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In re E.C.Q.L.

Court of Appeals of Texas, Twelfth District, Tyler

April 28, 2017

IN THE INTEREST OF E.C.Q.L., A CHILD

         APPEAL FROM THE 354TH JUDICIAL DISTRICT COURT RAINS COUNTY, TEXAS (Tr.Ct.No. 9968)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice.

         Z.Q. appeals the denial of his petition for a bill of review. In four issues, he challenges the trial court's judgment. We reverse and remand.

         Background

         Z.Q. and S.L. were married in 2007 and lived in California. Z.Q. testified that in 2009, S.L. traveled to Texas to visit her mother and take care of some criminal matters. According to records admitted at trial, S.L. gave birth to E.C.Q.L. in Texas in September 2010. According to Z.Q., he did not know that S.L. was pregnant. Patricia Skelton, a Department of Family and Protective Services (the Department) conservatorship worker, stated that the baby tested positive for drugs at birth. Initially, the Department filed an original petition for termination of S.L.'s parental rights, naming another person as E.C.Q.L.'s alleged father. The Department was appointed temporary managing conservator of the child. The caseworker's records show that S.L. announced during a court hearing on March 14, 2011, that she was married to Z.Q. and that he was the father of the child. Z.Q. testified that S.L. told him in early 2011, that she had given birth to E.C.Q.L. At that time, he said, S.L. told him that E.C.Q.L. was in the "temporary" custody of the government until her criminal cases were resolved.

         On March 31, 2011, the Department filed a first amended original petition for protection of E.C.Q.L., for conservatorship, and for termination of Z.Q.'s parental rights. From the records admitted at trial, it appears that Z.Q. was appointed counsel. According to Skelton, S.L. provided the Department with a Fresno, California business address, and a telephone number for Z.Q. In records admitted at the hearing, Julie Tolson, the Department caseworker, noted that she attempted to contact Z.Q. at the telephone number provided by S.L. She did not receive an answer, but left a message for him. The next day, the CASA volunteer told Tolson that she also attempted to contact Z.Q. She called the telephone number and a woman answered. However, she said, there was a "language barrier" and she did not get much information from the woman who answered the telephone. Moreover, the CASA volunteer was not sure if the woman would be able to give Z.Q. a message to return the telephone call.

         According to Tolson's affidavit, she stated that Z.Q. was unknown to her and that he was a "transient person." She said that she sent a notice regarding the child to Z.Q. at the Fresno business address by certified mail, return receipt requested. The "green card" was signed by a person whose signature did not appear to be Z.Q.'s. Tolson also stated that inquiries to the Diligent Search Unit, Google.com, the Department of Public Safety databases, and the food stamp division of the Department of Human Services yielded no results. Thus, the Department effectuated substituted service by publication on Z.Q. in the Rains County Leader newspaper located in Emory, Texas on April 26, 2011.

         At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that Z.Q. had engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (C) and (N) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between Z.Q. and E.C.Q.L. was in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between Z.Q. and E.C.Q.L. be terminated. The order of termination was filed on July 11, 2011.[1]

         On January 25, 2016, Z.Q. filed a petition for bill of review, contending that he was not personally served by citation and was unaware that a court proceeding relating to his parental rights was pending. In his supplemental petition, Z.Q. further argued that service by publication denied him due process of law. After a hearing, the trial court denied Z.Q.'s petition for bill of review. The trial court filed findings of fact and conclusions of law, finding that Z.Q. was validly served by citation by publication and that his bill of review was not timely filed under section 161.211(b) of the Texas Family Code. This appeal followed.

         Due Process

         In his third issue, Z.Q. argues that strict enforcement of Texas Family Code section 161.211(b) violated his rights to due process under both the Texas Constitution and the United States Constitution because he was never properly served.

         Standard of Review

         Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). Because a termination action "permanently sunders" the bonds between a parent and child, we carefully scrutinize termination proceedings, and strictly construe involuntary termination statutes in the parent's favor. In re E.R., 385 S.W.3d 552, 563 ...


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