in the Interest of A.A.S., a Child
367 S.W.3d 905
Tex. App.2012Background
- Salazar, a Florida resident, father of a child with Mayo, had parental rights terminated in Harris County, Texas (Sept 15, 2009).
- The Department obtained service by publication (citation published June 19, 2009) after due diligence failed to locate Salazar.
- Mayo relinquished her parental rights a month after Salazar was served, identifying Salazar and asserting he resided in Harris County.
- Salazar learned of the termination in Aug 2010 and filed a bill of review Sept 2010 to set aside the decree; the trial court dismissed as time-barred under Tex. Fam. Code § 161.211(b).
- Salazar challenged whether service by publication was valid or procured by fraud; the trial court found no fraud and Salazar appealed within the 90-day period following the dismissal order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Salazar timely appealed the dismissal of his bill of review | Salazar timely appealed under standard appeal rules | The Department argues accelerated appeal applies; Salazar failed to file timely | Appellate jurisdiction exists; timely standard-appeal applied |
| Whether § 161.211(b) bars the bill of review in collateral attack on termination | Salazar argues the bar should not apply due to alleged fraud in service | Statute plain text bars collateral/direct attack after six months | § 161.211(b) bars Salazar's collateral attack |
| Whether Salazar proved fraud in service by publication invalidating service | Fraud by Mayo in providing contact info could render service invalid | No evidence trial court relied on fraudulent affidavit; due diligence supported | No proven fraud; service by publication upheld; no due-process violation |
Key Cases Cited
- Caldwell v. Barnes, 975 S.W.2d 535 (Tex.1998) (bill of review standard and meritorious-defense requirement)
- Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407 (Tex.1987) (fraud-based relief in bills of review; standard of proof)
- Truong Nguyen v. Intertex, Inc., 93 S.W.3d 288 (Tex.App.-Houston [14th Dist.] 2002) (abuse of discretion standard in bill-of-review appeals)
- Ross v. Nat’l Ctr. for the Emp’t of the Disabled, 197 S.W.3d 795 (Tex.2006) (not served defendant entitled to bill of review without further fault)
- Velasco v. Ayala, 312 S.W.3d 783 (Tex.App.-Houston [1st Dist.] 2009) (fraud in publication service; Hague/Constitutional issues discussed)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex.2003) (finality and traditional bill-of-review limitations)