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declining to vacate the court of appeals’ opinion because the Court "d[id] not perceive that a parent's decision to voluntarily terminate his or her parental rights would be motivated by a desire to manipulate precedent or any gamesmanship whatsoever"
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No. 20-0940
04-22-2022
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Petitioner, v. N.J., Respondent
Brittany Darby, for Other interested party B., L. Stephen DeBye, for Other interested party B., M. Jennine M. Jarolik, Warren Kenneth Paxton, Austin, Judd E. Stone II, Brent Webster, Houston, Eric Hamilton, for Petitioner. Agata Vana, for Respondent.
Brittany Darby, for Other interested party B., L.
Stephen DeBye, for Other interested party B., M.
Jennine M. Jarolik, Warren Kenneth Paxton, Austin, Judd E. Stone II, Brent Webster, Houston, Eric Hamilton, for Petitioner.
Agata Vana, for Respondent.
Justice Huddle delivered the opinion of the Court.
In this parental termination case, the Department of Family and Protective Services filed a petition for review seeking to reinstate a decree terminating the parental rights of N.J. The court of appeals reversed, concluding the trial court lacked personal jurisdiction because N.J., herself a minor, was never served in the trial court. After the Department filed its petition here, N.J. turned 18 and voluntarily executed an affidavit relinquishing her parental rights, mooting the Department's appeal. The Department delayed notifying the Court of this development for over a year, during which time we requested merits briefing, granted the Department's petition, and set the case for oral argument. Shortly before oral argument, the Department moved to (1) dismiss the appeal on the ground that the relinquishment affidavit rendered the case moot, (2) vacate the court of appeals’ judgment and opinion, and (3) vacate the trial court's judgment in part. We grant the Department's motion in part.
The Department began termination proceedings against N.J. three months after she gave birth, when N.J. was 15. The Department concedes that N.J. was not served with citation of the petition. See TEX. FAM. CODE § 102.009(a)(7) (requiring service of citation on each parent as to whom parental rights have not been terminated and process has not been waived). But the trial court appointed N.J. an attorney ad litem, who filed an answer on N.J.’s behalf and personally appeared with N.J. at several preliminary hearings. The child's paternal grandmother, L.S., intervened, seeking appointment as sole managing conservator.
The Department also sued to terminate the alleged father's parental rights. The trial court's judgment terminated his parental rights in accordance with the jury's verdict, and he did not appeal.
The trial court conducted a three-day jury trial in January 2020. N.J. testified and asked the jury not to terminate her parental rights and to place her child with L.S. L.S. also testified, asking the jury to appoint her as managing conservator. The jury returned a verdict terminating N.J.’s parental rights and appointing the Department as the child's managing conservator. The trial court signed a final "Decree of Termination" in accordance with the verdict. N.J. timely appealed, but L.S. did not.
The court of appeals reversed the trial court's judgment and remanded the case for a new trial, concluding that the trial court lacked personal jurisdiction over N.J. 613 S.W.3d 317, 319 (Tex. App.—Austin 2020). The court held that N.J. could not waive service or consent to the court's jurisdiction, even through her voluntary appearance, because minors are non sui juris , meaning they lack the capacity to sue or consent to suit. Id. at 321. The court of appeals concluded that, because neither N.J., nor N.J.’s parent, nor a person designated as her legal guardian or "next friend" was ever served with citation, the trial court never acquired personal jurisdiction over her. Id. at 322.
The Department petitioned this Court for review in December 2020. We ultimately granted the Department's petition and set this case for oral argument on February 24, 2022. Ten days before argument, the Department moved to dismiss. The Department's motion explained, for the first time, that N.J. had executed an affidavit of voluntary relinquishment of her parental rights more than a year earlier, after she reached the age of majority. See TEX. FAM. CODE § 161.103. The Department's motion requested that we (1) dismiss the appeal as moot, (2) vacate the court of appeals’ judgment, (3) vacate the trial court's judgment "to the extent it depended on personal jurisdiction over [N.J.]," and (4) vacate the court of appeals’ opinion. N.J. filed a response in which she agreed that the appeal is moot and should be dismissed but opposed the Department's request to vacate the court of appeals’ opinion. We agree with the parties that the appeal is moot. A case is moot when a justiciable controversy no longer exists between the parties or when the parties no longer have a legally cognizable interest in the outcome. In re J.J.R.S. , 627 S.W.3d 211, 225 (Tex. 2021). A case may become moot at any time, including on appeal. In re Guardianship of Fairley , ––– S.W.3d ––––, 2022 WL 627776, at *5 (Tex. Mar. 4, 2022). Because courts lack subject-matter jurisdiction to decide a moot controversy, see State ex rel. Best v. Harper , 562 S.W.3d 1, 6 (Tex. 2018), we must dismiss a case that is moot for want of jurisdiction. Heckman v. Williamson County , 369 S.W.3d 137, 162 (Tex. 2012).
N.J.’s appeal challenged the trial court's judgment terminating her parental rights. Following the court of appeals’ judgment remanding the case for a new trial, N.J. executed an affidavit agreeing to "the termination of my parental rights." In light of N.J.’s decision to voluntarily relinquish her parental rights, a justiciable controversy between the parties no longer exists. Accordingly, N.J.’s appeal is moot, and we dismiss the portion of the case that N.J. appealed. See TEX. R. APP. P. 56.2 ("If a case is moot, the Supreme Court may ... dismiss the case or the appealable portion of it....").
We also vacate the court of appeals’ judgment. When a case becomes moot on appeal, a court must vacate any previously issued order or judgment associated with it. Heckman , 369 S.W.3d at 162 ("If a case is or becomes moot, the court must vacate any order or judgment previously issued...."). Our "usual practice" is to vacate the court of appeals’ judgment when a case become moot on appeal to this Court. Morath v. Lewis , 601 S.W.3d 785, 789 (Tex. 2020) ; see also City of Krum v. Rice , 543 S.W.3d 747, 750 (Tex. 2017) (vacating court of appeals’ judgment after case was "rendered moot by changes in the law").
The Department also asks that we vacate "in part" the trial court's judgment. The final termination decree (1) terminated N.J.’s parental rights based on the jury's verdict, (2) terminated the parental rights of the child's father based on the jury verdict, and (3) appointed the Department as the child's permanent managing conservator. The Department asks that we vacate the trial court's judgment "to the extent it depended on" that court's "personal jurisdiction over [N.J.]."
The court of appeals reversed the portion of the trial court's judgment terminating N.J.’s parental rights, but while the Department's petition was pending, N.J. voluntarily terminated those rights. That action mooted the appeal, but it ultimately will result in the same judgment as to N.J. (termination of her parental rights) and has no effect on the other relief granted by the trial court (termination of the father's parental rights and appointment of the Department as permanent managing conservator). Accordingly, without addressing the merits of the appeal, we vacate the portion of the trial court's judgment terminating N.J.’s parental rights. See Hous. Mun. Emps. Pension Sys. v. Ferrell , 248 S.W.3d 151, 153 (Tex. 2007) ("[B]ecause Ferrell's case is now moot, we vacate the court of appeals’ judgment as to Ferrell and the trial court's orders to the extent that they affect Ferrell's claims....").
The only disputed issue between the parties is whether to vacate the court of appeals’ opinion. Dismissing a case for mootness typically does not include vacatur of the court of appeals’ opinion. See Morath , 601 S.W.3d at 790 ("Unlike in federal practice, ... Texas practice contemplates that a court of appeals’ judgment may be vacated without also vacating the corresponding opinion."). Instead, our "usual procedure" is to leave the court of appeals’ opinion in place. Ritchey v. Vasquez , 986 S.W.2d 611, 612 (Tex. 1999).
The Department argues that this case falls within the exception we recognized in Morath . There, we explained that vacatur of a court of appeals’ opinion in a moot case is "a discretionary equitable remedy" appropriate only when we "conclude[ ] that the public interest would be served by a vacatur." Morath , 601 S.W.3d at 791 (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship , 513 U.S. 18, 26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) ). We held that vacatur of the court of appeals’ opinion in that case served the public interest because (1) mootness was "wholly the result of voluntary action by the party who prevailed below," (2) the legal issues were "potentially of consequence to schools across Texas and to the government's defense of ultra vires claims in other contexts," and (3) the nonsuit "came only after at least three judges of this Court decided the case was sufficiently worthy of further examination to request merits briefs." Id. at 792. We noted the possibility of gamesmanship by parties who may seek to preserve favorable appellate precedent through strategically timed nonsuits. Id.
Considering both our usual procedure and Morath , we decline the Department's invitation to vacate the court of appeals’ opinion. Although the appeal became moot wholly as a result of voluntary action by the party who prevailed below—N.J.—this case is unlike Morath in that we do not perceive that a parent's decision to voluntarily terminate his or her parental rights would be motivated by a desire to manipulate precedent or any gamesmanship whatsoever. See id. (noting timing of nonsuit suggested it could have been filed "in hopes of preserving a favorable appellate precedent after this Court showed interest in reviewing it"). And the Department's long delay in notifying the Court of the events that rendered the appeal moot does not help its request for discretionary equitable vacatur. On these facts, without regard to the case's merits, we conclude that vacatur of the court of appeals’ opinion does not serve the public interest.
N.J. signed the affidavit of relinquishment in January 2021. The Department asked the trial court to "withhold accepting" the relinquishment affidavit because of the pending petition for review in this Court. The record does not reveal the basis for this request, but the Department's failure to notify this Court of the affidavit's existence for over a year after N.J. signed it resulted in the Court and its dedicated staff spending dozens of hours on a case the Department presumably knew was moot. We encourage more prompt communication regarding such case-turning developments from all litigants, but particularly from a state agency that frequently appears in our courts.
For the above reasons, we grant the Department's motion to dismiss in part and deny it in part. Without hearing oral argument, and without regard to the merits, we dismiss the appealed portion of the case as moot, vacate the court of appeals’ judgment, vacate the trial court's judgment in part, and remand the case to the trial court for further proceedings. See TEX. R. APP. P. 56.2.
Justice Lehrmann filed a concurring opinion.
Justice Lehrmann, concurring.
I agree with the Court and the parties that this case is largely moot, that the court of appeals’ judgment should be vacated, and that the trial court's judgment should be vacated in part. I further agree with the Court's denial of the Department's motion to vacate the court of appeals’ opinion in accordance with Morath v. Lewis, 601 S.W.3d 785, 790 (Tex. 2020) (explaining that we generally decline to vacate the court of appeals’ opinion in response to mootness but that we may do so in an appropriate case). I write separately to note that our decision to let the court of appeals’ opinion stand is no endorsement of its reasoning or conclusion. We took this case for a reason: the issue of how courts obtain personal jurisdiction over minor parents in parental termination cases is important and unsettled. And the court of appeals’ opinion further muddies the waters.
The court of appeals held that N.J.’s (the mother whose rights were terminated) repeated appearances in open court alongside her appointed attorney ad litem were insufficient to waive service of citation because, as a minor, she lacked capacity to do so. 613 S.W.3d 317, 321 (Tex. App.—Austin 2020) (citing TEX. R. CIV. P. 120 (providing that a defendant may "in person, or by attorney, or by his duly authorized agent, enter an appearance in open court" and that such appearance has "the same force and effect as if the citation had been duly issued and served as provided by law")). In that court's view, the Department needed to personally serve either N.J., her legal guardian, or her "next friend" for the trial court to obtain personal jurisdiction over her. Id. But as the opinion itself implicitly acknowledges, the Department would have run into difficulties serving any of these parties.
First, the court of appeals cites an opinion issued by another appellate court concluding that minors’ legal disability means they cannot be personally served. Id. at 322 (citing 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) ("A minor is without legal capacity to waive service of process or accept service of process. " (emphasis added))). Accordingly, the court of appeals acknowledges that minors lack capacity to accept personal service, thereby indicating that the Department could and should not have personally served N.J.
Additionally, the court of appeals’ opinion fails to explain how the Department could have served N.J.’s legal guardian. The court of appeals noted that N.J.’s parents’ parental rights may have been terminated at the time of trial. Id. at 319 n.1 ("At trial, a representative with the Department testified that N.J. had a history with the Department as a ‘victim,’ and that N.J.’s mother's parental rights had been terminated. The representative was unsure whether N.J.’s father's parental rights had been terminated."). Moreover, nothing in the record indicates any other legal guardian had been appointed for N.J. And based on the record, even if N.J.’s father had clearly retained his parental rights, it is questionable whether serving him would have provided N.J. with sufficient notice to "apprise [her] of the pendency of the action." Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314–15, 70 S.Ct. 652, 94 L.Ed. 865 (1950). N.J. was estranged from her father, and her living situation and caregivers changed several times after the birth of her child. 613 S.W.3d at 319 (noting that N.J. had been living with her grandmother before the Department received the report regarding the child, then moved in with her father when the Department received the report, and then was arrested for physically assaulting her father and placed in a juvenile detention center). Therefore, it is doubtful that serving N.J.’s father would have afforded N.J. notice of the suit.
Finally, nothing in the Family Code required the trial court to appoint a guardian ad litem for N.J. (as opposed to an attorney ad litem, whom the trial court did appoint). Chapter 107 requires courts to appoint a guardian ad litem to represent a child who is the subject of parental termination proceedings. TEX. FAM. CODE § 107.011(a). No provision, however, requires or even contemplates appointment of a guardian ad litem for a minor parent.
Therefore, under these circumstances, it appears that the Department's best option for properly joining N.J. to the suit was doing so through her attorney ad litem. Courts specifically appoint an attorney ad litem, as opposed to a guardian ad litem, to protect parents’ legal rights in parental termination cases. Id. §§ 107.0131, .0133. And Section 107.010 expressly authorizes appointment of an attorney ad litem for an incapacitated person who is "entitled to service of citation"—seemingly indicating that attorneys ad litem are authorized to accept service of citation for parties otherwise lacking capacity to consent to suit. Id. § 107.010. Yet, under the court of appeals’ analysis, such representation is insufficient for trial courts to obtain personal jurisdiction.
In sum, perhaps the court of appeals is correct (and perhaps it is not) that N.J. could not have waived service under Rule 120. If the court is correct, however, N.J. and other minor parents in her position could, effectively, be immune from suit in parental termination cases. That the Legislature would intend such a state of affairs blinks reality. Therefore, while the court of appeals’ opinion stands, the issue raised in this cause remains open. Hopefully, in due time, we will again be asked to provide an answer in a properly presented case.
Technically speaking, the Family Code also allows citation to be served by publication in suits affecting the parent–child relationship. See Tex. Fam. Code § 102.010(a). But it is not clear that minor parents may be properly served through publication. And even if they could, it would seem inappropriate here given our statement in In re E.R. that service by publication fails to satisfy due process when the record shows that "it was both possible and practicable to more adequately warn [a parent] of the impending termination of her parental rights." 385 S.W.3d 552, 566 (Tex. 2012). Indeed, citation by publication would seem to provide N.J. with far less process than joining her through her attorney ad litem.