In the Interest of E.R., J.B., E.G., And C.L., Children.

• Decision Date: 03 March 2011
• Docket Number: No. 05–09–01505–CV.,05–09–01505–CV.
• Citation: 335 S.W.3d 816
• Parties: In the Interest of E.R., J.B., E.G., and C.L., Children.
• Court: Texas Court of Appeals

335 S.W.3d 816

In the Interest of E.R., J.B., E.G., and C.L., Children.

No. 05–09–01505–CV.

Court of Appeals of Texas, Dallas.

March 3, 2011.

Jeremy C. Martin, Simpson Martin, LLP, Dallas, TX for Appellant.Michael Kotwal, Michael R. Casillas, Assistant District Attorney–Chief Prosecutor, Kimberly Pfannenstiel Duncan, Assistant District Attorney, Dallas, TX, for Appellee.Before Justices FITZGERALD, MURPHY, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

Appellant appeals the trial court's judgment terminating her parental rights. In two issues, appellant asserts the trial court erred by denying her motion for new trial and by failing to sustain her objections to an affidavit of citation by publication. We affirm the trial court's judgment.

Background

The Texas Department of Family and Protective Services (DFPS) filed a petition for termination of appellant's parental rights to her four minor children. The petition for termination included an address for appellant where service could be effected. After failing to effect personal service on appellant, the DFPS served appellant with citation by publication. Appellant did not appear at the termination proceeding, but she was represented at the proceeding by her attorney ad litem. See Tex. Fam.Code Ann. § 107.013(a)(2) (West 2008) (in suit filed by governmental entity in which termination of parent-child relationship requested, court shall appoint attorney ad litem to represent interests of parent served by citation by publication). On November 14, 2007, the trial court signed a decree terminating appellant's parental rights to the children, finding that termination of the parent-child relationship between appellant and the children was in the children's best interest.¹

On November 16, 2009, appellant filed a motion for new trial under rule 329 of the rules of civil procedure. The trial court denied the motion for new trial. Appellant brought this appeal.

Appellant's Motion for New Trial

In her first issue, appellant asserts the trial court erred by denying her motion for new trial because the DFPS committed extrinsic fraud in procuring service of citation by publication. The DFPS asserts appellant's motion for new trial under rule 329,² filed two years after the decree of termination was signed, was untimely under the family code's strict deadline for contesting the validity of a termination decree.

Because appellant presented her challenge to the validity of a termination decree in a motion for new trial, we analyze this challenge under the standard of review applicable to the denial of a motion for new trial. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). We review a trial court's refusal to grant a motion for new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.2009). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). A trial court's clear failure to analyze and apply the law correctly constitutes an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding); Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.-Dallas 2007, no pet.).

In 1997, the legislature amended section 162.012 of the family code, entitled “Direct or Collateral Attack,” regarding the time period during which parties are allowed to challenge the validity of an adoption decree. Under the version of section 162.012 prior to the amendment, parties were allowed to challenge the validity of an adoption decree up to two years after the order was entered. See Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 16.012, 1973 Tex. Gen. Laws 1411, 1431, amended by Act of May 28, 1997, 75th Leg., R.S., ch. 601, § 1, 1997 Tex. Gen. Laws 2118, 2118. The 1997 amendment reduced the time to contest the validity of an adoption order to six months, providing in relevant part:

(a) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an adoption order is not subject to attack after six months after the date the order was signed.

Tex. Fam.Code Ann. § 162.012(a) (West 2008). That legislation also added section 161.211 to the family code, entitled “Direct or Collateral Attack on Termination Order.” Act of May 28, 1997, 75th Leg., R.S., ch. 601, § 2, 1997 Tex. Gen. Laws 2118, 2118 (current version at Tex. Fam.Code Ann. § 161.211 (West 2008)). Like the deadline in the amendment to section 162.012, section 161.211 includes a six-month deadline for challenging the validity of a termination order affecting the parental rights of a person served by citation by publication notwithstanding rule 329:

(b) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.

Tex. Fam.Code Ann. § 161.211(b).

The bill analysis accompanying the 1997 legislation specifies that the purposes of the amendment to section 162.012 and the addition of section 161.211 were to reduce from two years to six months the period during which the validity of an adoption order would be subject to attack and to “establish a six-month window after which the validity of an order terminating the parental rights of a person would not be subject to attack.” Senate Comm. on Juvenile Justice and Family Issues, Bill Analysis, Tex. S.B. 52, 75th Leg., R.S. (1997); see also In re S.N., 272 S.W.3d 45, 61 (Tex.App.-Waco 2008, no pet.) (op. on reh'g) (person whose parental rights terminated must file any collateral attack on termination decree within six months after decree signed); In re C.R.P., 192 S.W.3d 823, 825, 826 (Tex.App.-Fort Worth 2006, no pet.) (biological mother, in challenging termination of her parental rights, asserted affidavit of relinquishment was void because obtained by fraud, duress, or coercion; challenge to validity of order terminating person's parental rights under section 161.211 and to validity of adoption order under section 162.012 not subject to attack after six months following the dates on which respective orders signed); In re Lambert, 993 S.W.2d 123, 132 n. 4 (Tex.App.-San Antonio 1999, no pet.) (direct and collateral attacks are subject to constraints imposed by statutory and common law and court rules, with additional constraints requiring direct and collateral attacks on termination orders filed within six months of termination order).

The family code's statutory scheme for protecting a child's welfare focuses on the child's best interest. See, e.g., Tex. Fam.Code Ann. §§ 51.11(b) (juvenile court may appoint guardian ad litem to protect interests of child in proceedings if parent or guardian incapable or unwilling to make decisions in best interest of child), 153.001 (public policy of state to provide safe, stable, and nonviolent environment for child), 161.101 (petition for termination of parent-child relationship sufficient if it alleges in statutory language ground for termination and that termination is in best interest of child) (West 2008); see also In re A.V., 113 S.W.3d 355, 361 (Tex.2003) (upholding retroactive application of statute allowing termination of parental rights for those incarcerated for extended period of time because state has duty to protect safety and welfare of its children, and this valid exercise of police power by legislature to safeguard public safety and welfare is recognized exception to unconstitutionality of retroactive laws).

“The State's fundamental interest in parental-rights termination cases is to protect the best interest of the child. This interest is aligned with another of the child's interests—an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged.” In re M.S., 115 S.W.3d 534, 548 (Tex.2003); see also In re L.M.I., 119 S.W.3d 707, 710–11 (Tex.2003) (legislature's intent is that cases terminating parental rights be expeditiously resolved, thus promoting child's interest in final decision and thus placement in safe and stable home); In re B.L.D., 113 S.W.3d 340, 353 (Tex.2003) (section 161.211 enacted to ensure children's lives not kept in limbo); In re A.V., 113 S.W.3d at 361 (although termination suit can result in parent's loss of legal relationship with the child, primary focus is protecting best interests of the child); Goodson v. Castellanos, 214 S.W.3d 741, 749 (Tex.App.-Austin 2007, pet. denied) (six-month deadline in section 162.012 comports with public policy of State to provide children with a stable environment in which to be raised); House Comm. on Juvenile Justice and Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005) (“In 2001, the Texas Legislature established specific post-judgment procedures [for appeals of final orders in suits affecting the parent-child relationship in Tex. Fam.Code Ann. § 263.405(b) (West 2008) ] in an effort to decrease the amount of time that abused or neglected children have to spend in foster care.... Unfortunately, recent appellate decisions have effectively repealed the Legislature's attempt to address the post-judgment delay issue. These appellate court decisions hold that the Legislature did not really mean what it said and that no adverse consequences flow from an appellant's failure to comply with this Legislature's 2001 enactment. These decisions frustrate the Legislature's effort to speed up the post-judgment process in parental termination cases in order to shorten the time to final resolution.”); In re T.C., No. 10–10–00207–CV, 2010 WL 4983512, at *7 (Tex.App.-Waco Dec. 1, 2010, pet. denied) (mem. op.) (“By enacting the deadlines that exist in cases where the...