Date: 08-13-2022

Case Style:

Jaime Ramirez Guardia and Andrea Martinez- Flores v. Department of Family and Protective Services

Case Number: 01-21-00069-CV

Judge: Amparo Guerra

Court:

Court of Appeals For The First District of Texas

On appeal from The 313th District Court Harris County, Texas

Plaintiff's Attorney:

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Defendant's Attorney: Michael R. Hull

Description:

Houston, TX – Family Law lawyer represented defendant with filing a petition for bill of review to restore their parental rights.

The children who are the subject of this appeal are half-siblings J.C. and E.C.1
Jaime is the biological father of both children, and Andrea is the biological mother
of only E.C.2
In June 2016, DFPS removed J.C. from appellants’ care after he
sustained physical injuries consistent with abuse or neglect, including extensive
bruising and fractured or broken bones. DFPS removed E.C. from the home a few
weeks later because of the concerns about J.C.’s injuries. After some time in
unrelated foster care placements, DFPS placed the children together in A.C.’s home.
DFPS petitioned to terminate appellants’ parental rights to J.C. and E.C. The
first termination trial ended in a mistrial. In the second termination trial, appellants
both executed affidavits relinquishing their parental rights. Based on appellants’
1 For the purposes of this opinion, we refer to the children using their post-adoption
initials “J.C.” and “E.C.”
2 The parental rights of J.C.’s mother were previously terminated.
3
affidavits and its own best-interest findings, the trial court signed final orders
terminating appellants’ parental rights in June 2018 (“termination orders”). The trial
court granted DFPS managing conservatorship of the children. Appellants did not
appeal the termination orders.
The next month, competing petitions to modify the conservatorship and adopt
the children were filed by A.C. and the children’s paternal relatives in Panama. After
more than a year of litigation, including a lengthy trial on conservatorship, the trial
court signed orders on (1) August 1, 2019, naming A.C. the children’s possessory
conservator (“conservatorship order”), and (2) November 22, 2019, certifying
A.C.’s adoption of the children (“adoption orders”). Appellants did not appeal from
the conservatorship or adoption orders.
On January 30, 2020, appellants filed a bill of review seeking to restore their
parental rights on the ground that their affidavits relinquishing those rights were
procured by fraud. Specifically, they alleged they were induced to execute the
affidavits relinquishing their parental rights by the then-presiding judge’s promise
to place the children with paternal relatives in Panama. Appellants claimed they were
unaware the judge had “reneged” on his promise until after the time for appealing
the termination orders expired. According to appellants:
The deadline to appeal the [termination orders] was July 2, 2018. The
children were scheduled to leave to Panama on July 27, 2018 and on
July 26, 2018[,] [the presiding judge] ordered ‘no movement’ of the
4
children from their foster home—no less then [sic] 24 hours from their
scheduled flight.[3
]
The bill-of-review petition specifically asked the trial court to set aside the
termination and conservatorship orders but did not expressly make the same request
as to the adoption orders. In their prayer for relief, however, appellants requested
restoration of their parental rights, the return of the children, and the extinguishment
of A.C.’s or DFPS’s “legal rights or access to the children[.]”
Appellants attached affidavits to the bill-of-review petition—one each from
Jaime and Andrea, one each from the counsel who represented them in the
termination proceedings, and one from Ambassador Juan B. Sosa of the Panamanian
Consulate in Houston—that were consistent with the pleaded factual allegations.
The affidavits of counsel stated they were present when the presiding judge
“promised [their] client[s] . . . that if they agreed to relinquish their parental rights
to their children then the children would be placed with their paternal aunt . . . in
Panama.” Appellants’ own affidavits added that they were ready to proceed to trial
on DFPS’s petition to terminate their parental rights and would not have relinquished
their parental rights had they known that the children would not be sent to Panama.
Ambassador Sosa’s affidavit indicated his support for appellants’ efforts to place the
children in Panama. He averred that he attended a hearing at which the presiding
3 The no-movement order does not appear in the appellate record, but neither A.C.
nor DFPS disputes the trial court issued the order on July 26, 2018.
5
judge established a “quid-pro-quo:” Jaime would agree to “surrender” and “stay
away” from the children and the judge would send the children to Panama.
According to Sosa:
Arrangements were made to get passports for the children, buy plane
tickets and implement the judge’s decision. The process took longer
than necessary and it was obvious that someone was delaying the
process, in an effort to void the fateful decision of [J.C.] and [E.C.]
leaving the United States for Panama.
When the foster parent introduced a request for adoption, it became
clear that the promise that [the presiding judge] . . . made of sending the
children to Panama in return of [Jaime’s] renunciation, was in danger
of being nullified.
A.C. answered appellants’ bill-of-review petition, generally denying the
allegations and alleging the statute of limitations and laches as affirmative defenses.
In addition, she filed a combined motion to dismiss and motion for summary
judgment. In her motion to dismiss, A.C. argued that appellants’ failure to file the
bill-of-review petition within the six-month deadline provided in Section 161.211(a)
of the Family Code deprived the trial court of subject-matter jurisdiction. See TEX.
FAM. CODE § 161.211(a) (providing “validity of an order terminating the parental
rights of a person . . . who has executed an affidavit of relinquishment of parental
rights . . . is not subject to collateral or direct attack after the sixth month after the
date the order was signed.”). She also challenged appellants’ standing to collaterally
attack the conservatorship order following the termination of their parental rights.
Finally, A.C. argued in her summary-judgment motion that appellants’ challenge to
6
the termination orders was barred, as a matter of law, by limitations and laches and
because the evidence conclusively established appellants knew any promise to place
the children in Panama was unfulfilled before the bill-of-review deadline expired.
The appellate record suggests that DFPS also answered and moved to dismiss
the bill-of-review petition for lack of subject-matter jurisdiction. Although the
appellate record does not contain copies of these pleadings, appellants’ response to
DFPS’s dismissal motion, which is included in the appellate record, indicates DFPS
also sought dismissal on the ground that the bill-of-review petition was untimely
under the Family Code.
The trial court entered an order dismissing appellants’ bill of review and
granting (1) A.C.’s motion to dismiss, (2) A.C.’s motion for summary judgment, and
(3) DFPS’s motion to dismiss. This appeal followed.
Family Code Section 161.211
Appellants contend the trial court erred by dismissing their petition for bill of
review seeking restoration of their parental rights as untimely under Section
161.211(a) of the Family Code. Appellants complain that (1) Section 161.211(a)
cannot be interpreted as time-barring their petition, and (2) even if it could, we are
constitutionally barred from enforcing any temporal limitation on their fraud-based
attack on the termination orders.
7
A. Timeliness
“A bill of review is an equitable proceeding, brought by a party seeking to set
aside a prior judgment that is no longer subject to challenge by a motion for new
trial or a direct appeal.” Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d
160, 163 (Tex. 2015) (quotation omitted). Such “[c]ollateral attacks on final
judgments are generally impermissible because it is the policy of the law to give
finality to the judgments of the courts.” In re D.S., 602 S.W.3d 504, 512 (Tex. 2020)
(quotation omitted). The Texas Supreme Court has admonished that finality of
judgments “is uniquely important in family law matters, especially parentaltermination proceedings”:
The private interest affected in [parental termination proceedings] is
commanding for all litigants involved. Indeed, [f]ew judgments have
more substantial future ramifications than those affecting parentage.
Like their parents, children have a compelling interest in finality and
stability. As we have long acknowledged, children’s lives cannot be
kept in limbo while judicial processes crawl forward[.]
Id. at 512–13 (quotations and citations omitted).
When parents have chosen to relinquish their rights to a child, the Family
Code limits the time and grounds for collateral or direct attacks on the order
terminating their parental rights. See TEX. FAM. CODE § 161.211(a), (c). Section
161.211 provides:
(a) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the
validity of an order terminating the parental rights of a person . . . who
has executed an affidavit of relinquishment of parental rights . . . is not
8
subject to collateral or direct attack after the sixth month after the date
the order was signed.[4
]
. . .
(c) A direct or collateral attack on an order terminating parental rights
based on an unrevoked affidavit of relinquishment of parental
rights . . . is limited to issues relating to fraud, duress, or coercion in the
execution of the affidavit.
Id.; see In re C.R.P., 192 S.W.3d 823, 825 (Tex. App.—Fort Worth 2006, no pet.)
(citing Section 161.211(a) for principle that “[t]he validity of an order terminating a
person’s parental rights under an affidavit of relinquishment of parental rights is not
subject to collateral or direct attack after the sixth month after the date the order was
signed” (emphasis in original)).
It is undisputed that appellants executed affidavits relinquishing their parental
rights to J.C. and E.C. Appellants argue their affidavits were void because they were
induced by the trial court’s misrepresentation that the children would be placed with
Panamanian relatives, which amounts to an assertion of fraud. Even though
appellants raise the type of challenge permissible under Section 161.211(c) in a
collateral or direct attack on a termination order, their argument rests upon a critical
4 There is disagreement in the case law as to whether the six-month deadline in
Section 161.211(a) is a jurisdictional bar or is in the nature of a limitations period
that must be pleaded as an affirmative defense. See, e.g., In re E.R., 385 S.W.3d
552, 567 n.27 (Tex. 2012). We need not resolve the disagreement here because A.C.
raised both grounds in the trial court, pleading an affirmative defense of
“limitations” and moving to dismiss appellants’ action for want of jurisdiction.
9
assumption—that they can still litigate the issue of whether their affidavits of
relinquishment were induced by fraud. We conclude they cannot.
Resolution of this issue turns on statutory construction, which presents a
question of law that we review de novo. See Tex. W. Oaks Hosp., L.P. v. Williams,
371 S.W.3d 171, 177 (Tex. 2012). When construing a statute, our primary objective
is to ascertain and give effect to the Legislature’s intent. TGS-NOPEC Geophysical
Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “To discern that intent, we begin
with the statute’s words.” Id. “Where text is clear, text is determinative of
[legislative] intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
(Tex. 2009). The words cannot be examined in isolation but must be informed by
the context in which they are used. TGS-NOPEC Geophysical, 340 S.W.3d at 441.
We rely on the plain meaning of the words, unless a different meaning is supplied
by legislative definition or is apparent from the context, or unless such a construction
leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26
(Tex. 2008); see also TEX. GOV’T CODE § 311.011 (“Words and phrases shall be
read in context and construed according to the rules of grammar and common
usage,” but “[w]ords and phrases that have acquired a technical or particular
meaning, whether by legislative definition or otherwise, shall be construed
accordingly.”). We further presume the Legislature chooses statutory language with
10
care, including each word chosen for a purpose, while purposefully omitting words
not chosen. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).
Interpreting subsections (a) and (c) of Section 161.211, the Austin Court of
Appeals has concluded that because “both provisions constrain both ‘direct’ and
‘collateral’ attacks, without limitation or qualification,” the Legislature intended that
“subsections (a) and (c) have sweeping, all-encompassing breadth, applying to
complaints of everything from procedural errors to jurisdictional defects.” Moore v.
Brown, 408 S.W.3d 423, 435 (Tex. App.—Austin 2013, pet. denied). The Texas
Supreme Court agreed. In re D.S., 602 S.W.3d at 516 (expressly agreeing with
Moore court about “sweeping, all-encompassing breadth” of Section 161.211).
Considering the language of subsection (a) in particular, it bars any “collateral
or direct attack” on the “validity of an order terminating the parental rights of a
person . . . who has executed an affidavit of relinquishment of parental rights” “after
the sixth month after the date the order was signed.” TEX. FAM. CODE § 161.211(a).
Appellants’ petition for bill of review is a collateral attack on the “validity” of the
orders terminating their parental rights, and appellants are each a person “who has
executed an affidavit of relinquishment of parental rights.” The termination orders
in this case were signed on June 12, 2018, making December 12, 2018 the “sixth
month after [that] date.” See TEX. GOV’T CODE § 311.014(c) (when counting
“months” in codes, look to corresponding date in successive months). Because
11
appellants did not file their petition for bill of review until January 2020, it was
untimely under Section 161.211(a). See TEX. FAM. CODE § 161.211(a); see also
Moore, 408 S.W.3d at 436 (holding parents’ petition for bill of review challenging
termination and adoption orders, which was filed three days after the six-month
deadline in Section 161.211(a), was untimely); In re C.T.C., 365 S.W.3d 853, 858
(Tex. App.—Dallas 2012, pet. granted, jdgm’t vacated w.r.m.) (holding parent’s
petition for bill of review challenging termination order, which was filed four
months after end of the six-month deadline in Section 161.211(a), was untimely); In
re C.R.P., 192 S.W.3d at 825–26 (holding parent’s petition filed five years after
termination of parental rights was untimely under Section 161.211(a)).
Despite the plain language of Section 161.211(a) compelling a conclusion that
their bill of review petition was untimely, appellants urge that subsection (c) must
be interpreted as expanding or eliminating subsection (a)’s six-month deadline in
cases involving fraud, duress, or coercion. We find no support in the statutory
language for such an interpretation. Section 161.211(c) “plainly and unmistakably
limits collateral attacks” on orders terminating parental rights “to specific grounds.”
In re D.S., 602 S.W.3d at 516. None of the words chosen by the Legislature to restrict
the grounds a parent who has relinquished their parental rights may assert indicate
an intention to avoid the temporal limitation in subsection (a) when those specific
grounds are presented. To the contrary, the Texas Supreme Court has recognized
12
that the Section 161.211(c) limitation “quite reasonably precludes subsequent bites
at the apple that threaten finality in perpetuity.” Id. at 517. Given the Legislature’s
intention to constrain “subsequent bites at the apple,” we cannot reasonably construe
subsection (c) to expand indefinitely the time for such challenges. See id. at 516
(“The Legislature has the authority, within constitutional limits, to restrict postjudgment jurisdictional challenges via collateral attack, and we are not at liberty to
judicially expand the statute’s plain language.”); see also In re C.T.C., 365 S.W.3d
at 858 (assuming without deciding that record showed extrinsic fraud by mother in
securing father’s affidavit waiving interest in child, but disagreeing with father that
such fraud precluded application of Section 161.211(a)).
Absent a showing of a constitutional bar to Section 161.211(a)’s enforcement,
an issue we address below, we must give effect to the six-month deadline imposed
by the Legislature on appellants’ petition challenging the termination orders. See In
re D.S., 602 S.W.3d at 516.
B. Constitutionality
Appellants contend that Section 161.211(a)’s temporal limitation on their
fraud-based attack on the termination order deprives them of due process under the
United States and Texas Constitutions and the right to a jury trial under the Texas
13
Constitution.5 See U.S. CONST. amends. V, XIV; TEX. CONST. art. 1, §§ 15, 19.
Appellants have not met their burden to establish the unconstitutionality of Section
161.211(a).
1. Applicable law
We review questions raising constitutional concerns de novo. See State v.
Hodges, 92 S.W.3d 489, 494 (Tex. 2002); Johnson v. City of Fort Worth, 774
S.W.2d 653, 656 (Tex. 1989). When confronted with a challenge to the
constitutionality of a statute, we presume the statute is valid and that the Legislature
has not acted unreasonably or arbitrarily. See Methodist Healthcare Sys. of San
Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010); Adame v. 3M Co., 585
S.W.3d 127, 139 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The individual
challenging the statute has the burden to establish its unconstitutionality. Adame,
585 S.W.3d at 139.
5 Appellants also cite the Texas Constitution’s provisions for equal rights and equality
under the law. See TEX.CONST. art. 1, §§ 3, 3a. But they do not make any arguments
applying the legal principles in these provisions. Consequently, their brief does not
meet the minimum requirements for appellate review, and any argument that
Section 161.211 violates equal-rights or equality-under-the-law guarantees is
waived. See TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to “contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record”); see also Guimaraes v. Brann, 562 S.W.3d 521, 545
(Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“[A] brief that does not contain
citations to appropriate authorities and to the record for a given issue waives that
issue.”); Francis v. Davis, No. 01-19-00350-CV, 2021 WL 1375587, at *4 (Tex.
App.—Houston [1st Dist.] Apr. 13, 2021, no pet.) (mem. op.) (constitutional
complaints waived due to inadequate briefing).
14
A party may challenge a statute as being unconstitutional on its face or as
applied to that party. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518
n.16 (Tex. 1995); In re D.R.L., No. 01-15-00733-CV, 2016 WL 672664, at *9 (Tex.
App.—Houston [1st Dist.] Feb. 18, 2016, no pet.) (mem. op.). “[A] facial challenge
to a statute is the most difficult challenge to mount successfully because the
challenger must establish that no set of circumstances exists under which the statute
will be valid.” In re D.R.L., 2016 WL 672664, at *10 (quotation omitted). We
consider the statute as written, rather than as it operates in practice. FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). In contrast, an asapplied challenge concedes the statute is generally constitutional but claims it
operates unconstitutionally when applied to a particular person or set of
facts. Garcia, 893 S.W.2d at 518 n.16; 8100 N. Freeway, Ltd. v. City of Hous., 363
S.W.3d 849, 855 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
2. Analysis
Although appellants purport to challenge the constitutionality of Section
161.211(a) both on its face and as-applied, appellants have not argued that the statute
is invalid under all circumstances or otherwise applied the legal principles governing
a facial challenge to the constitutionality of a statute. Consequently, they have
waived their facial challenge, and we limit our analysis to the as-applied challenge.
See TEX.R.APP. P. 38.1(i) (requiring appellant’s brief to “contain a clear and concise
15
argument for the contentions made, with appropriate citations to authorities and to
the record”); see also Guimaraes, 562 S.W.3d at 545 (“[A] brief that does not contain
citations to appropriate authorities and to the record for a given issue waives that
issue.”); Francis, 2021 WL 1375587, at *4 (constitutional complaints waived due to
inadequate briefing).
On this record we cannot conclude that appellants satisfied their burden to
show they were harmed by Section 161.211(a)’s application. See, e.g., In re D.J.R.,
319 S.W.3d 759, 765 (Tex. App.—El Paso 2010, pet. denied) (refusing to consider
whether statute was unconstitutional violation of separation-of-powers clause
because appellant “wholly failed to show how he was harmed by its application to
his case”); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
620, 625 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (refusing to reach
constitutionality of statute under due-process and separation-of-powers clauses
absent showing that operation of challenged statute caused appellant harm). In
opposing the motions seeking dismissal of their petition under Section 162.211(a),
appellants did not present any evidence showing they could not have challenged the
termination orders within the time provided by the statute. As stated, the termination
orders were signed on June 12, 2018, giving appellants until December 12, 2018 to
attack the termination orders, either collaterally or directly. See TEX. PROP. CODE
§ 161.211(a); see also TEX. GOV’T CODE § 311.014(c). Although appellants pleaded
16
that they did not know the presiding judge had “reneged” on his promise to place the
children in Panama before the twenty-day deadline for a direct appeal expired, they
failed to show that they did not acquire that knowledge before the expiration of the
six-month deadline to collaterally attack the termination orders. The trial court
entered its order prohibiting the children from being moved out of A.C.’s home and
to Panama on July 26, 2018, well within the six-month period for challenging the
termination orders based on fraud. See TEX. FAM. CODE § 161.211(a), (c). In
addition, Ambassador Sosa stated in his affidavit supporting appellants’ petition that,
“[w]hen [A.C.] introduced a request for adoption, it became clear that the promise
that [the presiding judge] . . . made of sending the children to Panama . . . was in
danger of being nullified.” A.C. petitioned to adopt the children on July 22, 2018, a
date also within the six-month period for challenging the termination orders based
on fraud. See id. By failing to show that they could not make their fraud-based
challenge to the termination orders in the time provided by Section 161.211(a),
appellants have failed to demonstrate harm from the statute’s application. See, e.g.,
In re D.J.R., 319 S.W.3d at 765; Walker, 312 S.W.3d at 620, 625.
Having concluded both that appellants petition for bill of review was untimely
under Section 161.211(a) and that appellants failed to establish a constitutional bar
to the enforcement of Section 161.211(a), we hold the trial court did not err by
dismissing appellants’ petition under Section 161.211(a).
17
Standing
The extent to which appellants challenge the trial court’s conservatorship and
adoptions orders on appeal is unclear. We need not resolve the lack of clarity,
however, because appellants lack standing to challenge those orders.
A party’s standing to seek relief is a question of law, which we review de
novo. In re McDaniel, 408 S.W.3d 389, 397 (Tex. App.—Houston [1st Dist.] 2011,
no pet.). Section 161.206(b) of the Family Code provides that “an order terminating
the parent-child relationship divests the parent and the child of all legal rights and
duties with respect to each other, except that the child retains the right to inherit from
and through the parent unless the court otherwise provides.” TEX. FAM. CODE
§ 161.206(b); see also In re M.S., No. 02-21-00007-CV, 2021 WL 2654143, at *20
(Tex. App.—Fort Worth June 28, 2021, pet. denied) (mem. op. on reh’g) (“When a
trial court terminates a birth parent’s parental rights, the birth parent is no longer the
‘parent’ under the Texas Family Code.” (citing TEX. FAM. CODE § 101.024(a)). The
terminations of appellants’ parental rights remain intact under our holdings.
Consequently, appellants have no legal interest in the children and lack standing to
attack the conservatorship and adoption orders. See In re H.M.M., 230 S.W.3d 204,
204–05 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding court lacked
jurisdiction to consider mother’s appeal of trial court’s failure to grant sole custody
to her father after it terminated her parental rights); Ryder v. State, 917 S.W.2d 503,
18
505 (Tex. App.—Waco 1996, no writ) (holding mother whose parental rights were
terminated did not have standing to appeal review hearing’s outcome); Glover v.
Moore, 536 S.W.2d 78, 79–80 (Tex. App.—Eastland 1976, no writ) (holding mother
who sought managing conservatorship of child after termination of her parental
rights had no justiciable interest in subject matter of litigation); see also Durham v.
Barrow, 600 S.W.2d 756, 761 (Tex. 1980) (noting mother whose parental rights
were terminated had standing to attack termination decree but lacked standing to
bring bill of review attacking child’s adoption if termination decree was valid); In re
Lambert, 993 S.W.2d 123, 132 (Tex. App.—San Antonio 1999, orig. proceeding)
(stating in adoption matter that “[f]ormer parents do not have standing to invoke the
trial court’s continuing jurisdiction over managing conservatorship issues”).
Because appellants lack standing to challenge the conservatorship and
adoption orders, we hold that we lack subject matter jurisdiction to review them. See
Ryder, 917 S.W.2d at 505 (holding appellate court lacked subject-matter jurisdiction
because mother lacked standing).6

Outcome: We affirm the trial court’s judgment.

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