Tag Archives: CPS

When Keeping Kids Is a Crime

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Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

Minors must be served; no ifs, ands, or buts about it

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One of my biggest fears as a lawyer—the thing that makes me wake up in the middle of the night—is that there is some technical gotcha that I have missed, that nobody complained about, but that nobody had to complain about. A recent case out of the Austin Court of Appeals helps explain what I’m talking about. In N.J. v. DFPS, No. 03-20-00259-CV (Tex. App.—Austin Oct. 9, 2020, no pet. h.), the court of appeals reversed and remanded a trial court order terminating the parental rights of a minor because minors cannot waive the requirement of formal service of process, no matter how much they participate in the lawsuit and trial.

The facts are these: N.J. was born in 2003. She gave birth to L.B. (the “Child”) in May 2018, at the age of fifteen. Two months later, on July 23, 2018, CPS received a report of neglectful supervision after N.J. tested positive for “illegal-drug use.” Slip Op. at 1. Ten days after that, CPS filed a petition to terminate N.J.’s rights and obtained emergency orders removing the child from N.J.’s care. An attorney was appointed for N.J., and for the next 16 months, N.J. appeared at and participated in hearings. In January 2020, N.J. presented her case to a jury and asked them (a) not to terminate her rights and (b) to appoint her ex-boyfriend’s mother (the Child’s paternal grandmother) as the managing conservator. The jury said no, and the trial court entered a final judgment in line with the verdict.

N.J. appealed, arguing that the trial court’s judgment had to be vacated because the fact that she was never actually, formally served with process meant that the trial court never actually obtained personal jurisdiction over her. In America, a court cannot render a judgment without having personal jurisdiction over all the parties. This is obtained primarily in one of two ways: either through consent (e.g., filing or participating in the lawsuit) or through compulsion (e.g., being served with citation or process).

Ordinarily, when a defendant appears and participates in a lawsuit, that defendant is deemed to have consented to the trial court’s jurisdiction and cannot later complain about the lack of formal service. But minors are different. Minors are “non sui juris, meaning [they are] considered to be under a legal disability and therefore lack[] the capacity to sue or consent to suit.” Slip Op. at 5 (citing In re M.M.S., No. 14-16-00349-CV (Tex. App.—Houston [14th Dist.] Sept. 22, 2016, pet. denied)). Because a minor legally cannot consent to suit, the minor’s voluntary appearance or participation in a lawsuit cannot count as waiver of service. See In re W.L.C., 562 S.W.2d 454, 455 (Tex. 1978). This is old, old law in Texas. See Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (1881). The idea is that we would not want to live in a society where a 15-year-old had to defend herself against the rich and powerful, well-organized apparatus of the State without the assistance of some adult on her side (other than her attorney).

Because a minor cannot consent to being sued, a plaintiff must formally, personally serve either the minor or, in certain circumstances, her legal guardian or next friend. See Slip Op. at 6 (citing several cases and rules outlining this rule). In this case, N.J. was 15 years old when the petition was filed, but neither she nor her legal guardian nor her next friend were formally, personally served with citation. So even though she appeared, answered, and participated in the lawsuit for 16 months and tried her case to a jury, the trial court never obtained jurisdiction over her.

Judgment reversed and remanded for retrial and one more reason for me to wake up in the middle of the night. [n.1]

Notes:

  1. The reader may be interested to know that the procedural vehicle for challenging defective service is a motion to quash, not a special appearance. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); City of Houston v. Bryant, 516 S.W.3d 47, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Although a claim of a defect in the service of process challenges whether the trial court’s personal jurisdiction over the defendant has been properly invoked, such claims must be raised in a motion to quash, not in a jurisdictional challenge like a special appearance”). If a motion to quash premised on a curable defect in service is or should have been sustained, the remedy is “more time to answer,” not a take-nothing judgment for lack of personal jurisdiction. Fuentes v. Zaragoza, 555 S.W.3d 141, 159–60 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also Tough Corp. v. Xplore Tech. Corp. of America, No. 03-08-00368-CV (Tex. App.—Austin May 21, 2009, no pet.) (reversing for insufficient service and “remand[ing] the case back to the district court for further proceedings”). In other words, reversal on appeal for insufficient or defective service really means remand for a new trial.