                                       In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                               ____________________

                                NO. 09-18-00433-CV
                               ____________________

                     IN THE INTEREST OF J.R.
__________________________________________________________________

             On Appeal from the County Court at Law No. 3
                      Montgomery County, Texas
                   Trial Cause No. 17-04-04946-CV
_________________________________________________________________

                            MEMORANDUM OPINION

         The Department of Family and Protective Services (“the Department”) filed a

petition to terminate the parental rights of J.R.’s alleged father, J.R. 1 Following a

bench trial establishing that Father was residing in Mexico, the trial court granted

the Department’s petition and terminated Father’s parental rights to J.R. Because the

record shows that Father was never served with notice of the Department’s suit

against him, we reverse the trial court’s judgment and remand the case for a new

trial.


         1
        Because J.R. and her alleged father, the appellant, have the same initials, we
will refer to the appellant as “Father.”
                                          1
                               Procedural Background

      In April 2017, the Department filed a petition for termination in a suit

affecting the parent-child relationship (SAPCR). In the SAPCR, the Department

listed Father as the alleged father of J.R., requested that the trial court determine

whether Father is the biological father of J.R., and sought to terminate Father’s

parental rights. The Department listed “Mexico” as Father’s address but noted that

the name and location of Father were unknown. The Department requested that

“process be served at that address or in Court.” The Department maintained that it

would make a diligent effort to locate Father and requested service of process if

Father’s address became known.

      The record shows that in May 2017, FINDRS conducted an electronic search

at the Department’s request, and the FINDRS Diligent Search Report indicated that

Father reportedly resides in Mexico but could not be located. The FINDRS Report

stated that if the absent parent is a citizen of a foreign country and is believed to be

currently residing in their home country, the Department’s caseworker must contact

the consulate of that country and request assistance in locating the absent parent. In

June 2017, the Department filed a motion for substituted service of citation by

posting, and the Department attached an affidavit regarding a due diligence search,

in which an investigator averred that he had made a good faith effort to locate Father.

                                           2
The trial court granted the Department’s motion for substituted service of citation

by posting. In July 2017, the trial court found that Father had been served by citation

by posting and appointed Father an attorney. However, the Department subsequently

filed various Permanency Reports, in which the Department reported that Father

resides in Mexico, his physical address was unknown, and he had not yet been served

with service of process. In January 2018, Father’s appointed counsel filed a report

stating that she had been unable to locate Father.

      In March 2018, the Department filed a first amended petition, and in October

2018, the trial court conducted a bench trial, during which the Department

maintained that Father had been served by posting. During the trial, Jeff Sermons, a

case worker with the Department, testified that the Department requested to serve

Father by posting, but Sermons also testified that the Department had located

Father’s specific address in Mexico and had “sent everything through the

[c]onsulate[]” and to Father’s appointed counsel. Sermons explained that he had not

had any contact with Father, nor had he received a written response from the

consulate regarding the information he had forwarded. According to Sermons, the

consulate contacted the Department’s immigration specialist and advised the

Department to contact Juan Aguilar in Dallas, and when Sermons spoke to Aguilar,

Aguilar indicated that Father wanted J.R. to be with him. Sermons testified that the

                                          3
Department never attempted to serve Father at the address in Mexico, because the

immigration specialist attempted service through the consulate.

      After the Department rested, Father’s counsel moved for a directed verdict,

arguing, among other things, that Father’s rights should not be terminated because

there was no evidence of “any actual notice[]” despite Sermons’s testimony that the

Department knew Father’s address in Mexico. The Department argued that Father

was served by posting and that the Department never received a response from the

Mexican Consulate when it tried to establish Father’s residence. The trial court

denied the motion for a directed verdict and entered an order terminating Father’s

parental rights to J.R. The trial court issued findings of fact and conclusions of law,

in which it found, among other things, that it had jurisdiction over all the parties.

Father appealed.

                                      Analysis

      In his sixth issue on appeal, Father argues that the trial court erred in entering

a final judgment terminating his parental rights because the Department had his

correct address in Mexico but never served him with notice. Father further argues

that despite the Department’s contention that it served him by posting and that it also

sent papers to the Mexican consulate, the record contains no return of service.

According to Father, the record contains no reference regarding the Department’s

                                          4
correspondence with the Mexican consulate or to “what was sent, how it was sent,

who it was sent to, or when it was sent.” Because there is no proof of service, Father

contends that the termination order is not valid. The Department concedes that

Father was not properly served and that the judgment terminating Father’s parental

rights should be reversed.

      Jurisdiction is dependent upon citation issued and served in a manner provided

by law. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). “‘A claim of a defect in

service of process challenges the trial court’s personal jurisdiction over the

defendant.’” In the Interest of T.M.E., __ S.W.3d __, 2018 WL 5810854, at *4 (Tex.

App.—Texarkana 2018, no pet.) (not yet released for publication) (quoting Livanos

v. Livanos, 333 S.W.3d 868, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.)).

Thus, Father’s appeal is a direct attack on the trial court’s personal jurisdiction. See

id. “When judgment is rendered on invalid service of process by publication, a party

is generally entitled to a new trial.” In the Interest of J.M., 387 S.W.3d 865, 870

(Tex. App.—San Antonio 2012, no pet.) (citing In the Interest of E.R., 385 S.W.3d

552, 563 (Tex. 2012)).

      Service of process may be effected upon a party in a foreign country if service

of the citation and petition is made pursuant to the terms and provisions of any

applicable treaty or convention, and proof of service may be made as provided by

                                           5
the applicable treaty or convention. See Tex. R. Civ. P. 108a(1), (2). The Hague

Service Convention governs the service of process on a defendant located in Mexico.

In the Interest of J.P.L., 359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet.

denied). The Hague Service Convention applies in all civil matters in which there is

an occasion to transmit a judicial document for service abroad, and its intent is to

simplify and expedite international service of process and to ensure that it is

adequately effected. Id. In all cases in which it applies, the Hague Service

Convention preempts any inconsistent methods of service prescribed by Texas law.

In the Interest of T.M.E., 2018 WL 5810854, at *5.

      Under the Hague Service Convention, service of process upon a person

located in Mexico must be made through the Central Authority of Mexico, which is

the only way a Mexican national can be served in Mexico with a foreign proceeding.

Compass Bank. v. Katz, 287 F.R.D. 392, 396-97 (S.D. Tex. 2012). When the Central

Authority receives a request for service from another country, it must serve the

documents or arrange for service and provide a certificate of service. In the Interest

of T.M.E., 2018 WL 5810854, at *5. Mexico has designated the General Direction

of Legal Affairs of the Ministry of Foreign Affairs as its Central Authority, and

Mexico requires that documents to be served within its border be either in Spanish

or accompanied by a corresponding Spanish translation. Velasco v. Ayala, 312

                                          6
S.W.3d 783, 794 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Mexico has also

filed declarations objecting to all alternative channels of service. In the Interest of

T.M.E., 2018 WL 5810854, at *5.

       Our review of the record shows that there is no evidence that the Department

served the Central Authority of Mexico with its lawsuit against Father or that the

Central Authority returned a certificate of service. See id.; see also Tex. R. Civ. P.

108a(1), (2). Additionally, because Mexico has filed declarations objecting to any

alternative channel of service, citation by posting to a defendant who is known to be

in Mexico does not comport with the terms of the Hague Service Convention. See In

the Interest of T.M.E., 2018 WL 5810854, at *5. We also note that the record does

not contain a return of citation by publication showing how and when the citation

was executed. See Tex. R. Civ. P. 117.

      Based on this record, we conclude that Father was never properly served with

the Department’s lawsuit as required by the Hague Service Convention. See In the

Interest of T.M.E., 2018 WL 5810854, at *5. We further conclude that the trial

court’s order terminating Father’s parental rights to J.R. is void because the trial

court never acquired personal jurisdiction over Father. See id. We sustain issue six.

Because issue six is dispositive, we need not address Father’s remaining six issues.

See Tex. R. App. P. 47.1. Accordingly, we reverse that part of the trial court’s

                                          7
judgment terminating Father’s parental rights to J.R. and remand the case for a new

trial as to Father. 2 See In the Interest of E.R., 385 S.W.3d at 569-70; In the Interest

of J.M., 387 S.W.3d at 870; Velasco, 312 S.W.3d at 800.

      REVERSED AND REMANDED.

                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on February 6, 2019
Opinion Delivered February 28, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.




      2
        Upon remand, Father’s appearance before the trial court will be presumed
and there will be no need for further citation to be issued or served. See Tex. R. Civ.
P. 123; Velasco v. Ayala, 312 S.W.3d 783, 800 (Tex. App.—Houston [1st Dist.]
2009, no pet.).
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