in the Interest of A.B.B., a Child ( 2021 )

AFFIRMED and Opinion Filed December 31, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00319-CV
IN THE INTEREST OF A.B.B., A CHILD
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-17-00832
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
The trial court signed an order terminating the parental rights of Mother on
September 24, 2018. Mother filed a bill of review challenging the termination on
April 4, 2019, followed by three subsequent amended petitions for bill of review.
The Department of Family and Protective Services filed a response and a plea to the
jurisdiction. The trial court granted the Department’s plea to the jurisdiction and
dismissed the case.
On appeal, Mother argues the trial court abused its discretion by (1) strictly
imposing the six-month statutory deadline for filing a bill of review; (2) allowing
her court-appointed attorney to withdraw without strict compliance with rule of civil
procedure 10; and (3) holding the termination hearing without representation or
proper notice. We affirm the trial court’s order.
Background
On August 18, 2017, the Department filed an original petition for protection
of child, for conservatorship, and for termination in the suit affecting the parent child
relationship. A.B.B. was six months old at the time of the filing. The Department
alleged, among other things, that Mother had a mental or emotional illness or mental
deficiency that rendered her unable to provide for the physical, emotional, and
mental needs of A.B.B.
In the affidavit attached to the original petition, the caseworker stated that on
July 21, 2017, Mother went to the Jack Evans Dallas Police Department and reported
she wanted to kill herself as well as A.B.B. by stabbing her to death. Mother went
to Parkland hospital and was later transferred to Timberlawn hospital because of
homicidal and suicidal ideations. She was released August 1, 2017, but returned to
another facility a couple weeks later because of continued metal health issues. The
affidavit also stated that Mother had a previous removal and termination of parental
rights because she abused her five-week-old son.1
The trial court appointed the Department temporary managing conservator of
A.B.B. on August 21, 2017. The clerk’s record includes a Family Service Plan
1
The record does not indicate the date of this birth, but her parental rights were terminated on October
1, 2015. The child was adopted in January of 2016.
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signed by Mother on September 20, 2017, which included a permanency goal of
“family reunification.” At that time, A.B.B. was thriving in her foster home.
Mother appeared in person, and with her attorney, for status hearings on
October 18, 2017 and February 19, 2018.
The parties entered into a mediated settlement agreement on April 18, 2018
allowing, among other things, Mother unsupervised transitional visits from Friday
at 5:00 p.m. until Monday at 9:00 a.m. and a statutory monitored 180-day return
beginning on April 30, 2018. Mother’s monitored return lasted twenty-four hours.
On May 7, 2018, the Department filed a motion to modify temporary orders
for neglectful supervision based on Father, who police arrested in possession of
drugs, leaving A.B.B. unsupervised at home while Mother worked. The court again
appointed the Department as A.B.B.’s temporary managing conservator, and A.B.B.
returned to the same foster home as before the monitored return.
Mother answered the Department’s suit for termination of her parental rights
on July 19, 2018, and filed a petition seeking managing conservatorship of A.B.B.
At that time, a jury trial was set for August 20, 2018.
On August 9, 2018, Mother’s appointed attorney filed a motion asking that
A.B.B. remain in the temporary conservatorship of the Department and requesting
an extension of the trial and dismissal date because “Mother has not maintained
contact with the undersigned attorney or the Department to mediate this case and/or
to confer with [] Father to discuss the options in resolving this matter.”
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Mother’s attorney filed a motion to withdraw on August 16, 2018, arguing
that good cause existed for withdrawal because she was unable to “effectively
communicate with [Mother] in a manner consistent with good attorney-client
relations.” She alleged Mother had not made any contact since early June of 2018
and had not answered emails. Efforts to contact Mother were futile as her last known
phone number was out of service, and she did not live at her last known address.
On August 20, 2018, the day of the termination hearing, the court granted the
attorney’s motion to withdraw. At the hearing, counsel indicated that her last contact
with Mother was after the last hearing, and “she knew to be here.” The trial judge
asked her bailiff to “sound the hall for [Mother],” but she was not present. The
termination hearing then proceeded without representation for Mother.
A caseworker testified that despite numerous ordered services, Mother’s
involvement had been fairly minimal and highly sporadic. The Department testified
that termination was in the best interests of A.B.B. because Mother failed to comply
with the court ordered services, she knowingly placed or allowed A.B.B. to remain
in conditions that endangered her physical or emotional well-being, and she engaged
in conduct or knowingly placed A.B.B. with persons who engaged in conduct
endangering A.B.B.’s emotional or physical well-being.
The Department testified A.B.B.’s foster family wanted to proceed with
adoption. The Department further indicated that giving Mother more time to address
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her living conditions or mental health would not change what was in the best interest
of A.B.B., which was to move forward with adoption.
The trial court signed an order terminating Mother’s parental rights on
September 24, 2018. The order stated that Mother “failed to appear following
service of citation and notice and was found to be wholly in default.”
Mother filed a petition for bill of review on April 4, 2019, and an amended
petition for bill of review on September 3, 2019. Subsequently, the Department filed
its response to the bill of review and a plea to the jurisdiction. The Department
argued Mother’s bill of review was untimely and, therefore, barred by the Texas
Family Code. Mother filed two more amended bills of review on January 14, 2020
and January 16, 2020, but never addressed the Department’s jurisdictional argument.
Rather, she claimed she “did not become aware of her rights until the time had
already passed for a Motion for New Trial or Motion to Reconsider.”
The trial court held a hearing on February 7, 2020. Mother appeared in person
and through her attorney of record. The Department argued its plea to the
jurisdiction. After reviewing the pleadings and hearing arguments, the trial court
orally granted the Department’s plea to the jurisdiction because Mother’s bill of
review was untimely. The trial court then allowed Mother’s counsel to create a
record as to what Mother would have testified to, if given the opportunity. Counsel
stated Mother would have testified that she did not receive notice of the August 20,
2018 hearing.
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The trial court signed a dismissal order for lack of jurisdiction on May 22,
2020. At that time, A.B.B. had been with her adoptive family for almost a year.
This appeal followed.
Standard of Review
A bill of review is an independent equitable action brought to set aside a
judgment in the same court in an earlier suit when the judgment in the earlier suit is
final, not reviewable on appeal, and does not appear to be void on the face of the
record. Vickery v. Vickery, 999 S.W.2d 342, 367 (Tex. 1999). Because the
administration of justice requires that judgments be afforded some finality, courts
do not look on bills of review with favor, and the grounds on which they are granted
are narrow and restricted. Id.; In the interest of I.S., No. 05-15-01450-CV, 2016 WL
3005721, at *2 (Tex. App.—Dallas May 23, 2016, pet. denied) (mem. op.). We
review the granting of a bill of review under an abuse of discretion standard. Ramsey
v. Davis, 261 S.W.3d 811, 815 (Tex. App.—Dallas 2008, pet. denied).
Discussion
In her first issue, Mother argues the trial court abused its discretion and
violated her due process rights by strictly imposing Texas Family Code section
161.211(a)’s six-month limitation for attacking an order terminating parental rights.
The Department responds courts have repeatedly upheld the validity of the statute
even when underlying claims have involved due process allegations.
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Section 161.211(a) of the Texas Family Code provides that the validity of an
order terminating the parental rights of a person who was personally served is not
subject to either a direct or collateral attack filed more than six months after the
termination order has been signed. TEX. FAM. CODE ANN. § 161.211(a). Thus, if a
person who is constitutionally entitled to notice of the termination proceeding
receives proper notice, the trial court lacks jurisdiction to entertain any challenges,
direct or collateral, after six months from the time the termination order is signed.
In the interest of I.S., 2016 WL 3005721, at *2; see also In re E.R., 335 S.W.3d 816,
821 (Tex. App.—Dallas 2011), rev’d on other grounds, 385 S.W.3d 552 (Tex.
2012).
Here, the record shows Mother was served by citation, filed an answer, and
never challenged the validity of service or the court’s jurisdiction over the
underlying termination. The trial court signed the order terminating Mother’s
parental rights on September 24, 2018. Thus, section 161.211(a) required Mother to
attack the order no later than March 24, 2019.
Mother, however, argues that termination proceedings must be strictly
scrutinized and a state law time limit that violates due process is unenforceable. A
review of case law, including precedent from this Court, indicates otherwise.
For example, in I.S., an aunt filed a bill of review on behalf of the mother after
the mother’s parental rights were terminated. 2016 WL 3005721, at *1. The bill of
review alleged that the mother was never served in the suit, CPS failed to exercise
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due diligence in its search to locate the aunt, and that the mother received ineffective
assistance of counsel. Id. Despite these alleged due process violations, this Court
held that the record indicated that the mother had been personally served with notice
of the proceedings; therefore, section 161.211 required her to attack the termination
within six months. Id. at *2. Because the bill of review was filed almost two years
later, we concluded the trial court properly denied the bill of review and lacked
jurisdiction to consider the claims in the bill of review. Id.
In H.L.M., the Austin court of appeals reached a similar conclusion when a
mother challenged the dismissal of her bill of review based on section 161.211(a).
In the interest of H.L.M., No. 03-19-00490-CV, 2019 WL 6721000, at *1 (Tex.
App.—Austin Dec. 11, 2019, pet. denied) (mem. op.). The mother argued that
because her petition for bill of review alleged that her due process rights were
violated when she received ineffective assistance of counsel at “the most critical
stage of the case: shortly before and after the final decree of termination was signed,”
the six-month time limit did not apply. Id. at *3. The court reasoned that even
assuming the allegations of ineffective assistance by counsel were true, her bill of
review did not explain how the six-month time limit for filing her petition for bill of
review deprived her of her constitutional right to due process, particularly when the
mother did not dispute that she had notice of the decree of termination. Id. Because
the record did not indicate that she was precluded from filing her bill of review
within the statutory deadline, the trial court did not abuse its discretion by dismissing
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the bill of review. Id. Similar to the present facts, Mother does not dispute that she
received personal service of the termination suit and that she had notice of the
termination decree.
The Texas Supreme Court has held in one case that the six-month statutory
deadline in section 161.211 did not apply to bar the mother’s claim; however, the
facts are easily distinguishable. See In re E.R., 385 S.W.3d 552 (Tex. 2012). In that
case, the mother challenged section 161.112(b), which applies to service of citation
by publication. Id. at 555. The court’s analysis focused on whether service by
publication was constitutionally acceptable when the State knew the mother’s
identity, was in regular contact with her, and had at least one in-person meeting with
her after it sued to terminate her rights. Id. After discussing the history of service
by publication, the court concluded that “notice by publication is a poor and
sometimes a hopeless substitute for actual service and notice, and it’s justification is
difficult at best.” Id. at 561 (quoting City of N.Y. v. N.Y., New Haven & Hartford
R.R. Co., 344 U.S. 293, 296 (1953)). Because it was both possible and practical to
more adequately notify the mother of the impending termination of her parental
rights, notice by publication was constitutionally inadequate. Id. at 566. The court
acknowledged the policy concerns of the Department to reach a quick and final
decision to promote the best interests of a child; however, it recognized that “finality
cannot trump a parent’s constitutional rights to be heard.” Id.
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The concerns addressed by the supreme court in E.R. are absent in the present
case. The Department did not serve citation by publication, but instead Mother was
personally served. Mother’s attorney stated at the beginning of the termination
hearing that she told Mother the date of the hearing, yet she did not show up. Then,
when Mother learned of the termination, she failed to act within the statutory
deadline. The record is noticeably silent as to why.2 “When a child’s welfare hangs
in the balance, the reliance interest created by a termination order need not yield
when a parent learns of the order yet unreasonably fails to act.” Id. at 568.
Parents and children have an interest in resolving termination proceedings as
expeditiously as reasonably possible. In re K.S.L., 538 S.W.3d 107, 115 (Tex. 2017).
The child’s best interest in inherently threatened by undue uncertainty and delay in
finally determining where the child will live and who will raise her. Id. This concern
is reflected by the legislative mandate that trial proceedings and appeals in parental
termination cases are subject to expeditated procedures. Id.Because Mother failed to comply with section 161.112(a), she failed to invoke
the jurisdiction of the trial court. Thus, the trial court did not abuse its discretion by
granting the Department’s plea to the jurisdiction and dismissing the case without
addressing the merits of Mother’s bill of review. We overrule Mother’s first issue.
2
While the record indicates Mother was in and out of treatment facilities for mental health issues prior
to termination, the record does not indicate she was a patient during the six months after termination—a
scenario that could hinder her ability to find out her parental rights were terminated within the six-month
timeframe and could result in a deprivation of her due process rights.
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Although we do not look favorably upon the filing and the granting of the
motion to withdraw under the facts of this case, particularly when Mother’s attorney
was appointed, we do not have jurisdiction to consider the arguments. As such, we
do not reach the merits of Mother’s second and third issues. See TEX. R. APP. P.
47.1.
Conclusion
Because section 161.211(a) barred Mother’s bill of review, the trial court
lacked jurisdiction to consider it. We affirm the trial court’s order dismissing the
case for lack of jurisdiction.
/Craig Smith/
CRAIG SMITH
JUSTICE
200319F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.B.B., A On Appeal from the 305th Judicial
CHILD District Court, Dallas County, Texas
Trial Court Cause No. JC-17-00832.
No. 05-20-00319-CV Opinion delivered by Justice Smith.
Justices Pedersen, III and Goldstein
participating.
In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.
It is ORDERED that appellee the Department of Family and Protective
Services recover its costs of this appeal from appellant Bennie Bigham.
Judgment entered December 31, 2021.
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