MODIFY and AFFIRM; and Opinion Filed March 3, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01465-CV
IN THE INTEREST OF A.B. & D.Y., CHILDREN
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 13-1047W
OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Mother appeals the trial court’s termination of her parental rights to her children, A.B.
and D.Y. She argues that the trial court abused its discretion by basing the termination decree on
a Rule 11 agreement that is void because of mutual mistake. She also argues that the decree
contains errors and terms not contained in the Rule 11 agreement and should be reformed. For
the reasons that follow, we modify the decree of termination and affirm as modified.
Background
A.B. and D.Y. were under the care of Mother’s friend while Mother was incarcerated.
The friend was reported to have a long history of crack cocaine use. The Texas Department of
Family and Protective Services took custody of the children pursuant to a referral alleging
neglectful supervision and filed a petition to terminate Mother’s and Father’s parental rights.
The trial court appointed attorneys to represent the parents and an attorney/guardian ad litem to
represent the children. The day before the case was set for trial, the guardian ad litem and the
attorneys for Mother, Father, and the Department signed a Rule 11 agreement, which stated:
The undersigned parties agree that per Rule 11 of the Rules of Civil
Procedure the following terms shall be made the final orders of the Court and that
said agreement is in the best interest of the subject children: [A.B.] . . . and [D.Y.]
....
1) The parents . . . shall have their parental rights to the subject
children, [A.B.] and [D.Y.], terminated pursuant to Section 161.001(1)(O) 1 of the
Texas Family Code for failure to complete services ordered by the Court and
stipulate they did not complete all of the services requested by Petitioner as set
out in the Family Service Plan.
2) The Petitioner agrees to provide to the parents cards, pictures and
letters at a permanent address provided . . . to Petitioner by the parents; such items
shall be sent to said address twice a year.
3) In the event the cards, pictures and letters sent to the parents are
returned undeliverable, the duty of Petitioner or the adoptive parent shall cease.
4) The Petitioner shall make best efforts to identify an adoptive
family who will agree to provide cards, pictures and letters to the parents[.]
The agreement was filed with the court that same day. The next day when the case was
called for trial, neither Mother nor Father appeared. 2 The trial court stated, “Let the record
reflect that we held this case over from yesterday for trial in that there was a last minute contact
by the respondent mother with respondent mother’s counsel.” When the court asked the
attorneys to announce, Mother’s attorney moved for a continuance. Mother’s attorney advised
1
Subsection (O) states that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the
parent has
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to
obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under
Chapter 262 for the abuse or neglect of the child.
TEX. FAM. CODE ANN. § 161.001(1)(O) (West 2014).
2
The record is unclear about whether Mother was in jail at the time of trial. The February 2014 summary report to the court from the Dallas
Court Appointed Special Advocates (CASA) stated that Mother “was released from incarceration in December. She was arrested again on
1/13/14 for Prostitution and remains incarcerated at this time. She attended some parent/child visits at CPS during the time she was out. [Mother]
has not completed any of the court ordered services.” The April 2014 summary report stated that Mother was “currently incarcerated.” The last
CASA report in our appellate record is dated June 2014. It stated that Mother was “currently incarcerated” in one section of the report, but, in
another section of the same report, stated Mother “has been released from jail[.]” Trial began in September 2014.
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the court that Mother had a criminal matter set for disposition the next day and that Mother
might be placed on probation through a mental health program. The attorney advised the court
that if Mother was placed on probation, “the mental health court . . . will work with her on
services, medication management, housing, and help her through her probation stabilizing her
life” and Mother would be in a better position to complete the Department’s services and provide
a stable environment for her children. Mother’s attorney asked for a short continuance pending
the outcome of Mother’s criminal matter. The Department opposed the continuance and asked to
proceed on the Rule 11 agreement “that was signed by all parties yesterday[.]” Father’s attorney
did not oppose the motion for continuance. The guardian ad litem deferred to the court, but
stated, “We did sign the Rule 11 yesterday, although it was prior to more contact from mom.”
The court denied the motion and called the case for trial.
The Department called one witness: its case worker, who testified that “[t]he parties
entered into a Rule 11 agreement yesterday[.]” No other witnesses were called. Then Mother’s
attorney told the court that she “believe[d] under the circumstances with my client not having
contact with the Department or having visitation with her children or completing her services
that this agreement is in her best interest.”
The trial court ordered termination of Mother’s and Father’s parental rights based “on ‘O’
and best interest grounds.” The court signed a decree terminating Mother’s parental rights based
on the Rule 11 agreement, and also finding that Mother “failed to comply with the provisions of
a court order that specifically established the actions necessary for [her] to obtain the return of
the children . . . .”
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Discussion
In issue one, Mother argues that the trial court abused its discretion by rendering a
termination decree based on a Rule 11 agreement that was void due to a mutual mistake on a
material matter. Mother contends that the Rule 11 agreement was based on her failure to comply
with court-ordered services, but the record shows that she was never ordered to complete
services, and, consequently, the Rule 11 agreement was based on a mutual mistake.
The Department has not responded.
It is undisputed that Mother was in jail when the Department took custody of the
children. At the second hearing in the case, the court made a docket sheet entry stating, “Mom -
TPC - No orders.” Our appellate record contains one Family Service Plan relating to Mother. In
it, the Department stated that Mother “will be referred to services upon release . . . .” Our record
does not contain an order from the trial court “specifically establish[ing] the actions necessary
for [Mother] to obtain the return of the child[ren].” See TEX. FAM. CODE ANN. § 161.001(1)(O)
(West 2014).
In the termination decree, the trial court found “that the parties have entered into a Rule
11 Agreement . . . .” The court attached the Rule 11 agreement as an exhibit to the decree and
“adopted [it] as the Order of this Court.” Additionally, in a separate section of the termination
decree, the trial court found that Mother “failed to comply with the provisions of a court order
that specifically established the actions necessary for the [Mother] to obtain the return of the
children . . . pursuant to Section 161.001(1)(O) of the Texas Family Code.” However, Mother
does not argue that the evidence is insufficient to support the termination decree on “O” grounds.
Instead, she argues only that the Rule 11 agreement upon which the termination decree was
based should be rendered void because of mutual mistake.
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“Mutual mistake” is an affirmative defense that states “when the parties to an agreement
have contracted under a misconception or ignorance of a material fact, the agreement will be
avoided.” Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). The burden to establish mutual
mistake is on the party seeking to avoid the agreement. Id. It is a fact issue to be determined by
the trier of fact. Id. at 265; see Smith-Gilbard v. Perry, 332 S.W.3d 709, 714 (Tex. App.—Dallas
2011, no pet.). But Mother did not raise mutual mistake below either before the decree was
signed or in a motion for new trial or other post-judgment motion, and, as a result, the trial court
never considered or determined this issue. Because this issue was not presented below, it
presents nothing for our review on appeal. TEX. R. APP. P. 33.1. We resolve issue one against
Mother.
In issue two, Mother argues that the termination decree contains numerous errors that we
should correct. She argues that the names of the attorneys who represented the parties are
wrong, the gender of D.Y. is wrong, and the terms of the Rule 11 agreement as stated in the
decree are wrong.
When we have the necessary information to do so, we may correct clerical errors in the
judgment. See TEX. R. APP. P. 43.2(b); In re M.D., 333 S.W.3d 600, 601 (Tex. App.—Dallas
2007, no pet.). The record reflects that Pamela Baeza, not Ron Aland, represented Mother; Ron
Aland, not William Ashe, represented Father; and Bryan Arnold, not Jacqueline Dodd, was the
guardian/attorney ad litem for the children. The record also reflects that D.Y. is a female, not
male, child. Consequently, we sustain this part of issue two and modify the decree of
termination as follows:
On page one of the decree, we delete “Ron Aland” as the attorney of record for the
Respondent Mother and replace it with “Pamela Baeza.” We delete “William Ashe” as the
attorney of record for the Respondent Father and replace it with “Ron Aland.” We delete
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“Jacqueline Dodd” as the appointed “Guardian and Attorney Ad-litem” for the children and
replace it with “Bryan Arnold.” On page two of the decree, we delete “Male” under “Sex” of the
child D.Y. and replace it with “Female.”
However, we do not have the necessary information to make substantive changes to the
judgment concerning the terms of the Rule 11 agreement. Those alleged errors must be brought
to the trial court’s attention by a motion to modify or correct the judgment. See TEX. R. CIV. P.
316, 329b(f), (g). Although we may review the evidence supporting the decree for legal and
factual sufficiency, Mother does not complain about the sufficiency of the evidence to support
the decree. See Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986). Consequently, we
resolve this part of issue two against Mother.
We modify the trial court’s decree of termination and affirm as modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
141465F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A. B. & D.Y., On Appeal from the 304th Judicial District
CHILDREN Court, Dallas County, Texas
Trial Court Cause No. 13-1047W.
No. 05-14-01465-CV Opinion delivered by Justice Lang-Miers,
Justices Bridges and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows. On page one of the Decree of Termination, we delete “Ron Aland” as
the attorney of record for the Respondent Mother, Dorothy Denise Edwards AKA Dorothea
Maria Mendez, and replace it with “Pamela Baeza.” We delete “William Ashe” as the attorney
of record for the Respondent Father, Anthony Kimball Young, and replace it with “Ron Aland.”
We delete “Jacqueline Dodd” as the guardian/attorney ad litem for the children and replace it
with “Bryan Arnold.” On page two of the Decree of Termination, we delete “Male” under “Sex”
of the child Danijah Young and replace it with “Female.”
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Dallas County Child Protective Services Unit of the Texas
Department of Family and Protective Services recover its costs of this appeal from appellant
Dorothy Denise Edwards a/k/a Dorothea Maria Mendez.
Judgment entered this 3rd day of March, 2015.
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