In re Interest of D.M.B.

• Decision Date: 29 April 2015
• Docket Number: No. 04–14–00767–CV,04–14–00767–CV
• Citation: 467 S.W.3d 100
• Parties: In the Interest of D.M.B. Jr. and I.L.B., Children
• Court: Texas Court of Appeals

467 S.W.3d 100

In the Interest of D.M.B. Jr. and I.L.B., Children

No. 04–14–00767–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: April 29, 2015

Karl Anthony Basile, Karl A. Basile Attorney at Law, San Antonio, TX, for Appellant.

Malcolm U. McClinchie III, Bexar County District Attorney's Office, Jay Brandon, Irene Vela Cadena, Law Office of Irene Vela Cadena, Brian Hamner, The Law Office of Brian A. Hamner, San Antonio, TX, for Appellee.

Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Jason Pulliam, Justice

OPINION

Opinion by: Marialyn Barnard, Justice

This is a restricted appeal from atrial court's order terminating appellant father's (“Father”) parental rights. On appeal, Father contends the trial court erred in terminating his parental rights because the trial court lacked personal jurisdiction over him. We dismiss the appeal for want of jurisdiction.

BACKGROUND

In 2013, the Texas Department of Family Services (“the Department”) filed an original petition, seeking to terminate Father's parental rights to his children, D.M.B. and I.L.B., on numerous grounds.¹ In the petition, the Department provided an address for Father. Along with the petition, the Department filed a motion for substituted service, requesting authorization to serve Father by publication or other means of substituted service. See Tex.R. Civ. P. . CIV. P. 106 (authorizing substituted service in certain instances). The affidavit attached to the motion stated Father could “probably be found” at the address listed in the petition because Father had previously lived there. The trial court signed an order authorizing service on Father by any person authorized by Rule 103 of the Texas Rules of Civil Procedure —sheriff or constable, any person over eighteen authorized by law or written court order, any person certified by supreme court order—in accordance with Rule 106. See Tex. R. Civ. P. 103 (stating who may serve legal process, including citation); Tex. R. Civ. P. 106. The trial court also appointed an attorney ad litem for Father. See Tex. Fam. Code Ann. § 107.013(a)(3) (West 2014) (requiring appointment of attorney ad litem for alleged father who has not registered with paternity registry and whose identity or location is unknown). Shortly thereafter, a return of citation was filed, showing citation was posted on the door of the house at the address listed in the Department's petition and affidavit supporting the motion for substituted service. See Tex. R. Civ. P. 106(b)(1) (authorizing service of process—upon motion with supporting affidavit stating usual place where defendant can probably be found—by leaving copy of citation and petition in manner reasonably effective to give defendant notice of suit).

The trial court subsequently held an adversary hearing regarding temporary placement of the children as required by section 262.201 of the Texas Family Code. See Tex. Fam. Code Ann. § 262.201 (West 2014). The record reflects Father's attorney ad litem appeared at the hearing.² At the Chapter 262 hearing, Father's attorney ad litem announced “not ready” and informed the trial court he and his secretary spoke to Father the day before the hearing. The trial court proceeded, and during the hearing, Father's attorney asserted numerous objections on Father's behalf. At the end of the hearing, the trial court granted a temporary order, giving the Department temporary custody of the children.

One month later, the trial court held a status hearing at which Father's attorney ad litem again appeared. Ultimately, the matter was transferred to the Family Drug Court—the Department had alleged, as grounds for termination, that both parents used controlled substances in a manner that endangered the children. See Tex. Fam. Code Ann. § 161.001(1)(p) (West 2014). However, the case was “expelled” from the Family Drug Court for “non-compliance.” The matter was subsequently set for trial on the merits.

On July 25, 2014, the termination matter was tried to the court. The reporter's record lists appearances by the attorneys for the Department, the mother, and the children; however, it does not list an appearance by Father or Father's attorney ad litem. At trial, the attorneys representing the Department, the mother, and the children announced present, but neither Father nor Father's attorney ad litem announced present or ready; there is nothing in the reporter's record to suggest Father or anyone on Father's behalf was present for trial. At the conclusion of the one-day trial, the trial court signed an order terminating Father's parental rights based on two of the grounds originally pled by the Department in its petition.

The trial court's order of termination was signed July 25, 2014. Accordingly, because parental termination appeals are accelerated, Father's notice of appeal was due August 14, 2014. See Tex. Fam. Code Ann. § 263.405(a) (stating that appeal from termination order is governed by procedures for accelerated appeals in civil cases under Texas Rules of Appellate Procedure); Tex. R. App. P. 26.1(b) (stating that in accelerated appeal, notice of appeal must be filed within twenty days after judgment or order is signed). However, Father did not file his notice of appeal until November 4, 2014. The notice of appeal stated it was a restricted appeal, and it was filed within the six month time period for filing a restricted appeal. SeeTex. R. App. P. 26. 1(c) (stating that in restricted appeal, notice of appeal must be filed within six months after judgment or order is signed).

ANALYSIS

On appeal, Father raises two issues, arguing the termination order must be reversed because the trial court lacked personal jurisdiction over him. More specifically, Father argues he was not properly served with citation because the substituted service used by the Department did not strictly comply with Rule 106, resulting in a violation of his state and federal due process rights. The Department counters, arguing Father made a general appearance by and through his attorney ad litem at the Chapter 262 hearing, and therefore, waived his complaint about the alleged defective service.

As noted above, this is a restricted appeal. Accordingly, we must determine whether Father has met the required elements for a restricted appeal as those elements are jurisdictional.

To bring a restricted appeal, Father must show: (1) he filed a notice of restricted appeal within six months of the date the termination order was signed; (2) he was a party to the underlying suit; (3) he did not participate in the hearing that resulted in the termination order, i.e., the order complained of, and did not file any post judgment motions or a request for findings of facts and conclusions of law; and (4) error is apparent on the face of the record. Tex.R.App. P. 26. 1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex.2009) (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004) ); In re B.H.B., 336 S.W.3d 303, 305 (Tex.App.—San Antonio 2010, pet. denied). Each element of a restricted appeal is mandatory and jurisdictional. Ibarra v. City of Laredo, No. 04–11–00035–CV, 2012 WL 3025709, *4 (Tex.App.—San Antonio July 25, 2012, pet. denied) (mem.op.) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex.App.—San Antonio 1995, no writ) ).

The parties do not dispute that Father satisfied the first three jurisdictional elements of a restricted appeal. Thus, only the fourth element—error apparent on the face of the record—is at issue. For the purposes of a restricted appeal, the face of the record comprises the clerk's record, the reporter's record, as well as any other evidence otherwise presented to the trial court before final judgment. See Norman Commc'n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) ; Schoendienst v. Ha u g, 399 S.W.3d 313, 316 (Tex.App.—Austin 2013, no pet.). Error must be apparent from the face of the record and not inferred from the record. See Norman, 955 S.W.2d at 270 ; Schoendienst, 399 S.W.3d at 316.

We begin by addressing the Department's contention that Father made a general appearance at the Chapter 262 hearing and thereby waived any complaint regarding lack of service or improper service. A party waives complaints regarding service of process if he makes a general appearance. Tex. R. Civ. P. 120 (providing that entrance of general appearance has same force and effect as if citation has been issued and served as provided by law). Thus, if Father generally appeared, error is not apparent on the face of the record and this court lacks jurisdiction over Father's restricted appeal.

“A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex.2004) (per curiam). In general, a party's personal appearance before a trial court indicates a submission to the court's jurisdiction, constituting a general appearance and therefore, waiving any complaint as to service. Mays v. Perkins, 927 S.W.2d 222, 225 (Tex.App.—Houston [1st Dist.] 1996, no writ) (citing Tex. R. Civ. P. 120 ). Similarly, a defendant waives a complaint regarding service if retained counsel appears in court on his behalf, seeking a judgment or adjudication on some question. In re C.T., No. 13–12–00006–CV, 2012 WL 6738266, at *11 (Tex.App.—Corpus Christi Dec. 27, 2012, no pet.) (mem.op.). Moreover, this court previously held that an appellant father waived any complaint about service when his attorney ad litem attended the termination hearing, announced not ready, but sought the court's consideration of the child's best interest. In re P.Y.M., No. 04–13–00024–CV, 2013 WL 4009748, at *2 (Tex.App.—San Antonio Aug. 7, 2013, no pet.) (mem.op.). Accordingly, a party's request for affirmative action constitutes a general appearance...