## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-17-00220-CV

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

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

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### OPINION

---------- This case of first impression calls on us to decide whet her we should apply Chapter 153 (“Conservatorship, Po ssession, & Access”) or Chapter 161 (“Termination of the Par ent–Child Relationship”) ofthe family code to a mediated settlement agreement, where

 the Department of Family and Protective Services initiated a suit to appoint a managing conservato r and to terminate Father’s and Mother’s parental rights if reunification could not be achieved;2  while the termination proceeding wa s pending, Father and Mother entered into a mediated settlement agreem ent (“MSA”) that changed the managing conservatorship but did not terminate their rights;

 the MSA recited that the agreement was “in the best interest” of the children and met the stat utory requirement s of section 153.0071 to be binding and enforceable;

 the Department then dropped its re quest to terminate Father’s and Mother’s parental rights and moved to modify managing conservatorship in accordance with the MSA; and

 after Father and Mother unsuccessfully objected and asked to back out of the MSA, the trial court entered a fi nal order enforcing it under section 153.0071 and without requ iring the Department to put on any best-interest proof. Because we are un persuaded that the me re possibility of term ination at the time an MSA is entered into suffices to make section 153.00 71 inapplicable—that is, because we disagree that the parents ought to have been able to revoke an otherwise-binding MSA that modified managing conservatorship simply because the Department initially and conditiona lly pleaded for termination—we affirm. The MSA here reflected Father’s and Mo ther’s agreement that (1) their two young children would be pl aced with relatives who would be made the managing conservators, (2) the parents would have limited supervised visitation twice a month, (3) they would pa y a combined $2,0 00 per month in child support, (4) they would not file a motion to modifyfor 48 months, but (5) they could move to modify in the event of an emergen cy. The MSA did not actually terminate Father’s or Mother’s parental rights, nor did either of them voluntar ily relinquish their parental rights under the agreemen t, by a section 161. 103 affidavit or3 otherwise. Father and Mother then sought to revoke their consent to the MSA after the Department moved th e trial court to enter judg ment. Over the parents’ objections, the trial court rendered judgment on the mediated settlement agreement under section 15 3.0071 of the family co de. Tex. Fam. Code Ann. § 153.0071 (West 2014). Father and Mother appealed. In three issues, Father and Mother asse rt that (1) the trial court erred by relying on section 153.0071(e), (2) the tr ial court erred by adopting the MSA’s moratorium on any mo tions to modify for 48 months , and (3) the trial court erred by adopting the MSA’s “emerg ency” prerequisite before any motion to modify could be filed in the interim. We affirm. Background On January 27, 2016, the Department of Family and Prot ective Services filed its “Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent -Child Relationship” against Father and Mother. The children involved were thei r two-year-old son, Andrew, and their three-month-old daughter, Betty. 1 According to the supporting affidavit s, three-month-old Betty had suffered non-accidental trauma. Th e perpetrator was unknown, and the record contains multiple references (one as late as Apr il 10, 2017) both to an ongoing criminal

1 We use aliases to refer to various indi viduals associated with this appeal. See Tex. Fam. Code Ann. § 109.002(d) (W est Supp. 2017); Tex. R. App. P. 9.8(b)(2).4 investigation and to the fact that “a perp etrator has not been identified.” Betty had numerous fractures in various stages ofhealing, including rib fractures, a clavicular fracture, a femur fracture, and distal femur corner fractures. Andrew had no injuries consistent wi th abuse or neglect. Betty attended a daycare, and it was the daycare that first expressed conc erns on January 25, 2016. Father and Mother took Betty to a hospital that sa me evening. The Depa rtment’s petition came two days later. The petition sought to terminate Father ’s and Mother’s parental rights to their two children under family code Ch apter 161 (“Termination of the ParentChild Relationship”) of Subtit le B (“Suits Affecting the Parent-Child Relationship”) of Title 5 (“The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship”). See Tex. Fam. Code Ann. §§ 161.001–.211 (West 2014 & Supp. 2017). 2 The Department’s petition raised termination as a possibility if reunification could not be achieved. The petition also encompassed conser vatorship and child-support issues under Chapter 153 (“Conservatorship, Possession, and Access”) and Chapter 154 (“Child Support”), respectively, which—like Chapter 161—are also under

2 Effective September 1, 201 5, section 161.001(1) a nd (2) became sections 161.001(b)(1) and (b)(2). Act of Mar. 26, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001(b), 2015 Tex. Sess. Law Serv. 1, 18 (West) (codified as an amendment to Tex. Fam. Code Ann. § 161.001). When we cite or quote cases decided under the previous section 161.0 01(1) or 161.001(2) designations, we do so knowing that the current provisions are found in sectio ns 161.001(b)(1) and 161.001(b)(2).5 Subtitle B of Title 5 of the family code. See id. §§ 153.001–.709, 154.001– .309 (West 2014 & Supp. 2017). On the same date that the Departmentfiled its petition, the trial court entered ex parte emergency orders appoin ting the Department as Betty’s and Andrew’s sole mana ging conservator; placing the children with the Smiths, who were family friends; and se tting a date for a full advers ary hearing in accordance with section 262.201 of the family code. See id. § 262.201 (West Supp. 2017). At the February 5, 2016 full adversary hearing, the trial court signed an agreed temporary order to t he same effect. As tempor ary managing conservator, the Department was specifically given all the rights and duties as set forth in section 153.371 of the family code. See id. § 153.371. Father and Mother filed separate answers. On March 2, 2016, the Smiths we re appointed Betty’s and Andrew’s temporary possessory conservators, and the trial court ordered that both Father and Mother have onlysupervised visitation. 3 On June 28, 2016, the Department fil ed a motion to remove the Smiths as temporary possessory conserva tors and, in their place, sought to appoint the Joneses as the children’s temporary possessory conservators. Mr. Jones is Father’s paternal great uncle.

3 As part of the Department’s motion to modify possessory conservatorship on which this order was based, it submitted an affidavit stating that “[t]here is an ongoing criminal case pending to see who caused the injured [ sic ] to this child.”6 The following week, Jane Doe, a person who had regular contact with the children before their removal, filed a petition in in tervention. She asserted that appointing either parent as sole managing conservator or both parents as joint managing conservators would significantly impair the children’s physical health or emotional development. She sought to be appointed the child ren’s possessory
conservator. As the Department requested, in earl y July 2016 the trial court removed the Smiths and appointed the Joneses as the childr en’s temporary possessory
conservators. On August 31, 2016, the trial court ordered Father to pay $1,200 per month in child support an d ordered Mother to pay $ 800 per month in child support. On October 5, 2016, the Departmen t, the Joneses, Father, Mother, and Jane Doe filed a “Binding [Med iated] Settlement Agreement.” See id. § 153.0071(e). There is no allegation that the parties failed to meet the prerequisites to a binding agre ement under section 153.0071(d). See id. § 153.0071(d). As the case approached it s one-year anniversary, the trial court signed an order in December 2016 retaining the su it on the court’s docket and resetting the case’s dismissal date to July 26, 2017. 4 See id. § 263.401 (West Supp. 2017).

4 The prosecutor explained the ne ed for the delay at the June 6, 2017 hearing: “The reason wh y we extended the case wa s so that the [Joneses],7 On March 28, 2017, the Department filed a “Motion to Modify Managing Conservatorship in a Suit Affecting the Parent-Child Relationship.” The Department sought to have it self removed as managing conservator and to have the Joneses appointed as ma naging conservators. The Department additionally sought to have Father, Mother, and Jane Doe appointe d as possessory
conservators. On April 12, 2017, Father and Mother replaced their orig inal attorney and filed a joint objection to the MSA. The unique (and limited) grounds for setting aside a mediated settlement agreement are set out in section 153.0071(e-1) of the family code. See id. § 153.0071(e-1). Father and Mother did not, however, raise those grounds. On June 1, 2017, relying specific ally on section 153.0071(e) for the proposition that the trial court must ente r judgment in accord ance with the MSA, the Department filed a motion to enter judgment. See id. § 153.0071(e). Father and Mother respon ded to that motion four days later. Once again, they did not cite section 153.0071(e-1) as the basis for inva lidating the MSA. The next day, June 6, 2017, at the hearing on the Department’s motion to modify managing conservato rship and motion to ente r judgment, the Department requested that a judgment be entered base d on section 153.0071(e) of the family

who had possession of [Andrew] and [Betty], would be licensed and be able to get foster connection benefi ts by being licensed for si x months before we close the case.”8 code. When the trial court specifically asked if that meant the Department was not going to be putting on any testimon y, the Department re sponded, “That’s correct.” That same day, the trial court signed its “Final Order in Suit Affecting the Parent-Child Relationship.” Citing sectio n 153.371, the trial court appointed the Joneses as the children’s permanent ma naging conservators and consequently removed the Department as managing conservator. See id. § 153.371. Father, Mother, and Jane Doe were appointed po ssessory conservators, and the court then identified the conservators’ statut ory rights as set out in sections 153.073 and 153.074. See id. §§ 153.073–.074. The court incorporated the mediated settlement agreement by refere nce and attached it as Attachment A. 5 The MSA, as noted, included a 48-month moratorium on filing a motion to modify and required an “emergency” before any mo tion to modify could be filed within those four years. 6 The court ordered possession as set out in Attachment B,

5 The order did contain an unexplained variance from the MSA: the October 3, 2016 MSA appears to re cite—the copy in the record is not completely legible—that Father’s and Mother’s period s of possession were to be supervised by Family Court Services or the Smiths, the latter of whom did not participate in the mediation or sign the M SA. (The Smiths were the family friends initially designated as the children’ s temporary possessory co nservators, a role into which the Joneses stepped in place of the Smiths with the court’s July 6, 2016 order.) The final order incorpor ates the MSA “sav e and except any reference to” either of the Smiths. Fatherand Mother do not complain on appeal, and did not complain in the trial court, that the trial court’s va riance from the MSA somehow rendered it l egally infirm or void.

6 Although the MSA can be interprete d to mean that an emergency would be necessary even after 48 months had elapsed, at th e June 6, 2017 hearing9 under which Father and Mother got four hours of supervised visitation twice a month. Finally, the court orde red that Father and Mother pay child support as set out in Attachment C, which simply cont inued Father’s $1,200 monthly payments and Mother’s $800 monthly payments. Section 153.0071(e) applies in this case In their first issue, Fat her and Mother assert that section 153.0071(e) of the family code does not appl y to suits to terminate th e parent–child relationship brought under family code Chapter 161, citing In re Morris , 498 S.W.3d 624 (Tex. App.—Houston [14th Dist.] 201 6, orig. proceeding), and In re K.D. , 471 S.W.3d 147 (Tex. App.—Texarkana 2015, no pet). They contend that because termination under Chapter 161 was foundational to this suit, the trial court erred by granting the motion to enter judg ment on the MSA based on section 153.0071. Although the Department’s suit did not result in a Chapter 161 termination, Father a nd Mother argue th at because termination was still a possibility at the time they negotiated and agreed to the MSA, section 153.0071 does not apply. 7

both sides treated that “emergency” provis ion as applying only during the first four years, with the parents being free to move to modify on any available basis thereafter.

7 Despite having claimed duress in their written response to the Department’s motion, at the motion-to- modify hearing Father and Mother, through counsel, explicitly disavowed that theory: “That threat hanging over their head at the time of mediatio n, which everybody here concedes it was, is what makes this—I’m not making any argument that my clients signed this under duress or for the duress reason they should get out.” On appeal, they appear to10 Section 153.0071 provides, in part: (c) On the written agreement of the parties or on the court’s own motion, the court may refer a suit affecting the parent-child relationship to mediation. (d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides, in a prominently di splayed statement that is in boldfaced type or capital lette rs or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the ag reement; and (3) is signed by the party’s atto rney, if any, who is present at the time the agreement is signed. (e) If a mediated settlement agreem ent meets the requirements of Subsection (d), a party is entitl ed to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law. (e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds: (1) that: (A) a party to the agreemen t was a victim of family violence, and that circumst ance impaired the party’s ability to make decisions; or (B) the agreement would permit a person who is subject to registration under Chapte r 62, Code of Criminal Procedure, on the basis of an offense committed by the person when the person was 17 years of age or older or who otherwise has a history or pattern of past or present physical or sexual abuse directed against any person to: argue duress tangentially by suggesting th at the mere threat of termination takes the MSA out of Chapter 153 an d puts it into Chapter 161.11 (i) reside in the same ho usehold as the child; or (ii) otherwise have unsupervised access to the child; and (2) that the agreement is not in the child’s best interest. Tex. Fam. Code Ann. § 153.0071. A. In re Lee : The supreme court holds that, wi th a narrow statutory exception that Father and Mother do not rely on , section 153.0071 removes the trial court’s discretion to deviate from the mediated settlement agreement. In a case that did not involve termination or the threat of termination in any respect, the Texas Supreme Court has written that section 153.0071(e) unambiguously entitles a party to judgm ent on a mediated settlement agreement that meets the stat utory requirements. In re Lee , 411 S.W.3d 445, 453 (Tex. 2013) (orig. proceeding). The only narrow exception is when section 153.0071(e1)’s family-violence-relate d factors are satisfied. Id. The supreme court continued, “By its plain language, section 153.0071 authorizes a court to refuse to enter judgment on a st atutorily compliant MSA on best interest grounds only when the court also finds the fami ly violence elements are met.” Id. Put differently, the court wrote that the stat ute did not authorize the trial court to substitute its judgment for that of th e parties as reflected in the mediated settlement agreement absent the section 153.0071(e-1) elements. Id. The court viewed it as “absolutely clear” that th e Legislature limited the trial court’s consideration of best interest when entering a judgment on an MSA only to cases involving family violence. Id. “Allowing a court to decline to enter judgment on a12 valid MSA on best interest grounds withou t family violence find ings,” the supreme court concluded, “would impermissibly r ender the family vi olence language in subsection (e–1) superfluous.” Id. Because Father’s and Mother’s case does not involve the section 153.0071(e-1) ex ception, under Lee the trial court was required to enter judgment on the mediated settlement agreement—and to do so essentially without any judicial oversight or review. See id. at 453–58; see also Morris , 498 S.W.3d at 629–30. Unless, of cour se, and as Father and Mother urge, section 153.00 71 does not apply at all. B. K.D. and Morris : Two intermediate courts hold that section 153.0071 does not limit the trial court’s discretion when parent al rights are actually terminated by agreement (and, acco rding to Father and Mother, even when parental rights are not terminat ed but termination is threatened). Faced with a mediated settlement ag reement under whic h a mother signed away her parental rights, the Texarkana Court of Appeals balked at the idea that, in the context of a termination proceeding , the parties could effectively preclude a trial court from exercising any oversight or review. “Of course,” it nevertheless wrote, “we do not hold that a settlemen t agreement obtained through mediation under Section 153.00 71 accomplishes nothing in a parental-rights termination case brought by the Department,” pointing out that the mediation “resulted in the execution of a valid and en forceable affidavit of re linquishment and mediated settlement agreement.” K.D. , 471 S.W.3d at 168. That is, the relinquishment affidavit eliminated the Department’s bu rden of proving the first prong under13 section 161.001(b)(1) an d precluded the mother from backing out of an agreement in which she agreed that termination was in her child’s best interest, because the agreement was enforceable against her. Id. But the critical question was whet her the mother’s agreement that termination was in her child’s best interest bound the trial court

. Id. “In other words,” asked the Texarkana court, “must the Department still prove by clear and convincing evidence that term ination of [the mother’s] rights is in [her child]’s best interest [under section 161. 001(b)(2)] even though [the mother] agreed that it was,” or could “the [affidavit of relin quishment] and the MSA eliminate that [section 161.001(b)(2) best-interes t] element of proof as well[?]” Id. The answer in K.D. was that the Department still had to prove the bestinterest element regardles s of a relinquishment affi davit and an MSA. “After comparing the mediation process in a pare ntal-rights termination case brought by the Department against the mediation proc ess involving private parties,” and then “evaluating the results of that comparison in light of constitutional due process considerations,” the court co ncluded that “due process requires the [Department] to still prove by clear and convincing evid ence that termination is in the child’s best interest.” Id. at 168–69. The court noted that “a mediated settlement agreement and an affidavit of relinquishmen t in a parental-rights termination case may be binding between the parties,” bu t that fact “does not eliminate the Department’s burden of proving by clear a nd convincing evidence under [section14 161.001(b)(2)] that termination is in the child’s best interest or the trial court’s power to deny termination in the absence of such proof.” Id. at 169. The Houston Fourteenth Court ofAppeals effectively adopted K.D. ’s analysis in its Morris opinion. 498 S.W. 3d at 631–34. C. Discussion We agree with Father and Mother thatthe Department filed this suit to terminate their parental ri ghts under Chapter 161—but it was also more than a termination suit. The Department sought conservators hip for itself, and, if Father’s and Mother’s parent al rights were not terminat ed, it sought to have the conservatorship placed in someone other than the parents. The suit thus encompassed both Chapter 161 and Chapter 153 an d was ultimately resolved under Chapter 153. The cases on which Fa ther and Mother rely— K.D. and Morris —were ones that entailed mediated settlement agreements resulting in the explicit termination of parental rights. Morris , 498 S.W.3d at 626; K.D. , 471 S.W.3d at 153. It was the fact of those terminations that unquestionably put K.D. and Morris within Chapter 161, unlike here, where Fa ther’s and Mother’s pa rental rights were not terminated. Although their rights were not in fa ct terminated, Father and Mother argue that section 153.0071 ne vertheless does not apply because the Department pleaded for termination and because term ination was still on the table when the mediation occurred. We disagree. The precise question asked in K.D. was, “Does15 Section 153.0071(e) Fore close a Best-Interest Review Under Section 161.001(2)?” K.D. , 471 S.W.3d at 165. The answer was no, that it does not. Id. at 169. 8 Similarly, in Morris , the court held that section 153.0071(e) does not “preclude a trial court from determining under section 161.0 01(2) whether the plaintiff has proved by clea r and convincing evidence th at termination would be in the child’s best interest.” 9 Morris , 498 S.W.3d at 634.

8 The K.D. court wrote: [A] mediated settlement agre ement and an affidavit of relinquishment in a paren tal-rights termination case may be binding between the parties, but it does not eliminate the Department’s burden of proving by clear and co nvincing evidence under Section 161.001(2) that termination is in th e child’s best intere st or the trial court’s power to deny terminatio n in the absence of such proof. Id. Later in the opinion, the K.D. court wrote more broadly: “In the absence of any clear Legislative intent to the contrary, we find that Section 153.0071(e) does not foreclose judicial review of the best-inter est element of proof in a parental-rights termination case brough t by the Department.” Id. at 174. To us, the more specific language controls, and the br oader language of the se ntence just quoted does not expand the holding to mean that section 153.0071 does not apply whenever the Department simply pleads for termination.

9 The full quote suggests, at first blush, that Morris is written more broadly but in context is not: [W]e conclude that sect ion 153.0071(e) does no t apply to suits for termination of the parent-child rela tionship under Chapter 161 of the Family Code and that a medi ated settlement agreement [ effectuating a termination] therefore does not prec lude a trial court from determining under sect ion 161.001(2) whether the plaintiff has proved by clear and convincing ev idence that term ination would be in the child’s best interest. Id.16 Both K.D. and Morris —which, we reiterate, involv ed settlements in which a parent actually agreed to termination—focuse d specifically on t he MSA’s effect on the section 161.001(b)(2) best-interest fi nding that a court must make. Because Father’s and Mother’s parental rights we re not terminated, th ere is no section 161.001(b)(2) finding to review, nor did the trial court need to make such a finding. To the extent K.D. suggests that its analysis applies even to termination suits that do not actually result in termi nation, any such suggestion would be dicta. Father’s and Mother’s reliance on Morris is distinguishable for the same reason: Morris involved a suit to terminate parenta l rights that ended in a mediated settlement agreement termi nating the mother’s rights. 498 S.W.3d at 627. Any language in Morris suggesting that its analysis ap plies even to termination suits that do not result in termination is dicta as well. Contextually, both K.D. and Morris appeared to have used the broader language precisely because their facts involved termination suits that resulted in termination, meaning that section 161.001(b)(2) was necessaril y implicated. In contrast, nothing in the settlement agreement here implicated section 161.001, because no parental rights were terminated. At oral argument, Father and Mother argued that just as a criminal defendant may back out of pl ea bargain and go to trial, so too should they have the right to back out of their mediated se ttlement agreement and go to trial. But a criminal defendant does no t face a non-negotiable st atutory dismissal deadline, as the Department here did—July 26, 2017. See Tex. Fam. Code Ann.17 § 263.401 (providing that a Department ca se seeking terminatio n or to have the Department appointed conservator must be di smissed, if not tried, no later than 180 days after the suit’s one-year anniversary). 10 If parents could unilaterally revoke a mediated settlement agreemen t, they could play havoc with that dismissal deadline. Additionally, an d most importantly, children need permanency and stability. See In re C.T. , 491 S.W.3d 323, 328–29 (Tex. 2016) (orig. proceeding). An irre vocable MSA lends itself to those goals; a revocable MSA potentially underm ines them. Ultimately, of cour se, this is an issue for the legislature. For Father’s and Mother’s and for our purposes, the legislature has spoken. This case was resolved under Chapter 153 and did not terminate the parents’ rights; therefore, section 153.0071 applies. We hold that the trial court did not e rr by applying section 153.0071(e). We overrule Father’s and Mother’s first issue. Father’s and Mother’s rema ining issues are not ripe Father’s and Mother’s remaining tw o issues attacking (1) the 48-month limitation before they can move to modifyand (2) the “emergency” exception are

10 Underscoring the time-sensitive nature of these kinds of cases, we are in turn directed to do everything in our power to hand down a decision within 180 days from the date a noti ce of appeal is filed. Te x. R. Jud. Admin. 6.2(a). The dissent correctly notes that the ru le is not absolute, but we have not exceeded 180 days a single time since 2015. Withou t elaboration, we also note our disagreement with some of what is implied about timing issues concerning the majority opinion. Finally, although th e dissent does not mention or suggest it, we invite the parties to move for rehear ing so that everyone can at that point receive what we know will be a thorough and del iberate dissent in this important case.18 not ripe. See Waco I.S.D. v. Gibson , 22 S.W.3d 849, 851–52 (Tex. 2000); Patterson v. Planned Parenthood of Houston an d Se. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998). Ripeness and standing are subject- matter-jurisdiction components and cannot be waived. Waco I.S.D. , 22 S.W.3d at 851. Under the ripeness doctrine, courts consider whether, at the time the plaintiff sues , the facts are sufficiently developed “so that an injury has occurred oris likely to occur, rather than being contingent or remote.” Id. at 851–52 (quoting Patterson , 971 S.W.2d at 442). The ripeness analysis thus focuses on whet her the case involves “uncertain or contingent future events that may not oc cur as anticipated or may not occur at all.” Id. at 852 (quoting Patterson , 971 S.W.2d at 442). Byfocusing on whether the plaintiff has a concrete injury, t he ripeness doctrine prevents premature adjudications and serves the constitutional prohibition against advisory opinions. Id. A case is not ripe if determining whet her the plaintiff has a concrete injury depends on (1) contingent or hypothetical facts or (2) events that have not yet come to pass. Id. In this case, neither Father nor Mother has filed a suit to modify conservatorship. No trial court has ruled on Father’s and Mother’s contentions that the 48-month provision and the “e mergency” provision are invalid. Any opinion we might give on the matter would be advisory in anticipation of such a future motion to modify c onservatorship. We may no t give advisory opinions. See Patterson , 971 S.W.2d at 443.19 We overrule Father and Mother ’s second and third issues. Conclusion Having overruled all of Father and Mother’s issues, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr ELIZABETH KERR JUSTICE PANEL: WALKER, KERR, and PITTMAN, JJ. WALKER, J., filed a dissenting opinion. DELIVERED: Dece mber 18, 2017