General Practice, Solo and Small Firm Section of the State Bar of Texas


FALL 2018



In re K.S.L., 538 S.W.3d 107 (Tex. 2017)


Termination of Parental Rights; Due Process:  The Texas supreme court addresses the grounds for appeal when a termination of parental rights is based on an affidavit of voluntary relinquishment, specifically considering the interplay between Texas Family Code §§161.001(b) and 161.211.


Both parents in this case had serious drug habits and allegedly were drug dealers.  At the time of this case, there was already an open case on another child.  Ultimately, the Department of Family and Protective Services sought to terminate the rights of both parents.  Initially, both parents demanded jury trials before deciding to sign an affidavit of voluntary relinquishment.  The trial court, consistent with the requirements of §161.002, found that by clear and convincing evidence that a statutory basis for termination existed, namely, the affidavits, and that the termination was in the child’s best interest.  Several days after the trial court signed the termination order, the parents appealed, raising a challenge to the best interest finding on the basis of legal and factual insufficiency.  They additionally raised a due process issue.


Held: Appeal denied.  Section 161.211 addresses the appeal of a termination order.  It specifically limits the grounds for appeal in voluntary affidavit situations to fraud, duress, or coercion in the execution of the affidavit.  See Family Code §161.211(c).  The court concluded that by the plain language of §161.211, the parents’ appeal, based on legal and factual insufficiency, must fail.  In response to the parents’ argument that §161.211(c) essentially converted the two elements necessary for termination pursuant to §161.011 into just one, the court concluded that the voluntary affidavit itself could be sufficient evidence of the best interest requirement, particularly in light of the strong parent-child bond that normally exists.  In other words, a parent’s willingness to relinquish her rights and to swear that this is in the child’s best interest, is sufficient to support the termination absent extenuating circumstances, and this is true even under the clear and convincing standard.  As such, the statute precluded the parents’ sufficiency claims.


As for the due process challenge, the court started by noting that a state need not provide any appellate review, but if it does, it must not apply unreasonable distinctions that impede open and equal access to the courts. Focusing only on §161.211(c), the court concluded that it applies equally to all parents who sign affidavits, without addressing the question of whether the appropriate comparison pertains to parents who voluntarily relinquish as compared to parents whose rights are terminated on other grounds.  Nonetheless, the court proceeded to apply the traditional due process analysis, which requires a balance of the private interests at stake, the governmental interest, and the risk of erroneous decisions.  After acknowledging the substantial parental interest in termination cases and the State’s interest in fairly and expeditiously resolving the termination cases, it determined that the current procedure included sufficient safeguards, including the safeguards in place, to ensure that the affidavit is knowingly and voluntarily signed. Consequently, the supreme court reversed the court of appeals and reinstated the trial court’s termination order.


Note: See also, In re M.M., 538 S.W.3d 540 (Tex. 2017), where the supreme court, in a similar case, reached the same conclusion.  Relying on its decision in In re K.S.L, it held that the mother’s appeal of the termination of her parental rights failed because her appeal was not based on a claim that her affidavit of voluntary relinquishment was procured by fraud, duress or coercion. 


In re C.J.N.-S., 540 S.W.3d 589 (Tex. 2018)


Adult Child Support; Standing:  This case involves the construction of Texas Family Code §154.303(a)(1), which addresses standing to petition for child support for a disabled adult child.  There was no issue that the adult child was disabled.  Rather, Father challenged Mother’s standing in light of the fact that the child lived apart from both her parents.  Mother, who filed the petition, had neither physical custody nor guardianship.  Based on the language of §154.303(a), Father thus argued that Mother lacked standing.  That provision grants standing to, “a parent of the child or another person having physical custody or guardianship of the child . . .”  The trial court found that Mother had standing.  The court of appeals reversed, prompting Mother’s appeal.


Held:  Reversed and remanded.  The supreme court, reviewing the construction of the statute de novo, concluded that the language requiring physical custody or guardianship modified only the word “person;” it did not apply to parents.  The court’s conclusion that status as a parent is sufficient for standing is supported by an amendment to §154.303 made in 1997.  Prior to the amendment, only parents, with no additional conditions, had standing.  The amendment added, “person having physical custody or guardianship” as a means to expand the class of individuals afforded standing.  The court further concluded that to read the statute as Father argued would render the word “parent” superfluous since the key would be a person with custody or guardianship. Note: On remand, the trial court ordered Father to pay support for his adult disabled child and the appellate court affirmed the trial court’s judgement. 


In re R.H.W., III., 542 S.W.3d 725 (Tex. App.—Houston [14th Dist.] 2018)


Attorneys’ Fees for Amicus Attorneys:  The father in this case was a bad dude, resulting in the termination of his parental rights to his child in connection with a divorce from his wife.  This case addresses a number of issues related to the termination, but the more unusual and interesting issue pertains to the award of attorneys’ fees payable to an amicus attorney as additional child support, payable by Father and enforceable by a withholding order.  The trial court, as authorized by Family Code §107.021(a-1), appointed an amicus attorney to represent the child in the termination proceedings.  Mother and Father agreed to split the fees of the amicus attorney.  The trial court characterized the amicus attorney’s fees as being subject to the necessaries doctrine, and thus a duty for which a parent can be held liable pursuant to the duty of support.  As such, the trial court ordered that Father pay his share of the fees as additional child support, which would be subject to a withholding order.


Held: Reversed; the trial court erred in awarding the fees as additional child support and allowing enforcement by way of a withholding order.  The court concluded that the court did not abuse its discretion in treating the attorneys’ fees as necessaries, in light of §107.023(d), which specifically authorizes such.  However, there is no provision in the Family Code that expressly authorizes a court to characterize those fees as additional child support in this situation.  Rather, the only authorization to include attorneys’ fees as additional support are with respect to the enforcement of child support orders.  According to the court, a court cannot treat something as additional child support unless expressly authorized to do so; the legislature could have done so, but chose only to allow those fees to be characterized as necessaries.  Moreover, the court did not authorize attorneys’ fees as necessaries to be enforced by “any means available,” as it did in §157.167(a).  In short, the lack of an express authorization meant that the trial court abused its discretion. 


In re Minx, 543 S.W.3d 446 (Tex. App—Houston [14th Dist.] 2018)


Mediated Settlement Agreements:  This case addresses the issue of whether the parties to a mediated settlement agreement cam agree to revoke the agreement.  Mother and Father, the parents of a minor child, entered into a mediated settlement agreement that addressed conservatorship and possession, although initially, they did not request the trial court to enter judgement on the MSA.  Although there is some question of what occurred subsequently, there was evidence to suggest that both Mother and Father at one time agreed to revoke the MSA and that a trial judge granted their request.  Mother, however, later sought judgement on the MSA.  When the trial court denied her motion, Mother filed this mandamus petition.


Held: Mandamus relief conditionally granted; in light of the plain language of the relevant statute, the trial court abused its discretion in denying Mother’s motion.  The court noted that it could not resolve the fact issue of whether there was an agreement to set the MSA aside in a mandamus proceeding.  However, even if the parties had agreed to set it aside, the plain language of Family Code §153.0071 does not allow that to occur.  That provision provides that if the MSA satisfies certain requirements, it can be set aside only in limited situations, which do not include the parties agreement to revoke the MSA.  The MSA at issue satisfied the requirements, and thus the court concluded that it was not revocable.  In short, because the legislature did not expressly authorize the parties to set aside their own agreement, agreed revocation was not possible.  The writ of mandamus will issue if the trial court fails to act in accordance with the court’s opinion.


One judge dissenting, relied on the doctrines of quasi-estoppel and invited error as basis for denying Mother the mandamus relief she sought.  This judge noted that there was sufficient evidence that Mother agreed to set aside the MSA and the that the trial court had indeed set aside the MSA.  However, thereafter Mother sought and obtained better rights with regard to the child than she would have been entitled to under the MSA.  In other words, she took one position and accepted benefits before changing her position by seeking judgement on the MSA.  According to the dissent, enforcing the MSA would disadvantage Father.  The dissent argued that the majority erred in failing to consider equitable principles in addressing the request for mandamus relief. 


The dissent further concluded that the alternative ground of invited error justified denying Mother mandamus relief because Mother asked the court to take one action and then complained when the trial court refused to reverse that action, thus inviting error.  The dissent, citing Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942), explained that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him.  The majority had rejected the idea of invited error because Mother did not complain of a specific ruling that she asked the court to make. The majority construed the relevant statute as essentially setting in stone an agreement that arises by mediation, even against the wishes of the parties to the agreement, making a MSA a particularly iron-clad agreement.


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