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Family Law Click here for the full text of this decision FACTS:Ricardo Duenas and Luz Sylvestre Inocencio signed sworn affidavits of voluntary relinquishment of their parental rights to 5-month-old twin boys. At the same time, they placed the boys in the care of Miles and Monica Montegut, a couple who wanted to adopt them. The boys have grown from infants to toddlers to pre-school age children in the Monteguts’ care. Duenas and Inocencio have been represented by counsel since the beginning of their quest to set the affidavits aside. After hearing evidence regarding the circumstances surrounding the affidavits’ execution and the boys’ best interests, the trial court ordered termination of Duenas’ and Inocencio’s parental rights. The court of appeals affirmed. Duenas argues that the affidavit he signed was procured in a manner that violated his right to due process because he neither speaks nor reads English, and the affidavit was not translated into Spanish. HOLDING:Affirmed. Duenas’ petition for review argues that”the order terminating [his] parental rights should be set aside since [his] signature on the affidavit of relinquishment was procured in a manner that violated [his] due process rights.” The court concludes that Duenas failed to preserve this issue in the trial court. His answer and counterpetition to the termination proceedings cite no constitutional authority, and he did not raise the issue in any post-judgment motion. In fact, the only reference to the constitution in the entire record appears when Duenas’ attorney, in arguing for a continuance, explained that she only recently had been hired after Duenas’ co-workers told him that the termination”was probably not constitutional and not right.” Duenas’ Revocation of Affidavit merely states that”[t]he Affidavit of Relinquishment was not translated for me.” The trial court obviously did not discern a due-process challenge in Duenas’ argument, because the court specifically found that”RICARDO DUENAS present [sic] issues of fraud, duress, and overreaching to the Court to deny that his Father’s Affidavit of Relinquishment of Parental Rights was signed voluntarily.” Duenas, who was represented by counsel, sought no finding and raised no legal argument before the trial court about a constitutional claim. Given that Duenas was afforded an extensive evidentiary hearing on the voluntariness of his affidavit, it was not apparent from the context that Duenas was attempting to raise a due-process challenge. Under the Rules of Appellate Procedure, a party must present to the trial court a timely request, motion or objection, state the specific grounds therefore and obtain a ruling. Allowing appellate review of unpreserved error would undermine the Legislature’s intent that cases terminating parental rights be expeditiously resolved, thus”"[p]romot[ing] the child’s interest in a final decision and thus placement in a safe and stable home.’ ” In re B.L.D. and B.R.D., __S.W.3d __ (quoting In re J.F.C., 96 S.W.3d 256, 304 (Tex. 2002)). This court and the U.S. Supreme Court have held that constitutional error was waived in comparable circumstances. See Webb v. Webb, 451 U.S. 493 (1981) and Texas Department of Protective and Regulatory Services. v. Sherry, 46 S.W.3d 857 (Tex. 2001). The due-process argument Duenas raises here was not preserved. Inocencio argues that an unenforceable promise fraudulently induced her to sign the affidavit of relinquishment. Her argument about the enforceability of that promise never was raised or ruled upon and is therefore waived. OPINION:O’Neill, J., delivered the court’s judgment, and the opinion of the court as to Parts I, II, and IVA, in which Enoch, Schneider, Smith, and Wainwright, JJ., joined, and an opinion as to Part III and IVB, in which Enoch, Schneider and Smith, JJ. joined. CONCURRENCE:Wainwright, J.”I write separately to express my concern about another issue in this case. At trial, Inocencio represented to the court that to set the relinquishment affidavit aside, she had the burden of proof by a preponderance of the evidence to show that it was executed as a result of coercion, duress, fraud, deception, undue influence, or overreaching. Some courts of appeals likewise have held that the parent who executed the relinquishment affidavit has the burden to prove by a preponderance of the evidence that it was not executed voluntarily in order to avoid the very serious consequences of its execution. See, e.g., In re D.R.L.M., 84 S.W.3d 281, 296-298 (Tex. App.-Fort Worth 2002, pet. denied); In re V.R.W., 41 S.W.3d 183, 193 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex. App.-El Paso 1990, no writ). “Justice Owen, applying a different approach, cites the requirement under the United States Constitution and the Texas Family Code that the ultimate burden of proof, based on clear and convincing evidence, remains with the party seeking to terminate the parental rights. She recognizes that, absent any other evidence, a trial court could base termination on a relinquishment affidavit. If the burden to disprove the affidavit at trial remains on the parents in this circumstance, as stated by Inocencio at trial, then the constitutional and statutory requirements would be violated. “I maintain that where a”voluntarily’ executed relinquishment affidavit is the sole ground for termination of parental rights under section 161.001(1) of the Family Code, placing the burden on the parents to set aside the affidavit may run afoul of constitutional and statutory mandates for the burden of proof and quantum of evidence necessary to terminate parental rights. This issue was not briefed, nor was it expressly decided in the courts below. “Inocencio’s appeal is unsuccessful under either approach. Accordingly, it is not necessary to decide this issue in this case.” CONCURRENCE AND DISSENT:Owen, J., joined by Phillips, C.J.; Hecht and Jefferson, JJ., joined in Part III.”I dissent from the judgment terminating Ricardo Duenas’ parental rights. Although I agree that Duenas did not raise a due process issue in the trial court, and therefore no due process complaint was preserved for appeal, Duenas’ underlying complaint is that there is no clear and convincing, legally sufficient evidence that the affidavit of relinquishment he signed was knowingly and thus voluntarily executed. An affidavit relinquishing parental rights is a waiver of a constitutionally protected,”fundamental liberty interest of natural parents in the care, custody, and management of their child.’ In that regard, it differs from affidavits commonly used in other civil proceedings, such as affidavits containing factual assertions in support of a motion or brief. As a waiver of a constitutionally protected interest, an affidavit of relinquishment must be a voluntary, knowing, and intelligent act. The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires that before a state can irrevocably sever the rights of a parent, the evidence of grounds for termination must at least be clear and convincing. Accordingly, when the basis for termination is an affidavit of relinquishment, there must be clear and convincing evidence that the waiver was knowing, intelligent, and voluntary. In this case, there is no clear and convincing, legally sufficient evidence that material parts of the affidavit Duenas signed were disclosed to him and thus that he in actuality swore to and agreed to be bound by the affidavit. “The affidavit that Duenas signed was entirely in English. No one disputes that Duenas, a Honduran citizen, was unable to read English. The evidence is accordingly confined to what was said to Duenas in English and Spanish about the affidavit. There is no evidence, however, that Duenas’ command of the spoken English language was such that he understood what was said to him in that language. The Court concludes that the trial court could have surmised that Duenas understood more English than he and others said he could. But a surmise is no evidence at all, much less clear and convincing evidence. The Court can point to nothing in the record other than speculation that Duenas was able to comprehend what was said to him in English when he was directed to sign the affidavit. “We are thus left to examine what was said to Duenas in Spanish. The evidence is undisputed that the affidavit of relinquishment was never read to Duenas in Spanish. The grandmother of the children made a short statement to him in Spanish about the purpose of the affidavit. That statement did not apprise him of material provisions of the affidavit. “Duenas’ complaint that his affidavit was not knowing and voluntary is a valid one and was preserved. I would therefore reverse the termination of his parental rights. With regard to the mother of the children, Luz Maria Inocencio, I join in this Court’s judgment terminating her parental rights, but I do not agree with the reasoning of Justice O’Neill’s concurring opinion.” [Footnotes omitted.] DISSENT: Hecht, J.; Jefferson, J., joins.”To miss the simple arguments these parents make, one would seemingly have to understand as little English as Ricardo does. Yet the Court takes an extremely restrictive view of Ricardo and Maria’s brief, reading it to raise only narrow issues that were not ruled on by the trial court. The termination of parental rights, fundamental and constitutional in their magnitude, is thus held to turn on trifling points regarding the construction of appellate briefs. It has long been”our practice to liberally construe [briefs] in order to obtain a just, fair and equitable adjudication of the rights of the litigants,’ and the rules mandate this practice. The Court does not follow the practice in this case, where the importance of the rights asserted make it all the more essential. It is fair to say that Ricardo did not make a due process argument to the trial court, but it is not fair to say that his brief, liberally read, makes no broader argument, or that a”just, fair and equitable adjudication’ of his parental rights can be made if the core complaint he has made since he was sued is ignored. The same is true for Maria. “To order that children be taken from their parents and given to others is a grave responsibility. To do it solely for technical reasons of appellate procedure, without regard for the parents’ arguments, is hard to justify. But to terminate parental rights as the Court does today, based solely on a rigid reading of a brief, is in my view indefensible. I would decide the case on the merits, not on procedure, and would reverse and remand to the trial court for further proceedings. . . . “The record contains no clear and convincing evidence I agree with Justice Owen for the reasons she explains that such evidence is required that Ricardo understood and swore to the statements required by section 161.103(b) of the Family Code for relinquishment of parental rights. To the contrary, the evidence is overwhelming that Ricardo has lost rights among the most precious guaranteed by law simply because he does not understand English. If Ricardo could read the Court’s opinion, he would no doubt be surprised (and dismayed) to learn that he is not entitled to a decision on the only claim he has ever made because his lawyer in the trial court phrased it differently than his lawyer on appeal. The one benefit of Ricardo’s inability to understand English is that he will not be able to read of the injustice that has been done to him. He should at least have a paraphrase of the Court’s opinion, however, just as his affidavit was paraphrased for him. I offer the following: “-Peligro! “Si usted no puede hablar Ingl�s, usted puede perder a sus ni�os.” [Footnotes omitted.]

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