Dissenting
Opinion by Justice MURPHY.L.R. (Mother) appeals the termination of her parental rights, arguing the trial court abused its discretion by denying her motion for new trial. Because I agree the trial court erred by signing the decree of termination based on invalid attempted service by publication and by failing to grant Mother’s motion for new trial, I would reverse the trial court’s judgment.
Texas Family Code Subsection 161.211(b)
Although subsection 161.211(b) of the Texas Family Code was never raised or even mentioned by any party in the trial court, it has become the central issue on appeal. It is important to note at the outset what this case is not about. This is not an adoption case; nor does it involve a constitutional challenge to subsection 161.211(b). Importantly, this case also is not about the merits of the underlying suit for involuntary termination of Mother’s parental rights or whether she had knowledge of the termination proceeding. Rather, the case involves interpretation of subsection 161.211(b) and whether the provision — considering the legislative intent as expressed in the plain language of the statute — is an absolute bar to Mother’s challenge to the DFPS’s attempted service of citation by publication.
Mother raises two issues on appeal, both involving the propriety of service of citation by publication and the trial court’s subsequent denial of her motion for new trial. Not until three months after Mother filed her reply brief in this Court and briefing was closed did the DFPS file an “amended” brief, claiming subsection 161.211(b) was a jurisdictional bar to Mother’s complaint that the trial court never obtained personal jurisdiction over her. The first time the DFPS ever mentioned subsection 161.211(b) was in its original appellate brief, in which it cited the provision as an affirmative defense of limitations that would be waived by failure to raise the issue in the trial court, citing In re Bullock, 146 S.W.3d 783, 790-91 (Tex.App.-Beaumont 2004, orig. proceeding), and Compass Bank v. MFP Financial Services, Inc., 152 S.W.3d 844, 851 (Tex.App.-Dallas 2005, pet. denied).
The majority concludes subsection 161.211(b) is a jurisdictional bar that can*827not be waived, rejecting decisions from other Texas appellate courts to the contrary. See In re M.Y.W., No. 14-06-00185-CV, 2006 WL 3860482, at *2 (Tex.App.-Houston [14th Dist.] Nov. 21, 2006, pet. denied) (mem. op.); In re Bullock, 146 S.W.3d at 790-91; In re S.A.B., No. 04-01-00795-CV, 2002 WL 31060158, at *1 (Tex.App.-San Antonio Sept. 18, 2002, no pet.) (supp. op. on reh’g) (not designated for publication). The majority also concludes, as a matter of first impression in Texas, subsection 161.211(b) is a jurisdictional bar regardless of whether attempted service of citation by publication is invalid and the trial court never acquired personal jurisdiction over the parent. Subsection 161.211(b) provides in its entirety:
Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.
Tex. Fam.Code Ann. § 161.211(b) (West 2008) (emphasis added). I would conclude pursuant to the plain language of this statute that the bar to direct and collateral attacks on parental termination orders presumes valid service.
A trial court has no discretion in determining what the law is or applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Thus, the trial court’s clear failure to analyze or apply the law correctly constitutes an abuse of discretion. Id. While the trial court here never had the opportunity to consider application of subsection 161.211(b), the majority applies the provision as an absolute bar to considering whether the trial court ever acquired personal jurisdiction over Mother. , Accordingly, and because I disagree with such an interpretation, I begin my analysis with the principles of statutory construction to which we are bound.
In construing a statute, our primary objective, is to determine and give effect to legislative intent as expressed in the language of the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008); Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 16 (Tex.App.-Dallas 2007, pet. denied). We use the definitions prescribed by the legislature and consider any technical or particular meaning the words may have acquired. Hughes, 246 S.W.3d at 625 (citing Tex. Gov’t Code Ann. § 311.011(b) (West 2005)). Otherwise we construe the statute’s words according to their plain and common meaning. Tex. Gov’t Code Ann. § 311.011(a).
Regardless of whether the constitutionality of a statute has been challenged, an established principle of statutory construction also presumes legislative intent to comply with the Texas and United States Constitutions. See Dreyer v. Greene, 871 S.W.2d 697, 700 (Tex.1993) (Gammage, J., dissenting). We are instructed to avoid construing a statute in a manner rendering it unconstitutional. In re Green, 221 S.W.3d 645, 649 (Tex.2007) (per curiam) (orig. proceeding) (citing Tex. Gov’t Code Ann. § 311.021(1)); see also Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002) (“We must also, if possible, construe statutes to avoid constitutional infirmities.”). If two reasonable statutory constructions exist, one of which would render the statute unconstitutional and the other would not, we are obligated to adopt the reasonable and constitutional interpretation. Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 191 (Tex.App.-Fort Worth 1995, writ denied). These are principles of statutory construction and cannot be waived any more than subject-matter jurisdiction can be waived by not raising the argument in the trial court.
By the clear language of subsection 161.211(b), the bar applies only when a *828parent has been “served by citation by publication.” When a party is not properly served, process is invalid and the trial court acquires no personal jurisdiction over a defendant. Rone Eng’g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex.App.-Dallas 2010, no pet.). As a result, any judgment entered in reliance on invalid service is void and unenforceable. See id.; see also Paul v. Willis, 69 Tex. 261, 7 S.W. 357, 359 (1887) (“A void judgment can not bind any one, and it is well settled it may be collaterally attacked.”). The legislature did not elect in subsection 161.211(b) to bar attacks on termination orders where, for example, “service is attempted by publication,” a defendant is “purportedly served by publication,” “service is sought by publication,” or where a “good faith effort has been made to serve citation by publication.”
If we review the context in which service by publication is allowed, a construction of subsection 161.211(b) based on the plain language becomes even clearer. As the type of notice least likely to apprise the defendant of proceedings, service of citation by publication is a statutorily prescribed method of service allowed only when the whereabouts of a party are unknown. See Tex.R. Civ. P. 109; see also Mullane v. Cent. Hanover B. & T. Co., 339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (service by publication is method of notice least calculated to bring to potential defendant’s attention the pendency of judicial action). When a defendant is located, regular service of process is required as provided in Texas Rule of Civil Procedure 106. In re A.Y., 16 S.W.3d 387, 389 (Tex.App.-El Paso 2000, no pet.). Because authority for citation by publication derives solely from the statute, the requirements are strictly construed and the method prescribed is exclusive. See Wiebusch v. Wiebusch, 636 S.W.2d 540, 542 (Tex.App.-San Antonio 1982, no writ); see also Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985) (per cu-riam) (failure to show strict compliance with rules relating to proper service renders any attempted service invalid and requires setting aside default judgment). Thus, no service is effected unless all statutory requirements are met.
Considering the strict requirements the legislature has imposed before a party is served by publication and the plain language of subsection 161.211(b), construing “served by publication” to mean “purportedly served” would allow for absurd and patently unconstitutional results, which we are instructed specifically to avoid. See Hughes, 246 S.W.3d at 626 (presumption legislature “intended a just and reasonable result” in enacting statute; must avoid “absurd result” in construing plain meaning of statute); Krohn, 90 S.W.3d at 706. If, for example, “served” were to mean “purportedly served,” an absent parent, such as one in military service or away from home for some other reason, could forever lose parental rights through a party’s false rule 109 affidavit so long as the termination decree was not contested within the six-month limitation.
Here, while the majority’s interpretation of subsection 161.211(b) would suggest the legislature intended to eliminate all avenues of attack six months after termination of a parent’s rights — including those where the court never obtained personal jurisdiction over the parent — another reasonable reading of the statute that presumes proper service would not lead to unconstitutional results. See Tex. Gov’t Code Ann. § 311.021(1); cf. Velasco v. Ayala, 312 S.W.3d 783, 799-800 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (holding that to preclude movant from challenging void decree of divorce and termination of parental rights pursuant to rule 329 or section 161.211 would ignore that plaintiff failed at *829outset to invoke trial court’s jurisdiction because no valid service).
While I agree that this State’s policy is to provide stability and 'finality for children, see Tex. Fam.Code Ann. § 153.001(a)(2), the legislature’s intent could not be — especially when no clear language suggests — effectively to create a presumption under subsection 161.211(b) that it is always in the best interest of the child to terminate parental rights after the expiration of six months regardless, of whether the trial court ever acquired jurisdiction over the parent. Given the plain and specific language of subsection 161.211(b), the presumption the legislature intended the statute to comply with the Texas and United States Constitutions, and our obligation to construe statutes to avoid constitutional infirmities, I would conclude it was the intent of the legislature in enacting subsection 161.211(b) to bar attacks on parental termination orders only in situations where the parent was actually “served.”1
Service of Citation by Publication
To determine whether subsection 161.211(b) applies, we would be required to determine whether Mother was “served by citation by publication.” Mother contends the trial court abused its discretion by denying her motion for new trial because (1) the DFPS knew her whereabouts and therefore committed extrinsic fraud in procuring citation by publication, and (2) the DFPS’s affidavit was objectionable. In both issues, Mother argues service by publication was invalid. I would conclude that, even considering the entirety of the allegedly objectionable affidavit, the record before the trial court at the time of its termination decree did not support a finding of diligence sufficient to effect service by publication and, as a result, Mother was never served.
Here, after failing to serve Mother personally at the address listed in the petition or elsewhere, the DFPS attempted service of citation by publication. The DFPS’s August 24, 2007 affidavit supporting service stated in relevant part:
On this day personally appeared [Caseworker], who, having been by me duly sworn, on oath says:
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Neither the residence nor whereabouts of [Mother] is known to me, although diligent efforts have been made:
3/20/07 Caseworker spoke with [Mother] and she gave her contact address as [street address].
8/20/07 Caseworker received a message from DA indicating that he was unable to serve [Mother] at the above address.
8/20/07 Caseworker received a phone call from [the aunt] and she reported that [Mother] called her at [phone number] asking to speak with the children. 8/20/07 Caseworker spoke with [Mother] at [phone number] regarding her *830contact address. She stated that she is in the process of moving and does not have a permanent address.
The address in the affidavit was the same address listed in the DFPS’s petition for termination.
Approximately two months later, the trial court held a termination hearing at which Caseworker testified Mother visited her children at the DFPS office “last month [September] on the 4th.” She testified she had Mother’s phone number but was unable to obtain Mother’s address at the time of the visit. Caseworker also testified she would inform Mother regarding court hearings, and if Mother showed up, it would be after the hearing was already finished. Following the termination hearing, the trial court signed a final judgment terminating Mother’s parental rights.
Two years later, Mother filed a motion for new trial. At the hearing on Mother’s motion, Caseworker again testified, stating her contact with Mother was minimal, Mother’s appearance at prescheduled visitations and hearings was sporadic, and Caseworker gave Mother information regarding scheduled hearings “each time I spoke with the mother, whenever she was able to call me.” Caseworker also referenced a meeting with Mother at the DFPS’s office in August of 2007 — the period during which the DFPS was attempting to effect service by publication for the termination proceedings.2 The trial court denied Mother’s motion for new trial, and Mother appealed.
Mother contends these facts show the DFPS’s attempted service by publication was invalid. As described above, if service was not proper, the trial court never acquired personal jurisdiction over Mother and the termination decree is void and unenforceable. Rone, 317 S.W.3d at 508. Presented with this proceeding to terminate Mother’s rights — fully and finally — to her four children, we are obligated to “exercise liberality” in favor of Mother having her day in court after proper service of citation. See Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.-San Antonio 1987, no writ). “This is particularly true in suits affecting the parent-child relationship.” Id.
Under rule 109, the clerk is authorized to issue citation for service by publication when a party to a civil case makes an oath that it has been unable to effect personal service, the residence of a defendant is unknown, and after due diligence, the party has been unable to locate the whereabouts of the defendant. See Tex.R. Civ. P. 109; Wood v. Brown, 819 S.W.2d 799, 800 (Tex.1991) (per curiam); see also Tex.Fam.Code Ann. § 102.010(a) (in suits affecting parent-child relationship, citation may be served by publication to persons who cannot be notified by personal service or registered or certified mail, as in other civil cases). In such cases, the court first must determine the sufficiency of diligence in attempting to determine the residence or whereabouts of the defendant before granting judgment based on such service. Tex.R. Civ. P. 109; see Leithold v. Plass, 488 S.W.2d 159, 164-65 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ). If the trial court finds lack of diligence, the plaintiff is required to undertake additional efforts to comply with rule 109. In re A.Y., 16 S.W.3d at 389. The standard for diligence is no less where it is the DFPS seeking termination. See Tex. Fam.Code Ann. § 161.107(b) (“If a parent of the child has not been personally served in a suit in which the [DFPS] seeks termination, the department must make a diligent effort to locate that parent.”) (emphasis added).
*831Two Texas cases are particularly instructive in the analysis of Mother’s challenge to service by publication here. Both involve the diligence required when parties attempt to use publication, which is always the last resort for attempting to serve a party who cannot be located. See Velasco v. Ayala, 312 S.W.3d 783 (Tex.App.-Houston [1st Dist.] 2009, no pet.); In re Marriage of Peace, 631 S.W.2d 790 (Tex.App.-Amarillo 1982, no writ). The courts in both cases also emphasized the well-settled law that notice of a proceeding is irrelevant to the court’s jurisdictional inquiry into whether the parties were served with process. See Velasco, 312 S.W.3d at 797; Peace, 631 S.W.2d at 794.
The court in Peace was faced with review of husband Charles’s divorce decree obtained after Charles filed a rule 109 affidavit for service by publication in a Texas newspaper. After the court granted Charles a divorce, wife Guadalupe filed a rule 329 motion for new trial, which was denied. Peace, 631 S.W.2d at 791. Reversing the trial court’s denial of Guadalupe’s motion, the court concluded the record was devoid of evidence of diligence. The record showed the couple went to Mexico for annual vacations, they owned property in Mexico, Charles knew the location of residences for several of Guadalupe’s relatives, and he had received at least one telephone call from her. Id. at 793. The court emphasized Charles knew where to send mail and money to Guadalupe in Mexico, and he had sent at least one letter. Id. at 794. That Guadalupe knew of the pendency of Charles’s divorce action for a long period of time and made no effort to file an answer and contest the action in any way did not aid the trial court’s jurisdiction to render the divorce decree. Id.
Velasco involved a divorce and termination suit. As in Peace, the court reversed the trial court’s denial of a wife’s motion for new trial challenging service of citation by publication. See Velasco, 312 S.W.3d at 787. Husband Alfonso alleged his wife Bestabe resided in Mexico. Yet, he moved for citation by publication, stating in his affidavit, among other things, an overnight delivery service was informed Bestabe was dead. Id. at 788. As is required in all cases involving attempted service by publication, the trial court appointed an attorney ad litem to represent Bestabe. Id. at 789; see also Tex.R. Civ. P. 244. At a “Default Hearing,” Alfonso testified he had spoken with Bestabe by telephone during the course of- the proceedings and had discussed the divorce with her; Bestabe’s attorney ad litem testified that Alfonso “may have information on family members” who could assist in locating Bestabe. Velasco, 312 S.W.3d at 789. On appeal, the court concluded Alfonso did not effect valid service of process on Bestabe and thé trial court never acquired personal jurisdiction over her.3 Id. at 794-97. Although Alfonso had signed an affidavit stating Bestabe’s residence was unknown, his second amended petition filed the same day as the affidavit supporting service by publication listed an address for Bestabe in Mexico. Id. at 795. Alfonso also had spoken with Bestabe via phone during the course of the proceedings. Id. at 796. The court concluded “under all the circumstances of [the] case — which include that Alfonso knew Bestabe’s address in Mexico, had spoken to her by phone during the proceedings, and that Bestabe [did] not speak English — notice to Bestabe by publication in English in a Texas periodical did not constitute valid service....” Id. at *832797. As in Peace, the court noted that actual notice to a defendant of a pending suit, without “proper notice,” is not sufficient. Id.
Caseworker’s affidavit here stated, “[n]either the residence nor whereabouts of [Mother] is known to me.” But, as in Peace and Velasco, the record indicates the contrary. The live petition alleged a specific address where service could be effected on Mother personally, and Caseworker testified (1) she had a working phone number for Mother, (2) she could communicate with Mother by phone, (3) she spoke with Mother more than once, and (4) Mother had attempted to come to hearings. Caseworker’s affidavit even mentions a conversation between Mother and a relative who was the children’s guardian, yet the record shows no attempt by Caseworker to contact any of Mother’s relatives for purposes of service. See Peace, 631 S.W.2d at 793; Leithold, 488 S.W.2d at 163. Critically, Mother visited her children at the DFPS office during a pre-arranged visit and was at that location for approximately an hour, an opportunity to effect personal service. Because Mother was located, regular service of process was required. See In re A.Y., 16 S.W.3d at 389 (citing Tex.R. Civ. P. 106). Even though evidence exists that Caseworker informed Mother of the termination hearing, such notice would be insufficient to confer jurisdiction over Mother. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990).
Under all the circumstances of this case — which include the DFPS’s knowledge of Mother’s working phone number and contact address, Caseworker’s personal meeting with Mother for over an hour at the DFPS’s offices during the time service by publication was being pursued, knowledge of the whereabouts of at least one relative, and the contradictions between the rule 109 affidavit and live testimony regarding Mother’s whereabouts — I would conclude Mother was never “served by citation by publication.” Tex. Fam.Code Ann. § 161.211(b); see Tex.R. Civ. P. 109. Because attempted service was invalid, the trial court never acquired personal jurisdiction before signing the decree of termination, and the judgment terminating Mother’s parental rights is void. In re Bokeloh, 21 S.W.3d 784, 793 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding).4
Conclusion
On this record, I would conclude Mother’s challenge to the termination decree was not precluded by the six-month deadline under subsection 161.211(b) of the family code because Mother was never served by publication. Her challenge being timely, I also would conclude the trial court had no jurisdiction over Mother at the time of the termination decree and the judgment is void, thus making it an abuse of discretion for the trial court not to grant Mother’s motion for new trial. Accordingly, I would reverse the trial court’s judgment terminating Mother’s parental rights and, because Mother, is now subject to the jurisdiction of the court, see Tex.R. Civ. P. 123, would remand for further proceedings. As the majority correctly emphasizes, stability of children is a foremost *833concern of this State. We also have a clear mandate from the legislature to interpret statutes according to their plain language and to presume legislative intent to comply with the Texas and United States Constitutions. Tex. Gov’t Code Ann. §§ 311.011(a), 311.021(1). For the reasons stated, I dissent.
. While this Court recently addressed subsection 161.211(b) in In re H.R.H., No. 05-07-01148-CV, 2008 WL 3984055 (Tex.App.-Dallas Aug. 29, 2008, no pet.) (mem. op.), that case is distinguishable from the one before us now. In that case, a pro se appellant attempted for the third time to set aside an order terminating his parental rights. Id. at *1. Previously in the proceedings, we concluded we had no jurisdiction over the appellant’s appeal because his notice was untimely under Texas Rule of Appellate Procedure 26.1(b). See In re H.H., No. .05-07-00139-CV, 2007 WL 730869 (Tex.App.-Dallas Mar. 12, 2007, no pet.) (per curiam) (mem. op.). On the appellant’s third attempt, and citing subsection 161.211(b), we stated, ’’[a]ny collateral or direct attack on the August 15, 2006 order was precluded after February 28, 2007.” In re H.R.H., 2008 WL 3984055, at *3. Unlike Mother’s cáse, the pro se appellant in H.R.H. made no argument regarding validity of service of the termination proceedings, distinguishing his case from Mother’s.
. It is unclear from the record whether this is the same meeting Caseworker referenced at the termination hearing as being in September.
. Service of process pursuant to the Hague Service Convention was required because Bestabe resided in Mexico. Velasco, 312 S.W.3d at 792 (citing Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361 (entered into force Feb. 10, 1969)).
. Mother's attorney ad litem at the hearing on the petition for termination stated only that Mother "was served by publication, and I believe that publication would have been ripe on October 15, 2007.” Her presence and statement, however, do not give the trial court personal jurisdiction over Mother. See Velasco, 312 S.W.3d at 799 ("[BJecause we have concluded that the trial court did not acquire personal jurisdiction over [movant] at the commencement of the suit, the subsequent actions of the trial court in authorizing the ad litem to represent her interests at trial, and everything that flowed therefrom, are likewise a nullity.”).