Angelica Mitchell Moore and Kevin Alexander Moore v. Donna M. Brown and Alvin Benard Brown

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00886-CV

Angelica Mitchell Moore and Kevin Alexander Moore, Appellants

v.

Donna M. Brown and Alvin Benard Brown, Appellees

FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT

NO. 235,235-E, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

OPINION

On the second day after the birth of their third child, appellants Angelica Mitchell

Moore and husband Kevin Alexander Moore executed affidavits relinquishing their parental rights

to the infant and designating as managing conservators appellees Donna M. Brown and

husband Alvin Benard Brown.1 Relying on these affidavits, the Browns obtained an order from the

district court terminating the Moores’ parental rights and, subsequently, an order granting the

Browns’ adoption of the child.

In the meantime, however, the Moores initiated attempts to revoke their

relinquishment affidavits and reassert their parental rights, but they did not appear at the termination

hearing or timely perfect an appeal from the termination order. Ultimately, the Moores sought to

challenge both the termination order and adoption order via bill of review and purported attack on

1

The spelling of Ms. Moore’s first name appears in the record as both “Angelica” and

“Anjelica.” Because it appears from the record and the Moores’ appellate briefing that Ms. Moore

prefers “Angelica,” we will use that spelling as well.

a “void” order. Following an evidentiary hearing, the district court denied the Moores relief on their

claims. The Moores now appeal that judgment to this Court.

Concluding that the Moores’ claims are barred by requirements of the Texas Family

Code and Texas civil procedure intended to ensure the finality of the termination and adoption

orders, and that the Moores have not shown any constitutional deprivation from the enforcement of

those requirements, we will affirm the district court’s judgment.

BACKGROUND

M.K.B., the third child born to the Moores, arrived on March 8, 2009, in the

Commonwealth of Virginia, where the Moores reside. Among M.K.B.’s early visitors was

appellee Donna Brown, a distant cousin and close friend of Kevin Moore’s mother, and whose

relationship with Kevin was such that he had termed Donna his “aunt” during his youth.2 At the time

of M.K.B.’s birth, Donna and her husband, Alvin, resided in Harker Heights, Bell County, Texas,

near Fort Hood, where Alvin’s U.S. military unit was based—though he was deployed to Iraq—and

Donna also was employed.

The parties agree that, in advance of M.K.B.’s birth, the Moores had discussed giving

up the child to the Browns for adoption and, in fact, agreed that M.K.B. would live with the

Browns following birth. It is likewise undisputed that, following birth, the Moores consented to

giving the child the surname “Brown” on the child’s birth certificate (hence the initials “M.K.B.”

rather than “M.K.M.”) and executed several documents granting the Browns custody and laying legal

groundwork for an adoption.

2

Given the parties’ common surnames, we will use first names as necessary to avoid

confusion.

2

On March 10, 2009, the Browns, as “prospective adoptive parents,” and the Moores,

as “birth parents of the child to be known as [M.K.B.],” executed before a notary an “Entrustment

Agreement and Power of Attorney” giving the Browns “all legal rights and authority over said child

as if they were the birth parents,” including the power to receive M.K.B. upon discharge from the

hospital, and further directing the hospital to discharge M.K.B. to the Browns’ care.3 The agreement

also authorized the Browns to transport M.K.B. to their Harker Heights address, “which will be

the primary residence of the child.” The parties additionally agreed that they would keep each other

advised of their addresses and telephone numbers “until an Order accepting the consent of the birth

parents and granting the custodians custody of said child for purposes of adoption has been entered

by the appropriate court . . . .”

On the same day, the Browns filed a petition for “temporary custody” in Virginia state

court, attaching the aforementioned Entrustment Agreement and Power of Attorney. The petition

alleged that the Moores “have agreed to place [M.K.B.] with the [Browns] for the purpose of

adoption of their child,” that the Browns “are prepared to file a petition for custody for the purpose

of adoption of [M.K.B.],” and that the Moores had consented to granting the Browns “temporary

legal and physical custody of [M.K.B.]” so the Browns could arrange for M.K.B.’s discharge

from the hospital and take the child home. The Browns requested “interim temporary legal and

physical custody over [M.K.B.] until such time as the above-referenced petition is submitted to

the Court. . . .” The court forthwith issued a March 10, 2009 “consent order” granting the Browns

“custody” of M.K.B., subject to the Moores’ right to be apprised of the child’s address and phone

3

As Alvin Brown was deployed overseas, Donna executed this and other instruments on his

behalf by power of attorney.

3

number and to access medical and educational records. Both the Moores and the Browns signed the

order under oath to verify their agreement with its terms.

Also on March 10, 2009, the Moores each executed before a notary and two witnesses

a three-page “Affidavit for Voluntary Relinquishment of Parental Rights” designating the Browns

as managing conservators for M.K.B. and relinquishing to the Browns all of their parental rights

and duties.4 The Moores do not dispute that their affidavits, at least in form, satisfied each of the

4

Each further averred that, among other things:

• “I fully understand that a lawsuit will be filed in a court of competent jurisdiction to

terminate forever the parent-child relationship between me and [M.K.B.]. I fully understand

that the termination suit may or may not be combined with a suit to adopt my child. I

understand that either way, once the Court terminates my parental rights, I have no further

say concerning my child, whether or not my child is adopted then or at some later time.”

• “Termination of the parent-child relationship is in the best interest of the child. I understand

that I make this termination possible by executing this affidavit.”

• “I DECLARE THAT THIS AFFIDAVIT FOR VOLUNTARY RELINQUISHMENT

OF PARENTAL RIGHTS IS AND SHALL BE IRREVOCABLE FOR SIXTY DAYS.

I FULLY UNDERSTAND THAT, IF I CHANGE MY MIND, I CANNOT FORCE

THE MANAGING CONSERVATOR TO DESTROY, REVOKE, OR RETURN THIS

AFFIDAVIT AND THAT I CANNOT TAKE BACK OR UNDO THIS AFFIDAVIT

IN ANY WAY DURING THE SIXTY-DAY PERIOD. I FURTHER UNDERSTAND

THAT MY PARENTAL RIGHTS PROBABLY WILL HAVE ALREADY BEEN

ENDED FOR ALL TIME BEFORE THIS SIXTY-DAY PERIOD EXPIRES . . . .”

(Emphasis in original).

• “I know that DONNA M. BROWN and ALVIN BENARD BROWN, in accepting my child

for adoptive placement and assuming responsibility for my child, are relying on my promise

that I will not attempt to reclaim my child.”

• “I have carefully considered alternative plans for my child’s future and have obtained the

advice of whatever family members, friends, or other persons and professionals I feel were

necessary to help me make this decision. This decision is very difficult for me to make, and

under other circumstances I might have made a different decision . . . . I declare that I fully

understand the meaning of this affidavit of relinquishment and the finality of my action

in signing it, and I am signing it freely, voluntarily, and with the firm conviction that this

decision is the best available alternative for my child.”

4

requirements of Texas Family Code section 161.103, the provision of the family code that prescribes

the requirements for affidavits of voluntary relinquishment of parental rights, for an affidavit that

would remain irrevocable for sixty days after execution, or through May 9, 2009. See Tex. Fam.

Code Ann. § 161.103 (West 2008). Each affidavit also incorporated a waiver of notice and process

concerning any further court proceedings involving M.K.B.5 See id. § 161.103(c) (relinquishment

• “I am signing this affidavit today because I want to sign it and not because DONNA M.

BROWN and ALVIN BENARD BROWN or any other person or persons want me to

sign it.”

• “I REALIZE THAT I SHOULD NOT SIGN THIS AFFIDAVIT FOR VOLUNTARY

RELINQUISHMENT OF PARENTAL RIGHTS IF THERE IS ANY THOUGHT IN MY

MIND THAT I MIGHT SOMEDAY SEEK TO GAIN CUSTODY OF MY CHILD.”

(Emphasis in original).

• “AT THE TIME OF THE SIGNING OF THIS AFFIDAVIT FOR VOLUNTARY

RELINQUISHMENT OF PARENTAL RIGHTS, I FEEL THAT I AM PHYSICALLY AND

EMOTIONALLY PREPARED TO SIGN THE DOCUMENT. I AM NOT CURRENTLY

UNDER THE INFLUENCE OF ANY SUBSTANCE AND/OR MEDICATION THAT

WOULD AFFECT MY ABILITY TO EXECUTE THIS AFFIDAVIT.” (Emphasis in

original).

• “I AM SIGNING THIS AFFIDAVIT FOR VOLUNTARY RELINQUISHMENT OF

PARENTAL RIGHTS MORE THAN FORTY-EIGHT HOURS AFTER THE BIRTH OF

THE CHILD NAMED IN THE DOCUMENT.” (Emphasis in original).

5

The waiver stated:

I know that I have the right to appear personally before the Court, with an attorney

of my choice, to testify about my desires with respect to the child. However, I do not

want to go to court in person and choose not to be represented by a lawyer . . . .

Because I do not want to testify in person before the Court, I freely and voluntarily

waive and give up my right to the issuance, service, and return of citation, notice, and

all other process in any suit to terminate my parental rights or in any suit to terminate

my parental rights joined with a suit to adopt. I do not want to be informed further

about the lawsuit. I specifically agree that a final hearing in the lawsuit may be held

at any time without further notice to me. I waive and give up my right to have the

official court reporter make a record of the testimony in the lawsuit. Furthermore,

I do not want to be mailed or given a copy of the judgment terminating my parental

5

affidavits may incorporate “a waiver of process in a suit to terminate the parent-child relationship

filed under this chapter or in a suit to terminate joined with a petition for adoption”); see also Brown

v. McLennan Cnty. Children’s Protective Servs., 627 S.W.2d 390, 392-94 (Tex. 1982) (observing

that parent who signs an affidavit voluntarily relinquishing parental rights nonetheless maintains a

justiciable interest in a suit to terminate parental rights until the termination order is rendered, but

may waive right to notice of such proceedings).

A few days thereafter, Donna Brown left Virginia with M.K.B. and returned to Texas.

On March 20, 2009, the Browns filed in Bell County district court a petition to terminate the

Moores’ parental rights and to adopt M.K.B. The petition alleged the sole statutory termination

ground that the Moores had each executed an irrevocable affidavit of relinquishment of parental

rights, as provided in family code section 161.103, and that termination of the Moores’

parental rights was in M.K.B.’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(k), (2) (West

Supp. 2012).6 A hearing on the termination issue was set for April 30, 2009.

Consistent with the waiver the Moores had signed, they were not served either with

process in the Browns’ suit or notice of the termination hearing. However, the Moores attempted

to reassert their parental rights in both the Bell County district court where the Browns’ suit was

rights and do not want to be notified of the signing, rendition, or entry of that

judgment . . . .

...

I FULLY UNDERSTAND THAT I MAY NOT BE FURTHER INFORMED

ABOUT THE TERMINATION SUIT OR ABOUT ANY OTHER HEARINGS OR

PROCEEDINGS AFFECTING THE CHILD NAMED IN THIS AFFIDAVIT.

(Emphasis in original).

6

As there have been no material intervening substantive changes to the relevant statutes, we

cite their current versions for convenience.

6

pending and in the Virginia state court that had issued the March 10 consent order. On April 13,

2009, Kevin Moore filed in the Virginia court a pro se motion to amend the consent order to grant

custody of M.K.B. to the Moores, urging that “[t]he [b]iological parents wish to terminate the

ongoing adoption and regain custody of the minor child.” On April 24, the Moores, with assistance

from a Virginia attorney, filed in the Browns’ suit affidavits purporting to revoke their “ill-

conceived” March 10 affidavits relinquishing their parental rights, requesting custody of M.K.B.,

and stating their opposition to the child’s adoption by the Browns.

The termination hearing went forward as scheduled, with only Donna Brown, the

Browns’ counsel, and M.K.B.’s attorney ad litem present.7 Following the hearing, the district court

signed an order terminating the Moores’ parental rights based on findings that each had “executed

an irrevocable affidavit of relinquishment of parental rights as provided in chapter 161 of

Texas Family Code” and that termination of parental rights was in M.K.B.’s best interest.8

See id.§ 161.001(1)(k), (2).

On May 14, 2009, the Moores’ Virginia counsel, obviously aware of the termination

ruling, wrote the Bell County District Clerk requesting a copy of the “Termination Order entered

on April 30, 2009” in the Browns’ suit. Subsequently, on June 1, 2009, the Moores filed a pro se

“motion to reconsider” the district court’s termination order, and the record reflects that the Moores

7

Alvin Brown was still deployed to Iraq.

8

The record from the hearing reflects that the district court inquired of counsel concerning

the purported revocations filed by the Moores. Although indicating certainty that the revocations

remained binding under Texas law, the court voiced concern that the Moores nonetheless might

be entitled to notice and an opportunity to be heard. Counsel responded that any such issue was

obviated by the waivers of notice incorporated into the affidavits, and at some point that day

furnished authority to that effect, In re McAda, 780 S.W.2d 307, 312 (Tex. App.—Amarillo 1989,

no writ). At the conclusion of the hearing, the district court initially took the matter under

advisement but ultimately signed the termination order later that same day.

7

made attempts to obtain a ruling on the motion. And, sometime that month, the Moores retained

new counsel—the Texas attorney who represents them in the present proceeding—who filed a notice

of appeal of the termination order on July 23, 2009. But unfortunately for the Moores, their deadline

for perfecting an appeal from the termination order, May 20, 2009, had already expired in the

meantime, and it was likewise too late to obtain an extension. See Tex. R. App. P. 26.1(b) (twenty-

day deadline for filing notice of appeal in accelerated appeal); see also Tex. Fam. Code Ann.

§ 109.002(a) (West Supp. 2012) (appeals of termination orders governed by accelerated appeal

rules). Accordingly, we ultimately dismissed the Moores’ appeal for want of subject-matter

jurisdiction. See Moore v. Brown, No. 03-09-00449-CV, 2010 Tex. App. LEXIS 3519, at *4

(Tex. App.—Austin Apr. 20, 2010, no pet.) (mem. op.).

Meanwhile, the Browns proceeded to a May 8, 2009 hearing on their petition to adopt

M.K.B. The district court granted the adoption by order signed on June 11, 2009.

The Moores also continued their attempt to regain custody through the Virginia state

court system. On July 1, 2009, the Virginia court that had issued the March 10 consent order heard

the Moores’ motion to amend. Records from this proceeding, in evidence below, reflect that the

court considered testimony from the Moores and Donna Brown, as well as “adoption orders &

paperwork from Texas” and a “Consent Order signed by Mr. & Mrs. Moore,” and found that “Mr. &

Mrs. Moore voluntarily signed the documents and were not under any duress.” Based on these

findings, the court “dismissed” the Moores’ motion. A subsequent appeal of this ruling was

dismissed for want of jurisdiction on November 10, 2009.

On November 2, 2009, while the Moores’ appeals in both Texas and Virginia

remained pending, the Moores filed an original petition for bill of review in the Bell County

district court that had rendered the termination and adoption orders. As their pleading was ultimately

8

amended, the Moores sought to invalidate via bill of review, or to have declared “void,” both the

district court’s April 30, 2009 termination order and its June 11, 2009 adoption order. The Moores’

principal assertion was that their execution of their relinquishment affidavits had not complied

with one of the requirements of family code section 161.103—that “[a]n affidavit for voluntary

relinquishment must be . . . signed after the birth of the child, but not before 48 hours after the birth

of the child, by the parent . . . .” Tex. Fam. Code Ann. § 161.103(a)(l). The Moores also complained

that the district court had exercised its jurisdiction over M.K.B. in violation of the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA) because the Virginia state court had

acquired continuing, exclusive jurisdiction over the child by virtue of its March 10, 2009 consent

order. See id. §§ 152.001-.317 (West 2008 & West Supp. 2012).

An evidentiary hearing was held at which the Moores and Browns each testified. The

evidence centered on the timing and other circumstances surrounding the Moores’ execution of

their relinquishment affidavits. The Moores urged that a comparison between their relinquishment

affidavits, which indicated a time of execution, and hospital records from M.K.B.’s birth, which

were not previously before the district court, established that (1) M.K.B. had been born at 3:28 p.m.

on March 8, 2009, yet (2) the Moores had executed their affidavits at 2:30 p.m. on March 10,

2009—approximately one hour short of the forty-eight-hour waiting period required by family code

section 161.103. See id. § 161.103(a)(1). The Moores also insisted that they had never intended to

give M.K.B. up for adoption and had understood that they were consenting only to a temporary

custodial arrangement in which they would continue to have visitation with the child. As for their

affidavits and other instruments stating otherwise, the Moores professed that they had not read them

before signing, but “trusted” Donna Brown, whose counsel had prepared them. The Moores likewise

claimed that Angelica had been under the influence of pain-killers or other medications when she

9

executed the documents and had done so, at the office of the Browns’ counsel, immediately after

being discharged from the hospital. The Browns testified to the contrary, including asserting that

the parties had agreed to an adoption all along and that the Moores had merely changed their

minds after the fact.

At the conclusion of evidence, the district court signed an order denying the Moores

relief on their claims. The court did not specify the grounds on which it relied in its order, nor did

it prepare findings of fact and conclusions of law. This appeal followed.

ANALYSIS

The Moores bring four issues on appeal. Before turning to those contentions, it is

helpful to begin with some broader threshold observations suggested by the Browns. First, as they

point out, and which the Moores seem to acknowledge, the Moores would lack standing to challenge

the adoption order unless and until they first succeed in having set aside the order terminating their

parental rights. See Durham v. Barrow, 600 S.W.2d 756, 761 (Tex. 1980) (explaining that birth

parent whose parental rights were terminated would have standing to challenge child’s adoption only

to extent the termination order was first set aside). Consequently, we will initially focus our analysis

on the Moores’ appellate complaints as they relate to the termination order.

The Browns also emphasize that the district court did not prepare findings of fact

and conclusions of law elaborating on its bases for denying the Moores relief, nor did the Moores

preserve error as to any complaint regarding the district court’s failure or refusal to do so.9

Accordingly, we presume that the district court impliedly found facts as necessary to support

9

Although the Moores requested findings of fact and conclusions of law from the

district court, they did not timely file a notice of past-due findings or preserve error on appeal. To

the contrary, the Moores suggest that findings and conclusions are “unnecessary.”

10

its judgment on any legal theory presented. See BMC Software Belgium, N.V. v. Marchand,

83 S.W.3d 789, 795 (Tex. 2002) (“When a trial court does not issue findings of fact and conclusions

of law . . . all facts necessary to support the judgment and supported by the evidence are implied.”);

see also S.C. v. Texas Dep’t of Family & Protective Servs., No. 03-12-00518-CV, 2013 Tex. App.

LEXIS 288, at *16 (Tex. App.—Austin Jan. 10, 2013, no pet. h.) (mem. op.) (implying failure to find

facts in absence of findings of fact and conclusions of law).

Finally, the Browns emphasize the procedural posture of the Moores’ claims and the

requirements for obtaining relief by bill of review.10 The Moores’ suit is in the nature of a direct

attack on the termination order, inasmuch as it was initiated for the purpose of correcting claimed

error in that order. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271-72 (Tex. 2012) (explaining

that a “direct attack” on a judgment refers to a proceeding initiated for the purpose of correcting

claimed error in the judgment). At this procedural juncture, the Moores must bring their direct attack

through a bill of review. See id. A bill of review is an equitable action brought by a party to a prior

suit who seeks to set aside a judgment that can no longer be challenged by a motion for new trial or

appeal. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). A bill-of-review petitioner like the

Moores must ordinarily plead and prove not only a meritorious defense to the underlying cause of

10

The Browns also urge that the Moores’ briefing is so lacking in substantive analysis,

citations to authority, and supporting record references that we should deem them to have waived

their appellate complaints altogether and dismiss their appeal. See Tex. R. App. P. 38.1(i), 42.3.

We decline to do so. Although certain portions of the Moores’ briefing are somewhat truncated or

oblique, we can nonetheless discern the basic substance of their complaints and the legal authorities

on which they rely. See id. R. 38.9. But this does not mean that we will sua sponte address

appellate issues and arguments that the Moores might have raised, but did not. See Jelinek v. Casas,

328 S.W.3d 526, 540 n.10 (Tex. 2010) (citing Tex. R. App. P. 38.1([i]); State v. Brown, 262 S.W.3d

365, 370 (Tex. 2008); Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 410 (Tex. 1997)); see also

In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003) (observing that appellate review of unpreserved

error in parental-termination cases was not required by due process and would run counter to “the

Legislature’s dual intent to ensure finality in these cases and expedite their resolution”).

11

action (here, the Browns’ suit to terminate their parental rights), but also that the petitioner should

be allowed to litigate the defensive issue because (1) the party was prevented from presenting that

ground within the normal procedural framework of trial and appeal by accident, fraud, or wrongful

act of the opposing party, or “official mistake,” that is (2) unmixed with any fault or negligence on

the petitioner’s own part. See id. A bill-of-review petitioner also must prove that it exercised due

diligence in pursuing all available legal remedies after the challenged judgment was rendered, or else

show good cause for failing to exhaust those remedies. See Sweetwater Austin Props., L.L.C. v. SOS

Alliance, Inc., 299 S.W.3d 879, 886 (Tex. App.—Austin 2009, pet. denied) (citing Tice v. City of

Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)). We review a trial court’s order granting or denying

a bill of review for abuse of discretion, indulging every presumption in favor of the trial court’s

ruling. See id.

As the Browns emphasize, we must imply that the district court failed to find each

of the elements that the Moores were required to prove to obtain relief from the termination order

by bill of review. See S.C., 2013 Tex. App. LEXIS 288, at *16. The Browns further assert that the

Moores have effectively waived any challenge to the district court’s denial of bill-of-review relief

by failing to challenge all of these underlying implied factual determinations on appeal. The Moores

do not appear to contend otherwise, but instead ultimately rely solely on their claim seeking to

declare the judgment “void.” Consequently, the district court did not abuse its discretion in denying

the Moores’ bill-of-review claim seeking to challenge the termination order.

Texas law permits a narrow category of “void” judgments to be attacked

“collaterally,” i.e., in a proceeding seeking to avoid the judgment’s binding effect in order to obtain

specific relief that the judgment currently impedes. See PNS Stores, 272 S.W.3d at 272. While the

Moores’ suit is in part a direct attack on the termination order, it is arguably also a collateral attack,

12

inasmuch as it seeks to set aside the termination order to remove an impediment to their ability to

obtain relief from the adoption order. A judgment may be “void” and subject to collateral attack if

any one of the following applies to the court rendering the judgment: (1) no jurisdiction of the

parties or property; (2) no jurisdiction of the subject matter; (3) no jurisdiction to enter the judgment;

or (4) no capacity to act as a court. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).

Additionally, the Texas Supreme Court in the past has appeared to recognize an exception to

the requirements of a bill of review that permits a direct attack on judgments that the trial court

entirely lacked “jurisdictional power” to render. See McEwen v. Harrison, 345 S.W.2d 706, 710

(Tex. 1961); see also SOS Alliance, 299 S.W.3d at 889. “Without jurisdictional power” in this sense

refers to a tribunal’s lacking “jurisdiction over the subject matter, the power to hear and determine

cases of the general class to which the particular one belongs.” SOS Alliance, 299 S.W.3d at 889

(quoting Deen v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974)). Neither party addresses whether the

Moores’ claim seeking to declare the judgment “void” is the sort of jurisdiction-based collateral or

direct attack that would be permitted under these principles. However, the Browns do not appear

to contend that the Moores’ inability to satisfy the bill-of-review elements is singularly fatal to their

claim seeking to declare the judgment “void.” We will assume without deciding that it is not (either

because their claim is considered a permissible direct attack on the termination order, a collateral

attack, or both) because there are independently dispositive statutory bars to all of the Moores’

claims in any event.

Compliance with forty-eight-hour waiting period

The Moores’ central contention, raised in their first issue, is that “undisputed”

evidence they presented below in this proceeding—chiefly, the hospital records from M.K.B.’s

13

birth—establishes that they executed their affidavits relinquishing parental rights less than forty-eight

hours after the child’s birth, and contrary to the requirements of family code section 161.103. The

Moores urge that this defect not only negates the sole statutory ground for the district court’s

termination order, but renders the affidavit a “nullity” or “void” for all purposes and effectively

returns the parties to the status quo that existed before the affidavits were executed. Consequently,

the Moores reason, the Browns lacked standing to file their suit seeking termination and adoption,

the district court lacked subject-matter jurisdiction to grant either order, the orders were thus

themselves void and had no effect on the Moores’ parental rights, and basically the underlying

termination and adoption proceedings unravel completely.

In support of these propositions, the Moores appear to rely on language in this Court’s

opinion dismissing the Moores’ untimely appeal of the termination order. The Court posited, with

reference to the Moores’ claims that the affidavits were not executed in compliance with the forty-

eight-hour waiting period, that “[s]uch a defect, if proved, might render the affidavit of

relinquishment a nullity . . . and arguably defeat a party’s standing to file a suit affecting the parent-

child relationship on the basis that he or she is a person ‘designated as the managing conservator in

an affidavit of relinquishment,’ see Tex. Fam. Code Ann. § 102.003(a)(10) (West Supp. 2009).”

Moore, 2010 Tex. App. LEXIS 3519, at *3. For the proposition that an affidavit of relinquishment

failing to comply with the forty-eight-hour requirement is a “nullity,” the Court cited Sims

v. Adoption Alliance, 922 S.W.2d 213 (Tex. App.—San Antonio 1996, writ denied), on which the

Moores also rely here. In Sims, the Fourth Court of Appeals, applying the then-newly enacted forty-

eight-hour waiting-period requirement in a direct appeal from a termination order brought by a

birth mother, held that the trial court had “erred” in terminating the mother’s rights based on an

14

“invalid” relinquishment affidavit she had executed only twenty-six hours after her child’s birth.

See id. at 217-18.

The aforementioned statement from the first Moore opinion was dicta, being wholly

unnecessary to the Court’s holding that the Moores had failed to perfect a timely appeal or preserve

a right to an extension of time. See Moore, 2010 Tex. App. LEXIS 3519, at *4. As for Sims, the

case merely holds that a termination order predicated on an affidavit of relinquishment that failed

to comply with the forty-eight-hour waiting period was reversible error, at least on direct appeal.

Sims, 922 S.W.2d at 217-18 (“[T]he affidavit of relinquishment was invalid and the trial court erred

in terminating the parental rights . . . on that basis.”). The procedural posture of the Moores’

challenge here is different, as the Browns emphasize. But more importantly, Sims predates

statutory limitations the Browns raised that constrain this sort of challenge to orders terminating

parental rights.

Enacted in 1997,11 subsection (a) of family code section 161.211 states, in

relevant part:

Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order

terminating the parental rights of a person . . . who has executed an affidavit of

relinquishment of parental rights . . . is not subject to collateral or direct attack after

the sixth month after the date the order was signed.

11

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 1, 1997 Tex. Gen. Laws 2108, 2108

(amended 1999) (current version at Tex. Fam. Code Ann. § 161.211 (West 2008)); Act of May 28,

1997, 75th Leg., R.S., ch. 601, § 2, 1997 Tex. Gen. Laws. 2118, 2118 (amended 1999) (current

version at Tex. Fam. Code Ann. § 161.211).

15

Tex. Fam. Code Ann. § 161.211(a) (West 2008).12 In the same bills, the Legislature enacted

subsection (c) to section 161.211, which further limits the permissible scope of such “collateral or

direct attacks” on termination orders based on affidavits of relinquishment:

A direct or collateral attack on an order terminating parental rights based on an

unrevoked affidavit of relinquishment of parental rights . . . is limited to issues

related to fraud, duress, or coercion in the execution of the affidavit.

Id. § 161.211(c) (West 2008).13 In reply, the Moores insist that the “voidness” of their affidavits

of relinquishment negates the application of either provision. Relying on their premise that their

affidavits of relinquishment were “void” and effectively nonexistent by virtue of noncompliance

with section 161.103’s forty-eight-hour waiting period, the Moores conclude that neither of them

was “a person . . . who has executed an affidavit of relinquishment of parental rights” within the

meaning of subsection (a), rendering inapplicable the provision’s six-month deadline.14 Similarly,

the Moores reason that the district court’s termination order was not “an order terminating parental

rights based on an unrevoked affidavit of relinquishment of parental rights” within the meaning of

12

Texas courts are currently split as to whether this deadline is a jurisdictional bar or is in

the nature of a limitations period that must be pleaded as an affirmative defense. See In re E.R.,

385 S.W.3d 552, 567 n.27 (Tex. 2012). The Browns raised it both ways in the district court,

pleading an affirmative defense of “limitations” and moving to dismiss the Moores’ action for want

of jurisdiction.

13

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 1, 1997 Tex. Gen. Laws 2108, 2108

(amended 1999) (current version at Tex. Fam. Code Ann. § 161.211); Act of May 28, 1997,

75th Leg., R.S., ch. 601, § 2, 1997 Tex. Gen. Laws 2118, 2118 (amended 1999) (current version

at Tex. Fam. Code Ann. § 161.211).

14

Subsection (a)’s six-month deadline also applies when the order terminates the parental

rights of a person “who has been personally served or who has executed . . . an affidavit of waiver

of interest in a child or whose rights have been terminated under Section 161.002(b).” Tex. Fam.

Code Ann. § 161.211(a). It is undisputed that the Moores were not “personally served,” as they had

waived service, and that the sole potential basis of application of the provision to them was that each

was a “person . . . who has executed an affidavit of relinquishment of parental rights.” Id.

16

subsection (c) because there was no “affidavit of relinquishment of parental rights” that could be the

basis for the order.

The Moores’ arguments rest upon a critical predicate assumption—that they can still

litigate the issue of whether their affidavits of relinquishment were executed in compliance with

section 161.103’s forty-eight-hour waiting period. To be more precise, the Moores seek to re-litigate

this issue, as the district court previously decided it when rendering its termination order and finding

they each had “executed an irrevocable affidavit of relinquishment of parental rights as provided

in chapter 161 of Texas Family Code.” That order and finding are final and binding unless the

Moores can succeed in having it set aside through collateral or direct attack. See Travelers Ins. Co.

v. Joachim, 315 S.W.3d 860, 863, 865-66 (Tex. 2010). And such a remedy is foreclosed, the Browns

urge, by not only the Moores’ inability to satisfy the procedural requirements of their bill-of-review

claim, but also by the language of subsections (a) and (c) of section 161.211 themselves. We agree.

Resolution of this issue turns on statutory construction, which presents a question

of law that we review de novo. See Texas W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177

(Tex. 2012). When construing a statute, our primary objective is to ascertain and give effect to the

Legislature’s intent. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).

To discern that intent, we begin with the statute’s words. Id. “Where text is clear, text is

determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437

(Tex. 2009) (op. on reh’g). The words cannot be examined in isolation, but must be informed by the

context in which they are used. TGS-NOPEC Geophysical, 340 S.W.3d at 441. We rely on the plain

meaning of the words, unless a different meaning is supplied by legislative definition or is apparent

from context, or unless such a construction leads to absurd results. See City of Rockwall v. Hughes,

246 S.W.3d 621, 625-26 (Tex. 2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005)

17

(“Words and phrases shall be read in context and construed according to the rules of grammar and

common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed accordingly.”). We further

presume that the Legislature chooses a statute’s language with care, including each word chosen for

a purpose, while purposefully omitting words not chosen. In re M.N., 262 S.W.3d 799, 802

(Tex. 2008).

Turning to the text of subsections (a) and (c) of section 161.211, we begin by

observing that both provisions constrain both “direct” and “collateral” attacks, without limitation or

qualification. As previously discussed, “collateral” attacks include—indeed, are permitted solely

for—challenges to the trial court’s jurisdiction. See Browning, 698 S.W.2d at 363. Consequently,

the Legislature’s unqualified use of “direct” and “collateral” attack denotes intent that

subsections (a) and (c) have sweeping, all-encompassing breadth, applying to complaints of

everything from procedural errors to jurisdictional defects. See HCBeck, Ltd. v. Rice, 284 S.W.3d

349, 363 (Tex. 2009) (“We use definitions prescribed by the Legislature and any technical or

particular meaning the words have acquired . . . .” (citing Tex. Gov’t Code Ann. § 311.011));

In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“We presume the Legislature is aware of relevant

case law when it enacts or modifies statutes.” (citing Acker v. Texas Water Comm’n, 790 S.W.2d

299, 301 (Tex. 1990))).

Turning now to the text of subsection (a) in particular, it bars any “collateral or direct

attack” on “the validity of an order terminating the parental rights of a person . . . who has executed

an affidavit of relinquishment of parental rights” “after the sixth month after the date the order was

signed.” Tex. Fam. Code Ann. § 161.211(a). The Moores plainly bring a “collateral or direct attack”

on the “validity of an order terminating [their] parental rights,” and they likewise are each a person

18

“who has executed an affidavit of relinquishment of parental rights.” Although the Moores insist

that the phrase “person who has executed an affidavit of relinquishment of parental rights” presumes

and requires “an affidavit of relinquishment of parental rights” that complies with each of the

requirements of section 161.103, subsection (a) does not actually say this, and in any event the

termination order resolved that question unless and until the Moores could show themselves

entitled to relief from that order. Finally, the “order” terminating the Moores’ parental rights “was

signed” on April 30, 2009, making “the sixth month after th[at] date” October 30, 2009, a Friday.

See Tex. Gov’t Code Ann. 311.014(c) (West 2005) (when counting “months” in codes, look to

corresponding date in successive months).15 Because the Moores did not file their petition below

until the following Monday, November 2, it was untimely under subsection (a) of section 161.211.

The Moores urge that subsection (a)’s six-month period should instead begin on

May 1, 2009, when the signed termination order was filed with the Bell County District Clerk, but

that is contrary to the provision’s text, which states that the period shall begin on “the date the order

was signed.” See Tex. Fam. Code Ann. § 161.211(a). In the further alternative, the Moores urge in

their fourth issue that their suit was timely because 161.211(a)’s six-month deadline, if applicable,

was tolled under the Servicemembers Civil Relief Act by virtue of Alvin Brown’s military service.

We need not address that issue because even if the Moores’ suit might be considered timely by virtue

of tolling, their challenges to the termination order are barred by subsection (c) of section 161.211.

Subsection (c) limits “[a] direct or collateral attack on an order terminating parental

rights based on an unrevoked affidavit of relinquishment of parental rights . . . to issues relating to

fraud, duress, or coercion in the execution of the affidavit.” Id. § 161.211(c). It is beyond dispute

15

Thus, we reject the Browns’ assertions that the deadline was October 27, 2009.

19

that the termination order here is “an order terminating parental rights” under chapter 161 of the

family code. The order is likewise plainly “based upon” the Moores’ affidavits of relinquishment,

which were made irrevocable under family code section 161.103 and were thus “unrevoked.”16 As

for the “issues related to fraud, duress, or coercion in the execution of the affidavit” to which

the Moores’ attacks on the termination order are limited, the phrase contemplates a procedural

framework predating section 161.211 that Texas courts have followed in parental-termination cases

founded on affidavits of relinquishment.

Under that framework, a person seeking to terminate parental rights based on an

affidavit of relinquishment has the initial burden of proving, by clear and convincing evidence, that

the affidavit was executed in accordance with section 161.103’s requirements. See, e.g., Coleman

v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.—El Paso 1990, no writ) (citing Terrell v. Chambers,

630 S.W.2d 800, 802-03 (Tex. App.—Tyler), writ ref’d n.r.e., 639 S.W.2d 451 (Tex. 1982)); accord

Monroe v. Alternatives in Motion, 234 S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2007,

no pet.); Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.—Austin 2000, pet. denied). An

affidavit of relinquishment in proper form is itself prima facie evidence of its validity. See Brown,

627 S.W.2d at 394; accord Monroe, 234 S.W.3d at 62; In re R.B., 225 S.W.3d 798, 804

(Tex. App.—Fort Worth 2007, no pet.). And, once that burden is met, the longstanding rule has

been that the affidavit may be set aside only on proof that the affidavit was executed as a result of

“fraud,” “coercion,” “duress,” or related factors going ultimately to whether the waiver of parental

16

The Moores make a passing assertion that their affidavits were not “unrevoked” because

they purported to revoke them. However, the affidavits were made irrevocable at all relevant times

under family code section 161.103, so the Moores’ purported revocations were in themselves

ineffective. See Wall v. Texas Dep’t of Family & Protective Servs., 173 S.W.3d 178, 181

(Tex. App.—Austin 2005, no pet.) (trial court properly denied mother’s attempt to revoke an

irrevocable affidavit of voluntary relinquishment).

20

rights in the affidavit was made voluntarily, knowingly, intelligently, and with full awareness of the

legal consequences, as is constitutionally required. See Brown, 627 S.W.2d at 394; accord Monroe,

234 S.W.3d at 61-62; Vela, 17 S.W.3d at 758-59.17 An involuntarily executed affidavit of

relinquishment is a complete defense to a termination order. See Vela, 17 S.W.3d at 759.

We are to presume that the Legislature crafts its statutes with awareness of

background law such as this.18 Against that backdrop, subsection (c)’s reference to “issues relating

to fraud, duress, or coercion in the execution of the affidavit” denotes a category of complaints that

is distinct from, and is preceded by, the question of whether the affidavit complies with all of

the requirements of section 161.103. This is understandable. Section 161.103 prescribes a number

of regulations that, while perhaps serving as prophylactic safeguards calculated to ensure the

voluntariness of execution, are somewhat formalistic and technical in nature. These include not only

the forty-eight-hour waiting period that is the Moores’ focus, but such requirements as that the

affidavits be witnessed by two credible persons; must be verified before a person authorized to take

oaths; and must contain certain detailed information about the child and the parents, an “allegation

17

This Court and others have further reasoned that the parent had not only the burden of

producing evidence of fraud, duress, coercion, etc., but also has the ultimate burden of proving

same by a preponderance of the evidence. See Monroe v. Alternatives in Motion, 234 S.W.3d 56,

62 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Vela v. Marywood, 17 S.W.3d 750, 758

(Tex. App.—Austin 2000, pet. denied). In 2003, a plurality of the Texas Supreme Court questioned

whether the ultimate burden of proving fraud, duress, or coercion could properly be placed on the

parent, urging that the ultimate burden should remain with the affidavit proponent to prove, by clear

and convincing evidence, and notwithstanding the evidence of fraud, duress, or coercion, that the

affidavit was voluntarily executed. See In re L.M.I., 119 S.W.3d 707, 720 (Tex. 2003) (Owen, J.,

concurring and dissenting). However, the plurality agreed that the parent bore the burden of

producing evidence to challenge the voluntariness of the affidavit. See id.

18

See In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“We presume the Legislature is aware

of relevant case law when it enacts or modifies statutes.” (citing Acker v. Texas Water Comm’n,

790 S.W.2d 299, 301 (Tex. 1990))).

21

that termination of the parent-child relationship is in the best interest of the child,” “a statement that

the parent has been informed of parental rights and duties,” a designation of a prospective adoptive

parent, and a statement as to whether the relinquishment is revocable, irrevocable, or irrevocable for

a specified period of time. Tex. Fam. Code Ann. § 161.103. These requirements are not the same

as “fraud,” “duress,” and “coercion,” and are not in themselves determinative of whether the affidavit

was voluntarily executed.

Consequently, subsection (c)’s limitation of “direct or collateral attack[s] on an order

terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights” to

“issues relating to fraud, duress, or coercion in the execution of the affidavit” proscribes challenges

based solely on a complaint that the affidavit violated one of section 161.103’s requirements.

Subsection (c) thus bars the Moores’ claims seeking to invalidate or set aside the termination order

on the ground that their affidavits of relinquishment were executed within the forty-eight-hour

waiting period.

Beyond urging that subsection (c) of section 161.211 does not apply to their claims,

the Moores refer in their reply brief to In re E.R., in which the Texas Supreme Court held that the

enforcement of subsection (b) of section 161.211, which imposes a six-month deadline for persons

served by publication in a parental-termination cases, must yield to the extent required by due

process. 385 S.W.3d 552, 567 (Tex. 2012). The Moores suggest that the district court’s reliance on

their “defective” affidavits of relinquishment violates due process in the same manner that the

constitutionally defective service by publication addressed in E.R. Leaving aside that the Moores

did not raise this argument in their opening brief,19 they do not present authority for this proposition

19

See Sunbeam Envtl. Servs. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851

(Tex. App.—Austin 2002, no pet.) (finding waiver of appellate issue raised for first time in reply

brief rather than opening brief); see also In re B.L.D., 113 S.W.3d at 353.

22

or otherwise explain why this is so. We cannot conclude that the Moores have demonstrated that

the application of subsection (c) violates their due process rights.

Absent a showing of such a constitutional bar to subsection (c)’s enforcement, we are

bound to give it effect. Because the Moores’ claims seeking to invalidate or set aside the termination

order on the ground that their affidavits of relinquishment were executed within the forty-eight-hour

waiting period are not “limited to issues related to fraud, duress, or coercion in the execution of the

affidavit,” they are barred by subsection (c). We overrule the Moores’ first issue.

UCCJEA

In their second issue, the Moores urge that the Virginia state court had continuing,

exclusive jurisdiction over M.K.B. and that the district court’s termination order and subsequent

adoption order were “void” for this reason. As with their complaints about compliance with the

forty-eight-hour requirement, the Moores assert a challenge to the termination order that is beyond

the scope permitted by subsection (c) of section 161.211. We must presume that the Legislature

meant what it said—“a direct or collateral attack . . . ” (which, as we have seen, can include

jurisdictional challenges) “. . . on an order terminating parental rights based on an unrevoked

affidavit of relinquishment of parental rights . . .” (which is the case with the termination order at

issue here) “ . . . is limited to issues related to fraud, duress, or coercion in the execution of the

affidavit” (which a challenge based on the UCCJEA is not). Accordingly, we overrule the Moores’

second issue.

Fraud, duress, or coercion?

In their third issue, the Moores complain of “fraud” through misstatements or

omissions in the Browns’ petition in their termination and adoption suit that, in their view,

23

contributed to the district court’s decision to exercise jurisdiction rather than deferring to the

Virginia court under the UCCJEA. However, these complaints do not concern fraud in procurement

of the Moores’ affidavits of relinquishment, and are thus not permissible avenues of attack under

subsection (c) of section 161.211. We overrule the Moores’ third issue.

Although the Moores appeared to contest the issue below, we cannot discern

anywhere in their appellate briefing that they are claiming error or seeking relief predicated on a

claim of fraud, duress, or coercion in the procurement of their affidavits of relinquishment. To the

extent that their briefs might be so construed, we would conclude that any evidence to that effect,

which was limited almost entirely to the Moores’ oral testimony, fell within the district court’s

discretion to disregard, especially in the face of the Browns’ testimony that the parties had intended

an adoption all along, the extensive documentary evidence consistent with such a plan, and the fact

that the Moores even consented to giving the child the Browns’ surname rather than their own. See

In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (noting that “the factfinder, not the appellate court,

is the sole arbiter of the witnesses’ credibility and demeanor”); In re J.F.C., 96 S.W.3d 256, 266-67

(Tex. 2002). In short, the Moores have not provided us any basis for holding that they did not

execute their affidavits relinquishing parental rights voluntarily, knowingly, intelligently, and with

full awareness of the legal consequences.20

CONCLUSION

“A parental rights termination proceeding encumbers a value ‘far more precious than

any property right.’” In re E.R., 385 S.W.3d at 554 (quoting Santosky v. Kramer, 455 U.S. 745, 747-

20

And the same would be true for their waiver of process and service that was incorporated

in those affidavits, to the extent that issue might otherwise be relevant.

24

48 (1982)). But the law recognizes that this precious right may be waived, and litigation concerning

the validity of such waivers is further governed by statutes such as family code section 161.211,

which were enacted to “ensure that children’s lives are not kept in limbo while judicial processes

crawl forward,” In re B.L.D., 113 S.W.3d at 353, and by the more general requirements of Texas trial

and appellate procedure. See id. Applying those legal principles here, and absent any showing of

a constitutional barrier to their enforcement, we have concluded that the Moores’ waivers of their

parental rights to M.K.B. must be given effect.

We have overruled the Moores’ first, second, and third issues challenging the

district court’s order terminating the Moores’ parental rights to M.K.B., and need not reach their

fourth. These holdings likewise dispose of the Moores’ appellate complaints as they relate to the

district court’s adoption order. See Durham, 600 S.W.2d at 761. We affirm the district court’s

judgment.

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Field

Affirmed

Filed: February 22, 2013

25