In re C.T.C.

365 S.W.3d 853

In re C.T.C., a Minor Child.

No. 05–11–01133–CV.

Court of Appeals of Texas, Dallas.

April 30, 2012.

Jeremy C. Martin, Malouf & Nockels, LLP, Georganna L. Simpson, Simpson Martin, LLP, Dallas, TX, for Appellant.

Rebecca Ann Tillery, Kevin R. Fuller, Ashley Watkins McDowell, KoonsFuller, P.C., Dallas, TX, for Appellee.

Before Justices BRIDGES, LANG, and FILLMORE.

OPINION

Opinion By Justice LANG.

Appellant (“Father”) filed a petition for bill of review challenging the termination of his parental rights respecting C.T.C., a minor.¹ The trial court dismissed Father's petition for bill of review for lack of jurisdiction based on Texas Family Code section 161.211(a). SeeTex. Fam.Code Ann. § 161.211(a) (West 2008). In three issues on appeal, Father contends (1) the six-month bar to attacks on termination orders in section 161.211(a) “presumes a valid, i.e., voluntary, affidavit of waiver of interest in a child”; (2) if the six-month bar in section 161.211(a) is jurisdictional, that statute is unconstitutional as applied to Father; and (3) section 161.211(a) is “more akin to a limitations-related affirmative defense such that dismissal for want of jurisdiction is improper.” For the reasons below, we affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to Father's original and supplemental petitions for bill of review, Father and appellee (“Mother”) met in August 2008 while attending college in Bryan–College Station and began dating. In January 2009, Mother told Father she was pregnant with Father's child. Father proposed to Mother in February 2009, and she agreed to marry him. Later that month, Mother moved into her parents' home in Coppell.

On August 1, 2009, Mother gave birth to C.T.C. Father signed an acknowledgment of paternity regarding C.T.C. on August 3, 2009. Following the birth of C.T.C., Mother continued to live with her parents in Coppell.

Father asserted that in fall 2009, Mother visited him in Bryan–College Station and told him that she had overheard her parents discussing the possibility of pursuing a $10,000 contribution from Father toward the medical expenses relating to C.T.C.'s birth. According to Father, Mother urged him to “sign over” his parental rights to C.T.C. to Mother so that her parents would be “barred” from seeking any recovery from Father and he and Mother “could save the money to begin their life together as a family.”

On October 10, 2009, Father executed an affidavit of waiver of interest in C.T.C. Based on that waiver of interest, Mother filed a petition to terminate the parent-child relationship on November 10, 2009. On November 14, 2009, Father executed a waiver of service of citation as to the termination proceeding. Finally, Father, Mother, and the trial court signed an “Agreed Order of Termination” dated November 24, 2009, terminating Father's parental rights. Father contended he executed the waiver of interest and agreed order of termination “based on [Mother's] representations to him that they would be married and raise C.T.C. together as a family following [Father's] graduation from college.”

According to Father, on March 7, 2010, Mother “broke off the engagement” and ended their relationship. In Father's supplemental petition, he stated that “on or about April 14, 2010,” he realized that there would be no reconciliation and that Mother was not going to allow him to have “a relationship” with his son. Father contacted counsel in April 2010.²

Father filed his original petition for bill of review on September 29, 2010, challenging the agreed termination order based on “extrinsic fraud” by Mother. Mother filed, in relevant part, a timely answer, a general denial, and a plea to the jurisdiction. In her plea to the jurisdiction, Mother contended section 161.211(a) requires any attack on an order terminating parental rights to be filed no later than six months after the order was signed. Mother argued the bill of review should be dismissed because section 161.211(a) bars Father's attack on the agreed termination order in that Father filed his bill of review more than six months after the date that order was signed. Additionally, Mother filed a separate motion to dismiss based on Father's failure to comply with the six-month time limit in section 161.211(a). ³

During the hearing on Mother's plea to the jurisdiction and motion to dismiss, the trial court took judicial notice of the following evidence: (1) Father's October 10, 2009 affidavit of waiver of interest; (2) Father's November 14, 2009 waiver of service of citation; (3) the November 24, 2009 agreed order of termination; and (4) Father's September 29, 2010 original petition for bill of review. Father argued in relevant part at the hearing (1) section 161.211(a)'s “six-month window for filing to overturn a termination order” is an affirmative defense rather than a jurisdictional prerequisite; (2) Father's signing of the agreed order of termination was not “voluntary”; and (3) application of section 161.211(a)'s “rigid six-month rule” in this case “is not due process” and is “an unfair taking of a constitutional right of a parent.” Mother asserted (1) In re E.R., 335 S.W.3d 816 (Tex.App.-Dallas 2011, pet. granted), established that the six-month time limit in section 161.211(a) is a jurisdictional bar; (2) the legislature did not intend to exempt attacks based on fraud from the six-month time limit in section 161.211(a); (3) Father has not asserted “what constitutional rights were violated”; and (4) there was no constitutional violation in this case because Father had notice and an opportunity to be heard.

Following the trial court's dismissal of Father's petition for bill of review for want of jurisdiction, this appeal was timely filed.

II. DISMISSAL FOR WANT OF JURISDICTION

A. Standard of Review

A plea to the jurisdiction challenges a trial court's subject matter jurisdiction. See, e.g., City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex.2010) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999)). Whether a court has subject matter jurisdiction is a question of law that we review de novo. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004)); see also In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.-Austin 2007, no pet.) (motion to dismiss based on lack of subject matter jurisdiction is functional equivalent of plea to jurisdiction and is reviewed de novo). We accept the allegations in the petition as true and construe them in favor of the pleader. See In re A.M., 312 S.W.3d 76, 81 (Tex.App.-San Antonio 2010, pet. denied). Further, we may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)).

Additionally, statutory construction and the constitutionality of a statute are legal questions and are reviewed de novo. See, e.g., F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007) (statutory construction); In re C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied) (constitutionality of statute).

B. Applicable Law

Section 161.211 of the Texas Family Code provides

(a) 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.

(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.

(c) A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.

Tex. Fam.Code Ann. § 161.211.

An individual who challenges the constitutionality of a statute bears the burden to establish its unconstitutionality. See, e.g., In re D.J.R., 319 S.W.3d 759, 765 (Tex.App.-El Paso 2010, pet. denied). A claim that a statute is unconstitutional as applied is a claim that the statute, although generally constitutional, operates unconstitutionally as to the claimant. Id.An as-applied challenger is required only to demonstrate that the statute operates unconstitutionally when applied to his particular circumstances. Id.

“Courts are to presume that a statute is constitutional and should not reach a constitutional issue unless absolutely required.” In re C.M.D., 287 S.W.3d 510, 515 (Tex.App.-Houston [14th Dist.] 2009, no pet.); accord In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003). Further, courts should decide constitutional issues narrowly based on the precise facts of the case, not speculative or hypothetical injuries. See In re C.M.D., 287 S.W.3d at 515. We need not reach the constitutionality of a statute where there is no showing the operation of the challenged statute harmed the appellant. See In re D.J.R., 319 S.W.3d at 765–66;Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 620, 625 (Tex.App.-Houston [1st Dist.] 2009, pet. denied);see also In re H.N.J., No. 10–10–00365–CV, 2011 WL 2937473, at *1 (Tex.App.-Waco July 13, 2011, no pet.) (mem. op.); In re K.J.T.M., No. 06–09–00104–CV, 2010 WL 1664027, at *6 (Tex.App.-Texarkana Apr. 26, 2010, no pet.) (mem. op.).

C. Analysis

We begin by addressing together Father's first and third issues. In his first issue, Father contends “it was the intent of the legislature in enacting [...