Opinion
07-22-00232-CV
01-26-2023
IN THE INTEREST OF A.B. AND A.B., CHILDREN
On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2020-538,371, Honorable Ann-Marie Carruth, Presiding
Before QUINN, C.J., and PARKER and DOSS, JJ.
MEMORANDUM OPINION
Brian Quinn Chief Justice
Appellant is the "alleged" biological father of AB. The trial court terminated his parental rights to the child, as it did those of the child's biological mother. Alleged Father's two conjoined issues concern whether the Texas Department of Family and Protective Services exercised due diligence in discovering his location. Because it purportedly did not, he argues that 1) its service of citation by publication was a deficient means by which to secure personal jurisdiction over him and 2) it failed to comply with section 161.002(b)(2) of the Family Code. Finding section 161.002(c-1) of the same Code dispositive, we affirm.
Why we refer to appellant as an alleged father becomes clear in the body of our opinion.
Background
AB, just over one year old, was removed from her mother's care after the Department received information that she and her sibling were improperly supervised. Nor was Alleged Father caring for the child; indeed, he was not part of the child's life.
In January 2020, the Department petitioned to terminate the parental rights of both Mother and Alleged Father. Neither parent attended the final, de novo hearing. They did appear through appointed counsel, however. At the hearing, a caseworker testified about the Department's effort to locate Alleged Father and serve him with citation. Those efforts proved futile, resulting in service of citation upon him by publication, according to the evidence. Ultimately, the trial court terminated the Alleged Father's parental rights to AB upon completion of the trial.
Analysis
We begin by addressing Alleged Father's contention about service of citation through publication and the use of it to obtain personal jurisdiction over him. Our review of the appellate record uncovered his answer to the Department's petition to terminate. That pleading said nothing about the manner of citation but rather consisted of a general denial and request for attorney's fees. Nor had he moved to quash citation, specially appear, or otherwise raise the sufficiency of citation or existence of personal jurisdiction before filing his answer. This is problematic, for complaints regarding service of process are waived if the party makes a general appearance. In re M.D.M., 579 S.W.3d 744, 758- 59 (Tex. App.-Houston [1st Dist.] 2019, no pet.). Generally appearing also waives complaints about the want of personal jurisdiction. In re Guardianship of Fairley, 650 S.W.3d 372, 386 (Tex. 2022). Furthermore, either a party or his attorney may enter such an appearance. Id. And, as recognized in Fairley, "a court-appointed attorney who files an answer or seeks affirmative action from the court invokes the court's jurisdiction and thus enters a general appearance on behalf of the client." Id. So, by his counsel having filed an answer without first questioning service or personal jurisdiction, Alleged Father generally appeared. That means he waived his complaint about the sufficiency of service upon and existence of personal jurisdiction over him.
As for complying with section 161.002(b)(2) of the Family Code, the statute permits termination of the "rights of an alleged father . . . if . . . the child is over one year of age at the time the petition for termination . . . is filed, he has not registered with the paternity registry under Chapter 160, and after the exercise of due diligence by the petitioner . . . (A) his identity and location are unknown; or (B) his identity is known but he cannot be located[.]" Tex. Fam. Code Ann. §161.002(b)(2)(A), (B) (emphasis added). An "alleged father" is a male "who alleges himself to be, or is alleged to be, the genetic father or possible genetic father of a child, but whose paternity has not been determined." Id. at §101.0015(a). Appellant fell within that definition, a fact about which he does not dispute. Nor does he question the evidence admitted at trial revealing that he never registered his paternity regarding AB under Chapter 160 of the Family Code. See id. at § 160.401 (establishing a registry of paternity in the vital statistics unit). His having failed to so register is also fatally problematic.
Again, he focuses on the provision within the statute referring to the Department's obligation to exercise due diligence in discovering his location. Yet, subparagraph c-1 of section 161.002 relieved it of that obligation. That is, since January of 2008, "there is no requirement to identify or locate an alleged father who has not registered with the paternity registry under Chapter 160." Id. at §161.002(c-1). Nor need such a father be served with citation either personally or through publication. Id.; see also id. at § 160.404 (stating that "[t]he parental rights of a man alleged to be the father . . . may be terminated without notice as provided by Section 161.002 if the man: (1) did not timely register with the vital statistics unit; and (2) is not entitled to notice under Section 160.402 or 161.002"); In re R.J., 381 S.W.3d 619, 622 (Tex. App.-San Antonio 2012, no pet.); In re C.M.D., 287 S.W.3d 510, 513 n.1 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Thus, at bar, it matters not whether the Department used diligence to find Alleged Father for he never registered his paternity under section 160.401.
We overrule Alleged Father's issues and affirm the termination order.