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TEXAS COURT OF APPEALS, THIRD
DISTRICT, AT AUSTIN

NO. 03-07-00003-CV

Alexander Vallejo,
Appellant

v.

Texas Department of Family and
Protective Services, Appellee

FROM THE DISTRICT
COURT OF TRAVIS COUNTY, 126TH JUDICIAL
DISTRICT

NO. D-1-FM-06-000091, HONORABLE SUZANNE COVINGTON,
JUDGE PRESIDING

O R D E
R

Alexander Vallejo challenges the district court's determination that
his appeal is frivolous. Vallejo filed a statement of points on appeal in
which he asserted that the trial court erred by involuntarily terminating
his parental rights after he filed an affidavit of voluntary
relinquishment. The trial court determined that Vallejo's appeal was
frivolous, thus denying him the right to a free record on appeal.
See Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (West 2002);
Tex. Fam. Code Ann. § 263.405(d)(3) (West 2002). We find no abuse of
discretion in the district court's determination that this appeal is
frivolous.

We review a trial court's determination that an appeal is frivolous
under an abuse of discretion standard. In the Interest of
W.B.W., 2 S.W.3d 421, 422 (Tex. App.--San Antonio 1999, no pet.). An
appeal is frivolous when it lacks an arguable basis in law or in fact.
De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.
App.--San Antonio 1998, no pet.). In determining

whether an appeal is frivolous, the trial judge may consider whether
the appellant has presented a substantial question for appellate review.
Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b).

The Department sought termination of the parental rights of the parents
of A.V. After the termination hearing began, Vallejo executed an affidavit
of voluntary relinquishment of his parental rights. The court proceeded to
terminate his parental rights involuntarily, listing four bases and the
best interest of the child as set out in the statute:

The court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence:

(1) that the parent has:

. . . ;

(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of
the child;

. . . ;

(K) executed before or after the suit is filed an unrevoked or
irrevocable affidavit of relinquishment of parental rights as provided in
this chapter;

. . . ; [or]

(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Protective and
Regulatory Services or an authorized agency for not less than six months,
and:

(i) the department or authorized agency has made reasonable efforts to
return the child to the parent;

(ii) the parent has not regularly visited or maintained significant
contact with the child; and

(iii) the parent has demonstrated an inability to provide the child
with a safe environment;

. . . ; and

(2) that termination is in the best interest of the child.

Tex. Fam. Code Ann. § 161.001 (West Supp. 2007).

Vallejo states that he does not intend to challenge the termination of
his parental rights and will not seek to withdraw his voluntary
relinquishment. Instead, he wants this Court to vacate the affirmative
findings that his actions or inactions endangered the children because
those determinations could affect his parental rights to other children
that he might one day have. See id. § 161.001(1)(M). He also
wants the finding that termination is in A.V.'s best interest vacated.

Vallejo offers several arguments that he asserts present a substantial
question for appeal. He contends that, because this case concerns a
voluntary relinquishment, the involuntary termination statute is
inapplicable. He contends that voluntary relinquishments of parental
rights are effective on execution and are not subject to analysis
regarding the best interest of the child. See Tex. Fam. Code Ann.
§ 161.103 (West 2002). He contends that his voluntary relinquishment
rendered the involuntary termination proceeding moot and stripped the
district court of jurisdiction to determine whether any other grounds for
involuntary relinquishment existed. He also contends that his failure to
appeal the termination on grounds that he constructively abandoned the
child does not foreclose him from appealing the findings that he engaged
in particular conduct that placed the child in danger. Additionally,
Vallejo contends that the issue of whether the trial court can
involuntarily terminate the parental rights of someone who has voluntarily
relinquished those rights is not frivolous because it is not clearly
resolved by statutory or case law.

This case is an involuntary termination proceeding. Family code section
161.001 applies. Vallejo filed his voluntary relinquishment affidavit on
the third day of the hearing on the involuntary termination petition, on
the same day the court signed the termination decree. No law states that
an irrevocable affidavit of voluntary relinquishment automatically
terminates both parental rights and an involuntary termination proceeding.
See Tex. Fam. Code Ann. §§ 161.001, .103. Instead, the
legislature included the execution of a voluntary relinquishment affidavit
among the alternative grounds for involuntary termination with no hint
that it excludes or preempts other grounds. See Tex. Fam. Code
Ann. § 161.001(1)(K). Even a voluntary relinquishment affidavit
signed before the filing of a termination suit can support involuntary
termination.
(1) See id. Thus, filing an affidavit of voluntary
relinquishment does not render the involuntary termination statute
inapplicable or deprive the trial court of jurisdiction by mooting any
part of the proceeding. Regardless of what general concepts of mootness
might indicate, the legislature has decreed that a voluntary
relinquishment affidavit can be an element of--but is not independently
sufficient to support--an involuntary termination. The trial court is not
prohibited from considering other grounds for termination and must
additionally consider whether termination is in the child's best interest.
See id. § 161.001.

The language of the affidavit also supports the district court's
finding. After statements regarding the relinquishment of parental rights,
the affidavit provides:

I fully understand that a lawsuit has been filed in Travis County, to
terminate forever the parent-child relationships between me and the
above-named Child. I fully understand that the termination suit may or may
not be combined with a suit to adopt my Child. I understand that either
way, once the Court terminates my parental rights, I have no further say
concerning my Child, whether or not my child [is] adopted then or at some
later time.

. . . .

I do not want to be informed further about the lawsuit, and I waive and
give up my rights to be given notice about anything going on in the
lawsuit. I specifically agree that a final hearing in the lawsuit may be
held at a time without further notice to me.

. . . .

Furthermore, I do not want to be mailed or given a copy of the judgment
terminating my parental rights and do not want to be notified of the
signing, rendition, or entry of that judgment.

. . . .

I FULLY UNDERSTAND THAT I WILL NOT BE INFORMED FURTHER ABOUT THE
TERMINATION SUIT.

. . . .

Termination of the parent-child relationships between me and my Child,
so that they may be placed for adoption, is in the best interest of the
Child. I understand that I make this termination possible by executing
this Affidavit.

These passages acknowledge that the termination suit has been filed and
will continue without Vallejo's involvement after the execution of
the affidavit. The statement that execution of the affidavit "make[s]
the termination possible" anticipates that, despite the execution of
the affidavit, further action will be needed to effectuate the
termination of parental rights. Although the affidavit does not alter
the structure of state law, it is consistent with the interpretation of
the statutes that a voluntary relinquishment affidavit does not moot
further proceedings in an involuntary termination proceeding.

Against this statutory and factual backdrop, we find no abuse of
discretion in the district court's determination that an appeal premised
on the assertion that "[t]he District Court erred in terminating
Respondent's parental rights pursuant to Tex. Fam. Code §§ 161.001(D) and
(E) when Respondent had previously signed a valid affidavit of voluntary
relinquishment of parental rights" lacked an arguable basis in fact and
law.

This decision is not a final determination on the merits and does not
foreclose Vallejo from presenting this argument on appeal. This order only
affirms the trial court's finding that the appeal is frivolous, which
denies him the right to a free record on appeal. See Tex. Civ.
Prac. & Rem. Code Ann. § 13.003; Tex. Fam. Code Ann. §
263.405(d)(3).

Ordered April 18, 2008.

G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

1. Vallejo argues that this section is best read as
being applicable only when the affiant seeks to revoke the affidavit of
voluntary relinquishment. The statute contains no indication of such a
limitation. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2007
).