T.R.R., In re

• Citation: 986 S.W.2d 31
• Decision Date: 12 November 1998
• Docket Number: No. 13-98-086-CV,13-98-086-CV
• Parties: In the Interest of T.R.R., a Minor Child
• Court: Court of Appeals of Texas

Page 31

986 S.W.2d 31

In the Interest of T.R.R., a Minor Child

No. 13-98-086-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 12, 1998.

Javier Gonzalez, Royston, Rayzor, Vickery & Williams, Brownsville, for Ad Litem.

Rebecca G. Flanigan, Sinton, Rosa Elva Torres, Pharr, for Appellant.

Lilia Abrego Gonzales, San Benito, for Appellee.

Before Justices HINOJOSA, YANEZ, and RODRIGUEZ.

OPINION

RODRIGUEZ, Justice.

This is an appeal from the denial of a bill of review brought by the biological mother, Leticia Roth, seeking to set aside an order of termination of her parental rights and adoption of her minor child, T.R.R. We reverse and render in part, modify in part, and as modified affirm the remainder.

FACTS

Leticia Ochoa Roth met Rene Roth in 1993 at a recreational center or day shelter at a mental health mental retardation facility. They became sexually involved, resulting in appellant's pregnancy with T.R.R. She and Roth subsequently married and lived with Roth's parents, Teresa and Charles Roth, the movants in the underlying petition for termination and adoption. Appellant continued to live with the Roths until admitted to McAllen Medical Center, Psychiatric Center to stabilize medication she was taking for depression. ¹ Upon release from McAllen Medical Center, appellant contended the Roths no longer allowed her to reside with them, and she moved to Tropical Texas, a transitional living facility.

While at Tropical Texas, appellant developed gall bladder problems that necessitated surgery. The termination hearing occurred approximately five days after appellant was released from the hospital.

The reporter's record from the termination hearing indicates appellant was either not present or did not make her presence known at the beginning of the hearing. It was not until Teresa and Charles Roth's attorney had completed her direct examination of Teresa Roth that the court was informed appellant was present. The following exchange then took place between the court and appellant:

COURT: You understand, ma'am, that, what has happened, is that you

know what is happening today?

APPELLANT: Yeah, they want to adopt my baby, but--but I want my

rights.

COURT: Well, you haven't filed anything with the Court?

APPELLANT: Well, I didn't file anything with the Court, because they

did me a surgery--what do you call it? A surgery? ²

COURT: A surgery? You understand that your husband has filed a

petition whereby he waives the rights over this child.

The grandparents, apparently, want to adopt this child

because they have been taking care of this child for a

long time.

APPELLANT: Yeah, I know that, but, because my mother-in-law, when I

was living with her, the last time that I lived with her,

was last month. I was in the hospital in McAllen, and I

get [sic] out, I out [of] the house.

COURT: Well, I don't know what you want to do ma'am. At this point

in time, it's been--kind of ready to proceed. You are not

entitled to a lawyer. You are entitled to present some

evidence that you want to present, or if you want to talk

to the lawyer? It's up to you--whatever you want to do.

APPELLANT: Whatever is best for the child.

(Emphasis added).

The court acknowledged appellant's statements that she had some medical problems and then stated:

COURT: Well, I don't know what you want to present to me. If

that's what you want to tell me, it's on the record. And

from what I have been looking at, is, all of the

information before me. You got that--it's a big problem.

You have problems--both you and your husband. You've got

some medical problems, and you have to take care of that,

first, and that's just very difficult.

The court informed appellant he had appointed an ad litem for the child and proceeded to receive the ad litem's report and exhibits. Other than what is set out above, the only time the court heard from appellant was (1) when she responded to the ad litem's questions confirming he had visited with her and had been to the house and (2) when the court asked her, "Anything else you wish to advise the Court?" and she responded, "What can I say?"

In support of her bill of review, appellant filed an affidavit in which she stated that after the hearing, she unsuccessfully sought legal assistance from Texas Rural Legal Aid and two private attorneys, whom she named. Appellant finally obtained legal assistance from Coastal Bend Legal Services, whose attorneys filed the bill of review at issue.

At the bill of review hearing, appellant's counsel requested that the court's file be unsealed in order for appellant to obtain a transcript of the termination proceedings. The request was denied. After hearing testimony from appellant and the ad litem, the court denied the bill of review.

We are initially confronted with a question concerning appellant's ability to bring this bill of review proceeding. It is undisputed the trial court terminated appellant's parental rights on August 21, 1995. Appellant filed her bill of review on May 19, 1997, one year and nine months after the termination occurred. ³ Section 161.211 of the Texas Family Code provides:

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 ... is not subject to collateral or direct attack after the sixth month after the date the order was rendered.

TEX. FAM. CODE ANN. § 161.211(a) (Vernon Supp.1998). The child's attorney ad litem claims section 161.211 precludes appellant's bill of review request for relief. For two reasons, we overrule this contention.

First, the ad litem failed to present the issue to the trial court. While we may liberally construe the ad litem's pleadings as asserting this defense, ⁴ the ad litem never raised the issue at the bill of review hearing. As such, it is waived. TEX. R. APP. P. 33.1. Second, section 161.211 does not apply to this proceeding. The legislature added section 161.211 to the family code in 1997. See Act of June 11, 1997, 75th Leg. R.S., ch. 600, § 1, 1997 TEX. GEN. LAWS 2108, 2108. In doing so, the legislature specifically stated the amendment would not take effect until September 1, 1997. Act of June 11, 1997, 75th Leg. R.S., ch. 600, § 21, 1997 TEX. GEN. LAWS 2108, 2117. Although it could have done so, the legislature made no provision that section 161.211 would apply to pending suits. We conclude, therefore, that section 161.211 does not act to bar appellant's bill of review.

ANALYSIS

A bill of review is an independent action brought by a party to a former action seeking to set aside a final judgment that is no longer subject to a motion for a new trial, appeal, or writ of error. Ortega v. First RepublicBank, Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex.1990); Transworld Fin. Serv. v. Briscoe, 722 S.W.2d 407, 407 (Tex.1987); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). It is an equitable proceeding designed to prevent manifest injustice. French v. Brown, 424 S.W.2d 893, 895 (Tex.1967).

To obtain a reinstatement of the former action and a trial on the merits, a movant must ordinarily show: (1) that she had a meritorious claim or defense, (2) that she was prevented from asserting by the fraud, accident, or mistake of the opposing party, or official mistake, (3) unmixed with any fault or negligence of her own. Ortega, 792 S.W.2d at 453; State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex.1989); Caldwell v. Barnes, 941 S.W.2d 182, 186-87 (Tex.App.--Corpus Christi 1996), rev'd on other grounds, 975 S.W.2d 535, 41 TEX. SUP. CT . J. 780, (May 8, 1998) (op. not yet released). The petitioner must further state sworn facts sufficient to constitute a meritorious claim and, as a pretrial matter, present prima facie proof to support her contention. 1985 Chevrolet Pickup Truck, 778 S.W.2d at 464; State, By and Through Mattox v. Buentello, 800 S.W.2d 320, 325 (Tex.App.--Corpus Christi 1990, no writ). The trial court should then conduct a pre-trial hearing in which the only relevant inquiry is whether the petitioner has presented prima facie proof of a meritorious defense. Beck v. Beck, 771 S.W.2d 141, 142 (Tex.1989); Buentello, 800 S.W.2d at 325.

In her first issue, appellant contends the court erred in not conducting the requisite pre-trial hearing. When the hearing commenced, appellant's counsel stated to the court that the sole issue before the court was whether there was a prima facie showing of a meritorious defense to the underlying termination action. Although the court informed counsel he was not going to allow her to "reopen" the case, appellant was allowed to testify and present the testimony of the child's attorney ad litem. ⁵ The court proceeded to deny the bill of review. In the order, the court made the following relevant findings:

2. Petitioner was not prevented in any way, either by fraud, accident or any wrongful acts of the Respondents, from making a meritorious claim or defense in the former suit. If Petitioner failed to set forth a meritorious claim or defense, it was by her own fault and negligence.

4. On August 21, 1995, the trial court made adequate findings, heard evidence and had statutory grounds for termination of the parental rights of Petitioner as required by the Texas Family Code, Section 161.001 et seq. Respondents, the Roth[s] have taken care of and supported the child the child [sic] since birth which is August 4, 1994.

We conclude, therefore, that proper procedure was followed in making an initial determination regarding the presentation of a meritorious defense.

Appellant's first issue is overruled.

In issues two, three and four, appellant claims the trial court erred in denying her bill of review because a meritorious defense was asserted and an official mistake prevented her from asserting the defense.

MERITORIOUS DEFENSE

Section 161.001 of the Texas Family Code sets out the proof necessary for an involuntary termination of parental rights....