Kramer,
745, 753,
256,
J.F.C.,
(Tex.2002);
Santosky
1.
v.
455 U.S.
102
re
266
4.In
96 S.W.3d
1388,
(1982).
Pritchard, P.C.,
S.Ct.
dence
at
parental rights is
issue.
an
of relin- nation of
proof of
irrevocable affidavit
fact,
being
such affidavit
quishment.
has
appeals
court of
At least one Texas
termination,
for
alleged grounds
one of
case, “[w]e
parental
in a
termination
said
affidavit must be established under
appel-
interpret
biological mother’s]
[the
He
thus com-
proof.”
that burden of
is
her
voluntariness of
on the
late attack
that
no
and con-
plaining
there was
clear
suffi-
challenge
legal
as a
affidavit
vincing
support
finding that
evidence to
a
support
trial
ciency of
evidence
voluntarily
knowingly
his affidavit was
finding.”10
presumed voluntariness
court’s
executed.
pre-
that
similarly
I would
hold
Dueñas
in this
legal sufficiency challenge
a
served
Certainly,
could
more
Dueñas
have
Court.
bringing
clearly articulated that
was
legal sufficiency challenge in this Court.
support
holding
its
that error
To
“magic
his
is not
But
failure
use
words”
quotes counsel
preserved,
not
this Court
Supreme
fatal.
United States
said, in
Dueñas
Inocencio when he
for
analogous
in an
has said
context:
argument,
to a
at oral
response
question
his clients have not contended
generic
Fourteenth
reference
comply with the Fami-
the affidavit fails to
preserve
Amendment is not sufficient to
response to the
ly Code.11 But counsel’s
an un-
a constitutional claim based on
argument
at oral
does not amount
question
provision
Rights,
identified
of the Bill of
admission,
statement,
less an
to a
much
by
authority
but
this case the
cited
sufficiency of
evidence
legal
that the
petitioner and the manner in which the
the affida-
supporting the voluntariness of
been de-
right
fundamental
issue has
not at
vits is
issue.
scribed
Illinois
by
and understood
appropriate
courts make it
to conclude
Duenas’s
Accordingly, I would decide
question
that the
was suf-
constitutional
complaint
there
petition based on his
’
ficiently
presented
the state
well
legally
sufficient evidence that
support
jurisdiction.6
courts to
our
execution of the
knowing
voluntary.
and thus
Similarly, as Justice Hecht’s
dissent
out,7
points
long
this Court has
held
Ill
(now
pre-
points
points
“issues
error
review”8)
only basis
terminat-
made
The trial court’s
arguments
sented
relinquish-
liberally
ing
rights
in briefs will
“to
Duenas’s
was the
be
construed
just,
parent
signs such
equitable adjudica-
fair and
ment affidavit. A
who
obtain
surrendering rights protect-
We
rights
litigants.”9
tion
an affidavit
Constitution.12
particularly
be
careful to avoid dis-
ed
United States
should
has
overly
Supreme Court
missing
arguments
substantive
The United States
9,
D.R.L.M.,
281,
400,
Illinois,
Taylor
n.
84 S.W.3d
297-98
6.
v.
484 U.S.
406
10.
In re
2002,
646,
denied).
(1988).
pet.
(Tex.App.-Fort
798
108 S.Ct.
98 L.Ed.2d
Worth
732-33.
7.
made clear that tarily “[w]aivers of constitutional executed. But the constitutional17 rights voluntary statutory18 must be but must requirement knowing, intelligent be acts done with suf- rights cannot be terminated unless ficient awareness of the relevant circum- grounds for termination are established stances and likely consequences.”13 We convincing necessarily clear and evidence recognized likewise that a waiver of means that proof the ultimate burden of constitutional must voluntary, be based on convincing clear and evidence *13 knowing, intelligent, with full aware- party seeking remains with the to termi- ness of legal consequences.14 the parental rights.. nate the end, Legislature
To that has enacted There has been among some confusion requirements parent’s to ensure that a vol- our appeals courts of about the burden of untary relinquishment of his her rights or proof relinquishment when an affidavit of to a child is indeed voluntary and is done challenged. appeals is The court of knowledge with full rights of the that are Neal v. Department Texas Human Ser- of being relinquished “[bjecause legal conse- correctly vices recognized that quences. A may trial court terminate a very voluntary nature of a relin- parent’s rights if the by court finds clear quishment parental rights, of ... im- it is and convincing parent evidence that plicit in language of section 15.03 that executed “an or unrevoked irrevocable affi- such an affidavit be executed voluntari- 19 davit relinquishment parental rights of ly.” correctly And the court that case provided by chapter.”15 Among as this reviewing ap- observed that a court must things, other the affidavit must contain “a ply the clear convincing standard of parent statement in- has been proof part as of its review of the evidence formed and duties” and to determine whether an affidavit was vol- a statement that the re- untary:
vocable, irrevocable, or a irrevocable for the trier of required "When fact is period stated of time.16 make a finding by made clear and [sic] evidence, convincing appeals the court of presented When a trial court is an insufficient point will sustain an evidence that, face, affidavit on its meets the re- of error if the fact finder could not 161.103, quirements of section the affidavit have that the reasonably found fact was prima proof itself is facie that it was know- convincing established clear and evi- ingly and voluntarily executed. Absent dence. evidence, any other the trial court could Having all of the
base termination on such an
If a
reviewed
evidence
affidavit.
affidavit,
parent
the record
the clear and
challenges the
the burden
under
convinc-
produce
parent
ing
proof,
evidence shifts to the
standard of
we conclude that
come forward with evidence that the affi-
the record before us does not contain
davit
not knowingly
quality.
and thus volun-
evidence of that effect and
States,
742, 748,
769,
Brady
Santosky,
13.
v. United
397 U.S.
U.S. at
rights affirmatively found based on clear pro- convincing parent parental that each termination evidence voluntarily. private an interest affected is ceedings,
had executed
affidavit
The
risk
from
commanding;
trial court did not
to find that Due-
of error
us-
fail
ing a
is sub-
knowing
preponderance
nas’s or Inocencio’s affidavit was
standard
stantial;
ap
countervailing govern-
voluntary,
which would have been
J.F.C.,
(Tex.App.-San
39.
at 266.
41. 974
405
Anto-
In re
S.W.3d
S.W.2d
pet.).
nio
D.R.L.M.,
298;
40.
at
In re
In re
84 S.W.3d
Vela,
V.R.W.,
193;
whether for termination evidence Supreme tary. which the Court referred as the
“factfinding” stage,59 the vital interest IV preventing requires erroneous termination a clear and “But un- convincing standard: case, presented In this Dueñas evidence unfitness, proves parental til the State affidavit, that that he could not read the parents child and his a vital interest share English language his command of preventing erroneous termination minimal, provisions very and that critical Thus, relationship. their natural at the Spanish. him were not translated for into factfinding, the interests of the child and evidence, In clear and the face of this what parents his natural coincide to favor use convincing there from which evidence was error-reducing procedures.”60 court could have found that Due- trial knowingly intelligently ñas surren-
In
today,
the case before us
the children
parental
rights
dered his
with sufficient
parents
and their
a vital
likewise share
awareness of the relevant circumstances
in preventing
interest
erroneous termi-
likely
and the
Section
consequences?61
error-reducing procedure
nation. The
re-
Family
Texas
requires
161.103 the
Code
quired by
Supreme
the United States
relinquishment
that an
state
affidavit
in Scmtosky
by
Legis-
the Texas
parent
pa-
that the
has been informed of
Family
lature
section
Code
161.001(1)(K)
rental
and duties and
whether
may
court
not ter-
is
revocable, irrevocable,
or irre-
affidavit
parent’s rights
minate a
unless it finds
period of time.62
vocable for a stated
grounds
clear and con-
termination
convincing
evidence is
What clear
vincing
ground
evidence. The sole
for ter-
apprised of these
there that Dueñas was
mination in this case
the execution of
voluntarily relinquished
matters
then
relinquishment.
affidavits of
Unless and
all
rights?
convincing
until there is clear and
evidence
knowing
that an affidavit was indeed
Goeddertz,63
Queen
The decision in
v.
voluntary,
lawfully
termination
oc-
cannot
briefing
in his
in this
cited
Dueñas
cur.
Court,
case,
In
fa-
is instructive.
relinquishing
that an ther executed an
again,
suggest
Once
do not
parental rights so that his wife’s new hus-
appears
affidavit that
on its face to have
places
properly
adopt
cannot constitute
band could
the child.
two
been
executed
affidavit,
there
on the
handwritten additions had
convincing
clear and
evidence when
challenge
is no
to the affidavit. But when
been inserted that said
un-
subject
biological
father’s
there is evidence that the affidavit was not was
right
derstanding that he would have the
voluntary, all the evidence must be consid-
The court
ered to determine whether there is clear
to visit the child each month.64
States,
742,
760,
("At
U.S.
Brady
61. See
United
59. Id. at
of held that with Ricardo any communication not had and that the voluntariness unenforceable I cannot on one because one thereby negated.65 [Dueñas] was of the affidavit fluently Spanish.” converse case, as can be seen from the this attorney Monteguts’ for the paralegal evidence, that “he Dueñas understood wit- Spanish, and she understood some anymore.” father going wasn’t to be the the affidavits when nessed all events is not the same as an understand- But that through- testified that signed. She visit longer that he would no be able to ing “Never said a process, Dueñas: out the children, telephone his or take them or actually to what was regard word.” With functions, or attend school game, a ball Dueñas, paralegal testi- translated Furthermore, indeed, again. see them Due- mother told fied that Inocencio’s never told undisputed that Dueñas was ñas: sixty was irrevocable for that the affidavit (cid:127) time, his chil-
days during and that giving up his “That he was adopted by people he did not dren could be children, long- and that he will and that all ties he had with the know And that responsible for them. er be it, children would be severed. you through, that’s once this is all know.” characterizes the evi- Because the Court (cid:127) just saying that his father-he “She’s surrounding Duenas’s execution of dence any- to be the father going wasn’t affidavit, I look helpful his think it is more, up rights. giving that he’s itself, dis- the evidence as Justice Hecht’s telling him.” That’s what she says that the sent has done. (cid:127) him or not Q. did she tell whether trial court could have made its own deter- “So opportunity an mination about the extent to which Dueñas he would have change undis- his mind later?” English spite understood puted testimony that Duenas’s command “No, A. she didn’t.” English language extremely limit- out,67 points Hecht’s dissent As Justice directly con- reasoning ed. The Court’s say witnesses that Dueñas when various most, trary precedent. to our At the trial “understood,” have meant they could not suspicion could have had a about the all of what was that Dueñas understood proficiency in the En- extent of Duenas’s seven-page, single-spaced contained glish language. legally But that is not him. translated for document that no one evidence, particularly sufficient when affidavit are contents of the The extensive proof convincing burden of is clear and Hecht’s dis- in Justice set forth verbatim Gonzalez, who is Ino- evidence.66 Esther sent. respon- largely cencio’s sister and who was submitted notes that Dueñas adoptions, said un- The Court arranging sible contradiction, the trial court Paternity “I a Statement and without equivocally that Dueñas verification said in which the Spanish, so I cannot com- am not fluent So, Paternity.”68 if the Statement had “read municate with him [Dueñas].... by any But there is no contention to be told to him. anything, it would have evidence, this parties, much less my would have to be My mother and sister 730. 67. 119 S.W.3d at Id. at 932. S.W.3d at 712-13. supra 68. 119 66. See note 1.
Statement was not translated into Spanish ing relationship to establish a closer for Dueñas. his children. The record contains no clear and con- VI vincing evidence that Dueñas understood As additional grounds terminating by that signing Relinquish- the Affidavit of parental rights, Monteguts Duenas’s put him, ment before his children could be alleged petition in their in trial court adopted by strangers and he could never actually that Dueñas had constructively or again any have contact with them. To the Monteguts abandoned the children. The contrary, overwhelming the evidence is request did not court to the trial make Spanish, Dueñas was never told in findings fact or conclusions of law re- read, only language speak could he claims, garding these and the trial court aspects about material made none. The trial judgment court’s as signing. to Dueñas was based on his affidavit relinquishment. Monteguts
y court, argued in trial the court of appeals, or this Court that trial court response A word in suggestion judgment should have based its on addi- opinion concurring Justice O’Neill’s grounds. According- tional or alternative Dueñas rights waived his constitutional as ly, there are no further issues to be re- parent by failing a to maintain a closer solved the trial in the current suit relationship with the is in twins order. parental rights. to terminate Duenas’s The trial court found that legal par- “[t]he relationship ent-child between [Dueñas]
and the children did not exist at the time VII of the signing of the Father’s Affidavit I agree terminating that the order Ino- Relinquishment Rights.” of Parental That parental rights upheld, cencio’s should be is not a finding legal parent-child that a I disagree but with Justice O’Neill’s con- relationship did not exist thereafter. The opinion curring that none of Inocencio’s findings trial court’s same reflect arguments preserved appeal. Paternity, Dueñas filed a Statement of Inocencio framed the issue this Court which was executed challenging the of her affi- voluntariness after relinquishment affidavit. The record davit as follows: the order termi- “Should attempting nating parental also clear that Dueñas was [Inocencio’s] MARIA’s set aside the relinquishment rights signa- affidavit. be set aside since MARIA’s The trial court further found that ture on the affidavit of trial, time of procured Dueñas Inocencio had her ex- change married one another. There is evi- and unen- also for ‘small kindnesses’ relationship dence that Dueñas had promises some forceable which constitute undue with his children. He took overreaching them to receive influence or as matter of provided monetary argues medical care and some in her brief that Detec- law?” She Goetschius, support, although conflicting policeman there is evi- tive who was also brother-in-law, Monteguts’ dence as to the amount and extent of that first came support. But no has suggested, one ever into contact with her when she had “been suggesting, dancing there is basis for trouble with the law for at a strip underage.” Dueñas is not the father of the children or states club while She parental rights by he waived his fail- that she met when Detective Goetschius *21 they are carry day when part arguments her statement as “taking he was However, a dif- ille- merits. alleged analyzed of her on their investigation his official in further asserts her affirms gal activity.” majority She of the Court ferent peaked interest in MARIA regard brief: “His appeals’ judgment with court of pregnant out that she was Inocencio, when found differing reasons. albeit advice, began giving her and thereafter suffi- legal that Inocencio’s I conclude taking appointments her to doctor’s sustained. challenge should not be ciency contacting her mother.” She asserts: Detective Goet- regarding The evidence as distinguish line was ever drawn to “No toward Inocen- “small kindnesses” schius’s capacity as a acting to when he was disputed, on her is cio and his influence ... and when he was police professional fact could have trier of but a reasonable brother-in-law, acting [Mr. on behalf of his not they firm formed a belief Montegut].” Inocencio to unduly or influence induce that, as a matter of argues Inocencio testimony her There was sign affidavit. law, Detective Goetschius’s conduct discovered Detective Goetschius that after influence or over- amounted to undue pregnant, he took her Inocencio was reaching. It from Inocencio’s clear how her appointments and asked doctors’ briefing challenging legal that she is Inocencio’s mother going. pregnancy supports sufficiency of the evidence that first learned that when Goetschius said voluntarily finding the trial that she court’s pregnant, he asked both Inocencio was an affidavit of executed adop- they thought had them whether that the affidavit was not finding and the people money he knew tion and said fraud, duress, procured by or coercion. baby. Both Inocencio who would want For the discussed above Part reasons however, Goetschius, testified III, establish, does Inocencio not have adoption about spoke generally once law, volun- as a matter of that she did not he had told her and that Goetschius relinquish- tarily sign her affidavit of and it had been adopted one of his children ment.69 She must establish that there coun- experience, but that he never good legally insufficient clear and convinc- baby up adoption. give seled her to her support trial court’s ing evidence present when the affi- Goetschius was parental rights termination of her based this evi- reviewing davit was executed. her error of law on the affidavit. Nor did dence, reasonably trial court could regarding her burden lead the trial court the firm belief that Goetschi- have formed error, discussed or this Court into as also during her with Inocencio us’s contact III. above Part discus- single general their pregnancy and or failed to Inocencio has not waived did not influence Inocencio adoption sion of challenge. preserve legal sufficiency her affidavit. opinion is concurring Justice O’Neill’s in this Court argues Inocencio also A ma- contending otherwise. mistaken Ciavaglia, Mark Detective Goetschius correctly concludes jority of this Court adoption attorney for the Monteguts’ sufficiency challenge legal that Inocencio’s 162.025 of the violated section proceedings, reviewed on its merits should be by acting as inter- Family Texas Code70 summarily This should not be dismissed. without private adoption in a her mediaries majority disagrees over whether same § supra III. 70. Tex Fam.Code 162.025. 69. See Part whether, unenforceable, being Chapter licensed in accordance with if affi- Inocencio’s fraud, 42 of the Texas Human Resources Code.71 procured by davit was duress testimony There was nei- the trial that coercion. Inocencio cannot now ask this *22 ther Children’s Protective Services nor a Court to resolve that issue. private adoption agency was involved in reasonably The trial court could any way in Monteguts’ attempted firm formed a belief or conviction that adoption of the twins. But there is no voluntarily Inocencio executed the affida- evidence that the absence of a licensed relinquishment.72 clearly vit of Inocencio adoption agency influenced Inocencio’s de- signing understood what she was sign cision to her relinquish- affidavit of likely consequences aware of the exe- ment. cuting Viewing the evidence affidavit. troubling More argument is Inocencio’s light most favorable to the trial only agreed sign she her affidavit findings, court’s hold that would there is Monteguts promises after made sufficient, legally convincing clear and evi- writing updates photo- to send her support finding dence to the trial court’s graphs of the periodically children and to of her Inocencio’s execution affidavit give gifts allow her to to the children voluntary and not through Ciavaglia. Inocencio now con- fraud, duress, the result of or coercion. promises
tends that those are unenforcea- Accordingly, judgment I concur in the ble, and that because she conditioned her regard with to Inocencio. prom- execution of the on those n n nn n ises, fraudulently she was sfc ¾: induced to However, the affidavit. Inocencio never reasons, For the I concur that foregoing argued in the trial court agree- that the appeals’ judgment the court of should be Further, ment was unenforceable. But I affirmed as Inocencio. dissent Monteguts position have never taken the judgment from the that terminates Due- agreement is unenforceable or parental rights. nas’s do not intend it. Ino- to honor in- cencio never asked the trial court to HECHT, joined by Justice Justice finding clude sort of about the enforce- JEFFERSON, dissenting. ability agreement in the termination Court, case,” laments the “has “[T]his request order. Nor did she the trial court excruciatingly taken slow course its to include in the order a directive that the judicial system.”1 Lamenta- through our Monteguts provide were to her periodically bly, a little more than a third of the excru- fact, pictures update. and an In just And ciation has been in this Court. when the Monteguts’ attorney ques- first fault is it that whose fault is that? Whose agreement tioned Inocencio about the decide days this Court has taken 524 pictures updates, send her own attor- course, Why, parties’, this case? objected “I ney subject, stating, to the says could be to really the Court. Who else don’t see that it’s relevant very Not us. tried our issue of fraud and The trial court blame? We’ve duress.” best, “appellate great- but review has been was never asked to rule on whether the fo- Monteguts’ promises ly hampered by shifting, were enforceable or indistinct § 42.001 1. Ante at 708-09. 71. Tex Hum. Res.Code etseq. (Tex. 96 S.W.3d 266 See J.F.C., In re 2002).
731
way
technical
Well,
be terminated some
complaints”.2
well. The
can
cus of their
arguments.
their
having to address
without
problem.
facts here are a bit of a
We
rights termination
decided six
rank as
I believe must
Then
what
Term,3
took, respectively,
cases last
be
statements to
among the most bizarre
days,5
days,6
days,7
540
days,4
387
Court, the
opinion
in an
from this
found
opin-
days,8
days9
and 646
to issue an
really trying
what it is
says that
discourage foreign
ion in each.
none of the three cases
is:
do
this case
This,
warns,
is a
week,
weeks,
the Court
adoptions.
eight
that the Court took a
society,
on our
and for
mounting plague
longer
and seventeen weeks
to decide than
*23
look no further
than a
proof one need
“appellate
it took to decide this case was
Miami Herald.
story in last month’s
hampered” by poor
... greatly
review
case, poorly
this
briefed
goodness
Thank
briefing.
did,
all,
along when it
and that
came
com-
disagree
still
about what the
“[W]e
decision until the Miami
delayed
we
our
plaints
they
pre-
are and whether
exposé.
If we hadn’t
turned
Herald’s
served”,
the Court moans.10 And here
away
poor briefing,
for
parents
these
must
again,
disagreement
the fault for our
adoptive parents would have
telling where
par-
expen-
squarely
“simpler
all fairness be laid
at the
and less
go
had to
11procedures in the future.
only
If
been
sive”
briefing
ties’ feet.
had
better,
the Court’s decision would have
says that this case is about
The Court
prompt
been
and unanimous. But before
procedure.
argue
can’t
on
appellate
You
this,
taking the Court’s word for
the read-
don’t raise in the trial
appeal
you
what
may
parties
er
wish to know that the
have
simple.
all the
Happens
court. Pure and
filed
of
pages
about 88
briefs and motions
bad,
when
really. Especially
time. Too
Court,
reporter’s
in this
record of the
is cer-
children are at stake. The Court
one-day hearing
parents
the trial court is 328
who
tainly
unsympathetic
unjustly
have
de-
pages,
pages.
and the
claim that
been
clerk’s record is 117
Absolutely
prived
their children.
not.
told,
of
All
the record and briefs would not
helped, that’s all.
Just can’t be
take
one of our
clerks
than
law
more
is,
day
half a
to master. Truth
the Court
aside,
respect, and all nonsense
With
knew
what the issues were
this case
procedure
appellate
this case is not about
the time it
from
was filed. What
certainly
It is
not about discour-
delay.
disagreed
has
than a
about for more
foreign adoptions.
It is about
aging
are,
year
par-
is not what the issues
but wheth-
from their
process
taking
children
ents,
legal sys-
the Texas
parents’ rights
er these
in their children
and it is about
K.N.R.,
2. Ante at 708-09.
5.
3.
read, argument, makes no broader or that “just, fair equitable adjudication” April Sylvestre Luz Maria Ino- *25 parental rights his can be made if the core cencio, 15, age gave boys. to birth twin complaint he has made since he was sued Dueñas, 25, She contends that Ricardo age ignored. is The same is true for Maria. father, was their and he admits he was.
To order that Ricardo and Maria were not married until children be taken from parents their and in given year. to others is a later Detective Brian Goet- grave responsibility. To do it schius a solely investigated report for had a that Maria, technical reasons of appellate procedure, as it turned out—had been minor— regard without for parents’ arguments, dancing strip joint,16 at a and when he Watts, 694, (Tex. Co., 14.Holley gante.”); v. 629 S.W.2d 696 v. Pool Ford Motor 715 S.W.2d 1982); Bouchet, Ry. 629, accord (Tex.1986) ("We Texas Mexican v. 632-633 look 52, (Tex. 1998) ("Courts 963 S.W.2d 54 should error, wording points at the of the of but to rules.”); liberally briefing construe Anderson argument point under each to determine Gilbert, 783, (Tex.1995) v. 897 S.W.2d 784 party.”). as best we can the intent of the ("Courts briefing are to construe rules on liberally.”); Khalaf, Williams v. 802 S.W.2d TexR.App. ("The 55.2(f) P. statement of an 651, (Tex.1990) ("It practice is our point covering issue or will be treated as points liberally construe of error in order to subsidiary question every fairly that is includ- adjudicate justly, fairly equitably and ed.”). rights litigants. policy of the We have a of error,’ ‘permitting points 'liberally broader 43.251(b) ("A person § 16. See Tex Penal Code rules,’ briefing relaxing construing and person employs, commits an offense if the ‘past rigorous wording requirements as authorizes, (1) or induces a child to work: in points justice.” of error' in order to do sexually activity; a oriented commercial or (citations omitted)); Sterner v. Oil Marathon (2) any place permitting, of business re- 686, Co., (Tex. 1989) (”[I]t 767 S.W.2d requiring questing, or a child to work nude or practice liberally points our to construe topless.”). just, equita error in order to obtain a fair and adjudication ble liti- wife, event, prevailed was he over all. Maria pregnant, learned she and Dawnell, took a in her. personal interest to a office in Texas agreed go lawyer’s Gonzalez, sister, age older Esther Maria’s City within the hour and surrender her 33, college graduate, deplored a Maria’s told it children. Esther her that would be lifestyle and that Maria could not decided well, necessary agree for Ricardo to as so properly. care her sons Maria and for a way they stopped gasoline on the at boys staying with Esther and Maria’s station, telephoned Maria Ricardo at Pruitt, mother, Septem- Guillerma on work Galveston and demanded that he 1999, 2, be petitioned ber Guillerma him join angrily losing her. told She conservator, managing named their sole twins all his fault. apparently agreement. Nev- with Maria’s ertheless, September on Esther called Ricardo, a native Honduras with tem- help ask Detective Goetschius to for States, porary residence the United adoption. A or placing day the twins for working as a cook a hotel restaurant. later, told so the Goetsehiuses Esther En- speaks He and understands little brother-in-law, Dawnell’s sister and Moni- is no can glish, but there evidence willing to Montegut, ca and Miles would be English; Spanish his lan- read write adopt boys. Maria’s proposed guage. He first heard of September On Esther went to Guil- adoption Maria called him at work when had home and announced that she lerma’s September 24 that he and demanded “great arranged news”: had for Maria she immediately accompany leave her to give adoption very up her sons He lawyer’s says, office. Maria Maria, day. certainly This was news agree, that was told that if he Guillerma men- since this was the first Esther had prosecuted cooperate failed to he would be news, it, “great” tioned but was not statutory rape.17 Esther and others her furiously up refused to give Maria lawyer’s deny office present at the says sons. Maria that she and Esther made. Ricardo any threats were ever fought. Maria says Esther was emotional *26 office, lawyer’s with rode Maria that at but soon calmed down and saw first and they where met Guillerma Maria’s adoption her Maria boys. was best for brother, Solomon. say threatened Guillerma that Esther juvenile having proceedings Maria with for Ciavaglia, had been lawyer, Mark as if did not danced nude a minor she earlier in the Montegut Miles by retained cooperate. says Esther Guillerma that had court Ciavaglia week. been truancy proceedings her threatened 24, upon his morning September for having kept not Maria school. Guil- met with mes- return to his office he was says lerma that she and Maria feared what that insisting sages from Miles Esther they if happen would to them resisted He adoption day. papers signed be adoption, and and Maria were like that she Maria, Ricardo, up papers drew while animals”, sheep “caged slaugh- “like Guillerma, Esther, Solomon, ba- ter”. threat- Esther maintains she simply ened no one and that calm bies waited his office. reason (1) 22.011(a) person younger person § a than ‘Child’ means See Tex. Pen.Code ("A (2) person spouse inten- years age commits an offense if the ... is of the who not pen- tionally knowingly: (2) or causes (A) person ‘Spouse’ a who actor. means organ of a of the ... female sexual another.”). etration legally married to ....”); ("In 22.011(c) § section: child this Ciavaglia prepared appointed guardian an affidavit entitled ad litem for Relinquishment “Father’s Affidavit of of Maria because she was a minor. The rec- Rights” sign. Parental for Ricardo to guardian ord does not reflect that the filed How much Ricardo understood of the sev- an for Maria. answer en-page, single-spaced vigor- affidavit is On November trial was set for a ously disputed. The affidavit was not read later, week on November 22. On Novem- in English Spanish, Ricardo but Cia- an original ber Ricardo filed answer vaglia paraphrased parts briefly of it acknowledged paternity. which he At- asked Guillerma to translate for Ricardo. tached to the answer was his verified Ciavaglia’s paralegal, who understood Affidavit”, “Revocation of in which he stat- Spanish it, speak some but could not testi- of Relinquishment ed: “The Affidavit fied that Guillerma told Ricardo that attorney not translated for me.” Ricardo’s signing up the affidavit he was giving his reiterated this statement in a motion for his children but did not tell him day continuance filed the the case was change he could not his mind later. Guil- At hearing called trial. on the mo- lerma testified that all told she Ricardo day, tion trial the same counsel told the sign was to the affidavit. There is no court: evidence Ricardo was able to read the affidavit or that he did read it. He My basic meritorious defense aside from sentences, it and initialed several one of [having only days prepare six (or stated,
which apparently incorrectly my speaks fact that trial] client not): perhaps English, was not translated the affidavit I sign realize that should this affidavit relinquishment. basically He was if I am not thinking picked up place employment [in illness, clearly medication, because of Galveston], taken to a in Tex- law office state,
my emotional or any other reason. if City, you as and told don’t this added.) (Emphasis document, you the detective will take prison and that was all that was told to Ciavaglia attempted then to obtain Ma- They him. translate the affida- signature ria’s on an identical affidavit. At vit word for word or line for line. The refused, first she Ciavaglia but offered to attorney involved in that case was Mark prospective adoptive parents Ciavaglia City. of Texas The translation agree provide periodic would her reports was—of that comment was done pictures boys and would Esther the older sister give gifts. point allow her to them At Gonzalez who’s *27 relented, Inocencio, Maria of Maria the minor mother in Ciavaglia and when had clients, case, the matter discussed with his the this and the minor mother also Monteguts, promise they’re and reduced the to said the detective is outside and writing, signed going you jail you sign Maria the affidavit. to take to if don’t But
this document. it was never trans- B him lated to as to what the document far 1, relinquishing paren- meant as as his On October week after the affidavits rights. people tal Due to other at work signed, Monteguts were the sued Ricardo telling probably him that that was not and Maria to terminate their right, they constitutional and not looked rights. parte The trial court issued an ex attorney finally around for an and he temporarily giving Monteguts order the 22, custody boys. of the On October the hire me. urged trial cuted Mother’s Affidavit of Relin- Monteguts
Counsel for the the her Rights voluntarily try immediately quishment court the case because of Parental to fraud, duress, by the of would ex- was affidavits and not influenced day, sixtieth after pire day overreaching. the next the or court the signed.18 The denied hearing The found after the Court immediately motion for continuance and that Ricardo Dueñas executed evidence proceeded trial. to Relinquishment his Father’s Affidavit of voluntarily Rights of Parental and was pres- requested
Ricardo’s counsel the duress, fraud, by not or over- the influenced interpreter ence of a court to translate reaching. proceedings into and the court Spanish, attempted locate to one. When a suitable Findings January echoed made
interpreter could not be found on such judgment, adding that Ricardo and the notice, trial short the court recessed the had married: Maria morning until of November 28. signing Luz Maria Dueñas’ of A brief was principal Relinquishment focus of the trial of of Mother’s Affidavit En- voluntary, could not Rights on whether Ricardo understand Parental and fraud, duress, glish and what knew coercion. secured signed. testimony about There was also promise Monteguts per- made her affidavit. At the
suade Maria Dueñas’ of the Fa- signing Antonio evidence, from close of the the court ruled Pa- Relinquishment ther’s Affidavit of had bench Maria Ricardo voluntary, not Rights rental signed voluntarily and with- their affidavits fraud, duress, or coercion. secured immediately out The heard duress. Luz Maria Due- The Court finds that on termination of evidence whether have married ñas and Antonio Dueñas parents’ relationship was in the children’s signing after of them Affidavits interest, minutes a few best after Rights. Relinquishment of Parental testimony Montegut, from concluded Miles post-trial Ricardo and Maria filed then was. The court rendered motions. orally terminating judgment Maria’s relationship with their sons. Ricardo’s II December 16 recited: judgment presented Luz Maria Inocencio issues duress, fraud, overreaching Ricardo did agree the Court that Affida- deny Court to that her Mother’s a claim that his raise in the trial court Relinquishment Rights
vit of of Parental rights had been process due constitutional voluntarily. was signed mention of single His counsel’s violated. present issues [sic] Ricardo Dueñas hearing word “constitutional” duress, fraud, overreaching to the motion was insufficient for continuance Affidavit deny that his Father’s atten- call the matter the trial court’s *28 Rights Parental Relinquishment of of tion, in especially in the haste which signed voluntarily. was was But even a brief trial conducted. question of the record leaves no hearing after review Court found The merely not complaint was exe- that Ricardo’s evidence that Luz Maria Inocencio 161.103(e). § 18. See Tex Fam.Code process rights sufficiently
that his due had violat- him. Monteguts been The de- ed, voluntarily only but he could not have a of their brief to voted few sentences relinquished by signing his sons an affida- arguing complaint that Ricardo’s sole vit he not in understand because it was process. of a denial of due The court of English. principal This was the focus of appeals complaint Ricardo’s restated the trial. appeal process, as one of due it also but added: “Ricardo claims that because
The Court concludes that Ricardo has English, does not understand he did not not raised anything but a constitutional signing.” understand what he was appeal. issue on It is true that the issue right court concluded that “Ricardo’s stated in Ricardo’s in briefs the court of accurately interpreted have the affidavit in Court, appeals and this and on which a language he understands is a matter of focus, signature is whether his pro- “was process,”22 due but concluded that the evi- cured in a manner that violated Ricardo’s dence failed to show that Ricardo did not process rights”, due and this is the focus of signing. understand what he was petition. his brief and But obliged we are by rule to treat the issue covering “as out, points point As the Court at one in every subsidiary question fairly that is in- argument appeared oral Ricardo’s counsel Moreover, cluded.”19 we construe briefs any complaint except to disavow a denial “liberally just, ... order to a obtain fair process. of due What the Court does adjudication equitable see fit to mention is that Ricardo’s counsel the litigants.”20 practice This becomes opened argument stating: his further “We important even more when fundamental statutory believe that terms of the re- rights are at stake. Ricardo’s briefs in quirements placing totally a child were this Court and the appeals court of can violated.” fairly be read to raise broader concern The extent of understanding Ricardo’s than process. constitutional due After disputed, of English may be but there is pointing out requirements chapter dispute It is limited. seems Code, 161 of Family the Texas the briefs unjust to me to terminate his state: relinquished “Ricardo one of his rights despite that understanding limited i.e.,
most fundamental rights, right of on the that his ground brief is not clearer. parenthood, by signing document that he rigidly To read Ricardo’s brief as as the could not read and put was never forth to simply compounds Court does his limita- him his native tongue.” One could well tions. would consider the substance of expect more elaboration of argument, argument: was his affidavit of relin- but when the briefs are in light read quishment un- given effective his limited record, complaint Ricardo’s is clear. derstanding English? certainly
It Monteguts. clear to the B fifty-page their brief the court of appeals, they argued at great length guardian Maria’s ad litem should have trial, the evidence showed that though Ricardo under- been clearer at even she had enough English stood what prepare. know he was a month to should have She doing pointed and that the affidavit was directly translated out more Maria’s conten- Tex.R.App. 55.2(f). 21. S.W.3d at 4. 19. P. supra Id. at 4.
20. See note 14. *29 161.103(b) Family signing requires she into of the tion that had been misled Code parent Mon- swear of the relinquishment by the affidavit of the that a must to all would teguts’ promise following: to her that of
provide reports photographs her (1) address, name, age the of the them boys the and would let her send rights being parent parental whose are There her question is no that this is gifts. relinquished; principal appeal. on complaint (2) name, age, the date of birth child; this com-
The Court refuses consider the did ask the trial plaint because Maria not (3) the of the names addresses Monteguts’ to rule whether court on the person of guardians of the and estate But unenforceable. promise legally child, if any; the though request did not the even Maria (4) or is a statement that the affiant is rule, trial rule: trial court to the court did by order to presently obligated she judgment expressly recognized in its payments the of the support make fraud, duress, and “presented had issues of child; her overreaching deny the Court to that (5) full of description a and statement voluntarily,” and it [affidavit] property possessed value of all owned or is- specifically against her on those found child; by the authority offers no sues. (6) an that of allegation termination imposing a that the trial court requirement in the parent-child relationship is the subsidiary question have ruled the child; best interest of the the made promises whether to Maria (7) following, applicable: one as of the enforceable. (A) of the name and address the I would therefore consider the substance parent; other promises Maria’s argument: of the (B) parental a that the statement to her of her made defeat effectiveness parent been rights of other relinquishment? affidavit of order; or court by terminated death
Ill (C) that child has a statement an affi- presumed father and that the child has been davit status of Family of the Code Section 161.001 by chapter; provided this executed as relationship may a parent-child states (8) be terminated has parent a statement parental rights and been informed of “if clear convinc- the court finds duties; (1) ... that the has ing parent evidence:
(K) filed ... the suit is (9) executed before relinquish- statement an unrevoked or irrevocable affidavit revocable, relinquish- ment pro- relinquishment parental rights as irrevocable, relin- or that ment (2) ...; chapter vided this for a stated quishment is irrevocable in the best interest of the termination is time; period of child.”23 (10) if is revoca- relinquishment ble, type con- boldfaced An affidavit statement signing cerning right parent simple is not a instrument. Section 161.001(1)(K), (2). § Tex. Fam.Code *30 the him relinquish- paraphrased Spanish, revoke the have been only consequently ment if the revocation is made be- “not” and omits word day very opposite fore the 11th after in- the date the states the of what was executed; English-speaking affidavit is If lawyer tended. an (11) get language right, could not it is hard if the relinquishment is revoca- imagine how Ricardo could have been ble, the name and person address of a expected to understand it. delivered; whom the revocation is to be The Court’s view of this case is that the (12) designation prospective of a evidence conflicting the trial court adoptive parent, Department of Pro- call, story. only made the end of But last Services, Regulatory tective and if the Term we held that evidence for terminat- department has in writing consented to ing parent-child relationship must be designation, child-plac- or a licensed carefully reviewed to determine whether ing agency managing to serve as conser- convincing.25 Specifically, is clear and we vator of the child and the address said:
person agency.24 or legal sufficiency In a review a termi- [of parental rights], nation of a court should go It should saying person without that a look at all the light evidence most who executes such an affidavit must have finding favorable to the to determine some idea of all the facts to which he is n whether a trier of fact reasonable could required to enough swear. It is not firm have formed a belief or conviction an affiant understand that severing he is finding that its was true.26 children; relationship with his he must pur- understand what that means. The view, my when one considers all the pose of the statute prescribe is to regarding evidence what Ricardo under- specific things person must swear that stood or could have understood and then he knows before he surrenders his chil- signed, impossi- reads the affidavit he it is Furthermore, dren. proof that he did ble to conclude that there is clear and must convincing. be clear and convincing evidence that he understood a signed. word of what he question
So the in this case is this: how much of the affidavit Ricardo did he through interpreter. Ricardo testified an answer, understand? The as a detailed He stated he had been the United review of the evidence below demon- years working States four and was as a strates, possibly said, the most he supervisor, spoke only could cook. His by signing understood was that the English, and a co-worker had to translate losing affidavit he was his sons. There is for him. He stated that he could neither all, no evidence at for example, that Ricar- nor English. read write Asked whether thought do relinquishing answered, his sons was in he English, understood some interest, their “Very best that he knew what little. word here and there.” have, parents and duties or that he Regarding signing of the affidavit of relinquishment, understood his decision was irrevocable for he stated that he under- sixty days. important part required most stood that he was affidavit, only part may affidavit, and the nothing Spe- and initial the else. 161.103(b). § 24. Id. 26.Id. J.F.C., (Tex. In re 96 S.W.3d
2002). *31 follows,
cifically, as as translat- A No. he testified interpreter:
ed Dueñas,
Q Now, you could Mr. tell day happened us what on the that the And, Dueñas, En- Q Mr. how much Relinquishment Affidavits of Parental glish, any, if do understand? you Rights signed? “put your I understand A Uh, up they picked my A me that there.” thing name” and “initial an office. They work. took me to What That’s all. papers I that they have that that that was Q Was translated what signing I know what I was didn’t you? nobody explained anything. to me me, It but I A Yes. was translated to Only that.
understood that. Ricardo verified that does Maria Q you you gave recall who Do it. speak English cannot understand papers? time,” testified, “I him to she told “One Well, A if it I don’t know That’s I say got word what ‘seagull.’ notary, they gave lawyer or but me Regarding signing out him.” said, here, paper. and then “Sign He relinquishment, she as testified there,” it initial it and that was date follows: it. Q ... translated the docu- [W]ho ment for Mr. Dueñas? Nobody A translated.
Q gave you the man that Did—did papers sign, to initial and to did he he was Q was Mr. Dueñas told What those you papers translate what signing? meant? there, really I I didn’t got A When A No. him, just I him told tell what it was. here, put the date your
“Put name there.” Q you is that the last all know So Q for the Did of the secretaries signature; is that cor- page your has Mr. what attorney translate to Dueñas rect? in that document?
A Yes. anybody I think there A No. don’t Q page the second to the last And spoke Spanish. initials; is correct? Actu- your has Q attorney didn’t translate So ally, it’s the third. for him? either A Yes. in En- just reading it A No. He was Q those the areas where the And are out—because glish, pointing and then put initials? you your
man told Ricardo be there would sometimes A Yes. point catch on and would wouldn’t there,” but initials, “Put name Q say, your did putting those And it. just initial So I’d then he would anybody or the secretaries man Spanish) room, (speaking to tell you translate to —“Put him — your whole name.” what that document meant?
Q your And did your mother or sis- ter translate the seven-page document Q you Did tell Ricardo Dueñas what to Mr. Dueñas? papers Spanish? were about in My A speak good sister doesn’t No, Uh, no. given wasn’t *32 Spanish. My mom—she tried to start opportunity. him, her, out I telling and told “Shush.” Q you speak Spanish So didn’t ever Q office, during your you So no one in that Mr. at all time that while —the signing Ciavaglia’s lawyer]? Dueñas was of Re- were at Mr [the Affidavit linquishment, explained himto that this said, A I The little words it was not document meant up that he was giving own, It my that much. uh —Mr. forever; rights parent his as a is that Ciavaglia interpret wanted someone to correct? so he could understand going what was on, and all. that’s
A No. Q you say And so in few words Q And no explained one to him Spanish, you? didn’t signing this document he couldn’t few, A A a few. change his mind until days— after 60 Q you And what was it that said? A No. in English you Tell us what told Mr. Q that, —is that correct? And I Dueñas. translating Spanish mean it into what he A I looked at him I told him understood the document meant? that, uh, Mr. Ciavaglia wanted those A No.' uh, papers, interpreted to him.
Q your knowledge, To Q had Mr. Due- you And what else did tell him? ñas ever talked giving up about his ba- A Nothing, nothing. adoption
bies for or anything like that? Q him, you And didn’t tell Mr. Due- No, A ñas, of course papers not. He used to tell these were me if I stupid wanted to be and—and if wanted him to where he was giving I didn’t right, act that he up you would take the to the babies? Didn’t babies and he would him Spanish? raise them. And I tell that in him, would tell crazy.” “You’re No, A no. No. Esther, mother, Guillerma, arranged
Maria’s Maria’s sister who understands adoption, English Spanish, both testified that she spoke and she understood Spanish in Spanish speak Dueñas some but could not it fluent- lawyer’s office. ly This is what and could not and did not she testified: converse with Ricardo. As for what Ricardo understood Q lawyer] Did [the read this time about happening, what was this is her anybody Spanish? account of the events: No, A Span- No. he can’t read it in Q you ... And then did discuss the ish. lawyer] get father and how to [with Q Okay. anybody you Did ask to—or process? him involved this rephrase let me it. you Did translate him, A The babies looked like but we any of the anybody documents for else? absolutely weren’t sure that he was the No, ma’am. I given testing wasn’t father. DNA had not been done. chance. It was assumed that he was. And I am Spanish, Spanish I com- read That fluent so cannot him? So, if my right
municate with him to—with him. is—that’s dilemma here. have to told to anything, would be mind, IA can’t read his ma’am. My my him. would mother sister don’t know. He said he understood. have to be the ones. That’s I know. all
Q [By the And asked Court:] who him if he understood? Q Did Dueñas make Ricardo A Mark did. anything motions or do indi- would Q [By English? Court:] cate that he what going knew A Yes. that day? *33 Q And he [By the answered Court:] A Yes. mean, English? you in I if can remem- Q was that? What ber. A in the agreed put He initials just A did not much. He speak He needed, he areas where was—where he head. I don’t recall him nodded his if again he was asked over and over speaking much all. he understood.
Q And who him and over asked over
if he understood? him, Q your
A of Ri- lawyer] Mark asked Based on observations [the cardo in Mr. my your him also. Dueñas and sister mother asked office, Ciavaglia’s believe both of you do Q your him in And did mother ask on? going them understood what Spanish if he understood what he was doing day? Yes, A I do.
A Yes. Q you that the relin- And do believe Q speak was, fact, Ciavaglia But Mr. did not quishment document ex- Dueñas; Spanish to is that plained Spanish? Ricardo Dueñas to Ricardo right? needed, yes. A he As much as Yes.
A Right. That is correct. Q point your At mother Okay. one Q [By the And can Okay. Court:] attempted the document to translate explained if each of you tell me someone Dueñas; Mr. is that correct? him, just a lines to or was it those Yes, A correct. cursory summary, or was it a detailed Q happened during And what explanation? translation? A it in lawyer] explained [the Mark all A asked him if he understood She on, kept And like he detail. Ricardo details, my sister also com- little acknowledged being said. what Spanish. him in municated with attempt my And then mother made an your both moth- Q actually it was So Spanish also in asked Ricardo talking to him er and sister understand, yes, he said and he Spanish? there. putting continued his initials on them
Q But A both of [By the how could Yes. remember Court:] doing that, doing if went line in some— understand one line much Okay. ap- As as he needed parently to because he nod- understand Q you sitting And the—are here and acknowledged ded and he that he under- telling the Court today Septem- that on repeatedly. stood 24th, attorney ber when the and the Q Okay. being But it was read to presented secretaries seven-page him in English, correct? Dueñas, document to Mr. that those sev- pages en were translated to Mr. Dueñas A That’s correct.
in Spanish? Q Okay. speaking you If I started speak in French page right you A Each don’t was not translated now— French, word, you? word for no. do A No.
Q my And I kind of nodded head French, speaking you and was Q So the total sum of the transla- you would idea what I was actually tions were three or four sen- just if I tences, talking speaking about started they? weren’t right French now? A I don’t recall exactly. *34 A No.
Q very it, It was quick, wasn’t Q Okay. you But if I smiled at your translation that supposed- mother my nodded head and looked sort of fa- ly gave Maria to him (indicating)? —or vorably upon you, possible you is it within, like, A It wasn’t 30-minute just might your nod head back? intervals, time They no. were not that long.
Q Would three or four sentences be No, A I because wouldn’t know what about right, your translation that I would agreeing be to.
mother did or that Maria did? Q But you you how would even know A I exactly don’t recall many how agreeing were if anything you didn’t lines were said. language? understand the French IA would not be able to elicit a response if I did not understand what’s Q You you’re earlier that testified being said. very “not fluent in Spanish.” Wasn’t Now, Q Okay. you. you Thank said your those exact words? you that on Ciavag- the 21st called Mr. A Spanish, yes. Conversational you lia’s office and had talked to Detec- So, Q Okay. then, you how is it that you tive Goetschius and got all of this can sit today here and tell this Court arranged you before over went there on that Mr. had Dueñas heard as much as you might the 24th. Didn’t think it be a he needed to hear? good idea to talk to either or Ricardo A I didn’t state that. you got arranged all this [Maria] before to find out whether were even Q Yes, you just say did. You didn’t it? agreement with testimony from for the Mon- [counsel teguts] your testimony direct A I have not had communication —on heard, quote, he and I much “as as he with Ricardo one on one because I can- needed”? fluently Spanish. not converse you speak Spanish, And don’t cor-
Q rect? Q 24th, September after Mr. On you spoke papers,
Dueñas A That’s correct. him; that correct? is respond Q And he—did he to what is A After? information, your other address and Q papers signed. After the number, Security your Social what
A the lawyer’s office. Outside you Texas driver’s license num- what is ber? Q you And would the Court what tell
you said? point I A At some when asked for I told him walked to English number, Security I —I his don’t recall Social him, I him shook his hand. told responded who or—as to the address. you “Thank are you. doing What asking, just writing the information very courageous.” question As to the down. about Q your number, uh, And did mother translate Security he didn’t Social what you said? respond. And I don’t remember really if Maria [Guillerma] it was that said
A I asked her so he could make sure Security have a Social num- doesn’t saying. what I And understand ber, have his wallet with him. didn’t she to—and then she said—I started word, that, “Oh, can’t recall word
says I don’t need to.” he understands. practice Ciavaglia Mark had been six Q specifically you tell the What agreed represent years when he *35 parties? Monteguts in Ricardo’s and Ma- adopting myself A I introduced and told again Span- ria’s sons. He does not understand them, every- them —or stated “Does office, Concerning the in his ish. events today? why understand we’re here one he testified as follows: go- documents. I’m You’re here Q you How did receive informa- ing you to offer to some documents relinquishment] tion the affidavit of [for your inspection your signature that for Ricardo Dueñas? process adopting these begin will A verbally. I him asked children.” Q he And was able understand any- Dueñas Q And did Ricardo do relay what asked him and that infor- you he thing that would indicate whether mation? saying? what were you understood A seemed to be. He seemed to He responded English and understand During little. very A He said questions. statement, I that said—I kind course of name, Q for his did you asked When every at each one of them. looked respond give he with name said, you Do you I “Do understand? correct — name, you of his or did he write a detail left, my was to understand?” Ricardo he it How did do it? out? said, you “Do understand?” And and I said, specifically you I “Do it, just A and I nodded. pronounced He wrote understand,” in And nod- name, English. spelled I it. I wrote his last As yes yep. he mouthed loud; ded his head acknowledged out and he that was yep. Like correct. spelled incorrectly
name was on the doc- ument. Q And what discussion was had with Q Okay.
Mr. Dueñas about his happened document? So what then? explained A I that I would offer Well, A point at that she corrected each of them two I documents. turned spelling of her last I name. went said, to Mr. Dueñas and I “This docu- back and corrected all the documents. ment, document, the first is an affidavit it, okay. And this is after he had acknowledges your paternity.” So, then, Q resign he had to I, knowing And legalese sometimes documents, is that correct? intimidating asked, laypersons, I A That’s correct. uh—I kind of made sure that Now, Q resigned before he the docu- aware in common English what ments, any point said, was there in time that “By meant. signing this docu- anybody Spanish any parts went ment, over you’re admitting that you’re the or all of those documents? father of these children.” And there’s reference, some statutory other informa- A Yes. tion. Q happened What suppos- who Q Now, Okay. did he say yes, he edly was it that went over those docu- understood, no, he didn’t? Or did he with him in Spanish? ments acknowledge anything? A Ms. Pruitt. A He didn’t really ei- acknowledge Q And would that be Maria’s moth- way. just ther He looked at the docu- er? ment. A That’s correct. Q Now, Okay. regards with Affidavit of Relinquishment paren- of his Q And you what —what do recall her tal rights, you explain what doing regards to that document? document was? specific part There’s a of the form A I did. requires a set of initials each Q And did he any response make *36 one. spaced It’s section. double— your explanation? whatsoever to And it denotes if—I’m paraphrasing-it
A Not at all. says that impor- understand the tance of this document.... I directed Q Okay. Was there discussion specifically his attention to this section amongst people in the room whether and began point, to read it. And at that he understood or whether he should said, “Mom, Esther why you don’t trans- have a translator anything? him late that to to make sure he under- A The documents that I offered point, At stands?” Maria turned to first, the Affidavit of Relinquishment, as her in a very agitated mother fashion we going through were the form and I said, give “He don’t a shit. He him, explaining was it to and I use the So, don’t buy diapers.” even nonethe- time, same term each “By signing this less, to, uh, Ms. Pruitt did continue what document, you fully, finally, and forever sounded to me was to translate that give up all rights to these chil- Spanish. that, I dren.” As was going through Maria noted —she sitting Q was across Did it take her to read that awhile from Mr. Dueñas. Spanish? She noted that her into
A didn’t seem to read it. She She I repeating saying, was what which was Q Ciavaglia, you telling Mr. are this this paraphrasing language. was that Ms. Pruitt translated these Q you Okay. client, And was that what pages Mr. Dueñas? my seven to that, basically “I under- saying were No, A ma’am. executing relinquish- stand that I’m this fact, Q probably In a sum she said ment, up my to giving my rights and I’m little total of three or four sentences words, your children”? ... how to Spanish whole time was there in she it you explain English that in before was client, my didn’t she? translated. A than She said more that. that, A I told him “This What was Q you say, And would “You when very im- very document is me— —excuse blank,” sign need on this it, you’re portant. signing And that (speaking have been translation would you this acknowledging that understand repeated Spanish). If was several the con- you document and understand times, don’t know that the you different document, and that is sequences of this was, up your giving translation ‘You’re you finally, give forever fully, forever,” your rights to children up any children. parental rights your is, rather the translation ‘You need you right and relinquish your And also line, need to on this sign you sign on this mind.” give up right change your your line,” line, you on this need Q [By you Court:] And said any of being was translated? Do which you me? pretty way just much the told staff what Ms. Pruitt was your know Dueñas? translating to Mr. A That’s correct. know; I testify A I as to what could Q telling [By you’re Court:] And I do not speak Spanish and I do not Pruitt, grandmother, me that Ms. know what she translated. in En-
interpreted you that after said glish? I speaking Spanish. A She was Q saying you is that you’re What say. can’t assumption made an because— Q speak can’t [By Court:] You and he you talking English when trans- Spanish. you But think she head, that he under- nodding
lating you English? said in what on? going stood what was A That’s correct. go- knew what was believed Q [By Court:] Go ahead. on, ing yes. *37 point- know that Q you after And would
Q happened then what And sign, that him he needed to Spanish ing where things Pruitt said the —Ms. you him need telling if someone was to Mr. Dueñas? there, you he said if there was— Uh, A initialed be- Mr. Dueñas then fact, hardly In very quiet. was docu- each line. He executed the side you a few talked at all is what said spaces provided as signature ment Due- Mr. ago; minutes correct? Uh, in front and the of the witnesses. quiet? was very ñas and, uh, person signed witnesses A Yes. notary the docu- that was the notarized fact, all? Q hardly talked at ment. A Correct. witnessed Duenas’s execution of relinquishment.
the affidavit of Hernan- Spanish dez speak understands but cannot it. She testified what she observed as Q you And assumed that Mr. follows: silence, Dueñas’ agreeing that he was Q Did—at
everything; beginning of the con- is that correct? ference, you have occasion to hear A I assumed he understood. Ciavaglia say
Mr. anything par- ties? just explained A He going what was Q Okay. And isn’t it true that in the on, they know, and if you they if didn’t— draft that had to be redone because of it, go through they didn’t want to name, misspelling that at one didn’t they have to. And wanted to make point Mr. forgive me—Mr. Dueñas— everybody sure that go- knew what was Dueñas had either initialed where he ing on understood what was supposed
was to sign where he going on. supposed was to initial or vice versa? Q you Did you notice whether —did A That’s correct. Ricardo actually Dueñas made indi- Q Okay. So what—wouldn’t cation that he understood? Just from kind of you indicate to that he didn’t preliminary statements that Mr. Cia- understand what he supposed was to do vaglia gave, that he understood? in that situation? A weren’t if We sure he understood. A No. And kept saying, Esther “Make sure he Q Okay. And while Ms. Pruitt was saying.” understands what he’s And talking Dueñas, with Mr. you don’t have said, “Well, then Maria he don’t care.” any idea what she talking to him Q Okay. And you talking are about about, you? do presented later on as he was with this A In Spanish? Affidavit of Relinquishment? Q Yes. A Right. A No. Q Okay. you And you said that basically document; paraphrasing the Q Okay. Ciavaglia explain Did Mr. that correct? And repeat- that she was papers to Maria Inocencio? ing you what were paraphrasing? Yes, A he did. A Yes. Q explanation Was his to her more Q you Don’t think possi- it’s kind of detailed than it was to Ricardo Dueñas? ble since we’re repeating paraphrasing No, A explained because I it to Ma- that something might have been lost in ria, okay. and then she said Then he the translation? explain father, started to it to the you’re Since don’t asking know— he, you know—he kind of looked like he
me? didn’t know what he saying. Then *38 Q possible? Is it him, grandma translated it to and he A possible? Is it Sure. shaking yes. was his head When she Finally, Ciavaglia’s paralegal, Laura translating was Spanish. understand —I Hernandez, present was meeting it, at the speak can understand I can’t it but cor- telling
back. And she was him the rect things. Q you heard what Esther was And telling Maria telling Maria and what was
Q you tell the Court Okay. So would Mr. Dueñas? grandmother what was it was actually telling Mr. Dueñas? A Yes. Q pages And in the seven up rights
A giving That he was his affidavit, you’re that Ms. Pruitt saying children, long- of the that he will to Dueñas? translated that affidavit Mr. responsible er be them. And that it, you through, once this is all that’s just A him that he telling was She know. up rights as a father giving was his kept wor- saying, because Maria “Don’t Q did she him whether or So tell him it ry sign about this. Just tell to change an opportunity he would have to sign there and he’ll it.” his later? mind And, effect, Q Ms. Pruitt didn’t No, A she didn’t. terminating parental tell about him Q it,” what heard Okay. you said, Based on rights. just “Sign didn’t She grandmother translated she? Dueñas, Spanish you to Mr. do believe A No.
he fully understood— Q sign sign here”? “Just here
A Yes. it.” saying, sign A was “Just Maria grandmother trying to trans- Q happening? —what was him, one was the late but Maria Yes, kept shaking A his because he “Initial, sign it.” kept pushing. just head And she yes, understood. fact, Q never grandmother it, just him it. kept telling sign sign are to him that his translated just it. kept sign Maria him telling right terminated then going to be Q really Maria didn’t want So there?
have much discussion? just A that his father— saying She’s any- father going be the wasn’t
A No.... more, up rights. giving that he’s telling him. That’s she what telling Q she was you’re saying And Now, Q you actually were witness Spanish? him that in Affidavit of Relin- on both the father’s Yes, A was. she Rights and also quishment Parental sign telling him to Q And she wasn’t mother’s; right? is that there, sign the different sign here and A That’s correct. him that? parts? never told She feel, him Q you your A out to pointing And do based Maria was it. you sign, room and what where to and he would observations you parties, saw what heard Q attorney was there dur- And the fully what they both understood Pruitt was trans- ing the times Ms. signing? lating, is that correct? Yes, A ma’am. Yes, ma’am. *39 Q who, say any- And did Mr. Dueñas ever ANTONIO DUEÑAS RICARDO thing during process sign- sworn, whole presence being duly me the ing any of affidavits? the witnesses, undersigned of the credible
A He did not. statements, following made Q Never said word? that they swore were true: Never said word. name is “My RICARDO ANTONIO Q anyone verify Did with him that Security DUEÑAS. Social Number he understood? _, License Driver’s Number understood, A They him if asked My in the of Texas. [ ] State and he yes. said years. residence address age My is sum, there is evidence that Ricar- S, Galveston, in 3714 Avenue Galveston do read the affidavit of or County, Texas 77550.” it, that he was able to read uncon- “I am the father of twin children”: tradicted evidence several witnesses the affidavit was not translated “[L.M.I.], April a male child born on Ricardo. Several witnesses testified [J.A.I.], child a male born on they thought or believed or assumed 9, 1999, April both children born to twin understood, Ricardo and that he indicated UTMB, MARIA LUZ INOCENCIO by nodding “yep” his head or mouthing Galveston, County, Galveston Texas.” understood, that he but none of these wit- children, “The natural of the mother nesses stated what it was exactly MARIA LUZ SYLVESTRE INOCEN- Ricardo understood. It fairly seems clear children, that he reside at losing knew he was CIO and children 806c— paralegal, but the who Span- South, understood City, Avenue Texas 3RD Galves- ish, testified without contradiction that County, ton Texas 77590.” Spanish was never told in that his affidavit not presently obligated by “I am would be irrevocable for sixty days. payments or order decree to make There is no thought evidence that Ricardo support or any child this court or adoption interest, was in his sons’ best as jurisdiction.” swear, required by he was statute to or that he understood the rights he property possessed “No owned losing, again required as the statute children.” him to swear. QUENTIN MILES designate “I What various witnesses’ when meant GAIL MONTEGUT and MONICA they testified that Ricardo “understood” persons, MONTEGUT.qualified as appreciated reading cannot be without of the chil- managing co-conservators signed. Ricardo This is what my dren. have been informed that stated: duties, parental rights, powers, priv- are as ileges follows: FATHER’S AFFIDAVIT OF RELINQUISHMENT OF right physical posses- 1. to have PARENTAL RIGHTS sion, direct and religious the moral training legal and the [sic] STATE OF TEXAS establish children; domicile of the COUNTY OF GALVESTON care, control, ME, duty protection, BEFORE au- undersigned children; thority, day personally appeared discipline this and reasonable *40 children, power represent the children duty support the 8. the to 3. the to child cloth- including providing the to make deci- in action and other legal food, care, shelter, ing, medical and edu- significance legal sions of substantial cation; children; concerning the duty manage 4. of the the to the estate from and right 9. to inherit the children, the except guardian when a of children; and, the through appointed; has been estate right 5. the to the services and earn- any rights, privileges, 10. other duties children; ings the of parent a powers existing and between to power marriage, 6. the to consent to law, including and children virtue of in of the enlistment the Armed Forces concerning decisions medical care and medical, States, psychiat- and to United treatment.” treatment; surgical ric and voluntarily give and relin- freely “I give receipt power the to receive and managing the co- quish to above-named payments support for the of the chil- my all parental rights, conservators of to funds any dren and hold or disburse duties, children; powers, privileges.” for the benefit of the County, in a in folly promptly a lawsuit be filed Court Galveston “I understand that will the parent-child relationship me and above- to terminate the between Texas forever may may or not be fully I the termination suit named children. understand way, the adopt children. I understand that either once combined with a suit to children, my my say concerning I no parental rights, have further Court terminates my adopted are or at later time.” whether or not children then some Court, personally attorney of right appear with an “I know that I have the to before However, choice, my I do not testify my respect to children. want to about desires with advice, I encouraged independent legal but go person. to in I to seek to have been Relinquishment Rights Parental necessary. this Affidavit not feel that is I want do presented to the Court.” court, voluntarily person freely and testify I in before the I not want to “Because do citation, issuance, service, all my return notice and give up right to the waive and my any any my rights or in suit to terminate process to terminate other suit By executing desiring to joined adopt. this affidavit and parental rights with a suit to behalf, voluntarily consent my freely I having presented to the court on [sic] it jurisdiction Texas. I do want jurisdiction competent of the State of of a court of my given lawsuit, give up right to be and I waive and informed further about be final specifically agree I a anything proceedings in the lawsuit. [sic] notice about I any further to me. waive hearing may time without notice the lawsuit be held testimony in the reporter give up my right to the official court make a record copy judgment Furthermore, given or I do not want to be mailed lawsuit. rendition, signing, terminating my parental and do not want be notified of Therefore, right give up my [sic] insist entry judgment. I waive and of that affecting parent-child things I consent to have suit those be done. also be decided relationship respect to the children filed or filed with above-identified to be § 54.001.” pursuant Texas Government Code family appointed master law time, way fact States at this I am in services of United “If the armed and, affidavit, my my make decision execute this [sic] freedom the interfered with existing concerned, rights, privileges, exemptions all as matter is waive insofar this Act Relief may my favor under the Soldiers’ and Sailors’ Civil exist or that hereafter represent me in this cause.” of counsel to including appointment *41 “I FULLY THAT I MAY BE UNDERSTAND NOT FURTHER INFORMED ABOUT THE ANY TERMINATION SUIT OR OTHER OR ABOUT HEARING IN PROCEEDING AFFECTING THE CHILD NAMED THIS AFFIDAVIT.” parent-child I relationship “Termination is in best interest of the children. I possible by executing understand that made termination this this affidavit. With mind, hereby I Relinquishment Rights declare this Affidavit of is and Parental (60) THAT, sixty days. shall be IF I irrevocable for I FULLY UNDERSTAND MIND, MY CHANGE I THE TO CANNOT FORCE MANAGING CONSERVATOR DESTROY, REVOKE, OR RETURN AFFIDAVIT AND THAT I THIS CANNOT TAKE BACK OR UNDO THIS IN WAY AFFIDAVIT ANY DURING THIS 60-DAY PERIOD. I FURTHER UNDERSTAND THAT MY PARENTAL RIGHTS PROBA- BLY WILL HAVE ALREADY BEEN ENDED ALL TIME FOR BEFORE THIS that, my parental 60-DAY PERIOD I also if EXPIRES. understand have not 60-day period, been ended within this this affidavit remain in full effect shall force and I THAT, until revoke it. I AT FULLY UNDERSTAND ANY TIME THIS UNTIL REVOKED, MY AFFIDAVIT IS MAY PARENTAL BE TERMINATED RIGHTS ALL FOR TIME.” carefully plans “I have my considered alternate children’s future and have obtained members, family friends, persons the advice of professionals whatever I feel or other and necessary make, help very make this decision. This decision difficult for me to Nevertheless, under I might and other circumstances have made a different decision. in, myself under I provide circumstances find I that I properly have decided cannot QUENTIN my physical needs, MILES MON- children’s emotional want and and I TEGUT and MONICA GAIL MONTEGUT my provide permanent children a I home. fully declare that I meaning Relinquishment understand of this Affidavit of Rights it, this, finality my Parental signing understanding action in I all of signing freely voluntarily, am it and with the firm is the conviction this decision my best available alternative for children.” signing “I today sign am this because I want to it and not other because person persons sign emotionally way want I am ready every me to it. and in other making I today. make decision am I signing presence am this affidavit in the undersigned witnesses, two present acting each of whom is as a witness. I want my to be signature. signing them here and witness I am this also affidavit before public notary every who has asked me under oath not each whether or statement this affidavit is true and correct advised not to true.” has me unless it is “l REALIZE I THAT SHOULD NOT THIS s/RD SIGN AFFIDAVIT UNTIL I SENTENCE, WORD, HAVE READ AND UNDERSTOOD EACH s/RD AND IN IT. I I PARAGRAPH REALIZE THAT SHOULD NOT SIGN s/RD RELINQUISHMENT THIS OF IF ANY AFFIDAVIT THERE IS s/RD IN MIND THOUGHT MY THAT I SOMEDAY TO MIGHT SEEK s/RD MY I I [SIC] CHANGE MIND. REALIZE THAT SHOULD SIGN s/RD RELINQUISHMENT THIS OF IF I AM NOT AFFIDAVIT s/RD ILLNESS, MEDICATION, MY THINKING CLEARLY BECAUSE OF s/RD STATE, EMOTIONAL ANY I OR OTHER REASON. BECAUSE s/RD REALIZE IMPORTANT THE HOW THIS DECISION IS FOR s/RD CHILDREN, FUTURE MY OF MY PUT BESIDE s/RD HAVE INITIALS EVERY LINE THE THAT IT OF PARAGRAPH WILL ALWAYS s/RD SO BE THAT I UNDERSTOOD HAVE READ THIS OF s/RD AFFIDAVIT IT.” s/RD Septieber [sic], day
SIGNED on this 2i A. Ricardo Dueñas
s/ Gonzalez D. Hernandez Laura s/Esther s/ n Grofton Ave. 2nd North *42 TX City, TX Houston Texas VERIFICATION
STATE TEXAS OF } OF
COUNTY GALVESTON } ME, notary day personally undersigned authority public, on and this BEFORE the oath, DUEÑAS, who, being duly his by me appeared deposed sworn RICARDO ANTONIO foregoing the Affidavit of he is affiant that he has read and said that the and are his Rights of and that the statements contained therein within Relinquishment Parental knowledge personal are correct. and true and Rights me Relinquishment of of Parental was subscribed and sworn before This Affidavit September, 1999, day by on the of 2Jf.th Tibaldo_ s/ Claudia [notary seal] Notary Public, of Galveston [sic] State STATE OF TEXAS } COUNTY OF GALVESTON } D. ME, appeared Laura undersigned authority, day personally on this BEFORE Gonzalez, foregoing and whose names are subscribed
Hernandez Esther witnesses sworn, by duly persons being declared respective capacity, and me instrument to to them that the their both affiant_, me, that had declared presence hearing instrument [sic] the affiant in the of Rights, Relinquishment sign Parental foregoing is an Affidavit of of to his them to it as a execution that of as eighteen years such and wanted each of witness he executed it as same same; that upon the oaths each witness stated further he/she time witness, request, that affiant was presence in the of the affiant and at his mind, older, his own of executed the affidavit of age, or was sound years age. will; eighteen at least free that each said witnesses was then s! Ricardo A. Dueñas ANTONIO DUEÑAS RICARDO Hernandez s/ Laura D.
Witness Gonzalez_ s/ Esther Witness BEFORE ME RICARDO ANTONIO AND ACKNOWLEDGED SUBSCRIBED DUEÑAS, Affiant, me said witnesses AND SWORN TO before SUBSCRIBED September, day on this D. Hernandez and Esther Gonzalez Laura 2Uth [notary seal] Tibaldo_ s/ Claudia
Notary Public, of Texas State states, Contrary or that transpiring, to what the affidavit stand what did, present anyone said or that who there is no evidence Ricardo had talking spoke Spanish could tell from with “parental idea rights, powers, what his him he did. From all witnesses duties, were, privileges he had said Duenas’s one can- appearance, about right appear ‘the personally before ” Shakespearean not tell whether he was a Court, choice,’ attorney an or that professor bemused into or someone silence days. the affidavit sixty was irrevocable for all of English for whom conversation The careful will note in what reader seven-page and the were unintelli- appears most part to be the crucial gible gibberish. affidavit, upper where the words are all in Second, font, says, the Court case and affiant “Duenas’s testi- bold where the ability line, mony about to understand En- every must initial Ricardo re- *43 That, too, glish was inconsistent”.28 is quired to swear: only inconsistency true. But to which I realize that I should affidavit this points the Court is that Ricardo’s state- if relinquishment I am thinking not he English ment that understood no fol- illness, medication, clearly because of by lowed his admission that he understood my state, any emotional reason. other told, “sign when I cannot he here”. added.) (Emphasis It seems obvious that inconsistency any fathom how is evi- error, me that speak this was an but then dence that Ricardo could read and under- English. It be would much less obvious to were, If seven-page stand a affidavit. if, Ricardo, I me like did not. that why Ciavaglia then ask his sum- mary of the affidavit translated be into B Spanish for Ricardo? To exhaustively recite the evidence Finally, says the Court that the trial verbatim, done, just as I have is what court could determined Ricardo Court “effectively calls second-guess[ing] a was not credible because witness he the trial court’s resolution of a factual dis- could have worked in hotel kitchen not a as pute”. I do not see how one be could long he had and not as have understood it, truer the record than quoting English, better because he minimized how course, which of the Court not do. does much of affidavit was translated for The Court its bases accu- second-guessing him, responses and because of his sations on a recharacterization rec- This, too, true; demeanor.29 is all the trial ord simply does not support court have made all these determi- could Court’s conclusions. But a credibility nations. witness’s lack of First, points. The three Court has opposite cannot of his asser- establish says, Court “witnesses testified that Due- simple is The trial logic. tions. This appeared ñas to understand what was may have believed when not Ricardo transpiring at the affidavit signing.”27 not English, said he could understand but course, true, just That is as the record is disbelief no evidence Ricardo quoted Shakespearean shows. But none of wit- professor. Apart these was a nesses credibility, testified that Dueñas did under- from there must Ricardo’s be 27. Ante at 713. at 713-14. Ante 28. Ante at 113. un- question, easily the issue in it could positive
some evidence that could Were in a not just proceeding evi- be English derstand some determined —but —and convincing relinquishment. dence—clear and evidence. based on procedures challenging There are also Nothing in the the Court record father, fitness do Ricardo’s as but says has been has been overlooked omitted Supreme not include indictment from the recitation of the evidence con- Texas. Court of To refuse consider cannot opinion. tained this argument Ricardo’s because it has not clearly point evidence whatever that an properly, been raised then make had convincingly shows that Ricardo him that no one argument against has ever Family re- knowledge that the Code raised, immediately not what comes to voluntarily re- quires parent before a can unsympathet- mind when one thinks of not linquish child. ic. ¾; n n n n C ¾; Monteguts not ar- Conspicuously, do The record contains clear con- gue promise that their to Maria is enforce- vincing agree with evidence—I Justice were, Even if it I would hold that able. explains that Owen for the reasons she promises precluded such Maria’s affidavit required Ricardo such evidence —that being from effective. to the statements understood swore *44 the no in this case that question There is 161.108(b)of the Fami- required by section made; promise it to Maria given was ly relinquishment Code writing. question is there Nor contrary, the evidence is rights. To relinquish- Maria her affidavit lost overwhelming Ricardo has only promises ment because among guaranteed most precious circumstances, I these made. Under he does not understand simply law because hold that Maria’s would read the English. If Ricardo could voluntary. not no be opinion, he would doubt Court’s (and he surprised dismayed) to learn that IV on is not entitled to a decision strained view of the record Court’s lawyer his made because claim has ever sincerity of doubt on the its assur- casts differently it phrased in the trial to Ricar- unsympathetic ance that is not one appeal. The bene- lawyer than his ordinarily One do’s and Maria’s claims. En- inability fit to understand of Ricardo’s from hopes generosity for a little more to read of glish is that he will not be able sympathizers. But the true measure one’s to him. injustice has been done is reflected non-unsympathy of the Court’s paraphrase of He should at have a least case, argument, never raised its however, just opinion, as the Court’s that, way, Ricardo would oh him. offer paraphrased affidavit was even if his relin- be entitled his children following: quishment involuntary had been because ¡Peligro! father, was may not have been the
unfit, probably no has constitutional Inglés, hablar puede Si usted today, there has rights anyway. Before niños. usted sus puede perder whisper so much as a of doubt not been of Maria’s Ricardo was father and Maria swore twin sons. Both Ricardo sister acknowl- fact. Even Maria’s boys like” Ricardo.
edged that the “looked