                                                                                           ACCEPTED
                                                                                       05-18-01127-CV
                                                                             FIFTH COURT OF APPEALS
                                                                                       DALLAS, TEXAS
                                                                                     1/31/2019 3:50 AM
                                                                                            LISA MATZ




                                                                                                              5th Court of Appeals
                                                                                                CLERK




                                                                                                               FILED: 01/31/2019
                                                                                           Lisa Matz, Clerk
                                  05-18-01127-CV

                   IN THE FIFTH DISTRICT COURT OF APPEALS RECEIVED IN
                                                        5th COURT OF APPEALS
                              AT DALLAS, TEXAS              DALLAS, TEXAS
                                                              1/31/2019 3:50:34 AM
                                                                    LISA MATZ
                                                                      Clerk
                       IN THE INTEREST OF R.M., A CHILD

                                     JILL KUTKA,
                                     APPELLANT

          TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                               APPELLEE

                     SHAWN INGRAM AND JENNIFER INGRAM,
                                APPELLEES


                Appeal from Order Granting Intervenor’s Petition in
                  Intervention in Suit and Plea to the Jurisdiction
     Arising out of the 417TH Judicial District Court of Collin County, Texas
                           Cause No. 417-02593-2018
                      Honorable Cynthia Wheless Presiding


                            APPELLANT’S BRIEF


Submitted by,

CASEY T. BOYD
State Bar No. 24059477
205 W. Louisiana Street, Suite 103
McKinney, Texas 75069
Tel: (469) 777-6129
Email: boydlitigation@gmail.com

                           COUNSEL FOR APPELLANT
                          ORAL ARGUMENT REQUESTED

                                         1
                 IDENTITIES OF PARTIES AND COUNSEL

Petitioner / Appellant:
Jill Kutka

Petitioner/Appellant’s Counsel in Trial Court:
Mr. Casey T. Boyd
State Bar No. 24059477
205 W. Louisiana Street, Suite 103
McKinney, Texas 75069
Tel: (469) 777-6129
Email: boydlitigation@gmail.com

Respondent/Appellee:
Collin County Unit of the Texas Department of Family and Protective Services

Respondent/Appellee’s Trial Counsel:
Ms. Alyson Dietrich
State Bar No. 24012529
Assistant District Attorney
Collin County District Attorney’s Office
2100 Bloomdale Road, Suite 200
McKinney, Texas 75071
Tel: (972) 548-4336
Fax: (972) 548-4767
Email: adietrich@co.collin.tx.us

Respondent/Appellee’s Appellate Counsel:
Mr. John Rolater
Assistant District Attorney
Collin County District Attorney’s Office
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
Tel: (972) 548-4323
Fax: (214) 491-4860
Email: jrolater@co.collin.tx.us




                                           2
Intervenors/Appellees:
Shawn Ingram and Jennifer Ingram

Intervenors/Appellees’ Trial Counsel:
Ms. Rebecca Rowan
State Bar No. 24060729
KOONSFULLER, P.C.
1717 McKinney Avenue, Suite 1500
Dallas, Texas 75202
Tel: (214) 871-2727
Fax: (214) 871-0196
Email: rrowan@.koonsfuller.com

R.M. is the minor child subject of this suit.

Attorney Ad Litem in Trial Court for R.M., the Child:
Ms. Terri Daniel
State Bar No. 00796433
6675 Mediterranean Dr., Suite 407
McKinney, Teas 75072
Tel: (469) 519-2739
Fax: (877) 291-1215
Email: terri@terridaniellaw.com




                                        3
                          TABLE OF CONTENTS

Index of Authorities…………………………………………………….…………..5

Record References……………………………………………………….………....6

Statement of the Case………………………………………………………………7

Statement on Oral Argument………………………………………….…………....8

Issues Presented………………………………………………………….………....8

Statement of Facts…………………………………………………………...……..8

Standard of Review……………………………………………………………….12

Arguments and Authorities………………………………………………………..13

A. Section 161.211(a) of the Texas Family Code is Unconstitutional
   as Applied to Appellant……………………………………………………...13

B.   Intervenors’ Petition in Intervention Should Have Been Denied………...….20

Conclusion………………………………………………………………………...21
Prayer……………………………………………………………………………...22

Certificate of Service……………………………………………………………...23

Appellant’s Appendix……………………………………………………………..24




                                     4
                          INDEX OF AUTHORITIES

Caselaw

Abdullatif v. Erpile, LLC, 460 S.W.3d 685
(Tex.App.-Houston [14th Dist.] 2015, no pet.)…………………………………….....20

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex.2000)………………………...12

City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex.2010)……………………………..12

F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex.2007)…………….13

Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793 S.W.2d 652 (Tex. 1990)…...20

H. Tebbs, Inc. v. Silver Eagle Distribs., 797 S.W.2d 80
(Tex.App.-Austin 1990, no writ)……………………………………………………..20

In re C.M.D., 287 S.W.3d 510 (Tex.App.-Houston [14th Dist.] 2009, no pet.)……..14

In re C.P.J., 129 S.W.3d 573 (Tex.App.-Dallas 2003, pet. denied)…………….……13

In re C.T.C., 365 S.W. 3d 853 (Tex.App.-Dallas 2012)…………………………18, 19

In re D.J.R., 319 S.W.3d 759 (Tex.App.-El Paso 2010, pet. denied)…….13, 14, 18, 19

In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.-Austin 2007, no pet.)………….12

In re E.R., 335 S.W.3d 816 (Tex.App.-Dallas 2011, pet. granted)……………....15, 16

In re E.R., 385 S.W. 3d 552 (Tex. 2012)……………………………………..14, 15, 19

In re M.N., 262 S.W.3d 799 (Tex. 2008)…………………………………………….15

In re Union Carbide, 273 S.W.3d 152 (Tex. 2008)…………………………………..20

In the Interest of B.G., 317 S.W.3d 250, 258 (Tex.2010)…………………………....15

In the Interest of J.O.A., 283 S.W.3d 336 (Tex.2009)…………………………….....15

                                        5
Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802 (Tex. 1989)……..….13

Santosky v. Kramer, 455 U.S. 745 (1982)……………………………………………14

Serna v. Webster, 908 S.W.2d 487 (Tex.App.-San Antonio 1995, no writ)………....20

Stanley v. Illinois, 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)…..…..15

Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex.1993)………...13

Texas Dep't of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974)…………………...13

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004)…………...12

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex.1999)…………………………...12

Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864 (Tex.2001)…...12

Walker v. Tex. Dep't of Family & Protective Servs.,
312 S.W.3d 608 (Tex.App.-Houston [1st Dist.] 2009, pet. denied)……………...14, 19

Rules and Statutory Authority

Tex.Fam.Code Section 161.001(1)(K)………………………………………7, 9, 11
Tex.Fam.Code Section 161.211(a)…………………8, 13, 14, 15, 16, 17, 18, 19, 21
Tex.Fam.Code Section 263.405……………………………………………….….14
TRAP 20.1………………………………………………………………………...12
TRAP 39.1………………………………………………………………………….8
                           RECORD REFERENCES

      The Record references listed below are used throughout Appellant’s Brief:

CR at __    Clerk’s Record

RR __:__    Reporter’s Record


                                         6
                          STATEMENT OF THE CASE

      On May 29, 2018, Appellant filed her Original Petition for Bill of Review on

seeking to review an order terminating her parental rights which was signed by the

Court on October 7, 2016 in Cause Number 417-30048-2014 and styled “In the

Interest of R.M., A Child”. The order terminating Appellant’s parental rights was

predicated on a finding by the Court that Appellant executed an unrevoked or

irrevocable affidavit of relinquishment of parental rights as provided by Section

161.001(1)(K) of the Texas Family Code. CR at 7.

      On August 24, 2018, Intervenors filed a Petition in Intervention in Suit and

Plea to the Jurisdiction. CR at 62.

      On September 6, 2018, Intervenors filed their Original Answer to Original

Petition for Bill of Review. CR at 68.

      On September 10, 2018, Intervenors filed a Brief in Support of Plea to the

Jurisdiction. CR at 75.

      Appellant’s Original Petition for Bill of Review and Intervenors’ Petition in

Intervention and Plea to the Jurisdiction were set for a hearing on September 10,

2018. The trial court heard Intervenors’ Petition in Intervention and Plea to the

Jurisdiction, after which the trial court signed an Order granting Intervenors’

Petition in Intervention and Plea to the Jurisdiction, and dismissing Appellant’s

Petition for Bill of Review with prejudice. RR 14:17-18; 33:8-11; CR at 87.


                                         7
      This is an appeal from the Order Granting Intervenors’ Petition in

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction,

which was signed by the trial court on September 10, 2018.

                    STATEMENT ON ORAL ARGUMENT

      Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, Appellant

requests oral argument and believes that the decisional process would be

significantly aided by oral argument.

                              ISSUES PRESENTED

C.   Section 161.211(a) of the Texas Family Code is Unconstitutional as
     Applied to Appellant.

D. Intervenors’ Petition in Intervention Should Have Been Denied.

                            STATEMENT OF FACTS

      On August 27, 2015, in the underlying proceeding to terminate Appellant’s

parental rights, the parties entered into a Mediated Settlement Agreement wherein

the parties entered into a series of agreements which resulted in Appellant

relinquishing her parental rights, and which allowed Appellant to have specific

periods of supervised access to the child “after entry of the final order.” CR at 76.

      Intervenors were not parties to the underlying termination proceeding, they

were not physically present at mediation, and they were not signatories to the

Mediated Settlement Agreement. Notwithstanding, the Mediated Settlement



                                          8
Agreement included representations made by Intervenors regarding Appellant’s

future access to the child. CR at 26.

      On October 7, 2016, the “Final Order in Suit Affecting Parent-Child

Relationship – Termination of Parental Rights, and Appointment of Managing

Conservator” (hereinafter “Termination Order”) was signed by the Court based on

the Mediated Settlement Agreement. The Final Termination Order terminated

Appellant’s parental rights, and in so doing, the Court found by clear and

convincing evidence that termination of the parent-child relationship was in the

best interest of the child, and that Appellant executed an unrevoked or irrevocable

affidavit of relinquishment of parental rights as provided by Section 161.001(1)(K)

of the Texas Family Code. CR at 33.

      The Termination Order incorporated the provisions in the Mediated

Settlement Agreement, including those specifying Appellant’s future access to the

child after entry of the final order. The Termination Order also included a

provision requiring Appellant’s trial counsel, Karen Arias, to remain as

Appellant’s attorney of record after entry of the termination so that she could

ensure that the provisions of the Mediated Settlement Agreement and Final Order

were incorporated into a future Decree of Adoption. The Termination Order

required that Appellant’s attorney receive copies of all pleadings and orders related

to the adoption of the child to ensure that the provisions of the Mediated


                                         9
Settlement Agreement were incorporated into the adoption order “for

enforceability purposes”. CR at 33.

      On August 4, 2017, the Court entered an Agreed Order Granting Adoption

which did not incorporate any provisions regarding post-termination contact from

the Mediated Settlement Agreement or the Termination Order. CR at 77.

      Appellant’s trial attorney did not receive any notice of the adoption

proceedings, or an opportunity to review the adoption order prior to entry with the

Court. CR at 60.

      Intervenors allowed Appellant to have supervised visits with the child until

March 2018 pursuant to the terms of the Mediated Settlement Agreement and

Termination Order. Sometime thereafter, it became apparent to Appellant that

Intervenors would no longer be honoring the terms of the Mediated Settlement

Agreement and Termination Order.        CR at 77-78. It was at that point that

Appellant first became aware of the fact that Intervenors had no intention of

continuing to honor the terms of the Mediated Settlement Agreement and

Termination Order. CR at 78; CR at 54-58.

      As a result, Appellant filed her Original Petition for Bill of Review on May

29, 2018 seeking to review the order terminating her parental rights signed by the

Court on October 7, 2016. The order terminating Appellant’s parental rights was

predicated on a finding by the Court that Appellant voluntarily executed an


                                        10
unrevoked or irrevocable affidavit of relinquishment of parental rights as provided

by Section 161.001(1)(K) of the Texas Family Code. CR at 7.

      On August 24, 2018, Intervenors filed a Petition in Intervention in Suit and

Plea to the Jurisdiction. CR at 62.

      On September 6, 2018, Intervenors filed their Original Answer to Original

Petition for Bill of Review. CR at 68.

      On September 10, 2018, Intervenors filed a Brief in Support of Plea to the

Jurisdiction. CR at 75.

      Appellant’s Petition for Bill of Review and Intervenors’ Petition in

Intervention and Plea to the Jurisdiction were set for a hearing on September 10,

2018. The trial court heard Intervenors’ Petition in Intervention and Plea to the

Jurisdiction, after which the trial court signed an Order granting Intervenors’

Petition in Intervention and Plea to the Jurisdiction, and dismissing Appellant’s

Petition for Bill of Review with prejudice. RR 14:17-18; 33:8-11; CR at 87.

      The trial court granted Intervenors’ Plea to the Jurisdiction without reaching

the merits of Appellant’s Original Petition for Bill of Review. RR 33:8-11.

      Appellant’s trial counsel made an offer of proof to the Court regarding the

substance of Appellant’s Bill of Review. RR 33:16 through 42:17.

      Appellant filed her Notice of Appeal on September 25, 2018. CR at 88.




                                         11
      This is an appeal from the Order Granting Intervenors’ Petition in

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction,

which was signed by the trial court on September 10, 2018.

      Appellant is presumed indigent and may proceed without paying costs under

Rule 20.1 of the Texas Rules of Appellate Procedure.

                            STANDARD OF REVIEW

      A plea to the jurisdiction challenges a trial court's subject matter jurisdiction.

See, e.g., City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex.2010) (citing Tex.

Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999)). Whether a court has

subject matter jurisdiction is a question of law that we review de novo. Id. (citing

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004)); see

also In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.-Austin 2007, no pet.)

(motion to dismiss based on lack of subject matter jurisdiction is functional

equivalent of plea to jurisdiction and is reviewed de novo).

      In deciding a plea to the jurisdiction, a court may not weigh the claims'

merits but must consider only the plaintiffs' pleadings and the evidence pertinent to

the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46

S.W.3d 864 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547

(Tex.2000). When the appellate court consider a trial court's order on a plea to the

jurisdiction, it must construe the pleadings in the plaintiff's favor and look to the


                                          12
pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440

(Tex.1993); Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802 (Tex.

1989). When a plaintiff fails to plead facts that establish jurisdiction, but the

petition does not affirmatively demonstrate incurable defects in jurisdiction, the

issue is one of pleading sufficiency and the plaintiff should be afforded the

opportunity to amend. See Peek, 779 S.W.2d at 804-05; Texas Dep't of Corrections

v. Herring, 513 S.W.2d 6 (Tex.1974).

      Additionally, statutory construction and the constitutionality of a statute are

legal questions and are reviewed de novo. See, e.g., F.F.P. Operating Partners, L.P.

v. Duenez, 237 S.W.3d 680 (Tex.2007) (statutory construction); In re C.P.J., 129

S.W.3d 573 (Tex.App.-Dallas 2003, pet. denied) (constitutionality of statute).

                      ARGUMENTS AND AUTHORITIES

 1.   Section 161.211(a) of the Texas Family Code is Unconstitutional as
      Applied to Appellant.

      Section 161.211(a) of the Texas Family Code limits a direct or collateral

attack on an order terminating parental rights based on an unrevoked affidavit of

relinquishment to issues relating to fraud, duress, or coercion in the execution of

the affidavit of relinquishment.

      An individual who challenges the constitutionality of a statute bears the

burden to establish its unconstitutionality. In re D.J.R., 319 S.W.3d 759 (Tex.App.-

El Paso 2010, pet. denied). A claim that a statute is unconstitutional as applied is a

                                         13
claim that the statute, although generally constitutional, operates unconstitutionally

as to the claimant. Id. 857. An as-applied challenger is required only to

demonstrate that the statute operates unconstitutionally when applied to his or her

particular set of circumstances. Id.

      Courts should decide constitutional issues narrowly based on the precise

facts of the case, not speculative or hypothetical injuries. In re C.M.D., 287 S.W.3d

510, 515 (Tex.App.-Houston [14th Dist.] 2009, no pet.). There is no need to reach

the constitutionality of a statute where there is no showing the operation of the

challenged statute harmed the Appellant. See In re D.J.R., 319 S.W.3d 759,

Tex.App.-El Paso 2010, pet. denied); Walker v. Tex. Dep't of Family & Protective

Servs., 312 S.W.3d 608 (Tex.App.-Houston [1st Dist.] 2009, pet. denied).

      When the State seeks to sever permanently the relationship between a parent

and a child, it must first observe fundamentally fair procedures. A parental rights

termination proceeding encumbers a value "far more precious than any property

right" and is consequently governed by special rules. Santosky v. Kramer, 455

U.S. 745 (1982); In re E.R., 385 S.W. 3d 552 (Tex. 2012).

      In reference to Section 263.405 of the Texas Family Code, the Texas

Supreme Court held that it did not indicate legislative intent to unfairly or

unreasonably preclude parents from appealing final orders. In like manner, Section

161.211(a) does not indicate a legislative intent to unfairly or unreasonably


                                         14
preclude a parent from challenging an order terminating parental rights based on

fraud, duress, or coercion in the execution of an affidavit of relinquishment. In re

M.N., 262 S.W.3d 799 (Tex. 2008).

      Finality cannot trump a parent's constitutional right to be heard. Stanley v.

Illinois, 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (noting that "the

Constitution recognizes higher values than speed and efficiency"); In re E.R., 385

S.W. 3d 552 (Tex. 2012). The Texas Supreme Court has held that the Family

Code provisions that expedite termination proceedings must still yield to due

process. See In the Interest of B.G., 317 S.W.3d 250 (Tex.2010); In the Interest of

J.O.A., 283 S.W.3d 336 (Tex.2009).

      This Court held in In re E.R., 335 S.W.3d 816 (Tex.App.-Dallas 2011, pet.

granted) that "[t]he mandatory language of family code section 161.211 leaves no

room for a construction other than a requirement that any collateral or direct attack

on the termination of parental rights, including a motion for new trial, be filed no

more than six months after the termination order is signed." Id. at 820. The

majority further concluded, "The six-month deadline in family code section

161.211 is not a plea in avoidance, but is, rather, a bar to or preclusion of a

challenge to a termination order more than six months after the termination order is

signed." Id. The majority addressed the dissent by stating that while "[t]he dissent

would hold that section 161.211's six-month bar to [the mother's] direct or


                                         15
collateral attack on the validity of a termination order is unconstitutional," the

mother "has not argued her constitutional rights have been violated or otherwise

challenged the constitutionality of the statute and, therefore, has not preserved or

presented the issue for our review." Id. at 822-23.

       Appellant’s case is distinguishable from In re E.R., and finding that Section

161.211(a) is unconstitutional as applied to Appellant here would be consistent

with this Court’s holding and opinion in In re E.R.

       First, Appellant argued in the trial court that her constitutional rights have

been violated, or she otherwise challenged the constitutionality of the statute, and

she has therefore preserved the constitutional issues for this Court’s review,

including her due process rights. See RR: 10:2-25; 12:5-25; 13:1-5; 18:21-24;

32:6-16; 34:10-19; 25:18-25.

       Appellant also made a showing that, to the extent allowed by the trial court,

the operation of Section 161.211(a) harmed Appellant. Exhibit “C” to Appellant’s

Original Petition for Bill of Review is a text message from Intervenors to

Appellant indicating that it was within their sole discretion to follow or not follow

the terms of the Mediated Settlement Agreement and the Termination Order.

Intervenors’ pleadings establish that they will only allow Appellant’s visits with

the child as they see fit.




                                         16
      The Court’s application of Section 161.211(a) to Appellant eliminates any

adequate legal remedy for Appellant, and ratifies the material misrepresentations

made by the Texas Department of Family and Protective Services to induce

Appellant into signing a mediated settlement agreement which resulted in

relinquishment of her parental rights and termination of her parental rights.

      It further allows the Department and the Intervenors to completely renege on

those agreements without any recourse by a parent whose parental rights have been

terminated as a result of the promises made by the State of Texas in mediation,

with the apparent authority of the Intervenors.

      It encourages the Department to comply with the terms of the Mediated

Settlement Agreement and Termination Order for six months, but to then turn

around and renege on those agreements after the time for Appellant to lodge a

direct or collateral attack has expired under Section 161.211(a). The State of

Texas and the Intervenors continued to perpetrate a fraud on Appellant to ensure

that she would not act to timely assert her constitutional parental rights to the child,

and the interpretation of Section 161.211(a) advocated by the majority opinion of

this Court rewards them for committing fraud while depriving Appellant, and more

importantly, the child, of any procedural safeguards for Appellant’s parental rights,

and for the child’s constitutional relationship with Appellant.




                                          17
      Appellant has been harmed by application of Section 161.211(a) to her case

because she has forever relinquished her constitutional right to raise her child, and

had her constitutional right permanently severed, without any recourse when the

State of Texas and Intervenors decided that their promises were discretionary.

      Appellant has lost time with her child, time that she was promised in the

Mediated Settlement Agreement and Termination Order. CR at 54-58.

      Appellant was harmed because the State of Texas decided to violate the

terms of the Mediated Settlement Agreement and Termination Order by failing to

give Appellant’s trial counsel notice of the subsequent adoption proceedings.

      This Court affirmed the trial court’s judgment in In re C.T.C., 365 S.W. 3d

853 (Tex.App.-Dallas 2012). In so doing, the Court stated that “The record shows

Father argued in the trial court, without objection by Mother, that section

161.211(a) is unconstitutional as applied to him because it violates his due process

rights. However, on this record, we cannot conclude Father has met his burden to

show he was harmed by the application of that statute to his case. See In re D.J.R.,

319 S.W.3d at 765-66. The record shows the agreed order of termination was

signed on November 24, 2009. Thus, the six-month time period during which

Father could challenge that order expired on May 24, 2010. See TEX. FAM.

CODE ANN. § 161.211(a). Father pleaded he was aware of the alleged fraud by

Mother "on or about April 14, 2010," more than one and one-half months before


                                         18
the end of the six-month time period, and, according to his affidavit, he contacted

counsel by, at the latest, April 2010. Yet, despite the language in section

161.211(a) providing a six-month deadline, Father did not file his attack on the

agreed order of termination until September 29, 2010. Father does not explain, and

the record does not show, how section 161.211(a)'s six-month time limit operated

to adversely affect his right to attack the agreed termination order when the six-

month time period had not elapsed at the time he became aware of the alleged

fraud and retained counsel. Accordingly, we decide Father's second issue against

him. See In re D.J.R., 319 S.W.3d at 765-66; Walker, 312 S.W.3d at 625.”

      Unlike the father in In re C.T.C., the six-month time period had already

passed when Appellant first became aware of the fraud, duress, or coercion in her

execution of the affidavit of relinquishment. The record affirmatively demonstrates

that Appellant was harmed by the application of Section 161.211(a).

      However, if this Court does not believe that the record affirmatively

demonstrates that she was harmed by application of this section, then that

deficiency is a result of the trial court’s refusal to allow Appellant to proceed with

making her prima facie case in support of her Original Petition for Bill of Review.

      Due process should prevail over a state law time limit, even one imposed on

challenges to termination of parental rights or adoptions. In re E.R., 385 S.W. 3d

552 (Tex. 2012).


                                         19
 2.   Intervenors’ Petition in Intervention Should Have Been Denied.

      Intervenors’ Petition in Intervention should have been denied. The

sufficiency of the petition in intervention is tested by the allegations of fact on

which the right to intervene depends.          Serna v. Webster, 908 S.W.2d 487

(Tex.App.-San Antonio 1995, no writ); H. Tebbs, Inc. v. Silver Eagle Distribs.,

797 S.W.2d 80 (Tex.App.-Austin 1990, no writ).

      Intervenors must have a justiciable interest in the suit. In re Union Carbide,

273 S.W.3d 152 (Tex. 2008). A party can intervene if it (1) could have brought all

or part of the same suit in its own name or (2) would have been able to defeat all or

part of the recovery if the suit had been filed against it. Guaranty Fed. Sav. Bank

v. Horseshoe Oper. Co., 793 S.W.2d 652 (Tex. 1990).

      The court must have subject matter jurisdiction over any claims for relief

asserted by the Intervenor.     See Abdullatif v. Erpile, LLC, 460 S.W.3d 685

(Tex.App.-Houston [14th Dist.] 2015, no pet.). The petition in intervention should

allege facts that demonstrate the court’s subject matter jurisdiction. Id. at 691.

      Appellant objected to Intervenors’ Petition in Intervention, and Appellant’s

objection was tried by consent. RR 6:18; 13:9-16; 13:23-25; 14:1-16.             After

hearing the arguments of counsel, the trial court overruled Appellant’s objection

and allowed Intervenors to proceed. RR 14:17-18.




                                          20
      Intervenors’ Petition in Intervention and Plea to the Jurisdiction did not

allege facts that demonstrated the trial court’s subject matter jurisdiction over any

claims for relief asserted by the Intervenor. CR at 62. To the contrary, Intervenors’

Petition in Intervention and Plea to the Jurisdiction affirmatively refuted the trial

court’s subject matter jurisdiction when they asked the trial court to “dismiss this

action because this Court lacks subject matter jurisdiction under Texas Family

Code §161.211(a).” CR1:63. It is impossible for the Intervenors to intervene in a

proceeding over which they claim the trial court lacks subject matter jurisdiction.

      Further, Intervenors’ failed to show that they could have brought all or part

of the same suit in their own name, or that they would have been able to defeat all

or part of the recovery if the suit had been filed against them.

      The trial court should have denied Intervenors’ Petition in Intervention.

                                  CONCLUSION

      Section 161.211(a) of the Texas Family Code is unconstitutional as applied

to Appellant, and Appellant preserved the constitutional issues for this Court’s

review, including her due process rights. See RR: 10:2-25; 12:5-25; 13:1-5; 18:21-

24; 32:6-16; 34:10-19; 25:18-25. Appellant also made a showing that, to the extent

allowed by the trial court, the operation of Section 161.211(a) harmed Appellant.

      Intervenors’ Petition in Intervention should have been denied. Appellant

objected to Intervenors’ Petition in Intervention, and Appellant’s objection was


                                          21
tried by consent. RR 6:18; 13:9-16; 13:23-25; 14:1-16. Intervenors’ Petition in

Intervention and Plea to the Jurisdiction did not allege facts that demonstrated the

trial court’s subject matter jurisdiction over any claims for relief asserted by the

Intervenor, and actually argued against any subject matter jurisdiction of the trial

court. CR at 62-63. Intervenors’ failed to show that they could have brought all or

part of the same suit in their own name, or that they would have been able to defeat

all or part of the recovery if the suit had been filed against them.

                                      PRAYER

      Appellant prays that this Court reverses the Order Granting Petition in

Intervention and Plea to the Jurisdiction signed by the trial court below, and that

this Court remands this case back to the trial court for a hearing on the merits of

Appellant’s Original Petition for Bill of Review.

      Alternatively, Appellant prays for whatever relief to which this Court finds

that Appellant may otherwise be entitled.

                                        Respectfully submitted,

                                        BOYD LITIGATION GROUP
                                        205 W. Louisiana Street, Suite 103
                                        McKinney, Texas 75069
                                        Tel: (469) 777-6129
                                        Email: boydlitigationgroup@gmail.com

                                        By:__________________________________
                                           CASEY T. BOYD
                                           State Bar No. 24059477
                                           Counsel for APPELLANT

                                          22
                         CERTIFICATE OF SERVICE

      I certify that on January 31, 2019, I served a copy of the Appellant’s Brief to

the following counsel and parties by electronic mail or via facsimile:

Respondent/Appellee’s Appellate Counsel:
Mr. John Rolater
Assistant District Attorney
Collin County District Attorney’s Office
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
Tel: (972) 548-4323
Fax: (214) 491-4860
Email: jrolater@co.collin.tx.us

Intervenors/Appellees’ Trial Counsel:
Ms. Rebecca Rowan
State Bar No. 24060729
KOONSFULLER, P.C.
1717 McKinney Avenue, Suite 1500
Dallas, Texas 75202
Tel: (214) 871-2727
Fax: (214) 871-0196
Email: rrowan@.koonsfuller.com

Attorney Ad Litem in Trial Court for R.M., the Child:
Ms. Terri Daniel
State Bar No. 00796433
6675 Mediterranean Dr., Suite 407
McKinney, Teas 75072
Tel: (469) 519-2739
Fax: (877) 291-1215
Email: terri@terridaniellaw.com



                                       CASEY T. BOYD
                                       Counsel for APPELLANT

                                         23
                              05-18-01127-CV

                 IN THE FIFTH DISTRICT COURT OF APPEALS
                            AT DALLAS, TEXAS


                     IN THE INTEREST OF R.M., A CHILD

                               JILL KUTKA,
                               APPELLANT

         TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                              APPELLEE

                   SHAWN INGRAM AND JENNIFER INGRAM,
                              APPELLEES


                       APPELLANT’S APPENDIX


1.   Texas Family Code Section 162.211(a)         Appendix Exhibit “A”
2.   Texas Family Code Section 263.405            Appendix Exhibit “B”




                                    24
APPELLANT’S APPENDIX EXHIBIT “A”




               25
§ 161.211. Direct or Collateral Attack on Termination Order, TX FAMILY § 161.211




  Vernon's Texas Statutes and Codes Annotated
    Family Code (Refs & Annos)
      Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
      Annos)
        Subtitle B. Suits Affecting the Parent-Child Relationship
           Chapter 161. Termination of the Parent-Child Relationship (Refs & Annos)
              Subchapter C. Hearing and Order

                                              V.T.C.A., Family Code § 161.211

                              § 161.211. Direct or Collateral Attack on Termination Order

                                                        Currentness


(a) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights
of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an
affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to
collateral or direct attack after the sixth month after the date the order was signed.


(b) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights
of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month
after the date the order was signed.


(c) A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment
of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in
the execution of the affidavit.


Credits
Added by Acts 1997, 75th Leg., ch. 600, § 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 601, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1390, § 19, eff. Sept. 1, 1999.



Notes of Decisions (48)

V. T. C. A., Family Code § 161.211, TX FAMILY § 161.211
Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature

End of Document                                                © 2019 Thomson Reuters. No claim to original U.S. Government Works.




                                                             26

               © 2019 Thomson Reuters. No claim to original U.S. Government Works.                                              1
APPELLANT’S APPENDIX EXHIBIT “B”




               27
       Sec. 263.405. APPEAL OF FINAL ORDER. (a) An appeal of a final order rendered
under this subchapter is governed by the procedures for accelerated appeals in civil cases under
the Texas Rules of Appellate Procedure. The appellate court shall render its final order or
judgment with the least possible delay.
       (b) A final order rendered under this subchapter must contain the following prominently
displayed statement in boldfaced type, in capital letters, or underlined: "A PARTY
AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN APPEAL IN A SUIT
IN WHICH TERMINATION OF THE PARENT-CHILD RELATIONSHIP IS SOUGHT IS
GOVERNED BY THE PROCEDURES FOR ACCELERATED APPEALS IN CIVIL CASES
UNDER THE TEXAS RULES OF APPELLATE PROCEDURE. FAILURE TO FOLLOW
THE TEXAS RULES OF APPELLATE PROCEDURE FOR ACCELERATED APPEALS
MAY RESULT IN THE DISMISSAL OF THE APPEAL."
       (b-1) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (c) The supreme court shall adopt rules accelerating the disposition by the appellate
court and the supreme court of an appeal of a final order granting termination of the parent-
child relationship rendered under this subchapter.
       (d) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (f) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (g) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (h) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
       (i) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.
Added by Acts 2001, 77th Leg., ch. 1090, Sec. 9, eff. Sept. 1, 2001.
Amended by:
       Acts 2005, 79th Leg., Ch. 176 (H.B. 409), Sec. 1, eff. September 1, 2005.
       Acts 2007, 80th Leg., R.S., Ch. 526 (S.B. 813), Sec. 2, eff. June 16, 2007.
       Acts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906), Sec. 4, eff. September 1, 2011.
       Acts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906), Sec. 5, eff. September 1, 2011.




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