Petition for Writ of Mandamus Denied and Opinion filed June 22, 2016.

In The

Fourteenth Court of Appeals

NO. 14-16-00227-CV

IN RE BARRE MORRIS, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

309th District Court

Harris County, Texas

Trial Court Cause No. 2015-01835

O P I N I O N

This mandamus proceeding stems from a family court’s refusal to render 

judgment on a mediated settlement agreement between two parents who agreed to 

rendition of an order terminating the mother’s parent-child relationship. We address 

as an issue of first impression whether such an agreement precludes a trial court from 

refusing to render judgment based on the plaintiff’s failure to prove by clear and 

convincing evidence that termination would be in the child’s best interest. The 

relator, the adjudicated father of the child, asks this court to compel the Honorable 
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Sheri Y. Dean, presiding judge of the 309th District Court of Harris County, to (1) 

vacate her order denying rendition of judgment in accordance with a mediated 

settlement agreement in which the child’s parents agreed to an order terminating the 

parent-child relationship between the child and the child’s mother, Victoria 

Barrientes-O’Neil, and (2) render judgment in accordance with the mediated 

settlement agreement. Concluding that a mediated settlement agreement does not 

preclude the trial court from making a best-interest determination under section 

161.001(2) of the Texas Family Code and that the relator has not shown the trial 

court clearly abused its discretion, we deny mandamus relief. 

I. BACKGROUND

In an original custody order signed at the end of 2004, the trial court named 

the relator and the child’s mother joint managing conservators of the child. A decade 

later, the child’s mother signed a document entitled “Mother’s Affidavit of Voluntary 

Relinquishment of Parental Rights.” In the affidavit, the mother states that

termination of the parent-child relationship is in the child’s best interest, but she 

provides no facts to support that conclusion. In the affidavit, the mother waives her 

right to service of citation and all other process in any suit to terminate her parental 

rights to the child, but the affidavit does not contain any express statement that the 

mother relinquishes or waives her parental rights.

In January 2015, the relator filed an “Original Petition to Terminate ParentChild Relationship,” in which the relator sought an order terminating the parent-
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child relationship between the mother and the child.1 The only ground on which the 

relator sought this relief was that the mother had executed an unrevoked or 

irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161 

of the Texas Family Code and that termination of the parent-child relationship would 

be in the child’s best interest. See Tex. Family Code Ann. § 161.001(1)(K),(2) (West 

Supp. 2015). The mother’s affidavit is attached as an exhibit to the petition.

In April 2015, the two parents attended mediation with their attorneys, and all 

signed a Mediated Settlement Agreement, which states that “the terms of settlement 

are to enter the order of termination as attached as Exhibit A.” The proposed order 

attached as Exhibit A provides that “the parental-child relationship between [the 

mother] and the child the subject of this suit is terminated.” Neither in the Mediated 

Settlement Agreement nor in the attached proposed order does the mother agree that 

the termination of her parental rights is in the best interest of the child.

The relator filed the Mediated Settlement Agreement with the trial court. He 

then appeared at a hearing to prove the terms of the Mediated Settlement Agreement 

and requested the trial court to render judgment on the Mediated Settlement 

Agreement.2

 The only evidence offered at the hearing was testimony by the relator 

as to (1) the relator’s name, (2) the child’s name, (3) the mother’s name, (4) the 

execution of the Mediated Settlement Agreement by the relator and the mother, and 

 1 The case was originally assigned to the 247th Judicial District Court but was transferred 

to the 309th Judicial District Court.

2 In his arguments, the relator seeks to have the trial court “enter judgment” on the Mediated 

Settlement Agreement. Trial courts render judgments; clerks enter them. Burrell v. Cornelius, 

570 S.W.2d 382, 384 (Tex. 1978). Therefore, we understand relator to be arguing that the trial 

court should render judgment on the Mediated Settlement Agreement rather than enter such a 

judgment. See id.
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(5) the relator’s request that the trial court enforce the Mediated Settlement 

Agreement. At the relator’s request, the trial court took judicial notice of the 

Mediated Settlement Agreement. The relator offered no testimony that termination 

of the mother’s parent-child relationship would be in the child’s best interest. The 

trial court took the matter under advisement. 

The trial court signed an order denying rendition of judgment on the Mediated 

Settlement Agreement. In the order the trial court explains the basis of its ruling as 

follows:

The Court having reviewed the pleadings and the statutory 

requirements under § 153.0071(d only), and Chapter 161 of the Texas 

Family Code, finds that the statutory requirements for parental 

termination have not been met by the Mediated Settlement Agreement 

and thus the Court Denies the entry of the Mediated Settlement 

Agreement. The Court further finds that granting an order based on the 

Mediated Settlement Agreement and the parties[’] agreement will serve 

to circumvent well established, mandatory procedures and rules, and 

interferes with this Court’s obligation to comply with the mandatory 

provisions of said statutes.

The relator filed a petition for writ of mandamus in this court. See Tex. Gov’t 

Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, the 

relator asks this court to compel the presiding judge of the 309th District Court to 

vacate her order denying rendition of judgment in accordance with the Mediated 

Settlement Agreement in which the parties agreed to an order terminating the parentchild relationship between the child and his mother, and render judgment in 

accordance with the Mediated Settlement Agreement.
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II. MANDAMUS STANDARD 

To obtain mandamus relief, a relator generally must show both that the trial 

court clearly abused its discretion and that the relator has no adequate remedy by 

appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. 

proceeding). A trial court clearly abuses its discretion if it reaches a decision so 

arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if 

it clearly fails to analyze the law correctly or apply the law correctly to the facts. In 

re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. 

proceeding) (per curiam). With respect to resolving factual issues or matters 

committed to the trial court’s discretion, we may not substitute our judgment for that 

of the trial court unless the relator establishes that the trial court reasonably could 

have reached only one decision and that the trial court’s decision is arbitrary and 

unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). In 

other words, we give deference to a trial court’s factual determinations that are 

supported by evidence, but we review the trial court’s legal determinations de novo. 

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

III. ANALYSIS 

The relator argues that the trial court clearly abused its discretion by not 

rendering judgment terminating the parent-child relationship between the mother 

and the child in accordance with the Mediated Settlement Agreement.
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A. On this record, the trial court reasonably could have found that the 

relator failed to meet the requirements of Family Code section 

161.001.

In its order, the trial court found that the Mediated Settlement Agreement did 

not meet the statutory requirements for termination of the parent-child relationship 

under Chapter 161 of the Texas Family Code. Section 161.001(1) provides in 

relevant part that a trial court may terminate the parent-child relationship if the court 

finds by clear and convincing evidence that (i) the parent has executed “an 

unrevoked or irrevocable affidavit of relinquishment of parental rights as provided 

by this [C]hapter,” and (ii) “termination is in the best interest of the child.” Tex. 

Fam. Code Ann. § 161.001(1)(K); id. § 161.001(2) (emphasis added). Thus, for the 

court to terminate the mother-child relationship, the statute’s plain language requires 

both an affidavit of relinquishment and clear and convincing evidence that 

termination is in the child’s best interest. “This provision requires proof of both 

elements; the proof of the first does not excuse proof of the second.” Byrne v. 

Catholic Charities, Diocese of San Angelo, Inc., 710 S.W.2d 780, 782 (Tex. App.—

Austin 1986, no writ) (interpreting Tex. Fam. Code Ann. § 15.02, the identically 

worded predecessor to § 161.001). The signing of an affidavit of relinquishment does 

not affect the requirement that the trial court must find that termination is in the 

child’s best interest. Terrell v. Chambers, 630 S.W.2d 800, 803 (Tex. App.—Tyler 

1982), writ ref’d n.r.e., 639 S.W.2d 451 (Tex. 1982).

This court has recognized that an affidavit of relinquishment suffices as 

evidence on which the trial court may make a finding that termination of the 

relinquishing parent’s rights is in the child’s best interest. See In the Interest of 

A.L.H., 468 S.W.3d 738, 741–42 (Tex. App.—Houston [14th Dist.] 2015, no pet.); 
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In re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

But, this court has not held that an affidavit of relinquishment requires the trial court 

to find that terminating the parent-child relationship would be in the child’s best 

interest or that an affidavit of relinquishment by itself proves that fact as a matter of 

law. 

To show an abuse of discretion, the relator must establish that the trial court 

reasonably could have reached only one decision and not the decision the trial court 

made. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The only evidence 

upon which the relator relied is the Mediated Settlement Agreement, in which the 

mother agreed to a court order stating that she had executed an unrevoked or 

irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161 

of the Texas Family Code. The affidavit is attached to the relator’s petition and 

contains only the mother’s bare statement that termination of the parent-child 

relationship is in the child’s best interest; it provides no facts to support that 

conclusion. The Mediated Settlement Agreement is merely an agreement by the 

parties for the court to sign an order that terminates the relationship between the 

mother and the child. The relator did not testify that termination of the mother-child 

relationship would be in the best interest of the child or to any facts that would 

support that conclusion under the Holley factors.3 Except for proving up the 

 3

 Texas courts typically utilize the so-called Holley factors in cases requiring a best-interest 

analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include (1) the 

desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) 

the emotional and physical danger to the child now and in the future; (4) the parental abilities of 

the individuals seeking custody; (5) the programs available to assist these individuals to promote 

the best interest of the child; (6) the plans for the child by these individuals or the agency seeking 

custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent 

which may indicate that the existing parent-child relationship is not a proper one; and (9) any 
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Mediated Settlement Agreement, the relator did not testify as to any grounds for 

termination stated in section 161.001(1).

The relator did not attempt to prove by clear and convincing evidence that 

the mother had executed an unrevoked or irrevocable affidavit of relinquishment of 

parental rights as provided by Chapter 161 of the Texas Family Code and that 

termination of the parent-child relationship between the mother and the child would 

be in the child’s best interest. See Tex. Family Code Ann. § 161.001(1)(K),(2). 

Rather, the relator sought an order terminating the mother’s parental rights based 

only upon the Mediated Settlement Agreement. We conclude that with this bare 

record, the trial court reasonably could have determined that the relator did not carry 

his burden under section 161.001(2) to prove by clear and convincing evidence that 

termination of the mother-child relationship would be in the child’s best interest. 

The trial court had discretion to require the relator to offer additional evidence to 

meet the clear-and-convincing-evidence standard. Thus, the relator has not 

established that the trial court clearly abused its discretion in finding that the parties 

failed to meet Chapter 161’s requirements.

B. Family Code section 153.0071(e) does not apply to suits to terminate a 

parent-child relationship under Chapter 161 of the Family Code.

We also consider whether section 153.0071(e) of the Family Code required 

the trial court to render judgment terminating the parent-child relationship in 

accordance with the Mediated Settlement Agreement. Section 153.0071(e) provides 

that if a mediated settlement agreement meets the requirements of subsection (d), a 

 

excuse for the acts or omissions of the parent. Id.; In re S.A.H., 420 S.W.3d 911, 926 (Tex. App.—

Houston [14th Dist.] 2014, no pet.).
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party is entitled to judgment on the mediated settlement agreement. Tex. Fam. Code 

Ann. § 153.0071(e) (West Supp. 2015). In In re Lee, the Supreme Court of Texas

held that the specific provisions of section 153.0071(e) prevailed over the general 

best-interest standard in section 153.002 and that section 153.0071(e) prohibits a 

trial court from denying a motion to render judgment on a properly executed 

Mediated Settlement Agreement based on a broad best-interest inquiry. See 411 

S.W.3d 445, 453–58 (Tex. 2013). But, Lee involved a Mediated Settlement 

Agreement in a suit to modify a child-conservatorship order under Chapter 153, not 

a suit to terminate a parent-child relationship under Chapter 161 of the Family Code.

The supreme court in Lee did not address whether section 153.0071(e) applies 

to a suit to terminate a parent-child relationship brought under Chapter 161 or 

whether a mediated settlement agreement in a termination suit relieves the plaintiff 

of the burden of proving by clear and convincing evidence that termination would 

be in the child’s best interest, as required by section 161.001(2). No Texas court 

appears to have answered these questions.

1. Applying section 153.0071(e) to termination of parental rights would render 

portions of section 161.001 meaningless. 

 The statutes governing termination of parental rights and the statutes relating

to conservatorship differ in significant ways. One big difference is that section 

161.0014 provides that a court may order termination of parental rights only upon 

finding that a circumstance listed in subsection one has been satisfied and that the 

 4 Although section 161.001 is entitled “Involuntary Termination of Parent-Child 

Relationship,” the text of section 161.001 indicates it applies to all terminations. See Tex. Fam. 

Code § 161.001; In re A.G.C., 279 S.W.3d 441, 445-46 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.). 
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termination is in the child’s best interest. See Tex. Fam. Code Ann. § 161.001. As 

a general principle, we eschew constructions of a statute that render any part of the 

statute meaningless or superfluous. City of Dallas v. TCI West End, Inc., 463 S.W.3d 

53, 57 (Tex. 2015). If provisions of a single statute appear to conflict, we try to 

harmonize them to effectuate both by assigning each a meaning that will permit both 

to stand. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Texas 

Dept. of Pub. Safety v. J.H.J., 274 S.W.3d 803, 808 (Tex. App.—Houston [14th 

Dist.] 2008, no pet.). We are not to assign a meaning to one statutory provision that 

would be inconsistent with other provisions of the same act even if the provision, 

standing alone, might be susceptible to such a construction. See Helena Chem. Co.,

47 S.W.3d at 493; Texas Dept. of Pub. Safety, 274 S.W.3d at 808. 

The Mediated Settlement Agreement states that “the terms of settlement are 

to enter the order of termination as attached as Exhibit A.” Rendering orders, of 

course, is the office of courts, not contracting parties. See Burrell v. Cornelius, 570 

S.W.2d 382, 384 (Tex. 1978). But, contracting parties may agree to submit a 

proposed order to a court and request the court to sign the proposed order, and we 

interpret the parties’ Mediated Settlement Agreement to mean that the two parents 

agree to submit to the court for rendition the proposed order of termination attached 

as Exhibit A to the Mediated Settlement Agreement.

The proposed order attached as Exhibit A provides that the parent-child 

relationship between the mother and the child is terminated. The mother’s 

“Affidavit for Voluntary Relinquishment of Parental Rights” states, “I understand 

that I make this termination possible by executing this affidavit.” Thus, the affidavit, 

like the Mediated Settlement Agreement, reflects the mother’s consent to the 
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termination. That is not enough under section 161.001, which requires clear and 

convincing evidence of both an affidavit of relinquishment and that termination 

would be in the child’s best interest. Tex. Fam. Code Ann. § 161.001(1)(K) (West 

Supp. 2015); id. § 161.001(2). Because there is no meaningful difference between 

the Mediated Settlement Agreement and the affidavit of relinquishment, interpreting 

section 153.0071(e) to require termination solely because of the mother’s consent in 

the Mediated Settlement Agreement would put section 153.0071(e) into conflict 

with section 161.001, which additionally requires a finding by the court based on 

clear and convincing evidence that termination would be in the child’s best interest. 

This interpretation also would render subsection (b) of section 161.001 (which 

requires this finding) meaningless as applied to this case. We can harmonize these 

statutes by interpreting section 153.0071(e) not to apply to suits for termination 

under Chapter 161. No language in section 153.0071(e) precludes this 

interpretation. 

2. Section 153.0071(e) does not contain language indicating broad application 

to all suits affecting the parent-child relationship.

The Texarkana Court of Appeals addressed this issue of interpretation in In 

the Interest of K.D., 471 S.W.3d 147 (Tex. App.—Texarkana 2015, no pet.), a case 

in which the Department of Family and Protective Services brought suit to terminate 

the mother’s parental rights under Chapter 161, and the trial court rendered judgment 

terminating the relationship in accordance with a mediated settlement agreement. 

See id. The court of appeals concluded that the Texas Legislature did not intend for 

section 153.0071(e) to apply to parental-termination suits under Chapter 161 and 

that the court therefore was not bound by section 153.0071(e) and the mediated 

settlement agreement to find that termination of the mother’s parental rights would 
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be in the child’s best interest; the Department still was required to prove by clear and 

convincing evidence that termination was in the child’s best interest. Id. at 171–74. 

The K.D. court reached this conclusion based on the “suit affecting the parentchild relationship” language that appears in subsection (c) but that does not appear 

in subsection (e) of 153.0071. Explaining the significance of these differences in 

statutory text, the K.D. court stated:

Section 153.0071(c) states, “On the written agreement of the parties or 

on the court's own motion, the court may refer a suit affecting the 

parent-child relationship to mediation.” TEX. FAM. CODE ANN. § 

153.0071(c) (West 2014). By contrast, Section 153.0071(e) states, “If 

a mediated settlement agreement meets the requirements of Subsection 

(d), a party is entitled to judgment on the mediated settlement 

agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or 

another rule of law.” TEX. FAM. CODE ANN. § 153.0071(e). Thus, 

Section 153.0071(c) identifies those cases that may be submitted to 

mediation. From that subset of cases properly submitted to mediation 

and in which a mediated settlement agreement results, Section 

153.0071(e), in turn, identifies those cases in which the trial court’s 

duty to conduct a best-interest review is eliminated, indeed, in which 

the trial court’s ability to conduct such a review is foreclosed.

Noticeably absent from subsection (e)—which is present in 

subsection (c)—is the language “suit affecting the parent-child 

relationship.” Section 101.032 defines a “suit affecting the parentchild relationship” as “a suit filed as provided by this title in which the 

appointment of a managing conservator or a possessory conservator, 

access to or support of a child, or establishment or termination of the 

parent-child relationship is requested.” TEX. FAM. CODE ANN. § 

101.032(a) (West 2014). The phrase “this title” in Section 101.032(a) 

refers to Title 5 of the Family Code, and parental-rights termination 

cases are contained within Title 5. Therefore, any suit under Title 5, 

including parental-rights termination cases brought by the Department, 

can be referred to mediation under Section 153.0071(c), but not every 
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suit referred to mediation under Title 5 produces a mediated settlement 

agreement that forecloses the trial court’s best-interest review under 

Section 153.0071(e). 

Id. at 171–72 (emphasis added).

According to the K.D. court,“[t]he question then becomes which cases 

referred to mediation under Title 5 produce a mediated settlement agreement that 

forecloses the trial court’s best-interest review under Section 153.0071(e).” Id. at 

172. The court, concluding that section 153.0071(e) did not apply to parentaltermination cases under Chapter 161, explained:

Because Section 153.0071(e) is located within Chapter 153 and does 

not include the statutory language “suit affecting the parent child 

relationship” and because Chapter 153 only involves suits for 

conservatorship, possession, and access to children, then only cases for 

conservatorship, possession, and access to children that are referred to 

mediation under Section 153.0071(c) can produce a mediated 

settlement agreement that forecloses the trial court’s best-interest 

review. Because termination cases are governed by Chapter 161, 

Section 153.0071(e) would not apply to such cases. Therefore, Section 

153.0071(c) and (e) can be interpreted to mean that any suit under Title 

5, including a parental-rights termination suit, may be referred to 

mediation, but only those suits for conservatorship, possession, and 

access that produce a mediated settlement agreement can eliminate the 

trial court's best-interest review. If the Legislature had intended Section 

153.0071(e) to apply to cases under Chapter 161, it could have written 

Section 153.0071(e) to read, “If a mediated settlement agreement [in a 

suit affecting the parent-child relationship] meets the requirements of 

Subsection (d)....” The absence of that language is evidence that the 

Legislature did not intend Section 153.0071(e) to apply to cases under 

Chapter 161.

Id. 
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The Supreme Court of Texas, in Richardson v. Green, 677 S.W.2d 497, 498 

(Tex. 1984), used this statutory-interpretation approach and similar reasoning in

affirming its jurisdiction to review appellate court judgments in parental-rights 

termination cases. Id. at 173. In that case, the mother challenged the supreme court’s 

jurisdiction to hear the case “because the 1983 amendment of article 1821(3), Tex. 

Rev. Civ. Stat. makes judgments of the courts of appeal final in all cases of child 

custody, support or reciprocal support.” Id. (citing Richardson, 677 S.W.2d at 499-

500). The mother argued that because “actions to terminate parental rights are child 

custody cases,” article 1821(3) eliminated the Supreme Court of Texas’s jurisdiction 

over such cases. Id. The high court disagreed, reasoning:

Custody and termination actions are governed by separate Chapters in 

Title 2 [now Title 5] of the Family Code. See TEX. FAM. CODE ANN. 

chs. 14, 15 (Vernon Supp. 1984) [now Chapters 153 and 161]. If the 

legislature had intended the 1983 amendment to encompass all actions 

under Title [5] of the Family Code, it would have stated: “all cases of 

divorce, or suits affecting the parent-child relationship” instead of 

limiting the exclusion of jurisdiction to “or child custody, support, or 

reciprocal support.” We therefore hold that Article 1821(3) does not 

include involuntary termination of parental rights actions and that the 

Supreme Court of Texas continues to have jurisdiction to review court 

of appeals’ judgments in such cases.

Richardson, 677 S.W.2d at 500. Thus, the Supreme Court of Texas found that the 

absence of the language “suits affecting the parent-child relationship” in the statute 

limiting judicial review indicated a legislative intent that the limitation not apply to 

parental-termination cases. K.D., 471 S.W.3d at 173.

Because section 153.0071(e) is located within Chapter 153 (which governs 

suits for conservatorship, possession, and access to children) and the Legislature 
15

chose to include no similar provision in Chapter 161 (which governs suits for the 

termination of a parent-child relationship), we cannot conclude that the Legislature 

intended section 153.0071(e) to apply to termination suits under Chapter 161.

3. Key differences between termination provisions and conservatorship 

provisions support an interpretation that requires a best-interest finding in 

termination cases.

As the court recognized in K.D., the termination of parental rights impacts not 

only the interests of the parent but also the fundamental liberty interests of the child. 

471 S.W.3d at 167 (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) 

(“Consideration of the private interest factor cannot be limited to only the parent’s 

interest. The child bears a substantial interest in the proceedings as well.”)). Yet, 

typically, the child is not a party to the parents’ mediated settlement agreement. Nor 

is the child typically represented by counsel. Consequently, the child’s interest in 

maintaining a parental relationship may not be adequately represented in the 

mediation. We could hardly conclude that the Legislature intended section 

153.0071(e) and a mediated settlement agreement to preclude the trial court from 

protecting the liberty interests of the child by deciding whether the plaintiff has 

proved by clear and convincing evidence that termination would be in the child’s 

best interest, as section 161.001(2) requires. 

Another important consideration is the finality and irrevocability of a decree 

terminating parental rights. Unlike a termination decree under Chapter 161, a childconservatorship decree under Chapter 153 may be modified:

Suits for conservatorship, possession, and support are governed by 

Chapter [153] of the Family Code and those matters are determined by 

the “best interest” test. Section [153.002]. Those proceedings are 
16

different and have different purposes from termination cases. Decrees 

under Chapter [153] may be modified or changed from time to time, 

but the parent still retains some rights in and control over a child. A 

termination decree, on the other hand, is complete, final, irrevocable. It 

divests for all time the parent and child of all legal rights, privileges, 

duties, and powers with respect to each other except for the child’s right 

to inherit. . . . The difference in the proceedings justifies the caution 

with which courts have characteristically considered termination cases. 

Wiley v. Spratlan, 543 S.W.2d 349, 351–52 (Tex. 1976). Although it is clear that 

the Legislature intended, under section 153.0071(e), that the court be bound by the 

parties’ mediated settlement agreement in child-conservatorship suits (where the 

decree may be modified if necessary), it is not clear that the Legislature intended this 

result for termination-of-parental-rights suits (where the decree is final and 

irrevocable). To the contrary, section 161.001(2) reflects a legislative intent that the 

court may terminate the parent-child relationship only if there is clear and 

convincing evidence that termination is in the child’s best interest. 

For these reasons, we conclude that section 153.0071(e) does not apply to 

suits for termination of the parent-child relationship under Chapter 161 of the Family 

Code and that a mediated settlement agreement therefore does not preclude a trial 

court from determining under section 161.001(2) whether the plaintiff has proved 

by clear and convincing evidence that termination would be in the child’s best 

interest. Our interpretation of these statutes remains the same regardless of whether 

the Department of Family and Protective Services is a party to the parentaltermination suit.5

 5 The K.D. court expressed concern about the possibility of government overreach by the 

Department of Family and Protective Services and thus stated that “[w]e do not decide and express no 

opinion on whether section 153.0071(e) would foreclose a trial court’s best-interest determination in a 
17

IV. CONCLUSION

The relator has not established that the respondent trial judge clearly abused 

her discretion. Accordingly, we deny the relator’s petition for writ of mandamus.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and Wise.

 

parental-rights termination case resolved by a mediated settlement agreement in which the Department [of 

Family and Protective Services] was not a party.” 471 S.W.3d at 170–71, and 174 n.18. The concern raised 

by the court in K.D. is an issue of public policy, not statutory construction. Sections 153.0071(e) and 

161.001 of the Family Code do not distinguish between suits brought by the Department and suits brought 

by private parties. We see no valid statutory basis for recognizing such a distinction.