in the Interest of P. RJ E.
499 S.W.3d 571
| Tex. App. | 2016Background
- Pete was removed from his mother at birth; the Department filed to terminate parental rights after the mother relinquished and disappeared.
- The mother first identified a man (R.J.E.) as father; DNA excluded him and the Department nonsuited him after serving him.
- Mother later identified a second potential father by nicknames; the Department located Kristopher Aaron Smith (Smith) and amended its petition to name him individually.
- The amended petition naming Smith lacked a certificate of service and there is no record Smith was personally served before the termination hearing.
- A court-appointed ad litem for Smith attended the termination hearing but did not object; the trial court terminated Smith’s parental rights and later denied his new-trial motion after he asserted lack of personal service.
- The court of appeals held Smith’s due-process rights were violated because, having located and named him, the Department was required to obtain personal service before terminating his parental rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to personally serve Smith deprived court of jurisdiction and violated due process | Smith: Department never personally served him after locating and naming him; thus no valid service and judgment is void | Department: Smith waived the complaint by not objecting at trial; service by publication on "unknown father" sufficed under Family Code | Held: Not waived; personal service required when Department knows identity/location and joins him — failure to serve violated due process and judgment reversed as to Smith |
| Whether service by publication on an "unknown father" satisfied due process after Smith was located | Smith: Publication on unknown father is inadequate once identity/location are known | Department: Earlier publication was sufficient under Family Code provisions allowing nonpersonal service for unregistered fathers | Held: Publication inadequate for a known person with known address; personal service required |
| Whether statute (Fam. Code §161.002(b)(3), (c-1)) permits termination without personal service as applied | Smith: As-applied challenge — statute cannot be applied to deprive him of notice once located and named | Department: Statutory scheme authorizes nonpersonal service for unregistered alleged fathers | Held: Court did not reach facial validity; as-applied, due process requires personal service under these facts |
| Whether ad litem’s presence or later general appearance waived service defect | Smith: Ad litem’s presence does not waive Smith’s due-process right because waiver must be voluntary, knowing, intelligent | Department: Presence/participation of ad litem and lack of on-the-record objection implies waiver | Held: Ad litem’s presence did not constitute waiver; voluntary, knowing waiver required and is absent |
Key Cases Cited
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (parental-termination due-process requires notice; personal service required when identity/location known)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (defective service can be raised for first time on appeal)
- Lehr v. Robertson, 463 U.S. 248 (U.S. 1983) (unmarried father who knows of child may not claim due-process defect for lack of registry notice)
- In re Baby Girl S., 407 S.W.3d 904 (Tex. App.—Dallas 2013) (distinguishable adoption/termination facts where father knew or should have known of child)
- Furst v. Smith, 176 S.W.3d 864 (Tex. App.—Houston [1st Dist.] 2005) (service of process is prerequisite to personal jurisdiction)