in the Interest of P. RJ E.

Opinion issued June 23, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-01110-CV

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IN THE INTEREST OF P. RJ E.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2014-06607J

OPINION ON REHEARING1

1

The Department of Family and Protective Services moved for en banc

reconsideration of our opinion dated June 2, 2016. This motion maintained the

Court’s plenary power over the case. TEX. R. APP. P. 19.1, 49.3. We withdraw our

opinion and judgment dated June 2, 2016, and issue this opinion in its place,

thereby rendering the Department’s motion for en banc reconsideration moot. See

Kennamer v. Estate of Noblitt, 332 S.W.3d 559, 567 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied); Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4

(Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g).

The trial court terminated the parental rights of Pete’s2 biological parents,

including the rights of his alleged father, Kristopher Aaron Smith. Smith argues

that the Department of Family and Protective Services never served him its petition

to terminate his parental rights, thereby violating his constitutional due-process

rights. We agree and, therefore, reverse the trial court’s judgment terminating

Smith’s parental rights and remand for a new trial for him.

Background

At Pete’s birth, his mother tested positive for marijuana. The hospital tried to

place Pete with his mother’s boyfriend, but the boyfriend tested positive for

marijuana and methamphetamine. The Department eventually placed Pete in a

foster home.

The Department offered Pete’s mother a family service plan to regain

custody. Shortly after beginning the plan, Pete’s mother decided to relinquish her

parental rights and, according to Pete’s caseworker, “then disappeared.” According

to a progress report, his mother did not contact the caseworker again after deciding

to relinquish her rights and did not return “letters or phone calls.” The Department

then filed a petition to terminate Pete’s biological parents’ parental rights.

Pete’s mother originally identified a different man, R.J.E., as Pete’s father.

R.J.E. was named as Pete’s father on Pete’s birth certificate. The Department listed

2

To protect his privacy, we identify the child by a pseudonym only.

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him as Pete’s father in its original petition and served him. After DNA testing

determined that this man was not Pete’s father, the Department nonsuited him.

No one registered as Pete’s father in the paternity registry; and thus, the

Department began a search to identify his father. The mother identified a second

potential father, stating that the father was either “Christopher Smith or Cash Smith

or Cash Trill” and was “in prison.” According to the Department caseworker, its

initial search “did not reveal any helpful information because the name provided

was too common.” After more research, the Department located Kristopher Aaron

Smith. The Department’s attorney explained that the Department searched for

“Kash Trill” on Facebook, which “led to another link for a rap web site. That

rapper’s name further down gave us the name Kristopher Smith. That’s how we

got to Kristopher Smith from Kash Trill. And that name was just then run and

found in T.D.C.J. . . .”

After discovering this information—over a month before the hearing on the

Department’s motion to terminate parental rights—the Department amended its

petition to add “Kristopher Aaron Smith” as Pete’s alleged father and to terminate

his rights. That petition did not include a certificate of service, nor did the

Department file a return of citation. The “Permanency Report to the Court—

Temporary Managing Conservatorship,” filed a few weeks before the hearing on

the Department’s petition, noted that Smith was “recently located” but “not yet

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served.” The record does not contain any evidence or allegation that Smith knew of

Pete’s birth.3

At the hearing on the Department’s petition, Smith’s court-appointed ad

litem attorney was present and did not object to the hearing. He had “no argument”

at the conclusion of the evidentiary hearing.

After the hearing, the trial court orally granted the Department’s petition to

terminate Pete’s biological parents’ parental rights. The Department then served a

notice of the hearing on the form of the written order to Smith. It also served Smith

notice of a permanency hearing on that order.

After being served both notices, and after the hearing on the form of the

order, Smith filed a motion for a new trial, arguing that the “time lap between the

[Department discovering] the whereabouts of [Smith] and trial was insufficient to

both establish [Smith] as the father and properly represent his interest at trial.” The

trial court denied Smith’s motion.

Smith appeals the trial court’s order terminating his parental rights.

3

Smith’s lack of knowledge of Pete’s existence distinguishes this case from Lehr v.

Robertson, 463 U.S. 248, 250, 103 S.Ct. 2985, 2987–88 (1983). In Lehr, the father

knew of the child’s existence and even visited the mother in the hospital when the

child was born. Id. Additionally, the statute in Lehr provided for notice of

adoption proceedings for any alleged father that the mother identified. Id. at 250–

51, 2999.

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Service of Petition

Smith argues that his constitutional due-process right was violated because

the Department did not serve him its petition to terminate his parental rights. The

Department replies that Smith did not present the due-process argument to the trial

court and, thus, waived the issue. Alternatively, the Department argues that (1) it

was not required to serve Smith under the Family Code but (2) it, nonetheless,

served Smith by publication.

Smith argues that the “record contains no evidence that [he] was served with

citation or waived service.” He argues that once the Department located him, “it

should have proceeded to serve him with citation.”

“[D]efective service can be raised for the first time on appeal.” All Com.

Floors Inc. v. Barton & Rasor, 97 S.W.3d 723, 725–26 (Tex. App.—Fort Worth

2003, no pet.); In re C.T.F., 336 S.W.3d 385, 387–88 (Tex. App.—Texarkana

2011, no pet.); see Musquiz v. Harris Cty. Flood Control Dist., 31 S.W.3d 664, 667

(Tex. App.—Houston [1st Dist.] 2000, no pet.).4 Because a trial court’s jurisdiction

is dependent on proper service, a party is not required to object to defective service

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Nor does In re D.R.L. compel an alleged father to object in a trial court when he

was not served. No. 01-15-00733-CV, 2016 WL 672664, at *3 (Tex. App.—Houston

[1st Dist.] Feb. 18, 2016, no pet.) (mem. op.). In D.R.L., the Department “exercised

diligence” in attempting to contact the father but was “unable to find him.” Id. Nor did

that case deal with an alleged father who did not receive service; the alleged father in

D.R.L. argued that Section 161.002(b)(1), which only allows an alleged father’s rights to

be terminated “after being served with citation,” was unconstitutional. See id. at *10;

TEX. FAM. CODE ANN. § 161.002(b)(1).

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in the trial court. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990). Thus, Smith

did not waive his service argument by failing to object at the trial court.5

Although the Texas and U.S. Constitutions’ “due process” clauses are

textually different, “we regard these terms as without meaningful distinction” and,

thus, traditionally follow “contemporary federal due process interpretations of

procedural due process issues.” Univ. of Tex. Med. Sch. at Houston v. Than, 901

S.W.2d 926, 929 (Tex. 1995). The “process” required by the “due process” clause

“is measured by a flexible standard that depends on the practical requirements of

the circumstances.” Id. at 930. But, at a minimum, due process requires “notice and

an opportunity to be heard . . . .” Id.

The Department argues that, under the Family Code, it was not required to

serve Smith. The Family Code allows a trial court to terminate the parental rights

of an alleged father without serving him notice of the termination hearing if

5

Neither does Smith’s motion for new trial constitute a general appearance that

would waive his right to personal service because a general appearance must be

entered before the judgment that is at issue to waive personal service. See Uche v.

Igwe, No. 05-11-00570-CV, 2012 WL 2785355, at *2 n.1 (Tex. App.—Dallas July

10, 2012, no pet.) (mem. op.) (“We note that any general appearance entered by

Uche after the granting of the default judgment did not waive any defects in

service or validate the default judgment”); Williams v. Nexplore Corp., No. 05-09-

00621-CV, 2010 WL 4945364, at *3 (Tex. App.—Dallas Dec. 7, 2010, pet.

denied) (mem. op.) (“[A] general appearance which waives defects in service must

precede any action of the court which such appearance validates”); see also

Houston Precast, Inc. v. McAllen Const., Inc., No. 13-07-135-CV, 2008 WL

4352636, at *3 (Tex. App.—Corpus Christi Sept. 25, 2008, no pet.) (mem. op.);

Dan Edge Motors, Inc. v. Scott, 657 S.W.2d 822, 824 (Tex. App.—Texarkana

1983, no writ); H. L. McRae Co. v. Hooker Const. Co., 579 S.W.2d 62, 65 (Tex.

Civ. App.—Austin 1979, no writ).

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the child is under one year of age at the time the petition for

termination of the parent-child relationship or for adoption is filed and

he has not registered with the paternity registry . . . .

TEX. FAM. CODE ANN. § 161.002(b)(3) (West Supp. 2015). Section c-1 provides:

The termination of the rights of an alleged father . . . does not require

personal service of citation or citation by publication on the alleged

father, and there is no requirement to identify or locate an alleged

father who has not registered with the paternity registry under Chapter

160.

TEX. FAM. CODE ANN. § 161.002(c-1).

But the issue raised by Smith is not a question of the interpretation of these

statutory provisions. Nor does Smith challenge the constitutionality of these

statutory provisions. Instead, Smith contends that even if Sections 161.002(b)(3)

and 161.002(c-1) do not require personal service in a parental termination

proceeding of an alleged father’s parental rights when his location and identity are

known, due process does. We agree. See In re E.R., 385 S.W.3d 552, 555, 565–65

(Tex. 2012). If the Department knows the alleged father’s identity and location,

due process requires it to obtain personal service on him. See id. Due process

requires personal service in those situations because a “parental rights termination

proceeding encumbers a value far more precious than any property right . . . .” Id.

at 555. To fail to obtain personal service when the Department knows the location

of a mother is “poor, hopeless, and unjustif[ied] . . . .” Id. The same holds true for a

known, alleged father that the mother has identified and that the Department knows

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the location of. The Department does not identify any reason, nor can we, that

personal service should not be attempted in this situation.

Although In re E.R. addressed a mother who did not receive personal

service, the Court indicated that its reasoning applies to both mothers and fathers.

The Court cited with approval a case from the Iowa Supreme Court that held that a

father must be personally served before his parental rights can be terminated. See

385 S.W.3d 552, 565 (Tex. 2012) (discussing In re S.P., 672 N.W.2d 842, 848

(Iowa 2003)). Thus, the reasoning of In re E.R. applies to both mothers and fathers.

The Department knew of Smith’s identity and address at least one month

before the termination hearing. Thus, due process requires that the Department

obtain personal service on Smith. See In re E.R., 385 S.W.3d at 555. There is no

evidence that Smith was served notice of the hearing to terminate his parental

rights.

The Department also argues that, to the extent it was required to serve

Smith, due process is satisfied because it did so through publication. The Family

Code authorizes service of citation by publication to “persons whose names are

unknown” or to an alleged father whose last name is unknown. TEX. FAM. CODE

ANN. § 102.010(a) (West 2014); Id. § 102.010(e). But the Department knew

Smith’s full name and address about one month before the hearing on terminating

8

his parental rights; therefore, service by publication was not adequate.6 See In re

E.R., 385 S.W.3d at 555 (service by publication of mother did not satisfy due

process).

Because Smith was not served the Department’s petition to terminate his

parental rights in violation of his constitutional due-process right, we reverse the

trial court’s judgment.7

Conclusion

We affirm the trial court’s judgment with respect to the mother, reverse the

trial court’s judgment terminating the father’s parental rights, and remand for a

new trial with respect to the father.

6

The trial court’s fact findings state that Smith either “waived service of process”

or was “served with citation in this suit . . . .” We cannot accept a trial court’s fact

findings, however, if no evidence exists to support that finding. Fulgham v.

Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.); Chitsey v. Pat

Winston Interior Design, Inc., 558 S.W.2d 579, 581 (Tex. App.—Austin 1977, no

writ). Although a court-appointed ad litem attorney for “alleged fathers” appeared

at the termination hearing and did not object, his presence cannot act as a waiver

of Smith’s due process right to notice because “[t]he due process right to notice

. . . . must be voluntary, knowing, and intelligently waived” and must be provided

“in a meaningful matter.” In re K.M.L., 443 S.W.3d 101, 119 (Tex. 2014).

7

Because we hold that the Family Code provision does not apply and Smith’s due-

process right was violated absent proper service, we do not determine whether the

Family Code provision is unconstitutional or whether Smith was required to notify

the attorney general of his constitutional challenge. Nor do we reach the issue of

whether Smith’s court-appointed ad litem attorney provided effective assistance of

counsel.

9

Harvey Brown

Justice

Panel consists of Justices Bland, Brown, and Lloyd.

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