Opinion filed May 27, 2011



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 1 1

- 00 002

- CV

__________ IN THE INTEREST OF N.C.G. , A CHILD

On Appeal from the 35 th District Court

Brown County, Texas

Trial Court Cause No. CV 09

- 11

- 377

M E M O R A N D U M O P I N I O N
After N.C.G.’s parents each executed an affidavit of relinquishment of parental rights, t he
trial court entered an order terminat ing the ir parental rights

. Both parents filed an appeal. The

t rial court held a hearing and found th e appeal to be frivolous under T EX

. F AM

. C ODE A NN

. § 263.405(d) (Vernon 200 8 ) and T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 13.003 (Vernon 2002)

. This is an appeal from the frivolous finding

. See Section 263.405(g). We affirm.
Because the trial court found that this appeal i s frivol ous under Section 263.405(d)
, appellate review at this stage is limited to a review of the trial court ’ s exercise of its discretion in determining that the appeal i s frivolous

. In re J.J.C. , 302 S.W.3d 436, 442 ( Tex. App.

— Houston [14th Dist.] 2009, pet. denied); In re A.B. , 269 S.W.3d 120, 124 ( Tex. App.

— El Paso 2008, no pet.); Lumpkin v. Dep ’ t of Family & Protective Servs. , 260 S.W.3d 524, 526

- 27 ( Tex. App.

— H ouston [1st Dist.] 2008, no pet.); In re K.D. , 202 S.W.3d 860, 865 ( Tex. App.

— Fort Worth2

2006, no pet.). An appeal is frivolous if it lacks an arguable basis in either fact or law. In re
J.J.C. , 302 S.W.3d at 444; Lumpkin , 260 S.W.3d at 527.
In their sole i ssue on appeal, t he paren t s contend that the trial court abused its discretion
in finding the appeal frivolous because their affidavits of relinquishment were not entered into freely and voluntarily

. The trial court addressed this issue at the hearing and found the appeal to
be frivolous

. The parents assert that they were under undue influence, that they were coerced, and that they did not understand the ramifications of signing the affidavit of relin quishment. The record shows that N.C.G.’s parents and their attorneys participated in mediation and
that each parent signed an irrevocable affidavit of relinquishment pursuant to T EX

. F AM

. C ODE A NN

. § 161.103 (Vernon 200 8 ) as a result of the mediated sett lement agreement. At the post

trial hearing
, N.C.G.’s father wavered between stating that he was coerced and that he was
confused. He testified that he “felt pressured” into signing the affidavit ; that there was “no way [he] would sign [his] son away, pe riod” ; that he knew what he was signing when he signed the affidavit: a document giving up his parental rights; and that he was not really coerced into signing the affidavit, just confused. N.C. G.’s mother testified that she understood most o f what
she w as signing but that she did not fully understand what she was signing

. She also testified
that she felt “pressured and coerced by CPS.” Once an affidavit has been shown to comply with the requirements of Section 161.103
, the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. In re D.E.H. , 301 S.W.3d 825, 830 (Tex. App.

— Fort Worth 2009, pet. denied). The evidence presented by the parents, which
in dicated that they felt pressured and coerced, does not rise to the level of showing fraud, duress,
or coercion. See id. The parents’ assertions with respect to the voluntary nature of their affidavits were conclusory. Neither parent offered evidence sho wing that any party or attorney acted inappropriately, threatened the parents in any way, committed fraud, unduly influenced the parents, or did anything to coerce the parents. Furthermore, the notary public testified at the hearing that, prior to notariz ing the affidavits, she asked both parents whether they understood what they were signing and whether they were signing of their own free will. N.C.G.’s parents answered yes to each question, and N.C.G.’s mother cried. B ecause the parents failed to prese nt any evidence that would rise to the level required to revoke their irrevocable affidavits, we hold that the trial court did not abuse its discretion in finding this appeal to be frivolous. The parents’ issue on appeal is overruled.3

The order o f the t rial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE

May 27, 2011
Panel 1 consists of: Wright, C.J., McCall, J., and Hill, J. 2

1 Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.

2 John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.