in the Interest of M.Y.W and C.C.W., Minor Children ( 2006 )

Affirmed and Memorandum Opinion filed November 21, 2006

Affirmed and Memorandum Opinion filed November 21, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00185-CV

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IN THE INTEREST OF M.Y.W. AND C.C.W., MINOR CHILDREN

On Appeal from the 300^th District Court

Brazoria County, Texas

Trial Court Cause No. 24915

M E M O R A N D U M  O P I N I O N

Appellant, Evanjela,^[1] appeals the trial court=s denial of her bill of review.  Because appellant=s bill of review is barred by section 161.211 of the Texas Family Code, we affirm.

I. Factual and Procedural Background

On June 27, 2003, the Brazoria County Children=s Protective Services^[2] (ACPS@) filed suit against appellant for emergency protection, conservatorship, and termination of the parent-child relationships between appellant and her two minor children, M.Y.W. and C.C.W. That same day, the trial court ordered that M.Y.W. and C.C.W. be placed in the temporary managing conservatorship of the CPS.  On July 8, 2003, appellant appeared in person at a hearing on temporary orders and signed a written Notice of Hearings, acknowledging her notice of three subsequent hearings and a trial setting. 

On March 17, 2004, appellant executed an irrevocable affidavit of voluntary relinquishment of her parental rights to M.Y.W. and C.C.W. (Athe affidavit@), pursuant to section 161.103 of the Texas Family Code.  See Tex. Fam. Code Ann. ' 161.103(a)B(b) (Vernon Supp. 2005).  In the affidavit, appellant waived her right to notice in any suit to terminate her parental rights and stated that she did not want to receive a copy of the judgment terminating her parental rights.  See id. ' 161.103(c) (Vernon Supp. 2005) (AThe affidavit may contain . . . a waiver of process in a suit to terminate the parent-child relationship filed under this chapter. . . .@). 

On July 19, 2004, the suit to terminate appellant=s parental rights was tried.  Three witnesses testified on behalf of the CPS, and the affidavit was admitted into evidence.  The trial court signed a judgment on July 19, 2004 terminating the parent-child relationships between appellant and M.Y.W. and C.C.W.^[3]

On November 14, 2005, appellant filed an Original Petition for Bill of Review alleging that appellee, The Texas Department of Family & Protective Services, committed fraudulent acts in connection with the termination of her parental rights.^[4]  Appellee filed an Original Answer and subsequently filed a Motion to Dismiss Petitioner=s Bill of Review.  Appellant=s bill of review and appellee=s motion to dismiss were set for hearing on January 25, 2006.

On January 25, 2006, appellee filed a Supplemental Motion to Dismiss Petitioner=s Bill of Review in which it asserted the affirmative defense of limitations based on section 161.211 of the Texas Family Code.^[5]  See Tex. Fam. Code Ann. ' 161.211(a) (Vernon 2002).  Appellant did not file a written response to appellee=s motion to dismiss or supplemental motion to dismiss.  Appellant never objected to the form of the pleading in which appellee asserted the affirmative defense of limitations.^[6]

On January 25, 2006, appellant moved for a continuance on the grounds that appellee=s supplemental motion to dismiss would operate as a surprise.  The trial court denied appellant=s motion.  On appeal, appellant does not challenge the trial court=s denial of her motion for a continuance.  At the January 25 hearing, the trial court heard arguments regarding the defense of limitations, and appellant gave testimony pertaining to claims asserted in the bill of review.  On February 10, 2006, the trial court signed an order denying appellant=s petition for bill of review.^[7]  This appeal followed.

In two points of error, appellant argues (1) the trial court erred in denying her petition for bill of review because she presented sufficient evidence to establish a prima facie case that the affidavit was the product of fraud, duress, and coercion; and (2) if the affidavit is excluded, the remaining evidence is insufficient to establish by clear and convincing evidence that termination of her parental rights was in the best interest of M.Y.W. and C.C.W.  Appellee argues, inter alia, that appellant=s bill of review is barred by section 161.211 of the Texas Family Code.

II. Standard of Review

In reviewing the grant or denial of a bill of review, we will not disturb the trial court=s ruling absent an abuse of discretion.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

III. Analysis

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for new trial.  Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979).  A bill of review petitioner must ordinarily plead and prove three elements: (1) a meritorious defense to the cause of action alleged to support the judgment; (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or by official mistake; and (3) the absence of fault or negligence of the complainant.  Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).  To invoke the equitable powers of the court, the bill of review petitioner must, as a preliminary matter, make a prima facie showing of a meritorious defense to the cause of action alleged to support the judgment.  Baker, 582 S.W.2d at 408.  A prima facie meritorious defense is made out when it is determined that the complainant=s defense is not barred as a matter of law and he will be entitled to judgment on retrial if no evidence to the contrary is offered.  Id. at 408B09.  Prima facie proof may consist of documents, admissions, and affidavits along with other evidence the trial court may receive in its discretion.  Id. at 409.  At the preliminary hearing, the bill of review defendant may respond with like proof showing the defense is barred as a matter of law.  Id.  

The six month limitation on attacks on termination rulings in Section 161.211 is an affirmative defense, which a defendant may interpose to defeat a plaintiff=s prima facie case.  See In re Bullock, 146 S.W.3d 783, 790 (Tex. App.CBeaumont 2004, no pet.). An affirmative defense does not rebut the factual propositions of the plaintiff=s pleading, but, instead, allows the defendant to introduce evidence to establish an independent reason why the plaintiff should not prevail.  Bullock, 146 S.W.3d at 791 (citing Gorman v. Life Ins. Co. Of North America, 811 S.W.2d 542, 546 (Tex. 1991)).

            Appellee pleaded the affirmative defense of limitations and argued at the preliminary hearing that appellant=s bill of review was barred by section 161.211 of the Texas Family Code.  Section 161.211 provides:

Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights . . . 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).  At the conclusion of the January 25 preliminary hearing, the trial court ruled appellant had not met her burden of establishing a prima facie case for the bill of review.

An appellant must attack all independent grounds that fully support an adverse ruling.  Britton v.Texas Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.CHouston [1st Dist.] 2002 no pet.)  It is undisputed that appellant executed an affidavit of relinquishment of her parental rights.  It is also undisputed that the judgment terminating appellant=s parental rights was signed by the trial judge on July 19, 2004, and appellant=s Original Petition for Bill of Review was not filed until November 14, 2005Cmore than fifteen months after the date the order was signed.   Therefore, we hold that appellant=s bill of review is barred by the six month limitation period in section 161.211 of the Texas Family Code.  Tex. Fam. Code Ann. ' 161.211(a).  Because we resolve this appeal on the basis of limitations, we need not address appellant=s other issues.

Accordingly, the judgment of the trial court is affirmed.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 21, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.

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^[1] To preserve the parties= privacy, we identify the parent by first name and the children by initials.  See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002).

^[2] Brazoria County Children=s Protective Services is a unit of the Texas Department of Family

& Protective Services.

^[3] The trial court=s Judgment Terminating the Parent-Child Relationships provides:

[Appellant] did not appear having waived issuance of citation, process and notice by waiver duly filed. . . . The Court finds by clear and convincing evidence that [appellant] has voluntarily executed an irrevocable affidavit of relinquishment of parental rights.  The court also finds by clear and convincing evidence that termination of the parent-child relationships between [appellant] and the children is in the best interests of the children.  IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the parent-child relationships between [appellant] and the children are terminated.

^[4] The Texas Family Code provides that A[a] direct or collateral attack on an order terminating

parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.@ Tex. Fam. Code Ann. ' 161.211(c) (Vernon 2002).

^[5] Appellee=s Supplemental Motion to Dismiss Petitioner=s Bill of Review asserts:

ANotwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed.@ See Tex. Fam. Code Ann. ' 161.211(B). [sic]

The Petitioner admits in her Petition that the Final Judgment was signed on July 19, 2004.  The Petition for Bill of Review was not filed until November 14, 2005, one year and four months after Judge Craft signed the Order.            

The Petitioner has failed to file her Petition in a timely manner, and thus may not seek remedy under a Bill of Review.            

^[6] Rule 90 of the Texas Rules of Civil Procedure provides:

Every defect, omission or fault in a pleading either of form or substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered.

Tex. R. Civ. P. 90.

^[7] The trial court=s Order Denying Petition for Bill of Review states: AOn January 25, 2006, the court considered [appellant]=s Petition for Bill of Review.  After considering the petition, the response, and after a hearing on the petition and receiving evidence, the court DENIES the petition.@