In the Interest of P.W., a Child v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00579-CV
___________________________

IN THE INTEREST OF P.W., A CHILD

On Appeal from the 231st District Court
Tarrant County, Texas
Trial Court No. 231-736073-23

Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION

I. INTRODUCTION

The trial court terminated the parental rights of Appellant Mother,1 a minor, to

her child P.W. upon finding by clear and convincing evidence that termination was in

P.W.’s best interest and that Mother had executed an unrevoked or irrevocable affidavit

of relinquishment of parental rights. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(K),

(b)(2), 161.103. Mother’s relinquishment affidavit contained a waiver of process. See

id. § 161.103(c)(1).

In three points, Mother, who was seventeen at trial,2 complains that the trial court

erred because (1) her affidavit was improperly contingent on a Rule 11 agreement,

(2) her affidavit was involuntary, and (3) the trial court lacked personal jurisdiction due

to her lack of personal service by the Department of Family and Protective Services in

its second of two lawsuits and because “[a]ny waiver of service that was part and parcel

of an involuntarily signed relinquishment did not import jurisdiction to the court.”

Although Mother complains about involuntariness, lack of due process, duress,

and coercion, to the extent she preserved these arguments, her trial testimony does not

We identify the child’s family and others by their relationship to her and the
1

child by her initials. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b).
2
Eighteen is the age of majority in Texas. Tex. Civ. Prac. & Rem. Code Ann.
§ 129.001; see Tex. Fam. Code Ann. § 101.003 (defining “minor” as “a person under 18
years of age who is not and has not been married or who has not had the disabilities of
minority removed for general purposes”).

2
support them, and no new evidence to support them was presented at the hearing on

her motion for new trial. Guided by our sister court’s reasoning, see S.A.S. v. Catholic

Fam. Servs., Inc., 613 S.W.2d 540, 543 (Tex. App.—Amarillo 1981, no writ), and public

policy, which focuses on the best interest of the child who is the termination lawsuit’s

subject and not that of the child’s parent,3 we conclude that the trial court obtained

personal jurisdiction over Mother based on her valid relinquishment affidavit’s waiver

of citation, overrule her three points, and affirm the trial court’s judgment.

II. DISCUSSION

We will begin our discussion with the law applicable to the case.4

A. Personal jurisdiction is required for a valid judgment.

Personal jurisdiction, a vital component of a valid judgment, is dependent upon

citation issued and served in a manner provided for by law. In re E.R., 385 S.W.3d 552,

563 (Tex. 2012). If service is invalid, it is of no effect and cannot establish the trial

court’s jurisdiction over a party. Id. A complete failure of service deprives a litigant of

3
The best interest of the child who is the termination petition’s subject is always
the primary consideration. See Tex. Fam. Code Ann. § 153.002; In re J.P.-L., 592 S.W.3d
559, 562 (Tex. App.—Fort Worth 2019, pet. denied).
4
We begin with the law, not the facts, because the trial court’s best-interest
finding does not feature in this appeal: an affidavit of voluntary relinquishment, absent
unusual or extenuating circumstances, satisfies the best-interest finding. See Tex. Fam.
Code Ann. § 161.103(b)(6) (requiring affidavit to contain a best-interest allegation),
§ 161.211(c) (limiting grounds to attack order terminating parental rights based on
unrevoked relinquishment affidavit to fraud, duress, or coercion in the affidavit’s
execution).

3
due process and a trial court of personal jurisdiction; the resulting judgment is void and

may be challenged at any time. Id. at 566. Whether personal jurisdiction exists is a

question of law that we review de novo. J.M. v. Tex. Dep’t of Fam. & Protective Servs.,

No. 03-22-00435-CV, 2023 WL 213928, at *3 (Tex. App.—Austin Jan. 17, 2023, pet.

denied) (mem. op.) (citing Old Republic Nat’l Title Ins. v. Bell, 549 S.W.3d 550, 558 (Tex.

2018)).

1. Minority is a legal disability.

Minors are generally considered to be under a legal disability and are therefore

unable to sue or be sued in their individual capacities and are required to appear in court

through a legal guardian, a “next friend,”5 or a guardian ad litem. Austin Nursing Ctr.,

Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); see generally Matter of W.L.C., 562 S.W.2d

454, 454–55 (Tex. 1978).6 “The doctrine of the disability of minors rests upon the

presumption of the want of legal capacity to perform a valid binding act.” Wheeler v.

5
See Tex. R. Civ. P. 44 (stating that minors may be represented by a “next friend”
under specific circumstances); see also Am. Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d
491, 491–93 (Tex. 1995) (concluding trial court properly acquired jurisdiction over
minor when his mother answered as his next friend, showing that his legal
representative knew about the proceedings and could therefore defend against them,
particularly when the trial court also appointed as the minor’s guardian ad litem the
same one used in the same parties’ earlier federal lawsuit).
6
Cf. Tex. Fam. Code Ann. § 31.001(a)–(b) (allowing minor to petition to have the
disabilities of minority removed at age sixteen or seventeen, depending on specific
circumstances, and to file the petition in his or her own name).

4
Ahrenbeak, 54 Tex. 535, 538 (1881). It is an almost universal rule that this disability

exists “except in cases where the law has made express or implied exceptions.” Id.

As our analysis below will reveal, such an exception applies in this case.

2. With exceptions, minors may not waive service.

Historically, when a minor “is made a party to an action, [the minor] must be

served with process” and “cannot waive service like an adult and cannot authorize

someone else to do so” on his or her behalf. Wright v. Jones, 52 S.W.2d 247, 251 (Tex.

Comm’n App. 1932, holding approved). Although the supreme court has not

specifically addressed service on a minor parent in a termination-of-parental-rights case,

see Tex. Dep’t of Fam. & Protective Servs. v. N.J., 644 S.W.3d 189, 194 (Tex. 2022)

(Lehrmann, J., concurring), it has addressed the requirement of service on a minor in a

juvenile case involving transfer to district court for criminal proceedings, see W.L.C.,

562 S.W.2d at 454–55.

The issue in W.L.C. was whether the presentation of a document entitled

“Precept to Serve” to a minor during his transfer hearing was sufficient service to

successfully invoke the juvenile court’s jurisdiction. Id. At the transfer hearing’s

beginning, W.L.C.’s counsel objected that the summons on W.L.C. had not been

returned and was not on file with the court. Id. at 455. The trial court overruled the

objection and proceeded with the hearing until a probation officer testified that he had

no personal knowledge of whether W.L.C. had been served. Id. The trial court then

ordered the court clerk to serve W.L.C. in open court. Id.

5
After the clerk handed the precept to W.L.C., the transfer hearing continued, and

at its conclusion, the juvenile court waived its jurisdiction and transferred W.L.C. to the

district court. Id. The only documentary evidence of service in the record was the

instrument entitled “Precept to Serve,” executed by the clerk, which directed the sheriff

to serve W.L.C. with a copy of the State’s original petition. Id. The return-of-service

form on the precept’s reverse side was blank. Id. The intermediate court nonetheless

affirmed, holding that the probation officer’s testimony did not conclusively establish

that W.L.C. had not been served with process. Id.

The supreme court reversed because that holding was “in conflict with [S]ections

53.06(e) and 54.02(b) of the Texas Family Code.” Id. Section 53.06 requires the juvenile

court to direct issuance of a summons to, among others, “the child named in the

petition,” and states, “A party, other than the child, may waive service of summons by

written stipulation or by voluntary appearance at the hearing.” Tex. Fam. Code Ann.

§ 53.06(a), (e) (emphasis added). Section 54.02(b) requires Section 53.06’s petition and

notice requirements to be satisfied. Id. § 54.02(b).

As to Section 53.06(e), the court observed, “This section codifies the common

law rule that a minor is without legal capacity to waive service of process.” W.L.C.,

562 S.W.2d at 455 (citing first Sprague v. Haines, 4 S.W. 371 (Tex. 1887), and then DeProy

v. Progakis, 269 S.W. 78 (Tex. Comm’n App. 1925, holding approved)).7 The court

7
In Sprague, a land dispute, the court observed that the petition had prayed for
citation to be issued against defendants—including minors—but that no service

6
concluded that compliance with Sections 53.06 and 54.02(b) was “mandatory and

prerequisite to the juvenile court[’s] jurisdiction” over the transfer, and that absent an

affirmative showing of service of summons to the juvenile in the record, the juvenile

court lacked jurisdiction to transfer the juvenile to district court. Id.

As pertinent here, four termination opinions and a criminal opinion have

discussed W.L.C. in the service-on-minors context. See Ex parte Rodriguez, 466 S.W.3d

846, 850 (Tex. Crim. App. 2015); N.J. v. Tex. Dep’t of Fam. & Protective Servs., 613 S.W.3d

317, 321–22 (Tex. App.—Austin 2020), vacated, 644 S.W.3d 189 (Tex. 2022); In re

M.M.S., No. 14-16-00349-CV, 2016 WL 6134456, at *4 (Tex. App.—Houston [14th

Dist.] Oct. 20, 2016, pet. denied) (mem. op. on reh’g); S.A.S., 613 S.W.2d at 543; see also

J.M., 2023 WL 213928, at *3 (identifying N.J.’s citation of W.L.C.). We will begin with

the termination cases, from oldest to most recent.

appeared in the record. 4 S.W. at 373. It noted, before reversing and remanding, “The
service of process upon the minors is essential in order to confer jurisdiction upon the
court, and to authorize the appointment of a guardian ad litem.” Id. (first emphasis
added); see Wright, 52 S.W.2d at 251 (stating that no appointment of a guardian ad litem
for a minor can be made until after the minor has been regularly served with process).
Likewise, in DeProy, also a land dispute, the record showed no citation served on a minor
defendant and no answer filed for him. 269 S.W. at 79. In concluding that there was
no personal jurisdiction over him, the Commission of Appeals compared judgments
against minors to default judgments and observed that “in judgments against minors
the minor cannot appear in person nor by attorney of his selection.” Id. The
commission held that the only way the trial court could have acquired jurisdiction over
the minor “was by proper service of citation on him,” and only then would the trial
court have had jurisdiction to appoint a guardian ad litem to represent him. Id.

7
a. A minor’s voluntary-relinquishment affidavit can waive service.

(1) S.A.S. v. Catholic Family Servs., Inc.

In 1981, the Amarillo court considered W.L.C. and concluded that signing a

voluntary-relinquishment affidavit containing a waiver of service is an exception to a

minor’s incapacity to waive service. S.A.S., 613 S.W.2d at 543. In S.A.S., the minor

parent signed such a relinquishment affidavit. Id. at 541. Five days later, an adoption

representative filed a termination suit but did not serve the minor with process, and the

trial court terminated her parental rights. Id. The minor filed a bill of review, which

was dismissed. Id. at 540–41. On appeal, the minor argued that she could not waive

service of citation. Id. at 541.

The court acknowledged that as stated in W.L.C., the common law requires that

all minors be personally served with process. Id. at 543 (citing W.L.C., 562 S.W.2d

at 455). But the court distinguished W.L.C. based on its having interpreted Section

56.03(e), “which specifically excepts a child when authorizing waiver of service in

certain proceedings in juvenile court” and concluded that it was inapplicable to parental-

rights-termination proceedings. Id. Instead, the court relied on what is now Family

Code Section 161.103, which provides that an affidavit for voluntary relinquishment of

parental rights may be signed “by the parent, whether or not a minor, whose parental rights

are to be relinquished.” Tex. Fam. Code Ann. § 161.103(a)(1) (emphasis added).

Section 161.103(c)(1) provides that the affidavit may contain “a waiver of process in a

suit to terminate the parent–child relationship filed under this chapter or in a suit to

8
terminate joined with a petition for adoption.” Id. § 161.103(c)(1); see id. § 102.009(a)(7)

(stating that a parent is entitled to service of citation on the filing of a petition in an

original suit if the parent–child relationship has not been terminated “or process has

not been waived under Chapter 161”); Brown v. McLennan Cnty. Children’s Protective Servs.,

627 S.W.2d 390, 393 (Tex. 1982) (observing that now-Section 161.103(c) has “been

upheld as a permissible exception to the prohibition against pre-suit waiver”), abrogated

on other grounds by Ex parte E.H., 602 S.W.3d 486 (Tex. 2020).

Based on Section 161.103’s plain language, the court concluded that the

Legislature “has abrogated the common law rule . . . [b]y requiring the affidavit of

relinquishment to be signed by the parent, whether or not a minor, and by permitting

the affidavit to contain a waiver of process.” S.A.S., 613 S.W.2d at 543 (stating that the

only reasonable conclusion is that the Legislature intended to permit a minor to waive

service under the specific circumstances set out in the statute).

(2) In re M.M.S.

In 2016, the Houston court disagreed with the Amarillo court’s limiting W.L.C.

to juvenile cases, pointing out that while W.L.C. was a juvenile case, “the [supreme]

court noted [in that case] that [S]ection 53.06 was a codification of the common law

rule that a minor is without legal capacity to waive service of process.” M.M.S.,

2016 WL 6134456, at *4. The court also observed that in W.L.C., the supreme court

had relied on Sprague and DeProy, which were not juvenile-transfer cases. Id. (citing

W.L.C., 562 S.W.2d at 455).

9
In M.M.S., the mother was a minor when the Department filed its original

petition, and the record contained a copy of the citation issued to her but did not

contain a citation issued to her parent, guardian, or next friend. Id. at *1. Not long

after the Department filed its petition, she turned eighteen years old. Id. The next

month, through her attorney, she made a general denial and signed a mediated

settlement agreement (MSA) allowing the Department to be named temporary

managing conservator; the trial court approved the MSA after a hearing. Id. at *1–2. A

few months later, the Department filed an amended petition seeking termination of

parental rights and noting that the mother would be served by mailing a copy of the

petition to her attorney. Id. at *2. After a bench trial, the trial court terminated her

parental rights. Id.

On appeal, the mother argued that the trial court had erred by failing to appoint

a guardian ad litem when the suit was filed to represent her interests as a minor. Id.

The court sustained this issue because the mother had lacked the legal capacity to

receive service at the time she was served, and “[t]he record does not reflect additional

personal service of citation after [her] eighteenth birthday.” Id. at *2–5 (citing Austin

Nursing Ctr., 171 S.W.3d at 849). The court further observed, “When a minor is named

as defendant, the court’s personal jurisdiction over the minor depends on ‘whether the

minor’s interests have been properly protected and whether a deficiency in notice or

due process has been shown.’” Id. at *3 (quoting Vandewater, 907 S.W.2d at 492).

10
Unlike S.A.S., however, the mother in M.M.S. had never filed a Section 161.103

affidavit of voluntary relinquishment. Cf. id. at *3–4 (noting that the Department had

attempted to rely on Section 161.103 by analogy when arguing that the mother had

appeared through her attorney). The court remanded for a new trial, holding that the

mother’s appearance after turning eighteen did not cure her lack of capacity at the time

she was served. Id. at *4–5. But see J.M., 2023 WL 213928, at *4 (disagreeing that parent

could not enter general appearance after attaining majority).8

(3) N.J. v. Tex. Dep’t of Family & Protective Servs.

In 2020, the Austin court considered W.L.C., S.A.S., and M.M.S. in concluding

that the trial court had lacked jurisdiction over a minor when it terminated her parental

8
Adults can consent to personal jurisdiction through a general appearance in
person or through counsel, curing any defect in method of service. See In re Guardianship
of Fairley, 650 S.W.3d 372, 386 (Tex. 2022) (citing Tex. R. Civ. P. 120). A party enters a
general appearance when he or she (1) invokes the judgment of the court on any
question other than its jurisdiction; (2) recognizes by his or her acts that an action is
properly pending; or (3) seeks affirmative action from the court. Id. When counsel for
an adult in a termination suit participates in the trial by questioning witnesses and by
arguing against the termination, these actions invoke the trial court’s judgment on a
question other than its jurisdiction, recognize that the action is properly pending, and
seek affirmative action from the court. See In re C.W., No. 05-25-00991-CV, 2025 WL
3722810, at *12–13 (Tex. App.—Dallas Dec. 23, 2025, no pet. h.) (mem. op.) (holding
adult mother generally appeared through her own actions and those of her counsel
when she appeared by Zoom at a permanency hearing and her counsel actively
participated in trial without challenging personal jurisdiction); In re M.D.M., 579 S.W.3d
744, 761 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding counsel’s actions at
trial were sufficient to enter adult father’s general appearance and constituted waiver of
complaint that Department had violated his due-process rights by failing to serve him
with process).

11
rights. See N.J., 613 S.W.3d at 321–22. In N.J., the Department sought to terminate

the minor’s parental rights after she was arrested and placed in juvenile detention for

assaulting her father; her own mother’s parental rights to her had already been

terminated. Id. at 319 & n.1. No citation directed to the minor was issued or served

on her, but she personally appeared a few weeks later with her court-appointed attorney

at the adversary hearing. Id. at 319. She filed an answer to the Department’s suit five

days before the trial, where she testified and asked the jury not to terminate her parental

rights. Id. She was still a minor when the trial court terminated her parental rights, and

she argued on appeal that the trial court had never acquired personal jurisdiction over

her because she was never served with citation. Id. at 319–21.

The Department did not dispute that the minor was entitled to service of citation

or that she had never been served. Id. at 320. Instead, it argued that the record showed

that before citation could be issued and served on her, she had personally appeared and

participated throughout the proceedings and that these actions were sufficient to

support the trial court’s exercise of personal jurisdiction under Rule 120. Id. at 320–21.

The Austin court disagreed because “a minor cannot by her voluntary

appearance waive service or consent to the jurisdiction of the court.” Id. at 321 (citing

W.L.C., 562 S.W.2d at 455). The court referenced the traditional rules that when a

minor is named as a party to a suit, she must be personally served with process or

alternatively, in certain circumstances, may be properly joined through a legal guardian

or next friend if the minor’s interests have been properly protected. Id. at 321–22

12
(citing, among other authorities, Tex. R. Civ. P. 44; Vandewater, 907 S.W.2d at 492; and

Wheeler, 54 Tex. at 538).

The court concluded that there had been a deficiency in notice that could not be

waived by the minor’s appearance because the record established that neither the minor

nor a parent or person designated as her legal guardian or next friend had ever been

served with citation of the Department’s suit; that no one appeared in the trial court in

the capacity of her next friend; and that the trial court had never appointed a guardian

ad litem to protect her interests. Id. at 322. The court reversed the portions of the

judgment terminating her parental rights and appointing the Department as managing

conservator and remanded the case for a new trial. Id.

The minor’s story did not end there, however. The Department filed a petition

for review to reinstate the termination. N.J., 644 S.W.3d at 190. But after the

Department filed its petition for review, the mother turned eighteen and voluntarily

executed an affidavit relinquishing her parental rights. Id. at 191. The Department then

moved to dismiss the appeal for mootness; it also asked the court to vacate the trial

court’s judgment to the extent it depended on personal jurisdiction over the mother

and to vacate the lower court’s judgment and opinion. Id. at 191–92.

The supreme court agreed that the appeal had been mooted based on the

mother’s decision to voluntarily relinquish her parental rights upon attaining majority,

and it vacated the court of appeals’s judgment. Id. at 192. It also vacated the portion

of the trial court’s judgment pertaining to termination of her parental rights without

13
addressing the appeal’s merits because her act of voluntarily terminating her rights

“ultimately will result in the same judgment as to [her]” with no effect on the other

relief granted by the trial court. Id. But it declined to vacate the lower court’s opinion.

Id. at 193 (concluding, without regard to merits, that vacatur would not serve the public

interest).

Justice Lehrmann wrote separately to note that letting the lower court’s opinion

stand was “no endorsement of its reasoning or conclusion,” and she observed that the

lower court’s opinion “muddie[d] the waters” as to how courts obtain personal

jurisdiction over minor parents in termination cases. Id. at 194 (Lehrmann, J.,

concurring). In describing this muddying, she recounted that the lower court had

acknowledged that despite its view that the Department had to personally serve the

mother, her legal guardian, or her next friend for the trial court to obtain personal

jurisdiction over her, the Department “would have run into difficulties serving any of

these parties.” Id. (Lehrmann, J., concurring). She also pointed out that nothing in the

Family Code required the trial court to appoint a guardian ad litem for the mother (as

opposed to an attorney ad litem, whom the trial court did appoint), stating, “Chapter

107 requires courts to appoint a guardian ad litem to represent a child who is the subject

of parental termination proceedings. No provision, however, requires or even

contemplates appointment of a guardian ad litem for a minor parent.” Id. at 194–95

(Lehrmann, J., concurring) (citing Tex. Fam. Code Ann. § 107.011(a), which requires

appointment of a guardian ad litem for the child who is a termination lawsuit’s subject).

14
Justice Lehrmann posited that the Department’s best option to properly join a

minor parent under these circumstances was through the minor’s attorney ad litem,

particularly when the Family Code “seemingly indicat[es] that attorneys ad litem are

authorized to accept service of citation for parties otherwise lacking capacity to consent

to suit.” Id. at 195 (Lehrmann, J., concurring) (citing Tex. Fam. Code Ann. § 107.010).9

She also pointed out that if the lower court’s analysis were correct, then the mother—

and other minor parents in her position—could effectively be immune from suit in

termination cases if they could not waive service under Rule 120. Id. (Lehrmann, J.,

concurring) (“That the Legislature would intend such a state of affairs blinks reality.”);

see Sandra D. Hachem, Service Issues in CPS Cases, 4th State Bar of Tex. Prof. Dev.

Program, Adv. Child Protection Law Course 14, 14.15–.17 (2022) (noting that no

statute expressly removes the disability of minority just because a child is a parent; that

Section 107.010 does not “expressly require appointment of a guardian who would have

9
Family Code Section 107.010 allows a trial court to appoint an attorney ad litem
for a person entitled to service of citation “if the court finds that the person is
incapacitated.” Tex. Fam. Code Ann. § 107.010; see id. § 160.612(b) (requiring
appointment in a parentage-adjudication proceeding of “an amicus attorney or attorney
ad litem to represent a child who is a minor or is incapacitated if the child is a party or
the court finds that the interests of the child are not adequately represented”),
§ 160.608(c) (requiring in a parentage-adjudication proceeding involving a motion for
genetic testing that “a child who is a minor or is incapacitated must be represented by
an amicus attorney or attorney ad litem”); see also id. § 160.602(a)(6) (providing that such
a representative has standing because he or she is “authorized by law to act for an
individual who would otherwise be entitled to maintain a proceeding but who is . . .
incapacitated[] or is a minor”).

15
to be served with process as the legal representative for the party” and does not define

“incapacitated”; and that “neither Section 107.010 nor any other provision of the

Family Code provides guidance on when it is ‘appropriate’ for an appointed attorney to

seek a guardianship”).

(4) J.M. v. Tex. Dep’t of Family & Protective Servs.

In 2023, the Austin court revisited the issue. See J.M., 2023 WL 213928, at *1.

In J.M., the Department served the “parent of minor child [Father],” but nothing in the

record indicates that the minor was personally served with citation. Id. However, he

appeared in court with his appointed counsel the week after his mother was served, and

he later filed a counterpetition to vacate his paternity acknowledgment. Id. Neither his

mother nor any other guardian appeared on his behalf before he turned eighteen. Id.

(citing Tex. R. Civ. P. 44). After he turned eighteen, he testified at trial, after which his

parental rights were terminated. Id. at *2–3. On appeal, he argued that the trial court

had never acquired personal jurisdiction over him because he had been a minor when

the case began. Id. at *3. The court affirmed because he had reached majority and had

entered a general appearance by the time the trial court had rendered judgment. Id.

at *4 (“Absent further guidance from the supreme court, we will apply the general rule

that an adult may waive any complaints about service by entering a general

appearance.”).

In upholding the termination, the court disagreed with the holding in M.M.S.,

pointing out that after the mother in that case became an adult, she had signed an MSA

16
and then participated in a hearing to try to set it aside. Id. The court noted that the

Houston court “did not explain why the parent could not enter a general appearance

after becoming an adult, and it relied entirely on authorities concerning persons who

were minors at the time the lower court rendered judgment.” Id.

b. The Family Code provides for other waivers.

In Rodriguez, a juvenile-transfer case, the Court of Criminal Appeals

acknowledged W.L.C. and other precedent holding that a juvenile cannot waive service

of the summons for a transfer hearing even if the juvenile attends the transfer hearing

as “in accordance with the common-law rule that a minor does not possess the legal

capacity to waive service of summons, nor can anyone waive it for him.” 466 S.W.3d

at 847, 850. The court nonetheless denied habeas relief when the record did not

affirmatively establish on collateral attack the absence of jurisdiction to transfer the

juvenile when the juvenile could waive a defect in the summons under Section 51.09. Id.

at 850–55.

In reaching this conclusion, the court noted that Title 3 of the Family Code (the

Juvenile Justice Code) allows a juvenile to waive “any right granted to a child by this

title or by the constitution or laws of this state or the United States” in Title 3

proceedings “[u]nless a contrary intent clearly appears elsewhere in this title.” Id. at 850

& n.22 (quoting Tex. Fam. Code Ann. § 51.09). While Section 53.06(e) explicitly

provided that a juvenile could not waive service, “the unambiguous language of

[Section] 51.09” permitted a waiver of defects in the summons’s wording or the timing

17
of service when context “does not otherwise make clear that such a waiver would be

prohibited.” Id. at 851, 855.

Section 51.09 requires the following for an effective waiver of a right under Title

3: (1) the waiver is made by the child and the child’s attorney; (2) the child and his or

her attorney are informed of and understand the right and the possible consequences

of waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in

court proceedings that are recorded. Tex. Fam. Code Ann. § 51.09; see also id.

§ 65.008(1)–(5) (allowing a child to waive rights in truancy-court proceedings if the child

and his parent or guardian are informed of the right and understand the right and

possible consequences of waiving it, and the child, his or her parent or guardian, and—

if represented by counsel—his or her counsel sign the waiver).

In contrast, in Title 5, which covers suits affecting the parent–child relationship

(SAPCRs), we have found no similar explicit-waiver process other than Section 161.103,

which allows a voluntary-relinquishment affidavit to contain a waiver of process, see id.

§ 161.103(c)(1), and Section 161.106, which allows an affidavit by a male—adult or

minor—to waive his interest in a child, see id. § 161.106(a), (c)(1).10 But see id.

10
Both sections require that the affidavit be witnessed “by two credible persons”
and “verified before a person authorized to take oaths.” Tex. Fam. Code Ann.
§§ 161.103(a)(2)–(3), .103(c)(2)–(3). Section 161.103 also lists twelve required items,
including “an allegation that termination of the parent–child relationship is in the best
interest of the child,” and warns that designating the Department as managing
conservator makes the affidavit “irrevocable.” Id. § 161.103(b)(1)–(12), (e).
Section 161.106 also warns about irrevocability. See id. § 161.106(f).

18
§ 153.0071(d) (setting out requirements for a binding MSA: (1) prominent display that

the agreement is not subject to revocation, (2) signed by each party, and (3) signed by

each party’s attorney, “if any, who is present at the time the agreement is signed”), (e)

(“If a [MSA] meets the requirements of Subsection (d), a party is entitled to judgment

on the [MSA] notwithstanding Rule [of Civil Procedure] 11 . . . or another rule of law.”),

(e-1) (setting out exceptions to Subsections (d) and (e) not applicable here).

B. An affidavit of relinquishment must be voluntary.

Evidence that an affidavit of voluntary relinquishment was signed, notarized,

witnessed, and executed in compliance with Section 161.103 is prima facie evidence of

its validity. In re R.B., 225 S.W.3d 798, 804 (Tex. App.—Fort Worth 2007, no pet.).

Further, an attack on an order terminating parental rights based on an unrevoked

relinquishment affidavit is limited to the specific grounds of fraud, duress, or coercion

in the affidavit’s execution. In re D.S., 602 S.W.3d 504, 508 (Tex. 2020). “Coercion”

occurs “if someone is compelled to perform an act by force or threat.” In re D.E.H.,

301 S.W.3d 825, 828 (Tex. App.—Fort Worth 2009, pet. denied) (en banc op. on reh’g).

“Duress” occurs when “due to some kind of threat, a person is incapable of exercising

her free agency and unable to withhold consent.” Id. at 829.11

11
Mother does not raise a fraud complaint, but in D.E.H., in which we addressed
a parent’s contention that she had involuntarily executed a relinquishment affidavit, we
defined “fraud” under Section 161.211(c) as committed “through active
misrepresentation or passive silence and is an act, omission, or concealment in breach
of a legal duty, trust, or confidence justly imposed, when the breach causes injury to

19
C. The trial court had personal jurisdiction over Mother in the second lawsuit
and found that her affidavit was voluntary.

Here, we recount the relevant facts with the related law.

1. Lawsuit #1

Mother was under the Department’s temporary managing conservatorship but

was residing in an unauthorized placement when she became pregnant at age fourteen.

P.W., a medically fragile child, was born prematurely at home in March 2023 and then

taken into a hospital’s care. The Department removed P.W. from Mother in June 2023

upon P.W.’s discharge from the hospital and filed its original petition.

In its original petition, the Department sought alternatively to reunify Mother

and P.W. or to terminate Mother’s parental rights based on best interest and the

substantive grounds of endangerment, execution of an unrevoked or irrevocable

affidavit of relinquishment of parental rights, constructive abandonment, and failure to

comply with court orders.12 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (K), (N),

(O), (b)(2). Mother, who was fifteen years old by that time, filed a request for counsel

and an affidavit of indigence. See id. § 107.013(a)(1) (stating that in a suit filed by a

governmental entity in which termination of the parent–child relationship or

another or the taking of an undue and unconscientious advantage.” 301 S.W.3d at 826,
829.
12
The Department also sought to terminate the parental rights of P.W.’s alleged
fathers in its first and second lawsuits. The trial court terminated the alleged fathers’
parental rights in its October 2025 final judgment, and they have not appealed.

20
conservatorship appointment is requested, the court shall appoint an attorney ad litem

to represent the interests of “an indigent parent of the child who responds in opposition

to the termination or appointment”).

On the same day that Mother requested appointed counsel, she also signed and

filed a waiver of service. But see Wright, 52 S.W.2d at 251 (requiring a minor’s service

with process). The trial court appointed an attorney ad litem for Mother on the day she

requested it. Mother’s ad litem attorney filed an answer and moved for appointment of

a guardian ad litem for Mother. The trial court appointed a guardian ad litem for

Mother. But see Kremer v. Haynie, 67 Tex. 450, 451, 3 S.W. 676, 677 (1887) (“[T]he court

had no authority to appoint a guardian ad litem for minors on whom the court had not

acquired jurisdiction by service of process.”).13

Neither the ad litem attorney’s motion nor the order granting it indicate under

what authority the trial court appointed Mother’s guardian ad litem. Compare Tex. R.

Civ. P. 173.1 (“This rule does not apply to an appointment of a guardian ad litem

governed by statute or other rules.”), with Tex. Fam. Code Ann. § 107.001(5) (defining

“guardian ad litem” as “a person appointed to represent the best interests of a child”),

and id. § 107.010 (stating that the trial court may appoint an attorney to serve as an

The trial court also appointed an attorney ad litem and guardian ad litem for
13

P.W. The same individual represented P.W. as both attorney ad litem and guardian ad
litem, see Tex. Fam. Code Ann. § 107.0125, but Mother had a separately appointed
attorney in each role.

21
attorney ad litem for a person entitled to service of citation in a suit if the court finds

that the person is incapacitated and that attorney ad litem shall, “if appropriate, refer

the proceeding to the proper court for guardianship proceedings”).14 However, the trial

court’s order states that it was made “to represent the best interests” of Mother, and it

granted the guardian ad litem “immediate access to [Mother] and any information

relating to [her],” including “records regarding social services, law enforcement records,

school records.” See id. § 107.002(a)(2) (stating that a child’s guardian ad litem may

obtain and review copies of the child’s relevant medical, psychological, and school

records). Mother’s guardian ad litem also filed an answer for Mother. But see id.

§ 107.002(a) (stating that a Chapter 107 guardian ad litem “is not a party to the suit”).

During the case’s pendency, the Department placed Mother in a foster home,

but that placement ended when she “caught a charge.” A juvenile court adjudicated

Mother delinquent for aggravated robbery and sentenced her to the Texas Juvenile

Justice Department (TJJD) on a ten-year determinate sentence. The juvenile court

suspended Mother’s sentence, however, and placed her on seven years’ probation. See

14
Chapter 107 addresses special appointments and evaluations. See generally Tex.
Fam. Code Ann. §§ 107.001–.308. Subchapter A addresses court-ordered
representation in SAPCRs and lists the powers and duties of a child’s attorney ad litem
and guardian ad litem and the discretionary appointment of an incapacitated person’s
attorney ad litem, see id. §§ 107.001–.010, and Subchapter B, Part 1, addresses
appointments in suits by a governmental entity, including mandatory appointment of a
guardian ad litem and attorney ad litem for the subject child and mandatory
appointment of an attorney ad litem for the parent, as well as the parent’s attorney ad
litem’s powers and duties, see id. §§ 107.011–.017.

22
generally id. § 54.04 (discussing juvenile-disposition options). As part of her probation,

Mother was placed out-of-state at a residential treatment center (RTC).15

The day after Mother was sentenced and transported to the RTC, her attorney

ad litem moved to withdraw. The trial court allowed the withdrawal and appointed a

new attorney ad litem for Mother. Mother’s new attorney ad litem attended the next

month’s permanency hearing,16 and in July, she filed a motion to compel discovery and

for sanctions against the Department. See id. § 107.0131(a)(1)(C)(ii) (providing that

parent’s ad litem attorney may conduct discovery). Mother’s new attorney ad litem also

attended the August 2024 permanency hearing. See id. § 107.0131(a)(2)(G) (providing

that a parent’s ad litem attorney is entitled to attend all legal proceedings in the suit).

After nine or ten months in the RTC, Mother was transferred to a foster home in Texas

where she could have more contact with P.W.17

In November 2024, Foster Mother intervened, seeking to terminate Mother’s

parental rights on the same grounds as the Department and adding two drug-use

In December 2023, Mother’s guardian ad litem reported that she would not
15

oppose an RTC to address Mother’s needs. See Tex. Fam. Code Ann.
§ 107.002(j)(1)(A)–(C) (setting out a guardian ad litem’s responsibilities to a child that
may be placed in an RTC).

The original dismissal date was in June 2024, but on May 1, 2024, in response
16

to Mother’s attorney’s motion, the trial court extended the dismissal date to
December 21, 2024. See Tex. Fam. Code Ann. § 263.401(a)–(b).

Foster Mother brought P.W. to the RTC for one in-person visit with Mother,
17

but Mother also had Zoom visits with P.W. during that time.

23
grounds. See id. § 161.001(b)(1)(P), (R).18 She also requested permanent managing

conservatorship and declared her intent to adopt P.W.

In December 2024, Mother, her attorney ad litem, and her guardian ad litem

signed a Rule 11 agreement with the Department, P.W.’s guardian and attorney ad litem,

Foster Mother, and Foster Mother’s counsel in lieu of proceeding with the termination

trial to—as Mother’s attorney ad litem put it—“essentially g[e]t . . . an extension of time

to try to work to get [P.W.] back.” Compare id. § 107.002(b)(4) (stating that a child’s

guardian ad litem shall encourage settlement), and id. § 107.002(b)(3) (stating that a

child’s guardian ad litem shall consider the child’s expressed objectives without being

bound by those objectives), with id. § 107.0131(a)(1)(E) (stating that a parent’s attorney

ad litem shall encourage settlement), and id. § 107.0131(a)(H) (stating that a parent’s

attorney ad litem shall “abide by the parent’s objectives for representation”). The

agreement followed the required form of a binding MSA. See id. § 153.0071(d). The

agreement also represented that each party signing it had “entered into the settlement

agreement freely and without duress” and with “the opportunity to seek counsel from

their attorney before signing.”

18
Effective September 1, 2025, Section 161.001(b)(1) was amended, repealing
former Subsection (O)—the “failure to follow court orders” ground—and relabeling
then-Subsections (P) and (R) as Subsections (O) and (Q). See Act of May 14, 2025, 89th
Leg., R.S., ch. 211, §§ 2–4, 2025 Tex. Sess. Law Serv. 573, 574–75 (stating that the
change in the law “applies to a [SAPCR] that is pending in a trial court on the effective
date of this Act”). We refer above to the Subsections (P) and (R) in existence prior to
the 2025 amendment’s effective date.

24
Based on the agreement’s terms, the trial court appointed the Department as

P.W.’s managing conservator and made Mother a possessory conservator. See id.

§ 263.404(a) (allowing trial court to render a final order appointing Department as

managing conservator without terminating parent’s rights). Foster Mother was also

made a possessory conservator and retained possession of P.W.

In its order, the trial court continued the appointments of both Mother’s and

P.W.’s attorneys and guardians ad litem for “as long as the child remains in the

Conservatorship of the Department.” See id. § 107.016(1)–(2) (addressing duration of

a child’s ad litem appointments and a parent’s attorney ad litem’s appointment). The

trial court denied “all relief requested in this case[] and not expressly granted or reserved

for future action via the Rule 11 Agreement” and found that the agreement had been

filed with the court, stated that the agreement’s terms were “incorporated into the terms

of this Final Order,” and ordered the parties to comply with those terms. Among other

things, the agreement provided that if Mother violated any of her juvenile-court

probation terms, then an irrevocable affidavit of voluntary relinquishment that she had

signed that day would be accepted by the trial court, and her parental rights would be

terminated. See id. § 161.103 (setting out voluntary-relinquishment affidavit

requirements). All attorneys in the case, including Mother’s and P.W.’s guardians and

attorneys ad litem, signed the order “approved as to form.”

The affidavit signed by Mother designated the Department as P.W.’s managing

conservator, making the affidavit irrevocable, and it contained a waiver of process. See

25
id. § 161.103(c)(1), (e); see also Hon. Scott A. Beauchamp, Service and Default Judgments,

49 State Bar of Tex. Prof. Dev. Program, Advanced Family Law Course 53, 53.3 (2023)

(noting that the parental-rights-relinquishment affidavit provision that includes a waiver

of citation “is unusual in comparison to suits under the Texas Family Code and civil

cases generally, as the waiver can be signed before the termination suit has been filed”

(emphasis added)). Based on the record before us, Mother did not file any

postjudgment motions or attempt to appeal the trial court’s order. Cf. Tex. Fam. Code

Ann. §§ 109.002(b), 263.405(a).

2. Facts leading to Lawsuit #2

Between January and May 2025, Mother lived in her foster home, visited P.W.,

attended school, and participated in the Department’s services.

In February 2025, P.W.’s attorney and guardian ad litem filed a motion for entry

of the relinquishment affidavit, asserting that Mother had invoked its acceptance by

engaging in three instances of physical aggression. P.W.’s attorney and guardian ad

litem attached the Rule 11 agreement and the trial court’s December 2024 order to the

motion. The automated certificate of eService reflected that Mother’s guardian ad litem

and her attorney ad litem were served with the motion and its attachments, but the

record before us does not reflect further proceedings at that time. Instead, in

March 2025, Foster Mother invited Mother to a doctor’s appointment at which P.W.

26
was to be placed under anesthesia for a laryngeal scope.19 Foster Mother took a photo

of Mother that day that showed Mother asleep in the hospital bed intended for P.W.

Although the Department provided additional services to Mother during this

time—including a parenting coach, counseling, and medication management—Mother

violated the Rule 11 agreement and her juvenile probation by testing positive for

marijuana and then by running away from her foster home on May 4, 2025.20

3. Lawsuit #2

On May 13, 2025, the Department filed a new petition in the original cause

number, alleging the same grounds as the first lawsuit, including execution of an

irrevocable affidavit of relinquishment of parental rights. See id. § 161.001(b)(1)(K); see

also id. § 155.002 (stating that, with exceptions not applicable here, “a court with

continuing, exclusive jurisdiction retains jurisdiction of the parties and matters provided

Mother described the procedure as “for [P.W.’s] brain, like, her head surgery or
19

something like that.” P.W.’s caseworker said that this surgery was for P.W.’s throat but
added that P.W. had also undergone multiple brain scans regarding fluid in her head.
20
During trial, Mother complained about her foster home and testified that she
had felt she had no choice but to run away despite being aware that it would violate her
probation; she blamed her caseworker. During cross-examination, she admitted to
using marijuana in the foster home and stated that she had told her caseworker that she
did not want to be there “for certain reasons” but had not told him what those reasons
were. Mother’s caseworker testified that Mother “felt that the foster mom had too
many rules for her, and she didn’t want to follow all those rules,” including the one
about not smoking marijuana in the home. He denied that Mother had ever told him
about some of the complaints that she made at trial.

27
by this title”),21 § 155.003(a) (stating that, with exceptions not applicable here, a court

with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order

regarding conservatorship, possession of and access to the child, and child support); In

re Dep’t of Fam. & Protective Servs., 660 S.W.3d 161, 168 (Tex. App.—San Antonio 2022,

orig. proceeding) (explaining that when a trial court renders a final order establishing

the Department as permanent managing conservator, the court acquires continuing

jurisdiction over the child, with power to make future modifications to its order).

The petition listed Mother as a party to be served but with location “unknown,”

and it stated that the Department would request service of process when Mother’s

address became known. The record contains the automated certificate of eService

showing that both Mother’s attorney ad litem and her guardian ad litem received the

petition.

Ten days after the Department filed its new petition, the trial court heard the

motion for entry that had been filed by P.W.’s ad litem in February. The trial court

bench-filed the relinquishment affidavit after—according to the Department’s attorney

at a later hearing—making “the determination at that hearing that it was freely and

21
The record does not explicitly reflect Mother’s service with process in the first
lawsuit, and the Department was her managing conservator—making it a legal guardian
with an interest adverse to her. See Tex. R. Civ. P. 173.2(a)(1). Because we do not have
records of the first lawsuit’s hearings, we cannot say definitively that Mother was not
personally served at some point, but Mother does not argue that the trial court lacked
personal jurisdiction in the first lawsuit.

28
voluntarily made and that it should be filed with the Court.”22 The Department’s

attorney also stated that “all parties were present for the hearing.” We do not have a

record of the May 23, 2025 hearing.

On June 9, 2025, the Department filed its second amended petition in which it

again indicated that Mother’s location was unknown and that it would request service

when her address became known.23 The record contains an automated certificate of

eService showing that Mother’s attorney ad litem and her guardian ad litem received it.

A permanency hearing was held the next day. See Tex. Fam. Code Ann. § 263.501(a)

(requiring a permanency hearing every six months if the Department “has been named

as a child’s managing conservator in a final order that does not include termination of

parental rights,” until the Department is no longer the child’s managing conservator).

The order after the permanency hearing reflects that Mother appeared in person and

through her attorney ad litem and her guardian ad litem. We have no record of that

hearing.

22
An attorney’s statements are generally not evidence, but an attorney’s unsworn
statements at a hearing may be considered evidence in some cases, such as “when the
circumstances clearly indicate that the attorney is tendering evidence on the record
based on personal knowledge and the opposing party fails to object.” Vaccaro v. Raymond
James & Assocs., Inc., 655 S.W.3d 485, 491–92 & n.5 (Tex. App.—Fort Worth 2022, no
pet.) (setting out examples).
23
The record does not contain the first amended petition but references it in
Foster Mother’s waiver of service acknowledging that she had been provided a copy of
it.

29
Between May and July 2025, the Department’s representatives listed Mother as

“on runaway,” with “address unknown,” and she did not visit P.W. despite occasionally

calling her caseworker and P.W.’s caseworker. Mother was found at a Wal-Mart at the

end of July when her companion was caught shoplifting. She was placed in juvenile

detention, and thirteen days before the termination trial, she was sentenced to five years’

confinement in TJJD “with possible transfer to the Institutional Division of the Texas

Department of Criminal Justice.”

Mother was seventeen years old at the time of the October 2025 trial, where she

appeared in person and asked the trial court for one more chance to comply with the

Rule 11 agreement’s terms so she could get P.W. back.24 Mother’s guardian ad litem

appeared at the termination trial. Mother’s attorney ad litem announced ready at the

trial’s beginning and did not object when the Department’s counsel asked the trial court

to take judicial notice of Mother’s voluntary-relinquishment affidavit, which had been

filed in May 2025.25

24
P.W.’s ad litem attorney reported to the trial court that P.W. was in a “terrific”
foster home and deserved permanency, that the Rule 11 agreement had been Mother’s
second chance, and that Mother “blew it when she ran away from her placement and
when she used marijuana.”
25
Mother’s caseworker, P.W.’s caseworker, Mother, and Foster Mother testified
at trial, but we summarize only the testimony regarding Mother’s execution of the
relinquishment affidavit and Rule 11 agreement. See supra n.4.

30
During her direct examination by her attorney ad litem, Mother recalled going

line-by-line in reading through the voluntary-relinquishment affidavit and agreed that

her understanding had been that as long as she complied with the Rule 11 agreement’s

terms, P.W.’s attorney ad litem would hold onto the affidavit. Mother recalled initialing

the bottom of each of the affidavit’s pages and signing it in front of witnesses. Mother

also agreed that when she entered the Rule 11 agreement, she had the opportunity to

speak with her attorney ad litem and her guardian ad litem about the agreement and had

asked them questions, and she stated that she felt like she had signed the agreement

willingly and voluntarily.

Mother initially expressed that she had “[n]ot really” understood what she was

doing when she executed the Rule 11 agreement and stated that her trial counsel and

guardian ad litem had told her that if she did not sign it, she “would get [her] rights

terminated right then.” But upon further examination, Mother revealed that her

attorney ad litem and her guardian ad litem had told her that if she did not sign, she

would go to trial that day and that the trial court would decide whether she would lose

her parental rights. Mother had preferred to enter into the agreement instead of going

to trial so that she would have more time to show that she could become stable and

that she could be a good parent for P.W.

At the trial’s conclusion, Mother’s counsel argued against the termination based

on Mother’s having attempted to comply with the Rule 11 agreement despite her

caseworker’s lack of assistance.

31
The trial court terminated Mother’s parental rights to P.W. based on the child’s

best interest and the irrevocable relinquishment affidavit. See id. § 161.001(b)(1)(K),

(b)(2). The trial court’s order further states, “The Court finds that all persons entitled

to citation were properly cited” and states that Mother’s guardian ad litem “appeared

and announced ready.” Mother’s attorney ad litem and her guardian ad litem signed

the judgment “approved as to form.” Mother’s attorney ad litem did not file a motion

for new trial but did file a notice of appeal and a motion to withdraw and to substitute

appellate counsel.26

4. Post-trial proceedings

Mother’s appellate counsel filed a timely motion for new trial and a timely request

for findings of fact and conclusions of law. See Tex. R. Civ. P. 296.

In its findings of fact and conclusions of law, the trial court stated that Mother

had appeared and had been represented by her counsel, and it again found that “all

persons entitled to citation were properly cited.” It made the same findings that it had

made at trial regarding P.W.’s best interest and Mother’s affidavit of relinquishment,27

and Mother’s appellate counsel did not file a request for additional or amended findings

26
The trial court granted the motion and appointed appellate counsel for Mother.
27
The trial court found by clear and convincing evidence that Mother “executed
before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment
of parental rights” and that termination of Mother’s parental rights to P.W. was in the
child’s best interest.

32
and conclusions. Cf. Tex. R. Civ. P. 298; see Tenaska Energy, Inc. v. Ponderosa Pine Energy,

LLC, 437 S.W.3d 518, 523 (Tex. 2014) (explaining that the court defers to unchallenged

fact-findings that are supported by some evidence).

In her new-trial motion, Mother argued, among other complaints, that the trial

court had lacked personal jurisdiction over her based on her minority and lack of service

and that the relinquishment affidavit was involuntary and improperly contingency on

the Rule 11 Agreement.

Mother’s appellate attorney and her guardian ad litem attended the new-trial

hearing on December 5, 2025, as did P.W.’s attorney and guardian ad litem, Foster

Mother’s attorney, and the Department’s attorney. Mother’s appellate attorney

informed the trial court that the hearing was to preserve Mother’s constitutional issues.

He asserted that Mother had been “induced” to sign the relinquishment affidavit to

avoid the first lawsuit’s trial, characterizing the combination of the Rule 11 agreement

and relinquishment affidavit as a “weird, Frankenstein-ish thing.” He argued that

nothing in the law allowed “a contingent affidavit of relinquishment of parental rights”

and that Mother’s due-process rights had been violated when there had been no hearing

on the affidavit’s voluntariness or on whether she had violated the Rule 11 agreement.

And he contended that the trial court had no jurisdiction to hear the second lawsuit

because Mother had not been served with the petition and had not signed a waiver.

The Department’s counsel responded that the trial court had found the

relinquishment freely and voluntarily made at the May 23, 2025 hearing and pointed out

33
that Mother had admitted at trial “that she had been told that she had an opportunity

to go to trial, to present witnesses, and that the judge would ultimately decide, but that

she still decided to sign the voluntary relinquishment” and that there was no evidence

of duress or coercion.

P.W.’s guardian and attorney ad litem stated that she had set the motion for entry

of the relinquishment affidavit for a hearing in May and that the trial court had accepted

it and bench-filed it. She also reminded the trial court about the case’s background,

stating, “[T]he reason why we were forced to do this, quote, Frankenstein Rule 11

agreement is because when we showed up for the original final trial, we found out that

the [Department’s then-attorney] . . . had not responded to discovery, and therefore, all

of the witnesses would have been excluded.”

Foster Mother’s counsel stated that she “would just echo what [the Department’s

attorney] stated” in that there was a hearing on the entry of the relinquishment affidavit,

that “there has been no challenge to . . . the affidavit and whether it was properly

executed,” and that the record showed that Mother “had proper representation by both

an attorney ad litem and a guardian ad litem throughout the case.”

No testimony was presented at the new-trial hearing, and the trial court denied

the new-trial motion.

5. Analysis

Because Mother’s three points are interrelated, we will discuss them together, but

we must begin and conclude with her third point, challenging the trial court’s personal

34
jurisdiction over her. The record reflects that Mother signed an irrevocable affidavit of

voluntary relinquishment containing a waiver of service of process under Section

161.103, which allows a parent, “whether or not a minor,” to do so. See Tex. Fam. Code

Ann. § 161.103(a)(1), (c)(1). We agree with the Amarillo court that the Legislature has

specifically granted legal capacity to a minor under the circumstances presented by

Section 161.103. See S.A.S., 613 S.W.2d at 543; see also Beauchamp, supra at 53.22

(explaining that an exception to a minor’s incapacity to make a voluntary appearance,

sign a waiver of service, or take other voluntary acts to submit to a court’s jurisdiction

“occurs whe[n] a minor executes an affidavit of voluntary relinquishment [of] parental

rights that includes a waiver of service”).28

Further, because evidence that an affidavit of voluntary relinquishment has been

signed, notarized, witnessed, and executed in compliance with Section 161.103 is prima

facie evidence of its validity, see R.B., 225 S.W.3d at 804, Mother’s waiver of service

before the second lawsuit’s filing was effective if her decision to execute the affidavit

28
Other exceptions to a minor parent’s incapacity include the authority to
maintain a proceeding on behalf of his or her child for child support, see Tex. Fam.
Code Ann. § 159.302; and—under different circumstances—to consent to the child’s
medical, dental, psychological, or surgical treatment, see id. § 32.003(a)(6), (b); see also
Hachem, supra at 14.17 (stating that along with Section 161.103’s voluntary-
relinquishment affidavit, “these authorities [Sections 32.003 and 159.302] indicate a
minor parent is given specific statutory authority to make legal decisions for her
child . . . [and] together indicate a minor-parent statutorily assumes unique rights that
require the capacity of the minor-parent to be treated differently in a suit that involves
that minor-parent’s legal rights in a parent–child relationship”).

35
was not the product of duress or coercion. See Tex. Fam. Code Ann. § 161.211(c); D.S.,

602 S.W.3d at 508 (“When parental rights are terminated based on an affidavit

voluntarily relinquishing those rights, [S]ection 161.211(c) of the Texas Family Code

limits . . . attacks on the termination order to specific grounds: fraud, duress, or coercion

in the execution of the affidavit.”). We thus turn to Mother’s first and second points.

Mother argues in her second point that she executed the affidavit under duress

and coercion, and she directs us to the portion of her testimony that she asserts shows

that she signed it under the coercion of what she characterizes as her counsel’s legally

incorrect advice “that she had no choice but to sign it or lose her child.”29 [ But when

viewed in context, as set out above, the record does not support her assertions. See

D.E.H., 301 S.W.3d at 828–29 (defining coercion and duress); In re M.A.W., 31 S.W.3d

372, 375–76 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.) (affirming

termination based on irrevocable relinquishment affidavit when mother’s new-trial

evidence did not show duress, overreaching, coercion, or fraud but rather that she had

changed her mind).

As set out above, at trial, the trial court could have reasonably found by clear and

convincing evidence that Mother had executed the affidavit voluntarily, knowingly, and

intelligently with full awareness of its legal consequences based on her trial testimony

29
Mother appears to question some of her trial counsel’s choices but does not
raise an ineffective-assistance point. Cf. In re D.T., 625 S.W.3d 62, 73 (Tex. 2021).

36
and on its findings at the unrecorded May 23, 2025 hearing, when it bench-filed the

affidavit. See R.B., 225 S.W.3d at 806 (“While appellants may have been under

considerable pressure to make a decision [about whether to sign the relinquishment

affidavits], the record shows that they were represented by counsel, were aware of the

documents they were signing, and understood the consequences.”); In re A.P., No. 02-

15-00176-CV, 2015 WL 7304051, at *8–9 (Tex. App.—Fort Worth Nov. 19, 2015, no

pet.) (mem. op.) (stating that the parent failed to demonstrate that he was incapable of

exercising his free agency and unable to withhold his consent when he failed to testify

to any circumstances supporting an allegation of duress); see also In re J.O.A., 283 S.W.3d

336, 346 (Tex. 2009) (recognizing that the factfinder, not the appellate court, is the sole

arbiter of the witnesses’ credibility and demeanor). Because no evidence to the contrary

was brought forth at the new-trial hearing, we overrule Mother’s second point.

Finally, under Mother’s first point, she concedes that her affidavit contained all

of Section 161.103’s statutory language, but she nonetheless argues that the trial court

erred by granting termination when the affidavit was improperly made contingent on a

Rule 11 agreement and complains that the Family Code does not provide for contingent

affidavits of relinquishment. However, Mother ignores that nothing in her affidavit’s

contents made it expressly contingent on anything—either the Rule 11 agreement or

any specific action or inaction.30 It was, on its face, enforceable against Mother when

In her first point, Mother also raises a variety of due-process-based policy
30

complaints that she did not make in the trial court or in her postjudgment motion

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signed. And the Rule 11 Agreement, which complied with the Family Code’s MSA

requirements, see Tex. Fam. Code Ann. § 153.0071(d),31 set out requirements to which

Mother agreed (with the assistance of her ad litems) in exchange for the other parties’

agreement not to immediately file the affidavit but rather to give Mother additional time

to show she could be a good parent to P.W.32

Further, Section 161.211(c)’s restrictions do not allow Mother to make these

complaints about the affidavit. See id. § 161.211(c) (limiting direct or collateral attack

on order terminating parental rights based on unrevoked affidavit of relinquishment to

“issues relating to fraud, duress, or coercion in the execution of the affidavit”); see also

D.S., 602 S.W.3d at 509 (holding Section 161.211(c)’s plain language forecloses a

regarding her characterization of the affidavit as contingent. See Tex. R. App. P. 33.1;
J.P.-L., 592 S.W.3d at 575; see In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (requiring
preservation of constitution-based complaints in termination cases). Mother raises
additional due-process complaints about the affidavit under her third point, but like the
arguments under her first point, she did not raise them at trial or in her new-trial motion.
See Tex. R. App. P. 33.1.
31
A MSA 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. Tex. Fam. Code Ann. § 153.0071(d).

Although Mother complains that the relinquishment affidavit’s “conditional
32

nature” was not referenced in the trial court’s findings of fact and conclusions of law,
counsel did not seek amended or additional findings and conclusions.

38
collateral attack on an erroneous home-state determination even if it implicates a trial

court’s subject matter jurisdiction). We overrule Mother’s first point.

Having rejected Mother’s challenges to the affidavit, we further hold that its

waiver of process was effective in the subsequently filed termination proceeding. We

therefore overrule her third point challenging personal jurisdiction.

III. CONCLUSION

Having overruled Mother’s three points, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack
Justice

Delivered: February 26, 2026

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