### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00501

- CV

Tony Dinwiddie , Appellant

v. Margaret Danielle Pottin and Jennifer Ann Francis, Appellee s

FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 323928, THE HONORABLE CARI L. STARRITT -B URNETT, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N Tony Dinwiddie appeals from the trial court ’ s order terminating his parental rights to his son “ K.J. ” We affirm the trial court ’ s termina tion and adoption order.

FACTUAL AND PROCEDURAL SUMM A RY
K .J. was born in January 2019 to Dinwi ddie and Patien ce Barnes

. In mi d-2021,

ap pellee s Margaret Danielle Pottin and Jennifer Ann Franc is filed a petition to terminate Barnes ’
and Dinw idd ie ’s parental rights and to be named K.J .’ s adoptive p arent s. 1 On A ugust 5 and 14 , 2021, Dinwiddie and Ba rnes executed affidavit s of voluntary relinquishment of their parental rights, designating Pottin and Francis as managing conservators , and those affidavits were filed in the trial court on August 26. O n August 3 1 , however, Dinwiddie wrote a lette r to the trial

1 The original petition was filed in A pri l 2 021 by Pottin as sole pet itioner . In June, after they married, Pottin and Francis filed an amended petition naming them both as petitioners

. Pottin has sinc e changed her l ast name to Francis, but for cla ri ty ’ s sake, we will refer to h e r as

“ Pottin ” an d to h er wife as “ Francis. ” Barnes is not a party to this appeal.2 court statin g , “ I a m writing th is letter to state my intent of NOT relinquishing my rights

. ” He

assert ed that he signed the affidavit “ under duress and pressure ” and without giving himself time

to discuss i t with his parents because Pottin had told him “ that the paper was r eversible

. ” H e
said Pottin had told him th at he “ would still have all th e rights , ” that the affidavit was necessary

“ for her to be able to give [K.J.] an education , ” and that Dinw i ddie “ w ould still be dad and still have say so , ” but after he signed , “ star ted actually enforcing ” it , withholding K.J. and saying th at

“ the court ordered it. ” Dinwiddie said Pottin had “ di sre garded [ his ] feelings ” and was going
forward with the termination and adoption p rocess
. On Se ptember 30, the trial court held a termination /adoption hearing. Dinwiddie appeared pro se and before testimony began told the trial court that he w as not in agre ement with the termination of his parental rights and t hat he had si gned the a ffidavit “ just kind of on a trust

basis system. I t was more for kind of guar anteed use of G I Bill for fin ancial benefit for ” K. J. He
stated , “ I was informed that th e paper was reversible , and that if I didn ’ t like the proce ss that was going on, that we could terminate what was going on. I was basicall y misinformed. ” He
admitted that he had read the affidavi t and agreed when the trial court as ked if he ha d read “ th e parts where it says the reverse of everything you ’ re saying to me right now , ” b ut said , “ Honestly, I could barely sign it whenever I read it, and it seemed like I was

— honestly, I was kind of
bullied a nd I was under duress whenever I did si gn it. ” Di n wid die insisted, “ I was under the belief that I was still going to be the father and I was going to be the main caregiver. ” However,
Di n widdie admitted that so far in K .J. ’ s life, he had not been the primary caret aker

. Barnes testified that P ottin start ed as a babys itter but that her caretaking became

“ more frequent. An d then [K.J.] jus t has be en with her like m o st of the time. ” Barnes also said
she a nd Dinwidd ie had voluntarily left K.J . with P ottin and Francis for more than six months and3 never had “ an intent for it to be a temporary sit uation. ” She explained that she had been in a

s ub st a nce abuse felony punishment facilit y ( SA FP F ) and that since he r release, “ this has been
talked about. We ’ ve talked about t his the day I got home and came to see my son where he was.
At their ho u se, that ’ s where he was whenever I came home. ” She sai d th a t “ one of the first things we talked about is making this a fi nal thing

. ” B arnes testified that she, Dinwiddie, Pottin , and Franc i s had agreed that Dinwiddie and Barnes were “ [d] efinitely still going to be involved,
but [that Fra ncis and Pottin] w oul d ha v e all of the responsibility of be ing a parent. ”
B a rnes “ [d]e finitely ” believed it was in K.J. ’ s best inte rest for him to remain with
Pottin and Francis and not to be in Dinwiddie ’ s care. She explained that Dinwiddie works nigh ts
and that “ it ’ s j ust e as i er for them to care for all of his needs. ” Further, she sai d , Dinwiddie is

“ not seasone d on being

— on what he needs to do for ” K.J. and “ has never had another child before, so he just doesn ’ t know exactly what [ K.J.] needs when h e needs it. He jus t doe sn ’ t
know. ” Barnes testified that she wanted h er and Dinwiddie ’ s rights to be terminated a nd Pottin
and F ranc i s to adopt K.J. , saying, “ I want this to happen. I want the paperwork to go through the way we signed it. I think that ’ s what ’ s best for K .J

. ”
Denise Joh n son , an investigator for the Texas De partment of Family and
Pr otective Services, testifi ed that the D ep artment had investigated a report of n eglectful supervision and possible se xual abuse. When she spoke to Dinwiddie , he denied that he ha d lef t
K.J. hom e alone but admitted “ that at one point he did hire a babysitte r off of Faceb ook ” bec ause he had to go to work. Dinwiddie also reported that the last time he had seen K.J. in person or
had him “ in hi s custody or in his care, like away from the h ome, was i n July , ” telling Johnson
that Pottin and Franc i s “ had had the c hild o u t of state and the child primarily resided over there. He had been having supervised visit s with [K.J.] at that home since July. ”4 Johnson testified that she told Pottin and Fr ancis th a t the Department

would not get in the middle of child c ustody. If this was the custody agreement, we would do

— our investigation is to e nsure the safety of the child. I said that if they ’ re the

. . . the guard ians of [K.J. ] , it wa s the ir j ob to m ake prot e ctive parentin g choices for the child. If they believe that the child was not safe with Mr. Di nwiddie and they were supervising the contact with him, then by all means. At no time did we directly say, like, a s a result that they should no t allow him to h ave access to the child. They were already supervising his contact with the child befor e the [D] epartment was ever involved.

Johnson testified that Dinwiddie, as a first

- time paren t, “ was provided with re source s in t he
communit y on parenti ng clas ses and t hings that could bett er help him as far as learning to be a better parent ” a nd that he had started a pare nting class. Dinwiddie has a job, receives food

sta mps, “ has the child on Medicai d, ” an d “ has a home , the child has a bed over there, the chi ld
had a p propriate sleeping arrangements over there. There was food in the home. S o he appears
to be able to meet the child ’ s b asic needs. ” She did not know what income Dinwid die had
declared in see king governmental benefits , what kind of job he had , or whether it was legal

. 2
Dinw iddie testified that he dea ls cards for a social club , no longer deals cards for private games, and has tried to move from working five nights a week to three s o that he can be
more invo lved i n K.J. ’ s life

. Dinwiddie t estifie d that h e “ came to agreement with Ms. Pottin ”
because “ just the fact that I work five nights a week, I didn ’ t have the means to, you know, have
him taken care of

. I couldn ’ t be at work and have my child at hom e by himself

. ” Dinwiddie
stated that h e would s ometim e s pr ovide groceries and would leave cash “ [s ]ometimes when I

wa s able t o ”

— h e t hought he had provided cash in the last six months but could not say when.

2 Johnson was asked whether Din widdie had fraudulently obtained government benefits by fail ing to disclose his “job as an illegal c ard deale r, ” answering that she did not “ know what inf o rmation [wa s] used or what income he d isclosed. ”5 D inwiddie testified about his signing the affidavit of relinqu ishment as follows:

I j ust feel li ke I didn ’ t

— I didn ’ t get the proper time to go over the paper t hat I signed. A nd I understand that I felt bullied and pressured to do i t that day because I had undeniable trust for Ms. Pottin. And, you know, I

— I mean, I didn ’ t want to lose my rights as a fat h er. I never did agree to that. Whenever I signed the pap er, I made it a point that I wasn ’ t going to abide by it. A nd she said, It ’ s okay, we ’ re just going to do this for the schooling. But she said that you would be dad and you would h ave the res pons i bility of being his father still. And ever since I signed that paper, I have n ’ t like

— it ’ s been forced out of my hands. I can ’ t ev en visit my child sometimes. Sometimes I text and call, and I won ’ t get a response un til the evening, the da y after. A nd I honestly don ’ t

— I didn ’ t sign up for that. I couldn ’ t sign up to lose my ri ghts. I didn ’ t

— I just felt even though I ’ m inexperience d as a fath er, I asked them to help and not take over.

Dinwiddie was asked whether he under stood that to revo ke the affi davi t , he had “ to bas ically do the same process ” as when he signed it , and whether he h ad done any of those steps, and he sa id,

“ I don ’ t understand how this process works. ” H e agreed that he can read and write the E nglish language , said that he had “ proba bly a bout c lose to three years of college ed ucation , ” and said
that he signed the affidavit because he “ had 1 00 percent trust for Ms. Pottin, because she was doing a good job taking care of my son. ” However, he said , “ I was under agreement that I would

st ill b e th e dad, and I w ould have all of th e rights. Like

— I was informed that it was just simply doing this f or him to have a college education after school. ”
The t rial court ask ed Din widdie if he would want to retain his rights and pay

t wenty p ercent of h is i n come as child supp ort to Pottin and Francis , and he answered :

No, I don ’ t want that. I want to take car e of my son. And if we need to work out fin ancials to where I have to pay th em for baby

- sitting, then that would be between us. But I prefer not to d o that. I ’ m taking care of him anyways. I have provided diapers and all of his cl othes and toys. I pr ovided about 80 percent of the stuff.6 Dinwid die did not dispu t e tha t Pottin and Francis had been “ primarily ” caring for K.J. but said,

“ J ust because th ey kind of forced it out of my hand after I signed the paper. ” He told the court
that i n the last fou r mo nths, he had only had K.J

. “ maybe three to four nights ” and said, “ I didn ’ t sign u p for that. ”
Pottin test ifie d that she met K.J. in Feb ruary 2019, wh en he was about o ne month
old , because h er daughter babys at for K.J. and wou ld bring him to Pottin ’ s house

. W h en her
da ughter moved out of state, Dinwiddie and Barnes asked Pottin to care for the baby , so she

starte d babysitting part

- time in June 2019 , in cr eas ing her time as K.J. ’ s caretaker after she
retired

. Soon after K.J. ’ s first birthday , P ottin “ lo st contact with ” Barnes :

And things

— eventually time went on and we found o ut months later, almos t a year, that it was because she had

— was de aling with her o wn issues and went to jail. But from that point forward, I started taking care of him the majority of the time especially once I found out he was still continuously g oing to the Facebook baby

- sit ters when I couldn ’ t take care of him. And I was like, No

. So I was able to take care of him a lot more. So June 2019 I became almost his full

- time provider. Tony wasn ’ t working seven days a week at that time. It was maybe five days a week. So he was wit h Tony two of those days, yes. And then over time, it j us t

— he never left the house. He was there and it was more so, Tony, I ’ m going to bring [K. J.] over at naptime because I need to go to a doctor ’ s appointment for you t o watch him. But knowing Ton y wo rks the hours he does, that ’ s why strate gically at nap ti me , he would go and care for him, or I would take him over to care for him and pick him up or Tony w ould drop him off before work. And that has been the relationship this entire time.

Pottin test ifie d that K.J. had been spending nights at her house f or mo re than two years and that Dinwiddie had voluntarily left K.J. with her for more than six m onths and had never said “ on such and such time or when such and such happens, y ’ all can come back for hi m. ” H e had left

grocer ies “ the other day ” b ut Pottin s aid t hat he had not given her any cash in the last six months.7 Pottin testified about the da y Dinwidd ie signed the affidavit of relinquishment and
said she and he we nt to the UPS Store and wa it e d in a long l ine so that he could sign the
docume nt in front of w itnesses and have it notarized. She testified that she did not “ do anything
to threaten or coerce h im ” and that he was impatient about the line because he was running late.
A sked whether she and Dinwi d die discussed the re vocability of the affidavit , Po tt in answered:

Yes, he did ask about it. And clearly it states on the paper. So I gave him

— I told hi m, yeah, it c an be revoked, Tony. It can go back. Nothing has changed as you being a father

. He ’ s like

— a ll of this time, in the age, he ’ s like a son ho ne stly. That ’ s

— like my grandchild, having Tony is like my son.

Pottin testified that she off ered to m ake Dinwi ddie a copy of the affidavit , and he said, “ No, I
don ’ t want that. I don ’ t want that i n my house. The words that are written on t here are no t e ve n something I want to . . . have in my home. ” She believed that Dinwiddie “ doesn ’ t underst and
those things [related to re vocation] because he chose not to take a copy of it. ” She further
testifi ed that regardless of the trial court ’ s ruli ng, D in widd ie is “ still [K.J. ’ s] father. ”
Francis testified that she ha s been in the mi litary for twenty

- t hree years an d that
b efore meeting Pottin , K. J., and K.J. ’ s parents , she had decided to focus on her car eer rat her than having children . S he said t hat s ince b eco mi ng involved with Pottin and K.J. , however :

nothing is obviously more important than taking c a re of this little human being. Not even my career. And I am 23 years in and I ’ m very successful. And I just want to set him up for success, set up this fam ily f or success. And it ’ s more than a GI Bill, sir. It ’ s more than any medical that I can ever p rovide. It ’ s teaching, learning, waking up, taking him to the potty. And I can go on and on. But I ’ m just a n outsider looking in, but very m uch so involved in [ K.J. ’ s] life. I love that little boy. He ’ s not mine. He has a father. He has had a moth e r
. And I just want to do the very best to set him up for success and be what I can as far as a parental guardi an, parent. Whatever I need to b e, I ’ m there.8 A ske d about “ the se xual ab use allegations , ” Francis testified that she did not know very much
abo u t it but that she had seen injuries around K.J. ’ s anus
. 3 She explained that they found the

sores af ter Dinwi ddie dropp ed K.J. off

. K.J. acted cons tipated and “ r ea ct [ed] in excruciating pain , ” and Francis said that “ i t was not normal , ” so she and Pottin took h im to his primary physician and then sought a second opinion “ just to find out a little bit more

. ”
Pottin and Francis called Nicole Richards t o testif y
. Richard s had also babysat for
K.J

. and said she started to watch him more o ften when she “ found out that [Dinw iddie] was using the Facebook baby sitter more frequently. ” Richards also said that K. J. “ had been showing signs of constipation and a lways never being a bl e to poop , ” and that she “ noticed sores and cuts ”
on his anus in about March

. Although she had dealt with babies her “ entire life, ” she “ had neve r

seen anything like that before. ” Richards also testified that Din widdie had denied neg lect ing
K.J. but ad mi tted that he once left K.J. alone i n the middle of the night while he went shoppi ng
. Richards thought Dinwiddie “ has a p o tential t o be a good parent ” but “ is very lazy about it ” and
di d not think unsupervised access by Dinw iddie was i n K.J

. ’ s bes t inter es t.
T he trial court also considered a September 29, 2021 report filed by adopti on investigat or Suzy Lackmeyer . Lackmeyer stated that K.J. had been born with drugs in his system and had had “ some speech and hearing diff iculties ” but was receiving s ervices t o address
those issues. Lackmeyer reported that Barnes prim arily maintained her relat ionsh ip with K .J. through phone c alls a nd vi deo calls a nd wa s ex pected to conti nue that relationship in the future

. Dinwiddie , howe ver, “ visit [ed] o nce or twi ce a week o vernight ” u p until July 27, 2021, but n ow

“ makes plans and c ancels , ” and Lackmeye r said, “ H e is not expected to have a relatio nship with

3 As des cribed later, the sores were determined to be pressure ulcers and the concerns about possible se xual ab u se have been resolved.9 [ K.J.] in the futur e. ” Lackmeyer said that Pottin and her daughter were babysitters and that o ne day Dinwiddi e and B ar nes “ just did not show up to pick him up , ” a t which point Pottin be came
K.J. ’ s caregiver

. At the time of Lackmeyer’ s report, K .J. had lived with Po ttin and Francis “ for over two years. They have bonded to him and wish to provide him wi th a p erma nent, l ov ing and

s afe home. ” Lackmeyer concluded, “ This adop ti on appears to be in the best inte rest of [ K.J. ]. ”
At the conclusion of the September 30 h earing, the trial cou rt found that “ the affidavit of relinquishment is valid and not revoked properly ” a nd that “ termination of both
parents ’ rights [is] in the be st interest of the child

. ” It also stated that it wa s appointing Pottin
and Francis as K.J. ’ s adoptive parents. O n October 1, the trial court signed an order to that
effect , finding t hat Dinwiddi e had e x e cuted an unrevoked o r irrevocable affidavit of
rel inquishment; voluntarily left K.J. a lon e o r in the possession of a non

- parent for at least three
months without exp ressing an intent to return and without providing for the child ’ s adeq uate support ; and v ol untarily left K.J. alone or in the possession of a nother for at least six months
witho ut pro viding adequate support

. See Tex. Fam. Code § 161.001(b)(1)( B), (C), (K )

. That same day, Dinwiddie fi l ed a letter asking the court to reconsi de r its deci sion to t erminat e his parental rights ; i n mid

- October , he retained an attorney , who filed a n am ended motion for new
trial ; and o n October 21, he filed a witnesse d and notarize d re vocation of affidavit

. On November 18, the trial court held a hea ring on Dinw idd ie ’ s m otion for new
trial

. Dinwid die denied that at the time he signed th e affidavit , K.J. was already “ staying with somebody else outside of [ Dinwidd ie ’ s] family, ” testifying that Pottin “ was a babysitter ” and

“ was helping

. ” Dinwiddie sai d tha t he di d “ thin gs that fathers would do. Walk with him, play
with him, take him to the duck pond , feed him, clothe him, bathe him. Pretty much everything that you have to do as a parent just to keep him alive pretty much. ” H e testified that he had10 “ provided eve rything t hat [ K.J.] did need ” and that he brought food , “ di apers, clothing, toys, playgro unds, everything for him. ” He admitted that he never pro vided Pottin with cas h but said
tha t she “ never did ask for cash. ” He also testified that he “ pai d for the se rvices, e ven though she
said that I didn ’ t pay for . I did. It wasn ’ t much but I did pay for childcare. ”
D inwiddie said that Potti n brought up adoption “ because she wanted to pass the
GI Bill to ” K.J. , telling Dinwiddie and Barnes “ that she wa nted us to b e able to provide him with a college education down the lin e, and that was the only reaso ning for the adoption. ” Dinwiddie
testif ied that Pottin “ promised that I would be the father, and that I would be the main provider at
all t imes , ” but tha t after he s igned t he affidavit, she and Francis had “ completely just not even talked to me, not eve n allowed any contact with my son, no vide o chats, nothing. It

— just act
like I don ’ t exist. ” D inwid die insisted that Pottin gave him those a ssurances thro ughout the

p rocess of signing the affidavit, saying that she “ always a ssured that it was just for pa ssing the
GI Bill and that was it. I wasn ’ t

— I was going to still continue to be the father and the main provider

. ” Dinwiddie explained that aft er he signe d the docume nt, he st ill saw and video

- chatted
with K.J. at least ever y other day

. Pott in we nt to W ashington twice , and Dinwi d die said i t “ was only supposed to be for two weeks but e nded up being two month long time, kind of vacations , ” during which time he did video confer en ces with K.J. Dinwiddie testified that after the hearing on September 30, howe ver, he “ was not allowed to see [his] son anymore at all , ” and a sked what had changed , Dinwiddie replied , “ I guess they won and they felt like they didn ’ t n eed me to be a part o f my son ’ s life, and they didn ’ t allow any contac t at all. I felt like that ’ s not fair to my child because my child lov ed me and still loves me. ” Dinw iddie denied that he had texted
Barnes “ asking her to t ake [K.J. ] to the duck pond so y ’ all cou l d take o ff , ” saying that that

a llegation was “ absolutely false. ” He said that he had t e xted Barnes simply “ to spend some time11 with our child at the duck pond ” and that he had “ no ill intentions to take off and run ” or to

“ k idnap my own child. I don ’ t ev en know w here that came from. ”
Dinwiddie also testified th at Pottin and Francis had neve r told him that they were

mov ing to Virginia. He denied having any conversations with Francis “ in June and July about going to Virginia to visit ” K.J., say ing , “ No , be cause I n ever would talk to Ms. Francis . This

was a relat ionship between me and Ms. Pot tin. ” Dinwiddie said Pottin “ has n ot talked to me
about anything

. The reason why I learned that she moved was through my lawyers. ” Dinwiddie
denied that the issue of Pottin a nd Francis moving had come up during the September 30 hearing
and insisted that he was not aware that they had moved to Virgi nia

. Dinwiddie testified that between August 5, when he sig ned the affidavit , and September 3 0, he was n ever t old that he was goi ng to be c ut off from K.J. or that Pottin and
Francis w ould be moving to Virg inia

. H ad he known those facts, he said, he would “ [a]bsolutely

not ” have signe d the affidavit

. He said , “ I want to be my son ’ s father, and I want to be there for
the res t of hi s life. Like I never did agree to give up my parenta l rights officially. I just s igned the papers because like I said, I was promised that she would provide the GI Bill and insurance. ”
D inwiddie also said he “ ab solute ly ” re lied on Po t tin ’ s assura nces th at he would continue to be
K.J. ’ s father and “ main pr ovider ” because “ she was like a mother to me. Like I have no reason
not to doubt her. ” Dinwiddie admitted that he ne ver asked a lawyer about how to revoke his
affida vit or obtained a copy of it from th e district clerk ’ s office , and when he was a sked why he
did not get a copy when he went to the clerk ’ s office to file his October 1 letter to the trial court , Dinwiddie answered, “ I don ’ t know , sir. ”
Pottin agreed that she had told Dinwi ddie that he would b e able to see K.J. and

“ have a father relationship ” aft er h e signed the affidavi t of relinquishment , although the affidavit12 of rel inqui s hment states “ words to the effect of this terminates your parental rights fore ver
. ” Indeed, s he sai d , he contin ued to h ave contact with K.J. until h e te xted Barnes about bringing
K.J. to a duck pond , explain ing that “ [t] he way it was stated made me feel as if he was try ing to
take [K.J.]

. He wanted [Barnes] to brin g him. So at that point, that ’ s when my mom insti ncts
k ic ked in and that ’ s h is safety. ” Pottin had “ slowed down ” Dinwiddie ’ s access because of that
inciden t and “ his actions with [Barnes] , ” testi fying that she did not “ feel saf e around him if he ’ s going to act the way he did in such a manner

. ” As for D inwidd ie ’ s “ actions with ” Barnes, Pottin

was perm itted to testify only that Barnes “ came back very distraught after going over to Mr.
Dinw iddie ’ s house to get her things ” and that Pottin “ fe ar [ed] for the c hild and [Barnes ’ s] safety being aroun d M r. Dinwid die af te r that. ” 4

4 Barnes w rote a letter to t he trial court stating that sh e could not at tend the new - trial hearing because of wor k. S he stated that Pottin and Francis had cared for K.J. b ecause she and Dinwiddie had been unable to provide a safe an d s table environmen t

. Barnes reiterated that s he b elieved allowing Pottin and Fr ancis to ad opt K.J. “was th e best decision I could have made for him. ” Barnes also wrote :
Unfortunately due to the actions of [ Dinwiddie ] , following the adoption [P ottin ] has do ne what she felt necessary to keep [ K.J. ] sa fe; these actions include sending disrespectf ul and ugly messages to both [Potti n ] and I. He asked me to bring [K.J.] and meet with him at CTC to feed the ducks without telling [Pottin ]

. He was als o very agg res sive with me in a sexual manner when I came to h is house to get my belongings, wh ile apol ogi zing at a later date, saying he did not reali ze how his actions affected me. In my experience with [Dinwiddie] , he acts out on emotion and expects no consequenc es. I was unable to remove all of my belonging s an d [Din widdie] told me they wou ld be safe the re un til I could come get them. In the last month he has informed me he found an old diary of mine from when I was in active addiction and was thinkin g of showi ng it to the Judge. He has also told me my thi ngs were gone, donated or sold onl y to tell m e h e still has them. I'm not sure what his true intentions are in doing this, or why he felt it necessary to act in this manner. While I am positive [Di nwiddie ] l ove s [K.J.] , his actions portray a lack of stab ilit y both mentally and emotionall y that are cru cial to
a healthy environment for raising a c hild.13 Pottin testi fied that her f amily had moved to V irginia sometime after the September 30 hearing and that when Dinwidd ie signed the affidavit, neither he nor Pottin herself
knew that K.J. w ould be moving. However, Pottin disput ed that Din w iddie wa s never made aware that the family wa s moving to Virginia. She testif ied that although the “ exact words ‘ K.J. is moving to Vi rgin ia ’ were not stated, ” she , Francis, and Din widdie had discussions a bout going to Virgin ia and that she ass umed he unde rstood b ecause he “ never que stion ed or anythi ng. ” In addition, Pottin testified, Dinw iddie knew that Fran cis was stationed in Virgini a , he and Francis spoke about hi s visiting them in Virgin ia , and Pottin spoke to him “ about having to mov e. ”
P ottin said t hat , a mo ng other concerns, ongoing legal proc eedings would interfere
with K .J. ’ s medical appointments , saying :

In order for us to gain some type of consistency with [K.J.] and get him on track to where we know his health and mental stability ar e, y ou know, to wh er e they need to be for a three

- year - old child, right now after we took him to his primary
ca re doctor, he has a referral in for pediatric gastroenterologist, pediatric psychologist. For his hearing , he has to have his adenoids and his t onsi ls remov ed
so th at he can have tubes placed in. There are many, many medical appointment s that we ’ re already starting t o set up for him. And if we have to constantly interrupt that, we ’ re never going to get to a state where [K.J.] is, you know, menta lly, physica lly em ot ionally stable.

Pottin testified that such appointments were not routin e before she got inv olved in K.J. ’ s life

. Pottin also explained that they took K.J. to a gastro enterologist because he was suffering from

“ extreme p ain, consti pat ion, his anu s was re d, swollen ” ; he was throwing up ; and after returning
from time with Din widdie, he had “ big welts on his backside. ” T he doctor determined that the
welts “ are called pressure ulcers ” and told Pottin that such ulcers happen to “ so m ebody t hat ’ s
been s itting i n a spo t that ’ s wet for a l on g perio d of time. ” Pottin said she asked Dinwiddie

“ where those came from, ” and he responded, “ I don ’ t know. ” Pottin further testified that if there14 was a new trial, she and F rancis c ould bring forth new e vidence “ of abuse an d neglect grounds to
terminate his r ights. ”
Francis testified that Dinwi ddie knew that her duty station was in Virginia and
that she had had conversations with him about hi s coming to visit K.J. in Virginia

. She

ac kno wledged that she never speci fically t old Dinwiddie that K.J. was m ovin g but said that she
asked him in May if he would come visit the child in Virginia. She fu rther testified that her and
Pottin ’ s long

- term plan, after Francis retire s from the military, is to return to T exa s . She a greed
wh e n asked wh ether “ to the extent that the goal is to try an d keep everybody together, including Mr. Dinwiddie, including Ms. Barnes , that wou ld happen here. ”
Francis denied that she and Pottin inte nded to keep Dinwiddie out of K.J. ’ s l ife in
the fu t ure an d said, “ As it transpire d, w e say father rights and , you know, your role as a father, care giving, you use that very loosely. ” She explaine d that being “ a sole provider is a constant, steady payche ck, ” but that in the nine months she h ad known Dinwi ddie, h e had pro vided “ little

to none. And it takes more than that. ” Francis testified that K. J. “ was born as a meth baby ” and
needed “ to be pro vided and loved in more than what [Dinwiddie was] doing ma ybe once or twice
a week and at odd ho urs or right b efore w ork or tr ying to pick him up at 0200 in the mornin g. ” According to Francis , Dinwiddie was “ given [an] ample amount of time ” and that it was “ a lways on [his] time. Not [ K.J. ’ s ] t ime. ” She also said that Dinwiddie works “ at zero dark un til zero , ”

a nd that s he and Pottin “ wi ll not wa ke up a two and a half year old to accommodate father r oles. ”
Francis explained that Barnes ’ s hours made virt ual contact with K.J. “ more feasible ” and that she
and Po ttin “ accommodate it when we can , ” testif y ing that if Di nwi ddi e “ would maybe go about
it in a di f ferent way, ” he “ wo uld have the same rights as ” Barnes.15 DISCUSSION
Dinwiddie lists six presented issues, argu ing that the tria l court erred in finding

st atu tory grounds for t ermi nation and in finding t hat te rminat io n o f h is rights was in K.J. ’ s best
in te re st . We turn first to his second, third, and fourth issues, which challenge the trial court ’ s finding that termination could be based on Dinwiddie ’ s affidavit of relinquis hment

. A trial court ma y order termination o f a pa rent

- child relationship if it finds by clear and convincing evide nce that termination is in the child ’ s best interest and th at the parent
has “ executed before or after the suit is filed an unrevoked or irrevocable affidavit of

re linquis hment of par en tal ri ghts as provided by this chapter

. ” Tex. F am. Code § 161.001(b)( 1)(K), (2). Section 1 61 .103 provides that an affidavit for voluntary relinquishment of parental rights must be s igned no earlier than two days after the child is bo rn, wit nessed by

tw o peo ple , and verified before a person authorized to take oaths. Id . § 161.103(a). It must
inc lude a statement “ that termination o f the parent

- child relationship is in the best intere st of the
child ” ; a designation of a prospective ado ptiv e p arent, if ap pl ica ble ; and “ a stat ement that the relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time

. ” Id . § 1 61. 103(b) (6), ( 9), (12).

“ An affidavit of relinquishment th at meets the r equ ire ments of section 161.103 of the Texas Family Code is prima facie evidence of its validity

. ” In re A.R.M.K. , 588 S.W.3d 692, 699 (Tex. App.

— Amarillo 2019, no pet.)

.

Once the prop onent of a r elinquishment affidavit has established by cle ar and convi nc ing e v idence that the affidavit was executed according to the terms of section 161.103 of the Family Code, “ the affidavit may be set aside only upon proof, by a preponderance of the ev idence, that the affidavit was executed as a result of coe rcion, dures s, fr au d , deception, undue influence or overreaching. ”16 Vela v. Marywood , 17 S.W.3d 750, 758 (Tex. App.

— Austin 200 0 , pet. denied) (qu oting In re
Bruno , 974 S.W.2d 401, 405 (Tex. App.

— San Antonio 1998 , no pet.) )

. In seeking to overcome
an advers e fact f indi ng , t he parent contesting an affidavit “ must sur mount t wo hurdles

. ” Id

. at
759

- 60 (qu oting Sterner v. Marathon Oil Co ., 767 S.W.2d 686, 690 (Tex. 1989) ). “ First, the
record must be ex amined for e vidence that supports the .

. . finding, while ignoring all e vi den ce to the contrary , ” and if there is no evidence to support the finding , “ the entire record must be examined to see if the contrary proposition is established as a matter of law. ” I d

. (qu ot ing
Sterner , 767 S.W.2d at 690 )

. C oercion is generally de fi ne d a s c ompulsion th rough physical force or threat or through improper use of economic power ; m isrepresentation is a falsehood made with the intent and purpose to deceive ; and f raud “ refers to an act, omission, or concealment in breach of a l egal duty, t ru st , o r confidence justly imposed, when the breach causes injury to another or the taking
of an undue and uncon scientious advantage

. ” Id . at 760. “ In the context of fraud, courts hav e
stated tha t misrepresentation is making a false statement of fact or a fa lse expression of opinion by one claiming or implying special knowledge , ” and “ [s] ilence can constitute a misrepresentation ” if “ the particular circumstances impose on a person a du ty to speak and he deliberately remains silent

. ” Id

. (qu ot ing Spoljari c v. Pe rcival Tours, Inc. , 708 S.W.2d 432, 435 (Tex. 1986) )

. “ In general, once a party undertakes to speak, that party assumes a duty to tell the
whole truth. ” Id . at 761. A legal dut y may arise when “ one has placed special confidence in anot her where
th e la tte r is bound, in equity and good conscience, to act in good faith and with due regard for the
interests of the other

. ” Id. at 760

- 61. Actual fraud includes an intentional breach of duty designed to harm another or obtain an unfair ad vant age, while c on s tru ctive fraud includes17 breaches “ t hat the law condemns as ‘ fraudulent ’ merely because they tend to deceive others, violate confidences, or cause injury to public interest, regardless of the actor ’ s intentions. ” Id . at
761. A mis representa tion of a pa st or present material fac t, made by o ne who has a duty to speak the truth, “ is a frequent ground for recovery in fraud when another relies on the representation to
her detriment

. ” Id.
Dinwiddie ’ s affidavi t include s the re quired statutory st atem e nts and s t a te s that he :
had “ made the deci sio n to execute this affidavit after deli berate and sober introspectio n of the

consequences of my perman ent actions ” ; a cknowledged that he should not execute the document if he might want to exercise his paren tal rights at a n y time in the future ; was not unde r the
influence of “ any sign ificantly mind

- altering substance ” ; and was sign ing the document “ in a

s tate of ph ysical and emotional well

- be ing. ” T he affidavit also state s :

I have made the decision to execut e this affidav i t a fter deliberate and sober intros pection of the consequences of my permanent actions

I ACKNOWLEDGE THAT THIS AFFIDAVIT RELINQU ISH ING MY PARENTAL RIGHTS TO [ K.J.] IS IRREVOCABLE FOR 60 DAYS. I UNDERSTAND THAT MY PARE NTAL R I GHTS MAY BE TERM INATED WITHIN T H E 60 DAYS AFTER THE EXECUTIO N OF T HIS DOCUMENT OR AT ANY TIME AFTER THE INITIAL 60 DAYS THAT THIS AFFIDAVIT HAS NOT BEEN REVOKED BY AFFIDAVIT. I ACKNOWLEDGE THAT IF MY PARENTAL R I GH TS EXIST AFTER THE 60 DAYS AND I DESIRE TO A TT EMPT TO REVO KE THIS RELINQ U I SH MENT ; I MUST EXECUTE AN AFFIDAVI T REVOKING THIS RELINQUISHMENT OF PARENTAL RIGHTS.

See id . § 161.103( e) ( relinquishment that does not designate Department o r licensed child

placing agency as managing con servator “ is rev ocable unless it ex pressly provid e s t hat it is
irrevocable for a stat ed period of time not to exceed 60 days after the date of its execution ” ). It18 then goes on to set out the process to re vo ke the affidavit

. See id. § 161. 103(g) ( “ To revoke a relinquishment under s ubsectio n (e) the pare n t m us t sign a state ment witnessed by two credible persons and verified before a person authorized to take oaths ” ; deliver copy of revocation to person designated in affidavit ; and, if parent knows suit for termination based on affidavit has
been filed , fi l e c op y of revocatio n with trial

- court clerk )

. Dinwiddie argues that the evidence did not establis h that he had voluntaril y executed the affidavit and instead that he proved as a matter of law that the affidavit was procured by fraud . He bas e s th ose argum e n ts in large part on his contention that he and Pottin
had a “ special relationship ” i n which he looked to her a s a mother figure and “ placed special
confidence ” in her, giving Pottin the duty to tell him “ the complete tru th r eg arding the exe cution
of the r e li nquishment affidavit

. ” H e asserts that Pottin breache d that duty by not tellin g him “ the
truth as to revocability of the aff idavit, the legal effect of the affidavit on Mr. Dinwiddie ’ s status as a father, and the legal effect on Mr. Dinw iddie ’ s abilit y to see his child

. ” He further notes that he was not represented by c ounsel and that he testified that he did not have “ proper time to go
over the paper he signed ” and did not understand how the re vo cation process worked

. P o ttin ag reed th at she told Di n w id die th at he would continue to be K.J. ’ s father
and would remain in the child ’ s life and that the purpose of the termination and adoption process

was at least in part to give the child access to GI Bill or other mili tary be nefits. S he als o agre ed
that D i nw i ddie did not know that Po ttin , Francis, and K.J. would be moving to Virgi n ia when he signed the document. However, the re is no evidence that Pottin made any of those statements
with an intent to mislead Dinwiddie or to fraudulently proc ure his signat u r e on the affidavit.
On it s face, Dinwiddi e ’ s affidavit of voluntary relinquishment satisfie s the requirements of the family code. See Tex. Fam. Code § 161.103. T here was no evidence that19 Dinwiddie did not read the affidavit or lack ed the op portunity to do so , n or is there evidence t hat
Pottin purposefully m ischaracterized any of the affidavit ’ s provisions with an intent to mislead
Dinwiddie

. 5 Dinwiddie testified that he could read English and had about three yea rs of college

level educa tion , and it was he wh o cho se to sign the document

. Further, t here was no evidence that Pottin and Francis intended to cut Dinwiddie
off from K.J. when the affidavit was executed. A t the new - trial hearing , Potti n expla ined that
she had only limited Dinwiddie ’ s cont act af ter hi s c onduct raised concern s about K.J. ’ s safety
and whe ther he intended to abscond with the child

. A lthough the parties testified that at the time
Dinwi ddie signed the affidavit , neither he nor Pottin knew that K.J. wou ld be moving , Franci s
testified tha t s he and Pottin intended to return to Texas once Francis retired and that “ to the
extent that the goal is to try an d keep everybody toget her, including Mr. Dinwiddie, including
Ms. Barnes , that would happ en here. ” The r ecord also includes evidence tha t D i nw iddie knew before he signed the affidavit that Pottin and the ch ild had been spending time in Vir gi nia, and
Francis testified that she had talke d to Dinwiddie about wheth er he would come visit the famil y
. Fi nally, a lthough Dinwiddie asse rted that he ha d b een p ressured into signing the affidavit without allowing himself time to discuss it with his parents, Pottin testified tha t she and
D in widdie wait ed togeth er in line to have his ex ecution of the document witnessed and notarized
and that Dinwiddie wa s i m pa tient to finish the process and expressly declined to take a copy of
the document with him. I n addition, Barnes testifi ed that she and Dinwiddie had dis cussed the termination/adoption process with Pottin and Francis , that they all agreed to it , that it wa s
intended to be “ a final thing, ” that they did not intend for the arrangements to be temporary , and

5 Although Pottin wa s represented by an attorney, there is no indication that she has any legal training o r ha d a better or different understanding of the e ffec ts of the affidavit than Dinwid di e would have had after reading the document.20 that D inwidd ie and Barnes had intended to stay involved but gi ve Pottin and Francis “ all of the responsibility of be ing a parent. ” Becau se t he affid avi t s at isf ies section 161.103, Din widdie bore
the burden to prove fraud , dur ess, or coercion

. S ee In re D.E.H. , 301 S.W.3d 825, 8 30 (Tex. App.

— Fort Worth, 2009, pet. denied ) . T he trial court, as sole arbiter of witness credibility, see In re J.O.A. , 283 S. W .3 d 336, 346 (Tex. 2009) , was responsible for resolving the
conflicts in the testimony and was within its discretion to resolve those issues ag ainst Dinw i ddie.
Given the evidence r elated to Dinwi ddie ’ s execution of the affida vit and the
lan guage of the af f id avit itself , see In re R.B. , 225 S.W.3d 798, 804 (Tex. App.

— Fort Worth
2007 , no pet. ) ( “ Evidence that an affidavit of volun tary relinquishment was signed, notarized, witnessed, and executed in compliance with family code section 161.103 i s prima faci e e v id ence of its validity. ” ) , as well as the testimony presented , we hold that the court could have reached a
firm belie f o r conviction that Din widdie ’ s affidavit of relinquishment was executed in conformity with section 161.001 , see Tex. Fam. Code § § 101 .00 7 ( defining “ c lear and convincing evidence ” )

. W e further hold that the trial court could have concluded that Di nwiddie
did not establish by a pr epond erance of the evidence that his affidavit was executed as a result of coercion, duress , fra ud, undue in flu e nc e , or overreaching

. See R.B. , 225 S.W.3d at 804; Vela , 17 S.W.3d at 758 ; se e also re J.O.A. , 283 S. W.3 d at 346 ( trial court has role of resolv ed

ev identiary conflicts and determining issues relying on evaluation of witness credibility )

. T he
trial c ourt t hus ha d s ufficient eviden ce to support its finding of grounds for termination under

s ubsection ( K ) and did not abuse its disc retion in denying Din widdie ’ s motion fo r new trial

. See
In re R.R. , 209 S.W.3d 112, 114 (Tex. 2006) ( “ We review a trial cour t ’ s de nial of a motion for
new trial for abuse of discre tion. ” ) ; D.E.H. , 301 S.W.3d at 8 30 ( s ame )

. We over rule Dinwiddie ’ s second, third, and fourth issues.21 We now tu rn to Dinwiddie ’ s first issue, which complains that the trial court erred
in finding that the re was clear and convi ncing evidence that termination of Dinwiddie ’ s parental rights is in K.J. ’ s best interest

. T he supreme court ha s explained that because secti on 161.211 of the family code
limits an attack on a termination order based o n a n unrevok ed a ff idavit of re linquishment “ to issues relating to fraud, duress , or co ercion in the execution of th e aff idavit, ” Tex. Fam. Code § 161.211( c), a parent contesting s uch a termination order may not grou nd their attac k on a challenge to the leg al or factua l su ff icien cy of the evidence supporting the trial court ’ s bes t

interest finding , In re K. S.L. , 538 S.W.3d 107, 111 (Tex. 2017). T he trial court must find that
termin ati on is in the child ’ s best interest, but secti on 161.211(c) lim its our revi ew to whethe r th e affidavit was procured through fraud , dur ess, or coercion

. Id

. F urther , “ the affidavit itself, in the ordinary case, can be ample evidence to support a best

- in ter est determination

. ” Id

.

[E] ven under a clear

- and

- convincing standard, we think in the ord in ary case a sworn, voluntary, and knowing relinquishment of parental rights, where the parent expressly attests that termination is in the child ’ s best interest, wou ld satisfy a requirement that the trial court ’ s best

- interest finding be s upported und er t hi s higher standard of proof.

. . . A parent ’ s willingness to voluntarily give up her child, and to swear affirmatively that this is in her child ’ s best interest, is sufficient, absent unus ual or exten uating circumstances, to produce a fir m belief
or conv ic tion that the child ’ s best interest is served by termination.

. . . The Legislature appears to agree, as it added subsection 1 61.211(c) to the Family Code, and the reby limited appellate r eview, after it amended section 161.001 to impose the clear

- an d

- co nv incing standard

.

Id . at 1 12.
The affidavit executed by Dinwiddie states , “ It is in the best interest of the child for the parent

- child relationship between mysel f a nd [ K.J.] to be termi nated , ” and w e have already he ld that the trial court could have foun d (1) by clear and convincing evidence that22 Dinwiddie voluntarily executed his affidavit of relinqui shment and (2) that Dinw iddie did not
establish by a pre pondera nce of the evidence that his signature was pro cured through fraud, coercion, or duress

. Thus , the face of the affidavit , in which Dinw iddie “ expressly attest [ed] that
termination is in the child ’ s best interest, ” supports the trial court ’ s best

- interest f ind ing

. See id.
at 112. 6 We overrule Din widdie ’ s first issue presented.

6 E ven if we were to consider Dinwiddie’s challenge, the trial court could have held by cle ar and convincing evidence that termi nat ion of Dinwiddie’s rights was in K.J.’s be st i nterest. See Holley v. Adams , 5 44 S.W.2d 367, 371

- 72 (Tex. 1976) (best interest determined based on factors such as child ’s wishes, child ’ s emotion al and physical needs now and in future, emotional or physical danger posed to child now and in future , par enting skills of potential careg ivers , pr ograms available to assist pote ntial careg ivers to promote child ’s best interes t, plans for child , stability of competing placement s , conduct by parent that might show inappropriate parent

- child relationship , an d an y excuses for parent’s conduct ) ; see also L.R. v. Texas Dep’t of Family & Protective Servs. , No. 03

- 18

- 00125

- CV, 2018 WL 3059959, at *1 (Tex. App.

— Austin J une 21, 2018, no pet.) (mem. op.) ( child ’s need for permanence is paramount consideration when de term ining his present and future nee ds )

. Joh nson testified that Dinw iddie seemed to have the means to provide for K.J.’s basic needs, that he had a bed and food for the child, and that he had obtained Medicaid and food stamps, an d P ottin agreed that she a nd F rancis had not brought up “any a buse or n eglect grounds

. ” However, the tri al court also heard testimony about “cuts and
sores , ” determined to be pressure ulcers caused by sitting for long periods of time in damp or wet conditions, found on or around K .J.’ s anus after the child was in Di nwiddie’s care; Dinwiddie’s claimed lack of awar eness of the sores or their cause; his use of babysitters he found on Facebook; and his admission to Richards that he had le ft the infant alone “in the middle of th e night” whe n he went shopping. Further, al though Di nwiddie testified that he had started t o rearrange his work schedule to better accommodate his parenting role, testimony indicated that he worked nights at a job w ith questionable legality. Richards and Barnes both expressed concern about Dinwidd ie having unsupervised access to K.J., with Rich ards saying he was “very lazy” about his parenting and Barnes expressing concerns about his work schedule and lack of parent ing knowledge. And Lackmeyer reporte d t hat Dinw iddi e had started to “make[] plans a nd cancel []” his visits with K.J. and that Potti n ended up with primary caretaking responsibilities after Barnes and Dinwiddie “just did not show up to pick [K.J.] up,” conc luding that adoption by Pottin and F ran cis “app ears to be in the best interest of” K.J. F inally, K.J. had primarily lived with P ottin and Francis for most of his life; had bonded to them; and will, through adoption, have access to GI Bill and other mili tary benefits as well as a stable, p erm anent ho me.23 CON CLUSION
We h old t hat the trial court did not err in basing its termination order on subsection (K) due to Dinwiddie ’ s execution of his affidavit of relinquishment and in finding tha t

t ermin ation was in K.J. ’ s best interest. W e need not consider Din wi ddie ’ s remaining issu e s,
which challenge the court ’ s finding of grounds under subsections (B) and (C ). See Spurck

v. Texas Dep ’ t of Fam. & Protective Servs. , 396 S.W.3d 205, 222 (Tex . A pp.

— Austin 2013,

no pet.) ( “ Having determined that the evidence is sufficie nt to suppor t th e jury ’ s finding on one of the statutory grounds, we need not consider whether the evidence would support other grounds for termination. ” ). W e affirm the trial c our t ’ s order of termination an d adoption.

___________________________________ _______ Darlene Byrne , C hief Justice
Before Chief Justice Byrne, Jus t ice s Triana and Kelly

Dissenting Opinion by Justice Triana
Affirmed
Filed: A pril 15, 202 2