dissenting.
I cannot agree that res judicata, an equitable doctrine, should bar the present suit to set aside a void judgment of termination of the parental rights of the father. Neither can I agree with the majority that, in a termination case, the policy of finality of judgments should prevail over the policy, enunciated by the legislature in the Texas Family Code, that the best interests of the children should be paramount in any suit *762affecting the parent-child relationship. In this respect, at no hearing have the interests of the children been considered, except at a hearing in 1980, in which the evidence showed that termination was not in the children’s best interest, but the visitation order predicated on this hearing was aborted by the trial judge on the ground of res judicata. At the very least, the appeal of the children’s guardian ad litem should be sustained and this cause remanded. The facts as reflected by the record indicate that an appalling miscarriage of justice has occurred and will be perpetuated unless an evidentiary hearing is had with respect to the best interest of the children and a ruling had based on the merits. Consequently, I am compelled to dissent.
This action commenced on February 10, 1976, when Mrs. Vasquez, then Mrs. Stephens, filed a suit to terminate Joiner’s1 parental rights. Mrs. Vasquez and Joiner were divorced in Oklahoma in 1971. That court awarded custody of the couple’s two children to Mrs. Vasquez, with Joiner having reasonable visitation, and ordered Joiner to pay reasonable child support. In her original petition, Mrs. Vasquez sought termination on the ground that Joiner failed to pay court-ordered child support. An attempt was made to serve citation upon Joiner in Oklahoma, where he was a resident, but the citation was returned unexe-cuted on March 9, 1976. Mrs. Vasquez’ counsel then filed an affidavit for citation by publication and, thereafter, service was attempted by publication. On May 18, 1976, a trial was had before the first judge,2 at which Joiner was represented by court-appointed counsel, who neither filed an answer nor otherwise actively participated at trial; the only evidence tendered was the testimony of Mrs. Vasquez and Greg Stephens, her husband at the time of the trial. Mrs. Vasquez testified that her male child by Joiner was currently in Joiner’s custody because her second husband (yet another man) had taken the child from her home to Joiner and that she believed that termination would be in the best interests of her children. Stephens testified that he had been in contact with Joiner’s parents and had attempted to locate Joiner but was unable so to do. At the conclusion of the testimony, the trial judge stated that because Joiner had physical custody and was supporting his son, the court would not terminate Joiner’s parental rights on the ground of nonsupport. However, no order was entered reflecting this decision. On June 2, 1976, Mrs. Vasquez amended her petition to allege that Joiner had endangered the physical and emotional well-being of the male child. No attempt was made to serve Joiner with this amended petition, nor was a hearing held or evidence presented to support termination on this ground. Nevertheless, the judge rendered a Decree of Termination on June 3, 1976, which found that (1) the court had jurisdiction over the parties and subject matter and that no other court had continuing jurisdiction; (2) Joiner was guilty of nonsupport as to both children; (3) Joiner had placed “the child” (inferably the male child) in dangerous conditions; (4) termination was in the children’s best interests; and (5) Mrs. Vasquez should be appointed as the children’s managing conservator.
Thus, the trial judge rendered her decree without inquiring into the children’s best interests, without inquiring into the diligence used in attempting to serve Joiner with the original petition as required by Tex.R.Civ.P. 109, without preparing a statement of evidence as required by Tex.R. Civ.P. 244 and 812, without any attempt to serve Joiner with notice of Mrs. Vasquez’ trial amendment, without any findings as to the court’s ground for asserting jurisdiction over Joiner, without any pleadings to support the appointment of Mrs. Vasquez as the children’s managing conservator and despite the fact that the court had previously declined to terminate Joiner’s rights as to the male child on the ground of nonsupport.
On February 24, 1977, Joiner filed a petition in the trial court entitled “Motion for Bill of Review.” At a hearing thereon, before Judge Penfold, the second judge in*763volved here, Joiner presented testimony attempting to show that Mrs. Vasquez failed to use diligence in attempting to serve him with citation. Although Joiner’s petition should have been considered a motion for new trial pursuant to Tex.R.Civ.P. 329, the trial judge treated it instead as a bill of review. Under rule 329, the court should have granted Joiner a new trial based upon the testimony presented, but because the trial judge mistakenly treated the petition as a bill of review, he required Joiner to establish that he had a meritorious defense as well, upon which no evidence was presented. Thus, he denied Joiner’s petition, although he found that Mrs. Vasquez had perpetrated a fraud on the court, that failing to answer was not Joiner’s fault, and that no other remedy existed. Although Judge Penfold stated that this was the worst record of any termination case he had ever heard and that Mrs. Vasquez had perpetrated a fraud on the court, he incorrectly believed that he was precluded from granting relief because Joiner had not established a meritorious defense with respect to Mrs. Vasquez’ amended petition in the first action. Joiner’s failure to appeal this order is the ground upon which the majority invokes the doctrine of res judicata to preclude this matter. Thus, this tragedy for these children has been perpetuated.
Joiner did not appeal the denial of his motion, but instead, under the apparent theory that the trial court had continuing jurisdiction, filed a second bill of review five days after the first bill of review was denied. On March 7, 1978, the trial court denied the second bill of review without a hearing based upon the res judicata effect of the first bill of review. No appeal was taken from this order.
Subsequent to the first two petitions designated as bills of review, Mrs. Vasquez entered into a contract with Joiner, whereby Joiner would pay her certain sums of money in exchange for permitting him regular weekend possession of the children and further that Mrs. Vasquez would consent to Joiner’s adoption of his children. Pursuant to this contract, visitation was implemented by Joiner seeing the children regularly until Mrs. Vasquez again changed her mind and severed contact between Joiner and his children before she had permitted an adoption to take place.3
Thereafter, Joiner’s parents filed a petition in the old termination suit, seeking grandparent visitation rights with their grandchildren and, on October 29,1979, the trial judge signed an agreed temporary order4 appointing Joiner and his parents as temporary possessory conservators of the children and giving Joiner visitation rights.5 On February 8 and 27,1980, the trial judge conducted a hearing to determine whether the agreed temporary orders should be extended. Although the court-appointed psychologist testified at the hearing that it would be in the best interests of the children for Joiner to have a permanent relationship with his children, the trial judge refused to extend the temporary order on the ground of res judicata asserted by Mrs. Vasquez, who had obviously again changed her mind.
On January 3, 1980, after retaining new counsel, Joiner filed a third bill of review. Without a hearing, the trial judge again denied the petition on the ground of res judicata. From this bill of review, Joiner has now appealed to this court. Thus, from the time of the original termination proceeding in 1976 through the third bill of review, the best interest of the children was considered in only one instance, the hearing on a continuation of the agreed temporary *764order in 1980, at which no evidence was adduced supporting termination but instead all of the evidence showed that the best interest of the children would be served by permitting the children to visit and to continue their relationship with their father. Indeed, the psychologist testified that both children were emotionally disturbed by lack of association with their father and could be permanently scarred emotionally because both had been told by their mother that Joiner did not want to have anything to do with them. Consequently, both felt rejected by their father. Extraordinarily, this situation persists although Joiner has been engaged for over six years in a vain attempt to be able to retain a parental relationship with his children. Indeed, his efforts have been remarkable and commendable in this respect.
Unlike the majority, I cannot agree that an appellate court is impotent to act to rectify the tragedy of errors which has dogged and precluded a consideration of the best interests of these children. Needless to say, the doctrine of res judicata should not be employed by the trial court and this court to bar a consideration of what is in the children’s best interest. The question presented is actually one of policy, i.e., should the policy behind finality of judgments prevail over the policy of the Texas Family Code decreeing that where children are concerned their best interest should be the paramount concern of the court?
With respect to res judicata, we noted in Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869, 877 (Tex.Civ.App.—Dallas 1980, no writ), that the supreme court has held that where the matter had not been actually litigated, the question of whether causes of action which could have been litigated, but were not, would not invoke application of the harsh doctrine of res judicata to bar further litigation unless compelling public policy considerations would be substantially offended by the new action before it is precluded by res judicata. Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531, 532 (Tex.1973). Here no compelling policy considerations are offended by reversing this denial of the bill of review and by permitting a determination on the merits of what is in the best interest of the children. To the contrary, the majority, as well as the trial court, uses the doctrine of res judicata to preclude a consideration of the best interest of the children, which in my view is untenable.
In Kownslar, the supreme court stated that, in determining whether, as a matter of policy, res judicata should apply to bar a second action, a court must look first to whether there is a Texas case directly in point, and if not, whether some substantial policy consideration would be offended. Id. at 532. Here, no Texas case is directly in point and neither is any substantial policy consideration offended. Indeed, the contrary is true. In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980), the supreme court, in holding that a clear and convincing proof standard was required in termination cases, noted that “termination is a drastic remedy and is of such weight and gravity” that due process required a burden of proof greater than a preponderence of the evidence in involuntary termination cases. In light of the supreme court’s strong expression with respect to the proof required in an involuntary termination case, I cannot believe that the supreme court would endorse application of the doctrine of res judicata to preclude a full hearing to determine the best interest of children in a termination case, especially in a case such as this where no evidence to support the termination decree has ever been adduced.
Neither does the supreme court decision in Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963), relied upon by the majority, support their decision. Ogletree concerned custody of children rather than termination of parental rights. Different considerations are applicable to a termination case where the judgment of the court, even though erroneous, is final, as opposed to a custody dispute where the order of the court is subject to further review by the trial court at a later date based upon changed conditions as to the children. In a custody case, if a mistake is made with respect to the best interest of children, the trial court has continuing jurisdiction to rectify that mistake if the circumstances of the children so justify. *765To the contrary, in a termination case, such as here, the judgment is final for eternity, even though the children may suffer in the sole custody of their mother, in addition to being deprived of a relationship with their father. Indeed, if her circumstances continue as shown here, the children may need the intervention of their father, which would be precluded by the majority’s decision. See Durham v. Barrow, 600 S.W.2d 756 (Tex.1980). Consequently, Ogletree is not precedent to support the conclusion of the majority, which if left to stand, precludes forever the relationship between a father and his children, which a court appointed expert concluded was not in the children’s best interest. Indeed, Ogletree is inapposite to the majority’s holding because that court considered the best interest of the children in determining, as a matter of policy, to utilize res judicata to preclude further custody litigation at that time.
Moreover, we have held in C_ v. C_, 534 S.W.2d 359 (Tex.Civ.App.—Dallas 1976, no writ) that the best interest of children is the primary concern of the court and that the ordinary procedural rules restricting the granting of a new trial should not be strictly adhered to by the trial court where the best interest of children is concerned. Likewise, the rationale of C- v. C- should apply here and we should hold that the best interest of children should not be precluded by the policy behind finality of judgments, especially in a termination suit such as here.
Furthermore, the majority refuses to consider the merits of the minor children’s attack on the termination decree because the children’s guardian ad litem did not seek a bill of review by pleading in the trial court and did not appeal the dismissal of Joiner’s third bill of review. The majority concludes that because the guardian ad litem sought no affirmative relief in the trial court, the children are precluded forever from relief, apart from their father, in this court. With this I cannot agree.
The primary purpose in appointing a guardian ad litem is to insure that the interests of minor children are protected. In the trial court, the guardian ad litem did not need to join in Joiner’s pleading nor offer any evidence because the trial judge had the entire record of all the prior proceedings before him, as well as Joiner’s contentions in which the children now join on appeal. All of Joiner’s contentions on this appeal have been considered by the trial judge in the various hearings. In none of these proceedings was the best interest of the children considered, except in a hearing in 1980 in which the interest of the children was considered, and where the evidence showed that Joiner’s parental rights should not be terminated. Under the rationale of C_v. C_, this evidence was so compelling so as to require the trial judge to hold a full evidentiary hearing, with all parties present, to present, and to consider, evidence on what was in the best interest of the children and to make a decision on the children’s best interests on that evidence.
Likewise, under the rationale of C_ v. C_, this court should consider the merits of the children’s claim apart from Joiner’s parental rights, because the children are the real parties in interest. The guardian ad litem has joined Joiner in seeking a new trial so that the best interest of the children can be determined, which should be the primary concern of this court, as well as of the trial court. The law requires a court to consider the best interest of the children in a termination case and a guardian ad litem is appointed to insure that those interests are in fact protected. The majority’s position precludes us from considering the guardian ad litem’s appeal in behalf of the children because, although presented to the trial judge by Joiner, the guardian did not adopt Joiner’s pleadings in the trial court. With this I cannot agree because the guardian ad litem is charged with protecting the children’s interests, both in the trial court and in this court. The majority is again using a technical procedural rule, of doubtful application in this termination suit, to preclude a hearing of that which is in the children’s best interest.
Neither can I agree with the majority’s assertion that their opinion does not bar forever the children’s rights because a guardian ad litem’s representation is limit*766ed to matters related to the suit for which he was appointed. Durham v. Barrow, 600 S.W.2d 756, 761 (Tex.1980). Just as Joiner, the guardian appointed here would be barred by res judicata to bring another bill of review on behalf of the children under the majority’s rationale. Likewise, Joiner would lack standing to bring a bill of review, as next friend of the children, because his parental rights have been terminated. Id. at 760. Thus, under the majority’s holding, the judiciary is forever rendered impotent to rectify this travesty of justice for these children. Small wonder that the judiciary has been held up to ridicule by laymen.
Faced with the plethora of judicial errors replete in this case, the majority’s observation, with respect to the first and second bills of review, that “judicial power includes the power to make erroneous as well as correct decisions” is small comfort to a father denied contact with his children and to the children for whom no evidentiary hearing has been had nor ruled upon by any judge with respect to what is in their best interest. Instead, the majority’s rationale is but another judicial reason to frustrate the overriding public policy of determining that which is in the best interest of children in favor of procedural technicalities.
The majority places great emphasis on whether the termination decree in 1976 was void or voidable. In my view, the original decree is void for lack of jurisdiction over Joiner, which was clearly established on the first “bill of review” hearing. Additionally, it is void because the petition upon which termination was decreed was not even attempted to be served upon Joiner even by publication. Indeed, no attempted service was had nor was a hearing had upon the amended pleading. I would suggest that, even more importantly, the judgment is void because the trial court simply lacked the jurisdictional power to render an order purporting to be in the children’s best interest, when their best interest had not been considered. See Hodges, “Collateral Attacks on Judgments,” 41 Tex.L.Rev. 499 (1963).
Although the original decree of termination was unquestionably void, our question
is whether subsequent unsuccessful attacks upon it in the trial court can impart validity to that void decree. To support its conclusion in holding that it does, the majority relies upon the denial of the first bill of review to breathe life into a void judgment on the basis of the failure of Joiner to appeal! This conclusion is predicated upon res judicata, a species of estoppel. Estoppel, of course, is based upon equitable principles, which should not be employed to uphold a void termination judgment procured by fraud upon the trial court. See First State Bank & Trust Co. v. Overshiner, 198 S.W. 979 (Tex.Civ.App.—El Paso 1917, no writ) (“the trial court has the authority to set aside a judgment which is a nullity, notwithstanding it has been affirmed upon appeal”). See also Evans v. Young County Lumber Co., 368 S.W.2d 783, 786 (Tex.Civ.App.—Ft. Worth 1963, writ dism’d) (a void judgment “may be collaterally attacked in any court at any time, including a time after appeal is perfected”). It appears to be that a void judgment in a termination suit is subject to attack at any time in any court, Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Commander v. Bryan, 123 S.W.2d 1008 (Tex.Civ.App.—Ft. Worth 1938, no writ). See also Ruby v. Davis, 277 S.W. 430 (Tex.Civ.App.—Amarillo 1925, no writ). Consequently, I would hold that the equitable doctrine of res judicata, based on the public policy with respect to finality of judgments, should not be utilized as a reason for precluding a hearing and a ruling on whether the parental rights of Joiner should be terminated, considering the children’s best interest. See Ogletree v. Crates, supra, see also Gilbert v. Fireside Enterprises, Inc., supra.
In conclusion, I cannot join in a decision that places the policy concerning finality of judgments over the policy of considering the best interest of children in a termination case. Accordingly, I am compelled to dissent in this tragedy of judicial errors. This case cries out for justice for these children to be determined in an evidentiary hearing and ruled upon by the evidence presented. My view is particularly compelled by the constitutional constraints *767placed upon termination of parental rights by the United States Supreme Court and the Texas Supreme Court. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976).
GUILLOT, J., concurs.. Joiner was the first of Mrs. Vasquez’ four husbands.
. The judge who presided over the original proceedings was not the present trial judge.
. This information was attached to a motion by Joiner to supplement the transcript, which motion was denied on September 3, 1980, by a panel of this court (including the author of the majority opinion but not the dissenter) on the ground that the information was immaterial to a resolution of this case.
. This order was agreed to by Mrs. Vasquez and Joiner, thus tending to negate her original contention that Joiner placed his son in “dangerous circumstances.” Indeed, no evidence has ever been presented to any judge supporting this allegation.
.Apparently, Judge Penfold also believed he had continuing jurisdiction of the parent-child relationship.