Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-16-00020-CV
IN THE INTEREST OF K.S.L., a Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2015-PA-00341
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Jason Pulliam, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Jason Pulliam, Justice
Delivered and Filed: July 6, 2016
REVERSED AND RENDERED IN PART; AFFIRMED IN PART
Mother and Father appeal from the trial court’s judgment terminating their respective
parental rights to their child, K.S.L. On appeal, they both assert the evidence is legally and
factually insufficient to support the trial court’s finding that termination is in the child’s best
interest. We reverse that portion of the trial court’s order terminating Mother’s and Father’s
parental rights and affirm in all other respects.
BACKGROUND
Prior to the termination trial, both Mother and Father signed affidavits of voluntary
relinquishment. The affidavits provided, in part, an acknowledgement that “[t]ermination of the
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parent-child relationship is in the best interest of the child(ren).” 1 In the affidavits, the parents
each designated the Texas Department of Family and Protective Services as managing conservator
of the children and waived citation, notice, hearing, and notice of entry of any termination order.
The parents also assented to their understanding that the affidavit of relinquishment, once signed,
“is and shall be forever final, permanent, and irrevocable.” At trial, the trial court took judicial
notice of the affidavits. The only witness to testify was the Department caseworker, who answered
“yes” when asked if she “believe[d] that accepting - - the Court to accept the relinquishments is in
the best interest of this child?” She further testified that the child was doing well in kinship
placement with her paternal uncle and that the long-range permanency plan is relative adoption
with the uncle. When asked if she believed “that this is best for [the child],” the caseworker replied,
“yes.” At the conclusion of the termination trial, the trial court terminated Mother’s and Father’s
parental rights based upon the findings that they each “executed before or after the suit is filed an
unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter
161” of the Family Code and that termination of the parent-child relationship is in the best interest
of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(K), (2) (West Supp. 2015). The reporter’s
record of the termination trial consists of twelve pages in its entirety.
On appeal, Mother and Father do not contest the statutory ground for termination, but
instead argue that there is insufficient evidence to support the trial court’s best interest finding.
BEST INTEREST
A trial court may order termination of the parent-child relationship only if the court finds
by clear and convincing evidence one or more statutory grounds for termination and that
1
See TEX. FAM. CODE ANN. § 161.103(b) (West Supp. 2015) (providing, in part, that affidavit of voluntary
relinquishment of parental rights must contain an allegation that termination of the parent-child relationship is in the
best interest of the child).
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termination is in the child’s best interest. Id. § 161.001(b)(1), (2); id. § 161.206(a) (West 2014).
“‘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.” Id. § 101.007 (West 2014). We review the sufficiency of the evidence to support
the termination of parental rights under the well-established standards for legal and factual
sufficiency of the evidence. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). There is a strong
presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d
112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the
child, “the prompt and permanent placement of the child in a safe environment is presumed to be
in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2015). In
determining whether a child’s parent is willing and able to provide the child with a safe
environment, the court should consider: (1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and
circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm
after the initial report and intervention by the Department or other agency; (5) whether the child is
fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological,
or developmental evaluations of the child, the child’s parents, other family members, or others
who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct
by the child’s family or others who have access to the child’s home; (8) whether there is a history
of substance abuse by the child’s family or others who have access to the child’s home; (9) whether
the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with and facilitate
an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to
effect positive environmental and personal changes within a reasonable period of time; (12)
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whether the child’s family demonstrates adequate parenting skills; and (13) whether an adequate
social support system consisting of an extended family and friends is available to the child. Id.
§ 263.307(b) (West Supp. 2015).
Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (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 parental abilities of the
individuals seeking custody, (5) the programs available to assist these individuals to promote the
best interest of the child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent
that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse
for the acts or omissions of the parent. Id.
Finally, evidence that proves one or more statutory grounds for termination may constitute
evidence illustrating that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28
(Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and
best interest, but such evidence does not relieve the State of its burden to prove best interest). A
best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of
the evidence as well as the direct evidence. In re B.R., 456 S.W.3d 612, 614-16 (Tex. App.—San
Antonio 2015, no pet.); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.
denied).
In this case before us, there was no evidence of any of the section 263.307 factors, the
Holley factors, or other considerations admitted at the termination trial. The Department argues
that no such evidence was required in light of the affidavits of voluntary relinquishment signed by
both parents. We disagree. This court has held that while an affidavit of relinquishment of parental
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rights is “relevant to the best interest inquiry,” “a relinquishment is not ipso facto evidence that
termination is in the children’s best interest. To hold otherwise would subsume the requirement
of proving best interest by clear and convincing evidence into the requirement of proving an act or
omission listed in section 161.001 by clear and convincing evidence.” In re A.H., 414 S.W.3d
802, 806 (Tex. App.—San Antonio 2013, no pet.). In A.H., we held that “even if a parent has
voluntarily and irrevocably relinquished his or her parental rights under subsection [(b)](1), the
State must still establish by clear and convincing evidence that termination of parental rights is in
the child’s best interest under subsection (2).” Id. Because the only evidence admitted at trial was
the caseworker’s conclusory testimony, the panel reversed the termination order and rendered
judgment denying the State’s petition to terminate parental rights. See id. at 807.
The Department argues that A.H. failed to apply section 161.211(c) of the Family Code to
its best interest analysis. Section 161.211(c) provides: “[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 relating to fraud, duress, or coercion in the execution of the affidavit.” TEX.
FAM. CODE ANN. § 161.211(c) (West 2014) (emphasis added). The Department further relies on
a recent opinion from the Dallas Court of Appeals holding that section 161.211(c) “bars” an
appellant’s complaint that there is insufficient evidence of best interest where the appellant has
also executed an affidavit of relinquishment. In re J.H., 486 S.W.3d 190, 198 (Tex. App.—Dallas
2016, no. pet.). In J.H., the court held that when an appellant has executed an affidavit of
relinquishment, her arguments on appeal must be limited to fraud, duress, or coercion in the
execution of the affidavit pursuant to section 161.211(c). See id. Because the appellant did not
argue that her affidavit was executed as a result of fraud, duress, or coercion, the court refused to
consider the appellant’s sufficiency argument. See id.
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Absent further guidance from this state’s highest court on section 161.211, we decline to
follow our sister court’s holding in J.H. Instead, we remain mindful of the fundamental liberty
interest a parent has in his or her child and strictly construe involuntary termination statutes in
favor of maintaining the natural relationship between parent and child. See Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). We are further mindful that the Due Process Clause of the United
States Constitution and the Texas Family Code place the burden of proof on the Department to
prove the necessary elements to terminate the parent-child relationship by the heightened burden
of “clear and convincing evidence.” See TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012); In re A.H., 414 S.W.3d at 807. Those elements include not only the
statutory ground for termination, but also best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1),
(2). Accordingly, we hold that the State is not relieved of its burden to prove best interest merely
because a parent has executed a voluntary and irrevocable affidavit of relinquishment of parental
rights.
Our holding is aligned with the Texarkana Court of Appeals’ recent decision in In re K.D.,
471 S.W.3d 147 (Tex. App.—Texarkana 2015, no pet.). In K.D., the court examined a situation
where Mother, as a result of a mediated settlement agreement (MSA), executed an irrevocable
affidavit of voluntary relinquishment of her parental rights (the Affidavit) and agreed that
termination of her parental rights was in K.D.’s best interest. Id. at 153. The trial court entered
judgment in accordance with the MSA. Id. After her parental rights were terminated, Mother
appealed, arguing that both the MSA and the Affidavit were involuntarily executed because they
were procured as a result of fraud. Id. She also argued that the evidence was insufficient to support
the trial court’s finding that termination of her parental rights was in K.D.’s best interest. Id. at
153-54. The court of appeals held that the Affidavit was voluntarily executed and was not procured
by fraud, and that the MSA was likewise valid and enforceable between the parties. Id. at 154.
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The court then addressed whether the Affidavit that was incorporated into the MSA foreclosed a
best-interest review under section 161.001(b)(2). Id. at 162-73; see also TEX. FAM. CODE ANN. §
153.0071 (West 2014) (alternative dispute resolution procedures in suits affecting the parent-child
relationship). Although the court did not address section 161.211(c) as it pertains to best interest,
the court ultimately held that it was “not bound by the MSA and or the Affidavit to find that
termination of Mother’s parental rights was in K.D.’s best interest; instead, the Department was
required to prove best interest by clear and convincing evidence.” In re K.D., 471 S.W.3d at 174.
After reviewing the record, the court ultimately concluded that the evidence was factually
insufficient to support the trial court’s finding that termination of Mother’s parental rights was in
K.D.’s best interest. Id. at 178. We agree that the due process protections afforded to parents in
parental-rights termination cases precludes foreclosure of judicial review of best-interest
determinations even where the parent has voluntarily signed an irrevocable affidavit of
relinquishment. See id. at 170-71.
In the case before us, the Department alternatively argues that “evidence in the entire record
supports the best interest finding.” In doing so, the Department cites to various documents in the
clerk’s record, including the investigative caseworker’s affidavit attached to the Department’s
Original Petition, the family service plans, the psychosocial assessments, the order from the
permanency hearing, and the judge’s notes. These documents, however, cannot support the trial
court’s best interest finding. See In re B.R., 456 S.W.3d at 617-18; In re J.E.H., 384 S.W.3d 864,
870 (Tex. App.—San Antonio 2012, no pet.). Here, the trial court did not take judicial notice of
its files; but even if it had, a court may not take judicial notice of the truth of allegations in its
records. See In re J.E.H., 384 S.W.3d at 870 (emphasis added) (holding trial court could not take
judicial notice of allegations caseworker made in family service plan or in affidavit attached to
Department’s petition). Therefore, the allegations contained in the Department’s affidavits and
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the parents’ service plans cannot support the termination order. Accordingly, we are limited to
reviewing the only evidence admitted at trial, which was the caseworker’s testimony. And in this
case, the caseworker’s testimony was meager and conclusory at best. See In re A.H., 414 S.W.3d
at 807 (holding caseworker’s conclusory testimony, even though uncontradicted, did not rise to
the level of “clear and convincing” evidence that would produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegation that termination was in children’s best
interest); see also Williams v. Williams, 150 S.W.3d 436, 450-51 (Tex. App.—Austin 2004, pet.
denied) (caseworker’s unsupported testimony, which constituted sole evidence at trial, did not
support termination). Although the affidavit of relinquishment is relevant to the best-interest
determination, without more, it cannot alone suffice to prove the required element of best interest.
See TEX. FAM. CODE ANN. § 161.001(b)(1), (2); see also In re A.H., 414 S.W.3d at 806.
CONCLUSION
After reviewing the record before us, we conclude the Department did not meet its burden
to establish by clear and convincing evidence that termination of Mother’s and Father’s parental
rights to K.S.L. is in the child’s best interest. Therefore, we reverse the trial court’s judgment
terminating Mother’s and Father’s parental rights and render judgment denying the Department’s
petition for termination of Mother’s and Father’s parental rights.
Because Mother’s and Father’s challenge to the Department’s Family Code section
153.131 conservatorship was not subsumed within their appeals of the termination order and was
not independently challenged on appeal, we also affirm the trial court’s appointment of the
Department as the managing conservator of K.S.L. pursuant to section 153.131. See In re J.A.J.,
243 S.W.3d 611, 617 (Tex. 2007) (explaining procedure to be followed by a parent, the
Department, and the trial court when a judgment terminating parental rights is reversed by the
court of appeals but the Department’s conservatorship pursuant to section 153.131 is affirmed);
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see also In re R.S.D., 446 S.W.3d 816, 822-23 & n.5 (Tex. App.—San Antonio 2014, no pet.); see
also TEX. FAM. CODE ANN. § 153.131 (West 2014).
Rebeca C. Martinez, Justice
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