Saturday, August 15, 2009

Affidavit of Relinquishment of Parental Rights as Basis for Termination of Parent-Child Relationship


In addition to termination of parental rights based on a parent's abuse or neglect of the child, or other harmful conduct, termination can be based on a parent's voluntary relinquishment, subject to certain safeguards and to a judicial determination that the child's best interest is thereby served.


Texas Family Code section 161.001 authorizes a trial court to terminate a parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an unrevoked affidavit of relinquishment of parental rights, and termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1)(K), (2) (Vernon Supp. 2006).

A parent may designate a competent person, authorized agency, or licensed child-placing agency to serve as managing conservator of the child in an unrevoked or irrevocable affidavit of relinquishment of parental rights. Id. § 153.374(a) (Vernon 2002). “The person or agency designated to serve as managing conservator shall be appointed managing conservator unless the court finds that the appointment would not be in the best interest of the child.” Id. § 153.374(b); In re D.R.L.M., 84 S.W.3d 281, 300 (Tex. App.—Fort Worth 2002, pet. denied) (holding that trial court is not obligated to comply with appointment of managing conservator in affidavit of voluntary relinquishment of parental rights if trial court finds that appointment would not be in best interest of child), superseded by statute on other grounds, Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006). “Section 153.374 clearly provides that in appointing a managing conservator in such cases, the trial court need not comply with the parent’s designation of a managing conservator if the designation is not in the [child’s] best interest.” Dep’t of Family & Protective Servs. v. Alternatives in Motion, 210 S.W.3d 794, 803 (Tex. App.—Houston [1st Dist.] 2006, pet. filed). “A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.” Tex. Fam. Code Ann. § 161.211 (Vernon 2002).

SOURCE: Appellate Opinion in Appeal No. 01-05-01187-CV (First Court of Appeals in Houston)