Opinion
NO. 02–17–00220–CV
12-18-2017
IN the INTEREST OF G.V., III and G.V., Children
JIM R. ROSS, G. LANCE WELCH, RUSTIN D. BRUNSON, JIM ROSS LAW GROUP, P.C., ARLINGTON, TEXAS, FOR APPELLANTS. SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; DEBRA WINDSOR, CHIEF OF THE POST–CONVICTION DIVISION; DAVID M. CURL, JESSICA JUAREZ, CINDY WILLIAMS, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS, FOR APPELLEE.
JIM R. ROSS, G. LANCE WELCH, RUSTIN D. BRUNSON, JIM ROSS LAW GROUP, P.C., ARLINGTON, TEXAS, FOR APPELLANTS.
SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; DEBRA WINDSOR, CHIEF OF THE POST–CONVICTION DIVISION; DAVID M. CURL, JESSICA JUAREZ, CINDY WILLIAMS, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS, FOR APPELLEE.
PANEL: WALKER, KERR, and PITTMAN, JJ.
OPINION
ELIZABETH KERR, JUSTICE
This case of first impression calls on us to decide whether we should apply Chapter 153 ("Conservatorship, Possession, & Access") or Chapter 161 ("Termination of the Parent–Child Relationship") of the family code to a mediated settlement agreement, where
• the Department of Family and Protective Services initiated a suit to appoint a managing conservator and to terminate Father's and Mother's parental rights if reunification could not be achieved;
• while the termination proceeding was pending, Father and Mother entered into a mediated settlement agreement ("MSA") that changed the managing conservatorship but did not terminate their rights;
• the MSA recited that the agreement was "in the best interest" of the children and met the statutory requirements of section 153.0071 to be binding and enforceable;
• the Department then dropped its request to terminate Father's and Mother's parental rights and moved to modify managing conservatorship in accordance with the MSA; and
• after Father and Mother unsuccessfully objected and asked to back out of the MSA, the trial court entered a final order enforcing it under section 153.0071 and without requiring the Department to put on any best-interest proof.
Because we are unpersuaded that the mere possibility of termination at the time an MSA is entered into suffices to make section 153.0071 inapplicable—that is, because we disagree that the parents ought to have been able to revoke an otherwise-binding MSA that modified managing conservatorship simply because the Department initially and conditionally pleaded for termination—we affirm.
The MSA here reflected Father's and Mother's agreement that (1) their two young children would be placed with relatives who would be made the managing conservators, (2) the parents would have limited supervised visitation twice a month, (3) they would pay a combined $2,000 per month in child support, (4) they would not file a motion to modify for 48 months, but (5) they could move to modify in the event of an emergency. The MSA did not actually terminate Father's or Mother's parental rights, nor did either of them voluntarily relinquish their parental rights under the agreement, by a section 161.103 affidavit or otherwise. Father and Mother then sought to revoke their consent to the MSA after the Department moved the trial court to enter judgment. Over the parents' objections, the trial court rendered judgment on the mediated settlement agreement under section 153.0071 of the family code. Tex. Fam. Code Ann. § 153.0071 (West 2014). Father and Mother appealed.
In three issues, Father and Mother assert that (1) the trial court erred by relying on section 153.0071(e), (2) the trial court erred by adopting the MSA's moratorium on any motions to modify for 48 months, and (3) the trial court erred by adopting the MSA's "emergency" prerequisite before any motion to modify could be filed in the interim. We affirm.
Background
On January 27, 2016, the Department of Family and Protective Services filed its "Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent–Child Relationship" against Father and Mother. The children involved were their two-year-old son, Andrew, and their three-month-old daughter, Betty.
We use aliases to refer to various individuals associated with this appeal. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8(b)(2).
According to the supporting affidavits, three-month-old Betty had suffered non-accidental trauma. The perpetrator was unknown, and the record contains multiple references (one as late as April 10, 2017) both to an ongoing criminal investigation and to the fact that "a perpetrator has not been identified." Betty had numerous fractures in various stages of healing, including rib fractures, a clavicular fracture, a femur fracture, and distal femur corner fractures. Andrew had no injuries consistent with abuse or neglect. Betty attended a daycare, and it was the daycare that first expressed concerns on January 25, 2016. Father and Mother took Betty to a hospital that same evening. The Department's petition came two days later.
The petition sought to terminate Father's and Mother's parental rights to their two children under family code Chapter 161 ("Termination of the Parent–Child Relationship") of Subtitle B ("Suits Affecting the Parent–Child Relationship") of Title 5 ("The Parent–Child Relationship and the Suit Affecting the Parent–Child Relationship"). See Tex. Fam. Code Ann. §§ 161.001 –.211 (West 2014 & Supp. 2017). The Department's petition raised termination as a possibility if reunification could not be achieved.
Effective September 1, 2015, section 161.001(1) and (2) became sections 161.001(b)(1) and (b)(2). Act of Mar. 26, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001(b), 2015 Tex. Sess. Law Serv. 1, 18 (West) (codified as an amendment to Tex. Fam. Code Ann. § 161.001 ). When we cite or quote cases decided under the previous section 161.001(1) or 161.001(2) designations, we do so knowing that the current provisions are found in sections 161.001(b)(1) and 161.001(b)(2).
The petition also encompassed conservatorship and child-support issues under Chapter 153 ("Conservatorship, Possession, and Access") and Chapter 154 ("Child Support"), respectively, which—like Chapter 161—are also under Subtitle B of Title 5 of the family code. See id. §§ 153.001–.709, 154.001–.309 (West 2014 & Supp. 2017).
On the same date that the Department filed its petition, the trial court entered ex parte emergency orders appointing the Department as Betty's and Andrew's sole managing conservator; placing the children with the Smiths, who were family friends; and setting a date for a full adversary hearing in accordance with section 262.201 of the family code. See id. § 262.201 (West Supp. 2017).
At the February 5, 2016 full adversary hearing, the trial court signed an agreed temporary order to the same effect. As temporary managing conservator, the Department was specifically given all the rights and duties as set forth in section 153.371 of the family code. See id. § 153.371.
Father and Mother filed separate answers.
On March 2, 2016, the Smiths were appointed Betty's and Andrew's temporary possessory conservators, and the trial court ordered that both Father and Mother have only supervised visitation.
As part of the Department's motion to modify possessory conservatorship on which this order was based, it submitted an affidavit stating that "[t]here is an ongoing criminal case pending to see who caused the injured [sic ] to this child."
On June 28, 2016, the Department filed a motion to remove the Smiths as temporary possessory conservators and, in their place, sought to appoint the Joneses as the children's temporary possessory conservators. Mr. Jones is Father's paternal great uncle.
The following week, Jane Doe, a person who had regular contact with the children before their removal, filed a petition in intervention. She asserted that appointing either parent as sole managing conservator or both parents as joint managing conservators would significantly impair the children's physical health or emotional development. She sought to be appointed the children's possessory conservator.
As the Department requested, in early July 2016 the trial court removed the Smiths and appointed the Joneses as the children's temporary possessory conservators.
On August 31, 2016, the trial court ordered Father to pay $1,200 per month in child support and ordered Mother to pay $800 per month in child support.
On October 5, 2016, the Department, the Joneses, Father, Mother, and Jane Doe filed a "Binding [Mediated] Settlement Agreement." See id. § 153.0071(e). There is no allegation that the parties failed to meet the prerequisites to a binding agreement under section 153.0071(d). See id. § 153.0071(d).
As the case approached its one-year anniversary, the trial court signed an order in December 2016 retaining the suit on the court's docket and resetting the case's dismissal date to July 26, 2017. See id. § 263.401 (West Supp. 2017).
The prosecutor explained the need for the delay at the June 6, 2017 hearing: "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."
On March 28, 2017, the Department filed a "Motion to Modify Managing Conservatorship in a Suit Affecting the Parent–Child Relationship." The Department sought to have itself removed as managing conservator and to have the Joneses appointed as managing conservators. The Department additionally sought to have Father, Mother, and Jane Doe appointed as possessory conservators.
On April 12, 2017, Father and Mother replaced their original attorney and filed a joint objection to the MSA. The unique (and limited) grounds for setting aside a mediated settlement agreement are set out in section 153.0071(e–1) of the family code. See id. § 153.0071(e–1). Father and Mother did not, however, raise those grounds.
On June 1, 2017, relying specifically on section 153.0071(e) for the proposition that the trial court must enter judgment in accordance with the MSA, the Department filed a motion to enter judgment. See id. § 153.0071(e).
Father and Mother responded to that motion four days later. Once again, they did not cite section 153.0071(e–1) as the basis for invalidating the MSA.
The next day, June 6, 2017, at the hearing on the Department's motion to modify managing conservatorship and motion to enter judgment, the Department requested that a judgment be entered based on section 153.0071(e) of the family code. When the trial court specifically asked if that meant the Department was not going to be putting on any testimony, the Department responded, "That's correct."
That same day, the trial court signed its "Final Order in Suit Affecting the Parent–Child Relationship." Citing section 153.371, the trial court appointed the Joneses as the children's permanent managing conservators and consequently removed the Department as managing conservator. See id. § 153.371. Father, Mother, and Jane Doe were appointed possessory conservators, and the court then identified the conservators' statutory rights as set out in sections 153.073 and 153.074. See id. §§ 153.073–.074. The court incorporated the mediated settlement agreement by reference and attached it as Attachment A. The MSA, as noted, included a 48–month moratorium on filing a motion to modify and required an "emergency" before any motion to modify could be filed within those four years. The court ordered possession as set out in Attachment B, under which Father and Mother got four hours of supervised visitation twice a month. Finally, the court ordered that Father and Mother pay child support as set out in Attachment C, which simply continued Father's $1,200 monthly payments and Mother's $800 monthly payments.
The order did contain an unexplained variance from the MSA: the October 3, 2016 MSA appears to recite—the copy in the record is not completely legible—that Father's and Mother's periods of possession were to be supervised by Family Court Services or the Smiths, the latter of whom did not participate in the mediation or sign the MSA. (The Smiths were the family friends initially designated as the children's temporary possessory conservators, a role into which the Joneses stepped in place of the Smiths with the court's July 6, 2016 order.) The final order incorporates the MSA "save and except any reference to" either of the Smiths. Father and Mother do not complain on appeal, and did not complain in the trial court, that the trial court's variance from the MSA somehow rendered it legally infirm or void.
Although the MSA can be interpreted to mean that an emergency would be necessary even after 48 months had elapsed, at the June 6, 2017 hearing both sides treated that "emergency" provision as applying only during the first four years, with the parents being free to move to modify on any available basis thereafter.
Section 153.0071(e) applies in this case
In their first issue, Father and Mother assert that section 153.0071(e) of the family code does not apply to suits to terminate the parent-child relationship brought under family code Chapter 161, citing In re Morris , 498 S.W.3d 624 (Tex. App.–Houston [14th Dist.] 2016, orig. proceeding), and In re K.D. , 471 S.W.3d 147 (Tex. App.–Texarkana 2015, no pet). They contend that because termination under Chapter 161 was foundational to this suit, the trial court erred by granting the motion to enter judgment on the MSA based on section 153.0071. Although the Department's suit did not result in a Chapter 161 termination, Father and Mother argue that because termination was still a possibility at the time they negotiated and agreed to the MSA, section 153.0071 does not apply.
Despite having claimed duress in their written response to the Department's motion, at the motion-to-modify hearing Father and Mother, through counsel, explicitly disavowed that theory: "That threat hanging over their head at the time of mediation, which everybody here concedes it was, is what makes this—I'm not making any argument that my clients signed this under duress or for the duress reason they should get out." On appeal, they appear to argue duress tangentially by suggesting that the mere threat of termination takes the MSA out of Chapter 153 and puts it into Chapter 161.
Section 153.0071 provides, in part:
(c) 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.
(d) A mediated settlement agreement is binding on the parties if the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is 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.
(e) 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.
(e–1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds:
(1) that:
(A) a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions; or
(B) the agreement would permit a person who is subject to registration under Chapter 62, Code of Criminal Procedure, on the basis of an offense committed by the person when the person was 17 years of age or older or who otherwise has a history or pattern of past or present physical or sexual abuse directed against any person to:
(i) reside in the same household as the child; or
(ii) otherwise have unsupervised access to the child; and
(2) that the agreement is not in the child's best interest.
Tex. Fam. Code Ann. § 153.0071.
A. In re Lee : The supreme court holds that, with a narrow statutory exception that Father and Mother do not rely on, section 153.0071 removes the trial court's discretion to deviate from the mediated settlement agreement.
In a case that did not involve termination or the threat of termination in any respect, the Texas Supreme Court has written that section 153.0071(e) unambiguously entitles a party to judgment on a mediated settlement agreement that meets the statutory requirements. In re Lee , 411 S.W.3d 445, 453 (Tex. 2013) (orig. proceeding). The only narrow exception is when section 153.0071(e–1)'s family-violence-related factors are satisfied. Id. The supreme court continued, "By its plain language, section 153.0071 authorizes a court to refuse to enter judgment on a statutorily compliant MSA on best interest grounds only when the court also finds the family violence elements are met." Id. Put differently, the court wrote that the statute did not authorize the trial court to substitute its judgment for that of the parties as reflected in the mediated settlement agreement absent the section 153.0071(e–1) elements. Id. The court viewed it as "absolutely clear" that the Legislature limited the trial court's consideration of best interest when entering a judgment on an MSA only to cases involving family violence. Id. "Allowing a court to decline to enter judgment on a valid MSA on best interest grounds without family violence findings," the supreme court concluded, "would impermissibly render the family violence language in subsection (e–1) superfluous." Id.
Because Father's and Mother's case does not involve the section 153.0071(e–1) exception, 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. See id. at 453–58 ; see also Morris , 498 S.W.3d at 629–30. Unless, of course, and as Father and Mother urge, section 153.0071 does not apply at all.
B. K.D. and Morris : Two intermediate courts hold that section 153.0071 does not limit the trial court's discretion when parental rights are actually terminated by agreement (and, according to Father and Mother, even when parental rights are not terminated but termination is threatened).
Faced with a mediated settlement agreement under which a mother signed away her parental rights, the Texarkana Court of Appeals balked at the idea that, in the context of a termination proceeding, the parties could effectively preclude a trial court from exercising any oversight or review. "Of course," it nevertheless wrote, "we do not hold that a settlement agreement obtained through mediation under Section 153.0071 accomplishes nothing in a parental-rights termination case brought by the Department," pointing out that the mediation "resulted in the execution of a valid and enforceable affidavit of relinquishment and mediated settlement agreement." K.D. , 471 S.W.3d at 168. That is, the relinquishment affidavit eliminated the Department's burden of proving the first prong under section 161.001(b)(1) and precluded the mother from backing out of an agreement in which she agreed that termination was in her child's best interest, because the agreement was enforceable against her. Id.
But the critical question was whether the mother's agreement that termination was in her child's best interest bound the trial court . Id. "In other words," asked the Texarkana court, "must the Department still prove by clear and convincing evidence that termination of [the mother's] rights is in [her child]'s best interest [under section 161.001(b)(2) ] even though [the mother] agreed that it was," or could "the [affidavit of relinquishment] and the MSA eliminate that [ section 161.001(b)(2) best-interest] element of proof as well[?]" Id.
The answer in K.D. was that the Department still had to prove the best-interest element regardless of a relinquishment affidavit and an MSA. "After comparing the mediation process in a parental-rights termination case brought by the Department against the mediation process involving private parties," and then "evaluating the results of that comparison in light of constitutional due process considerations," the court concluded that "due process requires the [Department] to still prove by clear and convincing evidence that termination is in the child's best interest." Id. at 168–69. The court noted that "a mediated settlement agreement and an affidavit of relinquishment in a parental-rights termination case may be binding between the parties," but that fact "does not eliminate the Department's burden of proving by clear and convincing evidence under [ section 161.001(b)(2) ] that termination is in the child's best interest or the trial court's power to deny termination in the absence of such proof." Id. at 169.
The Houston Fourteenth Court of Appeals effectively adopted K.D. 's analysis in its Morris opinion. 498 S.W.3d at 631–34.
C. Discussion
We agree with Father and Mother that the Department filed this suit to terminate their parental rights under Chapter 161—but it was also more than a termination suit. The Department sought conservatorship for itself, and, if Father's and Mother's parental rights were not terminated, it sought to have the conservatorship placed in someone other than the parents. The suit thus encompassed both Chapter 161 and Chapter 153 and was ultimately resolved under Chapter 153.
The cases on which Father and Mother rely— K.D. and Morris —were ones that entailed mediated settlement agreements resulting in the explicit termination of parental rights. Morris , 498 S.W.3d at 626 ; K.D. , 471 S.W.3d at 153. It was the fact of those terminations that unquestionably put K.D. and Morris within Chapter 161, unlike here, where Father's and Mother's parental rights were not terminated.
Although their rights were not in fact terminated, Father and Mother argue that section 153.0071 nevertheless does not apply because the Department pleaded for termination and because termination was still on the table when the mediation occurred. We disagree. The precise question asked in K.D. was, "Does Section 153.0071(e) Foreclose a Best–Interest Review Under Section 161.001(2) ?" K.D. , 471 S.W.3d at 165. The answer was no, that it does not. Id. at 169. Similarly, in Morris , the court held that section 153.0071(e) 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." Morris , 498 S.W.3d at 634.
The K.D. court wrote:
[A] mediated settlement agreement and an affidavit of relinquishment in a parental-rights termination case may be binding between the parties, but it does not eliminate the Department's burden of proving by clear and convincing evidence under Section 161.001(2) that termination is in the child's best interest or the trial court's power to deny termination in the absence of such proof.
Id. Later in the opinion, the K.D. court wrote more broadly: "In the absence of any clear Legislative intent to the contrary, we find that Section 153.0071(e) does not foreclose judicial review of the best-interest element of proof in a parental-rights termination case brought by the Department." Id. at 174. To us, the more specific language controls, and the broader language of the sentence just quoted does not expand the holding to mean that section 153.0071 does not apply whenever the Department simply pleads for termination.
The full quote suggests, at first blush, that Morris is written more broadly but in context is not:
[W]e 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 [effectuating a termination ] 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.
Both K.D. and Morris —which, we reiterate, involved settlements in which a parent actually agreed to termination—focused specifically on the MSA's effect on the section 161.001(b)(2) best-interest finding that a court must make. Because Father's and Mother's parental rights were not terminated, there is no section 161.001(b)(2) finding to review, nor did the trial court need to make such a finding.
To the extent K.D. suggests that its analysis applies even to termination suits that do not actually result in termination, any such suggestion would be dicta. Father's and Mother's reliance on Morris is distinguishable for the same reason: Morris involved a suit to terminate parental rights that ended in a mediated settlement agreement terminating the mother's rights. 498 S.W.3d at 627. Any language in Morris suggesting that its analysis applies even to termination suits that do not result in termination is dicta as well. Contextually, both K.D. and Morris appeared to have used the broader language precisely because their facts involved termination suits that resulted in termination, meaning that section 161.001(b)(2) was necessarily implicated. In contrast, nothing in the settlement agreement here implicated section 161.001, because no parental rights were terminated.
At oral argument, Father and Mother argued that just as a criminal defendant may back out of plea bargain and go to trial, so too should they have the right to back out of their mediated settlement agreement and go to trial. But a criminal defendant does not face a non-negotiable statutory dismissal deadline, as the Department here did—July 26, 2017. See Tex. Fam. Code Ann. § 263.401 (providing that a Department case seeking termination or to have the Department appointed conservator must be dismissed, if not tried, no later than 180 days after the suit's one-year anniversary). If parents could unilaterally revoke a mediated settlement agreement, they could play havoc with that dismissal deadline. Additionally, and most importantly, children need permanency and stability. See In re C.T. , 491 S.W.3d 323, 328–29 (Tex. 2016) (orig. proceeding). An irrevocable MSA lends itself to those goals; a revocable MSA potentially undermines them. Ultimately, of course, this is an issue for the legislature. For Father's and Mother's and for our purposes, the legislature has spoken. This case was resolved under Chapter 153 and did not terminate the parents' rights; therefore, section 153.0071 applies.
Underscoring the time-sensitive nature of these kinds of cases, we are in turn directed to do everything in our power to hand down a decision within 180 days from the date a notice of appeal is filed. Tex. R. Jud. Admin. 6.2(a). The dissent correctly notes that the rule is not absolute, but we have not exceeded 180 days a single time since 2015. Without elaboration, we also note our disagreement with some of what is implied about timing issues concerning the majority opinion. Finally, although the dissent does not mention or suggest it, we invite the parties to move for rehearing so that everyone can at that point receive what we know will be a thorough and deliberate dissent in this important case.
We hold that the trial court did not err by applying section 153.0071(e). We overrule Father's and Mother's first issue.
Father's and Mother's remaining issues are not ripe
Father's and Mother's remaining two issues attacking (1) the 48–month limitation before they can move to modify and (2) the "emergency" exception are not ripe. See Waco I.S.D. v. Gibson , 22 S.W.3d 849, 851–52 (Tex. 2000) ; Patterson v. Planned Parenthood of Houston and Se. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998).
Ripeness and standing are subject-matter-jurisdiction components and cannot be waived. Waco I.S.D. , 22 S.W.3d at 851. Under the ripeness doctrine, courts consider whether, at the time the plaintiff sues, the facts are sufficiently developed "so that an injury has occurred or is likely to occur, rather than being contingent or remote." Id. at 851–52 (quoting Patterson , 971 S.W.2d at 442 ). The ripeness analysis thus focuses on whether the case involves "uncertain or contingent future events that may not occur as anticipated or may not occur at all." Id. at 852 (quoting Patterson , 971 S.W.2d at 442 ). By focusing on whether the plaintiff has a concrete injury, the ripeness doctrine prevents premature adjudications and serves the constitutional prohibition against advisory opinions. Id. A case is not ripe if determining whether the plaintiff has a concrete injury depends on (1) contingent or hypothetical facts or (2) events that have not yet come to pass. Id.
In this case, neither Father nor Mother has filed a suit to modify conservatorship. No trial court has ruled on Father's and Mother's contentions that the 48–month provision and the "emergency" provision are invalid. Any opinion we might give on the matter would be advisory in anticipation of such a future motion to modify conservatorship. We may not give advisory opinions. See Patterson , 971 S.W.2d at 443.
We overrule Father and Mother's second and third issues.
Conclusion
Having overruled all of Father and Mother's issues, we affirm the trial court's judgment.
WALKER, J., filed a dissenting opinion.
SUE WALKER, JUSTICE, dissenting.
DISSENTING OPINION
I cannot agree that the State's contractual rights to enforce a mediated settlement agreement (MSA) in a parental-rights-termination suit trump the rights—inherent, constitutional, and statutory—that Texas parents possess concerning their children. See, e.g. , Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (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); In re E.R. , 385 S.W.3d 552, 555 (Tex. 2012) (recognizing that termination proceeding encumbers a value far more precious than any property right and does not involve ordinary dispute about how to allocate money in a contract action). Courts of appeals that have addressed this issue—the issue of whether family code section 153.0071 MSAs, that is custody contracts, are enforceable in chapter–161–termination-of-parental-rights suits instituted by the Department of Family and Protective Services—have held that they are not. See In re Morris , 498 S.W.3d 624, 633 (Tex. App.–Houston [14th Dist.] 2016, orig. proceeding [mand. denied] ) ; In re K.D. , 471 S.W.3d 147, 169 (Tex. App.–Texarkana 2015, no pet.) ; see also Martin v. Black , 909 S.W.2d 192, 195 (Tex. App.–Houston [14th Dist.] 1995, writ denied) (explaining that an MSA is a contract between the parties). I do agree with the majority, however, that this issue is one of first impression for our court.
The rules of judicial administration addressing appellate court disposition of a termination suit or a suit affecting the parent-child relationship filed by a governmental entity for managing conservatorship provide that "appellate courts should, so far as reasonably possible , ensure that the appeal is brought to final disposition ... [w]ithin 180 days of the date the notice of appeal is filed." Tex. R. Jud. Admin. 6.2(a) (emphasis added). In this termination suit, the notice of appeal was filed on June 21, 2017. Mother and Father were given two twenty-day extensions of time to file their brief, and the Department was given a thirty-day extension of time to file its brief. Because of the issue of first impression involved in this appeal, oral argument was set and held on November 15, 2017. The majority opinion was circulated on December 6, 2017, leaving only twelve days (seven full business days) for the drafting of a dissenting opinion before the expiration of the 180–days-from-notice-of-appeal time period on December 18, 2017. I interpret the so-far-as-reasonably-possible language included in judicial administration rule 6.2(a) as creating an exception to application of the 180–day deadline in situations, such as this one, where application of that deadline leaves a justice with days to draft a dissenting opinion on an important question of first impression. The majority, however, interprets it otherwise.
I am compelled, therefore, to either "dissent without opinion" or to issue a less than thorough dissenting opinion.
DISSENTING OPINION FROM ORDER DENYING MOTHER AND FATHER'S MOTION FOR REHEARING EN BANC
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 opinion 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.
See In re G.V. , No. 02–17–00220–CV, 543 S.W.3d 342, 351, 2017 WL 6422132, at *8 (Tex. App.–Fort Worth Dec. 18, 2017, no pet. h.) (mem. op.)
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 Betty 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 Supp. 2017) (setting forth procedures for Department to take possession of a child in an emergency without a court order).
For ease of reading, I utilize the same aliases adopted by the majority opinion. See G.V. , 543 S.W.3d at 343–51, 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).
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.
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, and an intervenor named Jane Doe mediated their claims and signed a "Binding Medi[ ]ated Settlement Agreement." 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. 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. 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." The trial court granted the extension.
The Joneses are relatives of Father.
A copy of this MSA with names redacted is attached to this opinion.
Mother and Father's written objection asserted that the MSA was not 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.
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."
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 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.
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 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 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 262 and 263 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, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004) ); In re A.J.K. , 116 S.W.3d 165, 171 (Tex. App.–Houston [14th Dist.] 2003, no pet.) (stating that "[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).
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 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).
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 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. I cannot agree for the following reasons.
See G.V. , 543 S.W.3d at 348, 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").
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 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 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 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. And unlike the "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).
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 would have never entered into the October 3, 2016 mediated settlement agreement but for the threat of termination."
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 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 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). 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.
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.").
This construction is further supported by the fact that the binding, irrevocable nature of statutory MSAs under family code sections 6.604(b) and 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 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.
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.
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. , 543 S.W.3d at 350–51, 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. 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.
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.
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 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. 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.
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).
APPENDIX