IN the INTEREST OF P. RJ E.
NO. 01-15-01110-CV
Court of Appeals of Texas, Houston (1st Dist.).
Opinion issued July 14, 2016
Rehearing Overruled August 9, 2016
502 S.W.3d 571
Harvey Brown, Justice
A litigant is a “party to a lawsuit; the plaintiff or defendant in a court action, whether an individual, firm, corporation, or other entity.” Litigant, BLACK‘S LAW DICTIONARY (10th ed. 2014). An independent executor, even if not representing his own personal interests, is a litigant that “commenced, prosecuted, or maintained” a case under the meaning of
Yazdchi cites to Steele v. McDonald to support his argument that a lawsuit initiated by the plaintiff as an independent executor does not count toward the five-case requirement. 202 S.W.3d 926, 928-29 (Tex.App.-Waco 2006, no pet.). But Steele does not address
The trial court did not abuse its discretion in finding that Yazdchi had “commenced, prosecuted, or maintained” at least five lawsuits over a seven-year period before Adamo‘s motion. We, therefore, overrule Yazdchi‘s second issue.
Conclusion
We affirm the trial court‘s judgment and order declaring Yazdchi a vexatious litigant.
Vince Ryan, Harris County Attorney, Robert J. Hazeltine-Shedd, Assistant County Attorney, Houston, TX, for Appellee.
Panel consists of Justices Bland, Brown, and Lloyd.
OPINION ON REHEARING1
Harvey Brown, Justice
The trial court terminated the parental rights of Pete‘s biological parents, including the rights of his alleged father, Kristopher Aaron Smith. Smith argues that the Department of Family and Protective Services never served him its petition to terminate his parental rights, thereby violating his constitutional due-process rights. We agree and, therefore, reverse the trial court‘s judgment terminating Smith‘s parental rights and remand for a new trial for him.
Background
At Pete‘s2 birth, his mother tested positive for marijuana. The hospital tried to place Pete with his mother‘s boyfriend, but the boyfriend tested positive for marijuana and methamphetamine. The Department eventually placed Pete in a foster home.
The Department offered Pete‘s mother a family service plan to regain custody. Shortly after beginning the plan, Pete‘s mother dеcided to relinquish her parental rights and, according to Pete‘s caseworker, “then disappeared.” According to a progress report, his mother did not contact the caseworker again after deciding to relinquish her rights and did not return “letters or phone calls.” The Department then filed a petition to terminate Pete‘s biological parents’ parental rights.
Pete‘s mother originally identified a different man, R.J.E., as Pete‘s father. R.J.E. was named as Pete‘s father on Pete‘s birth certificate. The Department listed him as Pete‘s father in its original petition and served him. After DNA testing determined that this man was not Pete‘s father, the Department nonsuited him.
No one registered as Pete‘s father in the paternity registry maintained by the Texas Vital Statistics Unit; and thus, the Department began a search to identify his father. After the Department nonsuited R.J.E., it filed a motion for substituted service of Petе‘s “unknown father” by publication. See
After the DNA testing, Pete‘s mother identified a second potential father, stating that the father was either “Christopher Smith or Cash Smith or Cash Trill” and was “in prison.” According to the Department caseworker, its initial search “did not reveal any helpful information because the name provided was too common.” After more research, the Department located Kristopher Aaron Smith. The Department‘s attorney later explained that the Department searched for “Cash Trill” on Facebook, which “led to another link for a
After discovering this informаtion—over a month before the hearing on the Department‘s motion to terminate parental rights—the Department amended its petition to add “Kristopher Aaron Smith” as Pete‘s alleged father and to terminate his rights. That petition did not include a certificate of service. While the second amended petition requested service on Smith and gave his address, the record does not contain any evidence that the Department personally served him. The “Permanency Report to the Court—Temporary Managing Conservatorship,” filed a few weeks before the hearing on the Department‘s petition, noted that Smith was “recently located” but “not yet served.” The record does not contain any evidence or allegation that Smith knew of Pete‘s birth, his biological connection to the child, (if any), or the termination proceedings.
At the hearing on the Department‘s petition, when Pete was eleven months old, a court-appointed ad litem attorney assigned to represent Smith was present. He did not object to the hearing or the Department‘s failure to personally serve Smith, offer any argument, or question the Department‘s witnesses. At the hearing, the Department did not inform the court that it had located Smith a month earlier but had not personally served him. The trial court did nоt, on the record, “inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence of whereabouts of the defendant ...”
At the conclusion of the hearing, the trial court orally granted the Department‘s petition to terminate Pete‘s biological parents’ parental rights. The Department then personally served a notice of a hearing on the form of the final judgment. The trial court‘s final judgment named Smith and stated that it terminated Smith‘s parental rights.
After being served both notices, and after the hearing on the form of the order, Smith filed a motion for a new trial. During the hearing on that motion, the Department informed the court that it had located Smith a month before the termination hearing. The trial court denied Smith‘s motion.
Smith appeals the trial court‘s order terminating his parental rights.
Waiver
Smith argues that his constitutional due-process right was violated because the Department did not personally serve him its petition to terminate his parental rights. Smith argues that the “record contains no evidence that [he] was served with citation or waived service.” He argues that once the Department located him, “it should have proceeded to serve him with citation.” If he was not properly served, the trial court lacked personal jurisdiction over him. The Departmеnt replies that Smith did not present the due-process argument to the trial court and, thus, waived the issue.
Personal jurisdiction over a defendant requires valid service of process. See Furst v. Smith, 176 S.W.3d 864, 868 (Tex.App.--Houston [1st Dist.] 2005, no pet.) (for defendant to be subject to personal jurisdiction, “the plaintiff must invoke that jurisdiction by valid service of process on the defendant.“). “If service is invalid, it is of no effect and cannot establish the trial court‘s jurisdiction over a party.” In re E.R., 385 S.W.3d 552, 563 (Tex.2012) (internal quotation marks omitted). Thus, a “complete failure of service
Due Process
Because “[t]he parties have not identified any difference between the state and federal guarantees material to the issues in this case,” we treat those due-process protections as the same. In re E.R., 385 S.W.3d at 566 n. 25. The “process” required by the “due process” clause “is measured by a flexible standard that depends on the practical requirements of the circumstances.” Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995). But, at a minimum, due process requires “notice and an opportunity to be heard....” Id.
Smith argues that, as applied, two provisions of the Family Code—Sections
The Family Code allows a trial court to terminate the parental rights of an unspecified “alleged father” if “the child is under
The termination of the rights of an alleged father ... 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.
A party challenging the constitutionality of a statute “as-applied” is only required to show that the statute operates unconstitutionally when applied to his particular circumstances. Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex.2014). We agree that Smith‘s unusual circumstances demonstrate that his due-process rights were violated because he was not served through personal service. See In re E.R., 385 S.W.3d at 555, 565. If the Department knows the alleged father‘s identity and location, names him in the lawsuit, and obtains a judgment against him, due process requires it to obtain personal service on him. See generally id. Due process requires personal servicе under these facts because a “parental rights termination proceeding encumbers a value far more precious than any property right....” Id. at 555. “When the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures. The most basic of these is notice.” Id. at 554. The Texas Supreme Court in E.R. stated that to fail to obtain personal service when the Department knows the locаtion of a mother is “poor, hopeless, and unjustif[ied] ....” Id. at 555. The same holds true for an alleged father that the Department identifies, locates, and names in the termination lawsuit. See id. at 566 (“Despite the Legislature‘s intent to expedite termination proceedings, it cannot do so at the expense of a parent‘s constitutional right to notice.“).
The Department knew of Smith‘s identity and address at least one month before the termination hearing and his identity matched the descriptive information the mother gave the Department. Upon locating Smith, the Department specifically amended its petition to terminate Smith‘s parental rights, joined Smith as a party, sought a decree terminating Smith‘s rights, and eventually obtained a judgment against him. It did so without personal service on Smith. While a father‘s interest as a biological father may be insufficient in itself to require notice and an оpportunity to be heard, the Department attempted to invoke the jurisdiction of the court over Smith individually. Thus, due process requires here that the Department take the minimal burden of obtaining personal service on Smith rather than relying on the earlier service by publication on “unknown fathers.” See In re E.R., 385 S.W.3d at 555.
We recognize that In re E.R. addressed a mother who did not receive personal service. But the Texas Supreme Court cited with approval a сase from the Iowa Supreme Court that held that a father must be personally served before his parental rights can be terminated. See id. at 565 (discussing In re S.P., 672 N.W.2d 842, 848 (Iowa 2003)). Thus, the due process concerns expressed in In re E.R. apply equally to alleged fathers whose identity and location are known, who are joined as a party and named in the judgment, and who did not know of the mother‘s pregnancy or the child‘s birth.
The Department argues that, to the extent it was required to serve Smith, Smith‘s due-process rights have been protected because it served Pete‘s “unknown father” by publication. The Family Code authorizes service of citation by publication to “persons whose names are unknown” or to an alleged father whose last name is unknown.
We reject the Department‘s argument that due process was satisfied by serving Pete‘s “unknown father” by publication for four reasons. First, it did not serve Smith through service by publication. Months before it identified and located Smith, it served Pete‘s “unknown father.” Once it identified and located Smith, it amended its petition and requested personal service on him. But service was never obtained. Second, “as to a known beneficiary with a known address,” notice by publication is “not reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In re E.R., 385 S.W.3d at 559, 560 (internal quotation marks and citations omitted) (holding, after discussing line of due process cases, that “[f]rom these decisions, we can distill a common principle: when a defendant‘s identity is known, service by publication is generally inadequate.“). Third, the Department knew Smith‘s full name and address about one month before the hearing on terminating his parental rights; therefore, service by publication was not adеquate.5 See id. at 555 (service by publication of mother did not satisfy due process). When it is “both possible and practicable to more adequately warn” the parent “of the impending termination of her parental rights” notice by publication is inadequate. Id. at 556. The Department does not identify any reason that personal service should not be attempted instead of relying on an earlier service by publication with the additional cost of an attorney ad litem.
Finally, by rejecting personal service and opting to rely on its earlier service by publication, the Department also undermines its ability to locate not only the father but members of the father‘s family who may be candidates for raising the child who is the subject of the lawsuit. Cf.
In Lehr, the Court rejected a due process claim by an unmarried father who sought notice and an opportunity to be heard before an adoption. 463 U.S. at 250-51, 103 S.Ct. 2985. But the father in Lehr knew of the child‘s existence—he lived with the mother before the child‘s birth, visited the mother in the hospital when the child was born, and occasionally saw the child during the two years after the child wаs born—and yet chose not to protect his ability to have parental rights of his child by entering his name in a paternity registry. Id. at 252, 103 S.Ct. 2985. Nothing in the record shows that Smith, unlike the father in Lehr, knew of the pregnancy or birth or that he should assume parental duties.
Similarly, In re Baby Girl S., involving termination of a father‘s parental rights in an adoption proceeding, is distinguishable because the mother chose not to identify the father, no other party knew the identity of the father, and the father was not specifically named as a party in the case. 407 S.W.3d at 907. Additionally, the alleged father should have known that the mother might have been pregnant. Id. at 918. No such evidence exists here. Nor does the record include any indications of upcoming deadlines in a pending adoption proceeding that might require accelerated action to protect Pete‘s best interest.
Because Smith was not served the Departmеnt‘s petition to terminate his parental rights in violation of his constitutional due-process right, we reverse the trial court‘s judgment.7
Conclusion
We affirm the trial court‘s judgment with respect to the mother, reverse the trial court‘s judgment terminating the father‘s parental rights, and remand for a new trial with respect to the father.