Summary
stating that the six-month deadline in section 161.211 is a bar to or preclusion of a challenge to a termination order
Summary of this case from In re K.L.Opinion
No. 07-16-00039-CV
01-08-2018
IN THE INTEREST OF M.E., A CHILD
On Appeal from the 325th District Court Tarrant County, Texas
Trial Court No. 325-577995-15 , Honorable Judith G. Wells, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, father of M.E., seeks reversal of the trial court's order granting summary judgment in favor of appellee, Children's Connections, Inc., in a bill of review proceeding. We will affirm.
To protect the child's privacy, we will refer to the father as "appellant" and the child by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b).
Background
Appellant filed a bill of review challenging an order of the 325th District Court of Tarrant County, terminating his parental rights to M.E., a child born in August 2013. The termination proceeding was brought by Children's Connections, Inc., an adoption agency, after M.E.'s mother placed the child with the agency for adoption. The mother was the only respondent named in the termination order. The order states she waived issuance of citation in her affidavit of relinquishment of parental rights, and did not otherwise appear in the termination proceeding.
See generally TEX. FAM. CODE ANN. § 161.103 (West 2015) (affidavit of voluntary relinquishment of parental rights).
The order terminating parental rights was signed on December 11, 2014, after a final hearing held that date. The order recites the mother's voluntary execution of an affidavit of relinquishment of parental rights and her voluntary delivery of the child into the adoption agency's possession, expressing her intent not to return.
With respect to M.E.'s father, the order states:
The Court finds by clear and convincing evidence that the child who is the subject of this suit is not the legitimate child of any man, has no presumed father and that a father-child relationship does not exist. The Court further finds by clear and convincing evidence that the biological father has failed to establish any right or interest in or to the child, and that the parent-child relationship between such biological father and such child does not exist in law or in fact, and it is accordingly so ORDERED, ADJUDGED AND DECREED.
The Court finds by clear and convincing evidence that no man has registered with the paternity registry within the time prescribed by law under Chapter 160 of the Texas Family Code as to the child the subject of this suit and all prerequisites of law have been satisfied. The Court further finds by clear and convincing evidence that the child was conceived in the State of Texas.
The Court further finds by clear and convincing evidence that termination of any legal rights or relationships that exist or may exist between the child and the child's biological father is in the best interest of the child.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that all legal relationships and rights which exist or may exist between the child and the child's biological father ARE FINALLY AND FOREVER TERMINATED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the child's biological father is terminated, foreclosed, and divested from ever establishing a parent-child relationship with the subject child; the Court having found that such order is in the best interest of the child.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parent-child relationship between the child and each living biological parent of the child is terminated, the Court having found that such order is in the child's best interest.
On July 10, 2015, appellant filed his petition for bill of review in the trial court, stating he sought to "adjudicate or exclude his parentage" of M.E. He pled that he did not register with the State of Texas paternity registry, and that he was unaware of the requirement to register. He pled he was "not aware of the child having a presumed father nor having a presumed father whose name was stated, or having another acknowledged or adjudicated father." He pled also that he was not served with citation in the termination proceeding and received no notice of the termination hearing. He asserted the court was required to appoint an attorney ad litem for him in the termination proceeding. His pleadings asked the court to vacate the termination order, and any judgment of adoption of M.E., order a new trial, order genetic testing and establish his parent-child relationship with M.E. if the test proved positive for his paternity.
It is undisputed appellant was never married to the mother of M.E., who was a minor.
The adoption agency later filed a motion for summary judgment, attaching as evidence a copy of the court's December 11, 2014 termination order. As grounds, the motion asserted the termination order was not subject to direct or collateral attack after six months from its signing, and asserted appellant lacked standing to maintain a bill of review. Appellant filed a response to the motion and, after a hearing, the trial court granted the agency's motion without stating the ground on which it was granted.
ANALYSIS
Appellant presents two issues on appeal, contending the trial court erred in its grant of summary judgment because his bill of review was not statutorily barred, and because he possessed standing to pursue the bill. Standard of Review
A party may prevail on a summary judgment motion by conclusively establishing the absence of any genuine issue of a material fact and that the party is entitled to judgment as a matter of law. In re Noonan, 280 S.W.3d 339, 342 (Tex. App.—Amarillo 2008, pet. denied) (citing TEX. R. CIV. P. 166a(c)). If the summary judgment movant is a defendant, the movant must conclusively negate at least one of the elements of the non-movant's cause of action or must conclusively prove each element of an affirmative defense. Id. (citing Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)). We review the granting of a traditional summary judgment motion de novo, applying the standards set out in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985): (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in determining whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. When the trial court does not specify the grounds for its summary judgment, the appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Greenwood v. Lee, 420 S.W.3d 106, 111 (Tex. App.—Amarillo 2012, pet. denied) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W. 3d 211, 216 (Tex. 2003)).
The dates of the trial court's termination order, December 11, 2014, and of the filing of appellant's bill of review proceeding in the trial court, July 10, 2015, are established by the record.
Texas Family Code section 161.211 provides that, notwithstanding Rule of Civil Procedure 329, the validity of an order terminating the parental rights of a person whose rights have been terminated under Family Code section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed. TEX. FAM. CODE ANN. § 161.211(a) (West 2015).
Because a bill of review is a direct attack on a judgment, it must be brought in the court that rendered the original judgment; only that court has jurisdiction over the bill. Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015) (citing Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010)). The bill of review petition appellant filed in Tarrant County is entitled an "amended" petition. With his response to the agency's summary judgment motion, appellant filed a copy of an original bill of review petition appellant filed in Hale County, Texas, on June 5, 2015. His response argued that his petition filed in Hale County within six months of the termination order's signing precluded the application of Family Code section 161.211(a) to his bill. He relied on section 16.064(a) of the Civil Practice and Remedies Code, by which a statute of limitations may be tolled during the time an action is pending in a court that lacks jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 16.064(a) (West 2017).
This section provides:
(a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.064(a).
"By its own terms, section 16.064(a) applies only to a 'statute of limitations.'" Nathan v. Whittington, 408 S.W.3d 870, 875 (Tex. 2013) (orig. proceeding, per curiam) (holding section inapplicable to statute of repose). The six-month deadline established in Family Code section 161.211(a) is not a statute of limitations but a bar to or preclusion of a challenge to a termination order. In the Interest of I.S., No. 05-15-01450-CV, 2016 Tex. App. LEXIS 5415, at *5 (Tex. App.— Dallas May 23, 2016, no pet.) (mem. op.) (citing In the Interest of E.R., 335 S.W.3d 816, 819 (Tex. App.—Dallas 2011), rev'd on other grounds, 385 S.W.3d 552 (Tex. 2012)). Accordingly, we agree with the agency's contention that section 16.064(a) cannot affect the application of Family Code section 161.211(a) to appellant's petition. His petition was filed in Tarrant County more than six months from the signing of the termination order. The trial court did not err by its grant of summary judgment against appellant on the ground his petition was barred by section 161.211(a). We overrule appellant's issue.
The Dallas court's discussion of the issue in E.R., 335 S.W.3d at 821, points out its characterization of section 161.211 is consistent with other Texas courts' interpretation of Family Code section 162.012(a), which contains a similar six-month limitation on challenges to adoption orders.
Appellant's brief also contends the summary judgment record contains no evidence that his parental rights were terminated under section 161.002(b) so as to bring section 161.211(a) into play. We disagree. As noted, the dates of the termination order and of the filing of his bill of review in Tarrant County are undisputed. Appellant's brief also acknowledges that his rights could only have been terminated, properly or improperly, under Family Code sections 161.211(a) and 161.002(b).
Appellant's brief in this Court contains an assertion application of section 161.211 to his bill of review proceeding deprives him of his due process rights. The agency argues appellant raised no constitutional claim in the trial court, and may not raise it now. We will address his claim briefly, in the interest of justice.
He does not raise it as error in his brief, but appellant complains the trial court did not appoint an attorney ad litem to represent him. He cites Family Code section 107.013. That section addresses suits filed by governmental agencies. TEX. FAM. CODE ANN. § 107.013 (West 2015). The termination suit here was filed by a private entity.
In re E.R., 385 S.W.3d 552 (Tex. 2012), held that section 161.211(b) could not bar the late-filed challenge to a termination order brought by a mother who was invalidly served with the termination petition by publication. The court held, "the statute's time limits cannot foreclose an attack by a parent who was deprived of constitutionally adequate notice." Id. at 567. Appellant, however, is not the mother of a child like the litigant in E.R. Appellant is an alleged father, whose due process rights depend on more than a mere asserted biological relationship with a child. In Lehr v. Robertson, the United States Supreme Court described "the clear distinction between a mere biological relationship and an actual relationship of parental responsibility." 463 U.S. 248, 259-60 (1983). There, an unwed putative father, Lehr, who had not registered with New York's putative father registry, challenged the constitutionality of the adoption of a child accomplished without prior notice to him. Id. at 255. The Court rejected his due process and equal protection challenges, noting Lehr "has never had any significant custodial, personal, or financial relationship with [the child], and he did not seek to establish a legal tie until after she was two years old." Id. at 262. It held the New York putative father registry adequately protected his opportunity to form a parental relationship with the child. Id. at 262-63.
An "alleged father" is a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. The term does not include a presumed father; a man whose parental rights have been terminated or declared to not exist; or a male donor. TEX. FAM. CODE ANN. § 101.0015 (West 2017).
See also In re C.M.D., 287 S.W.3d 510, 516 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (unwed father does not automatically have full constitutional paternal rights by virtue of mere biological relationship, but must, early in child's life, take some action to assert those rights, citing Lehr, 463 U.S. at 261-62).
The Court reasoned, "The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie." 463 U.S. at 262.
In a 2013 opinion, In re Baby Girl S., 407 S.W.3d 904 (Tex. App.—Dallas 2013, pet. denied), the Dallas Court of Appeals applied Lehr to the Texas Paternity Registry. In the course of its analysis, the court addressed and rejected challenges to the constitutionality of the termination of parental rights of an alleged father who failed to register with the paternity registry and whose rights were terminated without notice to him. Id. at 909-11. It affirmed the trial court's grant of summary judgment against the alleged father in his bill of review proceeding attacking the termination. Id. at 922. The bill of review there was timely filed, so the case does not involve section 161.211. Nonetheless, the court's analysis guides resolution of appellant's due process complaint. The court in Baby Girl S. noted the "critical circumstance regarding the issue of notice," like in Lehr, was that the registry statute put the ability to register in the alleged father's control, "and," the court noted, "had he done so, he would have received notice." 407 S.W.3d at 915.
In the case before us, appellant's due process argument does not contend he had a developed relationship with M.E., or had any significant custodial, personal or financial relationship with the child, see Lehr, 463 U.S. at 262. It is undisputed he was aware of M.E.'s birth at the time the child was born. M.E. was near two years old before appellant took steps to establish a legal parent-child relationship. On these facts, we see no constitutional impediment to the application of the bar of section 161.211 to appellant's late-filed bill of review. Cf. In re E.R., 385 S.W.3d at 567.
The agency's motion for summary judgment recites some unsworn background facts but even if they are treated as evidentiary and read in the light most favorable to appellant, they do not begin to show he accepted "some measure of responsibility for the child's future." See Lehr, 463 U.S. at 262.
His verified Hale County pleading states he signed "what he believes to be an acknowledgement of paternity at the hospital when the child was born." Appellant's live bill of review petition also states that in December 2014 he "applied" with the Attorney General's office to establish his paternity, and that the matter was assigned a case number. He does not argue that either of these events is the equivalent of registering with the paternity registry. See Lehr, 463 U.S. at 265 (rejecting argument state court was required to treat putative father's initiation of parallel proceeding in another court as equivalent to use of registry).
Because our disposition of appellant's first issue resolves his appeal, we do not discuss his standing issue. TEX. R. APP. P. 47.1.
For those reasons, the judgment of the trial court is affirmed.
James T. Campbell
Justice Quinn, C.J., concurs in the result.