Summary
acknowledging disagreement among courts of appeals and noting that our court has held section 161.211 is jurisdictional
Summary of this case from C.M.C. v. Tex. Dep't of Family & Protective Servs.Opinion
01-20-00864-CV
07-19-2022
RAINER VON FALKENHORST III, Appellant v. GEORGE D. FORD. JR. AND HARRIS COUNTY CHILD PROTECTIVE SERVICES, Appellees
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2018-87891-7
Panel consists of Justices Kelly, Goodman, and Guerra.
MEMORANDUM OPINION
Peter Kelly Justice
Rainer Von Falkenhorst, III appeals the trial court's order granting summary judgment in favor of Harris County Child Protective Services and its former director, George Ford. On appeal, Von Falkenhorst argues that the trial court erred in granting summary judgment in favor of the appellees and that the trial court should have granted his summary judgment motion instead. Among other arguments, the appellees respond that the suit should be dismissed because the trial court lacked subject matter jurisdiction. We agree with the appellees. We vacate the trial court's summary judgment order and dismiss the suit for want of jurisdiction.
Background
In 2006, Von Falkenhorst's parental rights to his son were terminated in Harris County's 313th District Court. Twelve years later, in December 2018, Von Falkenhorst filed suit in Harris County's 55th District Court, naming as defendants Governor Greg Abbott; George Ford, former director of Harris County Child Protective Services; Harris County Child Protective Services ("HCCPS"), and Patrick Shelton, the former judge of the 313th District Court. In his December 2018 lawsuit, Von Falkenhorst complains that he was wrongfully denied appointed counsel in the 2006 termination case. He argues that at the time he was incarcerated in Harris County Jail and indigent. His petition asserts that failure to appoint him counsel violated several provisions of the United States and Texas Constitutions and provisions of the Texas Family Code. He also asserts that his rights to due process and equal protection were violated, and he challenges the sufficiency of the evidence to terminate his parental rights. His petition asks the court to review the merits of the termination proceedings, grant him a new termination trial, and award him visitation with his biological son.
This suit is not the only one in which Von Falkenhorst has made these claims. Von Falkenhorst sued the same defendants as in this case, along with several others, in federal court for claims arising from the parental termination proceedings in 2006. Finding that all Von Falkenhorst's claims were related to the final decree of termination entered by Texas state court in 2006, the federal district court dismissed Von Falkenhorst's claims. See Falkenhorst III v. Ford Jr. and Harris Cty. Child. Protective Servs., et al., No. 4:17-cv-00242 (S.D. Tex. April 11, 2017) (dismissing for lack of subject matter jurisdiction). Von Falkenhorst also filed a petition for bill of review in the trial court, which alleged the same claims he asserts in this case and in his federal suit. See Falkenhorst III v. Ford Jr. and Harris Cty. Child. Protective Servs., No. 14-20-00867-CV, 2022 WL 2128033 (Tex. App.-Houston [14th Dist.] June 14, 2022, no pet. h.) (affirming trial court's denial of petition for bill of review).
In January 2019, Governor Abbott filed an answer and moved to dismiss the lawsuit for lack of jurisdiction. The trial court dismissed Governor Abbott as a party to the suit. In December 2019, Von Falkenhorst filed a "Motion to Re Serve Citations on All Parties Listed Below and Motion for Summary Judgement by Default." He requested that summary judgment be granted on his claims due to the defendants' failure to answer his original petition. In February 2020, after a hearing, the court denied his request to serve citations again but granted a motion to modify the scheduling order and indicated a new docket control order would issue.
Von Falkenhorst moved for summary judgment again. In his second motion, he claimed that the defendants failed to answer his petition and reiterated the claims he previously alleged, requesting that the court grant the motion and award "all damages and relief sought ...." In March 2020, the trial court denied the motion after a hearing. Von Falkenhorst refiled duplicates of his motion on several dates thereafter. Ford and HCCPS answered the suit and responded to Von Falkenhorst's motion for summary judgment. The trial court subsequently denied Von Falkenhorst's motion.
In August 2020, Ford and HCCPS moved for summary judgment, stating that Von Falkenhorst's claims were brought after the applicable statutes of limitations, that he failed to pursue an appeal of the parental termination case, and that he had no remedy in the 55th District Court to seek review of the 313th District Court's termination decree from 2006. HCCPS and Ford also alleged that the suit constituted an impermissible collateral attack on a final judgment and that the suit against Ford and HCCPS was barred by qualified, sovereign, and official immunity. Von Falkenhorst filed another motion for summary judgment. He did not address the appellee's summary judgment motion. Instead, he restated the allegations of wrongdoing from his original petition and asked that his own motion for summary judgment be granted.
In December 2020, the trial court denied Von Falkenhorst's motion. In a separate order, the trial court granted Ford and HCCPS's motion for summary judgment and dismissed the suit with prejudice. Von Falkenhorst appeals the court's order granting summary judgment in favor of the appellees.
The notice of appeal states that Falkenhorst "desires to appeal . . . the order rendered on December 1, 2020 by the 055th [sic] Judicial District Court, Harris County, [T]exas in the suit between Rainer Von Falkenhorst III Petitioner and Harris County Children's Protective Services, and Mr. George Ford Jr[.] and Mr. Patrick Scott Shelton Respondents / Defendants Hereto."
Jurisdiction
For the first time on appeal, HCCPS and Ford argue that the trial court lacked subject matter jurisdiction based on section 161.211 of the Texas Family Code. Section 161.211 provides that the validity of an order terminating the parental rights of a person who was personally served is not subject to either a direct or collateral attack filed more than six months after the termination order has been signed. See TEX. FAM. CODE § 161.211(A).
"Subject matter jurisdiction is never presumed, cannot be waived, and may be raised for the first time on appeal." In re S.J.A., 272 S.W.3d 678, 682 (Tex. App.-Dallas 2008, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993)). Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. S.J.A., 272 S.W.3d at 681-82. The party initiating suit bears the burden to allege sufficient facts to establish subject matter jurisdiction. Razo v. Vargas, 355 S.W.3d 866, 875 (Tex. App.-Houston [1st Dist.] 2011, no pet.). We liberally construe the pleadings in favor of the party invoking the trial court's jurisdiction. Id.
Von Falkenhorst's suit is a direct attack on the validity of the order that terminated his parental rights. A direct attack is a proceeding instituted to correct an earlier judgment and to secure the entry of a single, proper judgment. In re V.M.I., No. 01-02-00687-CV, 2003 WL 1091901, at *2 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet.) (mem. op.). "A direct attack is not restricted to challenges to the validity of a judgment and may be used to challenge the judgment on 'the basis of any error that probably caused the rendition of an improper judgment.'" Id. (quoting Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973)). Each of Von Falkenhorst's claims derives from his complaint that in 2006 he was denied appointed counsel when his parental rights were terminated. His petition states, "The claims in this lawsuit arise from a 2006 Harris County family law court trial and final decree terminating plaintiff parental rights, 06-27-06." He seeks to overturn the termination of his parental rights in 2006. He also requests that he be granted a new termination trial, and that he be awarded visitation with the child at issue in the termination suit. Von Falkenhorst makes the same arguments on appeal. The record reflects, and Von Falkenhorst does not dispute, that he was served with notice of the termination proceedings and appeared and announced ready at trial. See TEX. FAM. CODE § 161.211(A). Von Falkenhorst also does not dispute that the order terminating his parental rights was signed in 2006.
There is some disagreement among the courts of appeals as to whether section 161.211(a) is jurisdictional, or whether it is a statute of limitations that is waived if not raised in the trial court. In support of their argument that the trial court lacked subject matter jurisdiction, the appellees cite to the Dallas court of appeals which has held that the six-month deadline in section 161.211(a) is jurisdictional. In re I.S., No. 05-15-01450-CV, 2016 WL 3005721, at *2 (Tex. App.-Dallas May 23, 2016, pet. denied) (mem. op.) (citing In re E.R., 335 S.W.3d 816, 821 (Tex. App.-Dallas 2011) rev'd on other grounds, 385 S.W.3d 552 (Tex. 2012)). The Dallas court of appeals held that if a person who is constitutionally entitled to notice of the termination proceeding receives proper notice, the trial court lacks jurisdiction to entertain any challenges, direct or collateral, after six months from the time the termination order is signed. I.S., 2016 WL 3005721, at *2 (citing E.R., 335 S.W.3d at 821-22). The court reasoned that section 161.211 is jurisdictional because it sets out the time limit in which to challenge the validity of a termination order previously signed, while statutes of limitations require that a suit be commenced within a prescribed period of time. Id. "Construing the six-month deadline for challenging a termination of parental rights in section 161.211 to be merely a statute of limitations affirmative defense that is waived if not asserted ignores the clearly expressed intent of the legislature that the best interests of children are promoted by finality of decisions terminating rights." E.R., 335 S.W.3d at 822.
Several courts of appeals, including this Court, have likewise held that section 161.211(a) is jurisdictional. See L.J. v. Dep't of Fam. and Protective Servs., 355 S.W.3d 898, 901 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (dismissing restricted appeal for lack of jurisdiction because it was brought six months and thirteen days after final order was signed); see also In re M.E., No. 07-16-0039-CV, 2018 WL 343503, at *3 (Tex. App.-Amarillo Jan. 8, 2018, no pet.) (mem. op.) (stating section 161.211(a) is not a statute of limitations but a bar to or preclusion of a challenge to a termination order); In re A.P., No. 11-14-0278-CV, 2014 WL 6755631, at *2 (Tex. App.-Eastland Nov. 26, 2014, no pet.) (mem. op.) (same); In re C.O.G., No. 13-12-00577-CV, 2013 WL 6583971 at *4 (Tex. App.- Corpus Christi-Edinburg, Dec. 12, 2013, no pet.) (mem. op.) (upholding grant of plea to jurisdiction based on untimeliness under section 161.211(a)).
Other courts of appeals have held that section 161.211 is an affirmative defense that is waived if not presented to the trial court. See, e.g., In re Bullock, 146 S.W.3d 783, 790-91 (Tex. App.-Beaumont 2004, no pet.) (orig. proceeding) ("Essentially, section 161.211's six-month limitation on attacks on termination rulings is an affirmative defense" required to be pleaded and presented to trial court); In re S.A.B., No. 04-01-00795-CV, 2002 WL 31060158, at *1 (Tex. App.- San Antonio Sept. 18, 2002, no pet.) (Supp. Op. on Motion for Reh'g) (not designated for publication) (mem. op.) (defense waived where the appellant did not raise section 161.211 limitations provision in pleadings or at hearing before trial court).
Finally, our sister court, the Fourteenth Court of Appeals, once considered section 161.211 to be an affirmative defense that is waived if not pleaded or presented to a trial court but more recently treated the section as a jurisdictional bar. Compare In Re M.Y.W., No. 14-06-00185-CV, 2006 WL 3360482, at *2 (Tex. App.-Houston [14th Dist.] Nov. 21, 2006, pet. denied) (mem. op.) (section 161.211 is an affirmative defense), with In re P.W., 579 S.W.3d 713, 724 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (citing section 161.211(a) and stating that once the six-month period expires, a party may not challenge prior termination findings in the future if the Department seeks to terminate parental rights as to another child based on the prior finding).
Von Falkenhorst admits he received notice of the proceeding, and the record reflects that he appeared and announced ready for trial in 2006. He filed the current lawsuit in 2018. Therefore, section 161.211(a) serves as a jurisdictional bar to his direct attack on the termination order. See L.J., 355 S.W.3d at 901. Von Falkenhorst has not alleged facts to show that the trial court retained plenary power or otherwise had jurisdiction despite the twelve-year delay in filing suit to attack the termination order. We hold that because more than six months have elapsed since the entry of the trial court's termination order, the suit is barred by section 161.211(a). Id. The trial court lacked subject matter jurisdiction over Von Falkenhorst's 2018 suit.
Von Falkenhorst's petition also does not demonstrate how the 55th District Court, in which he filed the petition, had jurisdiction to review the termination judgment rendered by the 313th District Court. Even if Von Falkenhorst had filed his claims in the correct district court, there still would not be subject matter jurisdiction under Section 161.211 of the Family Code.
Conclusion
We vacate the trial court's summary judgment and dismiss Von Falkenhorst's suit.