Moore v. Brown

408 S.W.3d 423

Angelica Mitchell MOORE and Kevin Alexander Moore, Appellants

v.Donna M. BROWN and Alvin Benard Brown, Appellees.

No. 03–11–00886–CV.

Court of Appeals of Texas, Austin.

Feb. 22, 2013.

Thomas J. Baker, Attorney at Law, Harker Heights, TX, for appellants.

Christina A. McLaughlin, Corbin & Associates, P.C., Attorneys, Killeen, TX, for appellees.

Before Justices PURYEAR, PEMBERTON and FIELD.

OPINION

BOB PEMBERTON, Justice.

On the second day after the birth of their third child, appellants Angelica Mitchell Moore and husband Kevin Alexander Moore executed affidavits relinquishing their parental rights to the infant and designating as managing conservators appellees Donna M. Brown and husband Alvin Benard Brown.¹ Relying on these affidavits, the Browns obtained an order from the district court terminating the Moores' parental rights and, subsequently, an order granting the Browns' adoption of the child.

In the meantime, however, the Moores initiated attempts to revoke their relinquishment affidavits and reassert their parental rights, but they did not appear at the termination hearing or timely perfect an appeal from the termination order. Ultimately, the Moores sought to challenge both the termination order and adoption order via bill of review and purported attack on a “void” order. Following an evidentiary hearing, the district court denied the Moores relief on their claims. The Moores now appeal that judgment to this Court.

Concluding that the Moores' claims are barred by requirements of the Texas Family Code and Texas civil procedure intended to ensure the finality of the termination and adoption orders, and that the Moores have not shown any constitutional deprivation from the enforcement of those requirements, we will affirm the district court's judgment.

BACKGROUND

M.K.B., the third child born to the Moores, arrived on March 8, 2009, in the Commonwealth of Virginia, where the Moores reside. Among M.K.B.'s early visitors was appellee Donna Brown, a distant cousin and close friend of Kevin Moore's mother, and whose relationship with Kevin was such that he had termed Donna his “aunt” during his youth.² At the time of M.K.B.'s birth, Donna and her husband, Alvin, resided in Harker Heights, Bell County, Texas, near Fort Hood, where Alvin's U.S. military unit was based—though he was deployed to Iraq—and Donna also was employed.

The parties agree that, in advance of M.K.B.'s birth, the Moores had discussed giving up the child to the Browns for adoption and, in fact, agreed that M.K.B. would live with the Browns following birth. It is likewise undisputed that, following birth, the Moores consented to giving the child the surname “Brown” on the child's birth certificate (hence the initials “M.K.B.” rather than “M.K.M.”) and executed several documents granting the Browns custody and laying legal groundwork for an adoption.

On March 10, 2009, the Browns, as “prospective adoptive parents,” and the Moores, as “birth parents of the child to be known as [M.K.B.],” executed before a notary an “Entrustment Agreement and Power of Attorney” giving the Browns “all legal rights and authority over said child as if they were the birth parents,” includingthe power to receive M.K.B. upon discharge from the hospital, and further directing the hospital to discharge M.K.B. to the Browns' care.³ The agreement also authorized the Browns to transport M.K.B. to their Harker Heights address, “which will be the primary residence of the child.” The parties additionally agreed that they would keep each other advised of their addresses and telephone numbers “until an Order accepting the consent of the birth parents and granting the custodians custody of said child for purposes of adoption has been entered by the appropriate court....”

On the same day, the Browns filed a petition for “temporary custody” in Virginia state court, attaching the aforementioned Entrustment Agreement and Power of Attorney. The petition alleged that the Moores “have agreed to place [M.K.B.] with the [Browns] for the purpose of adoption of their child,” that the Browns “are prepared to file a petition for custody for the purpose of adoption of [M.K.B.],” and that the Moores had consented to granting the Browns “temporary legal and physical custody of [M.K.B.]” so the Browns could arrange for M.K.B.'s discharge from the hospital and take the child home. The Browns requested “interim temporary legal and physical custody over [M.K.B.] until such time as the above-referenced petition is submitted to the Court....” The court forthwith issued a March 10, 2009 “consent order” granting the Browns “custody” of M.K.B., subject to the Moores' right to be apprised of the child's address and phone number and to access medical and educational records. Both the Moores and the Browns signed the order under oath to verify their agreement with its terms.

Also on March 10, 2009, the Moores each executed before a notary and two witnesses a three-page “Affidavit for Voluntary Relinquishment of Parental Rights” designating the Browns as managing conservators for M.K.B. and relinquishing to the Browns all of their parental rights and duties.⁴ The Moores do not dispute that their affidavits, at least in form, satisfied each of the requirements of Texas Family Code section 161.103, the provision of the family code that prescribes the requirements for affidavits of voluntary relinquishment of parental rights, for an affidavit that would remain irrevocable for sixty days after execution, or through May 9, 2009. SeeTex. Fam.Code Ann. § 161.103 (West 2008). Each affidavit also incorporated a waiver of notice and process concerning any further court proceedings involving M.K.B.⁵See id. § 161.103(c) (relinquishment affidavits may incorporate “a waiver of process in a suit to terminate the parent-child relationship filed under this chapter or in a suit to terminate joined with a petition for adoption”); see also Brown v. McLennan Cnty. Children's Protective Servs., 627 S.W.2d 390, 392–94 (Tex.1982) (observing that parent who signs an affidavit voluntarily relinquishing parental rights nonetheless maintains a justiciable interest in a suit to terminate parental rights until the termination order is rendered, but may waive right to notice of such proceedings).

A few days thereafter, Donna Brown left Virginia with M.K.B. and returned to Texas. On March 20, 2009, the Browns filed in Bell County district court a petition to terminate the Moores' parental rights and to adopt M.K.B. The petition alleged the sole statutory termination ground that the Moores had each executed an irrevocable affidavit of relinquishment of parental rights, as provided in family code section 161.103, and that termination of the Moores' parental rights was in M.K.B.'s best interest. SeeTex. Fam.Code Ann. § 161.001(1)(k), (2) (West Supp.2012).⁶ A hearing on the termination issue was set for April 30, 2009.

Consistent with the waiver the Moores had signed, they were not served either with process in the Browns' suit or notice of the termination hearing. However, the Moores attempted to reassert their parental rights in both the Bell County district court where the Browns' suit was pending and in the Virginia state court that had issued the March 10 consent order. On April 13, 2009, Kevin Moore filed in the Virginia court a pro se motion to amend the consent order to grant custody of M.K.B. to the Moores, urging that “[t]he [b]iological parents wish to terminate the ongoing adoption and regain custody of the minor child.” On April 24, the Moores, with assistance from a Virginia attorney, filed in the Browns' suit affidavits purporting to revoke their “ill-conceived” March 10 affidavits relinquishing their parental rights, requesting custody of M.K.B., and stating their opposition to the child's adoption by the Browns.

The termination hearing went forward as scheduled, with only Donna Brown, the Browns' counsel, and M.K.B.'s attorney ad litem present.⁷ Following the hearing, the district court signed an order terminating the Moores' parental rights based on findings that each had “executed an irrevocable affidavit of relinquishment of parental rights as provided in chapter 161 of Texas Family Code” and that termination of parental rights was in M.K.B.'s best interest.⁸See id. § 161.001(1)(k), (2).

On May 14, 2009, the Moores' Virginia counsel, obviously aware of the termination ruling, wrote the Bell County District Clerk requesting a copy of the “Termination Order entered on April 30, 2009” in the Browns' suit. Subsequently, on June 1, 2009, the Moores filed a pro se “motion to reconsider” the district court's termination order, and the record reflects that the Moores made attempts to obtain a ruling on the motion. And, sometime that month, the Moores retained new counsel—the Texas attorney who represents them in the present proceeding—who filed a notice of appeal of the termination order on July 23, 2009. But unfortunately for the Moores, their deadline for perfecting an appeal from the termination order, May 20, 2009, had already expired in the meantime, and it was likewise too late to obtain an extension. SeeTex.R.App. P. 26.1(b) (twenty-day deadline for filing notice of appeal in accelerated appeal); see alsoTex. Fam.Code Ann. § 109.002(a) (West Supp.2012) (appeals of termination orders governed by accelerated appeal rules). Accordingly, we ultimately dismissed the Moores' appeal for want of subject-matter jurisdiction. See Moore v. Brown, No. 03–09–00449–CV, 2010 Tex.App. LEXIS 3519, at *4 (Tex.App.-Austin Apr. 20, 2010, no pet.) (mem. op.).

Meanwhile, the Browns proceeded to a May 8, 2009 hearing on their petition to adopt M.K.B. The district court granted the adoption by order signed on June 11, 2009.

The Moores also continued their attempt to regain custody through the Virginia state court system. On July 1, 2009, the Virginia court that had issued the March 10 consent order heard the...