                                Fourth Court of Appeals
                                       San Antonio, Texas
                                     DISSENTING OPINION
                                          No. 04-14-00767-CV

                       IN THE INTEREST OF D.M.B., Jr. and I.L.B., Children

                      From the 166th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013-PA-02050
                              Honorable Peter A. Sakai, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: April 29, 2015

           Because I disagree with the majority’s conclusion that Father made a general appearance

by and through his court-appointed ad litem attorney in this parental termination case, thus waiving

any complaint about service and failing to show error on the face of the record, I respectfully

dissent. I believe this court has jurisdiction to review the merits of this restricted appeal from the

judgment terminating Father’s parental rights.

           In this case, Father opted to challenge the judgment by restricted appeal, as the Texas Rules

of Appellate Procedure permit him to do. See TEX. R. APP. P. 30. To obtain reversal of a judgment

by restricted appeal, the appellant must establish that (1) he filed notice of restricted appeal within

six months after the date the judgment was signed, (2) he was a party to the suit, (3) he did not

participate, either in person or through counsel, in the hearing that resulted in the judgment

complained of, and did not timely file a post-judgment motion, request for findings of fact and
Dissenting Opinion                                                                     04-14-00767-CV


conclusions of law, or notice of appeal, and (4) error is apparent on the face of the record. TEX.

R. APP. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only

the fourth element is at issue in this case. Within the context of a restricted appeal, the record

consists of all the papers on file in the appeal, including the reporter’s record. Norman Commc’n

v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Beller v. Fry Roofing, Inc.,

No. 04-05-00159-CV, 2005 WL 3115828, at *1 (Tex. App.—San Antonio Nov. 23, 2005, no pet.)

(mem. op.). The face of the record must show error, not merely support an inference of error.

Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (“[A] restricted appeal requires error that is

apparent, not error that may be inferred.”).

        Here, Father contends the trial court had no personal jurisdiction over him because the

Department did not strictly comply with the procedures for substituted service of citation;

therefore, the face of the record shows error, in that it shows he was not properly served with

citation under Rule 106(b). TEX. R. CIV. P. 106(b) (stating the procedures for substituted service);

see Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994) (strict compliance with

rules governing service must affirmatively appear on face of record to support default judgment

based on substituted service); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d

884, 885 (Tex. 1985) (there are no presumptions in favor of valid issuance, service, and return of

citation in face of writ or error attack on default judgment). The majority concludes that it need

not address the merits of Father’s complaint because he waived any defect in service by making a

general appearance through his attorney ad litem. See TEX. R. CIV. P. 120. The guidelines for

determining whether a party has made a general appearance are: (1) if the party invokes the

jurisdiction of the court on any question other than the court’s jurisdiction; (2) if the party

recognizes by its acts that an action is properly pending; or (3) if the party seeks affirmative action



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Dissenting Opinion                                                                                04-14-00767-CV


from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). The majority

determines, without specific authority, that an objection to the admissibility of evidence alone

disqualifies the attorney as a “mere bystander or silent figurehead” and constitutes a sufficient

deed by counsel on behalf of an absent Father that “seeks affirmative action from the court” to

invoke the court’s personal jurisdiction over Father. I disagree that the record before us in this

parental termination suit supports the finding of a general appearance by Father.

        Here, the clerk’s record contains no pleadings filed by Father’s attorney ad litem, who was

appointed on August 26, 2013. On September 17, 2013, the trial court held a Chapter 262 hearing

at which Father’s attorney was present and announced “not ready.” The September 17, 2013

“Temporary Order Following Show Cause Hearing” indicates the trial court conducted a full

adversary hearing pursuant to section 262.205, although the reporter’s record reflects the

Department twice indicated, “this is a 113.” See TEX. FAM. CODE ANN. § 262.113 (West 2014)

(“Filing Suit Without Taking Possession of Child”); id. § 262.205 (West 2014) (“Hearing When

Child Not in Possession of Government Entity”). The order set a status hearing and pre-trial

conference pursuant to section 263.201 for November 6, 2013, and was signed by Father’s attorney

“approved as to form.” 1 See id. § 263.201 (West 2014) (“Status Hearing; Time”). As the majority

notes, the September 17, 2013 temporary order states in introductory form language that Father

appeared in person and through his attorney, which is refuted by the reporter’s record of the hearing

which clearly shows that Father was not present.

        The record reflects that Father was not present at the November 6, 2013 status hearing.

Father’s attorney was present and signed “approved as to form” the order setting the next

status/permanency hearing for March 5, 2014 and trial on the merits for August 18, 2014. In


1
  On September 17, 2013, the trial court also entered an order authorizing placement of the children which does not
reflect Father’s appearance either in person or by attorney, and is not signed by Father’s attorney.

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Dissenting Opinion                                                                                    04-14-00767-CV


December 2013, the case was transferred to drug court and that court set a March 7, 2014 date for

the next status/permanency hearing and a trial date of July 11, 2014. The record shows neither

Father nor his attorney were present at the March 7, 2014 hearing. On July 11, 2014, the case was

expelled from drug court and transferred back to the 166th Judicial District Court. 2 The order set

the matter for trial on the merits on July 25, 2014. Father’s attorney signed the order “as to form

only.” Neither Father nor his attorney were present for trial on July 25, 2014. The termination

order indicates in introductory form language that counsel appeared and announced “ready”, but

it is not signed by Father or his counsel.

         My disagreement with the majority is whether the attorney ad litem’s presence and actions

at the Chapter 262 hearing on September 17, 2013 alone constituted a general appearance by Father

in this termination suit.

         If a trial court enters a judgment without acquiring personal jurisdiction over the parties,

the judgment is void. In re C.T., No. 13-12-00006-CV, 2012 WL 6738266, at *11 (Tex. App.—

Corpus Christi Dec. 27, 2012, no pet.) (mem. op.) (citing Browning v. Placke, 698 S.W.2d 362,

363 (Tex. 1985)). “[B]ecause an involuntary termination of parental rights involves fundamental

constitutional rights, we must exercise the utmost care in ensuring that a parent’s rights are

acknowledged and protected.” Id. A termination suit is not a custody proceeding and is afforded

higher scrutiny. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). Termination proceedings must be

strictly scrutinized, and termination statutes are strictly construed in favor of the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Again, there are no presumptions in favor of valid issuance,

service, or return of citation in the face of a writ of error attack on a default judgment. Uvalde

Country Club, 690 S.W.2d at 885.


2
 I do not address the effect on the court’s jurisdiction over Father after the case was transferred to and from the drug
court.

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Dissenting Opinion                                                                     04-14-00767-CV


        Here, the majority dismisses Father’s restricted appeal after concluding that Father made a

general appearance in the termination suit once his ad litem attorney “attended” and “participated”

in the preliminary Chapter 262 hearing. The reporter’s record indicates that Mother had agreed to

the Department’s managing conservatorship over her children, with her as possessory conservator,

and that Father’s attorney announced that Father was “not here“ and that he “cannot be in

agreement with the State.” The trial court acknowledged the “not ready” announcement, but

denied it and proceeded with the hearing.          During the caseworker’s testimony on direct

examination by the Department, Father’s attorney raised several evidentiary objections, e.g.,

hearsay, which were ruled on by the trial court. Despite the trial court’s invitation to counsel that

he could “cross, even though you’re not ready so you’re not making an appearance” (emphasis

added), counsel did not engage in any cross-examination of the Department’s witnesses nor present

any witnesses or argument on Father’s behalf. The trial court similarly invited counsel to cross-

examine Mother, “without appearing,” and counsel further declined. Father’s attorney also

objected to any evidence in support of the Department’s request for a temporary restraining order

against Father on constitutional due process grounds for lack of notice because the Department

had not pled for a restraining order in its petition. The trial court made no ruling on the attorney’s

objection. Father’s attorney made no closing argument, and urged no prayer for relief on Father’s

behalf. In ruling, the trial court prohibited access by Father to the children, stating it was “not a

restraining order, but it sounds like one.” In closing, the Department argued for temporary

possessory conservatorship as to Mother over both children, and as to Father over only one child

until genetic testing could be ordered to confirm his parentage over the second child. The

children’s ad litem requested a genetic testing order for Father, presumably to confirm his




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Dissenting Opinion                                                                      04-14-00767-CV


parentage over the second child, to which the trial court replied, “I’m not going to DNA order him

until he shows up.”

        By not agreeing or acquiescing to the restraining order at the Chapter 262 hearing, the ad

litem avoided an implicit acknowledgment of the court’s jurisdiction over Father and any

recognition that an action was properly pending. Cf. Schoendienst v. Haug, 399 S.W.3d 313, 318-

19 (Tex. App.—Austin 2013, no pet.) (internal citations omitted) (in restricted appeal, record

showed appellant was served, did not file written answer, but “appeared” by entering into agreed

temporary injunction, thereby entitling her to notice of default judgment when considered in the

context of the present record). “[W]e do not suggest that agreeing or acquiescing to some form of

temporary injunctive relief will always constitute an appearance.” Id. at 321. In the absence of a

written answer, “whether a defendant is considered to have ‘appeared’ depends on the nature and

quality of the party’s activities in the case” and requires a “fact-specific analysis that considers the

nature and quality of any written documents the defendant has filed in the case, any participation

in hearings, and any other personal activity by the defendant.” Id. at 316-17; see In re Marriage

of Runberg, 159 S.W.3d 194, 198 (Tex. App.—Amarillo 2005, no pet.). In fact, we have

previously held that an agreement to the extension of a temporary restraining order and to

temporary injunction orders does not constitute a general appearance. Carey v. State, No. 04-09-

00809-CV, 2010 WL 2838631, at *3 (Tex. App.—San Antonio July 21, 2010, pet. denied) (mem.

op.). In particular, in In re P.Y.M., we determined that counsel’s attendance and participation at a

parental termination hearing constituted a general appearance by properly considering counsel’s

specific actions in conducting a substantive examination of a witness, along with praying for a

judgment and findings on behalf of her client. In re P.Y.M., No. 04-13-00024-CV, 2013 WL

4009748 (Tex. App.—San Antonio Aug. 7, 2013, pet. denied) (mem. op.); see also In re Runberg,



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Dissenting Opinion                                                                    04-14-00767-CV


159 S.W.3d at 198 (announced ready and entered into extensive agreement regarding subject

matter of suit). In so doing, counsel sought an adjudication on a question of fact, i.e., on the best

interests of the child, that explicitly addressed an adjudication on the merits of Father’s claim or

defense before the court and thus invoked the jurisdiction of the court.

        Raising a hearsay objection does not rise to a plea. It does not seek a judgment or

adjudication of some disputed non-jurisdictional issue, but merely an evidentiary ruling. It most

certainly does not evidence an unqualified submission of Father’s recognition that the court had

jurisdiction over him to decide questions beyond jurisdiction itself, or that the underlying

termination suit was properly pending. I am not willing to extend our recent holding so far as to

hold that a court-appointed ad-litem’s evidentiary objections alone constitute a general appearance

by Father, particularly when they are made ten months before the actual trial on the merits in an

involuntary termination suit. Father’s attorney made it clear to the court that he was “not ready”

to proceed; the trial court likewise indicated on the record its understanding that Father’s attorney

was “not appearing.” That the trial court refused to enter a restraining order or DNA testing on

Father “until he shows up” is further evidence of the trial court’s acknowledgment that Father had

not yet made an appearance, either personally or through counsel. Almost a year later, on July 25,

2014, neither the ad litem attorney nor Father appeared at the trial seeking termination of Father’s

parental rights. Counsel’s conduct throughout the record is consistent with a challenge to the

court’s jurisdiction and does not amount to an invocation of the court’s jurisdiction nor a

recognition that the suit was properly pending or that the court had properly exercised personal

jurisdiction over the absent Father. See Exito Elecs., 142 S.W.3d at 304. To so hold is inconsistent

with Rule 120 and prevailing caselaw. See TEX. R. CIV. P. 120. There is nothing in the record that

would suggest a contrary conclusion.



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Dissenting Opinion                                                                    04-14-00767-CV


        Moreover, we have previously recognized that appearing in a matter ancillary and prior to

the main suit does not constitute a general appearance in the main suit. See Carey, 2010 WL

2838631, at *3 (holding party’s agreement to extension of temporary restraining order and

temporary injunction did not constitute a general appearance); see also Turner v. Turner, No. 14-

98-00510-CV, 1999 WL 33659, at *3 (Tex. App.—Houston [14th Dist.] Jan. 28, 1999, no pet.)

(holding attorney’s presence at temporary restraining order hearing did not constitute general

appearance because hearing related to an ancillary matter); see also In re M.G.M., 163 S.W.3d

191, 200-01 (Tex. App.—Beaumont 2005, no pet.) (refusing to hold defendant waived special

appearance when party entered into agreed collateral order); Perkola v. Koelling & Assocs., Inc.,

601 S.W.2d 110, 111-12 (Tex. Civ. App.—Dallas 1980, writ dism’d) (holding defendant did not

waive his plea by contesting interlocutory temporary injunction).

        I do not believe these facts fit within the guidelines for making a general appearance and

prevailing authority addressing the issue. See Exito Elecs., 142 S.W.3d at 304. Most certainly,

not within the context of this parental termination suit. The condemnation case cited by the

majority is distinguishable from the facts in this case and not instructive. By analogizing this case

with a condemnation suit, the majority fails to recognize “the unique procedural process involved

in eminent domain cases” which involves both an administrative and judicial proceeding, and

reliance thereon cannot justify ignoring a proper construction of Rule 120 and this court’s more

relevant precedent addressing the issue before us. See Seals v. Upper Trinity Regional Water Dist.,

145 S.W.3d 291, 294 (Tex. App.—Fort Worth 2004, pet. dism’d) (judicial phase begins after

appellant filed his objections to special commissioners’ award, not earlier during administrative

phase when request for injunction was granted) (citing Amason v. Natural Gas Pipeline Co., 682

S.W.2d 240, 241 (Tex. 1984)). Without need, the majority extends the purview of our previous



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Dissenting Opinion                                                                    04-14-00767-CV


holdings and ignores the scrutiny required to protect due process owed to a parent against whom

involuntary parental termination is sought.

        Considering the absence of pleas or pleadings on behalf of Father and the complete absence

of Father at all of the proceedings, in the context of the fundamental constitutional rights involved

and the proceedings unique to this involuntary termination of parental rights suit, and the error I

find apparent in the record before us, I would not hold that Father waived his complaints by

entering a general appearance to dismiss this restrictive appeal. I find error on the face of the

record and would retain jurisdiction over this restricted appeal to review the merits of Father’s

complaint regarding service.


                                                  Rebeca C. Martinez, Justice




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