Tag Archives: family-law

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

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.

Scheming to Hide the Kids

Sometimes in law, there are no winners. The 2018 case of Bos v. Smith, 556 S.W.3d 293 (Tex. 2018), is one of those cases. It contains a long and sordid tale, but the bottom line is that a father sued his former in-laws under Chapter 42 of the Family Code for aiding or assisting his ex-wife in blocking his visitation rights. The trial court awarded him $3 million “for mental anguish caused by [his in-laws’] interference with possessory rights” and $236,000 “for economic damages related to [his] legal defense.” Bos v. Smith, 492 S.W.3d 361, 374-75 (Tex. App.—Corpus Christi 2016), rev’d by Bos v. Smith, 556 S.W.3d 293 (Tex. 2018). The court of appeals affirmed the mental anguish damages but reversed on the economic damages. The Supreme Court reversed the whole thing and rendered judgment in the in-laws’ favor. To try to keep them straight, I’ll refer to the Court of Appeals’ opinion as “COA” and the Supreme Court’s opinion as “SCOTEX.”

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.

SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.

SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.