in the Interest of G v. III and G v. Children ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00220-CV
IN THE INTEREST OF G.V., III
AND G.V., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-102780-16
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DISSENTING OPINION FROM ORDER DENYING
MOTHER AND FATHER’S MOTION FOR REHEARING EN BANC
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I. INTRODUCTION
I would grant Mother and Father’s motion for rehearing en banc. I would
hold that the binding mediated settlement agreement (MSA) reached in this case
pursuant to the provisions of family code section 153.0071 is not enforceable in
this termination suit brought by the Department of Family and Protective Services
under chapter 161 of the family code because Mother and Father revoked their
consent to the agreement before the trial court entered judgment on it. See Tex.
Fam. Code Ann. § 153.0071 (West Supp. 2017), §§ 161.001–.211 (West 2014 &
Supp. 2017). Because the majority opinion1 holds otherwise and because a
majority of this court has voted to deny Mother and Father’s motion for rehearing
en banc, I respectfully dissent.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Department initiated the present lawsuit on January 27, 2016, by filing
an “Original Petition for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent Child Relationship.” The Department
pleaded that it had taken possession of three-month-old Betty2 without a court
order in accordance with section 262.104 of the family code; requested that the
trial court issue emergency orders concerning two-year-old Andrew; requested
that the trial court immediately, without notice or an adversary hearing, appoint
the Department as temporary sole managing conservator of Betty and Andrew;
and sought termination of the parental rights of Mother and Father to Betty and
Andrew if family reunification could not be achieved. See id. § 262.104 (West
1
See In re G.V., No. 02-17-00220-CV, 2017 WL 6422132, at *8 (Tex.
App.—Fort Worth Dec. 18, 2017, no pet. h.) (mem. op.)
2
For ease of reading, I utilize the same aliases adopted by the majority
opinion. See G.V., 2017 WL 6422132, at *1–8; see also Tex. Fam. Code Ann.
§ 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8(b)(2).
2
Supp. 2017) (setting forth procedures for Department to take possession of a
child in an emergency without a court order).
The affidavit of removal supporting the Department’s petition explained
that Mother, who is employed by a public school, had received a call from Betty
and Andrew’s day care stating that Betty was not acting right; Betty had attended
that day care since she was six weeks old. Mother went to the day care, fed
Betty a bottle, and soothed her. Mother returned to work but later that day
received another call from the day care saying that Betty was not acting right.
Mother picked up Betty from the day care and took her to a hospital emergency
room based on the concerns expressed by the day care. At the emergency
room, doctors determined that Betty had suffered fractures to almost all of her
ribs; that the fractures were in various stages of healing; that Betty had
fingerprint-shaped bruises on her back, buttocks, and right temple; that her
clavicle was fractured and a knot was visible there; and that her femur had been
previously fractured. Doctors ruled Betty’s injuries as child abuse and called the
Department.
Father, who was a licensed vocational nurse employed by John Peter
Smith Hospital, and Mother both denied causing Betty’s injuries and denied that
Betty had the bruises or fracture to her clavicle when she was dropped off at day
care. Mother and Father have no criminal convictions, have no prior CPS
referrals, and have been married for thirteen years.
3
Doctors subsequently examined Andrew and determined that he had not
sustained any prior injuries. Throughout the case, the Department consistently
pleaded that the perpetrator of Betty’s injuries was unknown and that a criminal
investigation remained open.
The Department created a service plan for Mother and Father, and Mother
and Father began working their plans.
The Department, Mother, Father, the Joneses,3 and an intervenor named
Jane Doe mediated their claims and signed a “Binding Medi[]ated Settlement
Agreement.”4 In the MSA, the parties did not agree to termination of Mother’s
and Father’s parental rights but did agree to appoint the Joneses as the
children’s managing conservators; to appoint Mother, Father, and Jane Doe as
possessory conservators; to permit Mother and Father to have four hours of
visitation with the children every second and fourth Saturday from 9:00 a.m. to
noon; and to have Mother and Father’s visits supervised by the Smiths. The
MSA also called for Mother and Father to pay child support to the Joneses. The
MSA gave Jane Doe—on whom the record does not reflect that the Department
conducted any type of home study or fitness investigation—possession of the
children from 6:00 p.m. Friday to 6:00 p.m. Sunday every six weeks, for one
week in the summer, and from December 27 at noon until December 29 at noon.
3
The Joneses are relatives of Father.
4
A copy of this MSA with names redacted is attached to this opinion.
4
The MSA stated that there would be “no modification until after 48 months” and
separately stated that no modification is to be filed “unless emergency.” The
handwritten MSA was purportedly executed pursuant to section 153.0071 of the
family code. After signing the MSA, Mother and Father filed a written “Objection
to Binding Mediated Settlement Agreement” in which they revoked their consent
to the MSA.5
The Department moved to remain managing conservator of Betty and
Andrew and to extend the 180-day disposition deadline for its termination suit
because the Joneses needed additional time “to qualify for permanency care
assistance.”6 The trial court granted the extension.
About five months later, the Department filed a motion for judgment on the
MSA. Mother and Father filed a response to the Department’s motion for
Mother and Father’s written objection asserted that the MSA was not
5
enforceable and should be set aside “for the following reasons:”
(1). The MSA is not in the best interest of the children made subject
of this suit, and moreover, In Re: Stephanie Lee, 411 S.W.3d 445
(Tex. 2013), and Tex. Fam. Code Ann. § 153.0071(d), are not
controlling in this case; (2). The MSA is illegal because the ability to
seek a modification of the Permanent Managing Conservator is a
statutory right and is not waivable; (3). The MSA is void for
vagueness as the term “Emergency” as used therein is vague and
not defined; (4). The MSA was signed by Respondents while under
duress; and (5). The MSA is contrary to public policy.
6
In addition to this statement in its motion for extension, the Department
subsequently explained on the record, “The reason why we extended the case
was so that the [Joneses] who had possession of [Andrew] and [Betty] would be
licensed and be able to get foster connection benefits by being licensed for six
months before we close the case.”
5
judgment, alleging that the MSA was not enforceable because Mother and Father
had withdrawn their consent to the MSA, because MSAs are not enforceable in
termination suits, because the 48-month-no-modification provision in the MSA is
contrary to Mother and Father’s statutory rights and renders the MSA illegal and
contrary to public policy, and because Mother and Father had signed the MSA
under duress—the Department’s pending threat of termination of their parental
rights. Affidavits by Mother and Father were attached to their response; the
affidavits stated that Mother and Father did not believe the MSA was in the best
interest of Andrew or Betty; that at the mediation, Mother and Father were
threatened with termination of their parental rights if they did not sign the MSA;
and that Mother and Father “would never have entered into the MSA but for the
threat of termination.”
The trial court conducted a hearing on the Department’s motion for
judgment on the MSA. At the hearing, Mother and Father again argued that the
MSA was not enforceable, specifically asserting the same grounds they had
raised first in their written objection to the MSA and again in their response to the
Department’s motion for judgment on the MSA. The Department put on no
evidence at the hearing, moving for judgment based solely on the MSA’s
enforceability under family code section 153.0071. The trial court signed a
judgment enforcing all but a few provisions of the MSA.
Mother and Father then perfected this appeal.
6
III. SECTION 153.0071 MSAS ARE NOT BINDING––THAT IS, ARE REVOCABLE PRIOR
TO JUDGMENT––IN CHAPTER 161 TERMINATION SUITS
A. The Law
1. Concerning Chapter 153.0071 MSAs
The legislature has announced that the public policy of Texas with respect
to conservatorship, possession, and access to children under chapter 153 of the
family code is 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. See id. § 153.001(a) (West
2014). In furtherance of chapter 153’s stated policies of protecting children and
encouraging parents to share in the rights and duties of child-rearing, even after
they have divorced, the legislature enacted section 153.0071, providing for
binding MSAs. See id. § 153.0071; Lee, 411 S.W.3d at 454–55 (explaining the
legislature’s goal of protecting children is furthered by section 153.0071, which
incentivizes parents to work collaboratively for their children’s welfare). Under
section 153.0071, settlement agreements involving suits affecting the parent-
child relationship (SAPCRs) that comply with section 153.0071(d)’s provisions—
which require that the MSA contain a specific type of prominent notice that the
MSA is nonrevocable and that it be signed by the parties and the parties’
attorneys who attend the mediation—are immediately enforceable; are not
7
subject to repudiation by a party; and, with certain limited exceptions, are binding
on the trial court without approval or determination of whether the agreement’s
terms are just and right or in the child’s best interest. See Tex. Fam. Code Ann.
§ 153.0071(d); Lee, 411 S.W.3d at 454 (explaining that in enacting section
153.0071, the legislature merely recognized that parents themselves are able to
determine “what is best for their children within the context of [their] collaborative
effort to reach and properly execute an MSA”); Scruggs v. Linn, 443 S.W.3d 373,
378 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding trial court generally
does not have discretion to decline to render judgment on or deviate from MSA);
In re M.A.H., 365 S.W.3d 814, 819–20 (Tex. App.—Dallas 2012, no pet.)
(distinguishing MSAs satisfying elements of section 153.0071(d), which are not
subject to revocation of consent, from unmediated settlement agreements, which
are); see also In re S.A.D.S., 413 S.W.3d 434, 438–39 (Tex. App.—Fort Worth
2010, no pet.) (modifying trial court’s order and affirming order as modified
because, pursuant to family code section 153.0071(e), “the trial court had no
authority to enter an order that varied from the terms of the [MSA]”).
2. Concerning Suits for Termination of Parental Rights
A parent’s rights to his or her children involve a right more precious than
any mere property right. See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct.
2054, 2060 (2000) (recognizing that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents concerning the care,
custody, and control of their children); Zablocki v. Redhail, 434 U.S. 374, 384, 98
8
S. Ct. 673, 680 (1978) (recognizing that the right to bring up children is a central
part of the liberty protected by the Due Process Clause); In re E.R., 385 S.W.3d
552, 555 (Tex. 2012) (same). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” E.R., 385 S.W.3d at 554 (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).
Chapters 2627 and 2638 of the family code were enacted to provide this
requisite due process and fundamental fairness in termination suits brought by
the Department and to ensure speedy placement of a child in a permanent home
when the Department has been named temporary or permanent managing
conservator of a child. See Tex. Fam. Code Ann. §§ 262.001–.352, 263.001–
.608; In re K.D., 471 S.W.3d 147, 167–68 (Tex. App.––Texarkana 2015, no pet.)
(explaining that chapter 262 of the family code was enacted to provide due
process requisites in parental termination cases) (citing In re B.L.D., 113 S.W.3d
340, 353 (Tex. 2003), cert. denied, 541 U.S. 945 (2004)); In re A.J.K., 116
S.W.3d 165, 171 (Tex. App.––Houston [14th Dist.] 2003, no pet.) (stating that
7
Chapter 262 is titled “Procedures in Suit by Governmental Entity to
Protect Health and Safety of Child” and governs suits in which the Department
seeks termination of parental rights. See Tex. Fam. Code Ann. §§ 262.001–.352
(West 2014 & Supp. 2017).
Chapter 263 is titled “Review of Placement of Children Under Care of
8
Department of Family and Protective Services” and governs suits in which the
Department is named temporary or permanent managing conservator of a child.
See Tex. Fam. Code Ann. §§ 263.001–.608 (West 2014 & Supp. 2017).
9
“[t]he [l]egislature’s intent to further this goal [of a permanent home for a child in
Department custody] has been recognized as one of the express purposes
behind the enactment of [c]hapter 263”) (citing “Cynthia Bryant & Charles G.
Childress, Introductory Comment to Chapter 263, SAMPSON & TINDALL’S
TEXAS FAMILY CODE ANNOTATED at 950”). Due process and fundamental
fairness in termination suits are further served by application of a higher standard
of proof at trial—clear and convincing evidence. See Tex. Fam. Code Ann.
§§ 161.001(b), 161.206(a); In re A.B., 437 S.W.3d 498, 502 (Tex. 2014).
B. Analysis
Courts of appeals that have addressed the issue of whether family-code-
section-153.0071 MSAs—custody contracts—are enforceable in chapter-161-
termination-of-parental-rights suits have held that they are not, although in a
context different than the revocability-of-consent-prior-to-entry-of-judgment
context presented here. See In re Morris, 498 S.W.3d 624, 634 (Tex. App.—
Houston [14th Dist.] 2016, orig. proceeding [mand. denied]) (holding that “section
153.0071(e) does not apply to suits for termination of the parent-child relationship
under [c]hapter 161 of the [f]amily [c]ode”); K.D., 471 S.W.3d at 169 (holding that
“because [c]hapter 153 only involves suits for conservatorship, possession, and
access to children, then only cases for conservatorship, possession, and access
to children that are referred to mediation under [s]ection 153.0071(c) can
produce [an MSA] that forecloses the trial court’s best-interest review. Because
termination cases are governed by [c]hapter 161, [s]ection 153.0071(e) would not
10
apply to such cases”); see also generally Richardson v. Green, 677 S.W.2d 497,
500 (Tex. 1984) (recognizing a “significant distinction between a custody suit and
a termination action” because “‘[t]ermination does not merely end the right of the
parent to physical possession of the child, subject to modification; it is an action
with constitutional dimensions, terminating forever the natural right which exists
between parents and their children”); Martin v. Black, 909 S.W.2d 192, 195 (Tex.
App.—Houston [14th Dist.] 1995, writ denied) (explaining the contractual nature
of an MSA).
The majority distinguishes K.D. and Morris on the ground that the MSA
here, unlike the MSAs in K.D. and Morris, did not include an agreement to
terminate parental rights. Because the MSA here—and the judgment on the
MSA—addressed conservatorship issues, the majority holds that section
153.0071 and the Texas Supreme Court’s holding in Lee construing section
153.0071 applies.9 I cannot agree for the following reasons.
1. The Department’s Suit Filed Against
Mother and Father Is a Termination Suit
The Department obtained emergency removal of Betty and Andrew from
Mother’s and Father’s custody without a court order. See Tex. Fam. Code Ann.
§ 262.102. When the Department filed suit against Mother and Father, it sought
to be named temporary possessory conservator of Betty and Andrew and
9
See G.V., 2017 WL 6422132, at *5 (stating that “under Lee[,] the trial
court was required to enter judgment on the mediated settlement agreement—
and to do so essentially without any judicial oversight or review”).
11
pleaded for termination of Mother’s and Father’s parental rights if family
reunification was not possible. The Department’s suit pleaded seven statutory
grounds supporting the termination of Mother’s and Father’s parental rights and
pleaded that termination of Mother’s and Father’s parental rights was in Betty’s
and Andrew’s best interest. Consequently, this suit is a termination suit. See id.
§ 161.101 (providing that “[a] petition for the termination of the parent-child
relationship is sufficient without the necessity of specifying the underlying facts if
the petition alleges in the statutory language the ground for the termination and
that termination is in the best interest of the child”); see also In re N.R.T., 338
S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (holding Department’s
“Petition to Modify Parent-Child Relationship” sufficient to support termination of
parents’ rights because petition alleged statutory grounds for termination and
stated that termination was in the best interest of the children).
The fact that the MSA in this case did not include an agreement to
terminate Mother’s and Father’s parental rights but instead includes only an
agreement to restrict Mother’s and Father’s possessory rights to Betty and
Andrew to four hours every other Saturday for four years does not transform the
Department’s suit into something other than a termination suit; it just means that
the termination issue was resolved at mediation in Mother’s and Father’s favor.
Cf. A.J.K., 116 S.W.3d at 167–69 (holding section 263.405’s accelerated appeal
provision for termination suits applied even when the Department had
abandoned its request for termination yet remained a party). Thus, I would hold
12
that this appeal stems from a termination suit and falls within the parameters of
K.D.’s and Morris’s holdings that section 153.0071 binding MSAs are not binding
in termination suits.
2. Lee Does Not Apply
Lee involved parents who had previously been appointed joint managing
conservators of a child. 411 S.W.3d at 448. The father filed a motion to modify
the prior order, and ultimately, the parents entered into a section 153.0071 MSA.
Id. The mother filed a motion for judgment on the MSA, but the trial court refused
to enter such a judgment after hearing evidence and concluding that the MSA
was not in the child’s best interest. The supreme court ruled that––absent
evidence of the applicability of section 153.0071(e-1)’s narrow exception to
enforcement––the trial court was required to enter judgment on the MSA. The
supreme court explained:
[S]ection 153.0071(e) reflects the [l]egislature’s determination that it
is appropriate for parents to determine what is best for their children
within the context of the parents’ collaborative effort to reach and
properly execute an MSA. This makes sense not only because
parents are in a position to know what is best for their children, but
also because successful mediation of child-custody disputes,
conducted within statutory parameters, furthers a child’s best interest
by putting a halt to potentially lengthy and destructive custody
litigation.
Id. at 454. Thus, in Lee, the Texas Supreme Court outlined the legislature’s logic
in making section 153.0071 MSAs judicially enforceable by entry of a judgment:
first, such MSAs allow parents acting in their children’s best interest to
collaboratively determine what is best for their children; and second, judicial
13
enforcement of such MSAs promotes quicker resolution of lengthy custody
litigation, which is also in children’s best interests. Id. at 454–55 (explaining that
“section 153.0071(e) encourages parents to peaceably resolve their child-related
disputes through mediation” and that the lower courts’ failure to enforce the MSA
in Lee “erod[es] parents’ incentive to work collaboratively for their children’s
welfare”) (emphasis added); see also Justice Debra H. Lehrmann, Protecting our
Children, The Legacy of In re Lee, 80 Tex. B.J. 506, 506–07 (2017) (discussing
Lee’s application to “custody battles” between two “adequate parents”).
The logical reasons articulated by the supreme court as underlying its
holding in Lee—mandating entry of judgment on a section 153.0071 MSA
between parents—do not apply here. Unlike the MSA in Lee, Mother and
Father’s MSA does not resolve a custody suit between them as the parents of
Betty and Andrew; it resolves a termination suit instituted by the Department
against Mother and Father. Unlike the mother and father in Lee, Mother and
Father here were not collaboratively involved in negotiating an MSA dividing
between the two of them their possessory rights to their children in a manner
promoting the best interest of their children; Mother’s and Father’s affidavits state
that they entered into the MSA with the Department, the Joneses, and Jane Doe
to avoid termination of their parental rights to Betty and Andrew.10 And unlike the
10
Mother’s and Father’s affidavits filed in support of their response
opposing the Department’s motion for judgment on the MSA both state that
“[d]uring the October 3, 2016, mediation, I was threatened with the termination of
my parental rights if I did not sign the Mediated Settlement Agreement. . . . I
14
“custody battles” between “two adequate parents” addressed in Lee that are
more quickly and peaceably resolved by an MSA entered as a judgment, the
legislature has already set a statutory deadline for disposition of suits in which
the Department seeks to terminate parental rights or to retain conservatorship of
children. See Tex. Fam. Code Ann. § 263.401 (providing mandatory one-year
dismissal deadline, subject to one 180-day extension, in SAPCR brought by the
Department).
To me, it is clear that the Texas Supreme Court’s holding in Lee—requiring
the trial court to enforce the MSA entered into by Stephanie Lee’s mother and
father in Stephanie’s father’s suit to modify custody—does not control the present
facts.
3. Family Code Chapters 161, 262, and 263 Do Not Contain a Binding MSA
Provision, and Family Code Section 153.0071
Cannot be Construed to Apply to Those Chapters
Texas Family Code section 6.604(b) and section 153.0071(d) both contain
the exact same binding MSA provision. See Tex. Fam. Code Ann. § 6.604(b)
(West 2006), § 153.0071(d). Chapter 6 governs suits for dissolution of marriage
while chapter 153 governs suits for conservatorship, possession, and access to
children. Both sections provide, in identical language, that an MSA is binding on
the parties if the agreement (1) provides, in a prominently displayed statement
that it is in boldfaced type or capital letters or underlined, that the agreement is
would have never entered into the October 3, 2016 mediated settlement
agreement but for the threat of termination.”
15
not subject to revocation; (2) is signed by each party to the agreement; and (3) is
signed by the party’s attorney, if any, who is present at the time the agreement is
signed. See id. §§ 6.604(b), 153.0071(d); see also Milner v. Milner, 361 S.W.3d
615, 618 n.2 (Tex. 2012) (discussing MSAs under chapter 6 of the family code);
In re C.C.E., 530 S.W.3d 314, 320 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (discussing MSAs under family code section 153.0071). A party to a
statutorily-compliant MSA may not later revoke consent. Lee, 411 S.W.3d at
454; C.C.E., 530 S.W.3d at 320 (“If a party attends mediation and enters into a
mediated settlement agreement that complies with section 153.0071(d), the party
may not later revoke consent.”); Scruggs, 443 S.W.3d at 378; S.A.D.S., 413
S.W.3d at 438–39.
Thus, the legislature knows how to statutorily make certain settlements
binding and nonrevocable in suits for divorce (chapter 6) and custody suits
(chapter 153), yet it did not do so in suits to terminate a parent’s rights to his or
her child (chapter 161) or in the family code chapters setting forth procedures
applicable to suits by a governmental entity to protect the health, safety, and
welfare of a child (chapter 262) or to suits in which the Department is named
temporary or permanent managing conservator of a child (chapter 263). See,
e.g., In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 706 (Tex. 2015) (orig.
proceeding) (refusing to construe section 160.007(b) of the occupations code
concerning confidentiality of medical peer review records as placing an
evidentiary burden on the plaintiff because “[t]he [l]egislature knows how to
16
provide this type of gatekeeping function, and subsection (b) is devoid of any
language indicating intent to do so”). When the legislature expresses its intent
regarding a subject in one setting (in family code chapters 6 and 153), but, as
here, remains silent on that subject in another (in family code chapters 161, 262,
and 263), we generally abide by the rule that such silence is intentional. See
Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 n.4 (Tex. 2013).11 I would
hold that the legislature’s express inclusion of a binding mediated settlement
provision in both chapter 6 and chapter 153 of the family code—which govern
divorces and child custody, respectively—when reviewed in the context of its
failure to include such a provision in chapters 161, 262, and 263 was intentional
and should be respected.
This construction is further supported by the fact that the binding,
irrevocable nature of statutory MSAs under family code sections 6.604(b) and
11
Citing as support, among other cases, Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 859 (Tex. 2002) (“[T]he [l]egislature knows
how to clearly and unambiguously waive sovereign immunity from suit. . . . Here,
neither section 5.351 nor 5.352 clearly and unambiguously waives the [Texas
Natural Resource Conservation Commission]’s sovereign immunity from suit for
breach-of-contract claims.”); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d
352, 358 (Tex. 2001) (“The [l]egislature could have added similar language to
[s]ection 51.014(a)(3) and permitted appeals from orders refusing to decertify a
class, but did not.”); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
885 (Tex. 2000) (“Section 26.177(d) shows the [l]egislature knows how to provide
a right of appeal to persons affected by a water quality plan or government action
relating to a plan. Yet, the [l]egislature chose not to provide such a right to
persons affected by section 26.179 plans or [Texas Natural Resource
Conservation Commission] approval of plans.”).
17
153.0071(d) is contrary to the common law. While, as set forth above, statutorily-
compliant MSAs are generally binding when they are signed, at common law, a
party may revoke his or her consent to a settlement agreement at any time
before judgment is rendered on the agreement. See S & A Rest. Corp. v. Leal,
892 S.W.2d 855, 857 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654
S.W.2d 442, 444 (Tex. 1983); Samples Exterminators v. Samples, 640 S.W.2d
873, 874–75 (Tex. 1982). At common law, a judgment rendered after one of the
parties revokes his consent is void. Samples, 640 S.W.2d at 875. If a party
revokes his consent, the settlement agreement may still be enforceable but only
as a breach-of-contract action. See Tex. Civ. Prac. & Rem. Code Ann.
§ 154.071 (West 2011); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995)
(stating that “after proper notice and hearing,” a party may enforce a settlement
agreement complying with rule 11 as a binding contract “even though one side
no longer consents to the settlement”).
The legislature is certainly free to modify or abrogate common-law rules
via statutes, but we are to construe a statute as doing so “only when that was
what the [l]egislature clearly intended.” Abutahoun v. Dow Chem. Co., 463
S.W.3d 42, 51 (Tex. 2015) (quoting Energy Serv. Co. of Bowie v. Superior
Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007)). We are to decline to
construe statutes to deprive citizens of common-law rights unless the legislature
clearly expressed that intent. Id. (citing Satterfield v. Satterfield, 448 S.W.2d 456,
459 (Tex. 1969)). There is nothing in chapter 161 or chapter 262 indicating the
18
legislature intended to statutorily deprive a parent—sued by the Department for
termination of his or her parental rights—of his or her common-law right to revoke
his or her consent to a settlement agreement prior to the entry of judgment. See
Tex. Fam. Code Ann. §§ 161.001–. 211, 262.001–.608.
Additional statutory-construction analysis of section 153.0071 and its
applicability to termination suits was conducted by the Houston Fourteenth Court
of Appeals in Morris and by the Texarkana Court of Appeals in K.D. See Morris,
498 S.W.3d at 633–34 (recognizing that custody MSAs under section 153.0071,
although initially binding, may subsequently be modified while section 153.0071
MSAs utilized in termination suits present modification problems—similar to the
48-month-no-modification provision Mother and Father challenge in this appeal);
K.D., 471 S.W.3d at 172–74, n.17 (explaining that section 153.0071 MSAs are
not binding in termination suits in part because family code chapters 153 and 161
are not in pari materia, that is, they do not share a common purpose and are not
intended to be construed together). Without belaboring the statutory-construction
analysis conducted by these courts, I would adopt it, along with the statutory-
construction analysis set forth above, to hold that section 153.0071 MSAs are not
binding—that is, enforceable by a judgment after revocation of consent by a party
to the MSA—in termination suits.12
12
The absurdity of construing section 153.0071 MSAs as irrevocable at the
time of signing in termination suits would be more amply demonstrated if it were
the Department seeking to revoke its consent prior to judgment and Mother and
Father or even Jane Doe moving for judgment on the MSA.
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IV. MOTHER AND FATHER’S REMAINING POINTS ARE RIPE
The majority opinion holds that Mother and Father’s remaining two
issues—attacking the MSA’s provisions imposing a 48-month limitation on the
filing of any motions to modify absent some undefined “emergency”—are not
ripe. See G.V., 2017 WL 6422132, at *7–8. I respectfully cannot agree.
Mother and Father contend in their remaining two issues, as they did in the
trial court, that the entire MSA is unenforceable because it is void as against
public policy.13 A contention that an entire MSA is void as against public policy is
ripe in an appeal from the judgment on the MSA. See, e.g., Philadelphia Indem.
Ins. Co. v. White, 490 S.W.3d 468, 490–91 (Tex. 2016) (recognizing that when
agreement cannot be performed without violating public policy, it is per se void);
C.C.E., 530 S.W.3d at 320 (addressing issue of whether certain provision in MSA
made the entire MSA unenforceable). Thus, I would address the merits of
Mother and Father’s remaining two issues.
V. CONCLUSION
I would grant Mother and Father’s motion for rehearing en banc. For the
above reasons, I would hold that section 153.0071’s MSA provisions cannot be
enforced as binding in a chapter 161 termination suit when a party revokes
consent prior to judgment on the MSA and that here Mother and Father revoked
13
Mother and Father asserted this argument three times in the trial court:
once in their filed, written objections to the MSA; once in their response to the
Department’s motion to enforce the MSA; and again at the hearing before the
trial court on the Department’s motion to enforce the MSA.
20
their consent to the MSA in this termination suit before judgment was entered on
the MSA. Of course, if no party to a section 153.0071 MSA revokes consent to it
prior to judgment, then judgment may be entered on the MSA just as on any
other agreed-to settlement.14 I would also hold that Mother and Father’s
remaining issues are ripe, and I would address them on the merits. Because a
majority of the court holds otherwise, I respectfully dissent.
/s/ Sue Walker
SUE WALKER
JUSTICE
DELIVERED: January 25, 2018
14
See, e.g., In re A.C., No. 05-16-01531-CV, 2017 WL 1684649, *4–5,
(Tex. App.––Dallas May 2, 2017, no pet.) (mem. op.) (enforcing MSA terminating
mother’s parental rights when not objected to prior to judgment); In re J.R.W.,
No. 05-15-00493-CV, 2015 WL 5050169, at *3 (Tex. App.––Dallas Aug. 27,
2015, pet. denied) (mem. op.) (same).
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APPENDIX
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