COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00054-CV

IN THE INTEREST OF C.E., C.E., 

AND M.E., CHILDREN

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. D2013105

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MEMORANDUM OPINION1

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Appellant Mother appeals from the trial court’s judgment terminating her 

parent-child relationships with her sons, C.E. and C.E., and with her daughter,

M.E.2

 In four issues, Mother contends that termination based solely on her 

affidavit of relinquishment which was allegedly not executed voluntarily is not 

 1

See Tex. R. App. P. 47.4.

2

Mother’s eldest son, D.F., turned eighteen before trial; he is therefore not 

a part of this appeal.
2

proper and does not comply with the family code; that the trial court’s judgment 

should be reversed because she timely revoked her relinquishment of her 

parental rights under a plain reading of section 161.1035 of the family code;3 that 

the application of section 161.103(e) of the family code denies her due process

by providing no means of revoking her allegedly involuntary relinquishment of 

parental rights;

4 and that the evidence is legally and factually insufficient to 

support the trial court’s best interest finding and finding under section 

161.001(1)(K).

5 Because we hold that Mother’s affidavit of relinquishment is 

valid and irrevocable, that the application of section 161.103(e) did not violate 

Mother’s due process by preventing her from revoking the affidavit of 

relinquishment, and that the evidence is legally and factually sufficient to support 

the trial court’s findings that termination is in the children’s best interest and that 

Mother executed an irrevocable affidavit of relinquishment of her parental rights, 

we affirm the trial court’s judgment.

Background Facts

Mother signed a mediated settlement agreement (MSA) and an irrevocable 

affidavit of relinquishment before trial. In the MSA, the Texas Department of 

Family and Protective Services (TDFPS) and Mother agreed that Mother would 

 3

Tex. Fam. Code Ann. § 161.1035 (West 2014).

4

Id. § 161.103(e).

5

Id. § 161.001(1)(K), (2).
3

owe no past or future child support for the children and that TDFPS would seek 

adoption of all the children first by the daughter’s foster parent and alternatively 

by the sons’ former foster parent. In her “Affidavit of Voluntary Relinquishment of 

Parental Rights to the Department of Family and Protective Services,” Mother 

stated under oath that

• she was presently obligated to pay child support;

• she had been told of and understood her parental rights and duties 

as set out in the family code (and they were also listed in the 

affidavit);

• “[t]ermination of the parent-child relationship is in the best interest of 

the children”;

• “by naming the Department of Family and Protective Services as 

managing conservator in this Affidavit of Relinquishment, [she gave]

up all [her] parental rights and grant[ed] them to the Department 

and/or to the adoptive parents with whom [the] children may be 

placed”;

• she “designate[d] the Department of Family and Protective 

Services . . . managing conservator of the children”; and

• she “freely, voluntarily, and permanently g[a]ve and relinquish[ed] to 

the Department all [her] parental rights and duties” and “consent[ed] 

to the placement of the children for adoption or in substitute care by 

the Department or by a licensed child-placing agency.”

Information about the nature of the affidavit of relinquishment was set out 

in bold in two separate places in the document. Mother swore under oath:

7. Affidavit of Relinquishment Irrevocable

“This Affidavit of Relinquishment of Parental Rights is 

and shall be final, permanent, and irrevocable. I fully 

understand that, if I change my mind at any time, I can 

never force the agency to destroy, revoke or return this 

affidavit.
4

. . . .

9. Acknowledgment of Receipt and that Affidavit is 

Irrevocable

“I fully understand that this affidavit, once signed, is 

irrevocable, and I will not be further informed of any 

hearings or proceedings affecting the children named in

this affidavit, including any termination suit.

“I have received a copy of this Affidavit of Relinquishment 

at the time of signing.”

After a brief trial, the trial court terminated Mother’s parental rights to the 

children based on her affidavit of voluntary relinquishment and the trial court’s 

best interest finding. Five days later, the trial court received Mother’s letter 

seeking to revoke her affidavit. She also timely filed a motion for new trial 

alleging that she had signed the affidavit of relinquishment under duress and 

because of undue influence. Mother stated in her motion for new trial that

[o]nly after [she] was led to believe that the father had signed an

affidavit of relinquishment, that her mother-in-law supported the 

termination[,] and that her children wanted her to allow them to be 

adopted[] did she agree to sign the affidavit. Mo[ther]’s

acquiescence to the termination was a direct result of the undue 

influence of the mediation participants. Without the influence of 

those persons at mediation, and without being misinformed of crucial 

facts during mediation, Mo[ther] would not have signed the affidavit 

of relinquishment.

In her motion, Mother also requested that the trial court take judicial notice 

of its file. Mother’s affidavit and the affidavit of the paternal grandmother

accompanied her motion for new trial. After a hearing, the trial court denied 

Mother’s motion for new trial. Mother timely appealed.
5

Best Interest Finding

In her fourth issue, Mother contends that TDFPS failed to prove that 

termination was in the children’s best interests. In a termination case, the State 

seeks not just to limit parental rights but to erase them permanently—to divest 

the parent and child of all legal rights, privileges, duties, and powers normally 

existing between them, except the child’s right to inherit.6

 Consequently, “[w]hen 

the State seeks to sever permanently the relationship between a parent and a 

child, it must first observe fundamentally fair procedures.”7

 We strictly scrutinize 

termination proceedings and strictly construe involuntary termination statutes in 

favor of the parent.8

Termination decisions must be supported by clear and convincing 

evidence.9

 “[C]onjecture is not enough.”10 Due process demands this 

heightened standard because “[a] parental rights termination proceeding 

 6

Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685 

S.W.2d 18, 20 (Tex. 1985).

7

In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 

455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).

8

In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–

55; Holick, 685 S.W.2d at 20–21.

9

Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2014); E.N.C., 384 

S.W.3d at 802.

10E.N.C., 384 S.W.3d at 810.
6

encumbers a value ‘far more precious than any property right.’”11 Evidence is 

clear and convincing if it “will produce in the mind of the trier of fact a firm belief 

or conviction as to the truth of the allegations sought to be established.”12

For the trial court to properly terminate the parent-child relationship, 

TDFPS needed to establish by clear and convincing evidence that Mother 

“executed before or after the suit [was] filed an unrevoked or irrevocable affidavit 

of relinquishment of parental rights” and that termination was in the best interest 

of the children.

13 In evaluating the evidence for legal sufficiency in parental 

termination cases, we determine whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction that Mother “executed before or 

after the suit [was] filed an unrevoked or irrevocable affidavit of relinquishment of 

parental rights” and that termination was in the best interest of the children.14

We review all the evidence in the light most favorable to the finding and 

judgment.15 We resolve any disputed facts in favor of the finding if a reasonable 

 11E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 

S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 

384 S.W.3d at 802.

12Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 

802.

13See Tex. Fam. Code Ann. § 161.001(1)(K), (2); E.N.C., 384 S.W.3d at 

803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

14See Tex. Fam. Code Ann. § 161.001(1)(K), (2); In re J.P.B., 180 S.W.3d 

570, 572–73 (Tex. 2005).

15J.P.B., 180 S.W.3d at 573.
7

factfinder could have done so.16 We disregard all evidence that a reasonable 

factfinder could have disbelieved.17 We consider undisputed evidence even if it 

is contrary to the finding.18 That is, we consider evidence favorable to 

termination if a reasonable factfinder could, and we disregard contrary evidence 

unless a reasonable factfinder could not.19 “A lack of evidence does not 

constitute clear and convincing evidence.”20

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses because that is the factfinder’s province.21 And 

even when credibility issues appear in the appellate record, we defer to the 

factfinder’s determinations as long as they are not unreasonable.22

In reviewing the evidence for factual sufficiency, we give due deference to 

the factfinder’s findings and do not supplant the judgment with our own.23 We

determine whether, on the entire record, a factfinder could reasonably form a firm 

 16Id.

17Id.

18Id.

19See id.

20E.N.C., 384 S.W.3d at 808.

21J.P.B., 180 S.W.3d at 573, 574.

22Id. at 573.

23In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
8

conviction or belief that Mother “executed before or after the suit [was] filed an 

unrevoked or irrevocable affidavit of relinquishment of parental rights” and that 

termination was in the best interest of the children.24

There is a strong presumption that keeping a child with a parent is in the 

child’s best interest.25 Prompt and permanent placement of the child in a safe 

environment is also presumed to be in the child’s best interest.26

We review the entire record to determine the child’s best interest.27 The 

same evidence may be probative of both the subsection (1) ground and best 

interest.28 Nonexclusive factors that the trier of fact in a termination case may 

also use in determining the best interest of the child include

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the 

future;

(C) the emotional and physical danger to the child now and in the 

future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote 

the best interest of the child;

 24See Tex. Fam. Code Ann. § 161.001(1)(K), (2); In re C.H., 89 S.W.3d 17, 

28 (Tex. 2002).

25In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

26Tex. Fam. Code Ann. § 263.307(a) (West 2014).

27In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).

28C.H., 89 S.W.3d at 28; see E.C.R., 402 S.W.3d at 249.
9

(F) the plans for the child by these individuals or by the agency 

seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the 

existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.29

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases.30 Furthermore, undisputed evidence of just one factor may be 

sufficient in a particular case to support a finding that termination is in the best 

interest of the child.31 On the other hand, the presence of scant evidence 

relevant to each factor will not support such a finding.32

“[A]n affidavit of relinquishment, in and of itself, can provide sufficient 

evidence that termination is in a child’s best interest.”33

 29Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations 

omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest 

finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384 

S.W.3d at 807.

30C.H., 89 S.W.3d at 27.

31Id.

32Id.

33S.H. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-13-00151-CV, 

2013 WL 3013874, at *3 (Tex. App.—Austin June 12, 2013, no pet.); see Brown 

v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 394 (Tex. 

1982); Ivy v. Edna Gladney Home, 783 S.W.2d 829, 833 (Tex. App.—Fort Worth 

1990, no writ).
10

The TDFPS caseworker testified at trial that TDFPS received a court report 

after Mother tested positive, apparently for methamphetamine, while on 

probation, which was about to be revoked. Mother admitted to TDFPS that she 

was having issues with methamphetamine again. Her methamphetamine use 

was the reason for the removal of the children in a prior TDFPS case. In the 

prior case, the maternal grandmother (Grandmother) was named the permanent 

managing conservator (PMC), and the trial court had ordered that Mother have 

no unsupervised contact. We note from the clerk’s record that Grandmother was 

named PMC in June 2011, more than two and a half years before trial. But by 

the time TDFPS received the probation report, Grandmother had moved to 

Florida, leaving the children with Mother. When the new case began, Mother 

avoided TDFPS for about a month but then dropped the children off at their

previous foster care agency.

The TDFPS caseworker also testified that the MSA is in the children’s best 

interest and that Mother signed an affidavit of voluntary relinquishment of her 

parental rights as part of that agreement. The caseworker further testified that 

the children could be placed in an adoptive home, are readily adoptable, and do 

not have any educational, psychiatric, or emotional problems that would 

significantly impede adoption.

The CASA worker testified that the termination of Mother’s parental rights 

is in the children’s best interest and that the daughter’s foster mother is a good 

potential candidate to adopt all the children.
11

The trial court took judicial notice of Mother’s affidavit of relinquishment, 

which provides that the children were fourteen, thirteen, and twelve years old 

respectively when she signed the affidavit a few days before trial. Mother also 

swore in her affidavit of relinquishment that “[t]ermination of the parent-child 

relationship is in the best interest of the children.”

Thus, the trial court could glean from the evidence that Mother’s life was 

unstable, that her probation was subject to revocation, that she had a chronic 

methamphetamine problem, that her children had been removed and formally 

placed with her mother in 2011 and that she had been limited to supervised 

visitation, that she had violated that order, that she had avoided CPS for a 

month, that the caseworker, the CASA worker, and Mother all thought that 

termination of her parental rights was in the children’s best interest, and that the 

children, even at their ages, were readily adoptable with two potential placements 

available that were already known to the children and that would allow them to 

live together. Applying the appropriate standards of review, we hold that the 

evidence is legally and factually sufficient to support the trial court’s best interest 

finding. We overrule Mother’s fourth issue.

Voluntariness of Affidavit of Relinquishment

In her first issue, Mother contends that “[t]he trial court’s order should be 

reversed because termination based solely under Texas Family Code 

§ 161.001(1)(K), pursuant to an affidavit of relinquishment that was not executed 

voluntarily, is not proper, and does not comply with the Texas Family Code: 
12

Texas Family Code § 161.001(1)(K) was not satisfied.” While Mother also claims 

that the motion for new trial challenged the legal and factual sufficiency of the 

evidence to support the trial court’s judgment, it did not. The motion for new trial 

was focused solely on presenting newly discovered evidence to the trial court in 

order to have Mother’s affidavit of relinquishment set aside. Essentially, Mother

challenges the trial court’s denial of her motion for new trial and rejection of her 

arguments that her affidavit of relinquishment was involuntary. But Mother 

misstates the burden of proof.

We review a trial court’s denial of a motion for new trial for an abuse of 

discretion.34 Relevant to the facts before us, section 161.001 allows a trial court 

to terminate the parent-child relationship if the trial court finds by clear and 

convincing evidence that termination is in the best interest of the child and that 

the parent has “executed before or after the suit is filed an unrevoked or 

irrevocable affidavit of relinquishment of parental rights.”

35 Section 161.103 has 

a list of requirements that the affidavit of relinquishment must satisfy.

36 Mother 

does not contend that the affidavit fails to meet the explicit statutory 

requirements, and our review of the affidavit yields the conclusion that it does 

meet those requirements. No contrary evidence was admitted at trial. To that 

 34R.R., 209 S.W.3d at 114.

35Tex. Fam. Code Ann. § 161.001(1)(K), (2).

36Id. § 161.103(a)–(b).
13

extent and to address Mother’s sufficiency complaint, we hold that the evidence 

was legally and factually sufficient to support the trial court’s finding under 

subsection (K) as of the date of the judgment.37

But implicit in the family code is the requirement that the affidavit must be 

voluntarily executed.38 An involuntarily executed affidavit is a complete defense 

to a termination decree based solely on such an affidavit.39 After the proponent 

of the affidavit demonstrates that it complies “with the requirements of section 

161.103,” the party opposing it must prove, “by a preponderance of the 

evidence,” that it “was executed as a result of fraud, duress, or coercion” to get 

the affidavit set aside.40 This was the purpose of Mother’s motion for new trial.

“Undue influence,” “misrepresentation,” “duress,” and “overreaching” are 

the terms used by Mother in her motion for new trial to argue that her affidavit 

was involuntarily executed. We do not believe that her single use of “fraud” for 

the first time in her brief seeks to enlarge her contention below that her affidavit 

 37See id. § 161.001(1)(K).

38See id.; see also In re D.R.L.M., 84 S.W.3d 281, 296 (Tex. App.—Fort 

Worth 2002, pet. denied).

39D.R.L.M., 84 S.W.3d at 296.

40See Tex. Fam. Code Ann. § 161.211(c) (West 2014); In re D.E.H., 301 

S.W.3d 825, 830 (Tex. App.—Fort Worth 2009, pet. denied) (en banc) (citations 

omitted); D.R.L.M., 84 S.W.3d at 297.
14

was involuntarily executed.41 Mother also contends in her brief that the MSA 

requirement that she execute the affidavit of relinquishment made it involuntary.

The heart of a claim of undue influence is the overcoming of a person’s 

free will and replacing it with the will of someone else, causing the person to do 

something that she otherwise would not have done.42 Influence is not “undue”

just because it is persuasive and effective.43 “[T]he law does not condemn all 

persuasion, entreaty, importunity, and intercession.”

44

[O]verreaching is tricking, outwitting, or cheating a person into doing 

[something that] he would not otherwise have done. Duress occurs 

when, due to some kind of threat, a person is incapable of exercising 

her free agency and unable to withhold consent. Fraud may be 

committed through active misrepresentation . . . and is 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. A

misrepresentation is a falsehood or untruth with the intent to 

deceive.45

Mother claimed in her motion for new trial that someone at the mediation

told her (1) that the paternal grandmother thought she should sign the affidavit of 

relinquishment and (2) that her sons wanted to be adopted. Mother also claimed 

 41See Tex. R. App. P. 33.1.

42D.E.H., 301 S.W.3d at 828–29.

43Id.

44B.A.L. v. Edna Gladney Home, 677 S.W.2d 826, 830 (Tex. App.—Fort 

Worth 1984, writ ref’d n.r.e.).

45D.E.H., 301 S.W.3d at 829 (citations and selected internal quotation and 

other punctuation marks omitted).
15

that TDFPS obtained the presumed father’s signature to the MSA and affidavit of 

relinquishment first because TDFPS somehow knew that that would persuade 

her to sign the affidavit of relinquishment. Mother’s affidavit attached to her 

motion for new trial supported her allegations in the motion. In the paternal 

grandmother’s affidavit, also filed in support of the motion for new trial, the 

paternal grandmother states that she never said that Mother “sign[ing] over her 

rights” to the children was best for them.

In Mother’s lawyer’s opening statement at the hearing on the motion for 

new trial, he contended that she would not have signed the MSA or affidavit had 

undue influence not been exerted on her.

Mother testified at the hearing on her motion for new trial that she placed 

the children with the Lifeline agency because she knew that she “was going to 

have to be incarcerated.” She admitted that she had participated in mediation 

but acknowledged that she had alleged that “things happened in mediation 

that . . . caused [her] to do things that [she] would not have otherwise done.” She 

testified that she wanted to testify about mediation, even though it was 

confidential, and that she did so freely and voluntarily. Mother contended that 

she had attended mediation with the intent to go to jury trial. She claimed that 

she had told her trial lawyer of her intent as well as various attendees of a 

permanency meeting at Somervell, including her daughter. Mother admitted that 

her trial lawyer told “that one lady” that Mother wanted to talk to the paternal 

grandmother. According to Mother, the unnamed woman said,
16

“Well, they already think that you should go ahead and just sign over 

your rights. They told us that you should sign over your rights and 

everything, because it’s in the best interests of the kids,” and she 

was really forceful about it, like real flamboyant, you know, “Hey.”

And then she said, “Anyway, your boys told me that they 

wanted—they told us that they wanted to be adopted.” The only 

reason she could say my boys was because that my daughter at the 

PMC meeting said she—she knows I’ll do anything, she doesn’t 

have a doubt in her mind that I’ll do anything to get them back, 

and—and it doesn’t mean—it’s just the moment I heard that my

boys, you know, I thought something like that, I—I got that idea 

that I was, you know, the world’s worst mother for a minute, 

you know. I couldn’t quit crying. I was an emotional wreck.

And—I’m sorry. Anybody that—they both knew in that room 

that I did not want to sign my rights over. The reason I signed 

my rights was because, okay, my ex . . . was nowhere involved in 

the case, I mean he was on the phone and stuff and everything, but 

they knew that I would not sign that paper if somebody else’s 

signature wasn’t on there, and he was bench-warranted back 

for the case, okay, which is understandable, I understand that 

he has to come to sign over his own rights, but they knew that 

if they pulled him out before me and I seen his signature on 

there, I would think that he talked to my mother-in-law, which is 

his mother, thinking that there was nothing else that we could 

do about the well-being of my children, staying with family, that 

there was nothing else we would be able to do, so I know that 

they had me follow suit with him, seeing his signature on there, 

me thinking that he talked to his mom and everything, them 

telling me that my mother-in-law thinks it’s in the best interests 

I sign my kids over, you know, and them pulling him out and his 

signature being on that paper, you know, so I followed suit, I 

did. Did I want to? No. These are my children, and I love them.

And, you know, I—I’m sorry. I—I couldn’t even concentrate, I was 

shaking so bad when I signed that paper and everything, any lawyer 

in their right mind would have said, “Wait. I think you need a little bit 

to think about this. Are you sure?” When Shelly Fowler walked into 

the room, [my trial lawyer] knew that I didn’t want to sign my rights, 

he could have said, “Don’t say another word. We’ll take it to jury 

trial,” that’s what he should have said, but that’s not what he said. 

He said—he let her do all the talking, let her bombard me, and then 

the moment that I thought that my children wanted me to put 

them up for adoption, he’s like, “You do realize that [the first foster 

mother named as a potential adoptive mother] could die tomorrow or 

get hit by a bus, so there’s no guarantee,” I mean he went—I’m not 
17

saying that anybody is ugly, I’m just saying that he should have told 

me to keep silent, once he found out what I wanted to do, once he 

knew what I wanted to do, but he didn’t, he let—he allowed the lady 

to interrogate me. [Emphasis added.]

Mother testified that “the undue influence that occurred was . . . aggressive 

behavior by the mediator and a misrepresentation as to what [the paternal 

grandmother] wanted to have happen or thought was in the best interests of the 

children.” The following dialogue between Mother and her postjudgment lawyer 

then occurred:

Q And you’re saying that that caused your mind to change 

so much that you didn’t take the action that you would 

have otherwise taken?

A No.

Q Okay. Then—then what are you saying? What are you 

saying, that—what effect did those elements have on you at 

mediation?

A It broke my heart, and I didn’t—no mother wants to hear 

that their kids don’t want them, you know, and I—they 

couldn’t get me with my daughter, because my daughter wrote 

me a letter that one day, and they couldn’t get me with my 

daughter, and they knew that I haven’t talked to my boys, 

so I mean they—it—it—it killed me. I mean it—ever—I 

mean I went—it just—it was the worst news that I ever 

heard. And then after that mediation with—and then like we 

went and we had to go sign the paper and everything and they 

all stopped and they said, “Oh, well, we’re going to do it right 

here in the hall of the jail, and—in—in the courthouse 

building,” instead of going into some room to sign papers and 

sit at a table like—they wanted to get it all done, so we 

crammed into the corner of a hall, and they’re like, “Okay, and 

you know this,” and [my trial lawyer] is having to hold the 

paper, and I’m crying and bawling, I’m sorry, any lawyer who 

knew what their client wanted from the get-go, it’s not like any 

(inaudible)—
18

COURT REPORTER: Excuse me. Repeat what you said. I didn’t 

hear what you said.

A Any lawyer that knows what their client wants ain’t just going 

to voluntar[il]y hold the paper and say, “Here, go ahead and 

sign your life away,” you know, I mean you know that’s not 

what I wanted, I’m bawling, I can’t even—I can’t see the 

papers to sign the paper, you know, I mean I was so 

distraught, I think that I—I—I wasn’t represented right, good 

enough, for the simple fact I think he knew—he knew I wanted 

to take it to jury trial, he knew that, and they knew that they

couldn’t get me to sign them papers, or they knew to send 

somebody in before me to sign them papers, they knew. 

Why did it—[her ex-husband] have to be present but 

[another of the fathers] didn’t have to be present to 

relinquish his rights on his children? You know? I—I—I 

don’t understand. [Emphasis added.]

Mother offered the MSA at the hearing, and the trial court admitted it. 

TDFPS stated that it had no objection. Mother testified that she signed the MSA 

before she signed the affidavit of relinquishment. She further testified that it 

provided that she would sign an affidavit of voluntary relinquishment and that she 

would not owe any past or future child support. She admitted that she 

understood that once she signed the MSA, it was binding upon her. She denied 

reading “the bold, capitalized, underlined section” of the MSA but testified that “it 

was told to [her that] if [she] signed this and saying that [she] signed over the 

rights to [her] kids, is how it was told to [her], and that [she] can’t appeal it, and 

then [she] put [her] signature on it . . . [and she] initialed it.” She testified that 

after she signed the MSA, she believed that she “had to sign” the affidavit of 

voluntary relinquishment. She stated that “once [she] put [her] initials on here 
19

and once [she saw her ex’s] initials on here, [she] thought there was nothing 

else that [she] could do.” [Emphasis added.]

In her brief, Mother does not raise ineffective assistance of counsel at trial. 

The record shows that she had a lawyer during the signing of the MSA and of the 

affidavit of relinquishment and that she admitted at the hearing that she 

understood the binding nature of the MSA. She also testified at the hearing that 

the statement allegedly made regarding the paternal grandmother’s wishes did 

not compel her to sign the MSA or affidavit of relinquishment when she had not 

intended to do that. Instead, she testified that the statement that the boys 

wanted to be adopted and the presence of the presumed father’s signature on 

the documents were what influenced her decision. She raised no evidence 

showing that the boys did not want to be adopted or that the presumed father’s 

signature was improper or invalid.

Facing the apparent desires of her sons and the presumed father at the 

same time as deciding whether to terminate her rights and duties as a parent 

peaceably by agreement and a run-of-the-mill prove-up hearing or to gear up for 

a full-blown, adversarial trial understandably produced strong emotions in 

Mother, but the trial court could have rightfully determined that none of those 

influences were undue, no duress was shown, and to the extent that there was 

overreaching or a misrepresentation by TDFPS or the meditator, Mother by her 

own testimony did not rely on it in making her decision to sign the affidavit of 

relinquishment. We hold that Mother did not prove fraud, duress, or coercion by 
20

a preponderance of the evidence, and she therefore did not prove that her 

affidavit of relinquishment was involuntarily executed regardless of the MSA. 

Accordingly, the trial court did not abuse its discretion by denying Mother’s 

motion for new trial. For clarity, we also point out that the evidence remained 

legally and factually sufficient to support termination even after the hearing on the 

motion for new trial. We overrule Mother’s first issue.

Irrevocability of Affidavit of Relinquishment 

In her second issue, Mother contends that the trial court’s judgment 

terminating the parent-child relationship should be reversed because she timely 

revoked her relinquishment under a plain reading of section 161.1035 of the 

family code. Section 161.1035 provides that

[a]n affidavit of relinquishment of parental rights that fails to 

state that the relinquishment or waiver is irrevocable for a stated 

time is . . . revocable only if the revocation is made before the 11th 

day after the date the affidavit is executed[] and . . . irrevocable on or 

after the 11th day after the date the affidavit is executed.46

It is true that Mother’s letter to the trial court would have been timely to revoke 

her affidavit if section 161.1035 controlled this case. But section 161.1035 does 

not apply in this case. Section 161.103(e) of the family code specifically provides 

that

[t]he relinquishment in an affidavit that designates the Department of 

Protective and Regulatory Services . . . to serve as the managing 

conservator is irrevocable. A relinquishment in any other affidavit of 

relinquishment is revocable unless it expressly provides that it is 

 46Tex. Fam. Code Ann. § 161.1035.
21

irrevocable for a stated period of time not to exceed 60 days after 

the date of its execution.47

Texas Department of Protective and Regulatory Services is the prior name 

of TDFPS.48 Mother’s affidavit designates TDFPS as the children’s managing 

conservator. Consequently, this case falls squarely under section 161.103(e), 

the more specific and therefore controlling law.49

Mother argues that we are to strictly construe termination statutes in favor 

of the parent and that a strict construction of the termination statutes in favor of 

the parent would allow her to revoke her affidavit under section 161.1035. But 

that outcome could only occur if we completely ignored section 161.103(e), 

something we cannot do when construing statutes.50 We hold that the affidavit is 

irrevocable under section 161.103(e), and we overrule this issue.

 47Id. § 161.103(e).

48In re J.A.J., 243 S.W.3d 611, 612 n.1 (Tex. 2007); In re C.C., No. 02-04-

00206-CV, 2005 WL 1244672, at *1 n.5 (Tex. App.—Fort Worth May 26, 2005, 

no pet.).

49See Tex. Fam. Code Ann. § 161.103(e); Tex. Gov’t Code Ann. §

311.026(b) (West 2013); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 

290, 297 (Tex. 2011); see In re Lee, 411 S.W.3d 445, 455 (Tex. 2013) (noting 

that “the specific statutory language of section 153.0071(e) trumps section 

153.002’s more general mandate”).

50See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 

256 (Tex. 2008) (“The Court must not interpret the statute in a manner that 

renders any part of the statute meaningless or superfluous.”).
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Mother’s As-Applied Challenge

In her third issue, Mother contends that section 161.103(e) as applied 

violates her right to due process because her affidavit of relinquishment was 

involuntary but that provision does not allow her to revoke the affidavit. Another 

provision of the family code, however, allows a parent to set aside an affidavit of 

relinquishment if the parent can prove by a preponderance of the evidence that 

the affidavit was involuntary—executed as a result of fraud, duress, or 

coercion.

51 We have already held that Mother failed to prove that her affidavit 

was involuntary in the face of TDFPS’s prima facie showing. Further, a valid 

affidavit signed by the parent is a valid ground for involuntary termination under 

section 161.001(1)(K),52 the constitutional validity of which Mother does not 

challenge. We overrule her third issue.

Conclusion

Having overruled Mother’s four issues, we affirm the trial court’s judgment.

PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: August 7, 2014

 51See Tex. Fam. Code Ann. § 161.211(c).

52See id. § 161.001(1)(K).