COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00220-CV
IN THE INTEREST OF G.V., III AND
G.V., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-102780-16
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OPINION
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This case of first impression calls on us to decide whether we should apply
Chapter 153 (“Conservatorship, Possession, & Access”) or Chapter
161 (“Termination of the Parent–Child Relationship”) of the family code to a
mediated settlement agreement, where
the Department of Family and Protective Services initiated a suit to appoint
a managing conservator and to terminate Father’s and Mother’s parental
rights if reunification could not be achieved;
while the termination proceeding was pending, Father and Mother entered
into a mediated settlement agreement (“MSA”) that changed the managing
conservatorship but did not terminate their rights;
the MSA recited that the agreement was “in the best interest” of the
children and met the statutory requirements of section 153.0071 to be
binding and enforceable;
the Department then dropped its request to terminate Father’s and
Mother’s parental rights and moved to modify managing conservatorship in
accordance with the MSA; and
after Father and Mother unsuccessfully objected and asked to back out of
the MSA, the trial court entered a final order enforcing it under section
153.0071 and without requiring the Department to put on any best-interest
proof.
Because we are unpersuaded that the mere possibility of termination at the time
an MSA is entered into suffices to make section 153.0071 inapplicable—that is,
because we disagree that the parents ought to have been able to revoke an
otherwise-binding MSA that modified managing conservatorship simply because
the Department initially and conditionally pleaded for termination—we affirm.
The MSA here reflected Father’s and Mother’s agreement that (1) their two
young children would be placed with relatives who would be made the managing
conservators, (2) the parents would have limited supervised visitation twice a
month, (3) they would pay a combined $2,000 per month in child support,
(4) they would not file a motion to modify for 48 months, but (5) they could move
to modify in the event of an emergency. The MSA did not actually terminate
Father’s or Mother’s parental rights, nor did either of them voluntarily relinquish
their parental rights under the agreement, by a section 161.103 affidavit or
2
otherwise. Father and Mother then sought to revoke their consent to the MSA
after the Department moved the trial court to enter judgment. Over the parents’
objections, the trial court rendered judgment on the mediated settlement
agreement under section 153.0071 of the family code. Tex. Fam. Code Ann.
§ 153.0071 (West 2014). Father and Mother appealed.
In three issues, Father and Mother assert that (1) the trial court erred by
relying on section 153.0071(e), (2) the trial court erred by adopting the MSA’s
moratorium on any motions to modify for 48 months, and (3) the trial court erred
by adopting the MSA’s “emergency” prerequisite before any motion to modify
could be filed in the interim. We affirm.
Background
On January 27, 2016, the Department of Family and Protective Services
filed its “Original Petition for Protection of a Child, For Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship” against Father and
Mother. The children involved were their two-year-old son, Andrew, and their
three-month-old daughter, Betty.1
According to the supporting affidavits, three-month-old Betty had suffered
non-accidental trauma. The perpetrator was unknown, and the record contains
multiple references (one as late as April 10, 2017) both to an ongoing criminal
1
We use aliases to refer to various individuals associated with this appeal.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P.
9.8(b)(2).
3
investigation and to the fact that “a perpetrator has not been identified.” Betty had
numerous fractures in various stages of healing, including rib fractures, a
clavicular fracture, a femur fracture, and distal femur corner fractures. Andrew
had no injuries consistent with abuse or neglect. Betty attended a daycare, and it
was the daycare that first expressed concerns on January 25, 2016. Father and
Mother took Betty to a hospital that same evening. The Department’s petition
came two days later.
The petition sought to terminate Father’s and Mother’s parental rights to
their two children under family code Chapter 161 (“Termination of the Parent-
Child Relationship”) of Subtitle B (“Suits Affecting the Parent-Child Relationship”)
of Title 5 (“The Parent-Child Relationship and the Suit Affecting the Parent-Child
Relationship”). See Tex. Fam. Code Ann. §§ 161.001–.211 (West 2014 & Supp.
2017).2 The Department’s petition raised termination as a possibility if
reunification could not be achieved.
The petition also encompassed conservatorship and child-support issues
under Chapter 153 (“Conservatorship, Possession, and Access”) and Chapter
154 (“Child Support”), respectively, which—like Chapter 161—are also under
2
Effective September 1, 2015, section 161.001(1) and (2) became sections
161.001(b)(1) and (b)(2). Act of Mar. 26, 2015, 84th Leg., R.S., ch. 1, § 1.078,
sec. 161.001(b), 2015 Tex. Sess. Law Serv. 1, 18 (West) (codified as an
amendment to Tex. Fam. Code Ann. § 161.001). When we cite or quote cases
decided under the previous section 161.001(1) or 161.001(2) designations, we
do so knowing that the current provisions are found in sections 161.001(b)(1) and
161.001(b)(2).
4
Subtitle B of Title 5 of the family code. See id. §§ 153.001–.709, 154.001–
.309 (West 2014 & Supp. 2017).
On the same date that the Department filed its petition, the trial court
entered ex parte emergency orders appointing the Department as Betty’s and
Andrew’s sole managing conservator; placing the children with the Smiths, who
were family friends; and setting a date for a full adversary hearing in accordance
with section 262.201 of the family code. See id. § 262.201 (West Supp. 2017).
At the February 5, 2016 full adversary hearing, the trial court signed an
agreed temporary order to the same effect. As temporary managing conservator,
the Department was specifically given all the rights and duties as set forth in
section 153.371 of the family code. See id. § 153.371.
Father and Mother filed separate answers.
On March 2, 2016, the Smiths were appointed Betty’s and Andrew’s
temporary possessory conservators, and the trial court ordered that both Father
and Mother have only supervised visitation.3
On June 28, 2016, the Department filed a motion to remove the Smiths as
temporary possessory conservators and, in their place, sought to appoint the
Joneses as the children’s temporary possessory conservators. Mr. Jones is
Father’s paternal great uncle.
3
As part of the Department’s motion to modify possessory conservatorship
on which this order was based, it submitted an affidavit stating that “[t]here is an
ongoing criminal case pending to see who caused the injured [sic] to this child.”
5
The following week, Jane Doe, a person who had regular contact with the
children before their removal, filed a petition in intervention. She asserted that
appointing either parent as sole managing conservator or both parents as joint
managing conservators would significantly impair the children’s physical health or
emotional development. She sought to be appointed the children’s possessory
conservator.
As the Department requested, in early July 2016 the trial court removed
the Smiths and appointed the Joneses as the children’s temporary possessory
conservators.
On August 31, 2016, the trial court ordered Father to pay $1,200 per
month in child support and ordered Mother to pay $800 per month in child
support.
On October 5, 2016, the Department, the Joneses, Father, Mother, and
Jane Doe filed a “Binding [Mediated] Settlement Agreement.” See id.
§ 153.0071(e). There is no allegation that the parties failed to meet the
prerequisites to a binding agreement under section 153.0071(d). See id.
§ 153.0071(d).
As the case approached its one-year anniversary, the trial court signed an
order in December 2016 retaining the suit on the court’s docket and resetting the
case’s dismissal date to July 26, 2017.4 See id. § 263.401 (West Supp. 2017).
4
The prosecutor explained the need for the delay at the June 6,
2017 hearing: “The reason why we extended the case was so that the [Joneses],
6
On March 28, 2017, the Department filed a “Motion to Modify Managing
Conservatorship in a Suit Affecting the Parent-Child Relationship.” The
Department sought to have itself removed as managing conservator and to have
the Joneses appointed as managing conservators. The Department additionally
sought to have Father, Mother, and Jane Doe appointed as possessory
conservators.
On April 12, 2017, Father and Mother replaced their original attorney and
filed a joint objection to the MSA. The unique (and limited) grounds for setting
aside a mediated settlement agreement are set out in section 153.0071(e-1) of
the family code. See id. § 153.0071(e-1). Father and Mother did not, however,
raise those grounds.
On June 1, 2017, relying specifically on section 153.0071(e) for the
proposition that the trial court must enter judgment in accordance with the MSA,
the Department filed a motion to enter judgment. See id. § 153.0071(e).
Father and Mother responded to that motion four days later. Once again,
they did not cite section 153.0071(e-1) as the basis for invalidating the MSA.
The next day, June 6, 2017, at the hearing on the Department’s motion to
modify managing conservatorship and motion to enter judgment, the Department
requested that a judgment be entered based on section 153.0071(e) of the family
who had possession of [Andrew] and [Betty], would be licensed and be able to
get foster connection benefits by being licensed for six months before we close
the case.”
7
code. When the trial court specifically asked if that meant the Department was
not going to be putting on any testimony, the Department responded, “That’s
correct.”
That same day, the trial court signed its “Final Order in Suit Affecting the
Parent-Child Relationship.” Citing section 153.371, the trial court appointed the
Joneses as the children’s permanent managing conservators and consequently
removed the Department as managing conservator. See id. § 153.371. Father,
Mother, and Jane Doe were appointed possessory conservators, and the court
then identified the conservators’ statutory rights as set out in sections
153.073 and 153.074. See id. §§ 153.073–.074. The court incorporated the
mediated settlement agreement by reference and attached it as Attachment A.5
The MSA, as noted, included a 48-month moratorium on filing a motion to modify
and required an “emergency” before any motion to modify could be filed within
those four years.6 The court ordered possession as set out in Attachment B,
5
The order did contain an unexplained variance from the MSA: the October
3, 2016 MSA appears to recite—the copy in the record is not completely
legible—that Father’s and Mother’s periods of possession were to be supervised
by Family Court Services or the Smiths, the latter of whom did not participate in
the mediation or sign the MSA. (The Smiths were the family friends initially
designated as the children’s temporary possessory conservators, a role into
which the Joneses stepped in place of the Smiths with the court’s July 6,
2016 order.) The final order incorporates the MSA “save and except any
reference to” either of the Smiths. Father and Mother do not complain on appeal,
and did not complain in the trial court, that the trial court’s variance from the MSA
somehow rendered it legally infirm or void.
6
Although the MSA can be interpreted to mean that an emergency would
be necessary even after 48 months had elapsed, at the June 6, 2017 hearing
8
under which Father and Mother got four hours of supervised visitation twice a
month. Finally, the court ordered that Father and Mother pay child support as set
out in Attachment C, which simply continued Father’s $1,200 monthly payments
and Mother’s $800 monthly payments.
Section 153.0071(e) applies in this case
In their first issue, Father and Mother assert that section 153.0071(e) of the
family code does not apply to suits to terminate the parent–child relationship
brought under family code Chapter 161, citing In re Morris, 498 S.W.3d 624 (Tex.
App.—Houston [14th Dist.] 2016, orig. proceeding), and In re K.D., 471 S.W.3d
147 (Tex. App.—Texarkana 2015, no pet). They contend that because
termination under Chapter 161 was foundational to this suit, the trial court erred
by granting the motion to enter judgment on the MSA based on section
153.0071. Although the Department’s suit did not result in a Chapter
161 termination, Father and Mother argue that because termination was still a
possibility at the time they negotiated and agreed to the MSA, section
153.0071 does not apply.7
both sides treated that “emergency” provision as applying only during the first
four years, with the parents being free to move to modify on any available basis
thereafter.
7
Despite having claimed duress in their written response to the
Department’s motion, at the motion-to-modify hearing Father and Mother,
through counsel, explicitly disavowed that theory: “That threat hanging over their
head at the time of mediation, which everybody here concedes it was, is what
makes this—I’m not making any argument that my clients signed this under
duress or for the duress reason they should get out.” On appeal, they appear to
9
Section 153.0071 provides, in part:
(c) On the written agreement of the parties or on the court’s own
motion, the court may refer a suit affecting the parent-child
relationship to mediation.
(d) A mediated settlement agreement is binding on the parties if the
agreement:
(1) provides, in a prominently displayed statement that is in
boldfaced type or capital letters or underlined, that the
agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at
the time the agreement is signed.
(e) If a mediated settlement agreement meets the requirements of
Subsection (d), a party is entitled to judgment on the mediated
settlement agreement notwithstanding Rule 11, Texas Rules of Civil
Procedure, or another rule of law.
(e-1) Notwithstanding Subsections (d) and (e), a court may decline
to enter a judgment on a mediated settlement agreement if the court
finds:
(1) that:
(A) a party to the agreement was a victim of family
violence, and that circumstance impaired the party’s
ability to make decisions; or
(B) the agreement would permit a person who is subject
to registration under Chapter 62, Code of Criminal
Procedure, on the basis of an offense committed by the
person when the person was 17 years of age or older or
who otherwise has a history or pattern of past or
present physical or sexual abuse directed against any
person to:
argue duress tangentially by suggesting that the mere threat of termination takes
the MSA out of Chapter 153 and puts it into Chapter 161.
10
(i) reside in the same household as the child; or
(ii) otherwise have unsupervised access to the
child; and
(2) that the agreement is not in the child’s best interest.
Tex. Fam. Code Ann. § 153.0071.
A. In re Lee: The supreme court holds that, with a narrow statutory exception
that Father and Mother do not rely on, section 153.0071 removes the trial
court’s discretion to deviate from the mediated settlement agreement.
In a case that did not involve termination or the threat of termination in any
respect, the Texas Supreme Court has written that section 153.0071(e)
unambiguously entitles a party to judgment on a mediated settlement agreement
that meets the statutory requirements. In re Lee, 411 S.W.3d 445, 453 (Tex.
2013) (orig. proceeding). The only narrow exception is when section 153.0071(e-
1)’s family-violence-related factors are satisfied. Id. The supreme court
continued, “By its plain language, section 153.0071 authorizes a court to refuse
to enter judgment on a statutorily compliant MSA on best interest grounds only
when the court also finds the family violence elements are met.” Id. Put
differently, the court wrote that the statute did not authorize the trial court to
substitute its judgment for that of the parties as reflected in the mediated
settlement agreement absent the section 153.0071(e-1) elements. Id. The court
viewed it as “absolutely clear” that the Legislature limited the trial court’s
consideration of best interest when entering a judgment on an MSA only to cases
involving family violence. Id. “Allowing a court to decline to enter judgment on a
11
valid MSA on best interest grounds without family violence findings,” the supreme
court concluded, “would impermissibly render the family violence language in
subsection (e–1) superfluous.” Id.
Because Father’s and Mother’s case does not involve the section
153.0071(e-1) exception, under Lee the trial court was required to enter
judgment on the mediated settlement agreement—and to do so essentially
without any judicial oversight or review. See id. at 453–58; see also Morris,
498 S.W.3d at 629–30. Unless, of course, and as Father and Mother urge,
section 153.0071 does not apply at all.
B. K.D. and Morris: Two intermediate courts hold that section 153.0071 does
not limit the trial court’s discretion when parental rights are actually
terminated by agreement (and, according to Father and Mother, even
when parental rights are not terminated but termination is threatened).
Faced with a mediated settlement agreement under which a mother signed
away her parental rights, the Texarkana Court of Appeals balked at the idea that,
in the context of a termination proceeding, the parties could effectively preclude a
trial court from exercising any oversight or review. “Of course,” it nevertheless
wrote, “we do not hold that a settlement agreement obtained through mediation
under Section 153.0071 accomplishes nothing in a parental-rights termination
case brought by the Department,” pointing out that the mediation “resulted in the
execution of a valid and enforceable affidavit of relinquishment and mediated
settlement agreement.” K.D., 471 S.W.3d at 168. That is, the relinquishment
affidavit eliminated the Department’s burden of proving the first prong under
12
section 161.001(b)(1) and precluded the mother from backing out of an
agreement in which she agreed that termination was in her child’s best interest,
because the agreement was enforceable against her. Id.
But the critical question was whether the mother’s agreement that
termination was in her child’s best interest bound the trial court. Id. “In other
words,” asked the Texarkana court, “must the Department still prove by clear and
convincing evidence that termination of [the mother’s] rights is in [her child]’s best
interest [under section 161.001(b)(2)] even though [the mother] agreed that it
was,” or could “the [affidavit of relinquishment] and the MSA eliminate that
[section 161.001(b)(2) best-interest] element of proof as well[?]” Id.
The answer in K.D. was that the Department still had to prove the best-
interest element regardless of a relinquishment affidavit and an MSA. “After
comparing the mediation process in a parental-rights termination case brought by
the Department against the mediation process involving private parties,” and then
“evaluating the results of that comparison in light of constitutional due process
considerations,” the court concluded that “due process requires the [Department]
to still prove by clear and convincing evidence that termination is in the child’s
best interest.” Id. at 168–69. The court noted that “a mediated settlement
agreement and an affidavit of relinquishment in a parental-rights termination case
may be binding between the parties,” but that fact “does not eliminate the
Department’s burden of proving by clear and convincing evidence under [section
13
161.001(b)(2)] that termination is in the child’s best interest or the trial court’s
power to deny termination in the absence of such proof.” Id. at 169.
The Houston Fourteenth Court of Appeals effectively adopted K.D.’s
analysis in its Morris opinion. 498 S.W.3d at 631–34.
C. Discussion
We agree with Father and Mother that the Department filed this suit to
terminate their parental rights under Chapter 161—but it was also more than a
termination suit. The Department sought conservatorship for itself, and, if
Father’s and Mother’s parental rights were not terminated, it sought to have the
conservatorship placed in someone other than the parents. The suit thus
encompassed both Chapter 161 and Chapter 153 and was ultimately resolved
under Chapter 153.
The cases on which Father and Mother rely—K.D. and Morris—were ones
that entailed mediated settlement agreements resulting in the explicit termination
of parental rights. Morris, 498 S.W.3d at 626; K.D., 471 S.W.3d at 153. It was the
fact of those terminations that unquestionably put K.D. and Morris within Chapter
161, unlike here, where Father’s and Mother’s parental rights were not
terminated.
Although their rights were not in fact terminated, Father and Mother argue
that section 153.0071 nevertheless does not apply because the Department
pleaded for termination and because termination was still on the table when the
mediation occurred. We disagree. The precise question asked in K.D. was, “Does
14
Section 153.0071(e) Foreclose a Best-Interest Review Under Section
161.001(2)?” K.D., 471 S.W.3d at 165. The answer was no, that it does not. Id. at
169.8 Similarly, in Morris, the court held that section 153.0071(e) does not
“preclude a trial court from determining under section 161.001(2) whether the
plaintiff has proved by clear and convincing evidence that termination would be in
the child’s best interest.”9 Morris, 498 S.W.3d at 634.
8
The K.D. court wrote:
[A] mediated settlement agreement and an affidavit of
relinquishment in a parental-rights termination case may be binding
between the parties, but it does not eliminate the Department’s
burden of proving by clear and convincing evidence under Section
161.001(2) that termination is in the child’s best interest or the trial
court’s power to deny termination in the absence of such proof.
Id. Later in the opinion, the K.D. court wrote more broadly: “In the absence of any
clear Legislative intent to the contrary, we find that Section 153.0071(e) does not
foreclose judicial review of the best-interest element of proof in a parental-rights
termination case brought by the Department.” Id. at 174. To us, the more specific
language controls, and the broader language of the sentence just quoted does
not expand the holding to mean that section 153.0071 does not apply whenever
the Department simply pleads for termination.
9
The full quote suggests, at first blush, that Morris is written more broadly
but in context is not:
[W]e conclude that section 153.0071(e) does not apply to suits for
termination of the parent-child relationship under Chapter 161 of the
Family Code and that a mediated settlement agreement [effectuating
a termination] therefore does not preclude a trial court from
determining under section 161.001(2) whether the plaintiff has
proved by clear and convincing evidence that termination would be
in the child’s best interest.
Id.
15
Both K.D. and Morris—which, we reiterate, involved settlements in which a
parent actually agreed to termination—focused specifically on the MSA’s effect on
the section 161.001(b)(2) best-interest finding that a court must make. Because
Father’s and Mother’s parental rights were not terminated, there is no section
161.001(b)(2) finding to review, nor did the trial court need to make such a finding.
To the extent K.D. suggests that its analysis applies even to termination
suits that do not actually result in termination, any such suggestion would be dicta.
Father’s and Mother’s reliance on Morris is distinguishable for the same reason:
Morris involved a suit to terminate parental rights that ended in a mediated
settlement agreement terminating the mother’s rights. 498 S.W.3d at 627. Any
language in Morris suggesting that its analysis applies even to termination suits
that do not result in termination is dicta as well. Contextually, both K.D. and Morris
appeared to have used the broader language precisely because their facts
involved termination suits that resulted in termination, meaning that section
161.001(b)(2) was necessarily implicated. In contrast, nothing in the settlement
agreement here implicated section 161.001, because no parental rights were
terminated.
At oral argument, Father and Mother argued that just as a criminal
defendant may back out of plea bargain and go to trial, so too should they have
the right to back out of their mediated settlement agreement and go to trial. But a
criminal defendant does not face a non-negotiable statutory dismissal deadline,
as the Department here did—July 26, 2017. See Tex. Fam. Code Ann.
16
§ 263.401 (providing that a Department case seeking termination or to have the
Department appointed conservator must be dismissed, if not tried, no later than
180 days after the suit’s one-year anniversary).10 If parents could unilaterally
revoke a mediated settlement agreement, they could play havoc with that
dismissal deadline. Additionally, and most importantly, children need
permanency and stability. See In re C.T., 491 S.W.3d 323, 328–29 (Tex. 2016)
(orig. proceeding). An irrevocable MSA lends itself to those goals; a revocable
MSA potentially undermines them. Ultimately, of course, this is an issue for the
legislature. For Father’s and Mother’s and for our purposes, the legislature has
spoken. This case was resolved under Chapter 153 and did not terminate the
parents’ rights; therefore, section 153.0071 applies.
We hold that the trial court did not err by applying section 153.0071(e). We
overrule Father’s and Mother’s first issue.
Father’s and Mother’s remaining issues are not ripe
Father’s and Mother’s remaining two issues attacking (1) the 48-month
limitation before they can move to modify and (2) the “emergency” exception are
10
Underscoring the time-sensitive nature of these kinds of cases, we are in
turn directed to do everything in our power to hand down a decision within
180 days from the date a notice of appeal is filed. Tex. R. Jud. Admin. 6.2(a).
The dissent correctly notes that the rule is not absolute, but we have not
exceeded 180 days a single time since 2015. Without elaboration, we also note
our disagreement with some of what is implied about timing issues concerning
the majority opinion. Finally, although the dissent does not mention or suggest it,
we invite the parties to move for rehearing so that everyone can at that point
receive what we know will be a thorough and deliberate dissent in this important
case.
17
not ripe. See Waco I.S.D. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000);
Patterson v. Planned Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439,
442 (Tex. 1998).
Ripeness and standing are subject-matter-jurisdiction components and
cannot be waived. Waco I.S.D., 22 S.W.3d at 851. Under the ripeness doctrine,
courts consider whether, at the time the plaintiff sues, the facts are sufficiently
developed “so that an injury has occurred or is likely to occur, rather than being
contingent or remote.” Id. at 851–52 (quoting Patterson, 971 S.W.2d at 442). The
ripeness analysis thus focuses on whether the case involves “uncertain or
contingent future events that may not occur as anticipated or may not occur at
all.” Id. at 852 (quoting Patterson, 971 S.W.2d at 442). By focusing on whether
the plaintiff has a concrete injury, the ripeness doctrine prevents premature
adjudications and serves the constitutional prohibition against advisory opinions.
Id. A case is not ripe if determining whether the plaintiff has a concrete injury
depends on (1) contingent or hypothetical facts or (2) events that have not yet
come to pass. Id.
In this case, neither Father nor Mother has filed a suit to modify
conservatorship. No trial court has ruled on Father’s and Mother’s contentions
that the 48-month provision and the “emergency” provision are invalid. Any
opinion we might give on the matter would be advisory in anticipation of such a
future motion to modify conservatorship. We may not give advisory opinions. See
Patterson, 971 S.W.2d at 443.
18
We overrule Father and Mother’s second and third issues.
Conclusion
Having overruled all of Father and Mother’s issues, we affirm the trial
court’s judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
WALKER, J., filed a dissenting opinion.
DELIVERED: December 18, 2017
19