Opinion
No. 05-15-01514-CV
03-20-2017
IN THE INTEREST OF K.S.K., A CHILD
On Appeal from the 304th Judicial District Court Dallas County, Texas
Trial Court Cause No. JD-12-01231
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Francis
Katie Gossett appeals the trial court's order dismissing her petition for want of jurisdiction. Gossett's petition requested the trial court to declare void a decree it rendered thirty-six years earlier that terminated Gossett's parental rights to her daughter, K.S.K, and permitted the adoption of K.S.K. by Gossett's parents. We conclude Gossett has failed to show the trial court erred in dismissing her petition and we affirm the trial court's order.
Gossett gave birth to K.S.K on December 31, 1968. About eight years later, the trial court signed a decree of adoption terminating Gossett's parental rights and creating a parent-child relationship between K.S.K. and Gossett's parents, Lola and James Chenoweth. The decree states Gossett was cited by publication because her whereabouts were unknown. The decree further states K.S.K. had been living with the Chenoweths for at least six months, her natural parents had "taken no interest" in her, and the termination and adoption were in K.S.K.'s best interest.
In 2012, Gossett filed an "Original Petition to Declare Termination and Adoption Void" alleging she first learned her parents had adopted her daughter when she was contacted by an attorney in connection with the probate of her mother Lola's estate. James Chenoweth died in 2001 and Lola died in 2011. According to K.S.K.'s pleadings, Lola's will divided the substantial estate equally among her descendants, and the will defined "descendants" as Lola's natural or adoptive children. Gossett does not dispute that a result of voiding the Chenoweths' adoption of her now forty-eight-year-old daughter would be to remove K.S.K. as a descendant under the will and provide Gossett with a larger inheritance.
Gossett asserted in her petition that the adoption decree is void because she was illegally served with citation by publication and the decree fails to state any legal ground or grounds for termination of her parent-child relationship with K.S.K. K.S.K. moved to dismiss Gossett's petition arguing it was untimely. The trial court granted the motion and dismissed the case without prejudice stating in the order: "The Court lacks jurisdiction to hear this cause. No [motion] for new trial was ever filed or presented, nor was there ever a bill of review."
Although the grounds upon which the trial court dismissed Gossett's petition do not correlate exactly with the grounds urged by K.S.K., a trial court is obligated to determine sua sponte if it has jurisdiction to hear a case. See In re G.S.G., 145 S.W.3d 351, 353 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
On appeal, Gossett contends the trial court erred in dismissing her case because her petition was timely under In re E.R., 385 S.W.3d 552 (Tex. 2012). In In re E.R., the supreme court held that the six-month deadline by which a parent served by publication must challenge the termination of her parental rights does not apply where the service by publication was invalid. Id. at 566-67. Although In re E.R. extends the time within which a parent asserting she was invalidly served by publication may challenge the termination of her parental rights, nothing in the opinion changes the fact that such a challenge must be made by a proper pleading. The mother in In re E.R. timely filed a motion for new trial within two years of the date the judgment was rendered against her. See id. at 557.
In this case, Gossett is directly attacking the judgment against her over three decades after it was rendered. See In re A.L.H.C., 49 S.W.3d 911, 917 (Tex. App.—Dallas 2001, pet. denied) (proceeding instituted to vacate termination decree is direct rather than collateral attack on judgment). If a judgment is not challenged by a timely direct or restricted appeal, a bill of review is the exclusive method of vacating the judgment. See id.; see also TEX. R. APP. P. 30; TEX. R. CIV. P. 329b(f). Courts do not look on bills of review with favor, and the grounds on which they are granted are narrow and restricted. See Vickery v. Vickery, 999 S.W.2d 342, 367 (Tex. 1999). A petition for bill of review must allege factually and with particularity the required elements of a bill of review. See Jones v. Tex. Dept. of Protective and Regulatory Servs., 85 S.W.3d 483, 488 (Tex. App.—Austin 2002, pet. denied). Gossett has made no argument, either on appeal or in the trial court below, that her petition fulfills the requirements of a bill of review. In fact, in her reply brief on appeal, Gossett contends her petition was substantively a motion for new trial. Any motion for new trial must have been filed within two years of the date of the judgment. See TEX. R. CIV. P. 329(a).
Because the judgment was thirty-six years old at the time Gossett sought to have it declared void, she was required to file a bill of review to invoke the trial court's jurisdiction in this matter. Gossett has made no argument that her petition met the requirements of a bill of review and, therefore, she has not shown the trial court erred in dismissing her case for want of jurisdiction. We resolve Gossett's first issue against her. Because of our resolution of the jurisdictional issue, it is not necessary for us to address the remainder of Gossett's arguments.
We affirm the trial court's order.
/Molly Francis/
MOLLY FRANCIS
JUSTICE 151514F.P05
JUDGMENT
On Appeal from the 304th Judicial District Court, Dallas County, Texas
Trial Court Cause No. JD-12-01231.
Opinion delivered by Justice Francis. Justices Lang-Miers and Whitehill participating.
In accordance with this Court's opinion of this date, the order of the trial court is AFFIRMED.
It is ORDERED that appellee K.S.K. recover her costs of this appeal from appellant Katie Gossett. Judgment entered March 20, 2017.