in the Interest of G.N.H. A/K/A G.N.R., a Child ( 2006 )

Opinion filed November 2, 2006

Opinion filed November 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00405-CV

                                                    __________

                  IN THE INTEREST OF G.N.H. A/K/A G.N.R., A CHILD

                                  On Appeal from the County Court at Law No. 2

                                                        Midland County, Texas

                                                Trial Court Cause No. FM 43337

                                              M E M O R A N D U M   O P I N I O N

This is an appeal of the trial court=s denial of a bill of review involving the termination of  the parental rights of Steven Wayne Rossler Jr., the father of G.N.H. a/k/a G.N.R.  Rossler appeals.  We reverse and remand. 

Rossler presents two issues for review.  In his first issue, Rossler contends that the trial court applied the wrong standard of proof with respect to the bill of review.  In the second issue, Rossler contends that the trial court abused its discretion in denying the bill of review. 

A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial.  Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979).  A petition for bill of review may be brought to attack an order terminating parental rights.  Generally, a petitioner for bill of review must plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment (2) that the petitioner was prevented from making by the fraud, accident, or wrongful act of the opposing party (3) without any fault or negligence of the petitioner.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751-52 (Tex. 2003); see also Thompson v. Tex. Dep=t of Protective & Regularity Servs., 123 S.W.3d 580, 581-82 (Tex. App.CEl Paso 2003, pet. denied); In re A.L.H.C., 49 S.W.3d 911, 915-16 (Tex. App.CDallas 2001, pet. denied) (bill of review involving a termination that was not based upon relinquishment).  However, if a parent petitioning for a bill of review executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child, the petition for bill of review must be brought within six months after the termination order.  Tex. Fam. Code Ann. ' 161.211 (Vernon 2002).  Section 161.211(c) additionally provides that, when a termination order is Abased on an unrevoked affidavit of relinquishment@ or waiver, a direct or collateral attack Ais limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.@ 

Rossler timely filed a petition for bill of review seeking to set aside the termination order. The order terminating Rossler=s rights did not mention the relinquishment but instead, and perhaps inadvertently, found that Rossler had Aengaged in conduct or knowingly placed the child with persons who engaged in conduct that endanger[ed] the physical or emotional well-being of the child.@  Consequently, Rossler=s petition for bill of review challenged the termination order under both the Section 161.211 and the general bill of review standards.  In the petition, Rossler acknowledged executing an affidavit of relinquishment, but he asserted that he executed the affidavit of relinquishment B which included a waiver of service B as a result of fraud, duress, or coercion. Rossler alleged that he had a meritorious defense; that he was prevented from presenting this meritorious defense because of the fraud, accident, or wrongful actions of his wife^[1]; and that he was not negligent or at fault. Rossler properly attached an affidavit to his petition.

Rossler=s affidavit detailed the events surrounding the termination, including the execution of the relinquishment and the conduct of Rossler=s wife. Rossler=s son G.N.H. was born while Rossler was deployed in Iraq.  Upon returning and after using his leave time, Rossler was stationed at Fort Hood.  Rossler=s wife refused to accompany him there; she and G.N.H. stayed behind.  When G.N.H. was approximately three and one-half months old, Rossler=s wife first approached him about signing over his rights.  Rossler asserted that he Abegged her not to give up@ on him.  Rossler=s wife, however, limited Rossler=s access to G.N.H. and then withheld access altogether.  Rossler asserted that he executed the affidavit of relinquishment and waiver of service as a result of his wife=s promise that he could have a Asecond chance@ if he would sign the affidavit and that signing the affidavit was the only way to get a second chance and have greater access to G.N.H.  Rossler stated that his wife assured him that she would not take G.N.H. away from Rossler. However, Rossler=s parental rights were thereafter terminated by court order when G.N.H. was only seven months old.            The trial court held a hearing on the bill of review. At the beginning of the hearing, the attorney representing G.N.H.=s mother, Ashley Nicole Hodges, who was by this time divorced from Rossler, called the court=s attention to Hodges=s requests for disclosure under Tex. R. Civ. P. 194 and to Rossler=s responses.  Hodges had requested that Rossler state the legal theories and, in general, the factual basis of his claims or defenses.  Rossler=s attorney had merely responded that it was in the best interest of the child that Rossler=s parental rights be reinstated or restored. Based upon this response, Hodges=s attorney requested that the trial court exclude any evidence not related to the best interest issue.  Rossler=s attorney explained that Hodges was put on notice of Rossler=s claims and defenses by the petition and the affidavit attached to the petition and by Rossler=s responses to the written interrogatories. However, because Rossler=s attorney had not more fully answered the Rule 194 request, the trial court ruled:

THE COURT: Well, the Court, then, is not going to permit you to present any testimony on anything other than it=s in the best interest of the child.

.  .  .  .

Then that=s the only thing that you=re going to be able to contest today with regard to this bill of review. 

            [ROSSLER=S COUNSEL]:  Well, we also want to contest the fact that the affidavit for terminating the parental rights of Steven Rossler was signed due to fraud, duress and coercion.

THE COURT: I=m going to go ahead and allow him to permit -- permit him since this is a bill of review to put those things on, but it=s not going to be for the Court=s consideration in making a determination in today=s hearing. 

All the Court is going to make a determination on in your bill of review today is the issue that it is in the best interest of the child.

We hold that the trial court=s ruling, whether it be considered an exclusion of evidence or a refusal to consider the evidence presented, constituted an abuse of discretion.  The imposition of an available discovery sanction is generally left to the sound discretion of the trial court.  TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding).  A trial court abuses its discretion if it acts without reference to any guiding rules and principles or if it acts arbitrarily or unreasonably.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court has no discretion in determining what the law is or in applying the law to the facts.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).  Therefore, a court abuses its discretion when it fails to correctly analyze or apply the law.  In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004); Walker, 827 S.W.2d at 840. 

To the extent that the trial court=s ruling constituted an exclusion of evidence, it was comparable to a death penalty or dismissal because it destroyed Rossler=s opportunity for a decision on the merits of the bill of review.  See Best Indus. Unif. Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 147-48 (Tex. App.CAmarillo 2000, pet. denied).  The court in Best accurately discussed Tex. R. Civ. P. 193.6 sanctions and the underlying policies and standards as set forth in several supreme court cases.  Applying those policies and standards, we hold that the trial court in this case abused its discretion insofar as it excluded Rossler=s evidence on the bill of review issues. The record shows that Rossler was not responsible for the offensive conduct, that the punishment did not fit the crime, and that the sanction was more severe than necessary to satisfy its legitimate purposes.  See id.; see also Hamill v. Level, 917 S.W.2d 15 (Tex. 1996); TransAmerican, 811 S.W.2d at 916-19. 

Moreover, evidence is not to be excluded under Rule 193.6, if Athe failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.@ Rule 193.6(a)(2).  As pointed out by Rossler=s attorney at the hearing, the petition for bill of review with the attached affidavit and the answers to interrogatories put Hodges on notice of the legal theories and the facts supporting Rossler=s claims and defenses.  In an apparent disregard of Rule 193.6(a)(2), the trial court refused to consider whether Hodges was otherwise put on notice and whether Rossler=s Rule 194 response unfairly surprised or prejudiced Hodges.  Consequently, the trial court acted without reference to the guiding rules and principles to the extent it ruled that the evidence be excluded. 

To the extent that the trial court permitted the evidence to be introduced but refused to consider it, the trial court erred.  The record shows that the trial court explicitly refused to consider evidence that was introduced by Rossler, was relevant to the issues in this case, and was probative under the guidelines set forth for bills of review in King Ranch and Section 161.211.  The trial court improperly limited its consideration of the evidence and, consequently, abused its discretion by failing to correctly analyze and apply the law related to bills of review.  We sustain Rossler=s first issue. 

In his second issue, Rossler addresses the merits of his bill of review.  With respect to the relinquishment issue, Rossler relies upon Queen v. Goeddertz, 48 S.W.3d 928 (Tex. App.CBeaumont 2001, no pet.), and Vela v. Marywood, 17 S.W.3d 750 (Tex. App.CAustin 2000), pet. denied, 53 S.W.3d 684 (Tex. 2001).  Rossler asks this court to consider the issue and the evidence presented to the trial court, reverse the trial court=s judgment, and render a judgment ordering the reinstatement of his parental rights.  We are not authorized to grant such relief under the circumstances of this case; there are issues of fact and determinations of credibility that must be decided by the trial court.  Therefore, we overrule Rossler=s second issue. 

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.

AUSTIN McCLOUD

SENIOR JUSTICE

November 2, 2006

Panel consists of:  McCall, J., and

Strange, J., and McCloud, S.J.^[2]

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^[1]Rossler was married to G.N.H.=s mother when he executed the affidavit of relinquishment and when the trial court entered the termination order.  Rossler and the child=s mother have since divorced.  Her name is now Ashley Nicole Hodges.

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.