                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00108-CV

                     IN THE INTEREST OF K.P., A CHILD


                           From the 87th District Court
                             Freestone County, Texas
                             Trial Court No. 12-110-B


                           MEMORANDUM OPINION


      Robert H. appeals from a denial of a bill of review attempting to set aside an

order terminating his parental rights that was based on an affidavit of relinquishment of

parental rights. See TEX. FAM. CODE ANN. § 161.001(1)(K) (West 2008). In this appeal,

Robert presents two alternative issues. First, Robert complains that the trial court erred

by finding that he did not make a prima facie showing of a meritorious defense at the

hearing which Robert argues was a preliminary hearing for that issue only. Second, in

the event that this Court finds that the trial court did not err by making a final ruling

denying the bill of review at what Robert argues was the preliminary stage, the

evidence was legally and factually insufficient to support the trial court's findings of
fact and conclusions of law.       Because we find no reversible error, we affirm the

judgment of the trial court.

        Robert signed an affidavit of relinquishment of his parental rights on the day of

the final hearing. The trial court terminated his parental rights based on the affidavit

and named the Department of Family and Protective Services the managing conservator

of his child, K.P. During the pendency of the case, K.P. had been placed with Robert's

sister and at the time of the final hearing, the Department's permanency goal was for

Robert's sister to adopt K.P. The caseworker testified at the final hearing that K.P. was

doing well in that placement and the Department was of the opinion that adoption by

Robert's sister would be in the best interest of K.P.

        Almost immediately after the final hearing terminating Robert's parental rights,

K.P. began residing in Robert's home with Robert's sister's consent. The Department

did not become aware that K.P. was residing at Robert's residence until approximately

four months after the termination hearing. When the Department found out about

K.P.'s residence and that Robert's sister had an unapproved boyfriend residing with her,

K.P. was removed from the home and placed in foster care. At the time of the removal,

Robert's sister informed the Department that it was the intention of Robert and his sister

that K.P. would be returned to Robert's residence permanently. Robert also confirmed

this to be his intent at the bill of review hearing.




In the Interest of K.P., a Child                                                    Page 2
        Robert filed a petition for bill of review, alleging that the Department committed

fraud in getting him to sign the affidavit of relinquishment because he was not advised

that his sister might not be allowed to adopt K.P. and that he was not informed by the

Department prior to signing the affidavit that he was not to have contact with K.P. The

trial court conducted a hearing on the bill of review where Robert, Robert's wife, the

caseworker at the time of the termination trial, and the adoption caseworker testified.

The trial court denied the bill of review at the conclusion of the hearing.

Prima Facie Hearing or Hearing on the Merits?

        Robert argues in his first issue that the trial court erred by denying his bill of

review because the hearing conducted by the trial court was for the sole purpose of

establishing a prima facie meritorious defense as described in Baker v. Goldsmith, 582

S.W.2d 404 (Tex. 1979).            Robert argues that the evidence before the trial court

established a prima facie meritorious defense, and that this cause should be reversed and

remanded to allow him a full trial on the merits of the bill of review. The State argues

that the hearing was not a Baker hearing, but was a full trial on the merits of Robert's bill

of review.

        At the hearing before the trial court, Robert presented evidence not only of what

he contended were the Department's fraudulent representations regarding his sister

adopting his child, but also presented evidence of the proceedings in the underlying

case, the reasons for Robert's failure to complete his service plan, and the events that


In the Interest of K.P., a Child                                                       Page 3
had transpired after the termination of his parental rights to show that he was a fit

parent.

        We have previously determined that the preliminary hearing described in Baker

v. Goldsmith is only a "suggested procedure" but not required for the trial court to

conduct. See Ramsey v. State, 2419 S.W.3d 568, 578 (Tex. App.—Waco 2008, no pet.). It

would not be erroneous for the trial court to choose not to conduct a preliminary

hearing. See id. We find that from our review of the record, the hearing conducted by

the trial court was a full trial on the merits of the bill of review. Because the trial court

did not choose to conduct a preliminary hearing, the issue of whether the trial court

erred by failing to find that Robert established a prima facie meritorious defense is

overruled. We overrule issue one.

Sufficiency of the Evidence

        In his second issue, Robert complains that the evidence was legally and factually

insufficient to support the trial court's denial of the bill of review.   However, when we

address a denial of a bill of review, the appropriate standard is to review for an abuse of

discretion; in this context, legal and factual sufficiency of the evidence are not

independent grounds of error but are merely factors to be assessed in determining if the

trial court abused its discretion. Garza v. Att'y Gen., 166 S.W.3d 799, 810 (Tex. App.—

Corpus Christi 2005, no pet.).       In determining whether the trial court abused its




In the Interest of K.P., a Child                                                       Page 4
discretion, we view the evidence in the light most favorable to the trial court's action,

indulging every presumption in favor of the judgment. Id. at 811.

        The trial court is the fact-finder at a hearing on a bill of review and has the duty

of ascertaining the true facts, and it is within the court's province to judge the credibility

of the witnesses and to determine the weight to be given their testimony. Royal Zenith

Corp. v. Martinez, 695 S.W.2d 327, 330 (Tex. App.—Waco 1985, no writ). A trial court

does not abuse its discretion when it makes its decision on conflicting evidence and

some evidence supports its judgment. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97

(Tex. 2009); Garcia-Udall v. Udall, 141 S.W.3d 323, 333 (Tex. App.—Dallas 2004, no pet.)

(citing David v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Burns v. Burns, 116 S.W.3d 916, 921

(Tex. App.—Dallas 2003, no pet.)).

Applicable Law

        A bill of review is an equitable proceeding brought by a party seeking to set

aside a prior judgment that is no longer subject to challenge by a motion for new trial or

appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). A bill of review

plaintiff must ordinarily prove (1) a meritorious claim or defense with regard to the

underlying cause of action; (2) which the bill of review plaintiff was prevented from

making by the fraud, accident, or wrongful act of the opposing party, or by official

mistake; and (3) unmixed with any fault or negligence on the bill of review plaintiff's

own part. Id.


In the Interest of K.P., a Child                                                        Page 5
        Only extrinsic fraud will support the fraud element required for a bill of review

to be successful. See Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989). Extrinsic

fraud is wrongful conduct practiced outside of the adversary trial that affects the

manner in which the judgment was procured and prevents a litigant from having a fair

opportunity to assert his rights at trial. See Browning v. Prostok, 165 S.W.3d 336, 347

(Tex. 2005); Tice, 767 S.W.2d at 702; Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

        Fraud may be committed through active misrepresentation or passive silence

and is an act, omission, or concealment in breach of a legal duty, trust, or confidence

justly imposed, when the breach causes injury to another or the taking of an undue and

unconscionable advantage.          See In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort

Worth 2009, pet. denied); Arnett v. Arnett, No. 03-05-00056-CV, 2008 Tex. App. LEXIS

3184 at *4 (Tex. App.—Austin May 2, 2008, pet. denied) (mem. op.); Gaspard v. Beadle, 36

S.W.3d 229, 235 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (listing fraud

elements as a material misrepresentation made; the representation was false; when the

representation was made, the speaker knew it was false or made it recklessly without

any knowledge of its truth; the speaker made the representation with the intent that it

should be acted upon by the party; the party acted in reliance upon the representation;

and the party thereby suffered injury). A misrepresentation is a falsehood or untruth

with the intent to deceive. Gaspard, 36 S.W.3d at 235.


In the Interest of K.P., a Child                                                    Page 6
        In order to succeed in a bill of review proceeding attempting to set aside a

termination order based on an affidavit of relinquishment, the burden is on the party

challenging the affidavit to establish by a preponderance of the evidence that the

affidavit was involuntarily executed as a result of fraud, duress, or coercion. See Monroe

v. Alternatives in Motion, 234 S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); Vela v. Marywood, 17 S.W.3d 750, 758 (Tex. App.—Austin 2000, pet. denied); see also

TEX. FAM. CODE ANN. § 161.211(c) (West 2008) (stating that attack of termination order

"based on an unrevoked affidavit of relinquishment of parental rights ... is limited to

issues relating to fraud, duress, or coercion in the execution of the affidavit"). Robert's

argument is solely based on the alleged fraud committed by the Department.

        Robert contends that the Department knew that he would have contact with K.P.

because he was living next door to his sister at the time K.P. was placed with her, and

that he signed the affidavit of relinquishment because he knew that he would be able to

have contact with K.P. after his sister adopted him.            Robert argues that the

Department's removal of K.P. from his sister because he was having contact with K.P.

when the Department knew that he would be having contact constituted fraud.

However, there was testimony that Robert's intent behind signing the affidavit of

relinquishment was ultimately to allow his sister to adopt K.P., but that K.P. would

reside with him and be raised as his child.




In the Interest of K.P., a Child                                                     Page 7
        Robert cites to Queen v. Goeddertz, 48 S.W.3d 928 (Tex. App.—Beaumont 2001, no

pet.) and Vela v. Marywood, 17 S.W.3d 750 (Tex. App.—Austin 2000, pet. denied) to

support his position that the Department committed fraud by leading him to believe

that he would have contact with K.P. after the termination. In each of those cases,

unenforceable promises of post-termination contact were made in order to induce the

signing of affidavits of relinquishment. While those cases may have limited similarity

to the facts of this case, they are distinguishable because even if the Department had

told Robert that he would be able to see K.P. in some manner after the termination and

adoption by his sister, the practicality of the situation was that because Robert was

residing next door to his sister, that assertion would not likely be false if it was made.

        However, in this case, several months after the termination was granted, the

Department discovered that K.P. had been in fact residing with Robert since very

shortly after the termination with the consent of Robert's sister, that Robert even

intended to change K.P.'s name to have Robert's last name and not that of his sister, and

that Robert's sister was actually residing with a person that the Department had stated

was not allowed to have unsupervised contact with K.P. It was at this time when the

Department, as K.P.'s managing conservator, determined allowing K.P. to remain in his

placement with Robert's sister was no longer appropriate or in K.P.'s best interest

because of the fraudulent actions of Robert and his sister.          There is a significant




In the Interest of K.P., a Child                                                       Page 8
difference from Robert having occasional and incidental contact with K.P. to K.P.

actually residing with Robert and being held out to be Robert's son.

        We find that there was sufficient evidence for the trial court to have found that

prior to Robert's execution of the affidavit of relinquishment, the Department did not

make a misrepresentation to Robert about the Department's intent to allow his sister to

adopt K.P. and that, even if there was some misrepresentation, Robert's questionable

plan and motives were largely at fault in the process as well. Because of this, by using

the appropriate standards for the granting of a bill of review and giving appropriate

deference to the trial court's findings of fact, we find that the trial court did not abuse its

discretion by denying Robert's bill of review. We overrule issue two.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 20, 2014
[CV06]




In the Interest of K.P., a Child                                                         Page 9
