                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-195-CV

IN THE INTEREST OF J.B., JR.,
S.C.B., AND S.F.B., MINOR CHILDREN

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             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In five issues, the Office of the Attorney General of Texas (“the OAG”)

appeals the trial court’s order overturning the portion of the 2004 agreed Child

Support Review Order (“CSRO”) pertaining to S.C.B., and it further appeals the

trial court’s order terminating the parent-child relationship between Appellee

J.B. and S.C.B. We vacate in part and reverse and remand in part.




      1
          … See Tex. R. App. P. 47.4.
                         II. Factual and Procedural History

      In 2004, during the marriage of J.B. and (“Mother”), J.B. signed an

admission of paternity acknowledging S.C.B. as his biological child. At the

same time, he signed an agreed CSRO and a “Waiver of Service, Hearing, and

Other Rights and Approval of Child Support Review Order.” The trial court

adjudicated J.B. the father of S.C.B.; neither post-trial motions nor a notice of

appeal was filed.

      In 2006, J.B. sought a divorce from Mother. In the petition, J.B. alleged

that he was the father of S.C.B.; however, J.B. learned after filing the divorce

petition that he was not S.C.B.’s biological father. In 2007, the OAG filed a

petition to intervene in the divorce proceeding and moved to consolidate the

divorce proceeding with the suit affecting the parent-child relationship

(“SAPCR”) in which the CSRO had been signed.2

      Shortly thereafter, without informing the OAG, the trial court signed an

agreed final decree of divorce. The decree contained a finding that S.C.B. ”is

not a child of this marriage” and established conservatorship and child support

for J.B., Jr. and S.F.B. 3 Upon learning of the decree, the OAG timely filed a



      2
       … Through the intervention, the OAG sought to establish child support
for S.C.B.
      3
          … J.B.’s biological children were provided for; however, S.C.B. was not.

                                         2
motion for new trial. The trial court granted the OAG’s motion for new trial but

limited the issues to conservatorship, visitation, child support, and medical

support for S.C.B.

      In J.B.’s first amended original answer and counterclaim, he denied

paternity of S.C.B. based on genetic test results and claimed fraud on the part

of Mother. At the conclusion of the hearing, the trial court signed an order that

overturned the CSRO with respect to S.C.B., terminated the parent-child

relationship between J.B. and S.C.B., reinstated the agreed degree of divorce,

and granted J.B. visitation rights to S.C.B. This appeal followed.

                            III. Standard of Review

      We review the trial court’s grant or denial of a bill of review for an abuse

of discretion, and every presumption is indulged in favor of the court’s ruling.

Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.—Austin 2000, pet.

denied).   We review the trial court’s ruling on pleadings for an abuse of

discretion. Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex. 1980). A trial

court abuses its discretion if it misapplies the law to established facts. State

v. Sw. Bell Tel. Co., 526 S.W .2d 526, 528 (Tex. 1975); In re Talco-Bogata

Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex.

App.—Texarkana 1999, no pet.).




                                        3
                        IV. Child Support Review Oder

      In its first issue, the OAG asserts that the trial court abused its discretion

by overturning the CSRO. Specifically, the OAG argues that 1) the trial court

lacked plenary jurisdiction to overturn the CSRO and that J.B.’s petition failed

to meet the requirements of a bill of review, 2) the trial court’s findings and

conclusions as to the bill of review are legally and factually insufficient, and 3)

J.B.’s pleadings do not support the trial court’s order overturning the CSRO.4

      Although paternity was not contested in the original proceeding, the 2004

SAPCR addressed S.C.B.’s paternity. The agreed CSRO establishes that J.B.

is the father of S.C.B. and provides for S.C.B.’s medical care. 5        Generally,

subject to several exceptions, a party to a court proceeding to determine

parentage of a child is bound by the court’s findings. Tex. Fam. Code Ann.

§ 160.637(a)(2) (Vernon 2008).

      Although the 2004 order is an agreed order, and therefore is not based

upon a fully contested trial on the merits, agreed orders are “accorded the same

degree of finality and binding force as a final judgment rendered at the



      4
       … The OAG also claims that J.B.’s pleadings do not support the trial
court’s order terminating the parent-child relationship between J.B. and S.C.B.;
however, we do not address that portion of the argument at this time.
      5
      … Because J.B. and Mother resided together at the time the CSRO was
agreed to, it did not establish conservatorship, visitation, or child support.

                                         4
conclusion of an adversary proceeding.” McCray v. McCray, 584 S.W.2d 279,

281 (Tex. 1979). While J.B. became obligated to support S.C.B. by virtue of

the CSRO adjudicating paternity, Texas law does provide post-judgment

avenues to contest a paternity finding. Section 160.637(e) of the Texas Family

Code provides that “[a] party to an adjudication of paternity may challenge the

adjudication only under the laws of this state relating to appeal, the vacating

of judgments, or other judicial review.” Tex. Fam. Code Ann. § 160.637(e).

      Pursuant to rule 329b(d) of the Texas Rules of Civil Procedure, the trial

court has plenary power for thirty days after a judgment is signed to grant a

new trial or to vacate, modify, correct, or reform the judgment. Tex. R. Civ. P.

329b(d). Once the trial court’s plenary power expires, it cannot set aside its

judgment except by a bill of review for sufficient cause.      Tex. R. Civ. P.

329b(f).

      A bill of review is an independent equitable action brought by a party to

a former action seeking to set aside a judgment that is no longer appealable or

subject to a motion for new trial. Id.; Middleton v. Murff, 689 S.W.2d 212,

213 (Tex. 1985). To invoke the equitable power of the trial court, the party

seeking a bill of review must file a petition alleging with particularity sworn

facts sufficient to constitute a meritorious defense, which he was prevented

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

                                       5
result of official mistake, and unmixed with any fault or negligence of his own.

State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989).

      In a petition for a bill of review, the petitioner must allege extrinsic fraud

as distinguished from intrinsic fraud. Tice v. City of Pasadena, 767 S.W.2d

700, 702 (Tex. 1989); Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). Failure to plead extrinsic fraud will

result in denial of the right to a trial by bill of review. See Tice, 767 S.W.2d at

700; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003)

(discussing extrinsic fraud), cert. denied, 541 U.S. 1030 (2004).

      Extrinsic fraud is fraud that denies a party the opportunity to fully litigate

at trial all the rights or defenses that he could have asserted. Tice, 767 S.W.2d

at 702. Extrinsic fraud is wrongful conduct practiced outside of the adversary

trial—such as keeping a party away from court, making false promises of

compromise, denying a party knowledge of the suit—that affects the manner

in which the judgment is procured. Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). “Extrinsic fraud is ‘collateral’ fraud

in the sense that it must be collateral to the matter actually tried and not

something which was actually or potentially in issue in the trial.” Montgomery

v. Kennedy, 669 S.W.2d 309, 312–13 (Tex. 1984) (citing Crouch v. McGaw,

134 Tex. 633, 138 S.W.2d 94, 97 (1940)).

                                         6
      In contrast, intrinsic fraud “relates to the merits of the issues which were

presented and presumably were or should have been settled in the former

action.” Tice, 767 S.W.2d at 702. Intrinsic fraud “is inherent in the matter

considered and determined in the trial ‘where the fraudulent acts pertain to an

issue involved in the original action, or where the acts constituting the fraud

were, or could have been litigated therein.’” Montgomery, 669 S.W.2d at 313

(quoting Mills v. Baird, 147 S.W.2d 312, 316 (Tex. Civ. App.—Austin 1941,

writ ref’d)).

      J.B. does not allege extrinsic fraud in his petition. 6   J.B. alleges that

Mother lied when she told J.B. that he was S.C.B.’s father, and that he did not

learn until after the trial court had already adjudicated him S.C.B.’s father that

he was not, in fact, S.C.B.’s biological father. Thus, the fraudulent statements

that J.B. complains of were made by Mother, who was also a party to the

SAPCR.

      Because parentage was an issue subject to being fully litigated in the

SAPCR, and the alleged fraud was that of a party to the suit, J.B.’s claim about

Mother’s misrepresentations of parentage asserts intrinsic fraud. See, e.g., In

re J.M.C., No. 04-06-00431-CV, 2007 WL 460691, *2 (Tex. App.—San



      6
        … Although there is a question as to whether J.B.’s petition was even
filed as a bill of review, we assume for the sake of this argument that it was.

                                        7
Antonio Feb. 14, 2007, no pet.) (mem. op.); In re Attorney Gen. of Tex., 184

S.W.3d 925, 928 (Tex. App.—Beaumont 2006, no pet.); Nelson, 193 S.W.3d

at 166.

      To prove extrinsic fraud, J.B. had to present a prima facie case that

Mother prevented him from having a fair opportunity to assert that he was not

S.C.B.’s father when the parent-child relationship was established by the CSRO.

See Nelson, 193 S.W.3d at 166. Furthermore, J.B. was put on notice by the

very nature of the paternity proceeding that he could avail himself of the

defense of non-paternity and that he could obtain a DNA test to support his

defense.   Id. Finally, J.B. failed to present sworn facts showing that Mother

prevented him from availing himself of DNA testing at the time paternity was

established.

      Therefore, because J.B. did not meet the preliminary requirements for a

bill of review proceeding—that is, he did not allege facts to show that: 1) the

CSRO was rendered as the result of extrinsic fraud, and 2) the CSRO was

rendered without the contribution of his own fault or neglect—we hold that the

trial court abused its discretion in overturning that portion of the CSRO




                                      8
pertaining to S.C.B. based upon the allegations in J.B.’s petition for a bill of

review. Accordingly, we sustain the OAG’s first issue.7

                           V. Parent-Child Termination

      In the OAG’s fifth issue and as part of its third issue, the OAG asserts

that the trial court abused its discretion by ordering the termination of the

parent-child relationship between J.B. and S.C.B. Specifically, the OAG argues

that 1) J.B.’s pleadings do not support the relief granted, 2) there is no

evidence to support the trial court’s finding that termination of the parent-child

relationship is in the best interest of S.C.B., and 3) there is insufficient evidence

to support the trial court’s finding that termination of the parent-child

relationship is in S.C.B.’s best interest.

      Rule 301 of the Texas Rules of Civil Procedure provides that the judgment

of a court must be supported by the pleadings. Tex. R. Civ. P. 301. The

purpose of pleadings is to give an adversary notice of claims and defenses, as

well as notice of the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d

216, 218 (Tex. 1991).




      7
       … Because we determine that the trial court abused its discretion in
overturning the CSRO, we need not address the OAG’s second issue pertaining
to the trial court’s findings and conclusions as to the bill of review, or that
portion of the OAG’s third issue that pertains to J.B.’s pleadings regarding the
CSRO. See Tex. R. App. P. 47.1.

                                         9
      The only pleadings filed by J.B. in this matter were his original petition for

divorce and, in response to the OAG’s motion for new trial, his first amended

original answer and counterclaim. In the divorce petition, J.B. alleged that

S.C.B. is a child of the marriage.     Therefore, the divorce petition does not

support the trial court’s order to terminate the parent-child relationship between

J.B. and S.C.B. The following are the pertinent sections of J.B.’s first amended

original answer and counterclaim, paraphrased:

“Denial of Paternity” (Paragraph 3): J.B. alleged that he and Mother divorced
on November 5, 2007, and that he and Mother had agreed in the divorce
proceedings that J.B. was not S.C.B.’s biological father. J.B. admitted that
S.C.B. was born during the marriage. J.B. also alleged that Mother “advised”
him after the divorce petition had been filed that he was not S.C.B.’s biological
father. Finally, J.B. “denied that he is the biological father” of S.C.B. and
“assert[ed] that genetic testing was performed on [S.C.B.]” and excluded him
as the biological father of S.C.B.

“Counterclaim Against [Mother]” (Paragraph 4): J.B. alleged that Mother
committed fraud in that she knew J.B. was not S.C.B.’s biological father. J.B.
alleged that Mother made representations to him during the marriage regarding
S.C.B.’s paternity that were false and that Mother knew they were false at the
time they were made. Finally, J.B. alleged that Mother made the false
representations with the intent that J.B. rely on them, and that the false
representations caused him injury for which he seeks damages.

“Prayer” (Paragraph 6): J.B. asked that all relief sought by petitioner as to
S.C.B. be denied and that he “be granted all relief requested in this answer.”
J.B. requested damages from Mother on his fraud claim plus attorney’s fees,
expenses, and costs. Finally, he asked for general relief.

      This pleading did not give fair notice to the OAG that J.B. was seeking

to terminate his rights as a parent to S.C.B. It did not refer to a voluntary

                                        10
termination, nor did it use words from which a reasonable person could infer

that termination of the parent-child relationship is the basis of the petition. It

alleged only that J.B. is not S.C.B.’s biological father and then asked that all

relief sought by the OAG be denied. The OAG sought child support and medical

expenses for S.C.B. Requesting relief from having to pay child support and

medical expenses for S.C.B. did not provide fair notice to the OAG that J.B.

was seeking to terminate his parental rights. See Perez, 809 S.W.2d at 218.

J.B. argues, however, that even if termination was not pleaded, it was tried by

consent.

      When an issue not raised by the pleadings is tried by the express or

implied consent of the parties, it is treated in all respects as if it had been raised

in the pleadings. Tex. R. Civ. P. 67; see Roark v. Stallworth Oil & Gas, Inc.,

813 S.W.2d 492, 495 (Tex. 1991). Trial by consent is intended to cover the

exceptional case in which it clearly appears from the record as a whole that the

parties tried the unpleaded issue. RE/MAX of Tex., Inc. v. Katar Corp., 961

S.W.2d 324, 328 (Tex. App.—Houston [1st Dist.] 1997), pet. denied, 989

S.W.2d 363 (Tex. 1999); Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex.

App.—Houston [1st Dist.] 1993, writ denied). It is not intended to establish a

general rule of practice and should be applied with care. RE/ MAX of Tex., 961

S.W.2d at 328; Stephanz, 846 S.W.2d at 901. To determine whether an issue

                                         11
was tried by consent, we must examine the record, not for evidence of the

issue, but rather for evidence of trial of the issue. Beck v. Walker, 154 S.W.3d

895, 901 n.3 (Tex. App.—Dallas 2005, no pet.); RE/ MAX of Tex., 961 S.W.2d

at 328; Stephanz, 846 S.W.2d at 901. An issue is tried by consent only when

a party introduces evidence relevant to the unpleaded issue without objection.

See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (op. on reh’g).

      Here, the OAG objected on two separate occasions to the lack of

pleadings to support termination.8 See id. J.B. argues however that the OAG

did not request a running objection and, as a result, relevant evidence was

admitted without objection. However, because a single objection negates an

implication of consent, it is not necessary to object to every offer of evidence

relevant to the unpleaded issue to avoid trial by consent.      Harkey v. Tex.

Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919, 922 (1948).

Therefore, since termination was not pleaded or tried by consent, it should not

have been considered by the trial court and cannot be the basis for an order

terminating J.B.’s parental rights to S.C.B. See Perez, 809 S.W.2d at 218;

Boyles, 855 S.W.2d at 601. Accordingly, we sustain that portion of the OAG’s




      8
     … At no time did J.B. request leave of the court to file a trial
amendment, nor was a trial amendment filed in this cause.

                                      12
third issue pertaining to J.B.’s pleadings and the trial court’s order terminating

the parent-child relationship between J.B. and S.C.B.

      Furthermore, even if termination had been pleaded or tried by consent,

J.B. failed to provide evidence that termination was in S.C.B.’s best interest.

The Texas Family Code provides that a parent may file a petition requesting

termination of the parent-child relationship with his child. Tex. Fam. Code Ann.

§ 161.005(a) (Vernon 2008). The court may order termination only if it is in

the best interest of the child. Id.

      The termination of parental rights involves fundamental constitutional

rights and, therefore, the evidence supporting the termination must be clear and

convincing. Tex. Fam. Code Ann. § 161.206(a); Richardson v. Green, 677

S.W.2d 497, 500 (Tex. 1984). Clear and convincing evidence is that measure

or degree of proof that will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established. Tex.

Fam. Code Ann. § 101.007 (Vernon 2008). This intermediate standard falls

between the preponderance standard of civil proceedings and the reasonable

doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847

(Tex. 1980); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). While

the proof must be of a heavier weight than merely the greater weight of the




                                        13
credible evidence, there is no requirement that the evidence be unequivocal or

undisputed. Addington, 588 S.W.2d at 570.

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination

were proven.   In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).         We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the factfinder resolved any disputed

facts in favor of its finding if a reasonable factfinder could have done so. Id.

We must also disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable factfinder could, and disregard contrary evidence

unless a reasonable factfinder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as

they are not unreasonable. Id. at 573.

                                      14
      If we determine that no reasonable factfinder could form a firm belief or

conviction that the grounds for termination were proven, then the evidence is

legally insufficient, and we must generally render judgment upholding the

parent-child relationship. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see

Tex. R. App. P. 43.3.

      During trial, J.B. offered the following evidence to support his argument

that terminating his parental rights to S.C.B. is in S.C.B.’s best interest. First,

J.B. testified that he and Mother had an agreed decree of divorce that did not

include S.C.B. Second, J.B. testified to the following:

      Q: Do you think it’s in the best interest of [S.C.B.] that you be
      allowed to terminate as to [S.C.B.]?

      A: Yes.

      Q: Why is that? Explain that to the Court.

      A. I am not responsible for him financially.

      Q. What else?

      A. I mean, he ought to – he ought to know the truth, you know
      eventually.

Third, J.B. testified that he should not be responsible for S.C.B. financially, but

rather S.C.B.’s biological father should be the one to financially support S.C.B.

      However, the trial court also heard the following undisputed evidence

during trial. J.B. is the only father that S.C.B. has ever known. S.C.B. calls

                                        15
J.B. “Daddy.” J.B. has a good relationship with S.C.B. J.B. and Mother have

agreed never to tell S.C.B. about his biological father. J.B. has agreed to raise

S.C.B. like his own son. J.B. wants to continue his relationship with S.C.B.

Mother is a single mom who makes $6.50 per hour. J.B. earned $87,353 in

the year before the hearing. S.C.B. was on Medicaid at the time of the hearing,

but it was set to expire at the end of the month. Mother does not have health

insurance through her employment.       J.B. has health insurance through his

employment that will cover his children.

      We are to review the evidence to determine whether termination is in

S.C.B.’s best interest. Tex. Fam. Code Ann. § 161.005(a). There is a strong

presumption that keeping a child with a parent is in the child’s best interest.

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

      Given all the evidence, J.B.’s testimony that he is not financially

responsible for S.C.B. and that S.C.B. should eventually know the truth about

his biological father is insufficient to support a finding that termination is in

S.C.B.’s best interest. See Dockery v. State, No. 03-05-00713-CV, 2006 WL

3329794, at *1 (Tex. App.—Austin Nov. 14, 2006, pet. denied) (mem. op.);

see also In re T.S.S., 61 S.W.3d 481, 488 (Tex. App.—San Antonio 2001, pet.

denied); Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex. App.—El Paso 1991,

no writ); Linan v. Linan, 632 S.W.2d 155, 156 (Tex. App.—Corpus Christi

                                       16
1982, no writ). Therefore, we hold that the evidence is legally insufficient to

support the trial court’s order to terminate the parent-child relationship between

J.B. and S.C.B. Accordingly, we sustain the OAG’s fifth issue.9

                                 VI. Conclusion

      Having sustained or otherwise disposed of all five of the OAG’s issues,

we vacate the trial court’s order overturning the CSRO and terminating the

parent-child relationship between J.B. and S.C.B., we reverse the trial court’s

order reinstating the provisions of the agreed final decree of divorce that pertain

to S.C.B., and we remand this case to the trial court solely for the

determination of all medical support, child support, conservatorship, possession,

and access issues regarding S.C.B.


                                             BOB MCCOY
                                             JUSTICE


PANEL: LIVINGSTON and MCCOY, JJ.; and W ILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: February 26, 2009




      9
       … Because we determine that the evidence is legally insufficient to
support the trial court’s order to terminate the parent-child relationship between
J.B. and S.C.B., we need not address the OAG’s fourth issue pertaining to
factual sufficiency. See Tex. R. App. P. 47.1.

                                        17
