In re Of

IN THE INTEREST OF C.T.H. AND H.V.H., CHILDREN

No. 05-16-01398-CV

Court of Appeals Fifth District of Texas at Dallas

June 7, 2018

On Appeal from the 302nd Judicial District Court Dallas County, Texas

Trial Court Cause No. DF-14-07021

MEMORANDUM OPINION

Before Justices Lang-Miers, Fillmore, and Stoddart

Opinion by Justice Stoddart

This is an appeal from an order granting a plea to the jurisdiction and dismissing the intervention of the purported biological father of C.T.H. in this divorce proceeding. The day after C.T.H. was born, his mother and her eventual husband signed an acknowledgment of paternity and filed it with the bureau of vital statistics. Family code section 160.308(c) provides: "Notwithstanding any other provision of this chapter, a collateral attack on an acknowledgment of paternity signed under this chapter may not be maintained after the issuance of an order affecting the child identified in the acknowledgment, including an order relating to support of the child." TEX. FAM. CODE ANN. § 160.308(c). The question in this appeal is whether an order granting a bill of review and vacating an order terminating the acknowledged father's parental rights to the child is an order affecting the child identified in the acknowledgment. We conclude that it is. We dismiss the appeal of one party and affirm the trial court's order.

BACKGROUND

The parties to this appeal are appellants Grandmother, Mother, and Jared,¹ intervenor and claimed biological father of C.T.H., and appellee Matthew, who signed an acknowledgment of paternity for C.T.H., married Mother after C.T.H. was born, and is the counter-petitioner in this divorce proceeding.

Mother and Matthew began dating in October 2008 while they were attending college. In January 2009, Mother told Matthew she was pregnant. Matthew proposed and the couple were engaged to be married. C.T.H.² was born on August 1, 2009. Matthew was in the delivery room for the birth. Mother and Matthew executed an acknowledgment of paternity identifying Matthew as the biological father of C.T.H. on August 2, 2009. Matthew testified the acknowledgment was filed with the State of Texas. After the birth of C.T.H., Mother lived with her parents in Coppell while Matthew returned to college.

In October 2009, Mother told Matthew she was concerned her parents would seek a financial contribution from him for C.T.H.'s medical expenses.³ Mother told Matthew that if he signed a waiver of interest in C.T.H., her parents would be unable to seek money from him and they could use the money when they married. Believing he would live with Mother and C.T.H. after he graduated from college, Matthew signed an affidavit of waiver of interest in C.T.H.

On November 10, 2009, Mother filed a petition to terminate parent-child relationship against Matthew in cause number 09-20238 in the 254th District Court of Dallas County (the SAPCR). Based on the waiver of interest in C.T.H., the trial court signed an agreed order oftermination on November 24, 2009 (the Termination Order). In March 2010, Mother broke their engagement and ended her relationship with Matthew.

Believing he had been deceived into signing the waiver of interest, Matthew filed a petition for bill of review regarding the Termination Order on September 29, 2010 in cause number 10-17191 in the 254th District Court. Matthew alleged that Mother obtained the waiver of interest and order of termination by extrinsic fraud and sought to vacate the Termination Order. Mother filed a plea to the jurisdiction and argued the bill of review was not timely under family code section 161.211(a) because it was not filed within six months of the signing of the Termination Order. TEX. FAM. CODE ANN. § 161.211(a). The trial court granted the plea and dismissed the bill of review proceeding on July 30, 2011. Matthew appealed that decision to this Court.

While the appeal was pending, Grandmother filed a petition in the SAPCR seeking custody of C.T.H. Grandmother alleged that Matthew was the biological father of C.T.H., but his parental rights had been terminated by the Termination Order in the SAPCR. Grandmother also alleged Mother was a danger to C.T.H. The trial court determined that Grandmother had standing in the SAPCR under section 102.003(a)(9) as a person who had actual care, control, and possession of the child for at least six months ending not more than 90 days before the filing of the petition. TEX. FAM. CODE ANN. § 102.003(a)(9). As a result, the trial court on July 25, 2012, denied Mother's motion to dismiss Grandmother's petition in the SAPCR.

In the bill of review proceeding, this Court affirmed the order dismissing Matthew's bill of review in In re C.T.C., 365 S.W.3d 853 (Tex. App.—Dallas 2012, pet. granted, judgm't vacated w.r.m.).⁴ While Matthew's petition for review was pending, the supreme court decided In re E.R., 385 S.W.3d 552 (Tex. 2012) and concluded that the strict time limit to challenge a termination order could not override a parent's right to constitutionally adequate notice of the proceeding. Id.at 555. Around the time of that decision, Mother and Matthew became engaged a second time in June 2012. On July 30, 2012, pursuant to an agreement between Mother and Matthew, the trial court signed an agreed order granting bill of review and vacating the agreed order of termination. The supreme court then granted the parties' agreed motion to dismiss, vacated the judgments of this Court and the trial court without regard to the merits, and remanded the bill of review case to the trial court for rendition of judgment pursuant to the parties' agreement. See TEX. R. APP. P. 56.3. The supreme court's mandate issued on September 27, 2012.

Mother and Matthew were married on August 30, 2012. Then, on October 29, 2012, and pursuant to the supreme court's mandate, the trial court in cause number 10-17191 granted Matthew's bill of review (the Bill of Review Order). In the Bill of Review Order, the trial court vacated the Termination Order and found "that reestablishing the parent-child relationship between Petitioner MATTHEW [] and the subject child is in the best interest of the subject child."

On November 27, 2012, Grandmother, her husband, Mother, and Matthew entered into a mediated settlement agreement (MSA) in the SAPCR. The MSA states in part that Mother and Matthew "are married and are the biological parents of [C.T.H.] and both have parental rights."

Mother became pregnant with Matthew's child, H.V.H., who was born on April 27, 2013. Afterwards, Mother and Matthew filed a motion to change the name of C.T.H. in the SAPCR. The trial court signed an order changing C.T.H.'s name on June 28, 2013 (the Name Change Order).

However, by the spring of 2014, the marriage had become unsupportable and Mother filed for divorce in cause number 14-07021 on April 11, 2014. Matthew filed a counter-petition for divorce on May 8, 2014. The parties agreed to consolidate the SAPCR regarding C.T.H. with the divorce proceeding and an order was signed on July 31, 2014.

On September 11, 2014, Grandmother filed an amended petition in intervention in the divorce case. She requested to be appointed joint managing conservator with Mother over thechildren and that Matthew not be appointed as a conservator for C.T.H. She alleged that although Matthew was the adjudicated father of C.T.H., he was not the biological father and that Jared was the probable biological father of C.T.H. On November 12, 2014, Jared sent a letter to the trial court stating he recently learned he was the biological father of C.T.H. and asked to participate in the suit.

Jared filed a pro se petition to intervene in the divorce proceeding on May 27, 2015. He alleged he was the biological father of C.T.H. and attached a DNA test report showing his paternity. The next day, Matthew filed a plea to the jurisdiction and argued the trial court did not have jurisdiction over Jared's petition to intervene because Jared did not have standing under section 160.308(c), which precludes collateral attacks on acknowledgments of paternity after entry of an order affecting the child identified in the acknowledgment. See TEX. FAM. CODE ANN. § 160.308(c). Matthew argued that the Bill of Review Order and the Name Change Order were orders affecting the child identified in the acknowledgment and were issued before Jared's intervention. Therefore, he asserted, Jared could not collaterally attack the acknowledgment. Jared did not file a response to the plea or attend the hearing. However, Grandmother and Mother filed responses in support of the intervention and requested the court deny the plea. After hearing the arguments of counsel, a visiting judge denied the plea to the jurisdiction.

Matthew filed a motion to reconsider the ruling on October 13, 2015. Jared did not file a response to the motion or attend the evidentiary hearing which followed. Grandmother filed a response and presented evidence and argument at the hearing. Mother appeared and testified at the hearing. The trial court granted the motion to reconsider and the plea to the jurisdiction. On October 28, 2016, after a bench trial on the remaining issues in the case, the trial court dismissed Jared's intervention and signed the final divorce decree. The final divorce decree appointed Matthew and Mother as joint managing conservators of C.T.H. and H.V.H., established terms forpossession of the children by Matthew and Mother, ordered Matthew to pay child support, and required Grandmother to provide secondary health insurance for the children. The trial court later signed findings of fact and conclusions of law regarding the order granting the motion to reconsider the plea to the jurisdiction.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that challenges the trial court's subject matter jurisdiction without regard to the merits of the claims asserted. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the trial court's ruling on a...