REVERSE and REMAND; and Opinion Filed November 17, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00717-CV
IN THE INTEREST OF C.R.G., A CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-23867
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Schenck
Appellant Nicholas Vargas, IV, the putative father of a child born to E.A.G., appeals the
dismissal of his petition for bill of review for lack of jurisdiction. In a single issue, Vargas
asserts that the trial court improperly granted E.A.G.’s plea to the jurisdiction because he has
standing to challenge the constitutionality of the statute under which his paternity was
terminated. We reverse the trial court’s order granting E.A.G.’s plea to the jurisdiction and
remand the case for further proceedings. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
E.A.G. gave birth to C.R.G., the child at issue in this case, on November 16, 2015. On
February 29, 2016, when C.R.G. was three months old, E.A.G. filed a petition to terminate the
parent-child relationship between C.R.G. and his father under section 161.002(b)(3) of the family
code. The petition alleged that C.R.G. had no presumed father and that his alleged father was
“unknown.” Section 161.002(b)(3) provides that the rights of an alleged father may be
terminated if the child is under one year of age at the time the petition for termination is filed and
the father has not registered his intent to claim paternity. TEX. FAM. CODE ANN. § 161.002(b)(3)
(West Supp. 2016). An alleged father who files a notice of his intent to claim paternity no later
than thirty-one days after the child’s birth is entitled to be notified of a proceeding for adoption
or termination of parental rights. Id. § 160.403 (West 2014). When no notice of intent has been
filed with the paternity registry, however, the termination of parental rights under section
161.002(b) does not require personal service of citation or citation by publication on the alleged
father and there is no requirement to identify or locate an alleged father. Id. § 161.002(c–1)
(West Supp. 2016). E.A.G. attached to her petition a certificate from the Texas Department of
State Health Services certifying that no man had given notice of his intent to claim paternity of
C.R.G. Vargas was not named in the petition and was not notified of the proceeding.
On May 6, 2016, the trial court entered a termination order. In the order, the court made
various findings, including findings that no alleged father exists, no alleged father has registered
with the paternity registry, and termination of the parent-child relationship between the alleged
father and C.R.G. is in the best interest of the child. The court ordered that the parent-child
relationship, if any exists or could exist, between “Unknown” and C.R.G. is terminated.
Almost three months later, Vargas filed a petition in Suit Affecting Parent-Child
Relationship. He did so because communications with E.A.G. broke down and it became
apparent she was not going to allow him to see C.R.G. In the course of that proceeding, Vargas
learned for the first time that his parental rights had been terminated in the earlier proceeding.
He then filed a motion for new trial and a petition for bill of review. In his motion for new trial,
Vargas asserted that he is C.R.G.’s father and that E.A.G. knew he was the father and falsely
represented to the court that the identity of C.R.G.’s father was unknown. In response, E.A.G.
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filed a plea to the jurisdiction and motion to strike, asserting the trial court had lost its plenary
power and had no jurisdiction to hear the motion. The trial court agreed with E.A.G. and granted
her plea. On restricted appeal of the order granting E.A.G.’s plea, we concluded, because Vargas
was not a party to the termination suit, he could not seek relief by restricted appeal. 1 See In the
Interest of C.R.G., No. 05-16-01490-CV, 2017 WL 526611, at *2 (Tex. App.—Dallas 2017, no
pet.) (mem. op.). Accordingly, we dismissed that appeal for want of jurisdiction.
Before us now is Vargas’s appeal of the trial court’s order granting E.A.G.’s plea to the
jurisdiction on his bill of review action. By verified petition for bill of review, Vargas sought to
challenge the constitutionality of the statute under which his parental rights were terminated,
namely section 161.002(b)(3) of the family code, as it applies to him. He claims he was
prevented from asserting a right to C.R.G. by acts of E.A.G., who is a practicing family law
attorney, and his own disabling medical condition. In support of these claims, Vargas alleged the
following. In July 2015, he was in a serious motorcycle accident. He was in a medically
induced coma for several days and was hospitalized for several months, during which time he
underwent various surgeries including surgeries on his brain and head. He was resident in an
inpatient care facility until February 2016. During most of that time, he could not eat, speak,
walk, write, or bathe himself. On or about October 14, 2015, while he was an inpatient, E.A.G.
confirmed to him that she was pregnant with his child. He provided financial support to E.A.G.
for prenatal and postnatal expenses and came to an agreement with E.A.G. with respect to their
rearing of the child. They also specifically discussed litigation and agreed it was unnecessary.
Over the ensuing months, E.A.G. and he continued to discuss their child. On January 27, 2016,
1
To be entitled to pursue a restricted appeal, an appellant must establish: (1) he filed notice of the restricted appeal within six months after
the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate either in person or through counsel in the hearing
that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of
law; and (4) error is apparent on the face of the record. TEX. R. APP. P. 30. These requirements are jurisdictional and, if not satisfied, preclude a
party’s right to seek relief by way of restricted appeal. In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.—Dallas 2011, no pet.).
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approximately one month prior to filing the termination suit, E.A.G. sent Vargas a photograph of
C.R.G. and thereafter arranged for him to meet his child. Based upon the foregoing, Vargas
alleged that because E.A.G. actively led him to believe they had an agreement about their child
and that litigation was neither forthcoming nor necessary, and because his own medical condition
rendered him incompetent to even sign his own name, his failure to assert a defense and to timely
register his claim of paternity are justified and not due to any fault or negligence on his part.
E.A.G. filed a plea to the jurisdiction asserting Vargas lacks standing to bring a bill of
review action because he was not a party to the underlying action. The trial court granted
E.A.G.’s plea, later vacated its order granting the plea, and then subsequently granted E.A.G.’s
plea and dismissed the case. This appeal followed.
STANDARD OF REVIEW
Subject-matter jurisdiction is essential to the authority of a court to decide a case. Waco
Ind. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Standing is a necessary component
of subject-matter jurisdiction and cannot be waived. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 553–54 (Tex. 2000); KM-Timbercreek, LLC v. Harris Cty. Appraisal Dist., 312 S.W.3d
722, 725 (Tex. App.—Houston [1st Dist.] 2009, no pet.). If a party lacks standing, the trial court
has no jurisdiction to hear the case. Blue, 34 S.W.3d at 553–54. A trial court decides a plea to
the jurisdiction by reviewing the pleadings as well as any evidence relevant to the jurisdictional
inquiry. Id. at 555.
We review a trial court’s ruling on a plea to the jurisdiction de novo, construing the
pleadings liberally in favor of the plaintiff while considering the pleader’s intent. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). Where, as here, the plea to
the jurisdiction does not introduce contradictory evidence, we accept all factual allegations of the
challenged pleading as true. Harrill v. A.J.’s Wrecker Serv., Inc., 27 S.W.3d 191, 194 n.1 (Tex.
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App.—Dallas 2000, pet. dism’d). We cannot examine the merits of the case. See Houston
Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2006,
pet. denied).
DISCUSSION
Because this case was dismissed for lack of jurisdiction, we do not consider whether the
statute at issue is or is not constitutional as it applies to Vargas, and we need not consider or
address the parties’ arguments concerning same. Rather, we limit our consideration to the issue
of standing. In her plea to the jurisdiction, E.A.G. asserted Vargas lacks standing to maintain a
bill of review action challenging the termination order because he did not register with the
paternity registry. On appeal, she urges, as she did before the trial court, that this Court’s
decision in Baby Girl S and the Supreme Court’s decision in Lehr are controlling in this case.
See Lehr v. Robertson, 463 U.S. 248 (1983); In re Baby Girl S, 407 S.W.3d 904 (Tex. App.—
Dallas 2013, pet. denied). We disagree. While Baby Girl S involved a bill of review action and
a father who had not registered with the paternity registry, the court did not find a lack of
standing or jurisdiction. Instead, that case proceeded to trial on the merits with a summary
judgment ultimately entered in favor of an adoption agency. Baby Girl S, 407 S.W.3d at 907.
Lehr, likewise was a merits determination of the putative father’s constitutional challenge, not a
standing determination. Lehr, 463 U.S. at 253. In those cases and others, the courts exercised
jurisdiction over cases involving termination of parental rights and registry requirements. See
e.g., In re D.A., No. 02-09-00460-CV, 2010 WL 3618718 (Tex. App.—Fort Worth Sept. 16,
2010, no pet.) (mem. op.); In re C.M.D., 287 S.W.3d 510 (Tex. App.—Houston [14th Dist.]
2009, no pet.). 2 E.A.G.’s attempt to conflate a merits determination of Vargas’s constitutional
2
In addition to these decisions in post-termination matters, the Texas Supreme Court has more broadly recognized a party’s right to maintain an
action seeking a bill of review alleging a due process violation for misinforming the court that entered the default in a manner that frustrates
notice. See Katy Venture Ltd. V. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015).
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challenge with standing is unavailing.
To have standing, the plaintiff in the bill of review action must have been a party to the
prior judgment or have had a then-existing right or interest prejudiced by the resulting judgment.
Dolenz v. Wells, No. 05-06-00840-CV, 2007 WL 259196, at *1 (Tex. App.—Dallas Jan. 31,
2007, pet. denied) (mem. op.) (emphasis added). E.A.G. maintains that the prior suit terminated
Vargas’s claimed parental rights. That interest was thus clearly prejudiced for purposes of
establishing his interest to support his claim of standing to pursue this bill of review. See Troxel
v. Granville, 530 U.S. 57, 65 (2000); In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994).
At this juncture, we need not determine whether the lack of notice to Vargas deprived
him of a constitutionally protected right. Vargas has pled, and we are obliged to accept as true,
that he is the biological father of C.R.G., that his parental rights were terminated by the
termination decree, and that he did not receive notice of the termination proceeding even though
E.A.G. acknowledged him as the father, knew of his whereabouts and condition, and consciously
avoided affording him actual notice of the proceeding to terminate his parental rights. See
Harrill, 27 S.W.3d at 194 n.1. In addition, the order Vargas seeks to overturn is an order
terminating his parental “rights.” We conclude, Vargas’s pleadings and the interests involved
suffice to confer standing on Vargas to raise his constitutional challenge by bill of review.
Troxel, 530 U.S. at 65 (recognizing federal constitutional right); J.W.T., 872 S.W.2d at 195 (“the
natural right which exists between parents and their children is one of constitutional dimension”).
Accordingly, we sustain Vargas’s sole issue.
For the first time on appeal, E.A.G. challenges the sufficiency of Vargas’s verification of
his bill of review. The verification of a petition or answer may be waived. Thrower v. Johnston,
775 S.W.2d 718, 721 (Tex. App.—Dallas 1989, no pet.). Because E.A.G. failed to object to the
sufficiency of the verification, the defect in the verification, if any, has been waived. Id.
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CONCLUSION
We reverse the trial court’s order dismissing this case and remand for further
proceedings.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
170717F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF C.R.G., A CHILD, On Appeal from the 256th Judicial District
Court, Dallas County, Texas
No. 05-17-00717-CV Trial Court Cause No. DF-16-23867.
Opinion delivered by Justice Schenck.
Justices Francis and Brown participating.
In accordance with this Court’s opinion of this date, the order of the trial court dismissing
this case is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant recover his costs of this appeal from appellee Elizabeth
Anne Granado.
Judgment entered this 17th day of November, 2017.
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in the Interest of C.R.G., a Child
Combined Opinion