TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00501-CV

Tony Dinwiddie, Appellant

v. 

Margaret Danielle Pottin and Jennifer Ann Francis, Appellees 

FROM THE 169TH DISTRICT COURT OF BELL COUNTY

NO. 323928, THE HONORABLE CARI L. STARRITT-BURNETT, 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 termination and adoption order.

FACTUAL AND PROCEDURAL SUMMARY

 K.J. was born in January 2019 to Dinwiddie and Patience Barnes. In mid-2021, 

appellees Margaret Danielle Pottin and Jennifer Ann Francis filed a petition to terminate Barnes’ 

and Dinwiddie’s parental rights and to be named K.J.’s adoptive parents.1 On August 5 and 14, 

2021, Dinwiddie and Barnes executed affidavits 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. On August 31, however, Dinwiddie wrote a letter to the trial 

1 The original petition was filed in April 2021 by Pottin as sole petitioner. In June, after 

they married, Pottin and Francis filed an amended petition naming them both as petitioners. 

Pottin has since changed her last name to Francis, but for clarity’s sake, we will refer to her as 

“Pottin” and to her wife as “Francis.” Barnes is not a party to this appeal. 
2

court stating, “I am writing this letter to state my intent of NOT relinquishing my rights.” He 

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

to discuss it with his parents because Pottin had told him “that the paper was reversible.” He

said Pottin had told him that he “would still have all the rights,” that the affidavit was necessary

“for her to be able to give [K.J.] an education,” and that Dinwiddie “would still be dad and still 

have say so,” but after he signed, “started actually enforcing” it, withholding K.J. and saying that 

“the court ordered it.” Dinwiddie said Pottin had “disregarded [his] feelings” and was going 

forward with the termination and adoption process.

On September 30, the trial court held a termination/adoption hearing. Dinwiddie 

appeared pro se and before testimony began told the trial court that he was not in agreement with

the termination of his parental rights and that he had signed the affidavit “just kind of on a trustbasis system. It was more for kind of guaranteed use of GI Bill for financial benefit for” K.J. He 

stated, “I was informed that the paper was reversible, and that if I didn’t like the process that was 

going on, that we could terminate what was going on. I was basically misinformed.” He 

admitted that he had read the affidavit and agreed when the trial court asked if he had read “the 

parts where it says the reverse of everything you’re saying to me right now,” but said, “Honestly, 

I could barely sign it whenever I read it, and it seemed like I was—honestly, I was kind of 

bullied and I was under duress whenever I did sign it.” Dinwiddie 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, 

Dinwiddie admitted that so far in K.J.’s life, he had not been the primary caretaker.

Barnes testified that Pottin started as a babysitter but that her caretaking became 

“more frequent. And then [K.J.] just has been with her like most of the time.” Barnes also said 

she and Dinwiddie had voluntarily left K.J. with Pottin and Francis for more than six months and 
3

never had “an intent for it to be a temporary situation.” She explained that she had been in a 

substance abuse felony punishment facility (SAFPF) and that since her release, “this has been

talked about. We’ve talked about this the day I got home and came to see my son where he was. 

At their house, that’s where he was whenever I came home.” She said that “one of the first 

things we talked about is making this a final thing.” Barnes testified that she, Dinwiddie, Pottin, 

and Francis had agreed that Dinwiddie and Barnes were “[d]efinitely still going to be involved, 

but [that Francis and Pottin] would have all of the responsibility of being a parent.”

Barnes “[d]efinitely” believed it was in K.J.’s best interest for him to remain with 

Pottin and Francis and not to be in Dinwiddie’s care. She explained that Dinwiddie works nights

and that “it’s just easier for them to care for all of his needs.” Further, she said, Dinwiddie is 

“not seasoned 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 he needs it. He just doesn’t 

know.” Barnes testified that she wanted her and Dinwiddie’s rights to be terminated and Pottin

and Francis 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 Johnson, an investigator for the Texas Department of Family and 

Protective Services, testified that the Department had investigated a report of neglectful 

supervision and possible sexual abuse. When she spoke to Dinwiddie, he denied that he had left 

K.J. home alone but admitted “that at one point he did hire a babysitter off of Facebook” because 

he had to go to work. Dinwiddie also reported that the last time he had seen K.J. in person or 

had him “in his custody or in his care, like away from the home, was in July,” telling Johnson 

that Pottin and Francis “had had the child out of state and the child primarily resided over there. 

He had been having supervised visits with [K.J.] at that home since July.”
4

Johnson testified that she told Pottin and Francis that the Department

would not get in the middle of child custody. If this was the custody agreement, 

we would do—our investigation is to ensure the safety of the child. I said that if 

they’re the . . . the guardians of [K.J.], it was their job to make protective 

parenting choices for the child. If they believe that the child was not safe with

Mr. Dinwiddie and they were supervising the contact with him, then by all means. 

At no time did we directly say, like, as a result that they should not allow him to

have access to the child. They were already supervising his contact with the child 

before the [D]epartment was ever involved.

Johnson testified that Dinwiddie, as a first-time parent, “was provided with resources in the 

community on parenting classes and things that could better help him as far as learning to be a 

better parent” and that he had started a parenting class. Dinwiddie has a job, receives food 

stamps, “has the child on Medicaid,” and “has a home, the child has a bed over there, the child

had appropriate sleeping arrangements over there. There was food in the home. So he appears 

to be able to meet the child’s basic needs.” She did not know what income Dinwiddie had 

declared in seeking governmental benefits, what kind of job he had, or whether it was legal.

2

Dinwiddie testified that he deals 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 so that he can be

more involved in K.J.’s life. Dinwiddie testified that he “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 home by himself.” Dinwiddie 

stated that he would sometimes provide groceries and would leave cash “[s]ometimes when I 

was able to”—he thought he had provided cash in the last six months but could not say when.

2 Johnson was asked whether Dinwiddie had fraudulently obtained government benefits

by failing to disclose his “job as an illegal card dealer,” answering that she did not “know what 

information [was] used or what income he disclosed.”
5

Dinwiddie testified about his signing the affidavit of relinquishment as follows:

I just feel like I didn’t—I didn’t get the proper time to go over the paper that I 

signed. And I understand that I felt bullied and pressured to do it 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 father. I never did agree to that. Whenever I signed the paper, 

I made it a point that I wasn’t going to abide by it. And 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 have the responsibility of being his father still. And ever since I 

signed that paper, I haven’t like—it’s been forced out of my hands. I can’t even 

visit my child sometimes. Sometimes I text and call, and I won’t get a response 

until the evening, the day after. And I honestly don’t—I didn’t sign up for that. I 

couldn’t sign up to lose my rights. I didn’t—I just felt even though I’m 

inexperienced as a father, I asked them to help and not take over.

Dinwiddie was asked whether he understood that to revoke the affidavit, he had “to basically do 

the same process” as when he signed it, and whether he had done any of those steps, and he said, 

“I don’t understand how this process works.” He agreed that he can read and write the English 

language, said that he had “probably about close to three years of college education,” and said 

that he signed the affidavit because he “had 100 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 

still be the dad, and I would have all of the rights. Like—I was informed that it was just simply

doing this for him to have a college education after school.”

The trial court asked Dinwiddie if he would want to retain his rights and pay 

twenty percent of his income as child support to Pottin and Francis, and he answered:

No, I don’t want that. I want to take care of my son. And if we need to work out

financials to where I have to pay them for baby-sitting, then that would be 

between us. But I prefer not to do that. I’m taking care of him anyways. I have 

provided diapers and all of his clothes and toys. I provided about 80 percent of 

the stuff.
6

Dinwiddie did not dispute that Pottin and Francis had been “primarily” caring for K.J. but said, 

“Just because they kind of forced it out of my hand after I signed the paper.” He told the court 

that in the last four months, he had only had K.J. “maybe three to four nights” and said, “I didn’t 

sign up for that.”

Pottin testified that she met K.J. in February 2019, when he was about one month 

old, because her daughter babysat for K.J. and would bring him to Pottin’s house. When her

daughter moved out of state, Dinwiddie and Barnes asked Pottin to care for the baby, so she 

started babysitting part-time in June 2019, increasing her time as K.J.’s caretaker after she 

retired. Soon after K.J.’s first birthday, Pottin “lost contact with” Barnes:

And things—eventually time went on and we found out months later, almost a 

year, that it was because she had—was dealing with her own 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 going to the Facebook 

baby-sitters 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 with Tony two of those days, yes. And then over 

time, it just—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 to watch him. But knowing Tony works the hours he does, 

that’s why strategically at naptime, he would go and care for him, or I would take 

him over to care for him and pick him up or Tony would drop him off before 

work. And that has been the relationship this entire time.

Pottin testified that K.J. had been spending nights at her house for more than two years and that

Dinwiddie had voluntarily left K.J. with her for more than six months and had never said “on 

such and such time or when such and such happens, y’all can come back for him.” He had left 

groceries “the other day” but Pottin said that he had not given her any cash in the last six months.
7

Pottin testified about the day Dinwiddie signed the affidavit of relinquishment and 

said she and he went to the UPS Store and waited in a long line so that he could sign the 

document in front of witnesses and have it notarized. She testified that she did not “do anything 

to threaten or coerce him” and that he was impatient about the line because he was running late. 

Asked whether she and Dinwiddie discussed the revocability of the affidavit, Pottin answered:

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

him, yeah, it can be revoked, Tony. It can go back. Nothing has changed as you 

being a father. He’s like—all of this time, in the age, he’s like a son honestly. 

That’s—like my grandchild, having Tony is like my son.

Pottin testified that she offered to make Dinwiddie a copy of the affidavit, and he said, “No, I 

don’t want that. I don’t want that in my house. The words that are written on there are not even

something I want to . . . have in my home.” She believed that Dinwiddie “doesn’t understand

those things [related to revocation] because he chose not to take a copy of it.” She further 

testified that regardless of the trial court’s ruling, Dinwiddie is “still [K.J.’s] father.”

Francis testified that she has been in the military for twenty-three years and that

before meeting Pottin, K.J., and K.J.’s parents, she had decided to focus on her career rather than 

having children. She said that since becoming involved with Pottin and K.J., however:

nothing is obviously more important than taking care 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 family for success. And it’s more than 

a GI Bill, sir. It’s more than any medical that I can ever provide. It’s teaching, 

learning, waking up, taking him to the potty. And I can go on and on. But I’m 

just an outsider looking in, but very much so involved in [K.J.’s] life. I love that 

little boy. He’s not mine. He has a father. He has had a mother. 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 

guardian, parent. Whatever I need to be, I’m there.
8

Asked about “the sexual abuse allegations,” Francis testified that she did not know very much 

about it but that she had seen injuries around K.J.’s anus.

3 She explained that they found the 

sores after Dinwiddie dropped K.J. off. K.J. acted constipated and “react[ed] in excruciating 

pain,” and Francis said that “it was not normal,” so she and Pottin took him to his primary 

physician and then sought a second opinion “just to find out a little bit more.”

Pottin and Francis called Nicole Richards to testify. Richards had also babysat for 

K.J. and said she started to watch him more often when she “found out that [Dinwiddie] was 

using the Facebook babysitter more frequently.” Richards also said that K.J. “had been showing 

signs of constipation and always never being able 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 never 

seen anything like that before.” Richards also testified that Dinwiddie had denied neglecting

K.J. but admitted that he once left K.J. alone in the middle of the night while he went shopping. 

Richards thought Dinwiddie “has a potential to be a good parent” but “is very lazy about it” and 

did not think unsupervised access by Dinwiddie was in K.J.’s best interest.

The trial court also considered a September 29, 2021 report filed by adoption 

investigator Suzy Lackmeyer. Lackmeyer stated that K.J. had been born with drugs in his 

system and had had “some speech and hearing difficulties” but was receiving services to address 

those issues. Lackmeyer reported that Barnes primarily maintained her relationship with K.J. 

through phone calls and video calls and was expected to continue that relationship in the future.

Dinwiddie, however, “visit[ed] once or twice a week overnight” up until July 27, 2021, but now 

“makes plans and cancels,” and Lackmeyer said, “He is not expected to have a relationship with 

3 As described later, the sores were determined to be pressure ulcers and the concerns 

about possible sexual abuse have been resolved.
9

[K.J.] in the future.” Lackmeyer said that Pottin and her daughter were babysitters and that one 

day Dinwiddie and Barnes “just did not show up to pick him up,” at which point Pottin became 

K.J.’s caregiver. At the time of Lackmeyer’s report, K.J. had lived with Pottin and Francis “for 

over two years. They have bonded to him and wish to provide him with a permanent, loving and 

safe home.” Lackmeyer concluded, “This adoption appears to be in the best interest of [K.J.].”

At the conclusion of the September 30 hearing, the trial court found that “the 

affidavit of relinquishment is valid and not revoked properly” and that “termination of both 

parents’ rights [is] in the best interest of the child.” It also stated that it was appointing Pottin 

and Francis as K.J.’s adoptive parents. On October 1, the trial court signed an order to that 

effect, finding that Dinwiddie had executed an unrevoked or irrevocable affidavit of 

relinquishment; voluntarily left K.J. alone or in the possession of a non-parent for at least three 

months without expressing an intent to return and without providing for the child’s adequate 

support; and voluntarily left K.J. alone or in the possession of another for at least six months

without providing adequate support. See Tex. Fam. Code § 161.001(b)(1)(B), (C), (K). That 

same day, Dinwiddie filed a letter asking the court to reconsider its decision to terminate his 

parental rights; in mid-October, he retained an attorney, who filed an amended motion for new 

trial; and on October 21, he filed a witnessed and notarized revocation of affidavit.

On November 18, the trial court held a hearing on Dinwiddie’s motion for new 

trial. Dinwiddie denied that at the time he signed the affidavit, K.J. was already “staying with 

somebody else outside of [Dinwiddie’s] family,” testifying that Pottin “was a babysitter” and 

“was helping.” Dinwiddie said that he did “things 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.” He testified that he had 
10

“provided everything that [K.J.] did need” and that he brought food, “diapers, clothing, toys, 

playgrounds, everything for him.” He admitted that he never provided Pottin with cash but said 

that she “never did ask for cash.” He also testified that he “paid for the services, even though she 

said that I didn’t pay for. I did. It wasn’t much but I did pay for childcare.”

Dinwiddie said that Pottin brought up adoption “because she wanted to pass the 

GI Bill to” K.J., telling Dinwiddie and Barnes “that she wanted us to be able to provide him with 

a college education down the line, and that was the only reasoning for the adoption.” Dinwiddie

testified that Pottin “promised that I would be the father, and that I would be the main provider at 

all times,” but that after he signed the affidavit, she and Francis had “completely just not even

talked to me, not even allowed any contact with my son, no video chats, nothing. It—just act 

like I don’t exist.” Dinwiddie insisted that Pottin gave him those assurances throughout the 

process of signing the affidavit, saying that she “always assured that it was just for passing 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 after he signed the document, he still saw and video-chatted 

with K.J. at least every other day. Pottin went to Washington twice, and Dinwiddie said it “was 

only supposed to be for two weeks but ended up being two month long time, kind of vacations,”

during which time he did video conferences with K.J. Dinwiddie testified that after the hearing 

on September 30, however, he “was not allowed to see [his] son anymore at all,” and asked what 

had changed, Dinwiddie replied, “I guess they won and they felt like they didn’t need me to be a 

part of my son’s life, and they didn’t allow any contact at all. I felt like that’s not fair to my 

child because my child loved me and still loves me.” Dinwiddie denied that he had texted 

Barnes “asking her to take [K.J.] to the duck pond so y’all could take off,” saying that that

allegation was “absolutely false.” He said that he had texted Barnes simply “to spend some time 
11

with our child at the duck pond” and that he had “no ill intentions to take off and run” or to 

“kidnap my own child. I don’t even know where that came from.”

Dinwiddie also testified that Pottin and Francis had never told him that they were 

moving to Virginia. He denied having any conversations with Francis “in June and July about 

going to Virginia to visit” K.J., saying, “No, because I never would talk to Ms. Francis. This 

was a relationship between me and Ms. Pottin.” Dinwiddie said Pottin “has not talked to me 

about anything. The reason why I learned that she moved was through my lawyers.” Dinwiddie

denied that the issue of Pottin and Francis moving had come up during the September 30 hearing

and insisted that he was not aware that they had moved to Virginia.

Dinwiddie testified that between August 5, when he signed the affidavit, and 

September 30, he was never told that he was going to be cut off from K.J. or that Pottin and 

Francis would be moving to Virginia. Had he known those facts, he said, he would “[a]bsolutely 

not” have signed the affidavit. He said, “I want to be my son’s father, and I want to be there for 

the rest of his life. Like I never did agree to give up my parental rights officially. I just signed 

the papers because like I said, I was promised that she would provide the GI Bill and insurance.” 

Dinwiddie also said he “absolutely” relied on Pottin’s assurances that he would continue to be 

K.J.’s father and “main provider” because “she was like a mother to me. Like I have no reason 

not to doubt her.” Dinwiddie admitted that he never asked a lawyer about how to revoke his 

affidavit or obtained a copy of it from the district clerk’s office, and when he was asked 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 Dinwiddie that he would be able to see K.J. and 

“have a father relationship” after he signed the affidavit of relinquishment, although the affidavit 
12

of relinquishment states “words to the effect of this terminates your parental rights forever.” 

Indeed, she said, he continued to have contact with K.J. until he texted Barnes about bringing 

K.J. to a duck pond, explaining that “[t]he way it was stated made me feel as if he was trying to 

take [K.J.]. He wanted [Barnes] to bring him. So at that point, that’s when my mom instincts 

kicked in and that’s his safety.” Pottin had “slowed down” Dinwiddie’s access because of that 

incident and “his actions with [Barnes],” testifying that she did not “feel safe around him if he’s 

going to act the way he did in such a manner.” As for Dinwiddie’s “actions with” Barnes, Pottin 

was permitted to testify only that Barnes “came back very distraught after going over to Mr. 

Dinwiddie’s house to get her things” and that Pottin “fear[ed] for the child and [Barnes’s] safety

being around Mr. Dinwiddie after that.”4

4 Barnes wrote a letter to the trial court stating that she could not attend the new-trial 

hearing because of work. She stated that Pottin and Francis had cared for K.J. because she and 

Dinwiddie had been unable to provide a safe and stable environment. Barnes reiterated that she

believed allowing Pottin and Francis to adopt K.J. “was the best decision I could have made for 

him.” Barnes also wrote:

Unfortunately due to the actions of [Dinwiddie], following the adoption [Pottin] 

has done what she felt necessary to keep [K.J.] safe; these actions include sending

disrespectful and ugly messages to both [Pottin] and I. He asked me to bring 

[K.J.] and meet with him at CTC to feed the ducks without telling [Pottin]. He 

was also very aggressive with me in a sexual manner when I came to his house to 

get my belongings, while apologizing at a later date, saying he did not realize how 

his actions affected me. In my experience with [Dinwiddie], he acts out on 

emotion and expects no consequences. I was unable to remove all of my 

belongings and [Dinwiddie] told me they would be safe there until 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 thinking of showing it to the Judge. 

He has also told me my things were gone, donated or sold only to tell me he 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 [Dinwiddie] loves [K.J.], his 

actions portray a lack of stability both mentally and emotionally that are crucial to 

a healthy environment for raising a child.
13

Pottin testified that her family had moved to Virginia sometime after the 

September 30 hearing and that when Dinwiddie signed the affidavit, neither he nor Pottin herself 

knew that K.J. would be moving. However, Pottin disputed that Dinwiddie was never made 

aware that the family was moving to Virginia. She testified that although the “exact words ‘K.J. 

is moving to Virginia’ were not stated,” she, Francis, and Dinwiddie had discussions about going 

to Virginia and that she assumed he understood because he “never questioned or anything.” In 

addition, Pottin testified, Dinwiddie knew that Francis was stationed in Virginia, he and Francis 

spoke about his visiting them in Virginia, and Pottin spoke to him “about having to move.”

Pottin said that, among other concerns, ongoing legal proceedings 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 are, you know, to where they 

need to be for a three-year-old child, right now after we took him to his primary 

care doctor, he has a referral in for pediatric gastroenterologist, pediatric 

psychologist. For his hearing, he has to have his adenoids and his tonsils removed 

so that he can have tubes placed in. There are many, many medical appointments 

that we’re already starting to 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, 

mentally, physically emotionally stable. 

Pottin testified that such appointments were not routine before she got involved in K.J.’s life. 

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

“extreme pain, constipation, his anus was red, swollen”; he was throwing up; and after returning 

from time with Dinwiddie, he had “big welts on his backside.” The doctor determined that the 

welts “are called pressure ulcers” and told Pottin that such ulcers happen to “somebody that’s 

been sitting in a spot that’s wet for a long period of time.” Pottin said she asked Dinwiddie 

“where those came from,” and he responded, “I don’t know.” Pottin further testified that if there 
14

was a new trial, she and Francis could bring forth new evidence “of abuse and neglect grounds to 

terminate his rights.”

Francis testified that Dinwiddie knew that her duty station was in Virginia and 

that she had had conversations with him about his coming to visit K.J. in Virginia. She 

acknowledged that she never specifically told Dinwiddie that K.J. was moving but said that she 

asked him in May if he would come visit the child in Virginia. She further testified that her and 

Pottin’s long-term plan, after Francis retires from the military, is to return to Texas. She agreed

when asked whether “to the extent that the goal is to try and keep everybody together, including 

Mr. Dinwiddie, including Ms. Barnes, that would happen here.”

Francis denied that she and Pottin intended to keep Dinwiddie out of K.J.’s life in 

the future and said, “As it transpired, we say father rights and, you know, your role as a father, 

care giving, you use that very loosely.” She explained that being “a sole provider is a constant, 

steady paycheck,” but that in the nine months she had known Dinwiddie, he had provided “little 

to none. And it takes more than that.” Francis testified that K.J. “was born as a meth baby” and 

needed “to be provided and loved in more than what [Dinwiddie was] doing maybe once or twice 

a week and at odd hours or right before work or trying to pick him up at 0200 in the morning.” 

According to Francis, Dinwiddie was “given [an] ample amount of time” and that it was “always

on [his] time. Not [K.J.’s] time.” She also said that Dinwiddie works “at zero dark until zero,”

and that she and Pottin “will not wake up a two and a half year old to accommodate father roles.” 

Francis explained that Barnes’s hours made virtual contact with K.J. “more feasible” and that she 

and Pottin “accommodate it when we can,” testifying that if Dinwiddie “would maybe go about 

it in a different way,” he “would have the same rights as” Barnes.
15

DISCUSSION

Dinwiddie lists six presented issues, arguing that the trial court erred in finding 

statutory grounds for termination and in finding that termination of his rights was in K.J.’s best 

interest. 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 relinquishment.

A trial court may order termination of a parent-child relationship if it finds by 

clear and convincing evidence that termination is in the child’s best interest and that the parent 

has “executed before or after the suit is filed an unrevoked or irrevocable affidavit of 

relinquishment of parental rights as provided by this chapter.” Tex. Fam. Code 

§ 161.001(b)(1)(K), (2). Section 161.103 provides that an affidavit for voluntary relinquishment 

of parental rights must be signed no earlier than two days after the child is born, witnessed by 

two people, and verified before a person authorized to take oaths. Id. § 161.103(a). It must 

include a statement “that termination of the parent-child relationship is in the best interest of the 

child”; a designation of a prospective adoptive parent, if applicable; and “a statement that the 

relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is 

irrevocable for a stated period of time.” Id. § 161.103(b)(6), (9), (12).

“An affidavit of relinquishment that meets the requirements 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 proponent of a relinquishment affidavit has established by clear and 

convincing evidence 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 evidence, that the affidavit was executed as a 

result of coercion, duress, fraud, deception, undue influence or overreaching.”
16

Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.—Austin 2000, pet. denied) (quoting In re 

Bruno, 974 S.W.2d 401, 405 (Tex. App.—San Antonio 1998, no pet.)). In seeking to overcome 

an adverse fact finding, the parent contesting an affidavit “must surmount two hurdles.” Id. at 

759-60 (quoting Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). “First, the 

record must be examined for evidence that supports the . . . finding, while ignoring all evidence 

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.” Id. (quoting 

Sterner, 767 S.W.2d at 690).

Coercion is generally defined as compulsion through physical force or threat or 

through improper use of economic power; misrepresentation is a falsehood made with the intent 

and purpose to deceive; and fraud “refers to an act, omission, or concealment in breach of a legal 

duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking 

of an undue and unconscientious advantage.” Id. at 760. “In the context of fraud, courts have 

stated that misrepresentation is making a false statement of fact or a false 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 duty to speak and he 

deliberately remains silent.” Id. (quoting Spoljaric v. Percival 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 duty may arise when “one has placed special confidence in another where 

the latter 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 advantage, while constructive fraud includes
17

breaches “that 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 misrepresentation of a past or present material fact, made by one 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 affidavit includes the required statutory statements and states that he:

had “made the decision to execute this affidavit after deliberate and sober introspection of the

consequences of my permanent actions”; acknowledged that he should not execute the document 

if he might want to exercise his parental rights at any time in the future; was not under the 

influence of “any significantly mind-altering substance”; and was signing the document “in a 

state of physical and emotional well-being.” The affidavit also states:

I have made the decision to execute this affidavit after deliberate and sober 

introspection of the consequences of my permanent actions

I ACKNOWLEDGE THAT THIS AFFIDAVIT RELINQUISHING MY

PARENTAL RIGHTS TO [K.J.] IS IRREVOCABLE FOR 60 DAYS. I 

UNDERSTAND THAT MY PARENTAL RIGHTS MAY BE 

TERMINATED WITHIN THE 60 DAYS AFTER THE EXECUTION OF 

THIS 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 RIGHTS EXIST AFTER 

THE 60 DAYS AND I DESIRE TO ATTEMPT TO REVOKE THIS

RELINQUISHMENT; I MUST EXECUTE AN AFFIDAVIT REVOKING 

THIS RELINQUISHMENT OF PARENTAL RIGHTS.

See id. § 161.103(e) (relinquishment that does not designate Department or licensed childplacing agency as managing conservator “is revocable unless it expressly provides that it is 

irrevocable for a stated period of time not to exceed 60 days after the date of its execution”). It 
18

then goes on to set out the process to revoke the affidavit. See id. § 161.103(g) (“To revoke a 

relinquishment under subsection (e) the parent must sign a statement 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, file copy of revocation with trial-court clerk).

Dinwiddie argues that the evidence did not establish that he had voluntarily 

executed the affidavit and instead that he proved as a matter of law that the affidavit was 

procured by fraud. He bases those arguments in large part on his contention that he and Pottin 

had a “special relationship” in which he looked to her as a mother figure and “placed special 

confidence” in her, giving Pottin the duty to tell him “the complete truth regarding the execution 

of the relinquishment affidavit.” He asserts that Pottin breached that duty by not telling him “the 

truth as to revocability of the affidavit, the legal effect of the affidavit on Mr. Dinwiddie’s status 

as a father, and the legal effect on Mr. Dinwiddie’s ability to see his child.” He further notes that 

he was not represented by counsel and that he testified that he did not have “proper time to go 

over the paper he signed” and did not understand how the revocation process worked. 

Pottin agreed that she told Dinwiddie that 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 military benefits. She also agreed 

that Dinwiddie did not know that Pottin, Francis, and K.J. would be moving to Virginia when he 

signed the document. However, there is no evidence that Pottin made any of those statements 

with an intent to mislead Dinwiddie or to fraudulently procure his signature on the affidavit.

On its face, Dinwiddie’s affidavit of voluntary relinquishment satisfies the 

requirements of the family code. See Tex. Fam. Code § 161.103. There was no evidence that 
19

Dinwiddie did not read the affidavit or lacked the opportunity to do so, nor is there evidence that 

Pottin purposefully mischaracterized any of the affidavit’s provisions with an intent to mislead 

Dinwiddie.

5 Dinwiddie testified that he could read English and had about three years of collegelevel education, and it was he who chose to sign the document.

Further, there was no evidence that Pottin and Francis intended to cut Dinwiddie 

off from K.J. when the affidavit was executed. At the new-trial hearing, Pottin explained that 

she had only limited Dinwiddie’s contact after his conduct raised concerns about K.J.’s safety

and whether he intended to abscond with the child. Although the parties testified that at the time 

Dinwiddie signed the affidavit, neither he nor Pottin knew that K.J. would be moving, Francis 

testified that she and Pottin intended to return to Texas once Francis retired and that “to the 

extent that the goal is to try and keep everybody together, including Mr. Dinwiddie, including 

Ms. Barnes, that would happen here.” The record also includes evidence that Dinwiddie knew 

before he signed the affidavit that Pottin and the child had been spending time in Virginia, and 

Francis testified that she had talked to Dinwiddie about whether he would come visit the family.

Finally, although Dinwiddie asserted that he had been pressured into signing the 

affidavit without allowing himself time to discuss it with his parents, Pottin testified that she and 

Dinwiddie waited together in line to have his execution of the document witnessed and notarized

and that Dinwiddie was impatient to finish the process and expressly declined to take a copy of 

the document with him. In addition, Barnes testified that she and Dinwiddie had discussed the 

termination/adoption process with Pottin and Francis, that they all agreed to it, that it was 

intended to be “a final thing,” that they did not intend for the arrangements to be temporary, and 

5 Although Pottin was represented by an attorney, there is no indication that she has any 

legal training or had a better or different understanding of the effects of the affidavit than 

Dinwiddie would have had after reading the document.
20

that Dinwiddie and Barnes had intended to stay involved but give Pottin and Francis “all of the 

responsibility of being a parent.” Because the affidavit satisfies section 161.103, Dinwiddie bore

the burden to prove fraud, duress, or coercion. See In re D.E.H., 301 S.W.3d 825, 830 

(Tex. App.—Fort Worth, 2009, pet. denied). The trial court, as sole arbiter of witness

credibility, see In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009), was responsible for resolving the 

conflicts in the testimony and was within its discretion to resolve those issues against Dinwiddie.

Given the evidence related to Dinwiddie’s execution of the affidavit and the 

language of the affidavit itself, see In re R.B., 225 S.W.3d 798, 804 (Tex. App.—Fort Worth

2007, no pet.) (“Evidence that an affidavit of voluntary relinquishment was signed, notarized, 

witnessed, and executed in compliance with family code section 161.103 is prima facie evidence 

of its validity.”), as well as the testimony presented, we hold that the court could have reached a 

firm belief or conviction that Dinwiddie’s affidavit of relinquishment was executed in 

conformity with section 161.001, see Tex. Fam. Code §§ 101.007 (defining “clear and 

convincing evidence”). We further hold that the trial court could have concluded that Dinwiddie 

did not establish by a preponderance of the evidence that his affidavit was executed as a result of 

coercion, duress, fraud, undue influence, or overreaching. See R.B., 225 S.W.3d at 804; Vela, 

17 S.W.3d at 758; see also re J.O.A., 283 S.W.3d at 346 (trial court has role of resolved

evidentiary conflicts and determining issues relying on evaluation of witness credibility). The 

trial court thus had sufficient evidence to support its finding of grounds for termination under 

subsection (K) and did not abuse its discretion in denying Dinwiddie’s motion for new trial. See 

In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (“We review a trial court’s denial of a motion for 

new trial for abuse of discretion.”); D.E.H., 301 S.W.3d at 830 (same). We overrule Dinwiddie’s

second, third, and fourth issues.
21

We now turn to Dinwiddie’s first issue, which complains that the trial court erred 

in finding that there was clear and convincing evidence that termination of Dinwiddie’s parental 

rights is in K.J.’s best interest.

The supreme court has explained that because section 161.211 of the family code 

limits an attack on a termination order based on an unrevoked affidavit of relinquishment “to 

issues relating to fraud, duress, or coercion in the execution of the affidavit,” Tex. Fam. Code 

§ 161.211(c), a parent contesting such a termination order may not ground their attack on a 

challenge to the legal or factual sufficiency of the evidence supporting the trial court’s bestinterest finding, In re K.S.L., 538 S.W.3d 107, 111 (Tex. 2017). The trial court must find that 

termination is in the child’s best interest, but section 161.211(c) limits our review to whether the 

affidavit was procured through fraud, duress, or coercion. Id. Further, “the affidavit itself, in the 

ordinary case, can be ample evidence to support a best-interest determination.” Id.

[E]ven under a clear-and-convincing standard, we think in the ordinary case a 

sworn, voluntary, and knowing relinquishment of parental rights, where the parent 

expressly attests that termination is in the child’s best interest, would satisfy a 

requirement that the trial court’s best-interest finding be supported under this 

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 unusual or extenuating circumstances, to produce a firm belief 

or conviction that the child’s best interest is served by termination. . . . The 

Legislature appears to agree, as it added subsection 161.211(c) to the Family 

Code, and thereby limited appellate review, after it amended section 161.001 to 

impose the clear-and-convincing standard.

Id. at 112.

The affidavit executed by Dinwiddie states, “It is in the best interest of the child 

for the parent-child relationship between myself and [K.J.] to be terminated,” and we have 

already held that the trial court could have found (1) by clear and convincing evidence that 
22

Dinwiddie voluntarily executed his affidavit of relinquishment and (2) that Dinwiddie did not 

establish by a preponderance of the evidence that his signature was procured through fraud, 

coercion, or duress. Thus, the face of the affidavit, in which Dinwiddie “expressly attest[ed] that 

termination is in the child’s best interest,” supports the trial court’s best-interest finding. See id. 

at 112.6 We overrule Dinwiddie’s first issue presented.

6 Even if we were to consider Dinwiddie’s challenge, the trial court could have held by 

clear and convincing evidence that termination of Dinwiddie’s rights was in K.J.’s best interest. 

See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (best interest determined based on 

factors such as child’s wishes, child’s emotional and physical needs now and in future, emotional 

or physical danger posed to child now and in future, parenting skills of potential caregivers, 

programs available to assist potential caregivers to promote child’s best interest, plans for child, 

stability of competing placements, conduct by parent that might show inappropriate parent-child 

relationship, and any 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 June 21, 

2018, no pet.) (mem. op.) (child’s need for permanence is paramount consideration when 

determining his present and future needs). Johnson testified that Dinwiddie 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, and Pottin agreed that she and Francis had not brought up 

“any abuse or neglect grounds.” However, the trial 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 Dinwiddie’s care; Dinwiddie’s 

claimed lack of awareness of the sores or their cause; his use of babysitters he found on 

Facebook; and his admission to Richards that he had left the infant alone “in the middle of the 

night” when he went shopping. Further, although Dinwiddie testified that he had started to 

rearrange his work schedule to better accommodate his parenting role, testimony indicated that 

he worked nights at a job with questionable legality. Richards and Barnes both expressed 

concern about Dinwiddie having unsupervised access to K.J., with Richards saying he was “very 

lazy” about his parenting and Barnes expressing concerns about his work schedule and lack of 

parenting knowledge. And Lackmeyer reported that Dinwiddie had started to “make[] plans and 

cancel[]” his visits with K.J. and that Pottin ended up with primary caretaking responsibilities

after Barnes and Dinwiddie “just did not show up to pick [K.J.] up,” concluding that adoption by 

Pottin and Francis “appears to be in the best interest of” K.J. Finally, K.J. had primarily lived 

with Pottin and Francis for most of his life; had bonded to them; and will, through adoption, have 

access to GI Bill and other military benefits as well as a stable, permanent home.
23

CONCLUSION

We hold that 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 that 

termination was in K.J.’s best interest. We need not consider Dinwiddie’s remaining issues, 

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. App.—Austin 2013, 

no pet.) (“Having determined that the evidence is sufficient to support the jury’s finding on one 

of the statutory grounds, we need not consider whether the evidence would support other 

grounds for termination.”). We affirm the trial court’s order of termination and adoption.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Kelly

 Dissenting Opinion by Justice Triana

Affirmed

Filed: April 15, 2022