in the Interest of D.E.H., a Minor Child

301 S.W.3d 825, 2009 Tex. App. LEXIS 9287

• Court: Court of Appeals of Texas
• Decided: December 3, 2009
• Docket: 02-07-00347-CV
• Status: Published

Opinions

OPINION ON EN BANC RECONSIDERATION

DIXON W. HOLMAN, Justice.

A majority of the court ordered en banc reconsideration of the court’s prior opinion. See Tex.R.App. P. 49.7. We withdraw our opinion and judgment of December 4, 2008, and substitute this opinion and judgment in their place.

Appellant E.L. appeals the termination of her parental rights to her daughter, D.E.H. In a single point, she argues that she involuntarily executed the affidavit relinquishing her parental rights to D.E.H. and that the trial court abused its discretion by denying her motion for new trial. We will affirm.

D.E.H. was born in February 2006 to E.L. and A.H. Appellee Texas Department of Family and Protective Services (“TDFPS”) received a referral sometime in September 2006 regarding a concern of physical abuse to D.E.H. D.E.H. had been taken to Cook Children’s Medical Center, where it was determined that she had two fractures to each femur, four fractures to each tibia, multiple rib fractures in multiple stages of healing, a liver contusion, and a spleen laceration' — injuries consistent with child abuse. The bone in her hip area had also been completely snapped off of her growth plate.

A TDFPS supervisor visited the hospital and gathered information from hospital staff, family members, and friends. A.H. admitted to punching and slapping D.E.H. on the back, twisting her leg, and shaking her and squeezing her on multiple occasions. A.H. admitted to an investigator that he caused D.E.H.’s injuries when he became irritated and “lost control” after D.E.H. started crying at night; on about three separate occasions, he grabbed her, shook her, and punched her in the stomach. TDFPS accordingly found reason to believe that D.E.H. had been physically abused by E.L. and A.H., negligently supervised by E.L., and medically neglected by both E.L. and A.H. TDFPS removed D.E.H. from E.L.’s and A.H.’s custody and care and placed her in foster care with Appellees S.G. and B.G., reasoning that she would be in extreme danger if returned to her parents’ care.

In September 2006, TDFPS filed its petition for protection of a child, for conser-vatorship, and for termination in suit affecting the parent-child relationship. On September 10, 2007, E.L., her attorney, and a few of E.L.’s family members participated in a mediation with the foster parents. E.L. executed an affidavit relinquishing her parental rights to D.E.H. at some point during the mediation. She also entered into a mediated settlement agreement with the foster parents, which set forth a post-termination contact schedule for her and D.E.H.

The trial court subsequently signed an order on September 19, 2007, terminating the parent-child relationship) between E.L. and D.E.H.¹ The trial court found by clear and convincing evidence that E.L. had executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by chapter 161 of the family code and that termination of E.L.’s parental rights to D.E.H. is in D.E.H.’s best interest. The order appointed TDFPS as permanent managing conservator of D.E.H. and the foster parents as possessory conservators of D.E.H.

E.L. filed a motion for new trial and notice of points of appeal on October 4, 2007. She filed her first amended motion for new trial and notice of points of appeal five days later, listing her “points of appeal” as follows:

a. Extreme coercion by other parties to the suit, both through promises and threats, was used to induce Movant to sign the affidavit of relinquishment.

b. The mother was placed under great duress by other parties to the suit, both through promises and threats, in order to induce her to sign the affidavit of relinquishment.

c. Fraud in the inducement was used to convince Movant that she had no choice but to sign the affidavit of relinquishment.

On October 18, 2007, the trial court held a hearing on E.L.’s motion for new trial, which it denied.

In her sole point, E.L. argues that the trial court abused its discretion by denying her motion for new trial because she established that she did not voluntarily execute the affidavit of relinquishment that underlies the trial court’s termination order.² She contends that she executed the relinquishment affidavit in exchange for the rule 11 agreement with the foster parents (the prospective parents) providing for post-termination visits between her and D.E.H. E.L. argues that the visitation agreement is unenforceable for its failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062 and that she would not have signed the affidavit of relinquishment “but for the visitation agreement.”³ Consequently, E.L. argues that she did not voluntarily sign the affidavit of relinquishment because she executed it in exchange for a legally unenforceable promise — the rule 11 post-termination visitation agreement.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a); see also Tex.R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g). The complaint on appeal must be the same as that presented in the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (“To have preserved eiTor, a party’s argument on appeal must comport with its argument in the trial court.”), cert. denied, 549 U.S. 1052, 127 S.Ct. 666, 166 L.Ed.2d 514 (2006); Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 151 (Tex.App.-Amarillo 2001, pet. denied) (“[G]iven that the contention before us does not comport with the objection raised below, that before us was and is waived.”). An appellate court cannot reverse based on a complaint not raised in the trial court. Banda, 955 S.W.2d at 272. “[Ajllowing appellate review of unpreserved error would undermine the Legislature’s intent that cases terminating parental rights be expeditiously resolved.” In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003), cert. denied, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004).

E.L.’s argument that she did not voluntarily sign the affidavit of relinquishment because the rule 11 agreement regarding post-termination contact is unenforceable for failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062 does not comport with the arguments that she made in her original motion for new trial, in her amended motion for new tidal, or at the hearing on her motion for new trial. Specifically, E.L. alleged coercion, duress, fraud in the inducement, and ineffective assistance of counsel as the grounds for a new trial in her original motion for new trial. With the exception of the ineffective assistance ground, her amended motion for new trial listed the same grounds.

At the hearing on her motion for new trial, she testified that it was her understanding that she would continue to be able to visit D.E.H. if she signed the affidavit relinquishing her parental rights to D.E.H.; otherwise, she would lose her rights to D.E.H. Although “it was [her] decision” to sign the affidavit and that she “more or less” understood what was written therein, she confirmed that she was never threatened during the mediation, but she testified that she felt “pressured” to sign the affidavit. E.L. further testified that she felt like she was “forced” to sign the relinquishment. According to E.L.’s counselor, E.L. felt “distressed,” “pressured,” and as though her choices were limited to either never seeing D.E.H. again or signing the affidavit of relinquishment.

At no point during the hearing on her motion for new trial did E.L. argue — nor is it apparent that she was attempting to argue — that her execution of the affidavit of relinquishment was involuntary because the rule 11 agreement is unenforceable for failure to comply with family code sections 161.206(b), 161.2061(a), and 161.2062. There is a reason for this. A party seeking to overturn a termination order based on an unrevoked affidavit of relinquishment is limited in her attack to arguing fraud, duress, or coercion in the execution of the affidavit, Tex. Fam.Code Ann. § 161.211(c) (Vernon 2008); see In re M.A.W., 31 S.W.3d 372, 375-76 (Tex.App.-Corpus Christi 2000, no pet.), hence the fraud, dui’ess, and coercion grounds specifically set forth in E.L.’s amended motion for new trial and the testimony at the hearing purporting to relate to duress and coercion. E.L.’s argument on appeal, however, is that she did not voluntarily sign the affidavit of relinquishment because the Rule 11 agreement is unenforceable. She does not argue that fraud, duress, or coercion played any role in her signing of the affidavit of relinquishment. This is made further apparent by examining the meanings of fraud, duress, or coercion.

Coercion occurs if someone is compelled to perform an act by force or threat. Arnett v. Arnett, No. 03-05-00056-CV, 2008 WL 1912058, at *1 (Tex.App.-Austin May 2, 2008, pet. filed) (mem. op.); see also Tex. Penal Code Ann. § 1.07(a)(9) (Vernon Supp.2009) (setting forth definition of “coercion”); B.A.L. v. Edna Gladney Home, 677 S.W.2d 826, 831 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e) (stating that the “essence of an ‘undue influence’ claim is overcoming the free will of an individual and substituting the will of another, thereby causing a person to do an act which he would not otherwise have done” and that “ ‘[ojverreaching’ is tricking, outwitting, or cheating a person into doing an act which 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. Arnett, 2008 WL 1912058, at *1; but see Methodist Mission Home of Tex. v. N.A.B., 451 S.W.2d 539, 543 (Tex.Civ.App.-San Antonio 1970, no writ) (reasoning that “exerted influence cannot be branded as ‘undue’ merely because it is persuasive and effective”). 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 justly imposed, when the breach causes injury to another or the taking of an undue and uneonscientious advantage. Arnett, 2008 WL 1912058, at *1; Gaspard v. Beadle, 36 S.W.3d 229, 235 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (listing fraud elements as a material misrepresentation made; the representation was false; when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of its truth; the speaker made the representation with the intent that it should be acted upon by the party; the party acted in reliance upon the representation; and the party thereby suffered injury). A misrepresentation is a falsehood or untruth with the intent to deceive. Gaspard, 36 S.W.3d at 235.

E.L.’s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because she was compelled to perform some act by force or threat. E.L.’s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because she was incapable of exercising her free agency and was unable to withhold consent due to some kind of threat. E.L.’s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she did not voluntarily sign the affidavit because there was some active misrepresentation or passive silence which was an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed that caused her injury or caused her to be unduly and unconscien-tiously taken advantage of. Thus, E.L.’s appellate argument that she did not voluntarily sign the affidavit because the Rule 11 agreement is unenforceable is not an argument that she involuntarily signed the affidavit of relinquishment because of fraud, duress, or coercion.

Because E.L.’s appellate argument does not comport with the grounds asserted in her amended motion for new trial or the testimony at the hearing on her motion for new trial, she has failed to preserve her complaint for appellate review. See Tex. R.App. P. 33.1(a)(1); L.M.I., 119 S.W.3d at 710-12 (holding that appellant failed to preserve for appeal complaints regarding signed affidavits relinquishing parental rights).

Even if E.L. had preserved her complaint, the trial court did not abuse its discretion by denying her motion for new trial.

Appellate courts review a trial court’s decision denying a motion for new trial under an abuse of discretion standard of review. Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Once an affidavit has been shown to comply with the requirements of section 161.103 of the family code, the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. In re R.B., 225 S.W.3d 798, 804 (Tex.App.-Fort Worth 2007, no pet.); In re N.P.T., 169 S.W.3d 677, 679 (Tex.App.-Dallas 2005, pet. denied); In re D.R.L.M., 84 S.W.3d 281, 296 (Tex.App.-Fort Worth 2002, pet. denied), superseded by statute on other grounds, Tex. Fam.Code Ann. § 263.405© (Vernon 2008); see also Tex. Fam.Code Ann. § 161.211(c). The burden of proving such wrongdoing is on the party opposing the affidavit. R.B., 225 S.W.3d at 804.⁴

E.L. contends that she executed the affidavit of relinquishment in exchange for the rule 11 visitation agreement and that because the rule 11 visitation agreement is unenforceable, she involuntarily executed the affidavit of relinquishment. At the hearing on her motion for new trial, she testified that “[t]he agreement wasn’t done by [her] own will,” that she “didn’t sign [the affidavit of relinquishment] out of [her] own will,” that she signed the affidavit because she felt “pressured” and “forced,” and that she did not sign the agreement under her “free will.” The lack of “free will,” the “pressure,” and the “force” that E.L. testified she experienced at the mediation, however, was not coercion, fraud, or duress as identified and defined above. See Gaspard, 36 S.W.3d at 234-35; Edna Gladney Home, 677 S.W.2d at 831; Arnett, 2008 WL 1912058, at *1. Norma Bartholomew, E.L.’s counselor, testified that E.L. was informed that if her case went to trial, the likely outcome would be that she would have her rights terminated and that she would never see D.E.H. again. E.L.’s other option was to sign the affidavit of relinquishment and enter into a rule 11 agreement with the intervenors for limited visitation with D.E.H. Consistent with E.L.’s options, Bartholomew specifically identified the source of the pressure that E.L. experienced as “losing her parental rights and never being able to see her child again versus some hope of limited visitation for the life of the child until the child was grown.” [Emphasis added.] As for the “coercion” that E.L. purportedly experienced, Bartholomew testified, “I think [E.L.] was very frightened about her options and she felt a threat of losing contact with her child.” [Emphasis added.] Although Bartholomew thought there was “some degree” of coercion based on how E.L. explained the options to her (if the case went to court, E.L. would never see the child again), Bartholomew opined that it was uncertainty, confusion, and anguish that E.L. experienced in weighing her limited options.

James Masek, E.L.’s attorney, opined similarly. He testified that there was not any undue pressure exerted on E.L. by anyone at the mediation. Instead, he testified that “[fit’s just a very emotional time. She’s giving up a child. She was very emotional at the time.... ” Masek agreed that E.L. had made a “thoughtful decision, albeit a very emotional decision,” to sign the affidavit of relinquishment.

Consistent with Bartholomew’s and.Ma-sek’s testimony, E.L. herself identified the source and nature of the “pressure” and the “force” that she claimed to have experienced at the mediation as feeling like she “didn’t have any way out,” that is, her only options were to sign the affidavit of relinquishment and the rule 11 visitation agreement and hope to have limited future visitation with D.E.H. or go to trial and take the chance of having her parental rights terminated. She testified as follows:

[Intervenors’ attorney]: You testified that you signed [the affidavit of relinquishment] under duress. Do you remember that word?

[E.L.]: Yes.

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[Intervenors’ attorney]: What does duress mean to you?

[E.L.]: Pressure.

[Intervenors’ attorney]: What kind of pressure?

[E.L.]: That I didn’t have anything more to do.

[Intervenors’ attorney]: Anything else? [E.L.]: I didn’t have another way out. [Intervenors’ attorney]: That %vas the extent of your pressure, that you didn’t have any tvay out? Is that your testimony?

[E.L.]: Yes. [Emphasis added.]

Further, E.L. testified that the consequences of signing the affidavit of relinquishment were explained to her, that she discussed the rule 11 agreement and affidavit of relinquishment at length with her attorney, that she “[m]ore or less” understood the “finality of signing [the agreement],” and that she spoke with her attorney about having a jury trial prior to the mediation. Masek, who is fluent in Spanish, spent at least half of the mediation talking to E.L. about the affidavit of relinquishment. He interpreted the affidavit of relinquishment for her, he read it to her at least twice (some parts more than twice), and he went over it with her line by line. E.L. acknowledged that Masek discussed with her the meaning of the affidavit of relinquishment and that Masek told her that it was her choice to sign it or not sign it. E.L. initialed every page of the affidavit, and she placed her initials beside every single line of a paragraph that is written in bold letters and located at the end of the affidavit that states as follows:

I REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT UNTIL I HAVE READ AND UNDERSTOOD EACH WORD, SENTENCE, AND PARAGRAPH IN IT. I REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT OF RELINQUISHMENT IF THERE IS ANY THOUGHT IN MY MIND THAT I MIGHT SOMEDAY SEEK TO CHANGE MY MIND. I REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT OF RELINQUISHMENT IF I AM NOT THINKING CLEARLY BECAUSE OF ILLNESS, MEDICATION, MY EMOTIONAL STATE, OR ANY OTHER REASON. BECAUSE I REALIZE HOW IMPORTANT THIS DECISION IS FOR THE FUTURE OF MY CHILD, I HAVE PUT MY INITIALS BESIDE EVERY LINE OF THIS PARAGRAPH SO THAT IT WILL ALWAYS BE UNDERSTOOD THAT I HAVE READ THIS AFFIDAVIT OF RELINQUISHMENT, UNDERSTAND IT, AND DESIRE TO SIGN IT.

E.L. declared in the affidavit that she was relinquishing her parental rights freely and voluntarily. The affidavit states in relevant part as follows:

I declare that I fully understand the meaning of this affidavit of relinquishment and the finality of my action in signing it, and, understanding all this, I am signing this freely, voluntarily, and with the firm conviction that this decision is the best available alternative for my child. [Emphasis added.]

Three of E.L.’s family members were present at the mediation and participated to a certain extent. According to Masek,

[W]e did it [review the affidavit of relinquishment] slowly. We would stop. And the judge was there. The judge spoke ... Spanish, so she would also— we would kind of back off and say, we would kind of rest for a little while and the family would talk. It went really slowly.

Masek also explained to E.L. that the rule 11 agreement was an agreement between only her and the intervenors and that it was not “a contract that we could take to court.” Towards the end of her testimony, E.L. said, “[B]ottom line, it was my decision.”

Bartholomew’s, Masek’s, and E.L.’s testimony clarifies that E.L. did not experience coercion, fraud, or duress as contemplated by family code section 161.211(c). See Gaspard, 36 S.W.3d at 234-35; Edna Gladney Home, 677 S.W.2d at 831; Arnett, 2008 WL 1912058, at *1. E.L. failed to demonstrate by a preponderance of the evidence that her execution of the affidavit of relinquishment in exchange for an allegedly legally unenforceable promise resulted from fraud, duress, or coercion. Assuming that E.L. had preserved her appellate argument for appeal, which she did not do, the trial court did not abuse its discretion by denying her motion for new trial.

We overrule E.L.’s sole point and affirm the trial court’s judgment.

LIVINGSTON, J, filed a dissenting opinion. WALKER, J., filed a concurring and dissenting opinion in which DAUPHINOT and GARDNER, JJ., join.

1 . The trial court also terminated A.H.’s par-enl-child relationship with D.E.H.

2 . Although E.L. lists three "Issues Presented,” her single "Point of Error” encompasses each issue.

3 . Section 161.206(b) provides that "an order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides.” Tex. Fam.Code Ann. § 161.206(b) (Vernon 2008). Section 161.2061(a) reads as follows:

If the court finds it to be in the best interest of the child, the court may provide in an order terminating .the parent-child relationship that the biological parent who filed an affidavit of voluntary relinquishment of parental rights under Section 161.103 shall have limited post-termination contact with the child as provided by Subsection (b) on the agreement of the biological parent and the Department of Protective and Regulatory Services.

Id. § 161.2061(a). Section 161.2062(a) provides that "[a]n order terminating the parent-child relationship may not require that a subsequent adoption order include terms regarding limited post-termination contact between the child and a biological parent.” Id. § 161.2062(a).

4 . In R.B., this court did not adopt the standard of review suggested by the concurring and dissenting opinions in L.M.I., nor do we adopt it here. See R.B., 225 S.W.3d at 805 (stating that “we need not expressly decide that issue here”).