Shaw, In Interest of
| Decision Date | 26 March 1998 |
| Docket Number | No. 08-96-00351-CV,08-96-00351-CV |
| Citation | 966 S.W.2d 174 |
| Parties | In the Interest of Ron Andre SHAW, Michael Germain Freeman, and Erica Ann Freeman, Minor Children. |
| Court | Texas Court of Appeals |
J. K., 'Rusty' Wall, Law Office of J. K Rusty Wall, Midland, for Appellant.
Charles G. Childress, TX Dept. of Protective & Regulatory Services, Austin, for Appellee.
Before LARSEN, McCLURE and CHEW, JJ.
We withdraw our opinion of November 6, 1997, and substitute this opinion in its stead. The motion for rehearing submitted by the Texas Department of Protective and Regulatory Services is overruled. At issue is the termination of parental rights with regard to three young children. We affirm in part and reverse and remand in part.
Rosa Anna Freeman (Freeman) is the mother of Michael and Erica Freeman and Ron Shaw, Jr. Ron Shaw, Sr. is the father of Michael and Erica, but he is not the biological father of Ron Shaw, Jr. At the time the Department of Protective and Regulatory Services (DPRS) filed its first amended petition in suit affecting the parent-child relationship, the father of Ron Shaw, Jr. was unknown. Accordingly, the petition named Freeman as the mother of all three children, requested service of process upon her and sought termination of her parental rights. Ron Shaw, Sr. was named as the father of Michael and Erica; the petition requested service of process upon him, and sought termination of his rights with regard to his two children. The petition then addressed Ron Shaw, Jr.
The parent-child relationship between the child, Ron Shaw, and the biological father does not exist in law or in fact. [DPRS] requests that any parental rights of any unknown father of the child be terminated pursuant to Section 161.002, Texas Family Code. If, after being served with citation in this suit, any unknown father does not respond by timely filing an admission of paternity or by filing a counterclaim for paternity or for voluntary legitimation to be adjudicated under Chapter 160 of the Texas Family Code before the final hearing in this suit [sic].
Freeman answered; Ron Shaw, Sr. filed an affidavit of relinquishment and waived issuance and service of citation.
Having identified the parties, we now introduce the attorneys. Chris McCormack was originally appointed as attorney ad litem to represent the interests of the unknown father of Ron Shaw, Jr. and filed an answer on his behalf. Edmond Martin subsequently replaced McCormack as the ad litem for the father. David Lindemood was appointed as attorney ad litem for all three children. Sara Spector represented DPRS; John Cook represented Freeman, standing in for her court-appointed counsel, Ian Cantacuzene. Shortly before trial, Jeremiah Worsham (Worsham) was identified through paternity testing as the biological father of Ron Shaw, Jr. Edmond Martin appeared on his behalf at trial. That having been said, the following announcements were made at the beginning of the trial:
The Court: Court will come to order, please. I will call Number 25,412, In The Interest Of The Freeman Children. Is Mr. Edmond Martin here?
Mr. Martin: Yes, Your Honor.
Ms. Spector: One of the dads.
The Court: For the father, right?
Ms. Spector: One of the fathers.
The Court: For Ron.
Ms. Spector: No.
Mr. Lindemood: The father of Ron Shaw.
Ms. Spector: Yeah, for the father of Ron Shaw, Jr. This is very confusing.
The Court: And how about the Texas Department of Protection and Regulatory Service, is represented by Ms. Spector, correct?
Ms. Spector: Correct.
Mr. Lindemood: I am, Your Honor. It's David Lindemood, L-i-n-d-e-m-o-o-d.
The Court: And you are guardian ad litem for all the children?
Mr. Lindemood: For all three children.
The Court: And you don't see any conflict of interest in that, do you?
Mr. Lindemood: No, sir.
The Court: And is there more than one father, you say?
Ms. Spector: Yes, but the other father, Ron Shaw, Sr., has filed a waiver of rights, relinquishment.
The Court: Let's see. All right. And now, the mother, Rosie Freeman, is she here?
Mr. Cook: Present and ready, John Cook filling in for Ian Cantacuzene.
The Court: C-o-o-k?
Mr. Cook: Yes, sir.
The Court: And you are for the mother?
Mr. Cook: Yes, sir.
The Court: And what's the name of the child that's here by waiver?
Ms. Spector: The father signed a waiver, Ron Shaw, Sr.
The Court: What's the child's name?
Ms. Spector: He's the father of Michael and Erica, but not Ron Shaw, Jr.
The Court: Michael and Erica's father here by waiver. Are all parties ready?
Ms. Spector: Yes, sir.
Mr. Martin: Right. The third child that I represent the father of, just recently, they did paternity testing, established that he was the father of the child, and so he's here today on behalf of Ron Shaw, Jr.
Ms. Spector: We are proceeding on termination on the mother of Ron Shaw, Jr., but not on the father. And the other two children, we are proceeding on both parents.
The Court: Other two children, what?
Ms. Spector: Both parents, we're asking for termination today.
The Court: So you are waiving any termination as to Ron Shaw's father?
Ms. Spector: Today, we are. We have not yet filed. [Emphasis added]
Following the hearing, the trial court terminated the rights of Rosa Anna Freeman as to all three children and terminated the parent-child relationship between Ron Shaw, Sr. and Michael and Erica. The order is silent as to any action taken with regard to Jeremiah Worsham. Only Freeman appeals.
DPRS urges that we lack jurisdiction to consider the appeal because the order of termination is interlocutory and not appealable. It contends that Worsham was a necessary party to the termination suit pursuant to TEX.FAM.CODE ANN. 102.009(a)(Vernon 1996), that the live pleading at trial sought termination of his rights, but that the termination order from which this appeal springs is silent as to him. It merely terminates the parental rights of Freeman as to all three children and the parental rights of Ron Shaw, Sr. as to Michael and Erica. There is no order severing the suit with respect to Ron Shaw, Jr. or Worsham. In support of this argument, DPRS cites us to Kutzer v. Moore, 556 S.W.2d 865 (Tex.Civ.App.--San Antonio 1977, no writ).
We first comment that the Family Code requires only notice and service of process on designated individuals with regard to an original suit affecting the parent-child relationship. Pertinent to this case, § 102.009(a) requires service of citation upon each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Chapter 161, and upon an alleged father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father as provided by Chapter 161. TEX.FAM.CODE ANN. § 102.009(a)(7) and (8). Thus, Worsham was entitled to notice of the termination suit against Freeman, regardless of whether termination was sought against him. That is not to say, however, that any termination sought against him had to be pursued in conjunction with the suit against Freeman. Statutory grounds for termination may exist as against one parent, but not the other. Or, if grounds exist as to both parents, they may not occur simultaneously. Here, an attorney ad litem was appointed to represent what, at the time the first amended petition was filed, was an unknown father. When paternity was established, the substitute ad litem continued to represent Worsham. Full compliance with the Family Code having been demonstrated, we must now address the termination proceedings against Worsham.
We find Kutzerinapplicable. There, the Moores filed suit to terminate the parental rights of the Kutzers with regard to two children. Although the petition sought termination of both parents, the judgment terminated only the rights of the mother; it was silent as to the father except to note that he appeared with his attorney at trial and that no pleadings were filed on his behalf. The mother appealed. In deciding that it lacked jurisdiction to review the matter, the appellate court concluded that the termination action against the father was not disposed of in the judgment and was still pending. As a result, the order was interlocutory and not appealable until the action against the father was either severed or finally adjudicated. Kutzer, 556 S.W.2d at 866.
In the matter before us, the record indicates that although termination was originally sought against the unknown father of Ron Shaw, Jr., the pleading was never amended to seek termination of Worsham's parental rights. An attorney appointed to represent the unknown father filed an answer on his behalf; once his identity was established, the substitute ad litem appeared at trial to represent Worsham. At that point, the original pleadings against the father of Ron Shaw, Jr. were abandoned and waived by the attorney representing DPRS. We have highlighted above the portion of the record reflecting abandonment of the termination proceedings against Worsham.
"A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried." TEX.R.CIV.P. 165. Whether a pleading has been abandoned is a question of law which we review de novo. Sosa v. Central Power & Light Co., 901 S.W.2d 562, 567 (...
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