Motion for Rehearing Granted; Reversed and Rendered in Part; Affirmed in Part; Opinion of December 13, 2005, Withdrawn and Majority and Concurring/Dissenting Opinions On Rehearing filed August 10, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-01031-CV
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IN THE INTEREST OF J.A.J.
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 03-08998J
C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N
O N R E H E A R I N G
I respectfully concur in part, and dissent in part.
In my opinion, the proper remedy would be to reverse the judgment as to both the mother and the unknown father, and to remand to the trial court for further proceedings consistent with our opinion.
It appears that the only reason the unknown father was made a party to this suit was to facilitate an adoption of the child in the event the mother=s parental rights would be terminated. The ADecree for Termination@ states that the identity and location of J.A.J.=s father are unknown, and that he Areceived process in this cause by substituted service but did not otherwise answer or appear.@ Of course, the unkown father did not appeal the termination of his parental rights.
In my opinion, we should follow the reasoning of the Court in Swinney v. Mosher, 830 S.W.2d 187, 197 (Tex. App.CForth Worth 1992, writ denied):
[T]he subject child=s natural father [ ] did not appeal the judgment terminating his parental rights. As a general rule, when one party appeals from a judgment, a reversal on her behalf will not justify a reversal as to other nonappealing parties. This rule does not, however, apply where the respective rights of the appealing and nonappealing parties are so interwoven and dependent on each other as to require a reversal of the entire judgment. Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982). In such a case, the court must reverse the entire judgment in order to provide the appellant with the full and effective relief. Id.
[The natural father=s] termination was done to facilitate [the child=s] adoption by the [proposed adoptive parents]. Because we find that . . . there was no evidence or alternatively insufficient evidence for involuntary termination [of the natural mother=s parental rights], the adoption . . . will not proceed. Thus, [the natural father=s] termination is neither necessary nor desirable. And further, his termination would prejudice the rights of [the child and mother] to receive support. [The mother=s and father=s] parental rights in reference to [the child] and [the child=s] best interests are so interwoven and dependent on each other as to require a reversal of the entire judgment. In order to provide full and effective relief and for the best interest of the child, we reverse the trial court=s judgment terminating [the non-appealing father=s] parental rights.[1]
In the present case, I would reverse the judgment terminating the parental rights of appellant and the unknown father as to J.A.J., and I would remand the case to the trial court.
/s/ Margaret Garner Mirabal
Senior Justice
Judgment Reversed in Part and Rendered in Part and Majority and Concurring and Dissenting Opinions filed August 10, 2006
Panel Consists of Justices Yates, Hudson and Senior Justice Mirabal* (Hudson, J. majority)
*Senior Justice Margaret Garner Mirabal sitting by assignment.
[1] I note that, even though the identity and location of J.A.J.=s father is currently unknown, that does not mean his identity and location will always be unknown. There is no good reason to terminate his parental rights at this time, and such an action could prejudice J.A.J.=s rights if his father is identified in the future.