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IN RE: D.D., Relator.
Relator, D.D., the presumed father of child “Baby J,” seeks mandamus against Respondent, the Honorable Jesus Rodriguez of County Court at Law Number 5 of El Paso County. Relator challenges the trial court's order terminating the mother's parental rights and appointing non-parent managing conservators of the child and order denying his writ of habeas corpus seeking to recover immediate possession of the child. Real Parties in Interest are J.D.S. and P.D.S., the prospective adoptive parents of Baby J. We conditionally grant mandamus relief.
We find that the lack of notice to Relator, violated his due process rights. We declare void and direct the trial court to vacate the October 9, 2020, order granting termination and conservatorship and the December 11, 2020, order terminating the rights of the “unknown father.” Furthermore, because we find that the trial court clearly abused its discretion in denying the writ of habeas corpus, we direct the trial court to vacate its order denying the writ. Finally, we deny Relator's request to order immediate surrender of the child and remand that issue to the trial court for further proceedings.
On September 17, 2020, T.H. gave birth to Baby J while married to D.D. Shortly before the baby's birth, T.H. agreed to voluntarily relinquish her parental rights to Baby J and appoint J.D.S. and her husband, P.D.S.—who she met a week before through Facebook—as managing conservators so that they could adopt the baby. D.D., T.H.’s husband and presumed father of the child, was unaware of T.H.’s intention to give up the child.
In communications with J.D.S. before the baby's birth, T.H. repeatedly referred to her “husband,” by name. However, T.H. told J.D.S., “Unfortunately my husband will not be signing anything due to he's embarrassed says he feels less of a man. But my aunt said it's ways around that you can put unknown and my husband doesn't have to sign.”1
J.D.S.’s attorney, John L. Williams, drafted Affidavits of Voluntary Relinquishment of Parental Rights for both D.D. and T.H. to sign. When she received them from J.D.S., T.H. told her to have Attorney Williams remove D.D.’s name and put father as “unknown,” stating, “Because if my husband name is on their he will have to sign. It want go through unless we both sign.” J.D.S. responded, “I'll let him know to switch those ASAP!” T.H. continued, “And he doesn't have to give [D.D.] rights to any of this ․ You can tell him [D.D.] is who I'm in a relationship with but is not the father the father is unknown so he want have to find a sitter etc or go out his way to sign.” J.D.S. responded, “Okay, so he's reworking a few of the things and removing the father's affidavit.”
Shortly thereafter, J.D.S. received revised paperwork from Attorney Williams which stated that the identity and whereabouts of the father of the child were unknown. The father's affidavit of relinquishment was gone as were all references to D.D. On September 19, 2020, while still at the hospital, T.H. signed the revised affidavit, voluntarily relinquishing her parental rights to Baby J and appointing J.D.S. and P.D.S. as Baby J's managing conservators. J.D.S. left the hospital with Baby J shortly thereafter. D.D. was unaware of these events.
Five days later, on September 24, 2020, J.D.S. and P.D.S. filed a petition to terminate the parent-child relationships of T.H. and an “unknown father,” and for the adoption of Baby J. The petition, signed by Attorney Williams, states, “There is no presumed or alleged father of the child. The identity and location of the father are unknown. No service is necessary at this time.” D.D. was not named or identified, nor was he served with citation.
On October 9, the trial court held a hearing on the termination of T.H.’s parental rights. D.D. was not provided notice of the hearing. J.D.S. was the only witness. She testified T.H. had told her the actual biological father of the child was unknown. Neither J.D.S. nor Attorney Williams disclosed to the trial judge that T.H. was married, there was a presumed father, or they had removed D.D.’s name and affidavit from the original documents. The trial court terminated T.H.’s parental rights and appointed J.D.S. and P.D.S. as managing conservators of Baby J that same day.
However, on October 19, T.H. emailed Attorney Williams directly, stating that while her rights to Baby J were “over,” her husband D.D. still had his. Further, she pointed out he did not know anything about what had happened and did not agree. She stated her husband would not consent to continuing with the adoption. She provided D.D.’s name, mailing address, email address, and telephone number to Attorney Williams. He replied to her email the same day, providing a copy of the affidavit of relinquishment she had signed but ignored her repeated assertions regarding her husband or her pleas to stop the adoption process. Attorney Williams did not notify the trial court there was a presumed father of the child or provide any information about D.D.
D.D. and T.H. began working together to regain possession of Baby J. They interviewed several attorneys seeking representation. On December 10, having retained counsel, T.H. filed a motion to dismiss, a revocation of her affidavit of relinquishment, and a revocation of her statement conferring standing on J.D.S. and P.D.S. That same day, Attorney Williams requested an immediate hearing on J.D.S.’s application for termination of the rights of the unknown father. He did not inform the trial court that there was a presumed father of the child. The hearing was held the next day—December 11 without notice to D.D. or T.H.
Attorney Williams and J.D.S. appeared at the second termination hearing and J.D.S. was the only witness who testified. Under questioning by Attorney Williams, J.D.S. asked the court to terminate the rights of Baby J's “unknown father.” She testified T.H. told “us” she didn't know the identity or location of Baby J's father and had no way to identify him. She testified no man had come forward claiming to be the father, and a search of the state paternity registry showed no man had registered as the father. Neither Attorney Williams nor J.D.S. disclosed to the trial court during the hearing T.H. claimed to be married or that Baby J had a presumed father. Attorney Williams did not mention his email exchange with T.H. in which she identified her husband D.D. After the hearing, without any knowledge of a presumed father, the trial court signed the December 11 Order terminating the rights of the alleged “unknown father.”2
On December 14, D.D. emailed Attorney Williams, identifying himself as father of Baby J, and asking for visitation with his child. Attorney Williams replied the next day declaring:
Under Texas law, a person who thinks they may be a father of a child has to file a notice with the Texas Paternity Registry within a month of the child's birth. You did not file with the Paternity Registry and I obtained a Certificate from the Paternity Registry showing that no man filed as father. Subsequently, we recently terminated the father's parental rights to the child. You do not have visitation rights for this child.
On December 21, T.H. withdrew her motion to dismiss, acknowledging that her revocation of affidavit of relinquishment had not been timely filed.
On February 3, 2021, counsel for D.D. entered an appearance in the case. Twenty days later D.D. filed an original petition in suit affecting the parent-child relationship seeking sole managing conservatorship of Baby J. That same day, D.D. filed a motion for stay of proceedings containing his marriage certificate to T.H. and amended birth certificate listing him as Baby J's father.
On March 1, 2021, D.D. amended his SAPCR petition and filed a petition for writ of habeas corpus seeking to recover immediate possession of Baby J, accusing J.D.S. and P.D.S. of perjury and perpetrating a fraud on the court. He attached to the petition copies of the text messages and emails among J.D.S., Attorney Williams, T.H., and himself.
The next day, Attorney Williams filed J.D.S. and P.D.S.’s amended petition to terminate and adopt accompanied by a motion to appoint an attorney ad litem. D.D. filed a petition for bill of review alleging that his due process rights had been violated. The amended petition sought to terminate D.D.’s parental rights as “alleged presumed father” of Baby J. On March 3, 2021, J.D.S. and P.D.S. filed a counterpetition to D.D.’s SAPCR, seeking sole managing conservatorship of Baby J.
On March 4, 2021, the trial court held a hearing on D.D.’s application for writ of habeas corpus. J.D.S. admitted under oath she knew prior to Baby J's birth T.H. was married, and her husband's name was D.D. Further, she understood D.D. was unwilling to sign the documents. When asked how D.D.’s name came to be in the first set of relinquishment paperwork, she made it clear she did not give D.D.’s name to Attorney Williams. Instead, Attorney Williams communicated directly with T.H. to get the information needed for the relinquishment affidavits.
D.D. also testified at the March 4, 2021, hearing on the application for writ of habeas corpus. He testified he was married to T.H. at the time of birth of Baby J and had been married to her since March 2014. No one had informed him of the termination hearings held on October 9 and December 11, 2020, although he had been trying to get the baby back since September 2020.
In closing argument at the habeas corpus hearing, Attorney Williams conceded D.D. was “apparently the presumed father” of Baby J. However, he denied being told prior to the December 11 hearing D.D. was married to T.H., making no mention of his October 19, 2020, email exchange with T.H.3 Attorney Williams conceded he had communicated via email with D.D. on December 15, 2020, in which he incorrectly informed D.D. he had no rights to Baby J. He explained his misstatements to the trial court stating he had not been told D.D. was married to T.H.
The court noted at the conclusion of the hearing that “there may have been some possible misrepresentations to the Court and miscommunications, and [D.D.] at some point should have been notified,” but denied the writ, stating that the order appointing the managing conservators was in place and “could not be ignored.”4
On March 8, 2021, the trial court consolidated into a single cause J.D.S.’s termination and adoption case, D.D.’s suit affecting parent child relationship, and D.D.’s bill of review, and appointed an attorney ad litem for the child.5
The trial court heard D.D.’s bill of review on April 28. D.D. again testified he and T.H. were married at the time of Baby J's birth. He was unaware of T.H.’s intention to allow Baby J to be adopted, and she hid the relinquishment and adoption plan from him. He said he wanted to raise his child. He was never informed about the petition to terminate and adopt. He confirmed he was never given notice of the October 9 or December 11 hearings.
J.D.S. also testified at the hearing. She stated T.H. first mentioned her husband within a few days of their first communication. She said she did not tell the court at the prior hearings T.H. was married because she “didn't know it was relevant.” The trial court denied the bill of review by written order dated May 4, 2021.
D.D. filed this petition for writ of mandamus on October 21, 2022, challenging the trial court's refusal to set aside the order terminating the mother's parental rights, the interlocutory order appointing non-parents J.D.S. and P.D.S. as non-parent managing conservators of the child, and the denial of D.D.’s writ of habeas corpus seeking to recover immediate possession of the child. D.D.’s SAPCR petition and J.D.S. and P.D.S.’s amended petition seeking termination of D.D.’s parental rights adoption of Baby J are still pending.
Relator, D.D., Baby J's presumed father, asserts that Respondent abused his discretion in four ways:
1. by refusing to set aside the October 9 order terminating the rights of the birth mother because (1) it was void for lack of notice to the presumed father, (2) no adoption evaluation had been filed as required by section 107.159(d) of the Family Code, and (3) there was insufficient evidence from which Respondent could have concluded that the termination was in Baby J's best interest;
2. by refusing to set aside the October 9 Order appointing non-parents as managing conservators of Baby J because it was void for lack of notice to the presumed father and violated section 153.131 of the Family Code and the presumed father's constitutional rights;
3. by denying the writ of habeas corpus and refusing to grant him immediate possession of the child once presented with evidence that the child had a legal parent whose rights had not been terminated; and
4. by failing to appoint an attorney ad litem for Baby J at the inception of the proceedings, as requested.
Real parties in interest J.D.S. and P.D.S. counter that mandamus is inappropriate in this case because, among other reasons, Relator's lack of diligence in pursuing his rights demonstrates a lack of urgent necessity and he has slumbered on his rights.6
Because we find the challenged orders void, we do not reach the issues of failure to obtain an adoption evaluation, sufficiency of the evidence of best interest, and failure to appoint an attorney ad litem for the child at the inception of the proceeding.
Standard of Review and Applicable Law
Parents have a liberty interest in the care, custody, and control of their children, and a fundamental right to make decisions concerning their care, custody, and control. In re H.R.L., 458 S.W.3d 23, 29 (Tex. App.—El Paso 2014, orig. proceeding) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and Bates v. Tesar, 81 S.W.3d 411, 435 (Tex. App.—El Paso 2002, no pet.)). “This fundamental right is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Id.
Proceedings involving the termination of parental rights must be strictly scrutinized. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). “[W]e must exercise the utmost care in reviewing the termination of parental rights to be certain that a parent's rights are acknowledged and protected.” In Interest of M.M.S., No. 14-16-00349-CV, 2016 WL 6134456, at *3 (Tex. App.—Houston [14th Dist.] Oct. 20, 2016, pet. denied) (mem. op.). “[A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action ․” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012) (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).
An order rendered in a case against a necessary party “who has neither been served nor received notice is ‘constitutionally infirm[.]’ ” See In re Miramontes, 648 S.W.3d 590, 606 (Tex. App.—El Paso 2022, no pet.) (citing PNS Stores, 379 S.W.3d at 272). A complete failure of service deprives a litigant of due process. In re P. RJ E., 499 S.W.3d 571, 574-75 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). When this has happened, the judgment is void. In re Miramontes, 648 S.W.3d at 606 (citing PNS Stores, 379 S.W.3d at 275). “And, consistent with Texas jurisprudence, a court has ‘not only the power but the duty to vacate the inadvertent entry of a void judgment at any time, either during the term [of plenary power] or after the term, with or without a motion therefor.’ ” Id. at 607 (quoting Thomas v. Miller, 906 S.W.2d 260, 262 (Tex. App.—Texarkana 1995, no writ)) (additional citations omitted).
A “parent as to whom the parent-child relationship has not been terminated” is “entitled to service of citation on the filing of a petition in an original suite affecting the parent-child relationship.” Tex. Fam. Code Ann. § 102.009(a)(7). A presumed father is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding. Id. § 160.102(13). A presumption of paternity established under this section may be rebutted only by an adjudication under Subchapter G (Chapter 160 of the Texas Family Code) or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. Id. § 160.204(b). When this presumption is unrebutted, the father-child relationship is established between a man and a child. Id. § 160.201(b)(1).
Once the father-child relationship has been established, a man is entitled to notice of an adoption or termination proceeding, regardless of whether he has registered with the state's paternity registry. Id. § 160.402(b); see In re Hullaby, No. 08-22-00081-CV, 2022 WL 2333485, at *10 (Tex. App.—El Paso June 28, 2022, orig. proceeding) (mem. op.) (Palafox, J., concurring and dissenting) (“The obligation to give notice of a pending termination/adoption proceeding applies to a presumed father.”). Notice of a proceeding to adopt or terminate parental rights must be given in a manner prescribed for service of process in a civil action. Tex. Fam. Code Ann. § 160.403.
A parent as to whom the parent-child relationship has not been terminated is entitled to service of citation on the filing of a petition in an original suit affecting the parent-child relationship. Id. § 102.009(a)(7); see Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (orig. proceeding). Apart from a suit involving a governmental entity under Chapter 262 of the Family Code, a temporary order for the temporary conservatorship of a child may not be rendered without notice and a hearing. Tex. Fam. Code Ann. § 105.001(b); see Whatley, 649 S.W.2d at 299.
If a non-parent seeks managing conservatorship, before a court will award managing conservatorship to that non-parent, “the non-parent must prove ․ that appointing a parent as a managing conservator would result in serious physical or emotional harm to the child.” Chavez v. Chavez, 148 S.W.3d 449, 458 (Tex. App.—El Paso 2004, no pet.) (superseded in non-pertinent part by statute) (citing Tex. Fam. Code Ann. § 153.131). In doing so, evidence must support “the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm.” Id.
Mandamus relief is available if a trial court clearly abused its discretion and no adequate remedy by appeal exists. In re Auburn Creek Ltd. P'ship, 655 S.W.3d 837, 840 (Tex. 2022) (orig. proceeding); see In re B.B., 632 S.W.3d 136, 139 (Tex. App.—El Paso 2021, orig. proceeding) (citing In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding)). “A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding principles, or when it fails to correctly analyze the law.” In re L.A.-K., 596 S.W.3d 387, 393 (Tex. App.—El Paso 2020, no pet.).
Because temporary orders issued in a suit affecting the parent-child relationship are not subject to interlocutory appeal, mandamus may be available to challenge an order that deprives a parent of the physical possession of their child. In re Hullaby, 2022 WL 2333485, at * 5 (citing In re Mata, 212 S.W.3d 597, 603-04 (Tex. App.—Austin 2006, orig. proceeding)); see also In re Aubin, 29 S.W.3d 199, 202 (Tex. App.—Beaumont 2000, orig. proceeding); Tex. Fam. Code Ann. § 105.001(e). In such a situation, a relator lacks a clear remedy at law, and that requirement for mandamus relief is satisfied. In re C.J.C., 603 S.W.3d at 811 n.27 (citing Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (per curiam).
Reviewing courts should defer to the trial court's factual determinations supported by the record in determining whether mandamus relief is appropriate: indeed, factual determinations cannot be made by an appellate court on mandamus. See In re B.B., 632 S.W.3d at 139 (citing In re C.J.C., 603 S.W.3d at 811). Mandamus should be denied if a legal question turns on disputed questions of fact. Id. Regarding legal determinations, however, a trial court has no discretion in determining what the law is or in applying the law to the facts. In re Auburn Creek, 655 S.W.3d at 840 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); In re Caballero, 441 S.W.3d 562, 572 (Tex. App.—El Paso 2014, orig. proceeding) (citing In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding)).
Issuance of mandamus relief “is largely controlled by equitable principles,” and equity “ ‘aids the diligent and not those who slumber on their rights.’ ” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (quoting Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (Tex. 1941)). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting it rights and the moving party's good faith, detrimental change in position because of the delay. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989).
The equitable doctrine of unclean hands also plays a role in the availability of mandamus relief. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n.2 (Tex. 1990) (orig. proceeding) (“[m]andamus is a legal remedy, but it is governed to some extent by equitable principles,” such as “unclean hands”); In re Jim Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (stating the same). The doctrine applies to situations where one's own conduct in connection with the matter in dispute has been unconscientious, unjust or marked by a want of good faith and such conduct exposed the complaining party to injury. See In re Jim Walter Homes, Inc., 207 S.W.3d at 899. Courts should avoid rewarding a party for its unconscientious actions to the rather extreme detriment of the other party. See In re Callano, No. 07-17-00435-CV, 2017 WL 6459471, at *2 (Tex. App.—Amarillo Dec. 18, 2017, orig. proceeding) (mem. op.).
The relevant facts are not in dispute. D.D. and T.H. were married at the time of Baby J's birth, making D.D. Baby J's presumed father. See Tex. Fam. Code. Ann. § 160.204(a)(1). This presumption has not been rebutted by either a parentage adjudication under subchapter G of the Uniform Parentage Act or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. Id. § 160.204(b). J.D.S. knew prior to Baby J's birth that T.H. was married to D.D., who was not served with citation in the termination and adoption suit nor given notice of the October 9 or December 11 hearings. D.D.’s status as presumed father was first brought to the attention of the trial court in February 2021, and not by J.D.S. or her attorney. J.D.S testified twice and chose not to inform the trial court about D.D.7 Despite learning of the lack of service and failure of notice to the presumed father, the trial court declined to revoke or rescind its termination and conservatorship orders stemming from those hearings or grant the bill of review.
As the presumed father of Baby J, D.D. was entitled to notice of the termination and adoption proceedings. Id. §§ 102.009(a)(7), 105.001(b), 160.402(b)(1); see also In re Hullaby, 2022 WL 2333485, at *10 (Palafox, J., concurring and dissenting). D.D. was entitled to notice of the request for appointment of temporary managing conservators and the hearing at which such appointment was granted. See Tex. Fam. Code Ann. § 105.001(b), (h); see Whatley, 649 S.W.2d at 299. Because the trial court was not aware of the existence of a presumed father, it held hearings and entered orders terminating the rights of the mother and “unknown father” and appointing conservators, without notice to D.D.
This Court recently addressed a similar scenario in In re Hullaby, in which a presumed father was not given notice of a termination and adoption suit or a notice of hearing for temporary orders involving conservatorship concerning his child.8 2022 WL 2333485. The mother filed a false affidavit of relinquishment, and the prospective adoptive parents filed a petition falsely stating that the child had no presumed father even they knew the mother was married at the time of the birth. Id. at *2, *3. Without notice to the presumed father, the trial court terminated the birth mother's and the “unknown” father's parental rights and appointed the prospective adoptive parents as sole managing conservators of the child.9 Id. at *1, *2-*3.
In a 2-1 decision, this Court denied mandamus in Hullaby without expressing an opinion on the lack of notice to the presumed father due to an unresolved overriding jurisdictional issue.10 Id. at *6-*7. Justice Palafox in a concurring and dissenting opinion, however, addressed the due process violation resulting from the lack of notice. Id. at *7 (Palafox, J., concurring and dissenting). Justice Palafox determined that the presumed father in Hullaby had been deprived of his right to due process because he was not given notice of the hearing terminating the birth mother's parental rights and appointing the prospective birth parents as managing conservators. Id. In stating that she would (in the absence of the jurisdictional issue) grant partial mandamus relief, Justice Palafox concluded that the order terminating parental rights and appointing managing conservators was void and unenforceable. Id. at *11. Further, the court committed a clear abuse of discretion by rendering the temporary conservatorship order without notice to the presumed father. Id. We approve of Justice Palafox's reasoning as applied to the facts of this case.
The October 9 and December 11 orders stem from hearings in which D.D. was deprived of his due process rights. See id. at *10 (citing In re E.R., 385 S.W.3d 552, 566 (Tex. 2012); Troxel v. Granville, 530 U.S. at 65, 120 S.Ct. 2054, and Tex. Fam. Code Ann. §§ 101.024, 102.009(7), 105.001(b), 160.204(a)(1)). An order entered under these circumstances is void. See In re Miramontes, 648 S.W.3d at 606. The trial court had both the power and the duty to vacate the void order, with or without a motion therefor, yet failed to do so. See id.
We conclude the trial court committed a clear abuse of discretion in failing to set aside as void and unenforceable its October 9 and December 11 orders once it became aware that the presumed father was not served nor provided notice of the proceedings. See In re Hullaby, 2022 WL 2333485, at *11; Whatley, 649 S.W.2d at 299; In re Miramontes, 648 S.W.3d at 606.
Having reached this conclusion, we turn to Real Parties in Interest's equitable arguments. Specifically, J.D.S. and P.D.S. assert the equitable defense of laches, arguing that mandamus relief should be denied due to D.D.’s lack of diligence in filing his petition. Laches is an equitable defense. See Nw. Austin Mun. Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820, 839 (Tex. App.—Austin 2008, pet. denied). J.D.S. and P.D.S. point to general equitable principles that permit a court to deny mandamus relief due to a relator's failure to act diligently or with urgency in seeking relief. See In re J.A.L., 645 S.W.3d 922, 924-25 (Tex. App.—El Paso 2022, no pet.). J.D.S. and P.D.S. indicate that the principles of equity should control our decision in this case. Even were we to agree, the equities in this case do not support their position.
First, we note that a court is required to vacate a void order, whether during plenary power or not, and with or without a motion therefor. In re Miramontes, 648 S.W.3d at 606. The trial court in this case has a duty to vacate these void orders, with or without the filing of this petition for mandamus. However, we will proceed to consider the principles of equity.
We evaluate Real Parties In Interest's assertion that relief should be denied due to a lack of diligence in pursuing relief. As recounted above, T.H. contacted Attorney Williams in October 2020, less than thirty days after entry of the first termination order in the case, identified her husband and provided his contact information. T.H. pointed out that J.D.S. and P.D.S. did not have D.D.’s consent to continue with the adoption. T.H. then attempted to revoke her affidavit of relinquishment on her own and with an attorney in November and December. D.D. directly emailed Mr. Williams himself in December 2020, asking for visitation with his child. Even though Mr. Williams knew D.D. was T.H's husband and Baby J's presumed father, Mr. Williams responded to D.D. his parental rights had been terminated and possessed no rights related to the child—an incorrect statement of the law.
D.D. testified he and T.H. spoke with five different attorneys seeking assistance before counsel formally appeared on his behalf in February 2021.11 The record reflects that over the next six months, D.D. (1) filed a petition for writ of habeas corpus, (2) participated in a hearing on the writ, (3) filed a bill of review, (4) participated in a hearing on the bill of review, (5) filed a motion to dismiss for lack of standing and declare orders terminating parental rights void, (6) participated in a hearing on motions for genetic testing that was abated, and (7) participated in a second hearing on motions for genetic testing, (8) filed an original and amended suit affecting the parent child relationship, and (9) sought stay of the proceedings and obtained continuance for the purpose of filing a mandamus petition.
We do not find an unreasonable delay by D.D. in asserting his rights, nor has J.D.S. established a good faith and detrimental change in position because of any delay by D.D. to justify denial of relief under these circumstances.
We also find in reviewing the record the equities weigh in favor of, not against, granting relief to Relator. J.D.S. and P.D.S.’s assertion of laches invokes the equitable doctrine of unclean hands, which plays a role in the availability of mandamus. See In re Callano, 2017 WL 6459471, at *2 (citing Axelson, 798 S.W.2d at 552 n.2). The unclean hands doctrine derives from the equitable principle that the party seeking equity must come into court with clean hands. See Cantu v. Guerra & Moore, LLP, 549 S.W.3d 664, 671 (Tex. App.—San Antonio 2017, pet. denied). It allows a court to refuse to grant equitable relief sought by one whose conduct in connection with the same matter or transaction has violated the principles of equity and righteous dealing. Cheniere Energy, Inc. v. Parallax Enters., Inc., 585 S.W.3d 70, 84 (Tex. App.—Houston [14th Dist.] 2019, pet. dism'd). The doctrine will be applied only to one seeking equity “whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, or marked by a want of good faith, or one who has violated the principles of equity and righteous dealing.” See Thomas v. McNair, 882 S.W.2d 870, 880-81 (Tex. App.—Corpus Christi 1994, no writ). The wrongful conduct in question should directly relate to the subject of the mandamus proceeding. See Axelson, Inc. v. McIlhany, 798 S.W.2d at 552. Generally, the doctrine of unclean hands applies to situations where the conduct in connection with the matter in dispute has been unconscientious, unjust, or lacking in good faith, and such conduct exposed the complaining party to injury. In re Callano, 2017 WL 6459471, at *2 (citing In re Jim Walter Homes, Inc., 207 S.W.3d at 899).
The record shows from prior to Baby J's birth. J.D.S. and T.H. conspired to hide D.D.’s role from the trial court to complete the termination and adoption without his knowledge. With the help of Attorney Williams, they intentionally structured the relinquishment paperwork to omit any reference to D.D. because he would not give up his rights to the child. The petition for termination and adoption submitted by Attorney Williams on behalf of J.D.S., which incorrectly states, “There is no presumed or alleged father of the child,” was not corrected once it was clear to counsel that D.D. was the presumed father. At the hearing on termination of T.H.’s rights on October 9, J.D.S. did not disclose the existence of a presumed father. Despite being informed via email by T.H. on October 19 (titled “My husband didn't sign over rights”) that she was married to D.D. Attorney Williams having received D.D.’s name, physical address, mailing address, and telephone number, failed to tell the trial court of this material fact,12 failed to correct the statements of false fact in the underlying pleadings or the misleading testimony offered on October 9,13 requested and proceeded with the December 11 termination hearing without notice to D.D., made and failed to correct the false statement of law to D.D.,14 did not disclose D.D.’s existence to the trial court at the December 11 hearing,15 and then falsely denied in open court that anyone had told him T.H. was married.16 Simply put, had Attorney Williams notified the court, amended the pleadings, disclosed the truth about D.D., not misstated the law to D.D., or taken remedial measures upon learning that a false assertion of material fact had been made to the trial court, the repeated violations of D.D.’s due process rights would likely not have occurred. We find that Real Parties in Interest, individually and through the acts of their counsel, violated the principles of equity and righteous dealing, and do not come to court with clean hands.
Like the court in In re Callano, we would find it rather problematic to assess penalty for delay in proceedings against D.D. when the proceedings themselves were cause and drawn out, in part, by the other participants’ lack of candor with the trial court. To refuse to grant relief to D.D. on this basis “would be tantamount to rewarding” Attorney Williams and Real Parties in Interest for their unconscientious actions to the “rather extreme detriment” of D.D. and his right to due process of law. See In re Callano, 2017 WL 6459471, at *2. We will not do so.
Considering the record, the fundamental rights at issue, the numerous violations of D.D.’s due process rights, the efforts of D.D. to obtain relief, and the unclean hands of the other participants, we decline to deny relief to Relator in the name of equity.
We turn to D.D.’s challenge to the trial court's denial of the writ of habeas corpus. The trial court based its denial of the writ upon the existence of the order appointing managing conservators. See Tex. Fam. Code Ann. § 157.372; see also Whatley, 649 S.W.2d at 300. Because the October 9 conservatorship order is void, we find that the trial court clearly abused its discretion in denying the writ of habeas corpus on that basis. See Id.
While we could under these circumstances compel the trial court to issue the writ, we are accorded the flexibility of remand when the interest of justice so requires. Tex. Fam. Code Ann. § 157.376; see also Chavez, 148 S.W.3d at 461 (citing Tex. R. App. P. 43.3). In this case, justice—and the safety and welfare of the child—so require. The allegation in the habeas corpus proceeding that returning Baby J to D.D. would cause serious emotional harm to the child was not fully considered by the trial court. The evidence on this issue is not contained in the record before us and appears to have not been properly presented to the finder of fact. Furthermore, more than two years have passed since Baby J was placed with J.D.S. and P.D.S. We have no ability to determine the present circumstances of any of the parties, nor do we have the luxury of sitting as a fact finder. See Chavez, 148 S.W.3d at 461. We conclude that remand is necessary for further proceedings concerning the safety, welfare, and possession of the child. See Tex. Fam. Code Ann. § 157.374. We therefore decline to order immediate possession of Baby J to D.D.
Finally, although D.D. requested attorney's fees in this appeal, neither party briefed the issue. This court will not initiate an award of attorney's fees, “because to do so would constitute the exercise of original rather than appellate jurisdiction, or be in effect a usurpation of the trial court's fact finding function.” Pelto Oil Corp. v. CSX Oil & Gas Corp., 804 S.W.2d 583, 588 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (internal citations omitted); see Int'l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971).
We declare void the October 9 Order of Termination of Parental Rights of Mother, and the December 11 (and December 14) Order of Termination of Parental Rights of Unknown Father. Relator has also established his entitlement to mandamus relief as to the trial court's denial of the writ of habeas corpus. We conditionally grant the petition writ of mandamus and order the trial court to set aside the October 9 Order, the December 11 (and 14) Order, and the order denying the writ of habeas corpus. The writ of mandamus will issue only if the trial court fails to comply. We remand to the trial court for further proceedings in accordance with this opinion.
1. The messages exchanged between the parties contain numerous grammatical and spelling errors. We will forego noting each such error and instead generally note that all such errors reflected in these quotes appeared in the original communications.
2. The record contains two orders terminating the rights of the unknown father—one signed December 11, 2020, and another signed on December 14, 2020. Because these orders are identical, we will collectively refer to these documents as the December 11 Order.
3. The October 19 email exchange between Attorney Williams and T.H., attached to the Petition for Writ of Habeas Corpus as an exhibit, includes the language, “[A]lthough my rights are over my husband still have his and didn't agree, nor did he know anything about it but which you guys doesn't have his consent to continue. Nor have you tried reaching out to him to get his consent. The hospital has me down as married you have his name on one of your drafted documents [D.D.].” The email further states, “Please contact me ․ [her phone number listed] or my husband [his phone number and his email listed]. Our address is [REDACTED in exhibit].”
4. While the trial court denied the writ on the record during the hearing, no written order denying the writ appears in the record before us.
5. The procedural and jurisdictional posture of this case is peculiar and convoluted. However, because a court may vacate a void order at any time, as we direct the trial court to do in this case, we need not untangle this jurisdictional web.
6. J.D.S. and P.D.S. point out that D.D. obtained a continuance on a hearing on a motion for genetic testing set for June 4, 2021, on the basis that a petition for writ of mandamus would be filed, but it was not filed until more than sixteen months later, on October 21, 2022, when Baby J was more than twenty-five months old.
7. In justifying this omission, J.D.S. explained, “[I]t was my understanding that since [D.D.] wasn't the father he had nothing to do with it [CR451].” Inarguably, J.D.S.’s understanding of the law is incorrect. Ignorance of the law is neither a defense nor a tool to be used offensively to deprive a party of their procedural rights. See Mosley v. Texas Health and Human Servs. Comm'n, 593 S.W.3d 250, 270 (Tex. 2019) (Blacklock, J., concurring).
8. While the facts before us are strikingly similar to those in Hullaby, the facts in this case are even more egregious. The parties in In re Hullaby disclosed to the trial court during the hearing that the mother of the child was married at the time of the child's birth. 2022 WL 2333485 at *2. Here, the parties never disclosed this fact to the court over several months and numerous hearings.
9. It is worth noting that the attorney representing the prospective adoptive parents in Hullaby who failed to serve or give notice to the presumed father in that case was also John L. Williams, attorney for Real Parties in Interest, here.
10. We do not have a similar overriding jurisdictional issue in this case.
11. The record is silent as to why D.D. did not or was not able to retain the prior attorneys to whom he or his wife spoke.
12. See Tex. Disciplinary Rules Prof'l Conduct R. 3.03(a)(2), 1.05(f), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
13. See Tex. Disciplinary Rules Prof'l Conduct R. 3.03(b), 1.05(f).
14. See Tex. Disciplinary Rules Prof'l Conduct R. 4.01(a).
15. See Tex. Disciplinary Rules Prof'l Conduct R 3.03(a)(2), 1.05(f).
16. See Tex. Disciplinary Rules Prof'l Conduct R 1.05(f), 3.03(a)(1).
ROY B. FERGUSON, Judge (sitting by assignment)
Alley, J., not participating
Response sent, thank you
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Docket No: No. 08-22-00203-CV
Decided: February 10, 2023
Court: Court of Appeals of Texas, El Paso.
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