In re E.R.

385 S.W.3d 552

55 Tex. Sup. Ct. J. 1130

In the Interest of E.R., J.B., E.G., and C.L., Children.

No. 11–0282.

Supreme Court of Texas.

Argued Feb. 28, 2012.

Decided July 6, 2012.

Concurring Opinion Aug. 31, 2012.

Prior Version Recognized as Unconstitutional

V.T.C.A., Family Code § 263.405Jeremy C. Martin, Malouf & Nockels LLP, Georganna L. Simpson, Georganna L. Simpson, P.C., Dallas, TX, for E.R.

Craig M. Watkins, Dallas County District Attorney, Michael R. Casillas, Kimberly Joy Duncan, Dallas County District Attorney's Office, Michael Chad Kotwal, Henry Wade Juvenile Justice Center, Dallas, TX, for State of Texas.

Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Arthur Cleveland D'Andrea, Assistant Solicitor General, for Amicus Curiae Solicitor General of Texas.

Chief Justice JEFFERSON delivered the opinion of the Court.

When the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures. ¹ The most basic of these is notice. If the State cannot deliver notice in person, it may try other means that will likely reach the parent. ² We consider today whether serving the parent in a newspaper advertisement, “a poor and sometimes a hopeless substitute for actual service,” ³ is constitutionally acceptable when the State knew the mother's identity, was in regular contact with her, and had at least one in-person meeting with her after it sued to terminate the legal rights to her children. We conclude that the substituted service was poor, hopeless, and unjustifiable under these circumstances.

But that does not end our inquiry. A parental rights termination proceeding encumbers a value “far more precious than any property right” ⁴ and is consequently governed by special rules.⁵ We are faced not with the ordinary dispute about how to allocate money in a contract or tort action. We must decide how to reconcile a parent's desire to raise her child with the State's responsibility to promote the child's best interest. The Legislature and our courts have labored to ensure that proceedings to terminate a parent's legal relationship to her child are handled efficiently. To promote permanency in child rearing at the earliest stage possible, the Legislature has enacted a strict six-month deadline to challenge a termination judgment following citation by publication.⁶ For reasons we explain below, that strict time limit cannot foreclose a challenge when the parent has no constitutionally adequate notice of the proceeding. On the other hand, because a parent must remain vigilant with respect to her child's welfare, and because courts must always consider the child's best interest, a parent who learns about a judgment terminating the bonds to her child must act diligently to restore that right.

We reverse the court of appeals' judgment affirming the termination of parental rights. We remand the case to the trial court to determine whether the mother unreasonably failed to act after knowing that a final judgment had taken away her children, and if so, whether granting relief would impair another person's substantial interest in reliance on that judgment.

I. Background

Several months after removing L.R.'s four children from her home and becoming their temporary managing conservator, the Department of Family Protective Services petitioned the trial court to terminate L.R.'s parental rights. After an unsuccessful attempt at personal service, the Department decided to serve L.R. by publication. Felicia Chidozie, the caseworker, prepared an affidavit summarizing her attempts to locate L.R. Although she had L.R.'s phone number, Chidozie said that L.R. told her that she was in the process of moving and did not have a permanent address. Chidozie ran a background check through IMPACT, which confirmed the address Chidozie already possessed. Chidozie also checked a website, www. anywho. com, and found no listing. Chidozie's call to the Texas Vine System was fruitless, and the Salvation Army refused on confidentiality grounds to answer her query. Chidozie faxed TXU Electric, Missing Person's Clearinghouse, Voter Registration, and Adult Probation, but received no responses in the two days between sending the faxes and filing her affidavit stating that L.R. could not be located. Finally, Chidozie called the “motor vehicle Tax Roles” but was told that it could locate information only from property or motor vehicle numbers. Based on this affidavit, the trial court authorized service by publication.

The Department published the citation,⁷ and the trial court conducted a final hearing. L.R. did not appear. The hearing transcript spans twelve double-spaced pages. Two witnesses testified: Chidozie and Erica Finley, the children's guardian and “aunt.” ⁸ Chidozie testified that she searched diligently for L.R. and signed an affidavit chronicling her efforts. She stated that L.R. had visited the children at the Department's offices a month before the termination hearing.⁹ Chidozie said that L.R. gave her a phone number but would not provide an address. Chidozie contacted L.R. at that phone number and gave her information about court hearings. Chidozie testified that L.R. attended the hearings, but was tardy each time. Chidozie said L.R. had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being. According to Chidozie, the children were physically abused, and L.R. tested positive for methamphetamine when she gave birth to her youngest child. Chidozie testified that the children were doing well in Finley's home and that termination would be in their best interest. She stated that the Department's plan was to be named the permanent managing conservator and for the children to be adopted.

Finley testified that the children had been living with her for approximately six months, that they were happy, and that she planned to adopt them. Joe Rosenfield, the children's guardian ad litem, stated that Finley wanted the children, and they were doing well under her care. He opined that termination would be in the children's best interest.

Brenda Hull Thompson, who appeared as “publication attorney,” ¹⁰ stated that L.R. was served by publication and that publication was “ripe” on October 15, 2007. Thompson apparently never met with L.R. and learned for the first time at the hearing that L.R. had personally visited the children at the Department's offices. Thompson made no other statements about L.R., nor did she opine that termination would be in the children's best interest. The trial court terminated L.R.'s parental rights as well as those of the putative fathers, and it appointed the Department permanent managing conservator.

L.R. moved for a new trial within two years of the judgment. SeeTex.R. Civ. P. 329(a) (authorizing trial court to grant motion for new trial filed within two years of judgment, if judgment rendered on service by publication and defendant did not appear in person or by attorney of her own selection). She complained that service by publication was obtained by fraud and was invalid because, among other things, she had been in regular, personal contact with Chidozie and visited the children at the Department offices during the time the Department was attempting to serve her. L.R. denied ever telling Chidozie that she did not have an address at which she could be served; instead, she asserted that she told Chidozie she did not have an address separate from her mother's, which Chidozie already had. L.R. also challenged Chidozie's affidavit.

The Department argued that L.R.'s motion was untimely because it was filed beyond Rule 329's two-year deadline.¹¹ Chidozie disputed L.R.'s characterization of their conversation about her address, but Chidozie admitted that she met with L.R. in the Department's offices for a prescheduled meeting in August 2007. The Department did not cite the Family Code's six-month deadline for attacking termination decrees.¹² The trial court denied the motion, and L.R. appealed.

In her appellate brief, L.R. included a footnote citing Family Code section 161.211 but argued that the matter was an affirmative defense that the Department waived by failing to raise it in the trial court, citing In re Bullock, 146 S.W.3d 783, 790–91 (Tex.App.—Beaumont 2004, no pet.). The Department's brief cited the same case and agreed that “[t]he six-month limitation in section 161.211 is an affirmative defense, which is waived if not presented to the trial court.... If the State's argument regarding the timeliness of the motion was not sufficient to invoke the six-month limitation in section 161.211, appellant's November 16, 2009 motion for new trial was timely under rule 329(a)....”

Three months after briefing had been completed, the Department filed an amended brief, now arguing that section 161.211 absolutely barred challenges made more than six months after the order was signed, and that the court of appeals should not reach the merits because L.R.'s motion was untimely.

A divided court of appeals agreed. 335 S.W.3d 816. The court held that section 161.211's six-month deadline was dispositive: “The mandatory language of family code section 161.211 leaves no room for a construction other than a requirement that any collateral or direct attack on the termination of parental rights, including a motion for new trial, be filed no more than six months after the termination order is signed.” Id. at 820. Because L.R.'s challenge was not filed within that period, it was barred. The court of appeals held that L.R. had not raised a constitutional challenge and thus had not preserved or presented the issue for review. Id. at 823.

The dissent concluded that the six-month deadline applied only to people who were validly served by publication. Id. at 827 (Murphy, J., dissenting). Because service on L.R. was invalid, the deadline was inapplicable:

While I...