Accelerated Appeal of a Bill of Review?

In a split decision, the Fourteenth Court of Appeals decided that the appellate deadlines for a bill of review to set aside a decree terminating parental rights should be those applicable to ordinary, rather than accelerated, appeals. In the Interest of A.A.S., No. 14-11-00489-CV (Tex. App. - Houston [14th Dist.] May 10, 2012, n.p.h.).

The appeal came about because a child's mother knew how to contact the father but concealed that information from the Texas Department of Family and Protective Services when the Department filed a petition to terminate the father's parental rights. Consequently, the Department served the father by publication. A year later, the father learned of the termination. Because the time for appeal had passed, the father filed a bill of review. A bill of review is an equitable proceeding to set aside a prior judgment that no longer can be challenged by a motion for a new trial or by direct appeal.

Despite the mother's perfidy, the trial court denied the bill of review. The father then appealed the bill of review. The question on which the Fourteenth Court split was whether the appeal of the bill of review should be governed by ordinary appellate deadlines or those applicable to accelerated appeals. If the former applied, then the father's appeal was timely; if the latter applied, then the court of appeals lacked jurisdiction over the case because the father waited too long to appeal the denial of the bill of review.

The Court's decision rested on Tex. Fam. Code section 109.002(a), which read in pertinent part:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal apply to an appeal in which the termination of the parent-child relationship is in issue.

(emphasis added). The statute has since been amended to add the phrase “under the Texas Rules of Appellate Procedure” in two places, but its substance remains unchanged.

The Court's majority reasoned that termination of the parent-child relationship was not “in issue” because the only issue before the Court was whether the Department had properly served the father by publication. In contrast, the dissent reasoned that because reversal of the case would result in vacation of the termination decree, termination of the parent-child relationship was “in issue” in the bill of review proceedings.

The majority held that the Court had jurisdiction and affirmed the case on its merits. The dissent would have dismissed the appeal for want of jurisdiction.

Court Settles Appellate Split in Termination Cases

When parents relinquish their parental rights for purposes of adoption, or the State convinces a court to take away those parental rights in cases of abuse, the parents' rights are said to be "terminated."   These cases are called termination cases.

Termination cases cannot occur in a vacuum.  They must be accompanied by appointment of the State, or of an adoption agency or prospective adoptive parents, as temporary conservators of the child.  If parental rights were terminated without further action, then there would be no one in charge of the child.

In adoption cases where a biological parent changes his or her mind about termination, or in termination cases brought by the State because of child abuse, the terminated parent may appeal the trial court's decision on termination.  There has been a dispute among Texas' Courts of Appeals whether reversing the trial court on its termination decision automatically reverses the appointment of a conservator.  Some courts have held that a parent need attack only the termination decision, while other courts have ruled that a parent must appeal both the termination and the conservatorship decisions. 

The Texas Supreme Court, in In re: J.A.J., has resolved the issue:  The Court ruled that on appeal, a parent must challenge both the decision to terminate and the decision to appoint a conservator if the parent wants his or her child back. 

The Court rested its decision on two grounds.  First, the Court first noted that the grounds for termination are not the same as those warranting appointment as a conservator, so reversing a termination decision is not necessarily inconsistent with leaving a conservatorship order in place. 

Second, the Court observed that the burden of proof for the two issues is different:  Termination of parental rights must be proved by clear and convincing evidence, while a preponderance of the evidence governs conservatorship decisions.  Thus, it would be possible to conclude the the evidence did not warrant termination but did justify retaining a third person or entity as the child's conservator.