in the Interest of A.A.S., a Child
367 S.W.3d 905
Tex. App.
2012
Check Treatment

In the Interest of A.A.S., a Child.

No. 14-11-00489-CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 10, 2012.

367 S.W.3d 905

Bеcause the original divorce decree does not contain a geographic restriction and at the time it was entered Mother lived in Houston, her desire to move H.N.T. back to Houston does not establish a material or substantial change in circumstances. If anything, it represents an anticipated circumstance because Father knew nothing within the decree prohibited Mother from moving with H.N.T. at anytime to anywhere. See, e.g., (mem. op.) (noting a move from Texas to Pennsylvania was contemplated by the parties at the time of the divorce; therefore, the move itself could not be evidence of a material or substantial change). In fact, the decree does not require Mother to give Father notice of such intentions. Thus, we agree with Mother that a material and substantial change has not occurred from the conditions that existed at the time of the entry of the divorce decree with evidence of the conditions that existed at the time of the hearing on the petition to modify. See . The conditions at both points in time establish that Mother resided in Houston. Accordingly, the trial court abused its discretion in modifying the original August 2000 order and imposing a geographic restriction requiring H.N.T. to remain in Grayson County. We sustain Mother‘s issue.3

Conclusion

We reverse the trial court‘s decision and render judgment setting aside its April 4, 2011 order.

Elizabeth M. Bruman, Houston, for appellant.

Sandra D. Hachem, Houston, for appellee.

Panel consists of Justices FROST, BROWN, and CHRISTOPHER.

OPINION

TRACY CHRISTOPHER, Justice.

About a year after a Harris County court terminated his parental rights, Florida resident Roger Salazar filed a petition for an equitable bill of review in an effort to have the termination decree set aside. The trial court dismissed the petition pursuant to Texas Family Code section 161.211, which provides that an order terminating the parental rights of a person who was served with citatiоn by publication generally is not subject to collateral or direct attack more than six months after the order was signed. TEX. FAM. CODE ANN. § 161.211(b) (West 2008). Salazar claims that the statute is inapplicable in that he was served with citation by publication only because his child‘s mother fraudulently provided false information to authorities about his whereabouts. Because we conclude that the statute nevertheless applies in the circumstances presented here, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Roger Salazar had a child with Jessica Mayo in 2005, when he and Mayo lived together in Naples, Florida. For two-and-a-half years after the child was born, Mayo lived intermittently with Salazar, but after that time, she left with the child and no longer kept Salazar informed of their address.

In December 2007, the Texas Department of Family & Protective Services filed a petition in Harris County to terminate Mayo‘s parental rights. Department represеntative Marvia King filed an “affidavit regarding due diligence” in the case, stating that in her attempts to locate the unknown father of the child, she had “[c]hecked with the mother, all known friends, neighbors, and relatives for the name of an alleged father.” At some point, the Department learned Salazar‘s identity, and in June 2009, a citation identifying Salazar by name was published in the Daily Court Review in Harris County. A month later, Mayo executed an affidavit voluntarily relinquishing her parental rights. In the affidavit, she identified Salazar by name, stated his date of birth, and represented that he resided in Harris County. At the trial of the case, another Department employee, Ke‘sha Jacobs, testified that Salazar‘s whereabouts were unknown. The trial court signed the order terminating Salazar‘s parental rights on September 15, 2009.

Salazar learned of the termination decree in August 2010 and filed a petition for an equitable bill of review the following month. In its answer and in a motion to dismiss, the Department asserted that the trial court was statutorily barred from granting the petition because it was filed more than six months after the termination decree. The trial court agreed and dismissed the petition. Salazar made an offer of proof of the evidence that he would have presented concerning the substantive merits of his petition. He testified that he had never been to Texas before; that he had lived in Naples, Florida since before his son was born; and that he had maintained the same telephone number so that Mayo always could reach him. He offered evidence that he is identified on his son‘s birth certificate as the child‘s father; that he claimed his son as a dependent in 2006 and 2007; that he always has held the child out as his son; that he actively tried to locate thе child; and that when he learned of the termination, he tried unsuccessfully to have the child placed with his relatives.

Although the trial court allowed Salazar‘s motion for new trial to be overruled by operation of law, the court nevertheless issued findings of fact and conclusions of law at Salazar‘s request. Salazar filed this appeal within ninety days after the trial court signed the order dismissing his petition.

II. ANALYSIS

A bill of review is an equitable proceeding to set aside a prior judgment that no longer can be challenged by a motion for new trial or by direct appeal. (citing ). The petitioner ordinarily must plead and prove that he has a meritorious defense to the claim, but was prevented from presenting his defense by the fraud, accident or wrongful act of his opponent, unmixed with any fault or negligence of his own. . If the petitioner was not served, however, then his own lack of fault is established, and he need not establish that he has a meritorious defense or that his opponent committed any wrong. . In an appeal of the denial of a petition for bill of review, we will reverse only if the trial court‘s ruling constituted an abuse of discretion. .

A. Timeliness of Appeal

As a threshold matter, we address the Department‘s contention that this appeal is untimely, and that we accordingly must dismiss it for lack of jurisdiction. The Department bases this argument on former section 109.002(a) of the Texas Family Code, which provided as follows:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal apply to an appeal in which the termination of the parent-child relationship is in issue.

See Act of May 15, 2001, 77th Leg., R.S., ch. 539 § 2, 2001 TEX. GEN. LAWS 1017, 1017 (emphasis added).1

An accelerated appeal differs from a typical civil appeal in two significant ways. First, most civil appeals can be filed within thirty days, but an accelerated appeal must be filed within twenty days. See TEX.R.APP. P. 26.1; . And second, the time to file a typical civil appeal—but not an accelerated appeal—is extended to ninety days if a party files certain post-trial motions or, in a proper case, asks the trial court to issue findings of fact and conclusions of law. Compare TEX.R.APP. P. 26.1(a) with TEX.R.APP. P. 26.1(b). Thus, the direct appeal of an order terminating parental rights normally must be filed within twenty days. See . On the other hand, one way in which the two types of appeals are alike is that in both “standard” and accelerated appeals, the appellate court may grant a motion to extend the time for filing the notice of appeal by fifteen days. TEX. R.APP. P. 26.3. Thus, by filing the proper post-trial motions, a litigant could take as long as 105 days to file a notice of appeal in a typical civil case, but filing the identical motions in a case for which the appeal is accelerated would give the appellant only 35 days in which to perfect the appeal.

The Department contends that Salazar‘s appeal of the denial of his petition for a bill of review is an “appeal in a suit in which termination of the parent-child relationship is in issue,” and is therefore subject to former section 109.002(a). Because Salazar filed his notice of appeal eighty days after the trial court signed the order dismissing his petition, the Department contends that this appeal is untimely. We disagree.

Because a petition for a bill of review is brought as a separate lawsuit, we are not presented with an appeal of an order terminating parental rights, or even an appeal from the same suit; we are presented only with an appeal ‍‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌​‌‌​‌​​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‍of the order dismissing Salazar‘s petition for a bill of review. The trial court agreed with the Department that the petition was time-barred, and Salazar challenged the Department‘s reliance on the limitations provision of Texas Family Code section 161.211 only on the ground that he was not validly served with citation by publication. Thus, the only matter “in issue” in this proceeding is the question of whether Salazar was properly served. The trial court issued no other order in this suit, and in light of this ruling, no other evidence was relevant. See (per curiam) (“[A] defendant whо is not served with process is entitled to a bill of review without a further showing .... “) (emphasis added) (citing ). Cf. (“’ [Evidence must] be confined to the point in issue.’ Facts in issue are those facts upon the truth or existence of which the right or liability to be ascertained in the proceeding depends .... ” (quoting Greenleaf on Evidence)) (emphasis added).

The provisions of the Family Code cited by the Department reflect the same distinction between an appeal of an order denying or dismissing a bill of review and an appeal of an order in which the termination of parental rights is in issue. In the version of section 109.002(a) applicable here, the legislature first states, “An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally.” (emphasis added). A bill-of-review proceeding is brought as a separate “suit” from an action to terminate parental rights, and in civil cases generally, an appeal of a petition for review is not accelerated. Because the trial court dismissed Salazar‘s petition for bill of review, the earlier order terminating his parental rights remained final, and was not again placed in issue.2

We therefore conclude that Salazar‘s challenge of the trial court‘s order is not an accelerated appeal under former section 109.002(a) of the Texas Family Code. Because this instead is a standard appeal and Salazar timely moved for a new trial, he had at least ninety days from the date of judgment in which to file a notice of appeal. And, because he filed a notice of appeal within that time period, we have jurisdiction to consider the merits of his appeal.

B. The Bill of Review Is Barred by 161.211(b)

Section 161.211(b) of the Texas Family Code provides in relevant part, “Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.”3 It is undisputed that this lawsuit is a collateral or direct attack on the order terminating Salazar‘s parental rights. Under a plain reading of the statute, Salazar‘s lawsuit is barred by this statute.

C. Salazar Did Not Prove Fraud By The Department

Salazar argued in the trial court and on appeal that section 161.211 should not apply because the service of citation by publication was procured by fraud. He argues that it would be a due-process violation to dismiss his case pursuant to section 161.211 under these circumstances. In the findings of fact and conclusions of law, the trial court upheld the statutory dismissal. The trial court did not make any findings as to fraud in connection with service by publication, finding only that the Department аnd Salazar‘s attorney ad litem were unable to locate Salazar. See TEX.R. CIV. P. 299 (“The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact....“).

Texas Rule of Civil Procedure 109 authorizes service of citation by publication as follows:

When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108,4 but has been unable to do so, the clerk shall issue citation for such defendant for service by publication. In such cases it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.

TEX.R. CIV. P. 109. Salazar argues that service by publication is invalid if such service is based on a fraudulent affidavit, and he argues that because Mayo provided the Department with false information4 concerning his whereabouts, the Department‘s service by publication is invalid. In support of this argument, he cites .

In Velasco, both the husband and wife were citizens of Mexico residing in Mexico City. . While visiting family in Houston, the couple argued violently аnd police removed the wife to a women‘s shelter. During her absence, her husband moved with their daughter, and the wife could not find them. She returned to Mexico City and began proceedings through the Hague Convention on International Child Abduction, apparently unaware that her husband had filed suit in Harris County to divorce his wife and terminate her parental rights. Although the husband included in his petition the address of the couple‘s apartment in Mexico City, he misstated his wife‘s name and moved for citation by publication, falsely attesting that her whereabouts were unknown. . The trial court granted the motion, published a citation in Harris County, and ultimately, granted the requested divorce and termination of parental rights. .

The First Court of Appeals reversed the judgment, explaining that service of process on a defendant in Mexico is governed by the Hague Service Convention, and the citation by publication did not comply with the Convention‘s requirements. . In dicta, the court further stated that even if service by publication on a resident of Mexico could be permissible in some circumstances, it would have been both invalid and unauthorized on the facts presented. . Such service would have been invalid because the husband misstated his wife‘s name, , and service by publication would have been unauthorized because ‍‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌​‌‌​‌​​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‍the affidavit on which it was based was fraudulent. . Specifically, the husband moved for citation by publication by filing an affidavit in which he swore that his wife‘s residence was unknown—even though he simultaneously filed a pleading in which he listed her address. .

No such factors are present in the case before us. Salazar does not contend that he resided in another country, or that his name was misstated, or that the Department knew where he resided and falsely attested that his whereabouts were unknown. He argues only that Mayo, the child‘s mother, knew his phone number and the city in which he lived. This is a crucial distinction because Mayo is not the one who requested that Salazar be served with citation in this case, by publication or otherwise, and there is no evidence that the trial court‘s authorization for service by publication was based on Mayo‘s affidavit. In fact, there is evidence of only one affidavit ever executed by Mayo, and that is the affidavit in which she relinquished her own parental rights. This affidavit was executed over a month after Salazar was served with citation by publication.

Because there is no evidence in this case that the trial court relied on a fraudulent affidavit in authorizing service of citation by publication, we are not called upon to decide whether Texas Family Code section 161.211(b) would still apply in those circumstances. Here, the Department offered evidence in the underlying suit that despite its own diligence, Salazar‘s whereabouts were unknown. The chronology of the Department‘s efforts to locate Salazar is as follows: first, a representative of the Department attested on December 19, 2007 that after checking with the child‘s mother, all known friends, neighbors, and relatives, the father‘s name, date of birth, social security number, and address were unknown. On the same date, a proposed order was filed in the trial court for the appointment of an attorney ad litem to represent the child‘s alleged father. The proposed order identified Salazar by name, and was signed in January 2008. On June 15, 2009, the Department filed an amended petition identifying Salazar by name and stating that he was not a resident of Texas. On the same day, the citation by publication issued, and it was published in the Daily Court Review on June 19, 2009. On July 20, 2009, Mayo executed an affidavit of relinquishment in which she identified Salazar as the child‘s father, stated Salazar‘s date of birth, and represented that he lived in Harris County. The suit was heard on August 26, 2009, and at that time, Department employee Ke‘sha Jacobs testified that although she attempted to locate Salazar in local directories, by using “Parent Locator Services,” in both Texas and Florida and by contacting the Texas Department of Criminal Justice and the local jails, his whereabouts remained unknown.

Salazar contends that the reviewing court must measure the validity of service by publication only by the opposing party‘s diligence in learning the defendant‘s whereabouts as those efforts are described in affidavit on which service by publication is based. The only evidence of the Department‘s due diligence that was admitted in the form of an affidavit was King‘s 2007 affidavit that she had been unable to learn even the name of the child‘s alleged father; however, we disagree that this affidavit was the only evidence of due diligence that the trial court properly could consider. Texas Rule of Civil Procedure 109 provides that it is “the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant ... before granting any judgment on such service.” TEX.R. CIV. P. 109 (emphasis added). Thus, in concluding that due diligence has been shown, the trial court may consider all of the prejudgment efforts to learn the defendant‘s residence. Even if, as Salazar contends, Mayo was less than candid about Salazar‘s whereabouts, this does not mean that the Department was less than diligent in attempting to find him. To the contrary, in both the termination action and in thе bill-of-review proceedings, the Department offered evidence of its diligence, and Salazar offered no controverting evidence. Salazar failed to prove that the service by publication was procured by fraud.

We accordingly hold that the trial court did not abuse its discretion in dismissing Salazar‘s suit as untimely under Texas Family Code section 161.211(b). We therefore overrule Salazar‘s first issue.5

CONCLUSION

Finding no abuse of discretion, we affirm the trial court‘s judgment.

J. FROST, dissenting.

KEM THOMPSON FROST, Justice, dissenting.

A father whose parental rights were terminated challenges the trial court‘s dismissal of his petition for an equitable bill of review, filed more than six months after the trial court rendered its final decree terminating the parent-child relationship. Because the father did not timely appeal pursuant to section 109.002(a) of the Texas Family Code, this court lacks jurisdiction over this appeal and should dismiss this appeal for lack of appellate jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Roger Salazar, a Florida resident, filed a petition for a bill of review on September 10, 2010, to challenge a final decree signed a year earlier, on September 15, 2009, in Harris County, Texas. The decree terminated the parent-child relationship between Salazar and A.A.S., his minor child. Appellee the Texas Department of Family and Protective Services (the “Department“) answered with a general denial and several affirmative defenses, including an assertion that the suit was statutorily barred by section 161.211 of the Texas Family Code, entitled “Direct or Collateral Attack on Termination Order.”1

In his live petition for bill of review, Salazar claimed paternity of A.A.S. and alleged that he had not received actual notice of the suit to terminate his parental rights until nearly one year after the termination decree had been signed. Salazar alleged that although the child‘s mother had the means to locate him in Naples, Flоrida, she had provided incorrect contact information to authorities and, as a result, Salazar was not properly served with notice of the termination suit. Salazar alleged that he had a meritorious defense to the petition seeking to terminate his parental rights and that he was prevented from presenting his defense by the fraud of a party to the termination proceeding, unmixed with any fault of his own. Salazar attached a certified copy of the termination decree to his live petition and requested that the trial court (1) set aside and vacate the termination decree, (2) adjudicate Salazar to be the biological and legal father of A.A.S., and (3) render appropriate orders for the conservatorship and support of A.A.S.

The Department filed a motion to dismiss Salazar‘s petition, asserting that becаuse Salazar‘s bill-of-review petition was filed more than six months after his parental rights were terminated, the suit was statutorily time-barred by the Texas Family Code. The trial court held a hearing on the Department‘s motion and ruled that section 161.211 of the Texas Family Code barred Salazar‘s attack on the termination decree because the petition for bill of review was filed more than six months after the judgment was rendered. The trial court signed an order on February 7, 2011, granting the Department‘s motion to dismiss Salazar‘s petition for bill of review, effectively denying Salazar‘s requests for relief.

In this appeal Salazar challenges the trial court‘s dismissal of his petition for bill of review. The Department challenges this court‘s jurisdiction to hear this appeal.

APPELLATE-JURISDICTION ANALYSIS

The Department asserts that Salazar did not timely appeal the trial court‘s dismissal order pursuant to section 109.002(a) of the Texas Family Code2 and rules governing accelerated appeals. Whether an appeal of a dismissal of a bill-of-review suit brought to challenge a decree terminating the parent-child relationship is subject to the accelerated-appeal rules is an issue of first impression in this court.3

Section 109.002(a) of the Texas Family Code, entitled “Appeal,” provides in relevant part:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue.

Tex. Fam. Code Ann. § 109.002(a) (West 2008) (emphаsis added). An accelerated appeal is perfected by filing a notice of appeal within twenty days after the order is signed. See Tex.R.App. P. 25.1, 26.1(b); . If this appeal is an accelerated appeal, then this court lacks jurisdiction because Salazar perfected appeal more than seventy-five days after the trial court signed its final order.

The Department asserts that because, in his petition for bill of review, Salazar sought to set aside the trial court‘s final order terminating the parent-child relationship, this is an appeal in a suit in which termination of the parent-child relationship is “in issue,” within the meaning of section 109.002(a). Thus, the Department urges, the accelerated-appeal rules apply and because Salazar failed to comply with them, this court does not have jurisdiction over his appeal. The Department is correct.

The appellate-jurisdiction issue that divides the panel turns on the statutory interpretation of section 109.002(a). More specifically, the outcome depends upon whether this appeal is “an appeal in a suit in which termination of the parent-child relationship is in issue.” Tex. Fam. Code Ann. § 109.002(a).

This appeal is an accelerated appeal under ‍‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌​‌‌​‌​​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‍the plain meaning section 109.002(a).

This court‘s role in interpreting section 109.002(a) is to determine and give effect to the Legislature‘s intent. See . After reviewing the statute‘s text and considering the context and the various possible interpretations of the statute, we must determine if the statute is ambiguous. See ; . If the statute is unambiguous, then we must adopt the interpretation supported by the statute‘s plain language, without relying upon extratextual sources to interpret the statute, except in the rare situation in which such an interpretation would lead to absurd results. See ; .

Under the plain meaning of section 109.002(a), appeals from final orders in a suit affecting the parent-child relationship are generally not accelerated appeals; however, an “appeal in a suit in which termination of the parent-child relationship is in issue” is accelerated. Appeals are often described in terms of the orders from which the appeal is taken. For example, the first sentence of section 109.002(a) addresses “appeals from a final order in a suit [affecting the parent-child relationship].” Tex. Fam. Code Ann. § 109.002(a). Section 263.405 addresses “an appeal of a final order rendered under this subchapter.” Id. § 263.405(a) (West 2012). The Legislature could have accelerated only appeals from decrees terminating the parent-child relationship or only appeals rendered under a particular statute. Under section 109.002(a), it did not do so. The Legislature instead oрted to apply the accelerated-appeal procedures to a broad class of cases—those “in which the termination of the parent-child relationship is in issue.” Tex. Fam. Code Ann. § 109.002(a). The Legislature chose this termination-in-issue phraseology over the standard language used in other accelerated-appeal statutes because the Legislature intended for courts to expedite appeals whenever termination of the parent-child relationship is in issue. This expansive language and the low threshold it creates provide strong evidence of legislative intent that any appeals involving termination issues receive accelerated treatment. See id. Nothing in the statute or the statutory regime suggests the Legislature intended to exclude from accelerated treatment termination issues in some termination-in-issue cases, such as bill-of-review proceedings, аs the majority concludes.4

In this case, Salazar filed a bill-of-review suit in which he asked the trial court to vacate a decree that terminated his parent-child relationship with A.A.S. and to adjudicate Salazar to be the child‘s biological and legal father. The trial court signed a final order dismissing Salazar‘s suit, and Salazar has appealed from that order. Salazar‘s appeal is in a suit in which termination of the parent-child relationship is in issue. Therefore, under the unambiguous language of the section 109.002(a), this is an accelerated appeal, and Salazar‘s appeal is therefore untimely.

The Legislature enacted a broad statute to accomplish a clear purpose: accelerated appellate review for all termination-in-issue cases.

Section 109.002(a) is broad in scope because in drafting the statute the Legislature intеnded to create a wide net to capture for fast-track treatment all termination-in-issue cases as they move from the trial court to the appellate court. Unlike other statutes in which the Legislature prescribes appellate procedures and time tables using limiting language that restricts the scope to appeals of particular types of orders or proceedings, section 109.002(a) contains unusually broad language that covers a variety of cases in a variety of contexts.

The Legislature recognized that delays in the system at the trial and appellate level can put a child‘s life in limbo regardless of the nature of the particular legal proceeding in which the termination issue arises. By using the atypical “in issue” language, the Legislature chose to lower the threshold for accelerated-appеal treatment and to expand the range of cases to which it applies so that the resolution of termination issues would receive accelerated-appeal treatment whether they arise in a direct appeal, in a bill-of-review proceeding, or in any other context in which termination of the parent-child relationship is placed in controversy.

The Legislature signaled a clear intent to place this entire class of cases on a special track that would hold the greatest promise for swift disposition. Consistent with this fast-track approach of bringing finality to termination cases earlier in the process, the Legislature shortened the bill-of-review window for termination cases from four years to six months. Compare Tex. Fam. Code Ann. § 161.211 (West 2008) (limiting the time a party may bring a direct or collateral attack under the Texas Family Code to six months), with Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2008), and Tex.R. Civ. P. 329b(f). By their very nature, bill-of-review proceedings tend to come late in the game, often long after the case has been concluded. By reducing the time frame for bill-of-review challenges the Legislature sought to promote prompt resolution of termination issues as a means of achieving the overarching goal of restoring normalcy to the lives of children whose futures rest on the finality of the legal process. This same rationale prompted the Legislature to mandate accelerated appeals in cases in which termination of the parent-child relationship is in issue. Both measures—shortening the bill-of-review window and expanding the availability of accelerated appeals to cases in which termination is “in issue“—were intended to ensure that the legal process for termination cases сomes to conclusion quickly.

Today‘s decision judicially narrows the broad class of cases the Legislature intended for fast-track treatment.

Rather than construe the statute‘s broad language broadly, the majority instead adopts a narrow construction of the “in issue” language, creating a high threshold for accelerated treatment. Under its statutory interpretation, the majority effectively construes the statute to accelerate only direct appeals from final orders in termination proceedings, rather than to appeals in cases in which termination of the parent-child relationship is in issue. This construction is contrary to the statutory language and frustrates the Legislature‘s intent to provide a fast-track appeal for every termination-in-issue case. Parties like Salazar, who seek vacatur of termination decrees, and children like A.A.S., who stand in limbo while their cases move through the appellate process, will not get the benefits of an accelerated appeal because this court has judicially narrowed the broad class of cases the Legislature intended for fast-track treatment.

Under the majority‘s view, one seeking to set aside a decree terminating the parent-child relationship via a bill of review is not on the fast-track, at least not if the one seeking to set aside the termination decree is unsuccessful in the trial court. The majority reasons that termination of the parent-child relationship is not “in issue” in this case because the trial court denied Salazar‘s petition for bill of review as untimely. According to the majority, the termination decree Salazar sought to have set aside remains final, and the matters adjudicated in the earlier termination suit are “not again placed in issue.”5 But, interestingly, the majority concludes, “If the trial court had granted Salazar‘s petition, then the termination of his parental rights would have been at issue in this suit.”6 The trial court, however, dismissed a petition in which Salazar sought to vacate a decree terminating his parental rights. Under the majority‘s analysis, the termination-in-issue determination turns not on the parties’ pleadings or requests for relief, but, rather, on the basis for the trial court‘s ruling. The statute is not so narrow.

The court holds that parties in a bill-of-review proceeding in which the petitioner has prevailed will be subject to the accelerated-appeal; and, parties in bill-of-review proceedings in which the petitioner has not prevailed, will not be subject to the accelerated-appeal provisions.7 The Legislаture‘s intent is to provide accelerated appeals whenever and however termination is “in issue.” Whether the petitioner is successful or unsuccessful, the result is not final until the appellate process has run its course. In either event, the need for accelerated treatment is the same. There is no logical reason to treat appeals of the two outcomes differently. Both should be on the fast track. In crafting this broad provision, the Legislature sought to create a fast-track appeal for every case in which termination of the parent-child relationship is in issue, including all bill-of-review proceedings in which termination is in issue.

A contextual analysis of the statutory text demonstrates that applying the provision broadly fulfills ‍‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌​‌‌​‌​​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‍the statutory purpose of providing fast track appeals for all termination-in-issue casеs.

When section 109.002(a) is construed in light of its clear purpose, the Legislature‘s intent is honored and its goal of giving accelerated treatment to all termination-in-issue cases is accomplished.

A determination of what is “in issue” in a case is typically derived not from what relief the trial court granted or denied, as the majority concludes, but from what relief the parties requested. Pleadings frame the issues. But, the majority does not consider the parties’ pleadings or requests for relief or make these traditional sources the touchstone of the “in issue” inquiry. Instead, the majority considers whether the bill-of-review challenge was successful. Under this model, whether termination of the parent-child relationship is “in issue” depends on the outcome of the case rather than the pleadings or request for relief. Instead of focusing on whether Salazar was successful or unsuccеssful in his challenge to the termination decree, to determine if termination is “in issue” the court should begin with an examination of the pleadings and the requests for relief and determine what is “in issue” by considering what the party seeking relief must establish to be entitled to the relief requested. The next step is to consider any defenses asserted by the opposing party and what that party must establish to prevail on any such defenses. This is the true measure of what is “in issue” in the context of section 109.002(a)‘s clear statutory purpose.

In his live pleadings, Salazar asked the trial court to set aside and vacate the judgment terminating his parent-child relationship with A.A.S. and to restore his parental rights. Salazar also asked the trial court to enter a new decree that he is A.A.S.‘s legal father and to grant him conservatorship in addition to other parental rights. In its pleadings, the Department opposed this requested relief and took the position that Salazar was not entitled to it for various reasons, including that the petition was time-barred. When a party must establish that the termination of the parent-child relationship was improper, the termination of the parent-child relationship is in issue. The trial court ruled that Salazar could not prevail because the Department had shown that Salazar‘s suit was barred by section 161.211 of the Family Code; therefore, the trial court refused to vacate the termination decree as Salazar had requested. In this appeal, Salazar asks this court to reverse the trial court‘s decision. Salazar placed “in issue” the termination of his parent-child relationship with A.A.S. when he requested the trial court to (1) set aside and vacate the termination decree, and (2) decree that he is the legal father of the child. See Tex. Fam. Code Ann. § 109.002. Because the termination оf the parent-child relationship is in issue, the rules governing accelerated appeals apply. See id.

Even the majority implicitly recognizes that termination is “in issue” because this court cannot dispose of this appeal without addressing the challenge to the termination decree.

Finally, it is telling that the majority cannot dispose of the issues presented in this appeal without addressing the termination of Salazar‘s parental rights. In Part II. B of its opinion, the majority analyzes the merits of the Department‘s limitations defense to Salazar‘s bill-of-review suit to set aside the termination decree and determines that “this lawsuit is a collateral or direct attack on the order terminating Salazar‘s parental rights” and “[u]nder a plain reading of [section 161.211(b) of the Texas Family Code], Salazar‘s lawsuit is barred by this statute.”8 The majority cannot dispose of this appeal (or even analyze the issues presented) without determining that Salazar cannot prevail on his suit to set aside the termination decree. How, then, can the termination of the parent-child relationship not be “in issue” in this case?

In the first part of its opinion the majority concludes that this court has appellate jurisdiction because termination is not in issue and, ironically, in the second part of its opinion, the majority analyzes and disposes of Salazar‘s challenge to the termination of his parent-child relationship. In so doing, the majority implicitly acknowledges that which it explicitly denies.

CONCLUSION

The majority‘s conclusion that this is not an appeal from a suit in which termination of the parent-child relationship is in issue is belied not only by the plain language of section 109.002(a) and the strong policy considerations that gave rise to its enactment, but also by this court‘s own merits-analysis of the issues in this appeal. Under the unambiguous language of section 109.002(a), Salazar‘s appeal of the dismissal of his bill-of-review proceeding is an appeal from a suit in which the termination of the parent-child relationship is in issue. Therefore, the procedures for an accelerated appeal should apply. Because Salazar failed to file a timely notice of appeal, under the rules of appellate procedure applicable to accelerated appeals, this court did not acquire jurisdiction. And, because this court lacks jurisdiction to consider Salazar‘s issues challenging the propriety of the trial court‘s dismissal of his petition for bill of review under section 161.211, this court should dismiss the appeal for lack of jurisdiction.

Notes

1
Effective September 1, 2011, this section was amended to add the phrase, “under the Texas Rules of Appellate Procedure” to the end of the first sentence. See Act of May 5, 2011, 82nd Leg., R.S., ch. 75, §§ 8, 9, 2011 TEX. GEN. LAWS. 348, 349 (codified at TEX. FAM. CODE ANN. § 109.002 (West Supp. 2011)). Unless otherwise specified, all references to a “section” or “chapter” are to the Texas Family Code.
2
If the trial court had granted Salazar‘s petition, then the termination of his parental rights would have been at issue in this suit. See (per curiam) (explaining that if the trial court makes an interlocutory order granting a petition for a bill of review and setting aside the former judgment, then it must go on to retry those issues on the merits). But where, as here, the trial court dismisses or denies the petition for bill of review as untimely, then the earlier judgment remains final, and the matters adjudicated in the earlier suit are not again рlaced in issue. See (“The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point.“). Effective September 1, 2011, this section was amended to add the phrase, “under the Texas Rules of Appellate Procеdure” after “generally.” See Act of May 5, 2011, 82nd Leg., R.S., ch. 75, §§ 8, 9, 2011 Tex. Gen. Laws. 348, 349 (codified at Tex. Fam. Code Ann. § 109.002 (West 2011)). Otherwise, the 2011 amendments do not change subsection (a) from the version in effect at the time Salazar appealed.
3
While not argued as a separate issue, Mother also сomplains the trial court erred by granting Father relief that was never requested or pleaded. However, having sustained her sole issue, we need not address this argument. Were it not for section 161.211, Texas Rule of Civil Procedure 329(a) would have allowed Salazar two years in which to file a motion for new trial to challenge the validity of his citation by publication or four years after notice of the judgment in which to file a bill of review. . Rule 329 provides in relevant part as follows:
In cases in which judgment has been rendered on service of process by publication, when the defendant has not appeared in person or by attorney of his own selection: (a) The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was signed. The parties adversely interested in such judgment shall be cited as in other сases.
TEX.R. CIV. P. 329. We assume that because his petition for a bill of review was filed within the applicable two-year period, it would have been treated as such a motion, with a lesser burden of proof than a bill of review. The Fifth Court of Appeals, in , has determined that an appeal of the denial of a petition for bill of review following a termination decree is not an accelerated appeal pursuant to section 109.002 or the rules of appellate procedure. See . The L.N.M. court reasoned that because the appellants sought to appeal an order denying a bill of review instead of the trial court‘s termination order, the appellants were not required to file a notice of appeal within twenty days and the notice of appeal was timely filed. See In reaching this conclusion, the L.N.M. court also noted that the appellants timely filed a bill of review within the six-month prescribed time-frame set forth in section 161.211. See Salazar did not file his petition for bill ‍‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌​‌‌​‌​​‌‌‌‌​‌​​‌‌‌​‌​​‌‌‌‌‍of review within the six-month period. The L.N.M. court did not address the meaning of the statutory phrase “a suit in which termination of the parent-child relationship is in issue.” See
4
Texas Rule of Civil Procedure 108 concerns service of defendants in other states. See ante at pp. 909-10.
5
In a second issue, Salazar argues that if the trial court addressed the merits of his challenge to the order terminating his parental rights, then it erred in failing to reverse the order. Based on our disposition of Salazar‘s first issue, however, we do not reach his remaining issue. Moreover, Salazar‘s arguments in support of his remaining issue are based in part on assertions of Florida law, which were not raised in the trial court. Tex. R.APP. P. 33.1(a). See ante at p. 910.
6
See ante, at p. 910 n. 2.
7
See ante, at p. 910 n. 2.
8
See ante at p. 910 (emphasis added).
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