Durham v. Barrow

• Decision Date: 21 May 1980
• Docket Number: No. B-8205,B-8205
• Citation: 600 S.W.2d 756
• Parties: Jack E. DURHAM et al., Petitioners, v. John BARROW, Guardian Ad Litem et al., Respondents.
• Court: Texas Supreme Court

Page 756

600 S.W.2d 756

Jack E. DURHAM et al., Petitioners, v. John BARROW, Guardian Ad Litem et al., Respondents.

No. B-8205.

Supreme Court of Texas.

May 21, 1980.

Mike Westergren, County Atty., T. R. Bandy, Jr., Asst. County Atty., Corpus Christi, for petitioners.

Rene Whittle, Corpus Christi, for respondents.

DENTON, Justice.

The plaintiffs, the natural mother and the guardian ad litem of two minor children in a prior suit, brought a bill of review to set aside the adoption of the children, and to return the children to the natural mother. The adoptive parents filed a plea in bar on the grounds that the plaintiffs lacked standing to bring a bill of review because they were not parties to the adoption, and thus had no standing as a matter of law. The trial court sustained the plea in bar and dismissed the action without granting leave to amend.

On appeal, the plaintiffs argued that the trial court had erred in sustaining the plea in bar on the basis of three theories: (1) that both plaintiffs were parties to the adoption suit which was a part of one continuous suit affecting the parent-child relationship; (2) that the guardian ad litem in the termination proceeding had not been discharged, but had continued to represent other siblings in subsequent modification suits, and was therefore entitled to notice of the adoption proceedings; (3) that both plaintiffs had standing as next friend of the adopted children. The court of civil appeals reversed the judgment of the trial court and remanded the cause, holding that neither plaintiff had standing as a party to the adoption, but that both plaintiffs had standing as next friend. It also held that the guardian ad litem's representation of the children had been limited to the termination suit. 574 S.W.2d 857. We affirm the judgment of the court of civil appeals that reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings, but we disagree with the rationale of the court of civil appeals opinion.

The factual background and procedural history of this case are quite complex. Donald Hammaker, a U.S. serviceman, married Co Le-Thi Hammaker, a Vietnamese national, and brought her and her three children by a previous marriage to this country. The Hammakers had five more children including the twins, Deanne and Daniel, who were born in the United States in 1970.

After returning to this country, Donald had great difficulty keeping a job and providing for his large family. This caused considerable marital difficulties which were intensified by Co Le-Thi's inability to communicate in English with her husband or others. She was totally dependent upon her husband to provide food, clothing and shelter for herself and the children.

A few years after their arrival in this country, when the family was living in Ohio, Donald unexpectedly took all eight children to Corpus Christi, Texas where he abandoned them at a Catholic Children's Center. Co Le-Thi followed her family to Texas, but she could not comprehend what had happened. In her subsequent contacts with both the welfare workers and the courts through her appointed attorney, no interpreter was provided to explain the proceedings to her in her native language.

After she arrived in Corpus Christi, Co Le-Thi was dependent upon the Nueces County Child Welfare Unit (hereinafter referred to as the Child Welfare Unit) for support. In August 1973, the Hammakers and the Child Welfare Unit petitioned the Domestic Relations Court of Nueces County to have all the children declared dependent and neglected, and to have the Hammakers' parental rights terminated. The court issued orders which gave the Child Welfare Unit temporary custody of the children, and a guardian ad litem was appointed to represent the interest of the children. In 1974, John Barrow was appointed to replace the previous guardian ad litem.

In August 1974, there was a hearing on the petition, and on October 8, 1974, a termination order was entered which terminated the parental rights of Donald and Co Le-Thi in all eight children and named the Child Welfare Unit as managing conservator. The termination was based on Donald Hammaker's unfitness as a parent, and his wife's total dependency upon her husband to provide for herself and their children. Although the decree entered stated that it had terminated parental rights, it also provided that the Child Welfare Unit could not place the children in foster homes outside Corpus Christi or place the children for adoption for a period of six months. ¹ The purpose stated for the restriction was to permit Co Le-Thi to work with the Child Welfare Unit in order to provide a home for all or some of the children. Neither Co Le-Thi nor Barrow appealed the termination judgment.

Deanne and Daniel, were placed in the home of Jack and LaVonne Durham in mid-1974. At the end of the six month period, no hearing was held to consider the return of the children, and the restriction placed on the Child Welfare Unit ended. Co Le-Thi continued to work with the Child Welfare Unit caseworkers to regain custody of the children.

In September 1975 and March 1977, the other six children were returned to Co Le-Thi by the Child Welfare Unit. The pleadings filed by the Child Welfare Unit were captioned "Motion to Restore Parental Rights." ² Barrow represented the children as guardian ad litem in the 1975 custody modification. After the second custody modification, in March 1977, Co Le-Thi first learned that the Durhams had adopted the twins. A judgment of adoption had been entered by the 105th District Court of Nueces County in July 1976. Neither Barrow nor Co Le-Thi had received any notice of the adoption proceedings. They then filed this bill of review.

The petition for bill of review alleged that Barrow, the guardian ad litem had not received notice of the adoption, and was prevented from presenting a meritorious defense. It was also alleged that the adoption was not in the best interest of the children, and that the Child Welfare Unit had misled Barrow to believe that the restoration of Co Le-Thi's parental rights was conditioned on her conformance to the Child Welfare Unit's requirements. It was also alleged that Co Le-Thi did not pursue her legal remedies because of her reliance on misrepresentations made to her by the caseworkers. It is asserted that the children's right to representation by guardian ad litem in the adoption proceedings was denied, and is also alleged that Co Le-Thi's parental and custody rights over the other six children were restored to her by the Child Welfare Unit.

In addition to the allegations directly attacking the adoption judgment, the petition may also be construed as attacking the termination decree. An attack on the invalidity of the termination is found in the references in the petition to the alleged misrepresentations by the Child Welfare Unit in the termination proceeding, and the invalidity of the termination decree is also brought into question by the references in the petition to the two decrees by which other children were returned to Co Le-Thi and her parental rights purportedly restored. In addition, it is alleged that it is in the best interest of the children to return them to their natural mother. The prayer states the objectives sought by this bill of review. Those objectives are to have the adoption judgment set aside and a judgment entered restoring Co Le-Thi's parental rights. If only the adoption judgment were set aside, Co Le-Thi's parental rights would not thereby be restored. Therefore, the request for a restoration of parental rights compels the conclusion that the allegations of the petition are also directed at setting aside the termination judgment by this bill of review. ³

The only issues before this Court are whether the plaintiffs have standing to bring a bill of review to set aside the adoption judgment and the termination decree. These issues must be resolved without considering the validity of the underlying termination judgment. Although the merits of the bill of review have been urged by the parties and discussed in the court of civil appeals, they are not before this Court.

As a general rule, a party to a prior judgment has standing to bring a bill of review. Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); 4 McDonald, Texas Civil Practice § 18.26 (1971). Both Co Le-Thi and Barrow were parties to the termination proceeding, and both have standing in a bill of review to attack the termination decree. See Simpkins, Texas Family Law, Speer's 5th ed., § 14:30 at 615 (1976).

Next, it must be determined whether Co Le-Thi and Barrow have standing to attack the adoption. Section 15.07 Tex.Fam.Code Ann. (Vernon 1980) provides that an individual who has been divested of parental rights by a termination decree loses all legal rights and interest in the children who were the subject of the termination proceeding. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); see McKnight, Commentary on Section 15.07, Tex.Tech.L.Rev. (1974). Section 11.09(a)(7) provides that a person whose parental rights have been terminated is not entitled to notice of a subsequent adoption. Therefore, if the termination judgment was valid, Co Le-Thi has no standing to bring a bill of review as a party to the adoption. See Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App. Corpus Christi 1976, no writ). However, if the termination decree was invalid, then Co Le-Thi was a necessary party to any adoption, and she was entitled to notice of the adoption suit. Tex.Fam.Code Ann. §§ 11.09(a) (7) and 16.03. She would then have standing to attack the adoption by bill of review. See 4 McDonald, Texas Civil Practice § 18.26 (1971). ⁴

In the court of civil appeals, it was argued that Barrow had standing to attack the adoption based on his representation of the children as guardian ad litem in the termination proceeding. The basis of this argument is that all proceedings...