in the Interest of S.W., a Child

Court of Appeals of Texas·Decided October 14, 2021·No. 02-20-00160-CV·Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00160-CV ___________________________

IN THE INTEREST OF S.W., A CHILD

On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-677800-20

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Mother and Father, a man Mother alleges and who claims to be the biological

father of the child S.W., appeal the denial of their bills of review. 1 In the bills, they

challenged a judgment terminating the parental rights of Mother and any biological

father. Appellee Little Flower Adoptions contends that the bills of review are inviable

because Mother and Father neglected to pursue all available legal remedies.

We agree that Mother neglected to pursue an available remedy: a motion for

new trial under Rule 306a. This precludes us from granting her bill of review. However,

the same cannot be said of Father. He was never made a party to the termination suit,

and he had no right to file a motion for new trial. It therefore cannot be said that he

was negligent in failing to file such a motion.

Ergo, we affirm as to Mother, but we reverse and remand as to Father.

I. BACKGROUND

A. The Prior Termination Suit and SAPCR

After S.W. was born, Mother executed an affidavit to voluntarily relinquish her

parental rights. In it, she waived service of process. Little Flower petitioned to

terminate Mother’s parental rights based on the affidavit. The petition alleged that

1 We refer to the parties by aliases in order to protect the minor’s identity. See Tex. R. App. P. 9.8(b)(2); Tex. Fam. Code Ann. § 109.002(d); In re J.P., 598 S.W.3d 789, 791 n.1 (Tex. App.—Fort Worth 2020, pets. denied).

2 S.W.’s unidentified biological father had not registered and would not register with the

state’s paternity registry and that he should have his parental rights terminated as well.

On November 8, 2019, the trial court rendered a judgment terminating the

parental rights of Mother and any biological father. The judgment named Little Flower

as managing conservator.

In December 2019, Mother and Father filed a suit affecting the parent–child

relationship (SAPCR) in which they asked the trial court to name them as S.W.’s

managing conservators. On January 21, 2020, Little Flower filed an answer in which it

pleaded the affirmative defense of res judicata. Little Flower made note of the

termination judgment and reasoned that it should have a preclusive effect on Mother

and Father’s SAPCR.

In June 2020, Mother and Father filed a restricted appeal of the termination

judgment. We affirmed the judgment as to Mother and dismissed Father’s appeal for

want of jurisdiction. In re S.W., 614 S.W.3d 311, 312 (Tex. App.—Fort Worth 2020, no

pet.).

B. This Proceeding

Meanwhile, in February 2020, Mother filed this bill-of-review proceeding to

challenge the termination judgment. She alleged that she executed the relinquishment

affidavit as a result of fraud, duress, and coercion, and she asked the trial court to set

the judgment aside.

3 Little Flower moved for summary judgment. It argued that, in the termination

proceeding, Mother had the option to challenge the termination judgment with a

motion for new trial under Rule 306a but that she neglected to do so. Little Flower

reasoned that Mother had not satisfied the requirement that a petitioner must diligently

pursue all available legal remedies before there may be relief through a bill of review.

Mother and Father filed an amended bill of review, which marked Father’s first

participation in this suit. Little Flower then filed a motion for summary judgment as to

Father, citing the same grounds concerning failure to pursue all available remedies.

In June 2020, the trial court granted a partial summary judgment that denied

Mother’s bill of review. Another partial summary judgment ensued in July, rejecting

Father’s bill of review and finally disposing of the case. Mother and Father appeal.

II. DISCUSSION

On appeal, Mother and Father raise three arguments: the first, a due-process

challenge concerning alleged lack of service; the second, a contention that their bills of

review should have survived summary judgment; and the third, a claim for ineffective

assistance of counsel. However, because Mother and Father have substantially different

factual footing with respect to these arguments, we discuss them separately.

We begin with Mother’s due-process challenge. Mother asserts that the

termination judgment is void because she did not receive service of process. However,

Mother waived service of process, see id. at 313, and that waiver obviates any

constitutional need for service. See Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 61 (Tex.

4 2008); J.O. v. Tex. Dep’t of Fam. & Protective Servs., 604 S.W.3d 182, 189 (Tex. App.—

Austin 2020, no pet.). Due process requires that parties “be served, waive service, or

voluntarily appear before judgment was rendered.” In re J.P.L., 359 S.W.3d 695, 707

(Tex. App.—San Antonio 2011, pet. denied) (emphasis added); see also Mapco, Inc. v.

Carter, 817 S.W.2d 686, 687 (Tex. 1991) (citing Tex. R. Civ. P. 124). Mother’s due-

process rights were not violated.

Next, Mother contends that she sufficiently proved the elements of her bill of

review, such that her bill should have survived summary judgment. Little Flower

responds that because, as a matter of law, Mother failed to diligently take advantage of

all available legal remedies, the trial court properly granted summary judgment. We

agree with Little Flower.

When, as here, a bill of review is disposed of through summary judgment, we

review the case de novo under the summary-judgment standard. Mandel v. Lewisville

Indep. Sch. Dist., 499 S.W.3d 65, 70 (Tex. App.—Fort Worth 2016, pet. denied); see In re

Child, 492 S.W.3d 763, 766 (Tex. App.—Fort Worth 2016, pet. denied). We consider

the evidence presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein &

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v.

Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant that conclusively negates at least

5 one essential element of a plaintiff’s cause of action is entitled to summary judgment

on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex.

R. Civ. P. 166a(b), (c).

If the movant does not satisfy its initial burden, the burden does not shift to the

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