### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00151- CV

S. H., App ellant

v. The Texas Departm ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -F M- 11- 0048 87, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant S.H. appea ls from the district court’s termination of her pare ntal rig hts to her three children. She contends that the evidenc e i s l ega l l y insufficient to support the court’s finding that she voluntarily execut ed an aff idavit of relinquishment and that the evidenc e is fac tually insufficient to support the finding that termination was in the children’ s best interest. We will affirm.

BACK GR OUND

S

. H. i s the mother of three children, J .H., A.H., and N.H. I n J uly 2010, the Texas Depa rtment of Family and Protective S er v i ce s (t he Depa rtment) rec eived a ref

err al alleg ing neg lectful supervision and phy sical abuse of all three children. I n Marc h 2011, it rec eived a ref err al of medical neg lect of J .H. I n Au gu s t 2011, the Depa rtment filed a petition seeking to terminate S.H.’s pare ntal rig hts to all three children and was appointed temporar y m anaging conser

vator onan ex parte basis. After an evidentiar y hear ing, the Depa

rtment was dismiss ed as t em p orar y manag ing conser

vator and the case proce eded as a “cour t or dere d service s case .” The Depa rtment

was ag ain appointed temporar y manag ing conser

vato r o f t h e children in September 2012. I n J anuar y 2013, a mediation was held. S.H. attended the mediation with her court-a ppointed attorney

. T h e Depa rtment and S.H. rea ched an ag ree ment and executed a mediated settlement ag ree me n t. S. H

. ag ree d to sign a

n irrevoc able a ffidavit of r elinquishment of her pa renta l rig hts to the children, and the Depa rtment ag ree d to use the aff idavit of relinquishment as the sole basis for seeking termination of her pare ntal rig hts. S.H. signed the a ffidavit of r elinquishment that day

. The case went to tr ial in F ebrua ry 2013. The De partment c alled a CPS casew orker and the children’ s court-a ppointed specia l advocate and g uardia n ad litem as witnesses and offe red

as exhibi ts the mediated settlement ag ree ment and the S.H.’s aff idavit of relinquishment. S.H. then testified t hat s he mi sunderstood t he meaning of the af fidavit she si g ned. She stated t hat s he “was thinking that [she] was signing the paper for safe ty for my kids to g o with my cousin for six months.” S.H. testified that she would never have signe d the aff idavit or the mediated se ttlement ag ree ment if she had known that she was relinquishing her pare ntal rig hts. On cross-e x amination S.H. sta ted that she asked her attorney at a meeting in Dec ember 2012 whether the p ap ers meant that the children w ould go to he r cousin’s f or six months and that her a ttorney told her that wa s the ca se. At the conclusion of the trial, the court found that S.H. voluntarily relinquished her pare ntal rig hts and that termination of S .H.’s parental rights t o the three children was i n their best interest. The court signe d a final decr ee of termination, from which S.H. now appea ls. I n two issues, S.H. asser ts that the evidenc e was leg ally insufficient to support a finding that she voluntarily signe d

2the aff

idavit of relinquishment and that the evidenc e was fac tually insufficient to support a finding that termination was in the c hildren’s be st interest.

DISCUSSIO N Did S.H. V

olun tarily Si

gn th e Affidav it of Relinqu ishm ent? Once it is established by clea r and convincing evidenc e that an aff idavi t of relinquishment wa s p roper ly executed, the aff idavit may only be set aside upon a finding , by a prepon d er an ce of the evidenc e, that it was procur ed by coer cion, duress, fra ud, dece ption, undue influence , or overr ea ch ing. Lumbis v. Texas Dep’ t of Protective & Regulatory Servs. , 65 S.W .3d 844, 850 (Tex. App.—Austin 2002, pet

. d en i ed ) (citing Vela v. Marywood , 17 S.W .3d 750, 758 (Tex. App.—Aust i n 2 0 0 0 ), pet. denied , 53 S.W .3d 684 (Tex. 2001)). The Depa rtment introduced the aff

idavit of relinquishment at trial and S.H. testified that she had in fac t signe d the af

fidavit. This satisfied the De partment’s bur den of e stablishing proper execution. On appea l, S.H. does not contend that the preponde ranc e of the evidenc e demonstrates that she did not voluntarily execute the aff idavit of relinquishment. I nstead, rely ing on a concur

ring and dissenting opinion in In re L .M.I. , she arg ues t hat t he burden of proof should be on the Department t o show, by clea r and convincing evidenc e, that her execution was in fac t voluntary

. See 119 S.W .3d 707, 716 ( T e x. 2 0 0 3 ) ( O w e n s , J ., concur ring and dissenting) (advoc ating ref ormulation of burden a

n d s ta n d a r d of proof for setting aside aff idavit of relinquishment). S.H. asser ts that the Depa

rtment did not meet this burden in light of her testimony that she did not understand that by signing the aff idavit she was ag ree ing to r elinquish her par ental rig hts.

3We decline S.H.’s invitation to depar t from thi s Court’s prec edent r ega rding when the trial court may set aside a duly executed aff idavit of relinquishment. See Lumbis , 65 S.W .3d at 850; see also W

all v. Texas Dep’ t of Family a n d P rotective Servs. , No. 03-04-00716- CV, 2006 WL 1502094, at *2 (Te x . App.—Austin J une 2, 2006, no pet.) (mem. op.). I n order for the 1 aff idavit of relinquishment to be set as i d e, S.H. was require d to prove, by a preponde ranc e of the evidenc e, t h at her execution of the aff idavit was procur ed by coer cion, duress, fra ud, dece ption, undue influenc e, or ove rre aching

. See id.

S.H. admitted that she signe d the aff idavit which, among other things, stated: “I have been inf ormed of my pare ntal rig hts, privileg es, power s and duties. I fre ely , voluntarily , and perma nently relinquish all my pare ntal rig hts, privile ges , p o we rs and duties. I consent to the place ment of the Children for adoption by the Texas Depa rtment of Family and Protective Service s.” S.H. also admitted that she initialed eac h line of the following para g raph, printed in bold capital letter s:

I REALIZE THAT I SHOUL D NOT SIGN THIS AF F IDAVIT UNTIL I HAVE R E A D A N D U N D E R S T O O D E A C H W O RD , S E NT E N C E , A N D PARAGRA P H IN IT. I REALIZE THAT I SHOUL D NOT SIGN THI S A F F I D A V I T OF RELINQUISH MENT IF THERE IS ANY TH OU G HT I N M Y MIND THAT I MIG HT SOMEDAY SEE K TO CHANG E MY MIND. I REALIZE THAT I SHOUL D NOT SIGN THIS AF F IDAVIT OF RELINQUISH MENT IF I AM NO T THINKING CLEARLY BECAUSE OF ILLNES S, MEDICATION, MY EMOTIONAL S T AT E , OR ANY OTHE R

W e observe that other appellate courts have likewise declined to alter the standard and 1 burden of proof based on arg uments simil ar t o S

. H. ’s

. See In re C.L. , No 10-11-00228- CV, 2011 WL 5830472, at *2 (Tex. App.—Waco Nov. 16, 2011, no pet.) (mem. op.) (dec lining to adopt standard of revie w sug g ested by concur ring and dissenting opinion in In re L.M.I. ) ; In re D.E.H. , 307 S.W .3d 825, 830 n.4 (Tex. App.—For t Worth 2009, pet. denied) (same). 4REASON. BECAUSE I REALIZE HOW IMP ORTANT THIS DECISION IS

F OR THE F UT UR E OF MY CHILDREN, I HAVE P UT MY INITIALS BES IDE EVERY LINE OF THIS P ARAG RAP H SO THAT I T W I LL ALWAYS BE UNDERSTOOD THAT I HAVE READ THIS AF F IDAVIT OF RELINQUISH MENT, UNDERSTAND IT, AND DESIRE TO S IGN IT. Despite having signe d the aff idavit of relinquishment and initialed eac h line of the para g raph stating that she had rea d and understood the aff idavit, S.H. testified at trial that she did not believe that the aff idavit would have the eff

ect of relinquishing her pare ntal rig hts. S.H. testified that she discussed the aff idavit with her attorney , who told her in Dec ember that the aff idavit provided that the children would g o with S.H.’s cousin for six m onths and then re turn home.

The Depa rtment introduced into evidenc e a mediated settlement ag ree ment S.H. signe d at a media tion where she was repr esente d by counsel. The mediation ag ree ment provided, among other things, that S.H

. would sign an aff idavit of relinquishment and that the Depa rtment would use its best eff

orts to place the children with an appropr iate adoptive family

. An associate of Stacey L ewis, the a ttorney who re prese nted S.H. at the mediation, appe are d at trial and state d that L ewis told her she had rea d the pertinent documents to S.H. “line by line” and that L ewis was cer tain that S.H. understood that she wa s relinquishing he r par ental rig hts.

The trial court could rea sonably have found that the evidence presented at trial did not meet S.H.’s burd en of establishing by a preponde ranc e of the evidenc e that the aff idavit of

r e li n q u is h me nt was procur ed by coer cion, duress, fra ud, dece ption, undue inf

lu e n c e , o r o v e r

r e a c h in g . See Vela , 17 S.W .3d at 758. And, as previously stated, S.H. does not contend on appea l that she has made that showing , instead arg uing for the adoption of a differ ent allocation of the burden of proof. The trial court found that the aff idavit of relinquishment was executed voluntarily

. The court hear d

5the witnesses and evalua ted their cre dibilit y and the weig ht to be g iven their testimony

. We will not

second g uess its deter

mination on such issues. See Lumbis , 65 S.W .3d at 851. The evidenc e did not establish conclusively that the aff idavit was procur ed by fra ud, misrepre sentation, overr eac hing, or undue influence ; acc ording ly , we cannot hold that the trial court err ed in finding that S.H. signe d the aff idavit v o l u n tarily

. See Moore v. Brown , No. 03-11-00886- CV, 2013 WL 692455, at *10, ___ S.W .3d ___ (Tex. App.—Austin Fe b. 22, 2013, pet. filed). We overr ul e S

. H. ’s fi rst appellate issue.

Was Term inati on in the Ch ildren’s Best In terest?

I n her second issue, S.H. contends there was fac tually in s u f f ic ie nt evidenc e to support the trial court’s finding that termination of S.H.’s pare ntal rig hts was in the children’ s best interest. The aff idavit S.H. signe d states that “[i] t is in the best interest of the Children that the Children be place d for adoption in a suitable home by an ag ency licensed by the Texas Depa rtment of Family and Protective Service s to pla ce the Children for adoption.” The Depa rtment case worke r testified that termination was in ea ch o f the children’ s best interest. The children’ s court-a ppointed specia l advocate and gu ar dian ad litem also testified that termination was in the children’ s best interest. There was no evidenc e that termination was not in the children’ s best interest

. Moreove r, an aff idavit of relinquishment, in and of itself, can provide sufficie nt evidenc e that termination is in a child’s best interest. See Brown v. McLennan Cnty. Children’s Protective Servs. , 627 S.W .2d 390, 394 (Tex. 1982); Lumbis , 65 S.W .3d at 851 n.1. We overr ule S.H.’s sec ond appellate issue.

6CONCLUSION Having overr

uled S.H. ’s two appellate issues, we aff irm the district court’s decr ee of termination.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: June 12, 2013

7