Full opinion text
Justice O’NEILL delivered the Court’s judgment, and the opinion of the Court as to Parts I, II, and IVA, in which Justice ENOCH, Justice SCHNEIDER, Justice SMITH, and Justice WAINWRIGHT joined, and an opinion as to Part III and IVB, in which Justice ENOCH, Justice SCHNEIDER, and Justice SMITH joined. Almost four years ago, Ricardo Dueñas and Luz Sylvestre Inocencio signed sworn affidavits of voluntary relinquishment of their parental rights to five-month-old twin boys. At the same time, they placed the boys in the care of Miles and Monica Mon-tegut, a couple who wanted to adopt them. The boys have grown from infants to toddlers to pre-school age children in the Monteguts’ care as this case has taken its excruciatingly slow course through our judicial system. Dueñas and Inocencio have been represented by counsel since the beginning of their quest to set the affidavits aside. As today’s fractured opinions illustrate, appellate review has been greatly hampered by the shifting, indistinct focus of their complaints — although the case has been pending for more than a year, we still disagree about what the complaints are and whether they were preserved. In this context, adhering to our preservation rules isn’t a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose. As we recently said, “[ajppellate review of potentially reversible error never presented to a trial court would undermine the Legislature’s dual intent to ensure finality in these cases and expedite their resolution.” In re B.L.D. and B.R.D., 113 S.W.3rd 340, 353 (Tex.2003); see also Tex. Fam.Code § 161.211(a) (prohibiting direct or collateral attack on order terminating parental rights based on affidavit of relinquishment after six months). Injecting any greater uncertainty and complexity into the process would only serve to discourage potential adoptive parents, who are already turning to simpler and less expensive foreign adoptions in record numbers. See Genard C. Armas, Many U.S. Parents Look Abroad to Adopt, Census Bureau Says, Miami HeRAld, Aug. 22, 2003, available at http://www.miami.com/mld/miami herald/2003/08/22/news/nation/6591007. htm; United States Census büReau, United States Depaetment of CommeRce, Adopted ChildRen StepchildREN: 2000-11 (Aug. 2003). Here, after hearing evidence regarding the circumstances surrounding the affidavits’ execution and the boys’ best interests, the trial court ordered termination of Due-nas’s and Inocencio’s parental rights. The court of appeals affirmed. 117 S.W.3d 1. Dueñas argues that the affidavit he signed was procured in a manner that violated his right to due process because he neither speaks nor reads English, and the affidavit was not translated into Spanish. We granted Duenas’s petition for review to consider this constitutional issue, but on further review we conclude that the issue was not preserved. We also granted Ino-cencio’s petition for review to decide whether the order terminating her parental rights should be set aside because her relinquishment affidavit was procured as the result of fraud or undue influence. A majority of the Court concludes that the record contains legally sufficient evidence to support termination of her parental rights. Accordingly, we affirm the court of appeals’ judgment. I In April 1999, fifteen-year-old Inocencio gave birth prematurely to twin boys, L.M.I. and J.A.I., allegedly fathered by twenty-five-year-old Ricardo Dueñas. Dueñas and Inocencio were not married or living together at the time. At some point before the boys’ birth, Inocencio had become acquainted with Texas City police detective Brian Goetschius, who had responded to a report that Inocencio was working as a nude dancer at a sexually oriented business. Detective Goetschius began offering Inocencio occasional advice, sometimes at her mother’s behest. After learning of her pregnancy, Goetschius drove Inocencio to several doctor’s appointments and helped her apply for governmental assistance. Five months after the boys were born, Inocencio’s sister, Esther Gonzalez, contacted the detective asking for help in placing the children for adoption. Eventually, Goetschius and his wife, Dawnell, arranged for the children to be adopted by Monica and Miles Monte-gut, Dawnell’s sister and brother-in-law. On September 24, 1999, Gonzalez went to her mother’s home, where Inocencio and the boys lived, and told Inocencio that the Monteguts wanted to adopt the children. Gonzalez, Inocencio, and their mother, Guillerma Pruitt, all testified that Inocen-cio at first rejected the idea of allowing the adoption, but was ultimately persuaded that it would be in the boys’ best interest. Gonzalez then drove Inocencio, the twins, and Pruitt to pick up Dueñas at the restaurant where he worked. The group proceeded to the office of the Monteguts’ attorney, Mark Ciavaglia, who had prepared irrevocable affidavits of relinquishment of parental rights for Inocencio and Dueñas to sign. Dueñas, a Honduran citizen, testified that he does not understand English, that none of the affidavit was translated for him, and that he did not understand the affidavit’s import. Other witnesses testified that Dueñas appeared to understand Ciavaglia’s explanation of the affidavit, and that significant portions of the affidavit were translated. Ciavaglia then explained the affidavit to Inocencio, who testified that Ciavaglia advised her not to sign if she had any reservations. Inocen-cio initially refused to sign the affidavit, but changed her mind after the adoptive parents agreed to send her pictures and information about the boys’ condition twice a year. After both Inocencio and Dueñas signed their respective affidavits, they left the boys with Ciavaglia to be surrendered to the Monteguts. A few days later, Inocencio had a change of heart and decided to pursue legal action to regain custody of the children. On October 1, 1999, the Monteguts filed their petition to terminate the parenVchild relationship. The same day, the trial court issued a temporary order giving the Mon-teguts custody of the children. Three days later, Inocencio filed a motion to revoke her affidavit. On November 17,1999, Dueñas filed his answer to the Monteguts’ petition and a counter-petition for voluntary paternity. He also filed a motion to revoke his affidavit of relinquishment. On November 23, 1999, the trial court held a hearing on the motions to revoke the affidavits to determine whether the affidavits were executed involuntarily. After hearing testimony from nine witnesses, the trial court found that the affidavits were voluntarily executed. The court also found that Dueñas was not the children’s presumed father, and that the legal parent-child relationship did not exist at the time Dueñas signed his affidavit of relinquishment. The trial court further found by clear and convincing evidence that it was in the children’s best interest to terminate Duenas’s and Inocencio’s parental rights. The court ordered Duenas’s and Inocencio’s rights terminated, and awarded the Monteguts custody of the children. The court of appeals affirmed the trial court’s decision. 117 S.W.3d 1. II Duenas’s petition for review argues that “the order terminating [his] parental rights should be set aside since [his] signature on the affidavit of relinquishment was procured in a manner that violated [his] due process rights.” Upon further review of the record, we conclude that Dueñas failed to preserve this issue in the trial court. His answer and counterpetition to the termination proceedings cite no constitutional authority, and he did not raise the issue in any post-judgment motion. In fact, the only reference to the constitution in the entire record appears when Due-nas’s attorney, in arguing for a continuance, explained that she had only recently been hired after Duenas’s coworkers told him that the termination “was probably not constitutional and not right.” Due-nas’s “Revocation of Affidavit” merely states that “[t]he Affidavit of Relinquishment was not translated for me.” The trial court obviously did not discern a due process challenge in Duenas’s argument, because the court specifically found that “RICARDO DUEÑAS present[sic] issues of fraud, duress, and overreaching to the Court to deny that his Father’s Affidavit of Relinquishment of Parental Rights was signed voluntarily.” See Vela v. Marywood, 17 S.W.3d 750, 760 (Tex.App.-Austin 2000, pet. denied, 53 S.W.3d 684 (Tex.2001) (noting that at common law “the word ‘fraud’ refers to an ... omission, or concealment in breach of a legal duty ... when the breach causes injury to another or the taking of an undue and unconscien-tious advantage”)). Dueñas, who was represented by counsel, sought no finding and raised no legal argument before the trial court about a constitutional claim. Given that Dueñas was afforded an extensive evidentiary hearing on the voluntariness of his affidavit, it was not apparent from the context that Dueñas was attempting to raise a due process challenge. Under our Rules of Appellate Procedure, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling. Tex.R.App. P. 3B.1. As noted above, allowing appellate review of unpreserved error would undermine the Legislature’s intent that cases terminating parental rights be expeditiously resolved, thus “ ‘[p]romot[ing] the child’s interest in a final decision and thus placement in a safe and stable home.’ ” In re B.L.D. and B.R.D., 118 S.W.3d at 353 (quoting In re J.F.C., 96 S.W.3d 256, 304 (Tex.2002)). Both we and the United States Supreme Court have held that constitutional error was waived in comparable circumstances. See Webb v. Webb, 451 U.S. 493, 496-97, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981) (holding that constitutional error was waived, even though petitioner repeatedly used the phrase “full faith and credit,” because petitioner did not cite to the federal Constitution or to any cases relying on the Full Faith and Credit Clause of the federal Constitution); Tex. Dep’t of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 860-61 (Tex.2001) (holding that alleged biological father who sought to establish paternity waived constitutional error, though it was undisputed that father had received no notice or hearing on prior paternity adjudication that created bar). Accordingly, we hold that the due process argument Due-ñas raises here was not preserved below. And due process is the only argument that Dueñas raises here. Nowhere does he present the issue that Justice Hecht and Justice Owen pose, that there is not clear and convincing evidence of a statutory ground for reversal. 119 S.W.3d at 730 (Hecht, J. dissenting); 119 S.W.3d at 716 (Owen, J., dissenting). At oral argument, Duenas’s attorney expressly disavowed any argument that his affidavit did not comply with the statute: JUSTICE OWEN: Are you also making a statutory argument that it doesn’t comply with the statute? DUENAS’S ATTORNEY: As it relates to him, I’ve not made any statutory argument. OWEN: Your only argument was due process? CASEY: Yes. That concession was entirely consistent with Duenas’s briefing, which states the issue presented is “Should the order terminating RICARDO’s parental rights be set aside since RICARDO’s signature on the affidavit of relinquishment of his parental rights was procured in a manner that violated RICARDO’s due process rights?” Because the only issue presented in Due-nas’s petition for review was not preserved, we affirm the court of appeals’ judgment as to Dueñas. Ill Inocencio argues that the order terminating her parental rights should be set aside because it was procured in exchange for unenforceable promises and as the result of illegal conduct by Detective Goetschius, his wife, and Esther Gonzalez. Inocencio argues that the Monteguts’ promise to provide periodic information and photographs of the boys was unenforceable as a matter of law, citing Vela. Because the promise was unenforceable, she argues, the promise fraudulently induced her to sign the affidavit of relinquishment. Inocencio filed no pleadings or post-trial motions in the trial court challenging the enforceability of the Monteguts’ promise, even though she, like Dueñas, was represented by an attorney. The only documents Inocencio presented in the trial court were her “Revocation of Affidavit,” and a handwritten letter attached to a letter from the attorney who had been representing her mother in her effort to be named the twins’ managing conservator in which Inocencio states that “[t]he only reason [the boys] are not with us now is because of my sisters [sic] threats and badgering.” Inocencio’s revocation states only that “[i]t is my desire to revoke [the affidavit of relinquishment].” While there is evidence that the promise of pictures and updates played a significant role in Inocencio’s decision to sign the affidavit, her argument about the enforceability of that promise was never raised or ruled upon. Inocencio thus waived this challenge to the affidavit, and we express no opinion on it. See In re Barr, 13 S.W.3d 525, 555 (Tex.Rev.Trib.1998); Tarrant County Water Control and Imp. Dist. Number One v. Fullwood, 963 S.W.2d 60, 72 (Tex.1998). Inocencio also contends that Detective Goetschius, his wife, and Gonzalez acted as adoption intermediaries without meeting the requirements of Chapter 42 of the Human Resources Code; consequently, she argues, their actions amount to undue influence in her decision to relinquish her parental rights. But like her argument regarding the purported unen-forceability of the Monteguts’ promises, Inocencio never raised or secured a ruling on this theory in the trial court. Accordingly, it too is waived. IV A. A brief response to the dissenting justices’ depiction of the record in this case is warranted. Both dissents effectively second-guess the trial court’s resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible. Even under the standard we articulated in In re J.F.C., this reweighing of the evidence is improper. See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). And in a case like this, where so much turns on the witnesses’ credibility and state of mind, appellate factfinding is particularly dangerous. Neither of the dissents, for example, credits evidence that Dueñas understood English. This is important, because the evidence is undisputed that Ciavaglia went over the affidavit with Dueñas in English, although he may have paraphrased parts of it. For example, Gonzalez testified that Ciavaglia “went step by step and made sure to — that [Dueñas and Inocencio] understood what, they were signing-Mark [Ciavaglia] explained it in detail. And Ricardo kept on, like he acknowledged what was being said.” And Ciavag-lia testified that he told Dueñas that “[t]his document is very — excuse me — very important. And that by signing it, you’re acknowledging that you understand this document and you understand the consequences of this document, and that you fully, finally, and forever give up any parental rights to your children. And you also relinquish your right and give up your right to change your mind.” Ciavaglia also testified that he went “through the form and I was explaining it to [Dueñas].” And Duenas’s testimony about his ability to understand English was inconsistent; although he testified that he understood no English whatsoever, he soon contradicted himself: ATTORNEY AD LITEM: Mr. Dueñas, I’m a little confused as to how much English you understand. Let me go over some testimony that I think you gave the court a little bit earlier. When the lawyer told you in English to sign here and initial here, did you tell the Court that you understood that? DUEÑAS: Yes, I did understand. Dueñas also submitted a Statement of Paternity in English and swore, in the attached verification, “that he has read the foregoing Statement of Paternity.” Other witnesses testified that Dueñas appeared to understand what was transpiring at the affidavit signing: Q: How did you receive the information from Ricardo Dueñas? CIAVAGLIA: I asked him verbally. Q: And was he able to understand what you asked him and relay the information? CIAVAGLIA: He seemed to be. He seemed to understand English and responded to questions. Q: When you asked for his name, did he respond with his name correct — give you a detail of his name, or did he write it out? How did he do it? CIAVAGLIA: He pronounced it, and I just wrote it. As I wrote his last name, I spelled it out loud; and he acknowledged that was correct. And Gonzalez testified that after Dueñas signed the affidavit, she told him in English, “Thank you. What you are doing is very courageous.” She then asked her mother to translate, but Dueñas interrupted and told the mother it was unnecessary. Moreover, there was evidence that Dueñas had been working four years for a chef who spoke only English. Although Due-ñas testified that a coworker translated the chefs directions, the trial court may have found Duenas’s self-contradicted testimony that he understood no English after four years in this environment not credible. The trial court may also have found Dueñas not credible because he testified that none of the affidavit had been translated for him, when every other witness testified that at least some portions of the affidavit were translated. In any event, the trial court had the opportunity to observe Duenas’s responses and demeanor; second-guessing the trial court’s factfinding in these circumstances is unwarranted and ill-advised. B. Moreover, the dissenters’ assumption that Duenas’s mere biological relationship with the twins afforded him “rights, fundamental and constitutional in their magnitude” is questionable. As we have noted, the trial court found that Dueñas was not the twins’ presumed father, and that Due-ñas had no legal relationship with the boys at the time he signed the affidavit. Due-ñas, a twenty-five-year-old man, admits that he fathered twin sons by a fifteen-year-old child who was incapable of legally consenting to a sexual relationship. Due-ñas signed the affidavit relinquishing his parental rights more than five months after the boys’ birth, while he was living with another woman. Until he filed a counter-petition for paternity in this case (five days before the scheduled termination hearing, almost two months after signing the relinquishment affidavit, and more than seven months after Inocencio gave birth to the twins), Dueñas took no steps to establish parental rights. Moreover, Dueñas did not request a full translation of the relinquishment affidavit, even though there was nothing to prevent him from doing so and he knew that the proceedings would affect the boys’ future. His failure to do so could be interpreted as disinterest. And there is evidence that Dueñas contributed little, if any, to the boys’ support and daily care. The record strongly suggests that Inocen-cio’s mother had assumed almost complete responsibility for the twins, and it is undisputed that she had moved to be named their managing conservator. The boys were receiving public assistance through the WIC program, and at one point there was an attempt to obtain child support from Dueñas through the attorney general’s office. The Supreme Court has made it abundantly clear that a man’s mere biological relationship with a child is insufficient to confer a protected liberty interest upon him. In Lehr v. Robertson, the Court explained: The difference between the developed parent-child relationship that was implicated in Stanleyl v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551] and Caban, [v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297] and the potential relationship involved in Quilloin [v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)] and this case, is both clear and significant. "When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child,” his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he “act[s] as a father toward his children.” But the mere existence of a biological link does not merit equivalent constitutional protection.... “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘pro-mot[ing] a way of life’ through the instruction of children as well as from the fact of blood relationship.” 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (citations omitted) (emphasis added). In Lehr, the Court held that a putative father who had never established a substantial relationship with his child was not entitled to notice of adoption proceedings as a matter of due process. Id. at 265, 103 S.Ct. 2985. This Court, too, has long recognized that any constitutional interest a putative father may claim stems from his acceptance of “the legal and moral commitment to the family,” not from a mere biological relationship. In re K., 535 S.W.2d 168, 171 (Tex.1976), cert. denied, 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976); see also In re T.E.T., 603 S.W.2d 793, 795 (Tex.1980), cert. denied sub nom., Oldag v. Catholic Charities of the Diocese of Galveston-Houston, 450 U.S. 1025, 101 S.Ct. 1732, 68 L.Ed.2d 220 (1981) (holding that statute that imposed different requirements to establish parental rights on father than on mother did not violate father’s right to equal protection under the law); In re J.W.T., 872 S.W.2d 189, 195 (Tex.1994) (noting that a father’s constitutional “interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood [or if the father has not] ‘taken concrete actions to grasp his opportunity to be a father’ ”) (quoting In re Adoption of B.G.S., 556 So.2d 545, 550 (La.1990)). V Because the theories on which Dueñas and Inocencio seek to reverse the court of appeals’ judgment were never presented in the trial court, they were not preserved for our review. Accordingly, we affirm the court of appeals’ judgment. Justice WAINWRIGHT delivered a concurring opinion. Justice OWEN delivered a concurring and dissenting opinion, joined by Chief Justice PHILLIPS as to all Parts, and joined by Justice HECHT and Justice JEFFERSON as to Part III. Justice HECHT delivered a dissenting opinion, in which Justice JEFFERSON joined. . Dueñas and Inocencio both testified that he contributed to the twins' support, but their testimony about the extent of that support is inconsistent. There is undisputed evidence that, at the affidavit signing, Inocencio stated that Dueñas "didn't help her, [she] thought he was a sh* * *y a* * father.” . The dissenting opinion in Lehr reveals that the biological father in that case had aggressively pursued a relationship with the child, but had been thwarted by the child’s mother. Lehr, 463 U.S. at 268-69, 103 S.Ct. 2985 (White, J., dissenting). Nevertheless, the Court held that the putative father’s lack of any substantial relationship with the child weighed against recognizing a constitutional right to notice and hearing.
Justice WAINWRIGHT, concurring. I join the Court in affirming the court of appeals’ judgment. However, I join only sections I, II, and IV.A. of Justice O’Neill’s writing concerning the judgment on Ricardo Duenas’s appeal, and section VII of Justice Owen’s writing concerning the judgment on Maria Inocencio’s appeal. The Court today holds that Ricardo Dueñas failed to preserve the issue he presented for our review — that the procurement of his affidavit of relinquishment and the subsequent termination of his parental rights constituted a violation of his right to due process under the United States Constitution. Because he failed to preserve the sole issue raised in his petition, determining the burden of proof applicable to his affidavit of relinquishment of parental rights is unnecessary to resolve his appeal. I agree that Maria Inocencio preserved for our review the issue that execution of her affidavit of relinquishment was rendered involuntary by the coercion, deception and undue influence by certain individuals, including her sister and the persons seeking to adopt the twins. Accordingly, a legal sufficiency review of the issue Inocencio raises is required, and I agree with the result of Justice Owen’s writing on this point. I write separately to express my concern about another issue in this case. At trial, Inocencio represented to the court that to set the relinquishment affidavit aside, she had the burden of proof by a preponderance of the evidence to show that it was executed as a result of coercion, duress, fraud, deception, undue influence, or overreaching. Some courts of appeals likewise have held that the parent who executed the relinquishment affidavit has the burden to prove by a preponderance of the evidence that it was not executed voluntarily in order to avoid the very serious consequences of its execution. See, e.g., In re D.R.L.M., 84 S.W.Bd 281, 296-298 (Tex.App.-Fort Worth 2002, pet. denied); In re V.R.W., 41 S.W.3d 183, 193 (Tex.App.Houston [14th Dist.] 2001, no pet.); Coleman v. Smallwood, 800 S.W.2d 353, 356 (Tex.App.-El Paso 1990, no writ). Justice Owen, applying a different approach, cites the requirement under the Constitution and the Texas Family Code that the ultimate burden of proof, based on clear and convincing evidence, remains with the party seeking to terminate the parental rights. She recognizes that, absent any other evidence, a trial court could base termination on a relinquishment affidavit. If the burden to disprove the affidavit at trial remains on the parents in this circumstance, as stated by Inocencio at trial, then the constitutional and statutory requirements would be violated. I maintain that where a “voluntarily” executed relinquishment affidavit is the sole ground for termination of parental rights under section 161.001(1) of the Family Code, placing the burden on the parents to set aside the affidavit may run afoul of constitutional and statutory mandates for the burden of proof and quantum of evidence necessary to terminate parental rights. This issue was not briefed, nor was it expressly decided in the courts below. Inocencio’s appeal is unsuccessful under either approach. Accordingly, it is not necessary to decide this issue in this case. Justice OWEN, concurring and dissenting, joined by Chief Justice PHILLIPS, Justice HECHT and Justice JEFFERSON joined in Part III. I dissent from the judgment terminating Ricardo Duenas’s parental rights. Although I agree that Dueñas did not raise a due process issue in the trial court, and therefore no due process complaint was preserved for appeal, Duenas’s underlying complaint is that there is no clear and convincing, legally sufficient evidence that the affidavit of relinquishment he signed was knowingly and thus voluntarily executed. An affidavit relinquishing parental rights is a waiver of a constitutionally protected, “fundamental liberty interest of natural parents in the care, custody, and management of their child.” In that regard, it differs from affidavits commonly used in other civil proceedings, such as affidavits containing factual assertions in support of a motion or brief. As a waiver of a constitutionally protected interest, an affidavit of relinquishment must be a voluntary, knowing, and intelligent act. The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires that before a state can irrevocably sever the rights of a parent, the evidence of grounds for termination must at least be clear and convincing. Accordingly, when the basis for termination is an affidavit of relinquishment, there must be clear and convincing evidence that the waiver was knowing, intelligent, and voluntary. In the case before us today, there is no clear and convincing, legally sufficient evidence that material parts of the affidavit Dueñas signed were disclosed to him and thus that he in actuality swore to and agreed to be bound by the affidavit. The affidavit that Dueñas signed was entirely in English. No one disputes that Dueñas, a Honduran citizen, was unable to read English. The evidence is accordingly confined to what was said to Dueñas in English and Spanish about the affidavit. There is no evidence, however, that Due-nas’s command of the spoken English language was such that he understood what was said to him in that language. The Court concludes that the trial court could have surmised that Dueñas understood more English than he and others said he could. But a surmise is no evidence at all, much less clear and convincing evidence. The Court can point to nothing in the record other than speculation that Dueñas was able to comprehend what was said to him in English when he was directed to sign the affidavit. We are thus left to examine what was said to Dueñas in Spanish. The evidence is undisputed that the affidavit of relinquishment was never read to Dueñas in Spanish. The grandmother of the children made a short statement to him in Spanish about the purpose of the affidavit. That statement did not apprise him of material provisions of the affidavit. Duenas’s complaint that his affidavit was not knowing and voluntary is a valid one and was preserved. I would therefore reverse the termination of his parental rights. With regard to the mother of the children, Luz Maria Inocencio, I join in this Court’s judgment terminating her parental rights, but I do not agree with the reasoning of Justice O’Neill’s concurring opinion. I Ricardo Dueñas and Luz Maria Inocen-cio are the biological parents of twins. When the children were born, Dueñas and Inocencio were not married. Inocencio was fifteen, and Dueñas was twenty-five. The children and Inocencio lived with her mother when they came home from the hospital. There were familial difficulties, and at some point, Inocencio’s mother filed a proceeding with the trial court requesting that she be named managing conservator. While that proceeding was pending, Miles and Monica Montegut became involved with the family and hoped to adopt the twins. In the interest of brevity, I will not repeat the facts set forth in Justice Hecht’s dissenting opinion in any detail. I think it is important to emphasize, however, that the Monteguts, who were the prospective adoptive parents, were the moving force behind this controversy. Neither the State of Texas nor any state entity sought termination of the biological parents’ rights. The Monteguts retained an attorney to assist them with the adoption of the children. That attorney arranged for Due-ñas and Inocencio to come to his office to sign affidavits that purported to relinquish their respective parental rights. However, about a week later, Inocencio sought to revoke her affidavit and forestall any termination or adoption proceedings. Her mother was supportive of these efforts and had not dismissed the proceeding requesting that she be named managing conservator. In the face of opposition from Inocencio and her mother, the Monteguts nevertheless desired to proceed with adoption efforts and filed suit against Dueñas and Inocencio, requesting the trial court to terminate the latters’ parental rights. Due-ñas then sought to revoke or otherwise set aside the affidavit that he had signed and filed a counterclaim seeking to establish his paternity. The trial court consolidated the Monte-guts’ suit with the proceeding that had been filed by Inocencio’s mother. The affidavits of relinquishment that Dueñas and Inocencio had signed stated that they were irrevocable, but only for sixty days. At the end of sixty days, the affidavits were fully revocable. The trial court denied Dueñas and Inocencio’s motion for a continuance and proceeded with a bench trial in the consolidated proceedings just prior to the expiration of the sixty-day window during which the affidavits were irrevocable. (The affidavits were signed September 24, 1999, trial occurred on November 22 and 23, 1999, and an order of termination was entered December 16, 1999.) The trial court terminated Duenas’s and Inocencio’s parental rights based on the affidavits and appointed the Monteguts managing conservators of the children. Dueñas and Inocencio appealed, and the court of appeals affirmed the trial court’s order of termination. This Court granted the joint petition for review filed by Due-ñas and Inocencio. II In deciding this case, it must first be determined what arguments have been made and if they were preserved for appeal. The affidavit that Dueñas filed in the trial court in an attempt to revoke the “Affidavit of Relinquishment of Parental Rights” that he had previously signed said, “[t]he Affidavit of Relinquishment was not translated for me. I was told I would go to jail if I did not sign the documents.” Unquestionably, much of the trial in this case was devoted to determining the extent to which Dueñas was apprised of the contents of the affidavit and the extent to which he understood what he had signed. The trial court’s only basis for terminating Duenas’s parental rights was the relinquishment affidavit, which the trial court affirmatively found had been “signed voluntarily” and was not procured by fraud, duress, or coercion. In the court of appeals, Dueñas contended for the first time that his due process rights had been violated. In setting forth how he believed those rights had been violated, he explained that it was because the affidavit that he signed was in English, which he could not read, and that it was not translated into Spanish for him either orally or in writing. His brief in the court of appeals contained a section titled “Scope of Review-Appellate Court Must Look at All Evidence.” In that section, the brief said: “This Honorable Appellate Court must sustain Appellants’ challenge to the sufficiency of the evidence if this Court finds that the trier of fact could not have reasonably found the termination of Appellants’ rights was not [sic] established by clear and convincing evidence.” In our recent decision in In re J.F.C., we held that “[i]n a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” Thus, the basis Dueñas articulated for his due process claim was that the evidence was legally insufficient to support a finding that he had properly executed a voluntary affidavit of relinquishment. Duenas’s briefing in this Court does not contain the identical statement regarding “sufficiency of the evidence” that was in his court of appeals’ brief. But a fair reading of his brief in this Court shows that his . basic complaint underlying and supporting his due process issue is that the evidence was legally insufficient to support the trial court’s findings regarding the affidavit. The entire focus of the statement of facts in Duenas’s brief is that he does not understand English and that the substance of the affidavit was not translated for him, nor was its substance explained to him in Spanish. He repeats the arguments he made in the court of appeals that the trial court’s finding must be based on clear and convincing evidence and that his execution of the affidavit of relinquishment was not knowing and voluntary because its core terms were not translated for him. He asserts that the clear and convincing evidence burden of proof “is not lessened by proof of an irrevocable affidavit of relinquishment. In fact, such affidavit being one of the alleged grounds for termination, the affidavit must be established under that burden of proof.” He is thus complaining that there was no clear and convincing evidence to support a finding that his affidavit was knowingly and voluntarily executed. Certainly, Dueñas could have more clearly articulated that he was bringing a legal sufficiency challenge in this Court. But his failure to use “magic words” is not fatal. The United States Supreme Court has said in an analogous context: A generic reference to the Fourteenth Amendment is not sufficient to preserve a constitutional claim based on an unidentified provision of the Bill of Rights, but in this case the authority cited by petitioner and the manner in which the fundamental right at issue has been described and understood by the Illinois courts make it appropriate to conclude that the constitutional question was sufficiently well presented to the ’ state courts to support our jurisdiction. Similarly, as Justice Hecht’s dissent points out, this Court has long held that points of error (now “issues or points presented for review”) and arguments made in briefs will be liberally construed “to obtain a just, fair and equitable adjudication of the rights of the litigants.” We should be particularly careful to avoid dismissing substantive arguments on overly technical procedural grounds when termination of parental rights is at issue. At least one Texas court of appeals has said in a parental termination case, “[w]e interpret [the biological mother’s] appellate attack on the voluntariness of her affidavit as a challenge to the legal sufficiency of the evidence to support the trial court’s presumed voluntariness finding.” I would similarly hold that Dueñas preserved a legal sufficiency challenge in this Court. To support its holding that error was not preserved, this Court quotes counsel for Dueñas and Inocencio when he said, in response to a question at oral argument, that his clients have not contended that the affidavit fails to comply with the Family Code. But counsel’s response to the question at oral argument does not amount to a statement, much less an admission, that the legal sufficiency of the evidence supporting the voluntariness of the affidavits is not at issue. Accordingly, I would decide Duenas’s petition based on his complaint that there is no legally sufficient evidence that his execution of the relinquishment affidavit was knowing and thus voluntary. Ill The trial court’s only basis for terminating Duenas’s rights was the relinquishment affidavit. A parent who signs such an affidavit is surrendering rights protected by the United States Constitution. The United States Supreme Court has made clear that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” We have likewise recognized that a waiver of constitutional rights must be voluntary, knowing, and intelligent, with full awareness of the legal consequences. To that end, the Legislature has enacted requirements to ensure that a parent’s voluntary relinquishment of his or her rights to a child is indeed voluntary and is done with full knowledge of the rights that are being relinquished and the legal consequences. A trial court may terminate a parent’s rights if the court finds by clear and convincing evidence that the parent executed “an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter.” Among other things, the affidavit must contain “a statement that the parent has been informed of parental rights and duties” and a statement that the relinquishment is revocable, irrevocable, or irrevocable for a stated period of time. When a trial court is presented with an affidavit that, on its face, meets the requirements of section 161.103, the affidavit itself is prima facie proof that it was knowingly and voluntarily executed. Absent any other evidence, the trial court could base termination on such an affidavit. If a parent challenges the affidavit, the burden to produce evidence shifts to the parent to come forward with evidence that the affidavit was not knowingly and thus voluntarily executed. But the constitutional and statutory requirement that parental rights cannot be terminated unless grounds for termination are established by clear and convincing evidence necessarily means that the ultimate burden of proof based on clear and convincing evidence remains with the party seeking to terminate the parental rights.. There has been some confusion among our courts of appeals about the burden of proof when an affidavit of relinquishment is challenged. The court of appeals in Neal v. Texas Department of Human Services correctly recognized that “[bjecause of the very nature of a voluntary relinquishment of parental rights, ... it is implicit in the language of section 15.03 that such an affidavit be executed voluntarily.” And the court in that case correctly observed that a reviewing court must apply the clear and convincing standard of proof as part of its review of the evidence to determine whether an affidavit was voluntary: "When the trier of fact is required to make a finding made [sic] by clear and convincing evidence, the court of appeals will sustain an insufficient evidence point of error only if the fact finder could not have reasonably found that the fact was established by clear and convincing evidence. Having reviewed all of the evidence in the record under the clear and convincing standard of proof, we conclude that the record before us does not contain evidence of that effect and quality. From the evidence in the record, we further conclude that the trial court could not have reasonably found by a “firm belief or conviction” that Dianna voluntarily executed the affidavit for relinquishment of parental rights. Similarly, the court in B.A.L. v. Edna Gladney Home reviewed the record evidence of voluntariness based on the clear and convincing evidence standard, recognizing that at all times, the ultimate burden remained on the proponent of the affidavit to prove by clear and convincing evidence that the affidavit was voluntarily executed without duress. The court concluded: After reviewing the record of the hearing on the motion for new trial and viewing it in the light of the standards set forth above, we have no trouble in holding that there was clear and convincing evidence to support the judgment of the trial court and the findings of fact necessarily implied to support that judgment. Under this evidence it is obvious, and the trial court was clearly entitled to find, as it did, that appellant signed the relinquishment affidavit voluntarily, intelligently, and knowingly, she was aware that she could keep her baby if she so desired with the full support, financial and otherwise of her own family, and she made her own choice to place the baby for adoption without any undue influence, pressure or overreaching on the part of The Edna Glad-ney Home. Other decisions of the courts of appeals, however, have shifted the burden of proof to a parent challenging the affidavit. Those courts have said that once it is proven that a parent signed the affidavit, the parent must prove by a preponderance of the evidence that the affidavit was executed as a result of coercion, duress, fraud, deception, undue influence, or overreaching. The first of these decisions seems to have been Coleman v. Small-wood, and the courts of appeals that have followed it have done so without any analysis of why. The decision in Coleman relied on Pattison v. Spratlan and Terrell v. Chambers for its conclusions. The holding in Pattison was simply that “[i]n the absence of a statement of facts showing duress, we must presume in support of the judgment that appellant failed to establish her defense of duress.” Thus, with no analysis and no comment at all about the burden of proof in a termination case, the court of appeals in Pattison labeled “duress” a “defense” in a termination case. The court in Terrell cited Pattison for the proposition that the burden of proof is on a parent challenging an affidavit based on fraud or misrepresentation. The Terrell decision also cited one of this Court’s decisions, Catholic Charities v. Harper, for the proposition that an “irrevocable affidavit of relinquishment can be revoked only upon a showing of fraud, misrepresentation, over-reaching, or the like.” Our decision in Catholic Charities was issued twenty years before our decision in In re G.M., in which we held that a court may not terminate parental rights unless it finds there are grounds for doing so by clear and convincing evidence, and more than twenty years before the United States Supreme Court said the same in Santosky v. Kramer. , None of the courts of appeals that have shifted the burden of proof to a parent in a termination case have analyzed how that burden shifting comports with the clear and convincing evidence standard the United States Supreme Court has said is mandated by the United States Constitution. And some of those same courts of appeals have exhibited a misunderstanding of the standard of review on appeal when the burden of proof in the trial court was clear and convincing evidence. They instead used the standard of review that applies when the burden of proof is only a preponderance of the evidence and when the appealing party has the burden of proof in the trial court. Just recently, this Court explained the impact that the clear and convincing evidence requirement has on appellate review. The clear and convincing evidence requirement necessarily means that the burden of proof that an affidavit of relinquishment was voluntarily executed cannot be shifted to a parent. There must be clear and convincing evidence, from the record as a whole, that the affidavit was knowingly and voluntarily executed. Shifting the burden of proof to a parent is in irreconcilable conflict with the clear and convincing standard of proof that the United States Supreme Court has said the federal Constitution requires before parental rights can be terminated and that the Texas Legislature has required in parental termination cases. To illustrate, if a parent produced evidence that made it equally as likely that the affidavit was involuntary as it was that the affidavit was voluntary, the parent would not have carried the preponderance burden of proof that some courts of appeals have imposed. But, a court could not sustain termination on such a record because “a reasonable trier of fact could [not] have formed a firm belief or conviction that its finding was true.” Some courts of appeals have held that the logical progression of placing the burden of proof on a parent in challenging an affidavit is that on appeal, not only does a parent have to show that there was no evidence to support the trial court’s finding that the affidavit was signed knowingly and voluntarily, the parent must also establish as a matter of law that the affidavit was not knowingly or voluntarily executed. This is clearly at odds with the constitutional and, in Texas, statutory requirement that a trial court cannot terminate a parent’s rights unless it finds grounds to do so from clear and convincing evidence. The confusion that some courts of appeals have had regarding a parent’s burden is shared by Dueñas and Inocencio. In their briefing in this Court, they quote from In re Bruno, saying that an “ ‘affidavit may be set aside only upon proof, by a preponderance of the evidence, that the affidavit was executed as a result of coer-cion_”’ However, neither the trial-court nor this Court has been led into error by these statements. The transcript of the termination hearing reflects that the trial court was unpersuaded that the parents bore the burden of proving by a preponderance of the evidence that they had not voluntarily signed the affidavits. More importantly, the trial court’s order terminating Duenas’s and Inocencio’s parental rights affirmatively found based on clear and convincing evidence that each parent had executed an affidavit voluntarily. The trial court did not fail to find that Due-nas’s or Inocencio’s affidavit was knowing or voluntary, which would have been appropriate if the trial court thought the parents had the burden of proof regarding their affidavits. Nor does the trial court’s order or any of its findings mention preponderance of the evidence or otherwise indicate that it placed the burden of proof on Dueñas and Inocencio. The trial court correctly concluded that it could not terminate the parents’ respective rights unless it found by clear and convincing evidence that they had voluntarily executed an affidavit of relinquishment. This Court should not mislead the bench and bar by applying a different, incorrect burden of proof and consequently an incorrect standard of review on appeal simply because a party’s briefing incorrectly states the burden of proof. Nor should we ignore controlling United States Supreme Court precedent. In Santosky v. Kramer, the Supreme Court squarely held that in parental termination proceedings, due process requires that the burden of proof be at least clear and convincing evidence because the risk of error from using a preponderance standard is too great: Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a “fair preponderance of the evidence” standard in such proceedings is inconsistent with due process. The statute under review in Santosky permitted a state to terminate a parent’s rights upon a finding by a preponderance of the evidence “that the child is ‘permanently neglected.’ ” The Supreme Court did not specifically address termination based on an affidavit of relinquishment. But the Supreme Court’s reasoning and holdings were broad, and this Court must follow Supreme Court precedent unless and until the Supreme Court narrows or changes its reasoning and holdings To say that a biological parent must prove by a preponderance of the evidence that an affidavit of relinquishment was involuntary not only shifts the burden of proof to the biological parent, it would lead to the incongruous result that a preponderance standard is constitutionally infirm for resolving some factual disputes over whether grounds exist for termination of parental rights, but would be acceptable in determining if other grounds — such as an affidavit signed by a parent — exist. The Supreme Court seems to have foreclosed parsing of this kind when it said in Santo-sky, “this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other ‘procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.’ ” The Supreme Court elaborated, explaining that the value society places on the individual liberty at issue dictates the degree of confidence in the correctness of factual conclusions: “[T]he standard of proof is a crucial component of legal process, the primary function of which is ‘to minimize the risk of erroneous decisions.’ ” Notice, summons, right to counsel, rules of evidence, and evidentiary hearings are all procedures to place information before the factfinder. But only the standard of proof “instructs the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions” he draws from that information. The statutory provision of right to counsel and multiple hearings before .termination cannot suffice to protect a natural parent’s fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts. The Supreme Court concluded: “Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable.” Any parens patriae interest a state may have in terminating a biological parent’s rights arises only after grounds for terminating that parent’s rights have been found in a court of law to exist. Accordingly, the Supreme Court explained, the “State’s interest in finding the child an alternative permanent home arises only ‘when it is clear that the natural parent cannot or will not provide a normal family home for the child.’ ” The Supreme Court continued: “At the fact-finding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.” This reasoning applies with equal force when an affidavit of relinquishment is the evidentiary basis for finding that the parent will not provide a home for the child. There must be clear evidence that the affidavit was a knowing and voluntary statement that the parent has chosen to relinquish all responsibility and rights regarding the child. The Supreme Court also expressly rejected the idea that a child’s interest in stability might outweigh the interests of a biological parent. The Santosky decision held that a state court’s suggestion “that a preponderance standard properly allocate[d] the risk of error between the parents and the child ... is fundamentally mistaken.” The Court reiterated in that decision, “we cannot agree ... that a preponderance standard fairly distributes the risk of error between parent and child.” The Court said, “the parents and the child share an interest in avoiding erroneous termination.” The state court’s rationale for using a preponderance of the evidence standard “reflect[ed] the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights.” The Supreme Court soundly rejected this assessment of a parent’s and child’s respective interests. The Supreme Court reasoned that the consequences for an erroneous termination are more severe for a parent than a child: For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity. The Supreme Court has also clearly indicated that any interest of prospective adoptive parents does not change this analysis. Accordingly, in determining whether grounds for termination exist, to which the Supreme Court referred as the “factfinding” stage, the vital interest in preventing erroneous termination requires a clear and convincing standard: “But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.” In the case before us today, the children and their parents likewise share a vital interest in preventing erroneous termination. The error-reducing procedure required by the United States Supreme Court in Scmtosky and by the Texas Legislature in Family Code section 161.001(1)(K) is that a court may not terminate a parent’s rights unless it finds grounds for termination by clear and convincing evidence. The sole ground for termination in this case is the execution of affidavits of relinquishment. Unless and until there is clear and convincing evidence that an affidavit was indeed knowing and voluntary, termination cannot lawfully occur. Once again, I do not suggest that an affidavit that appears on its face to have been properly executed cannot constitute clear and convincing evidence when there is no challenge to the affidavit. But when there is evidence that the affidavit was not voluntary, all the evidence must be considered to determine whether there is clear and convincing evidence that it was voluntary. IV In this case, Dueñas presented evidence that he could not read the affidavit, that his command of the English language was very minimal, and that critical provisions were not translated for him into Spanish. In the face of this evidence, what clear and convincing evidence was there from which the trial court could have found that Due-ñas knowingly and intelligently surrendered his parental rights with sufficient awareness of the relevant circumstances and the likely consequences? Section 161.103 of the Texas Family Code requires that an affidavit of relinquishment state that the parent has been informed of parental rights and duties and whether the affidavit is revocable, irrevocable, or irrevocable for a stated period of time. What clear and convincing evidence is there that Dueñas was apprised of these matters and then voluntarily relinquished all parental rights? The decision in Queen v. Goeddertz, cited by Dueñas in his briefing in this Court, is instructive. In that case, a father executed an affidavit relinquishing his parental rights so that his wife’s new husband could adopt the child. In two places on the affidavit, handwritten additions had been inserted that said the relinquishment was subject to the biological father’s understanding that he would have the right to visit the child each month. The court of appeals held that this provision was unenforceable and that the voluntariness of the affidavit was thereby negated. In this case, as can be seen from the evidence, Dueñas understood that “he wasn’t going to be the father anymore.” But that is not the same as an understanding that he would no longer be able to visit or telephone his children, or take them to a ball game, or attend school functions, or indeed, see them again. Furthermore, it is undisputed that Dueñas was never told that the affidavit was irrevocable for sixty days and that during that time, his children could be adopted by people he did not know and that all ties he had with the children would be severed. Because the Court characterizes the evidence surrounding Duenas’s execution of his affidavit, I think it is helpful to look at the evidence itself, as Justice Hecht’s dissent has done. The Court says that the trial court could have made its own determination about the extent to which Dueñas understood English in spite of the undisputed testimony that Duenas’s command of the English language was extremely limited. The Court’s reasoning is directly contrary to our precedent. At most, the trial court could have had a suspicion about the extent of Duenas’s proficiency in the English language. But that is not legally sufficient evidence, particularly when the burden of proof is clear and convincing evidence. Esther Gonzalez, who is Ino-cencio’s sister and who was largely responsible for arranging the adoptions, said unequivocally and without contradiction, “I am not fluent in Spanish, so I cannot communicate with him [Dueñas].... So, if anything, it would have to be told to him. My mother and my sister would have to be the ones.” Gonzalez also stated, “I have not had any communication with Ricardo [Dueñas] one on one because I cannot converse fluently in Spanish.” A paralegal for the Monteguts’ attorney understood some Spanish, and she witnessed all