in the Interest of C.R.G., a Child ( 2017 )

ACCEPTED
05-17-00717-cv
FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/4/2017 1:34 PM
LISA MATZ
CLERK
CAUSE NO. 05-17-00717-CV
FILED IN
5th COURT
_______________________________________________ OF APPEALS
DALLAS, TEXAS
12/4/2017 1:34:55 PM
IN THE FIFTH DISTRICT COURT OF APPEALS
LISA MATZ
Clerk
AT DALLAS, TEXAS
_______________________________________________
IN THE INTEREST OF C.R.G., A CHILD
_______________________________________________
APPELLANT’S MOTION FOR REHEARING AND
ALTERNATIVELY MOTION FOR REHEARING EN BANC
_______________________________________________
Appellee, E.A.G., submits this Appellee’s Motion for Rehearing and,
Alternatively, Motion for Rehearing En Banc, in response to the opinion
issued by the Court dated November 17, 2017 and requests the Court to
consider the following issues:
ISSUES PRESENTED FOR REHEARING
Issue 1: By providing Vargas – an alleged father who, prior to
termination, neither registered with the paternity registry nor initiated
a suit to adjudicate his parental rights – with standing to challenge a
termination order granted under the authority of Texas Family Code
§160.404 and §161.002(b), the Court’s opinion bestows parental rights
and associated constitutional protections upon a legal stranger to a child
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under one year of age and adds notice requirements to a Texas Family
Code §160.404 and §161.002(b) termination in direct contravention to
relevant Texas Family Code provisions and relevant case law.
Issue 2: The Opinion further errs by disregarding the
uncontroverted evidence offered by E.A.G. negating the trial court’s
jurisdiction to determine Vargas’s claims and by considering unsworn
statements and allegations by Vargas which were not offered into
evidence in the trial court.
ARGUMENT AND AUTHORITIES
Issue 1. An alleged father who neither registers with the
paternity registry nor files a suit to adjudicate his parentage
prior to termination, has no then-existing right or interest with
respect to a child that can be prejudiced by a termination order
entered under §161.002(b) of the Texas Family Code; thus, Vargas
lacks standing to maintain his bill of review.
The Opinion claims that Vargas “has standing to maintain the
underlying bill of review to challenge the constitutionality of the statute
under which his paternity was terminated”. Opinion at 1. Yet, Vargas
2
does not have, nor has he ever had “parental rights” under the law of
Texas or under applicable case law. To find otherwise misconstrues §§
160.404 and 161.002 of the Texas Family Code, requiring consideration
and correction by this this Court.
The primary objective when construing a statute is to ascertain and
give effect to the Legislature's intent. City of Houston v. Jackson, 192
S.W.3d 764, 770 (Tex. 2006); see also McIntyre v. Ramirez, 109 S.W.3d
741, 745 (Tex.2003). In discerning that intent, the court of appeals begins
with the “ ‘plain and common meaning of the statute's words.’ ” Id. When
the statutory language is unambiguous, we must apply the statute as
written. City of Houston v. Jackson, 192 S.W.3d 764, 770; see also
RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607
(Tex.1985).
As stated in the Opinion, “[t]o have standing, the plaintiff in the bill
of review action must have been a part to the prior judgment or have had
a then-existing right or interest prejudiced by the resulting judgment.
Opinion at 6; see also Dolenz v. Wells, No. 05-06-00840-CV, 2007 WL
259196, at *1 (Tex. App. – Dallas Jan. 31, 2007, pet. denied) (mem. op.)
(emphasis added).
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A. Applicable statutes
The applicable statutes in this case concern the parental rights in
Texas by unmarried men claiming to be fathers, and the termination of
any rights that such men could later assert in the absence of any
affirmative action on their parts with respect to the children involved.
Specifically, this Court must apply the following statutes to the matters
at issue:
a. Texas Family Code § 101.0015. Alleged Father
(a) “Alleged father” means 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.
b. Texas Family Code § 101.024. Parent
(a) “Parent” means the mother, a man presumed to be the father, a
man legally determined to be the father, a man who has been
adjudicated to be the father by a court of competent jurisdiction, a
man who has acknowledged his paternity under applicable law, or
an adoptive mother or father. Except as provided by Subsection (b),
the term does not include a parent as to whom the parent-child
relationship has been terminated.
c. Texas Family Code § 102.009. Service of Citation
(a) Except as provided by Subsection (b), the following are entitled
to service of citation on the filing of a petition in an original suit:
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(8) an alleged father, unless there is attached to the petition
an affidavit of waiver of interest in a child executed by the
alleged father as provided by Chapter 161 or unless the
petitioner has complied with the provisions of Section
d. Texas Family Code § 160.402. Registration for Notification
(a) Except as otherwise 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.
(b) A man is entitled to notice of a proceeding described by
Subsection (a) regardless of whether he registers with the
registry of paternity if:
(1) a father-child relationship between the man and the
child has been established under this chapter or another
law; or
(2) the man commences a proceeding to adjudicate his
paternity before the court has terminated his parental
rights.
e. Texas Family Code § 160.404. Termination of Parental Rights:
Failure to Register
The parental rights of a man alleged to be the father of a child
may be terminated without notice as provided by Section
161.002 if the man:
(1) did not timely register with the vital statistics unit;
and
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(2) is not entitled to notice under Section 160.402 or
161.002.
f. § 161.002. Termination of the Rights of an Alleged Biological Father
(a) Except as otherwise provided by this section, the
procedural and substantive standards for termination of
parental rights apply to the termination of the rights of
an alleged father.
(b) The rights of an alleged father may be terminated if:
(3) the child is under one year of age at the time the
petition for termination of the parent-child relationship
or for adoption is filed and he has not registered with
the paternity registry under Chapter 160;
(c-1) The termination of the rights of an alleged father under
Subsection (b)(2) or (3) rendered on or after January 1, 2008,
does not require personal service of citation or citation by
publication on the alleged father, and there is no requirement
to identify or locate an alleged father who has not registered
with the paternity registry under Chapter 160.
(e) The court shall not render an order terminating parental
rights under Subsection (b)(2) or (3) unless the court receives
evidence of a certificate of the results of a search of the
paternity registry under Chapter 160 from the vital statistics
unit indicating that no man has registered the intent to claim
paternity.
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B. Applicable case law
These statutes and their impact on the rights of alleged “fathers”
who failed to take the appropriate action to assert alleged parental rights
have been examined and upheld by this Court in the Baby Girl S.
Opinion. See In re Baby Girl S., 407 S.W.3d 904, 910 (Tex. App.—Dallas
2013, pet. denied). In Lehr v. Robinson, a similar paternity registry
statute from the state of New York was upheld by the United States
Supreme Court because it “adequately protected” a putative father’s
“opportunity to form” a relationship with his alleged child, should he have
availed himself upon it. Lehr v. Robertson, 463 U.S. 248, 263-64, 103 S.
Ct. 2985, 2995, 77 L. Ed. 2d 614 (1983) Both cases were discussed in
detail in E.A.G.’s Appellee’s Brief. See Appellee’s Brief at 16-21.
Despite the Opinion’s attempt to distinguish these cases based
upon the procedural mechanism used to challenge standing and/or the
existence of purported parental rights asserted1, these opinions reveal
the following legal analysis relevant to the matters before this Court:
• Parental rights do not exist by mere biology alone; an alleged
father does not automatically have full constitutional paternal
1
The reference to “plea to the jurisdiction” is not to a particular procedural vehicle
but to the substance of the issue raised. Texas Dept. of Criminal Justice v. Simons,
140 S.W.3d 338, 349 (Tex. 2004).
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rights by virtue of a mere biological relationship. See Lehr, 463
U.S. at 261; Baby Girl S., 407 S.W.3d at 912; see also In re
C.M.D., 287 S.W.3d 510, 516 (Tex.App.-Houston [14th Dist.]
2009, no pet.)
• The biological connection instead offers the natural father the
opportunity to develop a relationship with his child. Lehr, 463
U.S. at 262. “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.” Id.
• An alleged father in Texas must either register with the
paternity registry or initiate a suit to adjudicate parentage with
respect to a child prior to effectuate a right to notice of
termination proceedings. Baby Girl S., see also Tex. Fam. Code
§§ 160.604,161.002(b)(3).
• In Texas, the paternity registry statute provides an alleged
father with the means of asserting his rights without depending
on the mother, the courts, or anyone else to identify him. Baby
Girl S., 407 S.W.3d at 915. The registry puts control in the hands
of alleged fathers, independent of the mother. Baby Girl S., 407
S.W.3d at 921.
• The possibility that a putative or alleged father may have failed
to assert his rights to a child through a paternity registry or
other available means because of his ignorance of the law cannot
be a sufficient reason for criticizing the law itself. See Lehr, 463
U.S. at 264.
• Even to fathers who are known to the mother and have been
prevented by the mother from learning of the pregnancy and
birth, Texas Family Code 160.403, 161.002(b)(3) and (c-1), allow
for termination of parental rights of an alleged father without
notice and without identifying or locating the alleged father if
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child is under age of one and alleged father did not register with
the paternity registry. Baby Girl S., 407 S.W.3d at 910.2
These legal principles are instructive to this Court’s analysis of
Vargas’s claimed interest with respect to C.R.G. as it existed at the time
of the termination order challenged through his bill of review in the
underlying case.
C. Vargas lacked standing to challenge the termination
order involving C.R.G.
The Opinion and Vargas adopt the erroneous presumption that
Vargas, an unmarried man who neither registered with the paternity
registry nor timely initiated a suit to adjudicate his parentage, is or was
at some point the parent or father of C.R.G. Such a position is
unsupported by caselaw is contrary to the law of this State. Texas Family
Code §101.024 requires that to be a parent of a child, a man must be (1)
a man presumed to be the father, (2) a man legally determined to be the
father, (3) a man who has been adjudicated to be the father by a court of
competent jurisdiction, (4) a man who has acknowledged his paternity
2
“[h]ad the legislature intended any additional restrictions, it would have included
them within the language of the statute. In re Baby Girl S., 407 S.W.3d at 910.
9
under applicable law, or (5) an adoptive father. See Tex. Fam. Code
§101.024. Indisputably, Vargas is none of these. He has no parental
rights to be afforded constitutional protection. See e.g. Troxel v. Granville,
530 U.S. 57, 65 (2000); In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994).
Further, as state by the United States Supreme Court, “mere existence
of a biological link does not merit constitutional protection.” Lehr, 463
U.S. at 261; see also Baby Girl S., 407 S.W.3d at 913.
Vargas had no then-existing right or interest with respect to C.R.G.
that was prejudiced by the termination order he now seeks to challenge.
See Dolenz, 2007 WL 259196, at *1. As stated in the Opinion, the
constitutionality of the statute is not addressed by this Court. Opinion at
5. Despite his claims, Vargas was not a parent as defined by the Texas
legislature. See Tex. Fam. Code § 101.024. Vargas was an alleged father
who, prior to termination, took no legal action to establish his rights to
C.R.G. or to entitle him to notice of any proceeding concerning the child.
See Tex. Fam. Code § 101.0015.
Unlike a parent, an alleged father does not have parental rights,
merely the opportunity to obtain parental rights should he appropriately
avail himself on the mechanisms available to become a parent under the
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authority of the Texas Family Code. See Lehr, 463 U.S. at 262; Baby Girl
S., 407 S.W.3d at 913. As an alleged father, Vargas had statutory
opportunities to purse his paternity claims prior to termination, yet failed
to act. Thus, the Texas Family Code provision for termination of alleged
fathers applied. Tex. Fam. Code §§ 160.404; 161.002(b). This does not
include constitutional protections for a “parent” or the requirement of any
notice to him prior to termination of whatever rights he might have
otherwise acquired had he taken one of the appropriate actions. See id;
see also § 160.404. Vargas’s purported interest as an individual who had
taken no action at the time of termination is vastly different from the
parents in both cases cited in the Opinion, Troxel v. Granville and In re
J.W.T. Opinion at 6; see Troxel, 530 U.S. at 65; J.W.T., 872 S.W.2d at 195.
Again, Vargas is not now nor was he ever a parent to C.R.G. see Tex.
Fam. Code §101.024.
At the time of the termination, Vargas had neither initiated a suit
to adjudicate his paternity nor had he registered with the paternity
registry. (CR 69-75.) The termination order that Vargas seeks to
challenge by bill of review was obtained properly, pursuant to §160.404
and 161.002(b) of the Texas Family Code. There is no contention or
11
challenge by Vargas to the contrary. All appropriate procedures were
followed.
Contrary to the statements in Appellant’s Brief and much of the
argument considered in this Court’s Opinion, Vargas’s ability to register
with the paternity registry and/or to initiate a suit to adjudicate his
parentage was within his control, independent of E.A.G. Allegations
about her statements to Vargas are irrelevant to Vargas’s failure to
assert any right he might have had to C.R.G. prior to termination, as are
the claims of his period of disability (which began months after his
purported sexual relations with E.A.G. and ended months prior to the
termination order of which he now complains). See Baby Girl S., 407
S.W.3d at 921 (CR 56; 69-75.) Because of his own inaction, even taking
his claims as true, Vargas had no claims or interests with respect to
C.R.G. that were prejudiced by the termination order – Vargas never had
rights to the child, was never established as the father, and had no
interest at the time the termination order was entered.
By bestowing parental rights on a nonparent alleged father and
imposing a notice requirement for termination proceedings properly
conducted under Texas Family Code § 161.002(b), the Opinion disregards
12
the language expressed by the Legislature in drafting this statute. See
Tex. Fam. Code § 161.002(b); see also Baby Girl S., 407 S.W.3d at 910. This
in turn undermines the policy finality of judgments, especially important
in termination matters, opening the gates for bill of review attacks of
terminations properly granted under § 161.002 by men who failed to
timely assert their claimed interest in children through the manner
proscribed by the Legislature. This is the wrong result under statute and
case law. This Court should, as a result, reconsider its November 17,
2017 Opinion and in all things, affirm the judgment of the trial court.
Issue 2: Relevant, undisputed evidence negated the trial court’s
jurisdiction over Vargas’s bill of review claims, requiring
dismissal of Vargas’s claims.
A. If relevant undisputed evidence negates jurisdiction,
then the plea to the jurisdiction must be granted.
The trial court must determine at its earliest opportunity whether
it has the constitutional or statutory authority to decide the case before
allowing the litigation to proceed. Texas Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Austin & N.W.R. Co.
v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903). A plea questioning the
13
trial court's jurisdiction raises a question of law that we review de novo.
Miranda, 133 S.W.3d at 225–26. Courts focus first on the plaintiff's
petition to determine whether the facts pled affirmatively demonstrate
that jurisdiction exists. Id. Pleadings are construed liberally, looking to
the pleader's intent. Id. When a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court must consider relevant
evidence submitted by the parties. Id., at 227; see also Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). A plea should not be granted
if a fact issue is presented as to the court's jurisdiction, but if the relevant
undisputed evidence negates jurisdiction, then the plea to the jurisdiction
must be granted. Miranda, 133 S.W.3d at 227–28.
B. E.A.G.’s uncontroverted evidence negated the trial
court’s jurisdiction.
Here, E.A.G.’s plea to the jurisdiction challenged the existence of
jurisdictional facts, specifically, Vargas’s alleged interest in C.R.G. (CR
49, 121.) Thus, the trial court was bound to consider relevant evidence.
As in Miranda, the uncontroverted evidence attached to E.A.G.’s plea to
the jurisdiction and admitted at the jurisdictional hearing made it
impossible for Vargas to establish a then-existing right or interest
14
prejudiced by the termination order at issue. Thus, Vargas has no
standing to purse his bill of review. Specifically, the following evidence
offered by E.A.G. conclusively established that termination of the rights
of all alleged fathers, including Vargas, was appropriate under §
161.002(b):
- C.R.G. was under one year of age when the petition for
termination of the parent-child relationship was filed (CR
79-80);
- At the time of the termination order, as shown by a
certificate from the vital statistics unit of the results of a
search of the paternity registry under Chapter 160, no man
including Vargas had registered the intent to claim
paternity (CR 56); and
- Further, at the time of the termination order, no
individual, including Vargas, had initiated a suit to
adjudicate parentage with respect to C.R.G. (CR 56.)
These facts were uncontroverted by Vargas and negate his standing
to challenge the termination order after the fact by bill of review. (See RR
Vol. 2 at 3.) Vargas presented no evidence whatsoever, controverting
E.A.G.’s plea to the jurisdiction or otherwise. (See RR Vols. 2-4.) Because
E.A.G. offered uncontroverted evidence negating jurisdiction of the trial
court over Vargas’s challenge to the termination order, the trial court was
compelled to grant her plea to the jurisdiction. Miranda, 133 S.W.3d at
15
227–28. Therefore, this Court should reconsider its November 17, 2017
opinion, withdraw the same, and affirm the judgment of the trial court
granting E.A.G.’s plea to the jurisdiction.
C. This Court improperly considered statements and
documents by Vargas that were not admitted into
evidence and/or were unauthenticated.
Further, it is well-established that documents not introduced into
evidence at trial are not part of the record and may not be considered on
appeal. In re E.W., 05-01-01463-CV, 2002 WL 1265541, at *2 (Tex. App.—
Dallas June 7, 2002, pet. denied);see also Noble Exploration v. Nixon
Drilling, 794 S.W.2d 589, 592 (Tex.App.-Austin 1990, no writ); City of
Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App.-Houston [1st Dist.]
1980, no writ). It is the duty of the appellate court to consider only the
testimony adduced and the evidence tendered and/or admitted at trial.
See E.W., 2002 WL 1265541, at *2; see also Rio Grande Valley Gas Co. v.
City of Edinburg, 59 S.W.3d 199, 221 n. 3 (Tex.App.-Corpus Christi 2000,
no pet.) This Court should not have considered Vargas’s factual
arguments and allegations addressed in detail on pages 3-4 of the
Opinion as such were never offered or admitted as evidence in this case
16
or even supported sworn to by Vargas in the form of an affidavit attached
to his pleadings. (See CR 9, 69; and RR Vols. 2-4.) In fact, the text
messages noted by the Opinion and cited by Vargas as proving his
paternity to C.R.G. and containing a picture of the child purportedly send
by E.A.G. to Vargas are dated October 14, 2015 – more than a month
before C.R.G.’s November 2015 birth. (CR 80, 84); see Opinion at 3-4.
To consider the unsupported and self-serving statements contained
in Vargas’s pleadings, unauthenticated (and likely altered) text
messages, statements of hearsay and speculation from relatives, and the
like without the same being admitted as evidence or even verified
through affidavit is error that should be corrected by this Court. For this
reason, and the reasons set forth above, the Opinion by this Court should
be reconsidered and reversed to ultimately affirm the judgment of the
trial court.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee, E.A.G.,
prays this Court grant this motion for rehearing, withdraw its opinion
issued November 17, 2017, and reconsider the Court’s determination
reversing the judgment of the trial court herein.
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Respectfully submitted,
/s/ Michelle May O’Neil
Michelle May O'Neil
Texas Bar No. 13260900
Ashley Bowline Russell
Texas Bar No. 24051760
O’NEIL WYSOCKI, P.C.
5323 Spring Valley Rd, Suite 150
Dallas, Texas 75254
Tel: 972/852-8000, Fax: 214/306-7830
Michelle@OWLawyers.com
AshleyR@OWLawyers.com
Attorney for Appellee, E.A.G.
CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft 365, and
that, according to that program’s word-count function, the sections
covered by TRAP 9.4(i)(1) contain 3,483 words.
/s/ Michelle May O’Neil
MICHELLE MAY O’NEIL
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CERTIFICATE OF SERVICE
I certify that I sent a copy of the foregoing document to counsel for
Appellant, NICHOLAS VARGAS, IV by electronic service and via e-mail
at dhoffmann@qslwm.com.
/s/ Michelle May O’Neil
MICHELLE MAY O’NEIL
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