In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00189-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 Chief Justice Sudderth Concurring Opinion by Justice Birdwell MEMORANDUM OPINION
Father1 appeals the trial court’s order granting the motion for summary
judgment filed by Little Flower Adoptions. In one issue with two subissues, Father
argues that the trial court erred by granting the motion for summary judgment.
Because we hold that the trial court did not err by granting the motion for summary
judgment, we will affirm.
I. BACKGROUND
A. Prior Proceedings
S.W. was born on October 5, 2019. S.W.’s mother (Mother) signed an affidavit
voluntarily relinquishing her parental rights to S.W and placed the child for adoption
with Little Flower. Little Flower brought suit to terminate Mother’s parental rights
and the parental rights of the unknown biological father.
Just over a month after S.W.’s birth, on November 8, 2019, the trial court
signed an order terminating the parental rights of Mother and the child’s biological
father2 to S.W. and naming Little Flower as managing conservator of S.W.3
1 Father claims to be the biological father of the child S.W. We refer to him as Father 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 The trial court found that Father had not registered with the paternity registry within the time prescribed by law under Chapter 160 of the Texas Family Code. 3 Mother and Father filed a restricted appeal from the order terminating their parental rights to S.W. This Court affirmed the trial court’s judgment terminating
2 Approximately one month after that—on December 16, 2019—Mother and Father
filed a suit affecting the parent—child relationship (SAPCR) asking to be named joint
managing conservators of S.W. The disposition of the SAPCR suit filed by Mother
and Father is not clear from the record before us.
Two months later—on February 24, 2020—Mother filed a bill of review
seeking to set aside the trial court’s order of termination, and then on June 2, 2020,
Mother and Father filed a Joint Amended Petition for Bill of Review seeking the same
relief. Little Flower filed a motion for summary judgment that the trial court granted
as to both Mother and Father. Mother and Father appealed, and this Court affirmed
the summary judgment as to Mother but reversed the summary judgment as to Father.
In re S.W., No. 02-20-00160-CV, 2021 WL 4783153 (Tex. App.—Fort Worth Oct. 14,
2021, no pet.) (mem. op.). We held that Little Flower carried its summary judgment
burden as to Mother by conclusively showing Mother’s negligence in that she failed to
exercise due diligence in pursuing all legal remedies. Id. at *4. But because Father was
never made a party to the termination suit, we held that his failure to file a motion for
new trial could not be counted against him as neglect, and we remanded to the trial
court for development of Father’s remaining arguments. Id. at *5–6.
Mother’s parental rights and dismissed Father’s appeal for want of jurisdiction. In re S.W., 614 S.W.3d 311 (Tex. App.—Fort Worth 2020, no pet.).
3 B. This Proceeding
After this Court remanded to the trial court for further proceedings as to
Father, Little Flower again filed a traditional motion for summary judgment
addressing Father’s remaining claims. In its motion, Little Flower argued that Father
did not plead and prove a meritorious defense to set aside the trial court’s judgment,
addressing all four grounds that Father claimed established a meritorious defense:
(1) Father’s due process rights were violated because he was entitled to notice and
service, (2) Little Flower never searched the Texas Acknowledgement of Paternity
Registry4, (3) Little Flower purposefully left Father out of the termination
proceedings, and (4) Little Flower did not have standing.
First, Little Flower argued that Father was not entitled to notice of the
underlying termination proceedings because he failed to register with the paternity
registry. See Tex. Fam. Code Ann. §§ 160.402(b), 160.404, 161.002(b)(3). Second,
Little Flower attached as summary judgment evidence the certificate of paternity
search filed in the underlying termination proceedings to negate Father’s argument
that Little Flower did not conduct a search of the paternity registry. Third, Little
Flower argued that any alleged misconduct on its part did not relieve Father of his
obligation to register with the paternity registry. Finally, Little Flower cited Section
The relevant statutes for the paternity registry are located in Family Code 4
Chapter 160, Subchapter E.
4 102.003(a)(7) of the Family Code to prove its standing to file suit. See Tex. Fam. Code
Ann. § 102.003(a)(7).
Father responded to the summary judgment motion twofold. He argued that
he had a meritorious defense but was prevented from asserting it due to fraud on the
part of Little Flower. Father further argued that Little Flower violated his
constitutional right to assert his parental rights under both the Texas Constitution and
the United States Constitution. Father attached as summary judgment evidence his
own affidavit, the affidavit of Mother, screen shots of text messages between Mother
and Little Flower, and several court filings.
After a hearing, the trial court granted the summary judgment motion of Little
Flower “in its entirety” and ordered that Father take nothing by his suit. This appeal
followed.
II. DISCUSSION
A. Standard of Review
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
5 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 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 nonmovant, and the nonmovant need not
respond or present any evidence. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437
S.W.3d 507, 511 (Tex. 2014); S.W., 2021 WL 4783153 at *2.
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 a new
trial or direct appeal. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex.
2012). “Courts narrowly construe the grounds on which a plaintiff may obtain a bill
of review due to Texas’s fundamental public policy favoring the finality of
judgments.” Id. Ordinarily, a bill-of-review plaintiff must plead and prove “(1) a
meritorious defense to the underlying cause of action, (2) which the plaintiff[ ] [was]
prevented from making by the fraud, accident, or wrongful act of the opposing party
or official mistake, (3) unmixed with any fault or negligence on [her] own part.” Id. If
he was not served and was entitled to service, then he is relieved from showing a
meritorious defense, he is not required to show his opponent’s fraud, accident, or
wrongful act prevented him from presenting such a defense, and his own want of
6 fault of negligence is established. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).
A summary judgment will be granted against the bill of review petitioner if the
summary judgment movant can establish the absence of any of the three elements of
the bill of review. See Montgomery v. Kennedy, 669 S.W.2d 309, 311-312 (Tex. 1984); see
also In re Baby Girl S., 407 S.W.3d 904, 909 (Tex. App.—Dallas 2013, pet. denied).
B. Applicable Law
The Family Code provides a statutory mechanism to protect a man’s right to
notice of certain legal proceedings involving a child that he may have fathered. Tex.
Fam. Code Ann. § 160.402. Specifically, Section 160.402(a) affords to a man who has
registered with the Texas Paternity Registry within 31 days of the child’s birth5 the
right to be notified of any proceeding involving the adoption of the child, or the
termination of parental rights regarding the child, that he may have fathered.6
The alleged father may register before the birth of the child as well. Tex. Fam. 5
Code Ann. § 160.402(a)(1). 6 The Family Code provides that:
(a) Except as provided by Subsection (b), a man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity: (1) before the birth of the child; or (2) not later than the 31st day after the date of the birth of the child. Tex. Fam. Code Ann § 160.402(a).
7 On the other hand, if an alleged father has not registered with the paternity
registry in compliance with Section 160.402(a), he is not entitled to notice of adoption
or parental termination proceedings.7 Tex. Fam. Code Ann. § 161.002(b)(3), (c-1).
The Family Code imposes no obligation on the mother, an adoption agency, or
anyone else, to identify or locate an alleged father who has not registered with the
paternity registry. On its face, this statutory scheme applies to all men who “may have
fathered” a child, whether or not they are aware of the mother’s pregnancy or the
birth of the child.
C. Meritorious Defense
In his first subissue, Father argues that he has a “meritorious defense in that
but for the intentional collusion to commit fraud between [Little Flower] and
[Mother], [Father] would have been able to register with the paternity registry and/or
intervene in the underlying termination proceedings so that he could have asserted his
parental rights in the required statutory timeframe.”
Although there is some evidence to the contrary, Father claims that he did not
learn of S.W.’s birth until December 7, 2019, twenty-nine days after his rights had
already been terminated. And it is undisputed that at that point, Father had neither
registered with the registry of paternity, nor had he commenced a proceeding to
The Family Code provides two exceptions. If a father-child relationship has 7
been established by law, or if the alleged father has commenced a proceeding to adjudicate his paternity prior to the termination of his rights, he is entitled to notice of adoption or parental termination proceedings. Tex. Fam. Code Ann. § 160.402(b).
8 adjudicate his paternity.8 See Tex. Fam. Code Ann. § 160.402(a)(b). Thus, the right to
notice that would have been afforded to him under Section 160.402(a) and (b) was
never triggered.
But Father argues he was denied the benefits of Section 160.402(a) and (b) due
to collusion between Mother and Little Flower. In support of his argument, Father
relies on the summary judgment evidence from Mother’s affidavit wherein she stated
that she provided Father’s name and address to Little Flower and that Little Flower
instructed her not to include Father’s name on the birth certificate. Father also points
to the summary judgment evidence of screen shot images of text messages between
Mother and Little Flower, one of which included a message from Little Flower to
Mother instructing her to “leave the father info blank otherwise he has to sign
paperwork and it slows things down.”
But this evidence, even when viewed in the light most favorable to Father’s
position, still falls short of proving that Mother and Little Flower fraudulently
prevented him from asserting his parental rights. While Mother and Little Flower
may have been aware of Father’s identity, and while they may not have notified the
court about Father or notified Father about the court proceedings, there is no
evidence in this record that they defrauded Father in any way.9
8 Father filed an Acknowledgement of Paternity on December 31, 2019. 9 To commit common-law fraud, Mother and Little Flower must have made a material representation to Father that was either false or made recklessly, as a positive
9 Father engaged in sexual activity with Mother, the consequences of which not
only could have, but also actually did, result in pregnancy. The paternity registry exists
for just such circumstances—it allows an alleged father to register as to any child that
he may have fathered. Tex. Fam. Code Ann. § 160.402(a). If a man wants to be
provided notice of parental termination proceedings regarding a child that he may—
either potentially or actually—have fathered, the registry is available to him to ensure
that he receive such notice. As the Dallas Court of Appeals has pointed out, the
process of registering is free, the information provided in the registration process is
confidential, and there is no penalty for registering if no child is actually conceived.
Baby Girl S., 407 S.W.3d at 914. Under this statutory scheme, whether to register is
within the complete control of alleged fathers. Id. And whether or not Father was
aware of the law regarding paternity registration, he was nevertheless afforded an
opportunity to assert his rights as to any child that he may have fathered with Mother,
or with any other woman, for that matter.
assertion, without knowledge of its truth. The representation must have been made with the intent that Father act upon it, and Father must have acted on it, causing injury. Int’l Bus. Machines Corp. v. Lufkin Indus., 573 S.W.3d 224, 228 (Tex. 2019). There is no summary judgment evidence to support this claim.
To commit fraud by nondisclosure, among other things, Mother and Little Flower must have had a duty to disclose S.W.’s birth to Father. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Father offered no legal theory to support a claim that Mother and Little Flower owed him any duty of disclosure.
10 Not only does the law provide fathers with this opportunity, the failure to take
advantage of this opportunity produces legal consequences. In particular, Section
161.002(b)(3) allows an unregistered father’s rights to be terminated without notice to
him. And the statute carves out no exception for situations where a mother knows
the father’s identity or location and fails to reveal that information, or when she fails
to notify the father of the pregnancy or birth. Under this statutory scheme, neither
mothers nor adoption agencies are required by law to identify, locate, or notify an
alleged father who has not registered with the paternity registry. See Tex. Fam. Code
Ann. § 161.002(c-1).
The bottom line is that there is no summary judgment evidence that Father was
fraudulently prevented from registering. Father’s summary judgment proof that
Mother and Little Flower did not identify, locate or notify him does not supply that
proof. Nor is Mother’s decision to omit Father’s name on the birth certificate—even
if based on advice from Little Flower—evidence that Father was fraudulently
prevented from registering. In sum, while the summary judgment evidence may have
established that Mother and Little Flower failed to identify him even though he was
known to them, it does not prove that Mother and Little Flower fraudulently colluded
to prevent him from timely registering with the paternity registry. At all times, the
registry process remained available to Father, and even assuming that he was unaware
of the protections afforded him under this statutory scheme, the lack of evidence of
fraud remains unchanged. Under this statutory scheme, Father’s ignorance of the law
11 imposes no additional duty on Mother or Little Flower to disclose S.W.’s birth to
Father or Father’s identity in a birth certificate or in parental termination proceedings.
Baby Girl S., 407 S.W.3d at 915.
We overrule subissue one.
D. Due Process
In his second subissue, Father argues that Little Flower’s intentional fraud and
collusion with Mother to not acknowledge him as the father of the child violated his
right to due process under the United States Constitution10 and the Texas
Constitution.11 Specifically, Father argues that the application of the statutes allowing
termination of an alleged father’s parental rights without notice deprived him of his
due process rights.
This is the same argument that the Dallas Court of Appeals addressed in Baby
Girl S. In that case, the biological father argued that the statute allowing termination
of his parental rights without notice was unconstitutional as applied to him. Id. at 911.
Like here, the mother did not name the biological father of Baby S at the time she put
the infant up for adoption. She also claimed that she did not know the father’s name.
10 The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law. U.S. Const. Amend XIV § 1. 11 Article 1 Section 19 of the Texas Constitution provides that no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Tex. Const. art. I § 19.
12 Id. at 906. Unaware of the pregnancy or birth of Baby S, the biological father did not
register with the paternity registry, and his rights were terminated without notice to
him. Id. at 907. An adoption agency was named as the baby’s managing conservator,
and the biological father learned of the child’s birth the following month. Id.
In Baby Girl S., our sister court, relying on the plain language of the statute,
pointed out that the paternity registry allows an alleged father to register if he desires
to be notified of a proceeding for the adoption of or the termination of parental rights
regarding a child that he may have fathered. Tex. Fam. Code Ann. § 160.402(a). But
if an alleged father fails to register, there is no requirement that he must be identified
or located; if the child is under one year of age when the petition for termination or
adoption is filed, the rights of an unregistered father may be terminated without
notice under Family Code Section 161.002(b)(3). Tex. Fam. Code Ann. § 161.002(c-
1); Baby Girl S., 407 S.W.3d at 914.
In reaching its decision that the alleged father’s constitutional rights had not
been violated, the court distinguished between a situation where a father had a
developed relationship with his child and a situation where an alleged father’s link to
his child was merely biological. The court adopted the reasoning of the Kansas
Supreme Court that the “liberty interest resulting in a right to notice” arises in the
former situation, not the latter, because it is the “developed familial relationship,” not
mere biology, that warrants protection. Baby Girl S., 407 S.W.3d at 916.
13 Here, as in Baby Girl S., we are not being asked whether the statutory scheme
adequately protected the rights of an alleged father who had a developed relationship
with his child, but rather we are only asked to consider whether the safeguards
provided in the paternity registry are adequate to protect an alleged father who was
unaware of the pregnancy or birth and whose only link to his child is biological. See
id. at 914. As the court in In re Baby Girl S. explained:
the registry provides an alleged father with the means of asserting his rights without depending on the mother, the courts, or anyone else to identify him. By registering, an alleged father ensures he will be notified of any proceeding to adopt the child or to terminate his rights. It also provides a measure of privacy for the mother who, for any number of reasons, may not want to divulge the biological father’s name. Finally, it reduces any delays in an adoption proceeding because an unknown father is either registered or he is not. If he is, he gets notice.
Id. at 915. The court cited the United States Supreme Court decision in Lehr v.
Robertson to point out that even if the biological father knew nothing about the
registry, that would not relieve him of the requirement to follow the law. 463 U.S.
248, 264, 103 S.Ct. 2985, 2995 (1983). The Dallas court held that the statutory
scheme permits an alleged father to protect himself by invoking statutory procedures
to ensure that he received notice and that the biological father’s failure to do so does
not render the procedure unconstitutional. Baby Girl S., 407 S.W.3d at 915.
Father attempts to distinguish Baby Girl S. by pointing out that in that case the
biological mother was the only party who concealed the father’s identity, whereas and
in this case Little Flower, the movant of the termination proceedings, also knew his
14 identity before termination and concealed it. We find that to be a distinction without
a difference. In both cases the biological fathers allege that their identities were
wrongfully concealed.
We are persuaded by the reasoning of Baby Girl S. and hold that the statutory
scheme of the paternity registration is not unconstitutional as applied to Father.
Father engaged in conduct with Mother that could have resulted in the conception of
a child. The paternity registry provided Father with the means of asserting his rights
to any child that might have been conceived without depending on Mother, the
courts, or anyone else to identify him. See Baby Girl S., 407 S.W.3d at 915. The fact
that he may not have registered because of “his ignorance of the law” was not
“sufficient reason for criticizing the law itself.” Id. at 914 (quoting Lehr v. Robertson,
463 U.S. at 264).
When enacting the statutory procedures creating the paternity registry, the
Texas Legislature could have provided a defense or exception for fathers who were
unaware of the birth of their child and claim that they were prevented from learning
about the birth by the fraud or deceit of another. The Legislature chose not to do so.
We are mindful of the delicate balance between the goal of protecting the rights
of fathers and the need to insure a stable home for the child by determining as early as
possible the rights and interests of all parties. The statutory scheme complained of
here allowed Father to protect himself by invoking statutory procedures to insure he
received notice. See Baby Girl S., 407 S.W.3d at 915. Father failed to do so, and that
15 failure does not now render the statutory procedure unconstitutional. Id.
Accordingly, we hold that the trial court did not err by granting Little Flower’s motion
for summary judgment. We overrule Father’s second subissue.
III. CONCLUSION
Having overruled Father’s two subissues in his sole issue on appeal, we affirm
the trial court’s judgment granting Little Flower’s motion for summary judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth Chief Justice
Delivered: April 27, 2023