B. B. F., In re, 16341
| Decision Date | 06 February 1980 |
| Docket Number | No. 16341,16341 |
| Citation | 595 S.W.2d 873 |
| Parties | In re B. B. F. a Minor Child, Appellant. |
| Court | Texas Court of Appeals |
On March 29, 1979, appellant, natural mother of a minor child, executed an Affidavit of Relinquishment of Parental Rights. The affidavit contained a waiver of the right to service of process in any suit to terminate the parent-child relationship. Later, that same day, the appellees filed an original petition praying for termination of the rights of the natural parents of the child and for adoption of the child. Thereafter without notice to appellant, a decree was signed by the trial court terminating the parent-child relationship between appellant and her natural son. From this decree, an appeal by writ of error has been perfected.
Appellant initially contends that the trial court erred in rendering the decree of termination because the waiver of citation was void since it was executed prior to the filing of suit. We disagree with this contention.
Generally, a waiver of the issuance and service of process is proper only if executed after suit is brought. See Tex.Rev.Civ.Stat.Ann. art. 2224 (Vernon 1971); Tex.R.Civ.P. 119. Section 15.02 of the Texas Family Code provides that a court may grant a petition requesting termination of the parent-child relationship if the parent has "executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of this code . . . ." Tex.Fam.Code Ann. § 15.02(1) (K) (Vernon Supp. 1980). Section 15.03 provides in pertinent part that this affidavit may include "a waiver of process in a suit to terminate the parent-child relationship brought under Section 15.02(1)(K) . . . ." Id. § 15.03(c)(2). Since execution of an affidavit of relinquishment of parental rights is a proper basis for terminating those rights in a subsequent suit to terminate the parent-child relationship, and a waiver of process may be included in the affidavit, it is clear that a waiver of citation may be signed prior to the filing of suit. Thus, the Family Code provides an exception to the general rule that a waiver of citation is proper only if executed after suit is brought. See Smith, The Texas Family Code Symposium Parent and Child, 5 Tex.Tech.L.Rev. 389, 443 (1974). There is a sound reason for this exception. After executing an unrevoked or irrevocable affidavit of relinquishment of parental rights, a natural parent is no longer an interested party in a suit to terminate the parent-child relationship. Consequently, neither due process nor logic require that a person who has voluntarily relinquished...
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