In re D.D.

• Decision Date: 10 February 2023
• Docket Number: 08-22-00203-CV
• Parties: IN RE: D.D., Relator
• Court: Court of Appeals of Texas

IN RE: D.D., Relator

No. 08-22-00203-CV

Court of Appeals of Texas, Eighth District, El Paso

February 10, 2023

AN ORIGINAL PROCEEDING IN MANDAMUS

Before Rodriguez, C.J., Alley, J., and Ferguson, Judge

OPINION

ROY B FERGUSON, JUDGE (SITTING BY ASSIGNMENT)

Relator D.D., the presumed father of child "Baby J," seeks mandamus against Respondent, the Honorable Jesus Rodriguez of County Court at Law Number 5 of El Paso County. Relator challenges the trial court's order terminating the mother's parental rights and appointing non-parent managing conservators of the child and order denying his writ of habeas corpus seeking to recover immediate possession of the child. Real Parties in Interest are J.D.S. and P.D.S the prospective adoptive parents of Baby J. We conditionally grant mandamus relief.

We find that the lack of notice to Relator, violated his due process rights. We declare void and direct the trial court to vacate the October 9, 2020, order granting termination and conservatorship and the December 11, 2020, order terminating the rights of the "unknown father." Furthermore, because we find that the trial court clearly abused its discretion in denying the writ of habeas corpus, we direct the trial court to vacate its order denying the writ. Finally, we deny Relator's request to order immediate surrender of the child and remand that issue to the trial court for further proceedings.

I. Background

On September 17, 2020, T.H. gave birth to Baby J while married to D.D. Shortly before the baby's birth, T.H. agreed to voluntarily relinquish her parental rights to Baby J and appoint J.D.S. and her husband, P.D.S.-who she met a week before through Facebook-as managing conservators so that they could adopt the baby. D.D., T.H.'s husband and presumed father of the child, was unaware of T.H.'s intention to give up the child.

In communications with J.D.S. before the baby's birth, T.H. repeatedly referred to her "husband," by name. However, T.H. told J.D.S., "Unfortunately my husband will not be signing anything due to he's embarrassed says he feels less of a man. But my aunt said it's ways around that you can put unknown and my husband doesn't have to sign."^[1]

J.D.S.'s attorney, John L. Williams, drafted Affidavits of Voluntary Relinquishment of Parental Rights for both D.D. and T.H. to sign. When she received them from J.D.S., T.H. told her to have Attorney Williams remove D.D.'s name and put father as "unknown," stating, "Because if my husband name is on their he will have to sign. It want go through unless we both sign." J.D.S. responded, "I'll let him know to switch those ASAP!" T.H. continued, "And he doesn't have to give [D.D.] rights to any of this .... You can tell him [D.D.] is who I'm in a relationship with but is not the father the father is unknown so he want have to find a sitter etc or go out his way to sign." J.D.S. responded, "Okay, so he's reworking a few of the things and removing the father's affidavit."

Shortly thereafter, J.D.S. received revised paperwork from Attorney Williams which stated that the identity and whereabouts of the father of the child were unknown. The father's affidavit of relinquishment was gone as were all references to D.D. On September 19, 2020, while still at the hospital, T.H. signed the revised affidavit, voluntarily relinquishing her parental rights to Baby J and appointing J.D.S. and P.D.S. as Baby J's managing conservators. J.D.S. left the hospital with Baby J shortly thereafter. D.D. was unaware of these events.

Five days later, on September 24, 2020, J.D.S. and P.D.S. filed a petition to terminate the parent-child relationships of T.H. and an "unknown father," and for the adoption of Baby J. The petition, signed by Attorney Williams, states, "There is no presumed or alleged father of the child. The identity and location of the father are unknown. No service is necessary at this time." D.D. was not named or identified, nor was he served with citation.

On October 9, the trial court held a hearing on the termination of T.H.'s parental rights. D.D. was not provided notice of the hearing. J.D.S. was the only witness. She testified T.H. had told her the actual biological father of the child was unknown. Neither J.D.S. nor Attorney Williams disclosed to the trial judge that T.H. was married, there was a presumed father, or they had removed D.D.'s name and affidavit from the original documents. The trial court terminated T.H.'s parental rights and appointed J.D.S. and P.D.S. as managing conservators of Baby J that same day.

However, on October 19, T.H. emailed Attorney Williams directly, stating that while her rights to Baby J were "over," her husband D.D. still had his. Further, she pointed out he did not know anything about what had happened and did not agree. She stated her husband would not consent to continuing with the adoption. She provided D.D.'s name, mailing address, email address, and telephone number to Attorney Williams. He replied to her email the same day, providing a copy of the affidavit of relinquishment she had signed but ignored her repeated assertions regarding her husband or her pleas to stop the adoption process. Attorney Williams did not notify the trial court there was a presumed father of the child or provide any information about D.D. D.D. and T.H. began working together to regain possession of Baby J. They interviewed several attorneys seeking representation. On December 10, having retained counsel, T.H. filed a motion to dismiss, a revocation of her affidavit of relinquishment, and a revocation of her statement conferring standing on J.D.S. and P.D.S. That same day, Attorney Williams requested an immediate hearing on J.D.S.'s application for termination of the rights of the unknown father. He did not inform the trial court that there was a presumed father of the child. The hearing was held the next day- December 11 without notice to D.D. or T.H.

Attorney Williams and J.D.S. appeared at the second termination hearing and J.D.S. was the only witness who testified. Under questioning by Attorney Williams, J.D.S. asked the court to terminate the rights of Baby J's "unknown father." She testified T.H. told "us" she didn't know the identity or location of Baby J's father and had no way to identify him. She testified no man had come forward claiming to be the father, and a search of the state paternity registry showed no man had registered as the father. Neither Attorney Williams nor J.D.S. disclosed to the trial court during the hearing T.H. claimed to be married or that Baby J had a presumed father. Attorney Williams did not mention his email exchange with T.H. in which she identified her husband D.D. After the hearing, without any knowledge of a presumed father, the trial court signed the December 11 Order terminating the rights of the alleged "unknown father."^[2]

On December 14, D.D. emailed Attorney Williams, identifying himself as father of Baby J, and asking for visitation with his child. Attorney Williams replied the next day declaring:

Under Texas law, a person who thinks they may be a father of a child has to file a notice with the Texas Paternity Registry within a month of the child's birth. You did not file with the Paternity Registry and I obtained a Certificate from the Paternity Registry showing that no man filed as father. Subsequently, we recently terminated the father's parental rights to the child. You do not have visitation rights for this child.

On December 21, T.H. withdrew her motion to dismiss, acknowledging that her revocation of affidavit of relinquishment had not been timely filed.

On February 3, 2021, counsel for D.D. entered an appearance in the case. Twenty days later D.D. filed an original petition in suit affecting the parent-child relationship seeking sole managing conservatorship of Baby J. That same day, D.D. filed a motion for stay of proceedings containing his marriage certificate to T.H. and amended birth certificate listing him as Baby J's father.

On March 1, 2021, D.D. amended his SAPCR petition and filed a petition for writ of habeas corpus seeking to recover immediate possession of Baby J, accusing J.D.S. and P.D.S. of perjury and perpetrating a fraud on the court. He attached to the petition copies of the text messages and emails among J.D.S., Attorney Williams, T.H., and himself.

The next day, Attorney Williams filed J.D.S. and P.D.S.'s amended petition to terminate and adopt accompanied by a motion to appoint an attorney ad litem. D.D. filed a petition for bill of review alleging that his due process rights had been violated. The amended petition sought to terminate D.D.'s parental rights as "alleged presumed father" of Baby J. On March 3, 2021, J.D.S. and P.D.S. filed a counterpetition to D.D.'s SAPCR, seeking sole managing conservatorship of Baby J.

On March 4, 2021, the trial court held a hearing on D.D.'s application for writ of habeas corpus. J.D.S. admitted under oath she knew prior to Baby J's birth T.H. was married, and her husband's name was D.D. Further, she understood D.D. was unwilling to sign the documents. When asked how D.D.'s name came to be in the first set of relinquishment paperwork, she made it clear she did not give D.D.'s name to Attorney Williams. Instead, Attorney Williams communicated directly with T.H. to get the information needed for the relinquishment affidavits.

D.D. also testified at the March 4, 2021, hearing on the application for writ of habeas corpus. He testified he was married to T.H. at the time of birth of Baby J and had been married to her since March 2014. No one had informed him of the termination hearings held on October 9 and December 11, 2020, although he had been trying to get the baby back since September 2020.

In closing argument at the...