In the Interest of L.N.A.H. and K.N.A.H., Children v. the State of Texas ( 2023 )

Reversed and Remanded and Opinion filed April 6, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00594-CV
IN THE INTEREST OF L.N.A.H. AND K.N.A.H., CHILDREN
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2021-03010
OPINION
Mother appeals the dismissal of her petition to terminate the parental rights
of alleged father. The trial court concluded it did not have personal jurisdiction
over alleged father, a foreign national of El Salvador, due to a lack of service.
Under the Family Code, the trial court has personal jurisdiction to adjudicate the
rights of alleged father. Thus, we conclude that the trial court erred in dismissing
this case for want of prosecution and remand to the trial court for further
proceedings.
BACKGROUND
Mother filed a petition to terminate alleged father’s parental rights to
L.N.A.H. (“Lily”) and K.N.A.H. (“Katy,” collectively the Children). Alleged
father and Mother resided in El Salvador. Mother was a victim of repeated
physical and sexual assaults by alleged father. The sexual assaults resulted in the
birth of the Children. Lily was born in 2008 and Katy was born in 2009. Mother
and alleged father have never been married but he claimed and regarded mother as
his “property.” Alleged father has not taken any interest in the Children, has not
supported them in any way, has never resided with mother and the Children, and is
not listed on the Children’s birth certificates. As of December 2019, alleged father
had not registered as the father of the Children in El Salvador, and no other man
has registered his paternity to the Children.
Alleged father’s location is presently unknown to mother. Alleged father’s
last known location was the El Salvador prison system. Mother is not aware of
alleged father’s present location. After enduring many assaults and threats of
violence on both herself and the Children, mother fled with the Children to the
United States. Mother and the Children settled in Texas.
Mother filed a petition to terminate alleged father’s parental rights to the
Children. Mother alleged the above facts and argued that under section
161.002(b)(2)(B) and (c-1) of the Family Code, service on alleged father was not
required. After the cause had been pending on the trial court’s docket for some
months without service on alleged father, the trial court issued a notice of intent to
dismiss for want of prosecution.
After conducting a hearing and after mother submitted additional briefing on
the issue of service on alleged father, the trial court dismissed the cause for want of
prosecution. The lengthy dismissal order indicated the trial court’s analysis
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regarding its conclusion that it lacked personal jurisdiction over alleged father.
Mother appeals the dismissal.
PERSONAL JURISDICTION
Mother argues that the Family Code does not require service on alleged
father to terminate his parental rights. Mother argues that the trial court only needs
“subject matter jurisdiction and in rem jurisdiction over the parent-child
relationship involved.” We conclude that the trial court has subject matter
jurisdiction over this matter and that mother pleaded sufficient facts to allow her to
proceed to adjudicate alleged father’s parental rights under section 161.002(b)(2),
and (c-1) of the Family Code without personal service on alleged father.
“A court may exercise only the jurisdiction accorded it by the constitution or
by statute.” Goodman v. Summit at W. Rim, Ltd., 952 S.W.2d 930, 933 (Tex.
App.—Austin 1997, no pet.); Vantage Sys. Design, Inc. v. Raymondville Indep.
Sch. Dist., 290 S.W.3d 312, 317-18 (Tex. App.—Corpus Christi 2009, pet. denied)
(subject matter jurisdiction is authorized by constitution or statute); Estate of
Nicholas, No. 14-19-00716-CV, 2020 WL 1469519, at *4 (Tex. App.—Houston
[14th Dist.] Mar. 26, 2020, pet. denied) (mem. op.); Webb v. Tex. Prop. & Cas. Ins.
Guar. Ass’n, No. 03-03-00764-CV, 2005 WL 3234580, at *2 (Tex. App.—Austin
Dec. 2, 2005, no pet.) (mem. op.) (subject matter jurisdiction refers to the kind of
controversies a court has authority to hear—authority conferred by constitution or
statutes).
Subject matter jurisdiction is never presumed, cannot be conferred by
consent or estoppel, and cannot be waived. See Wilmer-Hutchins Indep. Sch. Dist.
v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001) (per curiam); Waco Indep. Sch. Dist.
v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000); Dubai Petroleum Co. v. Kazi, 12
S.W.3d 71, 76 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
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440, 443–44 (Tex. 1993). Even if not raised, issues affecting jurisdiction must be
reviewed sua sponte. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004)
(per curiam); Gantt v. Gantt, 208 S.W.3d 27, 30 (Tex. App.—Houston [14th Dist.]
2006, pet. denied).
A district court’s statutory authority for subject matter jurisdiction over suits
involving child custody is found in the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), as incorporated in the Texas Family Code. See
Tex. Fam. Code §§ 102.011, 152.201; Arteaga v. Tex. Dep’t of Protective & Regul.
Servs., 924 S.W.2d 756, 759 (Tex. App.—Austin 1996, writ denied). The UCCJEA
applies to a suit to terminate parental rights. See Tex. Fam. Code § 152.102(4)
(“Child custody proceeding” includes a proceeding for termination of parental
rights.); Arteaga, 924 S.W.2d at 760 (applying section 152.102(4) to a proceeding
brought by the State to terminate parental rights). “The UCCJEA grants
jurisdiction to the Texas courts if Texas is the child’s home state at the time the
suit is filed.” Arteaga, 924 S.W.2d at 760.
As relevant here, section 102.011(a) (“Acquiring Jurisdiction over
Nonresident”) provides: “The court may exercise status or subject matter
jurisdiction over the suit as provided by Chapter 152.” See Tex. Fam. Code §
102.011(a). Further, section 152.201(a)(1) (“Initial Child Custody Jurisdiction”)
provides, as applicable here, that a Texas court has jurisdiction to make an initial
custody determination if “this state is the home state of the child on the date of the
commencement of the proceeding.” See Tex. Fam. Code § 152.201(a)(1).
Thus, the UCCJEA confers jurisdiction to Texas courts if Texas is the
child’s home state at the time the suit is filed. See Tex. Fam. Code § 152.201(a)(1);
Arteaga, 924 S.W.2d at 760. The statute defines the child’s home state as the state
in which the child lived with a parent or a person acting as a parent for at least six
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consecutive months immediately before the commencement of the termination of
parental rights proceeding. See Tex. Fam. Code § 152.102(7); Arteaga, 924
S.W.2d at 760.
Mother and the Children fled El Salvador. Mother alleged in her petition
that she and the children reside in Harris County, Texas and invoked section
152.201 (a)(1). Thus, the allegations establish subject matter jurisdiction.
The UCCJEA also applies to international disputes. See Tex. Fam. Code §
152.105(a) (“International Application of Chapter”; “A court of this state shall
treat a foreign country as if it were a state of the United States for the purpose of
applying this subchapter and Subchapter C”); Arteaga, 924 S.W.2d at 760.
However, the trial court concluded that it did not have authority to apply the
UCCJEA (located within Chapter 152 of the Family Code) to termination
proceedings (located within Chapter 160 of the Family Code). Section 152.105(a)
provides: “A court of this state shall treat a foreign country as if it were a state of
the United States for the purpose of applying this subchapter and Subchapter C.”
Tex. Fam. Code § 152.105(a).
Here, the trial court thus concluded that it could not treat El Salvador as a
“state” under this provision when applying Chapter 161 of the Family Code
because it is not within “this subchapter or Subchapter C.” However, section
152.105(a) plainly provides that it may be applied “for the purpose of applying this
subchapter,” “this subchapter” being Subchapter B of Chapter 152 of the Texas
Family Code. Within Subchapter B is section 152.102(4), defining a “child
custody proceeding” under the UCCJEA to include proceedings to terminate
parental rights. Tex. Fam. Code § 152.102(4). The application of the plain
meaning of section 152.105(a) is that it applies to “child custody proceedings” as
that term is defined, and specifically here to terminate parental rights. Parental
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terminations may be sought solely under Chapter 161 of the Family Code, See Tex.
Fam. Code § 161.001–.30; thus section 152.105(a) applies to a “child custody
proceeding” to terminate parental rights under Chapter 161. See Arteaga, 924
S.W.2d at 760 (applying section 152.102(4) to a proceeding brought by the State to
terminate parental rights).
In fact, within Chapter 152 there are no means of obtaining any of the relief
that may be sought in a “child custody proceeding” as that term is defined. See
Tex. Fam. Code § 152.102(4) (“‘Child custody proceeding’ means a proceeding in
which legal custody, physical custody, or visitation with respect to a child is an
issue. The term includes a proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of parental rights, and protection
from domestic violence in which the issue may appear.”). We conclude section
152.105(a) applies, through application of section 152.104, to parental termination
proceedings.
Importantly, the father herein is not a presumed or even admitted father, but
an alleged father. Under Title 5 of the Family Code, an “‘[a]lleged 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.” Tex. Fam.
Code § 101.0015(a). “A man is entitled to notice of a [parental termination]
proceeding . . . 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.” Tex.
Fam. Code § 160.402(b).
If the child is over one year of age when the petition is filed, an alleged
father’s parental rights may be terminated if the alleged father “has not registered
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with the paternity registry under Chapter 160.” Tex. Fam. Code § 161.002(b)(2);
see also In re R.J., 381 S.W.3d 619, 622 (Tex. App.—San Antonio 2012, no pet.)
(upholding termination of alleged father’s parental rights and concluding State did
not need to serve or use due diligence in locating alleged father). “The termination
of the rights of an alleged father . . . does not require personal service of citation or
citation by publication . . . and there is no requirement to identify or locate an
alleged father who has not registered with the paternity registry under Chapter
160.” Tex. Fam. Code § 161.002(c-1); see also In re C.M.D., 287 S.W.3d 510,
516 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding Family Code
provisions not requiring personal service on alleged father to be constitutional (no
evidence of harm) and remanding to trial court for application).
The trial court was undoubtedly concerned about having personal
jurisdiction over the alleged father due to a lack of service. However, the United
States Supreme Court recognizes a distinction between married and unmarried
fathers, concluding that “the mere existence of a biological link does not merit
equivalent constitutional protection.” Lehr v. Robertson, 463 U.S. 248, 261
(1983). If an unwed father establishes a commitment to the responsibilities of
being a parent and participates in the rearing of his child, then he obtains a
constitutionally protected interest. Id. “The Constitution does not require either a
trial judge or litigant to give special notice to [alleged fathers] who are
presumptively capable of asserting and protecting their own rights.” Id. at 265.
Thus, the Constitution allows, and Texas law provides, that no personal service is
required if the alleged father has not registered in the paternity registry or
otherwise demonstrated a father-child relationship. See id.; Tex. Fam. Code §§
161.002(b), (c-1), 160.402.
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In this case mother pleaded that alleged father had not registered as a father
in the paternity registry, taken care of or supported the Children in any way, or
otherwise participated in the rearing and upbringing of the Children. Moreover,
alleged father threatened to harm the Children and mother. Thus, the facts alleged
in mother’s petition, taken as true, establish that she is entitled to proceed under
section 161.002(b)(2) and (c-1) and is not required to personally serve alleged
father. We conclude that the trial court erred in dismissing this case for want of
prosecution and remand to the trial court for further proceedings.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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