In the Interest of A.M.R., A Child--Appeal from 131st Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-02-00333-CV

Case Date: 12/18/2002

Plaintiff: JENNIFER MARIE MAYO

Defendant: THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

Preview:In the Interest of A.M.R., A Child--Appeal from 131st Judicial District Court of Bexar County
No. 04-02-00333-CV IN THE INTEREST OF A.M.R., From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2000-PA-01829 Honorable Pat Boone, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: December 18, 2002 AFFIRMED; MOTION TO WITHDRAW GRANTED Appellant appeals the trial court's April 16, 2002 judgment terminating her parent-child relationship with A.M.R. We affirm the judgment of the trial court. Background During court-ordered mediation, appellant signed an affidavit of relinquishment of her parental rights with regard to A.M.R. At trial, appellant's attorney offered the affidavit in evidence. Based on the affidavit, the trial court ordered appellant's parental rights to be terminated. Pursuant to section 263.405 of the Texas Family Code, appellant timely filed a motion for new trial and statement of appellate points, arguing that the evidence was insufficient to support the termination of her rights. Specifically, appellant maintains that her affidavit of relinquishment of parental rights was involuntary, because it was obtained "under, or by, fraud, duress, or coercion." After an evidentiary hearing, the trial court denied appellant's motion for new trial, found that she was not indigent, and determined that her appellate points were frivolous. Appellant then filed a timely notice of appeal, stating that she desires to appeal the trial court's judgment terminating her parental rights and that she brings this accelerated appeal pursuant to section 263.405 of the Texas Family Code. We have discretion to review, without briefs, the trial court's order denying the appellant's claim of indigence or the court's finding that the appeal is frivolous. See Tex. Fam. Code Ann. 263.405(a), (g) (Vernon 2002); Tex. R. App. P. 28.3. Thus, we review the trial court's findings under section 263.405 without briefs. Indigence We review the trial court's denial of appellant's claim of indigence under an abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.--San Antonio 2001, pet. denied). At the hearing on her claim of indigence, appellant testified that she lives in public housing and receives $108 per month in AFDC assistance and $248 per month in food stamps. Although appellant does not have a job, when asked if she believed that she was able to find work, she replied, "Oh, yes. I can." And, she testified that if she had a job, she believed that she would be able to handle child care: "Yes, I believe that there is help out there for child care. That's been offered to me." She further testified that she is able-bodied and that she has no physical impediment preventing her from working. At the conclusion of the hearing, the trial court found that appellant is not indigent because she is able to find and keep gainful employment. A party's claim of indigence will fail if that party is voluntarily unemployed. See In re Smith, 70

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S.W.3d 167, 169 (Tex. App.--San Antonio 2001, no pet.); Baughman v. Baughman, 65 S.W.3d 309, 316 (Tex. App.-Waco 2001, pet. denied). Having reviewed the record, we hold that the trial court did not abuse its discretion in denying appellant's claim of indigence. Frivolous Appellate Points We must next determine whether appellant's appeal is frivolous. Section 263.405(g) allows an appellant to appeal the trial court's finding that her appeal is frivolous under section 13.003(b) of the Texas Civil Practices and Remedies Code. See Tex. Fam. Code Ann. 263.405(d)(3), (g) (Vernon 2002). Section 13.003(b) provides that in determining whether an appeal is frivolous, "a judge may consider whether the appellant has presented a substantial question for appellate review." Tex. Civ. Prac. & Rem. Code Ann. 33.003(b) (Vernon 2002). "It is well established [] that a proceeding is 'frivolous' when it 'lacks an arguable basis either in law or in fact.'" De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio 1998, no pet.) (en banc) (citation omitted). We review a trial court's findings under section 13.003 for abuse of discretion. Id. At the hearing on her appellate points before the trial court, appellant argued that she did not voluntarily sign the affidavit relinquishing her parental rights. The proponent of the voluntary affidavit of relinquishment has the burden of establishing by clear and convincing evidence that the affidavit was executed according to the terms of section 161.103 of the Texas Family Code. In re D.R.L.M., 84 S.W.3d 281, 296 (Tex. App.--Fort Worth 2002, pet. denied); In re V.R.W., 41 S.W.3d 183, 190 (Tex. App.--Houston [14th Dist.] 2001, no pet.); Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.--Austin 2000, pet. denied). Evidence that an affidavit of voluntary relinquishment was signed, notarized, witnessed, and executed in compliance with section 161.103 is prima facie evidence of its validity. In re D.R.L.M., 84 S.W.3d at 296; In re V.R.W., 41 S.W.3d at 190. Once the proponent of the affidavit has met this burden, the affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of fraud, duress, or coercion. See Tex. Fam. Code Ann. 161.211(c) (Vernon 2002). In determining whether fraud existed in the execution of the affidavit, courts look to the circumstances surrounding its execution. In re D.R.L.M., 84 S.W.3d at 296; Vela, 17 S.W.3d at 762. Here, appellant, while at home, met with two women from the Texas Department of Protective and Regulatory Services ("TDPRS"). According to appellant, these two women told her that if she did not voluntarily agree to terminate her parental rights with respect to A.M.R., her four-month old son would also be removed from her home: Q: And regarding the conversation you had with the caseworker and the supervisor, were you informed that, should your rights be involuntarily terminated by a jury, there's a possibility your child would be removed - - your other son; isn't that correct? A: No. That's the first time they went in the house. They said that I had to sign because - - or else my son would be taken away. Appellant, however, did not sign the affidavit at her home in the company of these two women. She signed the affidavit days later, while at a court-ordered mediation and in the company of her attorney: Q: And in your testimony you have not made any claim against the mediator that she in any way pressured you. Is it fair to state to the court, then, that she did not place any pressure on you? A: The only thing I was told from her was that I needed to make the right decision for my daughter. That was the only thing I was told, and for me that was being pressured, even though it didn't sound like it, but for me I felt pressured.... Q: And at the time of signing this document, there were no caseworkers present in the room, were there? A: No. Q: In fact, the conversation that you had with the caseworkers that you say pressured you had occurred several days prior to the mediation.

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A: Will you repeat that again, please. Q: The conversation in - this alleged conversation that you had with the caseworkers that you claim pressured you had occurred several days, if not weeks, prior to our mediation date. A: Yes, ma'am. Q: And you had ample time to confer with your attorney prior to the mediation. A: Yes, ma'am. In fact, appellant testified that her attorney had explained to her that there was only a possibility that her four-month old son could be removed from her home: Q: Now, after the two individuals that you said came by to talk to you and told you that you could lose [your son] left, did you discuss that with your lawyer? A: Yes, I did. Q: And did she answer that to your satisfaction that you would not - or you could not lose your children without a court telling you that you would? A: No. Q: Are you telling me your lawyer lied to you? A: No, she did not lie to me, but she said that there was a possibility. Q: Okay. There was a possibility. And based on that possibility, you signed the relinquishment? A: Yes, sir. (emphasis added). According to appellant's own testimony, she did not sign the affidavit at the time the two TDPRS employees were allegedly pressuring her, but much later, after she had been fully advised by her attorney. Additionally, appellant testified that she did sign the affidavit of relinquishment, that her attorney fully advised her of all aspects of the relinquishment, that she signed the affidavit of relinquishment in the presence of two witnesses, that she was given a copy of the affidavit of relinquishment, that her attorney agreed to withhold the affidavit until the day of trial, and that her attorney did, in fact, withhold the affidavit until the day of trial. Moreover, appellant testified that she had previously relinquished her parental rights to five other children. Thus, appellant has had experience with this process. Therefore, under the facts presented here, we hold that the trial court did not abuse its discretion in determining that appellant failed to present a substantial question for appellate review. Motion to Withdraw Appellant's appointed attorney, Elizabeth A. Fisher, has filed a motion to withdraw as counsel for appellant. We have already determined that the trial court did not abuse its discretion in finding that appellant was not indigent. We, therefore, grant Elizabeth A. Fisher's motion to withdraw. Conclusion Because the trial court did not abuse its discretion, we affirm the judgment of the trial court. Karen Angelini, Justice Do not publish

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