dissenting.
The first point of error is that “there is no factual or legally sufficient clear and convincing evidence that appellant’s affidavit of relinquishment was executed voluntarily.” The second point of error is that “the great weight and preponderance of clear and convincing evidence shows that appellant executed her affidavit of relinquishment of parental rights as a result of undue influence.” The supreme court in Chambers v. Terrell, 639 S.W.2d 451, 452 (Tex.1982), expressed its disapproval of the lower court’s holding in that case that when the trial is before the court, there must be “clear and convincing evidence” for a “voluntary” termination. This is not a proper ruling, stated the supreme court, because “the trial court, sitting without a jury, did not use a lesser standard.” Id. Stated differently, in a bench trial termination proceedings, the trial court uses that standard. The same reasoning applies in the present case. This trial court, sitting without a jury, did not use a lesser standard than “clear and convincing evidence.” The majority opinion thus inappropriately gives credence to the above noted “no evidence” and “factually insufficient” evidence contentions, as well as a “great weight and preponderance” argument, and holds the clear and convincing evidence standard is not met by the State’s proof.
The majority premises its holding on this issue: whether the State presented factually and legally sufficient evidence that Dianna Neal voluntarily executed the affidavit of relinquishment of parental rights. That is not the proper standard because the affidavit of relinquishment of parental rights was irrevocable. It is clear that the only and real issue is whether the appellant sustained her burden to show the irrevocable affidavit of relinquishment was obtained as a result of undue influence. Under the facts of this case, that burden rested on appellant.
Section 15.02 of the Texas Family Code allows the court to grant a petition terminating the parent-child relationship when the parent is not the petitioner if the court finds: (1) the parent has ... (K) executed before or after the suit is filed an unre-voked or irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of the code. Section 15.03 requires that the court further find that the termination is in the best interest of the child. TEX.FAM.CODE ANN. §§ 15.02, 15.03 (Vernon Supp.1991). Those findings were made by this trial court.
The affidavit of relinquishment in the present case was irrevocable. Appellant does not contest on appeal the finding that termination is in the best interest of the child. Therefore, the appellant had the burden to show before the judgment of termination was signed that undue influence caused her to execute the irrevocable affidavit against her will.1 That was not done.
This irrevocable affidavit of relinquishment is similar to the irrevocable one in Brown v. McLennan County Children’s Protective Services, 627 S.W.2d 390, 392 (Tex.1982). The affidavit clearly sets out that the mother is relinquishing all parental rights, that she will not be further informed about the suit, and that this act is irrevocable. Id. Once a parent has surrendered custody of the child by this particular kind of affidavit of relinquishment, the affidavit may be set aside only by proof of fraud, misrepresentation, overreaching or the like. It was the intent of the Legislature to make such an irrevocable affidavit of relinquishment sufficient evidence on which the trial court can make a finding that termination is in the best interest of the children. See Brown, 627 S.W.2d at 394. The irrevocable affidavit of relinquishment and the petition of the Texas Department of Human Services can alone support a trial court’s judgment. In the *225present case, however, the mother was served with process and notified of the trial date. She failed to appear several times. Further, she failed to appear for a hearing on entry of judgment.
Unlike Brown, there is a statement of facts in this case, a scant 28 pages encompassing three hearings — the trial, the entry of judgment, and the motion for new trial.
Twice the trial court continued the trial on the merits, once on appellant’s motion, the second time on the court’s motion because appellant failed to appear. When the case was postponed once again, even then appellant failed to appear at the trial. Only her lawyer appeared. However, it was shown that appellant telephoned the lawyer occasionally during this time.
It was appellant’s burden at trial to show that the irrevocable affidavit was obtained by fraud, misrepresentation or overreaching or the like. Her attorney stated to the court that the parents (both having mental health problems and histories of treatment) appeared to be coherent when he saw them a week before they signed the affidavits of relinquishment. “Miss Neal contacted me by telephone late Friday afternoon, which was the 13th of October, informing me at that time that she wanted to terminate her parental rights voluntarily to the child.” He said he explained her rights to her. He said the two persons felt that even if they succeeded in a jury trial, it was to the best interest of the child [to voluntarily relinquish parental rights] because it was “questionable whether they would be able to provide for the child.” He said he talked with appellant on the phone and she indicated she did have the capacity to sign an affidavit of relinquishment and knew what the effect of one was. At the hearing he stated his only concern was any undue influence that the father might have exercised over his client. He stated he had tried to contact his client since the 13th but could not reach her. The trial court heard the case on October 26, 1989.
The only testimony at the trial concerning the affidavit of relinquishment came from the caseworker who obtained the affidavit on October 20th at appellant’s residence. She said she explained “I was not making them sign it.” They could sign there, or they could come to court and sign. The father wanted to sign immediately. The mother was ambivalent. Two witnesses accompanied the caseworker. She suggested appellant might call her attorney then. She said she asked that they appear in court for this trial. The father did not want to go to court; the mother did. But the mother did not want to come to court without the father. She was emotional and upset.
The appellant’s attorney stated that the reason he had the case reset was to give the appellant and father an opportunity to come to court to review the documents “so that I can explain the documents to them.” But the appellant failed to appear although given three opportunities to do so. The caseworker, on cross-examination, said appellant read the affidavit first “with the understanding that she was going to sign it but as she read it she was kind of nitpicking through it and bringing out issues.” The social worker said she kept offering to call the attorney for appellant if she had any doubts at all and offered for her to wait until today (the trial). The mother, she said, wanted to do that, but the father would not come to court. He said “I am not going,” and she didn’t want to come. Asked, “Do you feel [the father] may have exercised some influence over the decision about whether to sign,” the witness answered, “Yes, he did.” The witness then speculated, “I am not sure if she would have signed today or not. But I could tell he did exercise enough control over her and pressure to get her to sign that day rather than to wait to today for the reason he didn’t want to come to court.” The witness continued, “I am not really sure of this relationship. I am not sure of his dominance over her. I really cannot say. He did influence her to sign, yes, he did do that.” This is not evidence of “undue influence” as contemplated by the law. It is evidence of the father’s adamant refusal to “go to court,” and of appellant’s signing. This did not prevent her attendance at one of the three hearings subsequent to this time.
*226It is noteworthy that the mother again failed to come to court when the trial court conducted a hearing on a motion to enter judgment on January 26, 1990. The court commented that entering the judgment had been delayed also. “We have rescheduled this hearing on entry of the decree several times giving or trying to make every effort to bring these people here ...”
The question is whether appellant sustained the burden to prove there was “undue influence” exerted which caused her to sign the affidavit of relinquishment and further to prevent her fro attending one of the court hearings.
The appellant finally appeared at the motion for new trial on February 12,1990. Of course, the purpose of a hearing on a motion for new trial is not to present evidence which could have been presented at trial and before judgment was returned. The purpose is to demonstrate error at trial. Appellant’s counsel conceded at oral argument the effect of this rule. Therefore, any new “evidence” going to undue influence to which appellant testified then could have been presented at trial and cannot now be considered. She said the reason she wanted a new trial was because she felt she could take care of the child. She said she had been married (common-law) to the child’s father “for five or six years.” She said she signed the affidavit of relinquishment, “but I didn’t want to sign it.” She also said that the caseworker told her “there was no sense in even having a lawyer [present].” Further, she testified she asked the caseworker to leave. She did not recall that her doctor had talked with her shortly after that. She testified that the father and she had “fights” about their son. The father felt the mother should not have the child, but that “the child should go to him.”
Q Did he influence you in any way in signing the affidavit?
A He is a little jealous, yes. He told me to sign it.
When asked if the father had ever harmed her physically because she wanted to go to court and keep the child, she replied, “He doesn’t always. Sometimes he 'realizes what he is doing, sometimes he doesn’t.” One can conclude this is not an answer to the question, nor does it address undue influence to sign the affidavit; this is a statement that the father is physically abusive.
Q Did you feel at the time you signed the affidavit that [the father] might cause you physical harm at some point in time if you did not sign the affidavit?
A Most of the time I live like that. He would not hurt the children but I know he might hurt me.
Similarly, this is not an answer to the question, rather it repeats the acknowledgment that the father beats her on occasion. The only reason for not appearing in court the previous times, she said, was because of lack of transportation. Again, this was not because of undue influence.
Q Did you intend to sign the affidavit at the time that [the caseworker] went to you and presented it to you for signing?
A Human Services has taken good care of J. but I think I can take good care of J.
⅜ ⅛ * # ⅜ *
A I wanted to come to court.
Appellant never stated that the father unduly influenced her to sign the affidavit. She never stated she was prevented from coming to court by the father or anyone. In fact, her own attorney did not state that he attempted to bring her to court on the second or third trial settings and was prevented from doing so by the father. The late statements by appellant at the hearing on motion for new trial demonstrate only reluctance to come to court and ambivalence about signing the affidavit.
A review of all the record, even including the appellant’s own testimony at the motion for new trial, shows that the burden of proving “undue influence” was not sustained.
Therefore, I respectfully dissent.
. Undue Influence. For purpose of executing instruments, such [undue influence] exists when there was such dominion and control exercised over the mind of person executing such instruments, under facts and circumstancs then existing, as to overcome his free agency and free will and to substitute the will of another so as to cause him to do what he would not otherwise have done but for such dominion and control. Board of Regents of University of Texas v. Yarbrough, 470 S.W.2d 86, 92 (Tex.Civ.App.—Waco 1971, writ refd n.r.e.).