Termination of Parental Rights and an MSA in Texas

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Houston Family Lawyer: A while back, a friend and fellow attorney had asked me some questions regarding terminating parental rights on a father. My friend’s potential client, the father, had a one-night stand that resulted in a pregnancy. The mother was planning on going forward and having the child. The father was not interested in being a father and the mother was not interested in his being the father.

We discussed that the prevailing wisdom among many Texas family law attorneys is that generally it is not easy to terminate the parental rights of a father unless someone else is interested in stepping up to take on that role.

Recently my friend revisited the topic with me as the birth of the child was approaching and the sentiment of both the mother and the father had not changed. In our discussion, the topic was brought up on whether agreeing to relinquish parental rights in a mediated settlement agreement (MSA) would make a difference. In today’s blog, we will explore the answer to that question.

IN RE STEPHANIE LEE

Divorce Lawyer Houston: In a recent blog, we discussed how in divorces, most circumstances-mediated settlement agreements cannot be altered by judges as a result of a Houston case In re Stephanie Lee. Ultimately in that case, the Supreme Court of Texas was called on to decide whether or not the agreement was valid.

The Texas Supreme Court’s Decision

The Texas Supreme Court was in a position to make a decision on essentially which is more important:

a judge’s ability to protect what he or she believes is the best interests of the child whom their court has jurisdiction over, or
the widely-held belief that once parties entered into a mediated settlement agreement, no party and the court itself should not be able to interfere with the agreement absent those two conditions outlined earlier in this blog post.
Bottom line for the parties involved with this case was that their mediated settlement agreement was valid and the Trial Court was ordered to abide by the decision of the parties and sign off on the order that was drafted based on that settlement agreement.

As a result of In re Stephanie Lee, mediated settlement agreements were strengthened when it came to divorces and child custody decisions.

What about an MSA when it comes to Termination of Parental Rights?

Divorce Lawyer Houston: My friend and I discussed the question of, in light of “In re Stephanie Lee," does a judge have the discretion to not approve a termination when agreed to in a MSA?

On its face, the answer would appear to be no, but we would need to do further research. One thing we discussed was that the court my friend’s case landed in would make a difference. I told him I knew of at least one judge who had granted a divorce based on an MSA and then reopened the case on his own motion.

Texas Family Lawyers Discussion on Facebook

My friend posed his question to a Texas Family Lawyers group that we are both members of on Facebook.

Most of the family law attorneys on that group that responded to his discussion rehashed much of what my friend and I had already discussed regarding the prevailing wisdom based on the Texas Family Code and missed the point of the MSA.

However, when I chimed in and clarified my friend’s question, we got a potentially useful response from a former judge in Harris County. She mentioned that we should take a look at the case “498 S.W.3d 624, 626 (Tex. App. 2016).”

IN RE MORRIS
In this case, a father asked the court to terminate the rights of the mother. This termination of the mother’s rights was agreed upon in a mediated settlement agreement.

The 309th District Court, Harris County, refused to render judgment on the mediated settlement agreement (An interesting piece of trivia is that the 309TH is the same court that In re Stephanie Lee originated).

309TH Trial Court’s Decision

Houston Divorce: The Court having reviewed the pleadings and the statutory requirements under:

Texas Family Section 153.0071(d), and
Texas Family Code Section 161
found that the statutory requirements for parental termination had not been met by the Mediated Settlement Agreement and denied the entry of the Mediated Settlement Agreement.

The court further found that granting an order based on the Mediated Settlement Agreement would serve to circumvent well-established, mandatory procedures and rules, and interfered with the court’s obligation to comply with the mandatory provisions of said statutes.

The father filed petition for writ of mandamus, seeking to compel the district court to vacate its order denying rendition of judgment in accordance with the mediated settlement agreement.

The Decision of the Court of Appeals of Texas, Houston (14th District)

Houston Family Lawyers: The Houston Court of Appeals acknowledged that this was the first time it had addressed the issue of termination of parental rights based on an MSA and whether an MSA precludes a trial court from refusing to render judgment based on the plaintiff's failure to prove by clear and convincing evidence that termination would be in the child's best interest.

The court concluded that:

a mediated settlement agreement does not preclude the trial court from making a best-interest determination under section 161.001(2) of the Texas Family Code and
that the relator has not shown the trial court clearly abused its discretion.
As such, the Court denied mandamus relief.

Texas Family Code. Section 161.001(1)

This section of the family code provides that a trial court may terminate the parent-child relationship if the court finds by clear and convincing evidence that:

the parent has executed “an unrevoked or irrevocable affidavit of relinquishment of parental rights and
termination is in the best interest of the child.”
In Re A.L.H.,468 S.W.3d 738, 741–42 (Tex.App.–Houston [14th Dist.] 2015

In the case In Re A.L.H, the court:

Houston Family Law Attorney: recognized that an affidavit of relinquishment suffices as evidence on which the trial court may make a finding that termination of the relinquishing parent's rights is in the child's best interest. But

the court has not held that an affidavit of relinquishment requires the trial court to find that terminating the parent-child relationship would be in the child's best interest or that an affidavit of relinquishment by itself proves that fact as a matter of law.
More Evidence is Needed

In the case In re Morris, the court went on to say what additional evidence could have been provided to the trial court to demonstrate that termination was in the best interest of the child:

Additional facts in the Affidavit
Testimony from the father
Testimony that the mother had executed an unrevoked affidavit as provided by Texas Family Code 161
Texas Family Code 153.0071(e) and In re Stephanie Lee

The Court in In re Morris discussed that the supreme court in Lee did not address whether:

section 153.0071(e) applies to a suit to terminate a parent-child relationship brought under Chapter 161 or
whether a mediated settlement agreement in a termination suit relieves the plaintiff of the burden of proving by clear and convincing evidence that termination would be in the child's best interest, as required by section 161.001(2).
No Texas court appears to have answered these questions.

The court went on to further discuss that conservatorship is different from termination ... Continue Reading