Opinion
02-22-00189-CV
04-27-2023
In the Interest of S.W., a Child
On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-677800-20
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
MEMORANDUM OPINION
Sudderth, Chief Justice
Father appeals the trial court's order granting the motion for summary judgment filed by Little Flower Adoptions. In one issue with two subissues, Father argues that the trial court erred by granting the motion for summary judgment. Because we hold that the trial court did not err by granting the motion for summary judgment, we will affirm.
Father claims to be the biological father of the child S.W. We refer to him as Father to protect the minor's identity. See Tex.R.App.P. 9.8(b)(2); Tex. Fam. Code Ann. § 109.002(d); In re J.P., 598 S.W.3d 789, 791 n.1 (Tex. App - Fort Worth 2020, pets. denied).
I. BACKGROUND
A. Prior Proceedings
S.W. was born on October 5, 2019. S.W.'s mother (Mother) signed an affidavit voluntarily relinquishing her parental rights to S.W and placed the child for adoption with Little Flower. Little Flower brought suit to terminate Mother's parental rights and the parental rights of the unknown biological father.
Just over a month after S.W.'s birth, on November 8, 2019, the trial court signed an order terminating the parental rights of Mother and the child's biological father to S.W. and naming Little Flower as managing conservator of S.W. Approximately one month after that-on December 16, 2019-Mother and Father filed a suit affecting the parent-child relationship (SAPCR) asking to be named joint managing conservators of S.W. The disposition of the SAPCR suit filed by Mother and Father is not clear from the record before us.
The trial court found that Father had not registered with the paternity registry within the time prescribed by law under Chapter 160 of the Texas Family Code.
Mother and Father filed a restricted appeal from the order terminating their parental rights to S.W. This Court affirmed the trial court's judgment terminating Mother's parental rights and dismissed Father's appeal for want of jurisdiction. In re S.W., 614 S.W.3d 311 (Tex. App.-Fort Worth 2020, no pet.).
Two months later-on February 24, 2020-Mother filed a bill of review seeking to set aside the trial court's order of termination, and then on June 2, 2020, Mother and Father filed a Joint Amended Petition for Bill of Review seeking the same relief. Little Flower filed a motion for summary judgment that the trial court granted as to both Mother and Father. Mother and Father appealed, and this Court affirmed the summary judgment as to Mother but reversed the summary judgment as to Father. In re S.W., No. 02-20-00160-CV, 2021 WL 4783153 (Tex. App.-Fort Worth Oct. 14, 2021, no pet.) (mem. op.). We held that Little Flower carried its summary judgment burden as to Mother by conclusively showing Mother's negligence in that she failed to exercise due diligence in pursuing all legal remedies. Id. at *4. But because Father was never made a party to the termination suit, we held that his failure to file a motion for new trial could not be counted against him as neglect, and we remanded to the trial court for development of Father's remaining arguments. Id. at *5-6.
B. This Proceeding
After this Court remanded to the trial court for further proceedings as to Father, Little Flower again filed a traditional motion for summary judgment addressing Father's remaining claims. In its motion, Little Flower argued that Father did not plead and prove a meritorious defense to set aside the trial court's judgment, addressing all four grounds that Father claimed established a meritorious defense: (1) Father's due process rights were violated because he was entitled to notice and service, (2) Little Flower never searched the Texas Acknowledgement of Paternity Registry, (3) Little Flower purposefully left Father out of the termination proceedings, and (4) Little Flower did not have standing.
The relevant statutes for the paternity registry are located in Family Code Chapter 160, Subchapter E.
First, Little Flower argued that Father was not entitled to notice of the underlying termination proceedings because he failed to register with the paternity registry. See Tex. Fam. Code Ann. §§ 160.402(b), 160.404, 161.002(b)(3). Second, Little Flower attached as summary judgment evidence the certificate of paternity search filed in the underlying termination proceedings to negate Father's argument that Little Flower did not conduct a search of the paternity registry. Third, Little Flower argued that any alleged misconduct on its part did not relieve Father of his obligation to register with the paternity registry. Finally, Little Flower cited Section 102.003(a)(7) of the Family Code to prove its standing to file suit. See Tex. Fam. Code Ann. § 102.003(a)(7).
Father responded to the summary judgment motion twofold. He argued that he had a meritorious defense but was prevented from asserting it due to fraud on the part of Little Flower. Father further argued that Little Flower violated his constitutional right to assert his parental rights under both the Texas Constitution and the United States Constitution. Father attached as summary judgment evidence his own affidavit, the affidavit of Mother, screen shots of text messages between Mother and Little Flower, and several court filings.
After a hearing, the trial court granted the summary judgment motion of Little Flower "in its entirety" and ordered that Father take nothing by his suit. This appeal followed.
II. DISCUSSION
A. Standard of Review
When, as here, a bill of review is disposed of through summary judgment, we review the case de novo under the summary judgment standard. Mandel v. Lewisville Indep. Sch. Dist., 499 S.W.3d 65, 70 (Tex. App.-Fort Worth 2016, pet. denied); see In re Child, 492 S.W.3d 763, 766 (Tex. App.-Fort Worth 2016, pet. denied). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein &Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant that conclusively negates at least one essential element of a plaintiff's cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex.R.Civ.P. 166a(b), (c). If the movant does not satisfy its initial burden, the burden does not shift to the nonmovant, and the nonmovant need not respond or present any evidence. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); S.W., 2021 WL 4783153 at *2.
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for a new trial or direct appeal. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). "Courts narrowly construe the grounds on which a plaintiff may obtain a bill of review due to Texas's fundamental public policy favoring the finality of judgments." Id. Ordinarily, a bill-of-review plaintiff must plead and prove "(1) a meritorious defense to the underlying cause of action, (2) which the plaintiff[ ] [was] prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on [her] own part." Id. If he was not served and was entitled to service, then he is relieved from showing a meritorious defense, he is not required to show his opponent's fraud, accident, or wrongful act prevented him from presenting such a defense, and his own want of fault of negligence is established. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). A summary judgment will be granted against the bill of review petitioner if the summary judgment movant can establish the absence of any of the three elements of the bill of review. See Montgomery v. Kennedy, 669 S.W.2d 309, 311-312 (Tex. 1984); see also In re Baby Girl S., 407 S.W.3d 904, 909 (Tex. App.-Dallas 2013, pet. denied).
B. Applicable Law
The Family Code provides a statutory mechanism to protect a man's right to notice of certain legal proceedings involving a child that he may have fathered. Tex. Fam. Code Ann. § 160.402. Specifically, Section 160.402(a) affords to a man who has registered with the Texas Paternity Registry within 31 days of the child's birth the right to be notified of any proceeding involving the adoption of the child, or the termination of parental rights regarding the child, that he may have fathered.
The alleged father may register before the birth of the child as well. Tex. Fam. Code Ann. § 160.402(a)(1).
The Family Code provides that:
(a) Except as provided by Subsection (b), a man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity:
(1) before the birth of the child; or
(2) not later than the 31st day after the date of the birth of the child.Tex. Fam. Code Ann § 160.402(a).
On the other hand, if an alleged father has not registered with the paternity registry in compliance with Section 160.402(a), he is not entitled to notice of adoption or parental termination proceedings. Tex. Fam. Code Ann. § 161.002(b)(3), (c-1). The Family Code imposes no obligation on the mother, an adoption agency, or anyone else, to identify or locate an alleged father who has not registered with the paternity registry. On its face, this statutory scheme applies to all men who "may have fathered" a child, whether or not they are aware of the mother's pregnancy or the birth of the child.
The Family Code provides two exceptions. If a father-child relationship has been established by law, or if the alleged father has commenced a proceeding to adjudicate his paternity prior to the termination of his rights, he is entitled to notice of adoption or parental termination proceedings. Tex. Fam. Code Ann. § 160.402(b).
C. Meritorious Defense
In his first subissue, Father argues that he has a "meritorious defense in that but for the intentional collusion to commit fraud between [Little Flower] and [Mother], [Father] would have been able to register with the paternity registry and/or intervene in the underlying termination proceedings so that he could have asserted his parental rights in the required statutory timeframe."
Although there is some evidence to the contrary, Father claims that he did not learn of S.W.'s birth until December 7, 2019, twenty-nine days after his rights had already been terminated. And it is undisputed that at that point, Father had neither registered with the registry of paternity, nor had he commenced a proceeding to adjudicate his paternity. See Tex. Fam. Code Ann. § 160.402(a)(b). Thus, the right to notice that would have been afforded to him under Section 160.402(a) and (b) was never triggered.
Father filed an Acknowledgement of Paternity on December 31, 2019.
But Father argues he was denied the benefits of Section 160.402(a) and (b) due to collusion between Mother and Little Flower. In support of his argument, Father relies on the summary judgment evidence from Mother's affidavit wherein she stated that she provided Father's name and address to Little Flower and that Little Flower instructed her not to include Father's name on the birth certificate. Father also points to the summary judgment evidence of screen shot images of text messages between Mother and Little Flower, one of which included a message from Little Flower to Mother instructing her to "leave the father info blank otherwise he has to sign paperwork and it slows things down."
But this evidence, even when viewed in the light most favorable to Father's position, still falls short of proving that Mother and Little Flower fraudulently prevented him from asserting his parental rights. While Mother and Little Flower may have been aware of Father's identity, and while they may not have notified the court about Father or notified Father about the court proceedings, there is no evidence in this record that they defrauded Father in any way.
To commit common-law fraud, Mother and Little Flower must have made a material representation to Father that was either false or made recklessly, as a positive assertion, without knowledge of its truth. The representation must have been made with the intent that Father act upon it, and Father must have acted on it, causing injury. Int'l Bus. Machines Corp. v. Lufkin Indus., 573 S.W.3d 224, 228 (Tex. 2019). There is no summary judgment evidence to support this claim. To commit fraud by nondisclosure, among other things, Mother and Little Flower must have had a duty to disclose S.W.'s birth to Father. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Father offered no legal theory to support a claim that Mother and Little Flower owed him any duty of disclosure.
Father engaged in sexual activity with Mother, the consequences of which not only could have, but also actually did, result in pregnancy. The paternity registry exists for just such circumstances-it allows an alleged father to register as to any child that he may have fathered. Tex. Fam. Code Ann. § 160.402(a). If a man wants to be provided notice of parental termination proceedings regarding a child that he may- either potentially or actually-have fathered, the registry is available to him to ensure that he receive such notice. As the Dallas Court of Appeals has pointed out, the process of registering is free, the information provided in the registration process is confidential, and there is no penalty for registering if no child is actually conceived. Baby Girl S., 407 S.W.3d at 914. Under this statutory scheme, whether to register is within the complete control of alleged fathers. Id. And whether or not Father was aware of the law regarding paternity registration, he was nevertheless afforded an opportunity to assert his rights as to any child that he may have fathered with Mother, or with any other woman, for that matter.
Not only does the law provide fathers with this opportunity, the failure to take advantage of this opportunity produces legal consequences. In particular, Section 161.002(b)(3) allows an unregistered father's rights to be terminated without notice to him. And the statute carves out no exception for situations where a mother knows the father's identity or location and fails to reveal that information, or when she fails to notify the father of the pregnancy or birth. Under this statutory scheme, neither mothers nor adoption agencies are required by law to identify, locate, or notify an alleged father who has not registered with the paternity registry. See Tex. Fam. Code Ann. § 161.002(c-1).
The bottom line is that there is no summary judgment evidence that Father was fraudulently prevented from registering. Father's summary judgment proof that Mother and Little Flower did not identify, locate or notify him does not supply that proof. Nor is Mother's decision to omit Father's name on the birth certificate-even if based on advice from Little Flower-evidence that Father was fraudulently prevented from registering. In sum, while the summary judgment evidence may have established that Mother and Little Flower failed to identify him even though he was known to them, it does not prove that Mother and Little Flower fraudulently colluded to prevent him from timely registering with the paternity registry. At all times, the registry process remained available to Father, and even assuming that he was unaware of the protections afforded him under this statutory scheme, the lack of evidence of fraud remains unchanged. Under this statutory scheme, Father's ignorance of the law imposes no additional duty on Mother or Little Flower to disclose S.W.'s birth to Father or Father's identity in a birth certificate or in parental termination proceedings. Baby Girl S., 407 S.W.3d at 915.
We overrule subissue one.
D. Due Process
In his second subissue, Father argues that Little Flower's intentional fraud and collusion with Mother to not acknowledge him as the father of the child violated his right to due process under the United States Constitution and the Texas Constitution. Specifically, Father argues that the application of the statutes allowing termination of an alleged father's parental rights without notice deprived him of his due process rights.
The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law. U.S. Const. Amend XIV § 1.
Article 1 Section 19 of the Texas Constitution provides that no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Tex. Const. art. I § 19.
This is the same argument that the Dallas Court of Appeals addressed in Baby Girl S. In that case, the biological father argued that the statute allowing termination of his parental rights without notice was unconstitutional as applied to him. Id. at 911. Like here, the mother did not name the biological father of Baby S at the time she put the infant up for adoption. She also claimed that she did not know the father's name. Id. at 906. Unaware of the pregnancy or birth of Baby S, the biological father did not register with the paternity registry, and his rights were terminated without notice to him. Id. at 907. An adoption agency was named as the baby's managing conservator, and the biological father learned of the child's birth the following month. Id.
In Baby Girl S., our sister court, relying on the plain language of the statute, pointed out that the paternity registry allows an alleged father to register if he desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. Tex. Fam. Code Ann. § 160.402(a). But if an alleged father fails to register, there is no requirement that he must be identified or located; if the child is under one year of age when the petition for termination or adoption is filed, the rights of an unregistered father may be terminated without notice under Family Code Section 161.002(b)(3). Tex. Fam. Code Ann. § 161.002(c-1); Baby Girl S., 407 S.W.3d at 914.
In reaching its decision that the alleged father's constitutional rights had not been violated, the court distinguished between a situation where a father had a developed relationship with his child and a situation where an alleged father's link to his child was merely biological. The court adopted the reasoning of the Kansas Supreme Court that the "liberty interest resulting in a right to notice" arises in the former situation, not the latter, because it is the "developed familial relationship," not mere biology, that warrants protection. Baby Girl S., 407 S.W.3d at 916.
Here, as in Baby Girl S., we are not being asked whether the statutory scheme adequately protected the rights of an alleged father who had a developed relationship with his child, but rather we are only asked to consider whether the safeguards provided in the paternity registry are adequate to protect an alleged father who was unaware of the pregnancy or birth and whose only link to his child is biological. See id. at 914. As the court in In re Baby Girl S. explained:
the registry provides an alleged father with the means of asserting his rights without depending on the mother, the courts, or anyone else to identify him. By registering, an alleged father ensures he will be notified of any proceeding to adopt the child or to terminate his rights. It also provides a measure of privacy for the mother who, for any number of reasons, may not want to divulge the biological father's name. Finally, it reduces any delays in an adoption proceeding because an unknown father is either registered or he is not. If he is, he gets notice.Id. at 915. The court cited the United States Supreme Court decision in Lehr v. Robertson to point out that even if the biological father knew nothing about the registry, that would not relieve him of the requirement to follow the law. 463 U.S. 248, 264, 103 S.Ct. 2985, 2995 (1983). The Dallas court held that the statutory scheme permits an alleged father to protect himself by invoking statutory procedures to ensure that he received notice and that the biological father's failure to do so does not render the procedure unconstitutional. Baby Girl S., 407 S.W.3d at 915.
Father attempts to distinguish Baby Girl S. by pointing out that in that case the biological mother was the only party who concealed the father's identity, whereas and in this case Little Flower, the movant of the termination proceedings, also knew his identity before termination and concealed it. We find that to be a distinction without a difference. In both cases the biological fathers allege that their identities were wrongfully concealed.
We are persuaded by the reasoning of Baby Girl S. and hold that the statutory scheme of the paternity registration is not unconstitutional as applied to Father. Father engaged in conduct with Mother that could have resulted in the conception of a child. The paternity registry provided Father with the means of asserting his rights to any child that might have been conceived without depending on Mother, the courts, or anyone else to identify him. See Baby Girl S., 407 S.W.3d at 915. The fact that he may not have registered because of "his ignorance of the law" was not "sufficient reason for criticizing the law itself." Id. at 914 (quoting Lehr v. Robertson, 463 U.S. at 264).
When enacting the statutory procedures creating the paternity registry, the Texas Legislature could have provided a defense or exception for fathers who were unaware of the birth of their child and claim that they were prevented from learning about the birth by the fraud or deceit of another. The Legislature chose not to do so.
We are mindful of the delicate balance between the goal of protecting the rights of fathers and the need to insure a stable home for the child by determining as early as possible the rights and interests of all parties. The statutory scheme complained of here allowed Father to protect himself by invoking statutory procedures to insure he received notice. See Baby Girl S., 407 S.W.3d at 915. Father failed to do so, and that failure does not now render the statutory procedure unconstitutional. Id. Accordingly, we hold that the trial court did not err by granting Little Flower's motion for summary judgment. We overrule Father's second subissue.
III. CONCLUSION
Having overruled Father's two subissues in his sole issue on appeal, we affirm the trial court's judgment granting Little Flower's motion for summary judgment.
CONCURRING MEMORANDUM OPINION
Wade Birdwell Justice
I concur with the majority in affirming the trial court's judgment granting Little Flower's motion for summary judgment. I write separately to provide additional facts relating to Father's first subissue on fraud.
Father argues that he has a "meritorious defense in that but for the intentional collusion to commit fraud between [Little Flower] and [Mother], [Father] would have been able to register with the paternity registry and/or intervene in the underlying termination proceedings so that he could have asserted his parental rights in the required statutory timeframe." The majority, viewing the evidence in the light most favorable to Father's position, held that there is no evidence in this record that Mother and Little Flower defrauded Father in any way preventing him from registering with the paternity registry. While I agree with the majority's conclusion, I write separately to further establish that there was no fraud upon the trial court or upon Father.
First, Father seems to suggest that Mother and Little Flower committed a fraud upon the trial court by representing to the trial court that the biological father was unknown. Indeed, in our opinion in Mother and Father's restricted appeal from the default judgment of termination, we stated categorically, but incorrectly, that the petition for termination filed by Little Flower "alleged that S.W.'s biological father was unknown[.]" In re S.W., 614 S.W.3d 311, 312 (Tex. App.-Fort Worth 2020, no pet.). Although it is undisputed that Mother and Little Flower knew the identity of
Father, the clerk's record in the restricted appeal does not show that Mother and Little Flower affirmatively represented to the trial court that the biological father was unknown. See In re State Farm Mut. Auto. Ins. Co., 614 S.W.3d 316, 336 &n.9 (Tex. App.-Fort Worth 2020, orig. proceeding) (holding a court of appeals may take judicial notice of the original record, including the briefing, in previous appellate proceedings).
On October 9, 2019, Little Flower's original petition for termination stated:
No man has, to the best of Petitioner's information and belief, taken steps to legitimate the child in the manner provided by law. No legal parent-child relationship exists between the child's biological father and the child. It is in the child's best interest that the Court render judgment declaring that no legal parent-child relationship exists between the child and the child's biological father. It is in the child's best interest that the Court render judgment terminating all legal relationships and rights which exist or may exist between the child and the child's biological father. Such termination is sought. ...
As grounds for termination, Petitioner alleges that the biological father has not or will not, within the time prescribed by law, registered with the paternity registry under Chapter 160 of the Texas Family Code.
Moreover, Mother stated in her affidavit of relinquishment-executed the day before and attached to Little Flower's petition-that S.W. "has no presumed father under the Texas Family Code." In Mother's contemporaneously executed and similarly attached affidavit of nonsupport she further stated:
The biological father has not established a financial or custodial relationship with the child. I was not married to nor did I attempt to
marry any man at the time of conception or during my pregnancy. Paternity of the child has not been established under the laws of any state or nation. I have not deliberately misled any man who could be the father of my child by telling him that I am parenting the child, I was not pregnant, I miscarried the baby, I aborted the baby, or the baby died. The child has no presumed father under the Texas Family Code. The child was conceived in the State of Texas.
Finally, the certificate of paternity registry search, conducted and filed by Little Flower on November 7, 2019, certified that no one purporting to be the child's father had registered.
Accordingly, neither Mother nor Little Flower affirmatively represented to the trial court that the biological father was unknown, but rather only represented that there was no presumed father, that no parent-child relationship existed between S.W and the biological father, and that no man had registered with the paternity registry or had taken legal steps to legitimate the child. The record simply does not support a finding that there was a fraud upon the trial court by misrepresenting to the trial court that the biological father was unknown. And the paternity registry provided Father with the means of asserting his rights without depending on Mother, the courts, or anyone else to identify him. In re Baby Girl S., 407 S.W.3d 904, 915 (Tex. App.- Dallas 2013, pet. denied).
Next, Father contends that Mother and Little Flower colluded to prevent him from learning of S.W.'s birth. Father represents that he did not learn of S.W.'s birth until December 7, 2019; however, as acknowledged by the majority, there is evidence to the contrary. When considered in their entirety, the text messages that Father unqualifiedly urges as evidence of Mother and Little Flower's alleged fraud show that Father was aware of S.W.'s birth well before December 7, 2019, and likely within the statutory timeframe for asserting his rights through the registry.
On October 6, 2019, the day after S.W.'s birth, the following text message exchange occurred between Mother and an employee of Little Flower:
Little Flower: Did you want them to come down or no?
Mother: Yes ....I'm down the hall from them
Little Flower: Ok
Is 11:00 ok for me to come tomorrow to chat and get started on the paperwork? I figure you might want to sleep in a little
Mother: That's fine ...
Little Flower: Also what name did you put on the birth certificate? First middle and last? You can put your last name if you haven't filled out already
Mother: I'm actually hoping [adoptive mother] comes back down to talk about the last name I want to hyphenate the last name if she's ok with that They will be back they went to eat Also, I want to have [S.W.] with me today, since I might be leaving tomorrow
Little Flower: Ok. Just so you know. There's an original birth certificate with the name you give her at the hospital and then a new one at 6 months so you are able to put whatever first middle and last name you want which will be her "original" name so if you want your last name alone you can. Up to you. Just let me know tonight some time so I can put on the paperwork.
Also leave the father info blank otherwise he has to sign paperwork and it slows things down
This text exchange supports the reasonable inference Father urges that not only did Mother know him to be S.W.'s biological father, she also provided that information to Little Flower before the filing of its petition for termination.
On October 15, 2019, there was another text message exchange between Mother and the owner of Little Flower:
Mother: Good Morning. I don't know if [Little Flower employee] shared with you our recent exchange. I have notified numerous times from the fathers family and they are threatening to have him petition his rights. With that being said I have a huge issue with the possibility of [Father] getting custody of [S.W.]
I don't believe they are fit to take care of her one &im only comfortable with [S.W.] being with [adoptive parents]. If she doesn't go there than I have ever intention on fighting for my child.
Little Flower: Hi! Yes [Little Flower employee] told me what was going on. At this point I think we should just sit and wait. We are moving forward with everything and we should just try to not engage with them too much. If they got an attorney, they would have to serve you with their legal notices and we would need to know about that asap. Do you think they are just trying to bother you about it? And not really going to organize themselves to do something official?
Mother: Honesty I'm not sure .... But I don't want to take any chances. Anything is possible. I just need the plan should I be served
Little Flower: Tell me about the bio father - is he capable of obtaining an attorney and filing something? Or are they likely sort of bluffing?
Mother: [Father] makes compound pharmaceuticals for cancer patients and he's out the military now, at times he can be inconsistent and stubborn but 9 times out of 10 if his mother says something he does it.
His mother has a huge influence of him and so does his aunt. I'm not sure what he does with his money b [sic]
His mother is manipulative.
His aunt is not capable of having kids so she wants [S.W.] the most
Mother alleged in her Bill of Review that on October 7, 2019, she was having misgivings about the adoption and that she was in a precarious physical and mental health condition. She claimed she was "badgered" to sign the affidavit of relinquishment. This text message exchange, however, does not reflect any misgivings on the part of Mother fully a week after the filing of the petition. Presumably recovered from her post-delivery complications, Mother was concerned with preventing Father or his family from obtaining custody of S.W.
Evidencing his mother and aunt's knowledge of Father's paternity, a reasonable inference from the text message exchange is that Father was aware of S.W.'s birth no later than October 15, 2019. First, it is improbable that Father's family was aware of S.W.'s birth on October 15, but Father was not. Second, because Father was the only one who could assert his rights, the text messages provide evidence that Father knew of S.W.'s birth well before December 7, 2019, and likely within the statutory timeframe for asserting his rights through the registry.
Father argues that Mother and Little Flower were aware of his identity and concealed the information from both the trial court and from Father. As in Baby Girl S., the evidence demonstrates that Father had reason to believe that Mother could be pregnant and, despite having this information, failed to take any steps to register his intent to claim paternity to S.W. in a timely manner. 407 S.W.3d at 915.
With the above additional facts demonstrating that there was no fraud on the trial court and no fraud preventing Father from asserting his parental rights, I agree with the majority holding that there is no evidence in this record that Mother and Little Flower defrauded Father in any way preventing him from timely registering with the paternity registry.