in Re Barre Morris ( 2016 )

Petition for Writ of Mandamus Denied and Opinion filed June 22, 2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00227-CV
IN RE BARRE MORRIS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
309th District Court
Harris County, Texas
Trial Court Cause No. 2015-01835
OPINION
This mandamus proceeding stems from a family court’s refusal to render
judgment on a mediated settlement agreement between two parents who agreed to
rendition of an order terminating the mother’s parent-child relationship. We address
as an issue of first impression whether such an agreement 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
relator, the adjudicated father of the child, asks this court to compel the Honorable
Sheri Y. Dean, presiding judge of the 309th District Court of Harris County, to (1)
vacate her order denying rendition of judgment in accordance with a mediated
settlement agreement in which the child’s parents agreed to an order terminating the
parent-child relationship between the child and the child’s mother, Victoria
Barrientes-O’Neil, and (2) render judgment in accordance with the mediated
settlement agreement. Concluding 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, we deny mandamus relief.
I. BACKGROUND
In an original custody order signed at the end of 2004, the trial court named
the relator and the child’s mother joint managing conservators of the child. A decade
later, the child’s mother signed a document entitled “Mother’s Affidavit of Voluntary
Relinquishment of Parental Rights.” In the affidavit, the mother states that
termination of the parent-child relationship is in the child’s best interest, but she
provides no facts to support that conclusion. In the affidavit, the mother waives her
right to service of citation and all other process in any suit to terminate her parental
rights to the child, but the affidavit does not contain any express statement that the
mother relinquishes or waives her parental rights.
In January 2015, the relator filed an “Original Petition to Terminate Parent-
Child Relationship,” in which the relator sought an order terminating the parent-
2
child relationship between the mother and the child.1 The only ground on which the
relator sought this relief was that the mother had executed an unrevoked or
irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161
of the Texas Family Code and that termination of the parent-child relationship would
be in the child’s best interest. See Tex. Family Code Ann. § 161.001(1)(K),(2) (West
Supp. 2015). The mother’s affidavit is attached as an exhibit to the petition.
In April 2015, the two parents attended mediation with their attorneys, and all
signed a Mediated Settlement Agreement, which states that “the terms of settlement
are to enter the order of termination as attached as Exhibit A.” The proposed order
attached as Exhibit A provides that “the parental-child relationship between [the
mother] and the child the subject of this suit is terminated.” Neither in the Mediated
Settlement Agreement nor in the attached proposed order does the mother agree that
the termination of her parental rights is in the best interest of the child.
The relator filed the Mediated Settlement Agreement with the trial court. He
then appeared at a hearing to prove the terms of the Mediated Settlement Agreement
and requested the trial court to render judgment on the Mediated Settlement
Agreement. 2 The only evidence offered at the hearing was testimony by the relator
as to (1) the relator’s name, (2) the child’s name, (3) the mother’s name, (4) the
execution of the Mediated Settlement Agreement by the relator and the mother, and
1
The case was originally assigned to the 247th Judicial District Court but was transferred
to the 309th Judicial District Court.
2
In his arguments, the relator seeks to have the trial court “enter judgment” on the Mediated
Settlement Agreement. Trial courts render judgments; clerks enter them. Burrell v. Cornelius,
570 S.W.2d 382, 384 (Tex. 1978). Therefore, we understand relator to be arguing that the trial
court should render judgment on the Mediated Settlement Agreement rather than enter such a
judgment. See id.
3
(5) the relator’s request that the trial court enforce the Mediated Settlement
Agreement. At the relator’s request, the trial court took judicial notice of the
Mediated Settlement Agreement. The relator offered no testimony that termination
of the mother’s parent-child relationship would be in the child’s best interest. The
trial court took the matter under advisement.
The trial court signed an order denying rendition of judgment on the Mediated
Settlement Agreement. In the order the trial court explains the basis of its ruling as
follows:
The Court having reviewed the pleadings and the statutory
requirements under § 153.0071(d only), and Chapter 161 of the Texas
Family Code, finds that the statutory requirements for parental
termination have not been met by the Mediated Settlement Agreement
and thus the Court Denies the entry of the Mediated Settlement
Agreement. The Court further finds that granting an order based on the
Mediated Settlement Agreement and the parties[’] agreement will serve
to circumvent well established, mandatory procedures and rules, and
interferes with this Court’s obligation to comply with the mandatory
provisions of said statutes.
The relator filed a petition for writ of mandamus in this court. See Tex. Gov’t
Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, the
relator asks this court to compel the presiding judge of the 309th District Court to
vacate her order denying rendition of judgment in accordance with the Mediated
Settlement Agreement in which the parties agreed to an order terminating the parent-
child relationship between the child and his mother, and render judgment in
accordance with the Mediated Settlement Agreement.
4
II. MANDAMUS STANDARD
To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that the relator has no adequate remedy by
appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to analyze the law correctly or apply the law correctly to the facts. In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). With respect to resolving factual issues or matters
committed to the trial court’s discretion, we may not substitute our judgment for that
of the trial court unless the relator establishes that the trial court reasonably could
have reached only one decision and that the trial court’s decision is arbitrary and
unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). In
other words, we give deference to a trial court’s factual determinations that are
supported by evidence, but we review the trial court’s legal determinations de novo.
In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
III. ANALYSIS
The relator argues that the trial court clearly abused its discretion by not
rendering judgment terminating the parent-child relationship between the mother
and the child in accordance with the Mediated Settlement Agreement.
5
A. On this record, the trial court reasonably could have found that the
relator failed to meet the requirements of Family Code section
161.001.
In its order, the trial court found that the Mediated Settlement Agreement did
not meet the statutory requirements for termination of the parent-child relationship
under Chapter 161 of the Texas Family Code. Section 161.001(1) provides in
relevant part that a trial court may terminate the parent-child relationship if the court
finds by clear and convincing evidence that (i) the parent has executed “an
unrevoked or irrevocable affidavit of relinquishment of parental rights as provided
by this [C]hapter,” and (ii) “termination is in the best interest of the child.” Tex.
Fam. Code Ann. § 161.001(1)(K); id. § 161.001(2) (emphasis added). Thus, for the
court to terminate the mother-child relationship, the statute’s plain language requires
both an affidavit of relinquishment and clear and convincing evidence that
termination is in the child’s best interest. “This provision requires proof of both
elements; the proof of the first does not excuse proof of the second.” Byrne v.
Catholic Charities, Diocese of San Angelo, Inc., 710 S.W.2d 780, 782 (Tex. App.—
Austin 1986, no writ) (interpreting Tex. Fam. Code Ann. § 15.02, the identically
worded predecessor to § 161.001). The signing of an affidavit of relinquishment does
not affect the requirement that the trial court must find that termination is in the
child’s best interest. Terrell v. Chambers, 630 S.W.2d 800, 803 (Tex. App.—Tyler
1982), writ ref’d n.r.e., 639 S.W.2d 451 (Tex. 1982).
This court has 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. See In the Interest of
A.L.H., 468 S.W.3d 738, 741–42 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
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In re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
But, this 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.
To show an abuse of discretion, the relator must establish that the trial court
reasonably could have reached only one decision and not the decision the trial court
made. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The only evidence
upon which the relator relied is the Mediated Settlement Agreement, in which the
mother agreed to a court order stating that she had executed an unrevoked or
irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161
of the Texas Family Code. The affidavit is attached to the relator’s petition and
contains only the mother’s bare statement that termination of the parent-child
relationship is in the child’s best interest; it provides no facts to support that
conclusion. The Mediated Settlement Agreement is merely an agreement by the
parties for the court to sign an order that terminates the relationship between the
mother and the child. The relator did not testify that termination of the mother-child
relationship would be in the best interest of the child or to any facts that would
support that conclusion under the Holley factors.3 Except for proving up the
3
Texas courts typically utilize the so-called Holley factors in cases requiring a best-interest
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include (1) the
desires of the child; (2) the emotional and physical needs of the child now and in the future; (3)
the emotional and physical danger to the child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available to assist these individuals to promote
the best interest of the child; (6) the plans for the child by these individuals or the agency seeking
custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is not a proper one; and (9) any
7
Mediated Settlement Agreement, the relator did not testify as to any grounds for
termination stated in section 161.001(1).
The relator did not attempt to prove by clear and convincing evidence that
the mother had executed an unrevoked or irrevocable affidavit of relinquishment of
parental rights as provided by Chapter 161 of the Texas Family Code and that
termination of the parent-child relationship between the mother and the child would
be in the child’s best interest. See Tex. Family Code Ann. § 161.001(1)(K),(2).
Rather, the relator sought an order terminating the mother’s parental rights based
only upon the Mediated Settlement Agreement. We conclude that with this bare
record, the trial court reasonably could have determined that the relator did not carry
his burden under section 161.001(2) to prove by clear and convincing evidence that
termination of the mother-child relationship would be in the child’s best interest.
The trial court had discretion to require the relator to offer additional evidence to
meet the clear-and-convincing-evidence standard. Thus, the relator has not
established that the trial court clearly abused its discretion in finding that the parties
failed to meet Chapter 161’s requirements.
B. Family Code section 153.0071(e) does not apply to suits to terminate a
parent-child relationship under Chapter 161 of the Family Code.
We also consider whether section 153.0071(e) of the Family Code required
the trial court to render judgment terminating the parent-child relationship in
accordance with the Mediated Settlement Agreement. Section 153.0071(e) provides
that if a mediated settlement agreement meets the requirements of subsection (d), a
excuse for the acts or omissions of the parent. Id.; In re S.A.H., 420 S.W.3d 911, 926 (Tex. App.—
Houston [14th Dist.] 2014, no pet.).
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party is entitled to judgment on the mediated settlement agreement. Tex. Fam. Code
Ann. § 153.0071(e) (West Supp. 2015). In In re Lee, the Supreme Court of Texas
held that the specific provisions of section 153.0071(e) prevailed over the general
best-interest standard in section 153.002 and that section 153.0071(e) prohibits a
trial court from denying a motion to render judgment on a properly executed
Mediated Settlement Agreement based on a broad best-interest inquiry. See 411
S.W.3d 445, 453–58 (Tex. 2013). But, Lee involved a Mediated Settlement
Agreement in a suit to modify a child-conservatorship order under Chapter 153, not
a suit to terminate a parent-child relationship under Chapter 161 of the Family Code.
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.
1. Applying section 153.0071(e) to termination of parental rights would render
portions of section 161.001 meaningless.
The statutes governing termination of parental rights and the statutes relating
to conservatorship differ in significant ways. One big difference is that section
161.001 4 provides that a court may order termination of parental rights only upon
finding that a circumstance listed in subsection one has been satisfied and that the
4
Although section 161.001 is entitled “Involuntary Termination of Parent-Child
Relationship,” the text of section 161.001 indicates it applies to all terminations. See Tex. Fam.
Code § 161.001; In re A.G.C., 279 S.W.3d 441, 445-46 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).
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termination is in the child’s best interest. See Tex. Fam. Code Ann. § 161.001. As
a general principle, we eschew constructions of a statute that render any part of the
statute meaningless or superfluous. City of Dallas v. TCI West End, Inc., 463 S.W.3d
53, 57 (Tex. 2015). If provisions of a single statute appear to conflict, we try to
harmonize them to effectuate both by assigning each a meaning that will permit both
to stand. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Texas
Dept. of Pub. Safety v. J.H.J., 274 S.W.3d 803, 808 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). We are not to assign a meaning to one statutory provision that
would be inconsistent with other provisions of the same act even if the provision,
standing alone, might be susceptible to such a construction. See Helena Chem. Co.,
47 S.W.3d at 493; Texas Dept. of Pub. Safety, 274 S.W.3d at 808.
The Mediated Settlement Agreement states that “the terms of settlement are
to enter the order of termination as attached as Exhibit A.” Rendering orders, of
course, is the office of courts, not contracting parties. See Burrell v. Cornelius, 570
S.W.2d 382, 384 (Tex. 1978). But, contracting parties may agree to submit a
proposed order to a court and request the court to sign the proposed order, and we
interpret the parties’ Mediated Settlement Agreement to mean that the two parents
agree to submit to the court for rendition the proposed order of termination attached
as Exhibit A to the Mediated Settlement Agreement.
The proposed order attached as Exhibit A provides that the parent-child
relationship between the mother and the child is terminated. The mother’s
“Affidavit for Voluntary Relinquishment of Parental Rights” states, “I understand
that I make this termination possible by executing this affidavit.” Thus, the affidavit,
like the Mediated Settlement Agreement, reflects the mother’s consent to the
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termination. That is not enough under section 161.001, which requires clear and
convincing evidence of both an affidavit of relinquishment and that termination
would be in the child’s best interest. Tex. Fam. Code Ann. § 161.001(1)(K) (West
Supp. 2015); id. § 161.001(2). Because there is no meaningful difference between
the Mediated Settlement Agreement and the affidavit of relinquishment, interpreting
section 153.0071(e) to require termination solely because of the mother’s consent in
the Mediated Settlement Agreement would put section 153.0071(e) into conflict
with section 161.001, which additionally requires a finding by the court based on
clear and convincing evidence that termination would be in the child’s best interest.
This interpretation also would render subsection (b) of section 161.001 (which
requires this finding) meaningless as applied to this case. We can harmonize these
statutes by interpreting section 153.0071(e) not to apply to suits for termination
under Chapter 161. No language in section 153.0071(e) precludes this
interpretation.
2. Section 153.0071(e) does not contain language indicating broad application
to all suits affecting the parent-child relationship.
The Texarkana Court of Appeals addressed this issue of interpretation in In
the Interest of K.D., 471 S.W.3d 147 (Tex. App.—Texarkana 2015, no pet.), a case
in which the Department of Family and Protective Services brought suit to terminate
the mother’s parental rights under Chapter 161, and the trial court rendered judgment
terminating the relationship in accordance with a mediated settlement agreement.
See id. The court of appeals concluded that the Texas Legislature did not intend for
section 153.0071(e) to apply to parental-termination suits under Chapter 161 and
that the court therefore was not bound by section 153.0071(e) and the mediated
settlement agreement to find that termination of the mother’s parental rights would
11
be in the child’s best interest; the Department still was required to prove by clear and
convincing evidence that termination was in the child’s best interest. Id. at 171–74.
The K.D. court reached this conclusion based on the “suit affecting the parent-
child relationship” language that appears in subsection (c) but that does not appear
in subsection (e) of 153.0071. Explaining the significance of these differences in
statutory text, the K.D. court stated:
Section 153.0071(c) states, “On the written agreement of the parties or
on the court's own motion, the court may refer a suit affecting the
parent-child relationship to mediation.” TEX. FAM. CODE ANN. §
153.0071(c) (West 2014). By contrast, Section 153.0071(e) states, “If
a mediated settlement agreement meets the requirements of Subsection
(d), a party is entitled to judgment on the mediated settlement
agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law.” TEX. FAM. CODE ANN. § 153.0071(e). Thus,
Section 153.0071(c) identifies those cases that may be submitted to
mediation. From that subset of cases properly submitted to mediation
and in which a mediated settlement agreement results, Section
153.0071(e), in turn, identifies those cases in which the trial court’s
duty to conduct a best-interest review is eliminated, indeed, in which
the trial court’s ability to conduct such a review is foreclosed.
Noticeably absent from subsection (e)—which is present in
subsection (c)—is the language “suit affecting the parent-child
relationship.” Section 101.032 defines a “suit affecting the parent-
child relationship” as “a suit filed as provided by this title in which the
appointment of a managing conservator or a possessory conservator,
access to or support of a child, or establishment or termination of the
parent-child relationship is requested.” TEX. FAM. CODE ANN. §
101.032(a) (West 2014). The phrase “this title” in Section 101.032(a)
refers to Title 5 of the Family Code, and parental-rights termination
cases are contained within Title 5. Therefore, any suit under Title 5,
including parental-rights termination cases brought by the Department,
can be referred to mediation under Section 153.0071(c), but not every
12
suit referred to mediation under Title 5 produces a mediated settlement
agreement that forecloses the trial court’s best-interest review under
Section 153.0071(e).
Id. at 171–72 (emphasis added).
According to the K.D. court,“[t]he question then becomes which cases
referred to mediation under Title 5 produce a mediated settlement agreement that
forecloses the trial court’s best-interest review under Section 153.0071(e).” Id. at
172. The court, concluding that section 153.0071(e) did not apply to parental-
termination cases under Chapter 161, explained:
Because Section 153.0071(e) is located within Chapter 153 and does
not include the statutory language “suit affecting the parent child
relationship” and because Chapter 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 Section 153.0071(c) can produce a mediated
settlement agreement that forecloses the trial court’s best-interest
review. Because termination cases are governed by Chapter 161,
Section 153.0071(e) would not apply to such cases. Therefore, Section
153.0071(c) and (e) can be interpreted to mean that any suit under Title
5, including a parental-rights termination suit, may be referred to
mediation, but only those suits for conservatorship, possession, and
access that produce a mediated settlement agreement can eliminate the
trial court's best-interest review. If the Legislature had intended Section
153.0071(e) to apply to cases under Chapter 161, it could have written
Section 153.0071(e) to read, “If a mediated settlement agreement [in a
suit affecting the parent-child relationship] meets the requirements of
Subsection (d)....” The absence of that language is evidence that the
Legislature did not intend Section 153.0071(e) to apply to cases under
Chapter 161.
Id.
13
The Supreme Court of Texas, in Richardson v. Green, 677 S.W.2d 497, 498
(Tex. 1984), used this statutory-interpretation approach and similar reasoning in
affirming its jurisdiction to review appellate court judgments in parental-rights
termination cases. Id. at 173. In that case, the mother challenged the supreme court’s
jurisdiction to hear the case “because the 1983 amendment of article 1821(3), Tex.
Rev. Civ. Stat. makes judgments of the courts of appeal final in all cases of child
custody, support or reciprocal support.” Id. (citing Richardson, 677 S.W.2d at 499-
500). The mother argued that because “actions to terminate parental rights are child
custody cases,” article 1821(3) eliminated the Supreme Court of Texas’s jurisdiction
over such cases. Id. The high court disagreed, reasoning:
Custody and termination actions are governed by separate Chapters in
Title 2 [now Title 5] of the Family Code. See TEX. FAM. CODE ANN.
chs. 14, 15 (Vernon Supp. 1984) [now Chapters 153 and 161]. If the
legislature had intended the 1983 amendment to encompass all actions
under Title [5] of the Family Code, it would have stated: “all cases of
divorce, or suits affecting the parent-child relationship” instead of
limiting the exclusion of jurisdiction to “or child custody, support, or
reciprocal support.” We therefore hold that Article 1821(3) does not
include involuntary termination of parental rights actions and that the
Supreme Court of Texas continues to have jurisdiction to review court
of appeals’ judgments in such cases.
Richardson, 677 S.W.2d at 500. Thus, the Supreme Court of Texas found that the
absence of the language “suits affecting the parent-child relationship” in the statute
limiting judicial review indicated a legislative intent that the limitation not apply to
parental-termination cases. K.D., 471 S.W.3d at 173.
Because section 153.0071(e) is located within Chapter 153 (which governs
suits for conservatorship, possession, and access to children) and the Legislature
14
chose to include no similar provision in Chapter 161 (which governs suits for the
termination of a parent-child relationship), we cannot conclude that the Legislature
intended section 153.0071(e) to apply to termination suits under Chapter 161.
3. Key differences between termination provisions and conservatorship
provisions support an interpretation that requires a best-interest finding in
termination cases.
As the court recognized in K.D., the termination of parental rights impacts not
only the interests of the parent but also the fundamental liberty interests of the child.
471 S.W.3d at 167 (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)
(“Consideration of the private interest factor cannot be limited to only the parent’s
interest. The child bears a substantial interest in the proceedings as well.”)). Yet,
typically, the child is not a party to the parents’ mediated settlement agreement. Nor
is the child typically represented by counsel. Consequently, the child’s interest in
maintaining a parental relationship may not be adequately represented in the
mediation. We could hardly conclude that the Legislature intended section
153.0071(e) and a mediated settlement agreement to preclude the trial court from
protecting the liberty interests of the child by deciding whether the plaintiff has
proved by clear and convincing evidence that termination would be in the child’s
best interest, as section 161.001(2) requires.
Another important consideration is the finality and irrevocability of a decree
terminating parental rights. Unlike a termination decree under Chapter 161, a child-
conservatorship decree under Chapter 153 may be modified:
Suits for conservatorship, possession, and support are governed by
Chapter [153] of the Family Code and those matters are determined by
the “best interest” test. Section [153.002]. Those proceedings are
15
different and have different purposes from termination cases. Decrees
under Chapter [153] may be modified or changed from time to time,
but the parent still retains some rights in and control over a child. A
termination decree, on the other hand, is complete, final, irrevocable. It
divests for all time the parent and child of all legal rights, privileges,
duties, and powers with respect to each other except for the child’s right
to inherit. . . . The difference in the proceedings justifies the caution
with which courts have characteristically considered termination cases.
Wiley v. Spratlan, 543 S.W.2d 349, 351–52 (Tex. 1976). Although it is clear that
the Legislature intended, under section 153.0071(e), that the court be bound by the
parties’ mediated settlement agreement in child-conservatorship suits (where the
decree may be modified if necessary), it is not clear that the Legislature intended this
result for termination-of-parental-rights suits (where the decree is final and
irrevocable). To the contrary, section 161.001(2) reflects a legislative intent that the
court may terminate the parent-child relationship only if there is clear and
convincing evidence that termination is in the child’s best interest.
For these reasons, we conclude that section 153.0071(e) does not apply to
suits for termination of the parent-child relationship under Chapter 161 of the Family
Code and that a mediated settlement agreement therefore does not preclude a trial
court from determining under section 161.001(2) whether the plaintiff has proved
by clear and convincing evidence that termination would be in the child’s best
interest. Our interpretation of these statutes remains the same regardless of whether
the Department of Family and Protective Services is a party to the parental-
termination suit.5
5
The K.D. court expressed concern about the possibility of government overreach by the
Department of Family and Protective Services and thus stated that “[w]e do not decide and express no
opinion on whether section 153.0071(e) would foreclose a trial court’s best-interest determination in a
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IV. CONCLUSION
The relator has not established that the respondent trial judge clearly abused
her discretion. Accordingly, we deny the relator’s petition for writ of mandamus.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
parental-rights termination case resolved by a mediated settlement agreement in which the Department [of
Family and Protective Services] was not a party.” 471 S.W.3d at 170–71, and 174 n.18. The concern raised
by the court in K.D. is an issue of public policy, not statutory construction. Sections 153.0071(e) and
161.001 of the Family Code do not distinguish between suits brought by the Department and suits brought
by private parties. We see no valid statutory basis for recognizing such a distinction.
17