                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00482-CV

VERONICA LUNA,
                                                            Appellant
v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                                   Appellee



                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 11-001383-CV-85


                                     OPINION


      Veronica Luna appeals from the trial court’s order dismissing her Petition for Bill

of Review. We affirm.

      Veronica Luna signed an affidavit of voluntary relinquishment of parental rights

on June 10, 2010, and her rights to her four children were terminated on June 24, 2010.

On May 31, 2011, Veronica filed a Petition for Bill of Review. In the Petition for Bill of

Review, Veronica states that her voluntary relinquishment is void because it was

obtained by fraud. She contends that her attorney told her she could reclaim her
children in two years if she signed the voluntary relinquishment. Veronica named as

parties to the suit: 1) The Texas Department of Family and Protective Services; 2) Jami

Lowry, appointed by the Court as attorney ad litem for the children; and 3) Voices for

Children, Inc. The trial court’s order dismissed Voices for Children, Inc. and Jami

Lowry as parties to the case. The trial court’s order further dismissed the Petition for

Bill of Review with prejudice.

       In the first three issues, Veronica argues that the trial court erred in dismissing

her claims.    A bill of review is an equitable proceeding brought by a party seeking to

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

or appeal. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). To set aside a judgment by

bill of review, a petitioner must ordinarily plead and prove (1) a meritorious defense to

the cause of action alleged to support the judgment, (2) that he was prevented from

making by the fraud, accident, or wrongful act of his opponent, and (3) unmixed with

any fault or negligence of his own. Id.

       Section 161.211 of the Texas Family Code provides:

       (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.
       …

       (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.

Luna v. Texas Department of Family and Protective Services                              Page 2
TEX. FAM. CODE ANN. § 161.211 (West 2008). Luna’s lawsuit is a collateral or direct

attack on the order terminating her parental rights. She filed the suit more than six

months after the date the order of termination was signed; and, therefore, her lawsuit is

barred by this statute. See In re A.A.S., 367 S.W.3d 905, 910 (Tex.App.-Houston [14th

Dist.] 2012, no pet.). Moreover, Luna does not allege fraud on the part of the

Department, Lowry, or Voices for Children, Inc. in her Petition for Bill of Review. She

only argues fraud based upon the actions of her attorney. Luna did not meet her

burden to establish a meritorious defense that she was prevented from making by the

fraud of her opponent. The trial court did not abuse its discretion in dismissing the

Petition for Bill of Review. We overrule the first, second, and third issues.

       In the fourth issue, Luna argues that the trial court erred in dismissing her case

with prejudice. Generally, an order dismissing a proceeding with prejudice is improper

when there has not been an adjudication of the merits of the claims. See ETC Katy

Pipeline, Ltd. v. FLR Pipeline Corridor No. 1, LLC, 276 S.W.3d 577, 579 (Tex.App.-Waco

2008, no pet.). When a dismissal does not implicate the claims' merits, the trial court

should dismiss the claims without prejudice. Id. Section 161.211of the Texas Family

Code bars Luna’s lawsuit. Therefore, trial court did not err in dismissing the case with

prejudice. We overrule the fourth issue on appeal.

       We affirm the trial court’s judgment.




Luna v. Texas Department of Family and Protective Services                         Page 3
                                              AL SCOGGINS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
[CV06]




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