NO. 12-14-00122-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF

A.C, Z.C., J.C., S.C., AND A.C.,

MINOR CHILDREN

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW #1

GREGG COUNTY, TEXAS

MEMORANDUM OPINION

M.M. and C.C. appeal the termination of their parental rights to A.C., Z.C., J.C., S.C., 

and A.C.1. They jointly raise two issues on appeal.1 We affirm.

BACKGROUND

M.M. and C.C. (collectively Appellants) are the parents of A.C, Z.C., J.C., S.C., and 

A.C.1. The Department of Family and Protective Services (the Department) filed an original 

petition for protection of the children, for conservatorship, and for termination on April 24, 2013. 

The Department‟s initial goal of family reunification changed to termination, and the contested 

bench trial was set for March 17, 2014. M.M. and C.C. did not appear at trial, but affidavits of 

voluntary relinquishment of parental rights to the Department with Appellants‟ signatures were 

filed and offered into evidence. The trial court terminated Appellants‟ parental rights to their five 

children based on the relinquishments and found that termination was in the children‟s best 

interest. Appellants filed motions for new trial, each stating that they intended to appeal the trial 

court‟s finding that they executed an “unrevoked or irrevocable affidavit of relinquishment of 

parental rights.” The trial court conducted a hearing on Appellants‟ motions and denied their 

requests for a new trial. This appeal followed. 

 

1 To protect the identity of the children who are the subject of this suit, we use aliases to identify the 

various parties involved. See TEX. R. APP. P. 9.8(b)(2).
2

TERMINATION OF PARENTAL RIGHTS

The natural right between a parent and child is one of constitutional dimensions; thus, 

termination proceedings must be strictly scrutinized. In re K.M.L., No. 12-0728, 2014 WL 

4252270, at *7 (Tex. Aug. 29, 2014) (not yet released for publication) (citations omitted). 

Section 161.001 of the Texas Family Code permits the termination of parental rights if two 

elements are met. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re C.L.C., 119 S.W.3d 382, 

390 (Tex. App.—Tyler 2003, no pet.). First, the parent must have engaged in any one of the acts 

or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN. § 161.001(1); 

In re C.L.C., 119 S.W.3d at 390. Second, termination must be in the best interest of the child. 

TEX. FAM. CODE ANN. § 161.001(2); In re C.L.C., 119 S.W.3d at 390. Both elements must be 

proved by “clear and convincing evidence,” and proof of one element does not alleviate the 

petitioner‟s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; In re C.L.C., 119 

S.W.3d at 390. “Clear and convincing evidence” means the measure or degree of proof that 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. TEX. FAM. CODE ANN. § 101.007 (West 2014). 

When the burden of proof is clear and convincing evidence, we conduct a legal 

sufficiency review by looking at all of the evidence in the light most favorable to the finding to 

determine whether a reasonable fact finder could have formed a firm belief or conviction that its 

finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact 

finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. 

Thus, it follows that the reviewing court should disregard all evidence that a reasonable fact 

finder could have disbelieved or found to have been incredible, but this does not mean that the 

reviewing court must disregard all evidence that does not support the finding. Id. Disregarding 

undisputed facts that do not support the finding could skew the analysis of whether there is clear 

and convincing evidence. Id. If, after conducting our legal sufficiency review, we determine 

that no reasonable fact finder could form a firm belief or conviction that the matter which must 

be proven is true, then we will conclude that the evidence is legally insufficient. Id.

When we conduct a factual sufficiency review, we must give due consideration to 

evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our 

inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or 

conviction about the truth of the Department‟s allegations. Id. We consider whether the 
3

disputed evidence is such that a reasonable fact finder could not have resolved that disputed 

evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed 

evidence is so significant that a fact finder could not have reasonably formed a firm belief or 

conviction, then the evidence is factually insufficient. Id. In finding evidence factually 

insufficient, the appellate court should detail why it has concluded that a reasonable fact finder 

could not have credited disputed evidence in favor of its finding. Id. at 267.

The standard of review for legal and factual sufficiency challenges maintains a 

deferential standard for the fact finder‟s role, which means the trier of fact is the exclusive judge 

of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d 

17, 26-27 (Tex. 2002); Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston 

[1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that the only fact 

findings which could withstand review are those established beyond a reasonable doubt. In re 

C.H., 89 S.W.3d at 26.

VOLUNTARINESS OF RELINQUISHMENT

In their first issue, Appellants ask this court to determine whether “the affidavit of 

relinquishment of parental rights signed by the parents [was] voluntarily executed.” We construe 

this issue as a challenge to the sufficiency of the evidence supporting termination under Section 

161.001(1)(K) of the family code and a challenge to the trial court‟s denial of their motions for 

new trial.

Termination Under Section 161.001(1)(K)

A trial court may terminate the parent-child relationship if it finds by clear and 

convincing evidence that the parent has executed an unrevoked or irrevocable affidavit of 

relinquishment of parental rights as provided by the family code. See TEX. FAM. CODE ANN.

§§ 161.001(1)(K), 161.103 (West 2014). The party seeking termination has the burden to prove 

the elements necessary to support termination of the parent-child relationship. In re K.M.L., 

2014 WL 4252270, at *8. It is implicit in Section 161.001(1)(K) that the affidavit of parental 

rights be voluntarily executed. Id.; see also TEX. FAM. CODE ANN. § 161.103 (West 2014).2

 

2

Section 161.103 requires that the affidavit be “for voluntary relinquishment.” TEX. FAM. CODE ANN.

§ 161.103(a) (West 2014); see also In re K.M.L., No. 12-0728, 2014 WL 4252270, at *8 (Tex. Aug. 29, 2014) (not 

yet released for publication).
4

Thus, the burden is on the party seeking termination to prove by clear and convincing evidence 

that the parent voluntarily—that is, knowingly and intelligently—executed the affidavit of 

relinquishment. In re K.M.L., 2014 WL 4252270, at *8, 10; Monroe v. Alternatives in Motion, 

234 S.W.3d 56, 61-62 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citations omitted) 

(“[B]ecause an affidavit of relinquishment waives a constitutional right, it must be made 

voluntarily, knowingly, intelligently, and with full awareness of its legal consequences.”). 

An affidavit of relinquishment in proper form is prima facie evidence of its validity. See 

Monroe, 234 S.W.3d at 62 (citing In re V.R.W., 41 S.W.3d 183, 190 (Tex. App.—Houston [14th 

Dist.] 2001, no pet.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 

2002). But an involuntarily executed affidavit is a complete defense to a termination suit based 

on Section 161.001(1)(K). In re K.M.L., 2014 WL 4252270, at *8. 

The Trial

A contested bench trial on the Department‟s petition for termination was scheduled to 

begin on March 17, 2014. When the case was called, trial counsel advised the trial court that 

Appellants had signed affidavits of relinquishment earlier that morning, had given him the 

authority to “stand in for them,” and were “a little verklempt.”

3 The affidavits were filed, and 

each was entitled “Affidavit of Voluntary Relinquishment of Parental Rights to the Department 

of Family and Protective Services.” One affidavit contains M.M.‟s signature and the other 

contains C.C.‟s signature.

Trial counsel confirmed that he had sufficient time to speak to Appellants about 

relinquishing their parental rights. He explained that they had met “for several hours” the 

previous day, and that he counseled with them about trial, revocations, and “relinquishment[] of 

their rights.” He advised Appellants to think about relinquishment overnight and to return the 

next morning (the day of trial). Trial counsel informed the court that Appellants called him early 

that morning and advised that they wanted to relinquish. Trial counsel explained that

[t]he State prepared the documents this morning. We went over them each. We read through 

every line. They understood everything, in my opinion. We had two witnesses and a notary when 

they decided to conclude; and then at the conclusion of their signatures, they both decided they did 

not want to appear in court today.

 

3

“Verklempt” (also “farklempt”) is a Yiddish word that means “[u]nable to speak because of emotion; 

choked up.” See The American Heritage Dictionary of the English Language, available at 

https://www.ahdictionary.com/word/search.html?id=F5038500. 
5

The following discourse then took place:

Court: So they fully understood that they had the right to challenge the evidence of the State and 

to actually have a trial today, in which the State would have had the burden to prove to the Court 

by clear and convincing evidence the matters in the petition?

Trial Counsel: They understood, Your Honor.

Court: And they had the opportunity to ask you and to counsel with you about the effects of 

signing this document relinquishing parental rights?

Trial Counsel: Yes, ma‟am, they do.

Court: And do you believe they executed these documents of their own will and free choice?

Trial Counsel: I do, Your Honor.

The Department offered, and the trial court admitted, the affidavits into evidence. Each affidavit 

contains a statement that the parent has “been informed of and understand[s]” his or her parental 

rights. Each affidavit also states that 

by naming the Department of Family and Protective Services as managing conservator in this 

Affidavit of Relinquishment, I give up all my parental rights and grant them to the Department

and/or to the adoptive parents with whom my children may be placed.

Each affidavit designates the Department as the managing conservator of the children and states 

that the parent

freely, voluntarily, and permanently give[s] and relinquish[es] to the Department all my parental 

rights and duties. I consent to the placement of the children for adoption or in substitute care by 

the Department or by a licensed children-placing agency.

. . . . 

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.

Lastly, the affidavit contains the following acknowledgement above the relinquishing parent‟s 

signature: 
6

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.

No evidence was presented at trial to show that the execution of the affidavits was involuntary.

After viewing the evidence in the light most favorable to the trial court‟s ruling, we 

conclude that a reasonable fact finder could form a firm belief or conviction that Appellants 

knowingly, intelligently, and voluntarily executed their affidavits of relinquishment. See In re 

J.F.C., 96 S.W.3d at 266. After reviewing the entire record, we hold that a fact finder could 

reasonably have formed a firm belief or conviction about the truth of the Department‟s 

allegations under Section 161.001(1)(K) of the family code. See TEX. FAM. CODE ANN.

§ 161.001(1)(K); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is both legally and 

factually sufficient to support termination of Appellants‟ parental rights under Section 

161.001(1)(K) of the family code.

Motion for New Trial

We review a trial court‟s denial of a motion for new trial for abuse of discretion. In re 

R.R., 209 S.W.3d 112, 114 (Tex. 2006). Absent an abuse of discretion, the trial court‟s ruling 

will not be disturbed on appeal. See Dir. State Employees Workers’ Comp. Div. v. Evans, 889 

S.W.2d 266, 268 (Tex. 1994).

An order terminating parental rights based on an affidavit of relinquishment may be set 

aside upon proof, by a preponderance of the evidence, that the affidavit was executed as a result 

of fraud, duress, or coercion. See 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); see also In re C.E., 

No. 02-14-00054-CV, 2014 WL 3866159, at *5 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) 

(mem. op.) (proponent showed compliance with section 161.103; thus, it was mother‟s burden, 

for purposes of motion for new trial, to prove by preponderance that affidavit was executed due 

to fraud, duress, or coercion); but see In re L.M.I., 119 S.W.3d 707, 716 (Tex. 2003) 

(Wainwright, J., concurring) (expressing concern that placing burden on parents to set aside 

affidavit “may run afoul of constitutional and statutory mandates for the burden of proof and 

quantum of evidence necessary to terminate parental rights”).
7

Fraud may be committed through active misrepresentation or passive silence and is an 

act, omission, or concealment in breach of a legal duty, trust, or confidence jointly imposed

when the breach causes injury to another or the taking of an undue and unconscientious 

advantage. Id. at 710 (citing Vela v. Marywood, 17 S.W.3d 750, 760 (Tex. App.—Austin 2000), 

pet. denied, 53 S.W.3d 684 (Tex. 2001)); In re D.E.H., 301 S.W.3d at 829 (citations omitted). 

Duress occurs when, due to some kind of threat, a person is incapable of exercising her free 

agency and unable to withhold consent. Id. Coercion occurs if someone is compelled to perform 

an act by force or threat. Id. at 828 (citations omitted).

New Trial Hearing

Appellants contend that testimony elicited during the hearing on their motions for new 

trial shows their affidavits of relinquishment were not voluntarily executed. M.M. testified that 

when she signed the affidavit, it was her understanding that the Department was going to 

terminate her parental rights regardless of what she did and that “it was going to be a messy, 

messy thing that really didn‟t have to happen. . . .” She confirmed that she “didn‟t really want to 

sign [the] affidavit.” She also testified that she understood appealing the issue of voluntarily 

relinquishing her parental rights was possible, but “we thought we were going to have to hire an 

appeals attorney, which was going to be extremely expensive.”

M.M. further testified that the affidavits were not read to them, that trial counsel 

“summed it up,” and that they “were just shown where to sign on the paper.”

4

 She confirmed 

that she and C.C. had met with trial counsel one or two days prior to the trial setting and that 

when they arrived at the courthouse on the day of trial, she and C.C. intended to sign affidavits 

of relinquishment. M.M. knew the Department was ready for trial, but stated that she signed the 

affidavit “[b]ecause I didn‟t have any other choice.” However, M.M. confirmed that no one 

forced her to sign the affidavit and that she had signed it voluntarily. 

C.C. substantially agreed with M.M.‟s testimony, and confirmed he understood that there 

would not be a trial or an opportunity for him to present any defenses to the Department‟s 

allegations upon his execution of the affidavit of relinquishment. C.C. contended that in the 

months leading up to trial, “all of „em” (referring to representatives from the Department) had 

threatened him that his parental rights would be terminated. But C.C. confirmed that on the 

 

4 C.C. testified that trial counsel “skimmed over” the affidavit of relinquishment and explained that most of 

their conversation with trial counsel on that day concerned witness testimony if the case proceeded to trial.
8

morning he signed the affidavit, no one had threatened him into executing the affidavit. He also 

stated that at the time he signed the affidavit, he believed he could appeal. 

Appellants‟ trial counsel confirmed that he reviewed the affidavits with Appellants “for 

some period of time and also discussed their options.” He stated that he was satisfied that they 

had executed the affidavits freely and voluntarily. Trial counsel described Appellants‟ chance of 

success at trial as “dire.” He testified that there had always been some confusion with 

Appellants on some of the explanations that he would give them regarding their rights, but he 

explained that “we would always clarify[, and that once] we did find exactly what they were 

looking for, we were able to clarify.” 

Although there is some evidence that Appellants may have been confused about their 

right to appeal the trial court‟s termination order, they did not show by a preponderance of the 

evidence that the affidavits of relinquishment were signed due to fraud, duress, or coercion. See 

TEX. FAM. CODE ANN. § 161.211(c). Therefore, the trial court did not abuse its discretion in 

denying Appellants‟ motions for new trial. See In re R.R., 209 S.W.3d at 114; Evans, 889 

S.W.2d at 268.

Conclusion

We have held that the evidence is sufficient to support termination of Appellants‟ 

parental rights under Section 161.001(1)(K) and that the trial court did not abuse its discretion by 

denying Appellants‟ motions for new trial. Accordingly, we overrule Appellants‟ first issue.

BEST INTEREST OF THE CHILD

In their second issue, Appellants challenge the sufficiency of the evidence supporting 

termination under Section 161.001(2) of the family code.

Applicable Law

The party seeking termination must prove by clear and convincing evidence that 

termination of a parent‟s rights is in the children‟s best interest. See TEX. FAM. CODE ANN.

§ 161.001(2). Parental rights may not be terminated merely because a child might be better off 

living elsewhere. In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.). 

In determining the best interest of the child, the courts consider a number of factors 

including (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 
9

parental abilities of the individuals seeking custody; (5) the programs available to assist these 

individuals; (6) the plans for the child by the individuals or agency seeking custody; (7) the 

stability of the home or proposed placement; (8) the acts or omissions of the parent that may 

indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts 

or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 

The family code also provides a list of factors that we will consider in conjunction with 

the above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2014). 

Here, the applicable statutory factors include (1) the children‟s age and physical and mental 

vulnerabilities, (2) whether the children are fearful of living in or returning to their home, (3) 

whether there is a history of abusive or assaultive conduct by the children‟s family or others who 

have access to the children‟s home, (4) whether there is a history of substance abuse by the 

children‟s family or others who have access to the children‟s home, (5) the willingness and 

ability of the children‟s family to seek out, accept, and complete counseling services and to 

cooperate with and facilitate an appropriate agency‟s close supervision, and (6) the willingness 

and ability of the children‟s family to effect positive environmental change. See id. 

§ 263.307(b)(1), (5), (7), (8), (10), (11). 

The Department need not prove all of the statutory or Holley factors to show that 

termination of parental rights is in the children‟s best interest. See Holley, 544 S.W.2d at 372; In 

re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed 

evidence of just one factor may be sufficient in a particular case to support a finding that 

termination is in the children‟s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex. App.—

Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will not 

support such a finding. Id. Evidence supporting termination of parental rights is also probative 

in determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d 

at 28-29.

Discussion

At the time of trial, Appellants‟ four oldest children were eight, seven, five, and two 

years old. Their youngest child was eleven months old. Nikki Payne, a conservatorship 

supervisor for the Department, testified that the children were removed from Appellants‟ care 

due to Appellants‟ drug use and domestic violence. Despite being offered drug treatment 

services, M.M. continued to use drugs during the pendency of the case and had a positive drug 
10

strip test the week before trial. These facts weigh in favor of termination. See TEX. FAM. CODE 

ANN. § 263.307(b)(1), (7), (8), (11); Holley, 544 S.W.2d at 372.

Payne‟s testimony showed that Appellants failed to demonstrate an ability to provide the 

children with a safe, drug-free home, and that they both failed to complete the Department‟s 

service plan. These facts weigh in favor of termination. See TEX. FAM. CODE ANN.

§ 263.307(b)(10); Holley, 544 S.W.2d at 372.

Payne confirmed that throughout the pendency of the case, the children have continued to 

suffer from emotional difficulties upon seeing their parents. According to Payne‟s testimony, 

Appellants‟ oldest child, A.C., had expressed in an interview that she would be scared when 

Appellants fought and said that the children would hide behind the bed during the fighting. In 

discussing the measures needed to correct the children‟s emotional and behavioral issues, Payne 

confirmed that it would be an ongoing process requiring consistency and structure. These facts 

weigh in favor of termination. See TEX. FAM. CODE ANN. § 263.307(b)(1), (5), (7); Holley, 544 

S.W.2d at 372.

Payne testified that it was in the children‟s best interest that Appellants‟ parental rights be 

terminated. She explained that the Department‟s plans for the three oldest children were to place 

them with their maternal grandmother through their “Fostering Connections Program.” She 

confirmed that the children have responded positively to being in their grandmother‟s home and 

are doing fairly well in school. The two youngest children had not been placed with their 

grandmother at the time of trial, but Payne testified that they “can be placed” with her. These 

facts weigh in favor of termination. See id.

Charlie Kennington, a CASA volunteer, testified that he favored termination of 

Appellants‟ parental rights because Appellants did not follow the court‟s suggestion “as far as 

drug rehab and what the Court has asked them to do.” Lastly, Appellants signed affidavits that 

state, “Termination of the parent-child relationship is in the best interest of the children.” These 

facts also weigh in favor of termination. See TEX. FAM. CODE ANN. § 263.3007(b)(10), (11); In 

re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Brown 

v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 394 (Tex. 1982) (“[W]e find 

it was the intent of the Legislature to make such an affidavit of relinquishment sufficient 

evidence on which the trial court can make a finding that termination is in the best interest of the 

children.”)); but see In re A.H., 414 S.W.3d 802, 806 (Tex. App.—San Antonio 2013, no pet.) 
11

(“[R]elinquishment is not ipso facto evidence that termination is in the children‟s best 

interest[.]”).

Conclusion

The evidence supporting the trial court‟s best interest finding is undisputed. After 

viewing the evidence in the light most favorable to the finding, we conclude that a reasonable 

trier of fact could have formed a firm belief or conviction that termination of Appellants‟ 

parental rights was in the children‟s best interest. See TEX. FAM. CODE ANN. § 161.001(2); In re 

J.F.C., 96 S.W.3d at 266. After viewing the entire record, we hold that a fact finder could 

reasonably have formed a firm belief or conviction about the truth of the Department‟s 

allegations that termination of the parent-child relationship between Appellants and their five 

children was true. See TEX. FAM. CODE ANN. § 161.001(2); In re J.F.C., 96 S.W.3d at 266. 

Accordingly, we overrule Appellants‟ second issue.

DISPOSITION

Having overruled Appellants‟ two issues, we affirm the judgment of the trial court. 

BRIAN HOYLE

Justice

Opinion delivered October 22, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 22, 2014

NO. 12-14-00122-CV

IN THE INTEREST OF A.C, Z.C., J.C., S.C., AND A.C.,

MINOR CHILDREN

Appeal from the County Court at Law No. 1 

of Gregg County, Texas (Tr.Ct.No. 2013-858-CCL1)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.