In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-18-00433-CV ____________________
IN THE INTEREST OF J.R. __________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 17-04-04946-CV _________________________________________________________________
MEMORANDUM OPINION
The Department of Family and Protective Services (“the Department”) filed a
petition to terminate the parental rights of J.R.’s alleged father, J.R. 1 Following a
bench trial establishing that Father was residing in Mexico, the trial court granted
the Department’s petition and terminated Father’s parental rights to J.R. Because the
record shows that Father was never served with notice of the Department’s suit
against him, we reverse the trial court’s judgment and remand the case for a new
trial.
1 Because J.R. and her alleged father, the appellant, have the same initials, we will refer to the appellant as “Father.” 1 Procedural Background
In April 2017, the Department filed a petition for termination in a suit
affecting the parent-child relationship (SAPCR). In the SAPCR, the Department
listed Father as the alleged father of J.R., requested that the trial court determine
whether Father is the biological father of J.R., and sought to terminate Father’s
parental rights. The Department listed “Mexico” as Father’s address but noted that
the name and location of Father were unknown. The Department requested that
“process be served at that address or in Court.” The Department maintained that it
would make a diligent effort to locate Father and requested service of process if
Father’s address became known.
The record shows that in May 2017, FINDRS conducted an electronic search
at the Department’s request, and the FINDRS Diligent Search Report indicated that
Father reportedly resides in Mexico but could not be located. The FINDRS Report
stated that if the absent parent is a citizen of a foreign country and is believed to be
currently residing in their home country, the Department’s caseworker must contact
the consulate of that country and request assistance in locating the absent parent. In
June 2017, the Department filed a motion for substituted service of citation by
posting, and the Department attached an affidavit regarding a due diligence search,
in which an investigator averred that he had made a good faith effort to locate Father.
2 The trial court granted the Department’s motion for substituted service of citation
by posting. In July 2017, the trial court found that Father had been served by citation
by posting and appointed Father an attorney. However, the Department subsequently
filed various Permanency Reports, in which the Department reported that Father
resides in Mexico, his physical address was unknown, and he had not yet been served
with service of process. In January 2018, Father’s appointed counsel filed a report
stating that she had been unable to locate Father.
In March 2018, the Department filed a first amended petition, and in October
2018, the trial court conducted a bench trial, during which the Department
maintained that Father had been served by posting. During the trial, Jeff Sermons, a
case worker with the Department, testified that the Department requested to serve
Father by posting, but Sermons also testified that the Department had located
Father’s specific address in Mexico and had “sent everything through the
[c]onsulate[]” and to Father’s appointed counsel. Sermons explained that he had not
had any contact with Father, nor had he received a written response from the
consulate regarding the information he had forwarded. According to Sermons, the
consulate contacted the Department’s immigration specialist and advised the
Department to contact Juan Aguilar in Dallas, and when Sermons spoke to Aguilar,
Aguilar indicated that Father wanted J.R. to be with him. Sermons testified that the
3 Department never attempted to serve Father at the address in Mexico, because the
immigration specialist attempted service through the consulate.
After the Department rested, Father’s counsel moved for a directed verdict,
arguing, among other things, that Father’s rights should not be terminated because
there was no evidence of “any actual notice[]” despite Sermons’s testimony that the
Department knew Father’s address in Mexico. The Department argued that Father
was served by posting and that the Department never received a response from the
Mexican Consulate when it tried to establish Father’s residence. The trial court
denied the motion for a directed verdict and entered an order terminating Father’s
parental rights to J.R. The trial court issued findings of fact and conclusions of law,
in which it found, among other things, that it had jurisdiction over all the parties.
Father appealed.
Analysis
In his sixth issue on appeal, Father argues that the trial court erred in entering
a final judgment terminating his parental rights because the Department had his
correct address in Mexico but never served him with notice. Father further argues
that despite the Department’s contention that it served him by posting and that it also
sent papers to the Mexican consulate, the record contains no return of service.
According to Father, the record contains no reference regarding the Department’s
4 correspondence with the Mexican consulate or to “what was sent, how it was sent,
who it was sent to, or when it was sent.” Because there is no proof of service, Father
contends that the termination order is not valid. The Department concedes that
Father was not properly served and that the judgment terminating Father’s parental
rights should be reversed.
Jurisdiction is dependent upon citation issued and served in a manner provided
by law. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). “‘A claim of a defect in
service of process challenges the trial court’s personal jurisdiction over the
defendant.’” In the Interest of T.M.E., __ S.W.3d __, 2018 WL 5810854, at *4 (Tex.
App.—Texarkana 2018, no pet.) (not yet released for publication) (quoting Livanos
v. Livanos, 333 S.W.3d 868, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.)).
Thus, Father’s appeal is a direct attack on the trial court’s personal jurisdiction. See
id. “When judgment is rendered on invalid service of process by publication, a party
is generally entitled to a new trial.” In the Interest of J.M., 387 S.W.3d 865, 870
(Tex. App.—San Antonio 2012, no pet.) (citing In the Interest of E.R., 385 S.W.3d
552, 563 (Tex. 2012)).
Service of process may be effected upon a party in a foreign country if service
of the citation and petition is made pursuant to the terms and provisions of any
applicable treaty or convention, and proof of service may be made as provided by
5 the applicable treaty or convention. See Tex. R. Civ. P. 108a(1), (2). The Hague
Service Convention governs the service of process on a defendant located in Mexico.
In the Interest of J.P.L., 359 S.W.3d 695, 705 (Tex.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-18-00433-CV ____________________
IN THE INTEREST OF J.R. __________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 17-04-04946-CV _________________________________________________________________
MEMORANDUM OPINION
The Department of Family and Protective Services (“the Department”) filed a
petition to terminate the parental rights of J.R.’s alleged father, J.R. 1 Following a
bench trial establishing that Father was residing in Mexico, the trial court granted
the Department’s petition and terminated Father’s parental rights to J.R. Because the
record shows that Father was never served with notice of the Department’s suit
against him, we reverse the trial court’s judgment and remand the case for a new
trial.
1 Because J.R. and her alleged father, the appellant, have the same initials, we will refer to the appellant as “Father.” 1 Procedural Background
In April 2017, the Department filed a petition for termination in a suit
affecting the parent-child relationship (SAPCR). In the SAPCR, the Department
listed Father as the alleged father of J.R., requested that the trial court determine
whether Father is the biological father of J.R., and sought to terminate Father’s
parental rights. The Department listed “Mexico” as Father’s address but noted that
the name and location of Father were unknown. The Department requested that
“process be served at that address or in Court.” The Department maintained that it
would make a diligent effort to locate Father and requested service of process if
Father’s address became known.
The record shows that in May 2017, FINDRS conducted an electronic search
at the Department’s request, and the FINDRS Diligent Search Report indicated that
Father reportedly resides in Mexico but could not be located. The FINDRS Report
stated that if the absent parent is a citizen of a foreign country and is believed to be
currently residing in their home country, the Department’s caseworker must contact
the consulate of that country and request assistance in locating the absent parent. In
June 2017, the Department filed a motion for substituted service of citation by
posting, and the Department attached an affidavit regarding a due diligence search,
in which an investigator averred that he had made a good faith effort to locate Father.
2 The trial court granted the Department’s motion for substituted service of citation
by posting. In July 2017, the trial court found that Father had been served by citation
by posting and appointed Father an attorney. However, the Department subsequently
filed various Permanency Reports, in which the Department reported that Father
resides in Mexico, his physical address was unknown, and he had not yet been served
with service of process. In January 2018, Father’s appointed counsel filed a report
stating that she had been unable to locate Father.
In March 2018, the Department filed a first amended petition, and in October
2018, the trial court conducted a bench trial, during which the Department
maintained that Father had been served by posting. During the trial, Jeff Sermons, a
case worker with the Department, testified that the Department requested to serve
Father by posting, but Sermons also testified that the Department had located
Father’s specific address in Mexico and had “sent everything through the
[c]onsulate[]” and to Father’s appointed counsel. Sermons explained that he had not
had any contact with Father, nor had he received a written response from the
consulate regarding the information he had forwarded. According to Sermons, the
consulate contacted the Department’s immigration specialist and advised the
Department to contact Juan Aguilar in Dallas, and when Sermons spoke to Aguilar,
Aguilar indicated that Father wanted J.R. to be with him. Sermons testified that the
3 Department never attempted to serve Father at the address in Mexico, because the
immigration specialist attempted service through the consulate.
After the Department rested, Father’s counsel moved for a directed verdict,
arguing, among other things, that Father’s rights should not be terminated because
there was no evidence of “any actual notice[]” despite Sermons’s testimony that the
Department knew Father’s address in Mexico. The Department argued that Father
was served by posting and that the Department never received a response from the
Mexican Consulate when it tried to establish Father’s residence. The trial court
denied the motion for a directed verdict and entered an order terminating Father’s
parental rights to J.R. The trial court issued findings of fact and conclusions of law,
in which it found, among other things, that it had jurisdiction over all the parties.
Father appealed.
Analysis
In his sixth issue on appeal, Father argues that the trial court erred in entering
a final judgment terminating his parental rights because the Department had his
correct address in Mexico but never served him with notice. Father further argues
that despite the Department’s contention that it served him by posting and that it also
sent papers to the Mexican consulate, the record contains no return of service.
According to Father, the record contains no reference regarding the Department’s
4 correspondence with the Mexican consulate or to “what was sent, how it was sent,
who it was sent to, or when it was sent.” Because there is no proof of service, Father
contends that the termination order is not valid. The Department concedes that
Father was not properly served and that the judgment terminating Father’s parental
rights should be reversed.
Jurisdiction is dependent upon citation issued and served in a manner provided
by law. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). “‘A claim of a defect in
service of process challenges the trial court’s personal jurisdiction over the
defendant.’” In the Interest of T.M.E., __ S.W.3d __, 2018 WL 5810854, at *4 (Tex.
App.—Texarkana 2018, no pet.) (not yet released for publication) (quoting Livanos
v. Livanos, 333 S.W.3d 868, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.)).
Thus, Father’s appeal is a direct attack on the trial court’s personal jurisdiction. See
id. “When judgment is rendered on invalid service of process by publication, a party
is generally entitled to a new trial.” In the Interest of J.M., 387 S.W.3d 865, 870
(Tex. App.—San Antonio 2012, no pet.) (citing In the Interest of E.R., 385 S.W.3d
552, 563 (Tex. 2012)).
Service of process may be effected upon a party in a foreign country if service
of the citation and petition is made pursuant to the terms and provisions of any
applicable treaty or convention, and proof of service may be made as provided by
5 the applicable treaty or convention. See Tex. R. Civ. P. 108a(1), (2). The Hague
Service Convention governs the service of process on a defendant located in Mexico.
In the Interest of J.P.L., 359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet.
denied). The Hague Service Convention applies in all civil matters in which there is
an occasion to transmit a judicial document for service abroad, and its intent is to
simplify and expedite international service of process and to ensure that it is
adequately effected. Id. In all cases in which it applies, the Hague Service
Convention preempts any inconsistent methods of service prescribed by Texas law.
In the Interest of T.M.E., 2018 WL 5810854, at *5.
Under the Hague Service Convention, service of process upon a person
located in Mexico must be made through the Central Authority of Mexico, which is
the only way a Mexican national can be served in Mexico with a foreign proceeding.
Compass Bank. v. Katz, 287 F.R.D. 392, 396-97 (S.D. Tex. 2012). When the Central
Authority receives a request for service from another country, it must serve the
documents or arrange for service and provide a certificate of service. In the Interest
of T.M.E., 2018 WL 5810854, at *5. Mexico has designated the General Direction
of Legal Affairs of the Ministry of Foreign Affairs as its Central Authority, and
Mexico requires that documents to be served within its border be either in Spanish
or accompanied by a corresponding Spanish translation. Velasco v. Ayala, 312
6 S.W.3d 783, 794 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Mexico has also
filed declarations objecting to all alternative channels of service. In the Interest of
T.M.E., 2018 WL 5810854, at *5.
Our review of the record shows that there is no evidence that the Department
served the Central Authority of Mexico with its lawsuit against Father or that the
Central Authority returned a certificate of service. See id.; see also Tex. R. Civ. P.
108a(1), (2). Additionally, because Mexico has filed declarations objecting to any
alternative channel of service, citation by posting to a defendant who is known to be
in Mexico does not comport with the terms of the Hague Service Convention. See In
the Interest of T.M.E., 2018 WL 5810854, at *5. We also note that the record does
not contain a return of citation by publication showing how and when the citation
was executed. See Tex. R. Civ. P. 117.
Based on this record, we conclude that Father was never properly served with
the Department’s lawsuit as required by the Hague Service Convention. See In the
Interest of T.M.E., 2018 WL 5810854, at *5. We further conclude that the trial
court’s order terminating Father’s parental rights to J.R. is void because the trial
court never acquired personal jurisdiction over Father. See id. We sustain issue six.
Because issue six is dispositive, we need not address Father’s remaining six issues.
See Tex. R. App. P. 47.1. Accordingly, we reverse that part of the trial court’s
7 judgment terminating Father’s parental rights to J.R. and remand the case for a new
trial as to Father. 2 See In the Interest of E.R., 385 S.W.3d at 569-70; In the Interest
of J.M., 387 S.W.3d at 870; Velasco, 312 S.W.3d at 800.
REVERSED AND REMANDED.
______________________________ STEVE McKEITHEN Chief Justice
Submitted on February 6, 2019 Opinion Delivered February 28, 2019
Before McKeithen, C.J., Kreger and Johnson, JJ.
2 Upon remand, Father’s appearance before the trial court will be presumed and there will be no need for further citation to be issued or served. See Tex. R. Civ. P. 123; Velasco v. Ayala, 312 S.W.3d 783, 800 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 8