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In re T.D.B.

Court of Appeals of Texas, Fifth District, Dallas

February 20, 2018

IN RE T.D.B., Relator

         Original Proceeding from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-17-15640

          Before Justices Francis, Brown, and Whitehill

          MEMORANDUM OPINION

          MOLLY FRANCIS, JUSTICE.

         This is a parental termination case in which the biological mother terminated her parental rights, and, after the trial judge signed a termination order and an adoption judgment, the biological father, D.H., filed a bill of review. Judge Kim Cooks granted the bill of review at a status hearing without notice to both adoptive parents, and overturned the prior termination and adoption orders. Relator is one of the child's adoptive parents. In this original proceeding, relator seeks a writ ordering reinstatement of the termination order and adoption decree and dismissal of the bill of review proceeding. Before the Court are relator's petition, D.H.'s response and supplemental response, and relator's supplement to the petition. Because we conclude the trial court abused its discretion by granting the bill of review and vacating the termination and adoption orders, we conditionally grant the writ of mandamus.

         Background

         J.D.M. was born January 12, 2017. The child's biological mother signed an affidavit of relinquishment on January 15, 2017. In it she agreed to terminate her parental rights, agreed to place the child for adoption with Little Flower Adoptions, and designated Little Flower Adoptions as Managing Conservator of the child. The biological mother also listed D.L.M. as the presumed father. On February 14, 2017, the Texas Department of State Health Service certified that it had conducted a diligent search of the Texas paternity registry and no notice of intent to claim paternity had been located concerning the child. On February 16, 2017, Judge Mary Brown[1] signed an order excluding D.L.M. as the biological father because D.L.M. was incarcerated at the time of conception. Judge Brown also signed a decree of termination on February 16 terminating the parent-child relationship between the child and the biological mother, terminating the parent-child relationship between the child and "any unknown, unnamed, and/or unidentified biological father, " and appointing Little Flower Adoptions as the child's Managing Conservator. The adoption agency placed the child with K.L.B. and relator T.D.B. ("the adoptive parents"). The adoptive parents petitioned to adopt the child and, on July 21, 2017, Judge Brown signed a decree of adoption granting the adoption of the child by K.L.B. and relator T.D.B.

         Before the adoption was finalized, however, the child's biological father, D.H., averred that he notified the adoption agency that he is the child's biological father. DNA samples were collected from the child and D.H. on July 10, 2017 and the results were notarized July 13, 2017. The results showed that D.H. cannot be excluded as the biological father and the probability of paternity is 99.99%.

         D.H. filed a petition for bill of review on August 4, 2017. This was less than six months after the termination order was signed and two weeks after the adoption was finalized. D.H. argued in the bill of review that his due process rights were violated because Little Flower Adoptions did not serve him with notice of the termination proceeding. D.H. argued that section 161.002(b)(2) of the family code does not authorize an order terminating the parental rights of an alleged father whose identity is known to the agency at the time of the final hearing and order. He asked the court to vacate the termination order but did not seek any relief from the adoption decree. D.H. served his petition for bill of review on Little Flower Adoptions and relator but did not serve K.L.B., the other adoptive parent.

         Judge Kim Cooks held a hearing on August 28, 2017. Counsel for D.H., relator, and Little Flower Adoptions told the Court that they each believed the hearing was simply a status conference to discuss the situation and to set the bill of review for trial. After hearing the arguments of counsel, Judge Cooks verbally granted the bill of review and stated that she was vacating the termination order and adoption order. Counsel expressed surprise at a ruling on the merits. D.H.'s counsel told the court that it was his understanding that there would not be a substantive hearing that day. Relator's counsel requested that the court not rule on the bill of review at that time because K.L.B. had not been served and was a necessary party. Relator's counsel also stated that relator thought the hearing was a pretrial, status conference rather than a hearing on the bill of review and anticipated that they would be given an opportunity to file motions for summary judgment before a trial on the bill of review. Over these objections, Judge Cooks verbally granted the bill of review and verbally vacated the termination order and the decree of adoption. She then set a date for trial and confirmed that the trial would be on termination of the parent/child relationship and not on the bill of review. Judge Cooks signed an order vacating the termination order and adoption decree on September 20, 2017. This original proceeding followed.

         Judge Cooks has since issued additional orders in the case. On October 16, 2017, the court appointed D.H. temporary managing conservator of the child and removed the child from the adoptive parents' home. Nine days later, after reviewing drug test results in which D.H. tested positive for cocaine, codeine, oxycodone, hydrocodone, and marijuana, Judge Cooks granted the paternal grandmother's intervention and placed the child with the paternal grandmother. The orders permit the adoptive parents limited weekend visits with the child and prohibits D.H. and the biological mother from having access to the child.

         Relying on this Court's opinion in In re Baby Girl S., 407 S.W.3d 904 (Tex. App.-Dallas 2013, pet. denied), relator argues D.H. was not entitled to notice of the termination and adoption proceedings and did not carry his burden as to the requested bill of review. Relator seeks a writ directing Judge Cooks to dismiss D.H.'s bill of review proceeding with prejudice to the re-filing of the same and to reinstate the termination and adoption judgments.

         Standard of Review

         To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Mandamus is the appropriate remedy for a bill of review that was erroneously granted based on the lack of an adequate remedy by appeal. See In re Texas Real Estate Comm'n, No. 04-17-00379-CV, 2018 WL 521576, at *2 (Tex. App.-San Antonio Jan. 24, 2018, orig. proceeding) (citing In re J.M., IV, 373 S.W.3d 725, 728 (Tex. App.-San Antonio 2012, orig. proceeding).

         Bill ...


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