In re L.N.M., 05-05-00708-CV.

• Decision Date: 18 January 2006
• Docket Number: No. 05-05-00708-CV.,05-05-00708-CV.
• Citation: 182 S.W.3d 470
• Parties: In the Interest of L.N.M., M.N.M., A.J.M., A.P. M., T.M., Sa.M., D.S.M., A.F.M., and Se.M., Children.
• Court: Texas Supreme Court

182 S.W.3d 470

In the Interest of L.N.M., M.N.M., A.J.M., A.P. M., T.M., Sa.M., D.S.M., A.F.M., and Se.M., Children.

No. 05-05-00708-CV.

Court of Appeals of Texas, Dallas.

January 18, 2006.

COPYRIGHT MATERIAL OMITTED

Celeste Delorge Flippen, Plano, Suzanne Hansen Wooten, McKinney, John J. Pfister, Pfister & Associates, Frisco, for Appellant.

Shawn Richards, Rockwall, for Appellee.

Before Justices MORRIS, WHITTINGTON, and BRIDGES.

OPINION

Opinion by Justice WHITTINGTON.

In this case, we must determine whether the trial judge erred in denying Miriam and Ronald Miller's March 7, 2005 bill of review. Because we conclude the trial judge did not err, we affirm the trial court's April 7, 2005 order denying the Millers' bill of review.

Background

The Millers are the parents of nine children who were the subjects of a termination suit filed by the Texas Department of Protective and Regulatory Services. In an order dated February 20, 2004, the trial judge dismissed three of the children (L.N.M., M.N.M., and A.J.M.) from the suit and terminated the Millers' parental rights to A.P.M., Sa.M., and A.F.M. Regarding the remaining three children, T.M., D.S.M., and Se.M., the judge appointed the TDPRS permanent managing conservator. The judge found the Millers had "executed unrevoked or irrevocable affidavits of relinquishment of parental rights" as to T.M., D.S.M., and Se.M. and ordered the affidavits be held under seal by the court until August 2, 2004 at which time the therapists for the children and for the parents would issue a recommendation regarding the return of the children to the parents.

Following a hearing on September 1, 2004, the trial judge signed an order, dated September 16, 2004. The order states that, after examining the record and hearing evidence and argument of counsel, the trial judge terminated the Millers' parental rights as to T.M., D.M., and Se.M. The order also states the parents and the attorney ad litem "were properly cited" but did not appear.

On March 7, 2005, the Millers filed an original petition for bill of review of the trial court's September 16, 2004 order. In the petition, the Millers allege (i) they executed the relinquishment affidavits based on fraudulent statements made to them by TDPRS, and (ii) at the time of the September 16, 2004 termination order, no trials were set and neither the Millers nor the attorney ad litem had been given notice of the hearing. Attached to the bill of review are the Millers' affidavits that support their bill-of-review claims.

On March 21, 2005, the trial judge held a hearing on the attorney ad litem's motion to dismiss and request for temporary injunction. Throughout the hearing, counsel for TDPRS objected to the Millers' attorney's attempts to participate, arguing that the Millers "don't have a voice in this motion to vacate" and that they "can't be a party to a cause of action in which [their] parental rights were terminated." The trial judge did not allow the Miller's counsel to participate in the hearing. At the conclusion of the hearing, the judge stated she would read the entire file and

[t]he question as to whether I'll hear or accept this bill of review will also be taken under advisement and heard at a future date if it is determined necessary after my findings and rulings on this other matter.

On April 7, 2005, the trial judge signed an order denying the Millers' bill of review. This appeal ensued.

Jurisdiction

Initially, we must determine whether we have jurisdiction over this appeal. In their first issue, the Millers claim they are properly before this Court because their notice of appeal and motion to extend time to file notice of appeal were timely filed. The TDPRS and CASA of Collin County argue this Court lacks jurisdiction because section 109.002(a) of the Texas Family Code "provides the exclusive method by which an appeal involving the termination of parental rights may be filed, and that is by accelerated appeal." See TEX.FAM.CODE ANN. § 109.002(a) (Vernon 2002). The TDPRS and CASA argue the Millers had twenty days after the trial court's September 16, 2004 order in which to appeal and that, because the Millers failed to file a notice of appeal by October 6, 2004, this Court lacks jurisdiction over this appeal. We disagree.

Section 109.002 provides:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue.

TEX. FAM.CODE ANN. § 109.002(a). Thus, if a party files a direct appeal of a parental rights termination order, the appeal is accelerated and follows the procedures for accelerated appeals set out in the Texas Rules of Appellate Procedure. See TEX.R.APP. P. 26.1(b), 35.1(b), 38.6(a) & (b). However, contrary to the argument made by the TDPRS and CASA, nothing in section 109.002 states that an accelerated appeal is the exclusive method of appeal. In fact, the family code contemplates at least one other method of contesting a termination order. See TEX. FAM.CODE ANN. § 161.211(a) (Vernon 2002) ("Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed.") (emphasis added).

In this case, the Millers did not file a notice of appeal from the September 16, 2004 order. Rather, they filed a bill of review on March 7, 2005, within the six-month time frame contemplated by section 161.211. Because the March 7 bill of review was timely under section 161.211 of the family code, we conclude the TDPRS's and CASA's argument that the Millers' exclusive remedy lay with filing a timely accelerated appeal of the termination order lacks merit.

The TDPRS and CASA also argue that, even if we calculate the appellate timetable from the date of the April 7, 2005 order, the Millers nevertheless failed to timely appeal because the notice of appeal was due April 27, 2005, within twenty days of the date of the order, or with a timely filed motion to extend time, no later than May 12, 2005. Again, we disagree. The Millers filed a notice of appeal of the trial court's denial of their bill of review, not of the termination order. Because the Millers are appealing the order denying their bill of review, the appeal is not an accelerated appeal under section 109.002 of the family code or the rules of appellate procedure. Thus, the notice of appeal was due May 7, 2005, thirty days after the date the judgment being appealed was filed. The Millers filed their notice of appeal and a timely motion to extend on May 23, 2005. See TEX.R.APP. P. 4.1, 26.1, and 26.3. Because the Millers' notice of appeal was timely under the rules of appellate procedure, we conclude we have jurisdiction over this appeal. We sustain the Millers' first issue.

Bill of Review

In their second issue, the Millers contend the trial judge erred in denying their bill of review. Under this issue, the Millers claim they presented prima facie evidence of a meritorious defense and were entitled to a trial on the merits of the bill of review. The Millers also argue (i) they were entitled to notice of a preliminary hearing on whether they presented prima facie evidence of a meritorious defense, and (ii) the trial judge failed to conduct a preliminary hearing as required. For the reasons that follow, we disagree.

A bill of review complainant must file a petition alleging "factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence." Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex.1979). The complainant must also allege, "with particularity, sworn facts sufficient to constitute defense and, as a pretrial matter, present prima facie proof to support the contention." Baker, 582 S.W.2d at 408. The determination of whether "a prima facie meritorious defense is made out" is a question of law...