In re Interest of T.M.E.

• Citation: 565 S.W.3d 383
• Decision Date: 07 November 2018
• Docket Number: No. 06-18-00046-CV,06-18-00046-CV
• Parties: In the INTEREST OF T.M.E., A.J.E., and R.J.E., Children
• Court: Court of Appeals of Texas

565 S.W.3d 383

In the INTEREST OF T.M.E., A.J.E., and R.J.E., Children

No. 06-18-00046-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: October 30, 2018

Date Decided: November 7, 2018

Michael D. Becker, Office of General Counsel, TDFPS MC: Y-956, 2401 Ridgepoint Dr, Bldg H-2, Austin, TX 78754, for Appellee.

John S. Delk II, Attorney at Law, 1302 Olive Street, Texarkana, TX 75501, for Appellant.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

The Department of Family and Protective Services (the Department) filed a petition to terminate Aurelio Ron’s¹ parental rights to his three children. The trial court granted the Department’s petition and terminated Ron’s parental rights following a bench trial establishing that Ron was a Mexican national living in Mexico. On appeal, Ron argues that he was never served with notice of the Department’s suit against him. Because we agree, we reverse the trial court’s judgment and remand the case for a new trial.

I. Factual and Procedural Background

This case began in 2013 when the Department initiated an investigation of the children’s mother, Amber Kim. Kim informed Department caseworkers that Ron was voluntarily living in Mexico and was the father of all three children. As a result of Kim’s drug tests that were positive for marihuana, the Department filed an original petition in 2014 to terminate Kim’s and Ron’s parental rights to their children. Although the Department filed an amended petition alleging grounds for termination against Kim only, on July 14, 2015, the trial court also terminated Ron’s parental rights, even after finding that he was not notified of and did not appear at the final hearing. In fact, the Department had not served Ron with its petition.

As a result, on July 26, 2017, the Department filed a petition which asked the trial court to vacate its prior order terminating Ron’s parental rights so it could consider its new request to terminate those rights. The Department’s new petition, filed under the same cause number as prior proceedings which had resulted in the void order against Ron, alleged that Ron’s address was "CARR ACAPULCO MEXICO SN, LOC ORGANOS DE J R ESCUDERO, ACAPULCO DE JUAREZ, GRO MEXICO 39901." It also attached an affidavit executed by April Hays, a Child Protective Services Supervisor, which stated:

On June 6^th 2016, I received contact from Juan Carlos Galicia Villanueva, representative of the Mexican Consulate, requesting information on the father’s behalf. A copy of the termination order was sent to him on that date. At that time, I researched the case and discovered that the father had never been served and no pleadings of termination where [sic] contained in the petition for [Ron]. Later that month, Caseworker Chanda Zachery, [sic] received a letter from the father requesting an extension. The letter included an address and email address. Since that time, the Department has attempted to reach him through the contact information that he provided and he has not responded. He is a citizen of Mexico. At this time, his whereabouts are unknown and the Department has had no contact with him since the letter dated May 31^st, 2016.

At a hearing held on July 27, 2017, the trial court found void its previous order and noted the Department’s representations that it still had "not been able to locate [Ron] as of now."

The clerk’s record established that the citation and petition were mailed from the clerk’s office, twice to the wrong address. Initially, citation was mailed to "60S ORGANOS DE J R EDCUDERO 39901 ACAPULCO DE JUAREZ GRO" and was then sent to "CARR ACAPULCO MEXICO SN LOC ORGANOS DE J R ESCUDERO 39901 ACAPULCO DE JUAREZ GRO." In an August 16, 2017, status report, the Department stated that "[s]ervice ha[d] been sent to Mexico by certified mail from the clerk’s office" and that it would "seek help from the Mexican consulate to locate" Ron. At an August 31, 2017, hearing, the trial court noted, "The father is in Mexico. We've tried numerous times to locate him and have him served. I hate to say, in all likelihood probably will not get him served, but we'll keep trying."

On September 24, 2017, Ron mailed a letter stating that he had received on August 1, 2017, "a judicial letter ... [o]riginated from the state of Texas, with the cause number 14C0249-102, sent from the Department of Family Services and Protection [sic]" notifying him "of this situation that these minors are confronting," which was previously "unknown" to him. Because the unsigned, typewritten letter was addressed "[t]o whom [it] may concern" and contained no address for the addressee, it is unclear who received and filed Ron’s letter.² Ron’s letter stated that he was the father of the children and wished to be reunited with them, but was unable to do so as a result of his immigration status. Ron further stated that he was divorced from Kim, that the two had lost contact, that he was surprised to hear that the children were in a foster home, and that he was "available for any action that the jury assigns." Ron provided a telephone number and an incomplete address in the letter and asked that he be notified of "any procedure to take." Although the letter did not indicate that Ron had received the new citation and petition or had any knowledge that the Department sought to terminate his parental rights, this letter was labeled by the clerk as an answer to the Department’s suit.

On October 10, 2017, the trial court found that Ron was not served with notice of a status hearing and had no counsel. Accordingly, the trial court appointed counsel for Ron. In its April 18, 2018, permanency hearing order, the trial court found that Ron "ha[d] not been served in this cause, and therefore ha[d] not been notified." The court also found that "[t]he department ha[d] sent service paperwork to the Mexican consult [sic] for service on the father" and that "said papers [had] not been returned to the department." The record contains no return of service on file, shows that the citation and petition sent by the clerk’s office were sent to the wrong address, and does not establish the addresses used by the Department in mailing any of its letters. The record also fails to contain any notices sent by the trial court informing Ron of the final hearing.

Ron did not appear at the final hearing. Referring to Ron’s September 24 letter, the Department asked the trial court to "take judicial notice of the answer that was filed by [Ron]," which the court did.³ Chanda Zachery, the Department’s caseworker, testified that she tried to dial the telephone number provided by Ron in his letter, but that no one ever answered the phone. Zachery stated that she had not received any communication from Ron.

According to Zachery, the Department mailed the petition and family service plan to Ron by regular and certified mail and included contact information for Zachery and Ron’s court-appointed counsel, yet there was no evidence demonstrating where the documents were mailed. Zachery said that the certified mail card was returned without a signature, but testified that Ron should have known of the Department’s lawsuit because he had communicated via email. No further evidence of the substance or date of the email communication was provided. Zachery also testified that the Department mailed notice of the final hearing on an unidentified date to an unidentified address, but that the certified mail receipt was signed by someone other than Ron. April Hill, the Department’s supervisor, testified that Ron had no contact with her. She further testified that the Department had moved its offices to a different building since Ron had contacted Zachery, but that the Department’s telephone numbers remained the same.

On June 7, 2018, the trial court terminated Ron’s parental rights on grounds D, F, N, and O of Section 161.001(b)(1) of the Texas Family Code after concluding that he had appeared through his court-appointed attorney.⁴ On June 19, 2018, Ron’s counsel filed a motion for new trial alleging that he had first made contact with Ron after the final hearing and that Ron did not receive notice of the final hearing until after it had occurred. The motion for new trial was denied.⁵

II. The Trial Court Did Not Obtain Personal Jurisdiction Over Ron

On appeal, Ron argues that the trial court erred in entering a final judgment because he was never properly served in accordance with the Hague Convention, judgment was entered without return of service of any kind, and he never received notice of the trial court’s hearing, including the final hearing.⁶ The Department does not directly address Ron’s Hage Convention service claim. Instead, it argues that Ron’s letter constituted an answer to the lawsuit, that he appeared through his court-appointed counsel, and that he had actual knowledge of the suit. We conclude (1) that Ron was not properly served, (2) that Ron’s letter was not an answer, (3) that counsel’s appearance at trial did not constitute a waiver of Ron’s rights to be properly served in this case, and (4) that proper service was required even assuming that Ron had actual knowledge of the suit. Because the trial court entered judgment against Ron without proof of proper service, the judgment must be reversed.

A. Personal Jurisdiction Over Ron Was Required

"Parental rights are ‘far more precious than any property right,’ and when the State initiates a termination proceeding, ‘it seeks not merely to infringe that fundamental liberty interest, but to end it.’ " In re E.R. , 385 S.W.3d 552, 563 (Tex. 2012) (quoting Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). "We carefully scrutinize termination proceedings, and we strictly construe involuntary termination statutes in the parent’s favor." Id. (citing Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ). We keep in mind the heightened constitutional issues inherent to parental-rights termination cases in deciding this case...