      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-04-00065-CV



                                     Robert Salinas, Appellant

                                                   v.

              Texas Department of Protective and Regulatory Services, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. FM2-06982, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Robert Salinas appeals from the trial court’s final order terminating his

parental rights. In seven issues, Salinas contends that the substituted service of process did not

satisfy the requirements of the rules of civil procedure and that the trial court erred in (i) failing to

appoint him an attorney ad litem, (ii) not complying with section 107.013 of the family code, (iii)

terminating his rights based on sections 160.301, 160.302, and 161.002 of the family code, and (iv)

finding that his appeal was frivolous. We affirm the trial court’s order of termination.


                                             Background

                In October 2002, appellee the Texas Department of Protective and Regulatory

Services took two-year-old A.H. into emergency custody. A.H., her mother Hsing Han, and Salinas

were living at the Salvation Army Shelter at the time, and Han was thirty-three weeks pregnant with
R.F.H.1 R.F.H. was born in December 2002, and the Department took custody of her almost

immediately. The Department named Salinas as R.F.H.’s alleged father, stating that his address was

unknown.2 On July 21, 2003, after unsuccessful attempts at service, the Department filed a motion

asking that Salinas be served by substituted service. In a supporting affidavit, Katherine Kever, a

representative of the Department, stated that she had tried to locate Salinas, interviewing Han and

investigating police records and Austin’s utility records. Kever learned that Salinas had utility

services at an address on Circle S Road, but when service was attempted at that address, the

Department was notified that Salinas had moved. On June 9, however, Salinas called the

Department to say he was aware that a hearing was approaching on June 20.3 Kever found that

notice of the hearing had been sent to the Circle S address and was signed for by an “R. Arrellano,”

and as of June 30, utilities at the address were still listed in Salinas’s name. Kever therefore believed

Salinas could be served by leaving citation at the Circle S address. The trial court authorized

substituted service, and Salinas was so served; the return of service shows citation was delivered to

Alex Lopez on July 21. In its amended petitions, the Department stated that if Salinas did not file

a statement of or counterclaim for paternity, he would lose all parental rights to R.F.H.


        1
            Salinas is not A.H.’s father and was not married to Han.
        2
          According to the Department, Han was married to Luis Requena when R.F.H. was born but
said that Salinas was the father. In its second and third amended petitions, the Department named
Requena as R.F.H.’s presumed father, see Tex. Fam. Code Ann. § 160.102(13) (West 2002),
§ 160.204(a) (West Supp. 2004), and Salinas as her alleged father.
        3
          Salinas said that he would not attend the hearing and wanted nothing to do with Han,
R.F.H., or the proceeding. Salinas said that his friends had signed for the notice and told him about
the hearing. Salinas also said he was living in Corpus Christi, but refused to provide an address or
other “locating information.” After the June 20 hearing, Salinas again called the Department, saying
that he had attended the hearing but had not been recognized and had not come forward.

                                                   2
                A hearing was held on September 22 and 23. Salinas appeared at the hearing in

person and requested an attorney. Han relinquished her parental rights to R.F.H., and on October

3, the trial court signed an interlocutory decree of termination, finding that R.F.H. was born while

Han was married to Requena and that Requena was R.F.H.’s presumed father and terminating Han’s

and Requena’s parental rights to R.F.H. The trial court took no action with regards to Salinas’s

parental rights, if any. Also on October 3, the trial court signed an order appointing counsel to

represent Salinas. A second order appointing the same attorney as counsel was signed by a different

trial judge on October 16.

                On November 10, the Department filed a motion to have Salinas dismissed from the

suit, stating that he had not filed any timely assertion of paternity. On November 18, Salinas filed

his original answer, stating that he was R.F.H.’s father and asserting a counterclaim of paternity.

Salinas also filed a response to the Department’s motion to dismiss, stating that he had been

incarcerated since September 22 and did not live at the Circle S address when service was made and

complaining that counsel was not appointed until October 16. On January 7, 2003, the trial court

signed a final order, finding Salinas had been properly served and had failed to timely file an

acknowledgment or counterclaim of paternity and terminating his parental rights, if any.


                                         Substituted Service

                In his first issue, Salinas contends that the Department’s affidavit filed in support of

its motion for substituted service did not comply with rule 106(b) of the rules of civil procedure.4


        4
          Rule 106(b) of the rules of civil procedure provides that if an affidavit is filed stating that
regular service of citation has been attempted unsuccessfully and stating the defendant’s usual place
of business or abode or other location where he can probably be found, service may be made by

                                                   3
In his second issue, he contends that the substituted service purportedly done under rule 106(b) was

in fact “rule 109a service in disguise.”5

               Salinas appeared in court on September 22, 2003, and filed an answer to the

Department’s suit on November 18, 2003. In his answer, Salinas did not complain of defective or

improper service. The filing of an answer or some other appearance generally waives any defect in

the service of citation. Baker v. Monsanto Co., 111 S.W.3d 158, 160-61 (Tex. 2003); CIGNA Ins.

Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.—Austin 1995, no writ); Halligan v. First

Heights, F.S.A., 850 S.W.2d 801, 803 (Tex. App.—Houston [14th Dist.] 1993, no writ); see Tex.

R. Civ. P. 120 (defendant may “enter an appearance in open court,” which shall be noted by judge

and shall “have the same force and effect as if the citation had been duly issued and served as

provided by law”). Therefore, any defect in service was waived.

               Further, Salinas’s attacks on the substituted service in the court below, if they can

truly be characterized as such, do not make the same arguments as he makes on appeal. On appeal,

he argues that the affidavit was insufficient and that the substituted service was actually “disguised”

rule 109a service. Salinas first raised the issue of the substituted service in his response to the

Department’s motion to dismiss him as a party, stating only that he did not answer the door when




leaving a copy of the citation with anyone over sixteen years of age at the location specified in the
affidavit. Tex. R. Civ. P. 106(b)(1).
       5
         If citation by publication is authorized under rule 109, a trial court may allow an alternative
means of service that it finds will be as likely as citation by publication to give the defendant actual
notice of the suit. Tex. R. Civ. P. 109(a).

                                                   4
service was performed and did not live at the address at the time. Salinas never attacked the affidavit

and did not allege that he did not receive notice or that service was improper. He argued only that

there was some uncertainty as to when he received actual notice. See Cockrell v. Estevez, 737

S.W.2d 138, 140 (Tex. App.—San Antonio 1987, no writ) (“It is significant that the defendant does

not raise an issue of . . . lack of service or of improper service . . . but raises only the claim that the

improper spelling of his name voids the citation.”). By this variance in arguments before the trial

court and on appeal, Salinas presents nothing for our review. See Tex. R. App. P. 33.1(a); Dreyer

v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); In re M.D.S., 1 S.W.3d 190, 202 (Tex.

App.—Amarillo 1999, no pet.).

                We hold that Salinas has waived any objection to the Department’s affidavit or to the

rule 106(b) service.6 We overrule Salinas’s first and second issues on appeal.




        6
          Even if error had been preserved, the affidavit was sufficient to warrant substituted service
under rule 106(b). The rules of civil procedure provide several options for serving defendants for
whom personal service has been unsuccessful, and rule 106(b) does not limit its provisions for
service to a party’s place of business or abode. It also allows substituted service to be made at any
“other place where the defendant can probably be found.” Tex. R. Civ. P. 106(b) (emphasis added).

          Kever stated that personal service had failed because the Department was told that Salinas
had moved from the Circle S address. However, the utilities were still in his name and he received
notice of the June 20 hearing, which was sent to the Circle S address. One of the Department’s
records relates that Salinas said his friend signed for the notice. The Department opted to serve
Salinas under rule 106(b), believing that leaving service of process at the Circle S address, with
which he apparently kept some kind of contact, would be more effective than service under rules 109
or 109a. Salinas never asserted that he did not receive the substituted service. The Department
sufficiently established that the Circle S address was appropriate for rule 106(b) service.

                                                    5
                                   Appointment of an Attorney

               In his third issue, Salinas argues that, because the substituted service was actually rule

109a service, the trial court erred in not appointing him an attorney ad litem. Rule 244 of the rules

of civil procedure requires that an attorney be appointed to represent a person who is served by

publication (or by other means pursuant to rule 109a) and has not answered or appeared within the

prescribed time. Tex. R. Civ. P. 244. Rule 106(b) does not carry the same requirement. Tex. R.

Civ. P. 106(b). Salinas was served under rule 106(b), and therefore it was not error to fail to appoint

an attorney pursuant to rule 244. We overrule Salinas’s third issue on appeal.

               In his fourth issue, Salinas contends the trial court did not comply with section

107.013 of the family code. Section 107.013 requires that an attorney ad litem be appointed to

represent an indigent parent who responds in opposition of a termination proceeding, a parent served

by publication, an alleged father who has not registered his paternity and whose address or location

is unknown, or an alleged father who has registered but could not be served at the address he

provided. Tex. Fam. Code Ann. § 107.013 (West Supp. 2004). Salinas contends that the trial court

should have appointed him an attorney ad litem when he failed to respond by August 18 after being

served on July 21.7

               It is reversible error to utterly fail to appoint an attorney for a parent entitled to

counsel under section 107.013. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000,



       7
           Salinas argues that because the Department stated in its petition that his address was
unknown, he should have been appointed an attorney much earlier. Although the Department did
state that his address was unknown, the Department’s affidavit in support of substituted service
recites that he was probably able to be served at the Circle S address, and Salinas’s participation in
and awareness of various hearings and proceedings bears this out.

                                                   6
pet. denied). However, section 107.013 does not set a deadline for a trial court to appoint counsel,

and the timing of the appointment of counsel is a matter left to the trial court’s discretion. Id.; see

In re J.M.C., 109 S.W.3d 591, 598 (Tex. App.—Fort Worth 2003, no pet.); In re J.R.P., 55 S.W.3d

147, 149-50 (Tex. App.—Corpus Christi 2001, pet. denied). Salinas was aware of the legal

proceedings regarding R.F.H. since at least June 9, 2003, and he initially communicated to

Department caseworkers that he did not want anything to do with the proceedings or the child. Not

until the September 22 hearing did he express an interest in contesting the termination of his rights

and request an attorney. Therefore, not until September 22 did the trial court have a duty to appoint

an attorney. We note that Salinas did not file an affidavit of indigence or any other statement that

would give rise to an inference that he was unable to afford an attorney. The trial court, however,

found him to be indigent and on October 3 signed an order appointing an attorney to represent him

without requiring any such filing.8 It was not error for the trial court to delay appointment of counsel

until October 3. We overrule Salinas’s fourth issue on appeal.


                            Termination under Section 161.002(b)(1)

                Salinas next argues that the trial court erred in terminating his parental rights under

section 161.002(b)(1) of the family code. In his fifth issue, he contends that it was error to terminate

his rights on grounds that he did not timely file an acknowledgment of paternity under sections

160.301 and 160.302 of the family code. In his sixth issue, he argues that it was error to find that

he had failed to timely file a counterclaim for paternity.


        8
          Salinas contends that an attorney was not appointed until October 16, but a review of the
record shows that his attorney was actually appointed on October 3. A second order, signed by
another trial judge and appointing the same attorney, was signed on October 16.

                                                   7
                An alleged father’s rights may be terminated if: (i) after being served he does not

timely file an admission or counterclaim of paternity, (ii) he has not registered with the paternity

registry and, after a diligent search, cannot be located, or (iii) he has registered with the paternity

registry but attempts to serve him at the address provided to the registry and at any other known

address have been unsuccessful. Tex. Fam. Code Ann. § 161.002(b) (West 2002).

                Salinas had notice of the suit no later than June 9, 2003, when he called the

Department to say he had received notice of the June 20 hearing. That notice was sent to the Circle

S address and signed for by Salinas’s friends, and the utilities at the address continued to be listed

in his name. The Department therefore continued to send documents to the Circle S address, and

its second and third amended petitions clearly advised Salinas of the need to assert his paternity and

of his possible right to appointed counsel. In June, Salinas told the Department that he was living

in Corpus Christi, but refused to give an address. Until September 2003, Salinas showed no interest

in asserting his paternity and in fact told the Department that he wanted nothing to do with R.F.H.

or the termination proceedings. Salinas attended at least one hearing without identifying himself

before attending the hearing in September. Upon Salinas’s request, an attorney was appointed on

October 3, but the attorney filed a motion to withdraw on October 29, stating that Salinas was

uncooperative. Not until November 18, eight days after the Department filed its motion to dismiss

on grounds that Salinas had not filed an assertion of or counterclaim, did Salinas file any kind of

assertion of paternity. Indeed, Salinas waited almost a full year after the Department took custody

of R.F.H. to assert his paternity . Under these facts, we hold it was not error for the trial court to find




                                                    8
that Salinas did not timely file an assertion of paternity or a counterclaim for paternity. We overrule

Salinas’s fifth and sixth issues on appeal.


                               Finding That Appeal Was Frivolous

               In his seventh and final issue, Salinas argues that the trial court erred in finding that

his appeal was frivolous pursuant to section 263.405 of the family code.

               A party seeking to appeal a termination order must file with the trial court a statement

of the points he intends to appeal. Tex. Fam. Code Ann. § 263.405(b) (West 2002). The trial court

must determine whether the party’s appeal is frivolous, as defined by the civil practice and remedies

code. Id. § 263.405(d)(3); see Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (West 2002). If a trial

court finds that an appeal is frivolous, the party is not entitled to a free record on appeal. See In re

H.D.H., 127 S.W.3d 921, 923 (Tex. App.—Beaumont 2004, no pet.). In considering whether an

appeal is frivolous, courts may consider whether the party has presented a substantial question for

appellate review. Tex. Civ. Prac. & Rem. Code Ann. §§ 13.001(b), .003(b) (West 2002). An appeal

is frivolous if it lacks an arguable basis in law or fact. De La Vega v. Taco Cabana, Inc., 974

S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.) (quoting Neitzke v. Williams, 490 U.S.

319, 325 (1989)). We review a trial court’s determination that an appeal is frivolous for an abuse

of discretion. Id.; see H.D.H., 127 S.W.3d at 923; In re D.T., No. 04-02-00926-CV, 2003 Tex. App.

LEXIS 10935, at *5 (San Antonio Aug. 20, 2003, no pet.) (memorandum op.).

               After Salinas filed a statement of indigence and notice of appeal, the Department filed

a motion contesting the statement of indigence and arguing that the appeal was frivolous. At the

hearing on the Department’s motion, the Department conceded that Salinas was indigent but


                                                   9
continued to argue that his appeal was frivolous. The Department noted that Salinas did not file his

counterclaim of paternity until after a hearing on the Department’s motion to dismiss him from the

termination proceeding. That counterclaim, the Department argued, was untimely, and thus

termination of Salinas’s rights, if any, was proper and his appeal was frivolous. The trial court stated

that it was unable to make an affirmative finding that Salinas’s appeal was not frivolous. It is of this

statement that Salinas complains, arguing that his claims had an arguable basis in law and fact.

                We have considered Salinas’s issues on appeal and found them to be without merit.

We therefore cannot conclude that the trial court abused its discretion in finding that Salinas’s appeal

was frivolous. See In re K.M., No. 04-04-00259-CV, 2004 Tex. App. LEXIS 6799, at *2-8 (San

Antonio July 28, 2004, no pet. h.) (memorandum op.); In re F.P., No. 04-03-00918-CV, 2004 Tex.

App. LEXIS 6460, at *5 (San Antonio July 21, 2004, no pet. h.) (memorandum op.); D.T., 2003 Tex.

App. LEXIS 10935, at *11. We overrule Salinas’s seventh issue on appeal.


                                             Conclusion

                Having overruled Salinas’s appellate issues, we affirm the trial court’s final order of

termination.



                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: August 26, 2004


                                                  10
