In Re: E.S.S.

The Rule 11 agreement does not comply with the required findings for termination under the Texas Family Code. The relevant evidence on the record consists only of the appellant's statement that he is in prison for murder and his statement that he would relinquish his parental rights in exchange for naming his mother and brother possessory conservators.

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Click here for the full text of this decision FACTS:Gary Wayne Stanfield and his wife divorced in 1995. They had a child, E.S.S. Stanfield’s ex-wife remarried, to Gary Wayne Smith, and E.S.S. lived with them. Stanfield, meanwhile, was convicted of murder and is currently serving a life sentence in prison. The ex-wife and Smith filed a petition for involuntary termination of Stanfield’s parental rights, along with a request for Smith to adopt E.S.S. At the July 30, 2002, hearing, the parties announced they had reached an agreement: that Stanfield would relinquish his parental rights, provided that his mother and brother were named possessory conservators of the child and have visitation rights. The trial court questioned Stanfield, asking him to confirm that he was currently serving a life sentence, that he was still entitled to a jury trial on the termination issue, and that he was voluntarily terminating his rights to E.S.S. forever. Stanfield answered yes to all of the court’s questions. The trial court approved the agreement, but Stanfield did not sign an affidavit for voluntary relinquishment of parental rights. The trial court issued a final order on Feb. 6, 2003, terminating Stanfield’s rights and granting adoption rights to Smith. The order, however, contained provisions not included in the summertime agreement. The final order stated that the court had found by clear and convincing evidence that Stanfield “a. had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child; and b. knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed.” The order also stated that the court found it was in the best interest of the child to terminate Stanfield’s parental rights. Stanfield would not sign the order. Instead, he wrote a letter to the trial court to revoke his consent. Nonetheless, the trial court signed the order, and Stanfield now appeals. HOLDING:Reversed and remanded. The court reviews the high standard of proof necessary before a parent’s rights to his or her children can be terminated. The court also lists the several factors a trial court can consider when deciding what is in the best interest of the child. The court confirms that a parent can voluntarily relinquish his or her parental rights, but that there are certain statutory guidelines that must be followed. For instance, the parent has to file an unrevoked, or irrevocable, affidavit of relinquishment. The affidavit must be signed, witnessed by two credible people, and verified. The court agrees with Stanfield that nowhere is there a provision where an oral affidavit would suffice. The court adds that even if an oral affidavit was good enough, the statements Stanfield made in the July 30 hearing would not have been sufficient. Stanfield’s comments did not contain any of the following information required by Family Code �161.103(a): “1. the address and age of the parent whose parental rights are being relinquished; 2. the age, and birth date of the child; 3. the names and addresses of the guardians of the person and estate of the child, if any; 4. a statement that the affiant is or is not presently obligated by court order to make payments for the support of the child; 5. a full description and statement of value of all property owned or possessed by the child; 6. an allegation that termination of the parent-child relationship is in the best interest of the child; 7. (A) the name and address of the other parent; 8. a statement that the parent has been informed of parental rights and duties; 9. a statement that the relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time; 10. if the relinquishment is revocable, a statement in boldfaced type concerning the right of the parent signing the affidavit to revoke the relinquishment only if the revocation is made before the 11th day after the date the affidavit is executed; 11. if the relinquishment is revocable, the name and address of a person to whom the revocation is to be delivered.” The court also agrees with Stanfield that the trial court’s finding on the best interest of E.S.S. was factually and legally insufficient. The only evidence that Stanfield placed the child in danger (or with people who placed the child in danger) is that he is in prison for murder. The court points out that Texas Department of Human Services v. Boyd, 727 S.W.2d 531 (Tex. 1987), held that mere imprisonment does not, by itself, constitute engaging in conduct that endangers the emotional or physical well-being of a child. Thus, this sole piece of evidence does not support termination under the first ground listed by the trial court. The second ground, that of engaging in conduct that results in a prison term, is not supported by the evidence either, the court finds. In addition to the prison term, the trial court was also required to find that Stanfield could not care for E.S.S. No such finding was made, the court determines, and without such a finding, termination of parental rights would be additional punishment imposed along with imprisonment for almost any crime. Instead, there is some evidence to the contrary: that Stanfield would not agree to relinquish his rights unless his mother and brother would have some involvement in E.S.S.’s life. The ex-wife then had the burden to establish that the arrangement would not meet Stanfield’s own duty toward E.S.S., but she did not. Finally, the court rules that the agreement is unenforceable because it is an agreement in violation of public policy: “to 1. assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; 2. provide a safe, stable, and nonviolent environment for the child; and 3. encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.” OPINION:Holman, J.; Dauphinot, Holman and McCoy, JJ.

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