in the Interest of U.B. Children ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00687-CV
In the Interest of U.B., R.B., and B.B., Children
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2010-PA-02670
Honorable Timothy F. Johnson, Judge Presiding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: February 6, 2013
REVERSED AND REMANDED
Ricardo B. 2 appeals the trial court’s order, rendered after a bench trial, terminating the
parent-child relationship between him and three children, U.B., R.B., and B.B. We reverse the
order and remand the cause for a new trial.
The Department of Family and Protective Services (“the Department”) initiated this suit
in December 2010, asserting appellant was the alleged father of the three children and seeking a
determination of parentage and termination of his parental rights. The Department alleged
alternative grounds under sections 161.001 and 161.002 of the Texas Family Code for
terminating Ricardo B.’s rights.
1
Former Judge, sitting by assignment.
2
To protect the identity of the minor children, we refer to appellant by his first name and to the children by their
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8.
04-12-00687-CV
On January 24, 2011, after being served with citation, Ricardo B. filed a pro se letter,
directed to the judge in whose court the case was pending. The letter referred to the three
children and to a fourth child, S.L. 3, as “my children,” and stated “I’m interested in obtaining my
parental rights and getting custody of my children.” Ricardo B. also requested temporary
placement of the children with his parents if necessary. Subsequently, Ricardo B.’s appointed
attorney filed a general denial, but he did not file a counterclaim for paternity under chapter 160
of the Family Code. At the final hearing in September 2012, Ricardo B. testified he is the father
of the children. He also testified that he loved them, was capable of caring for them physically,
emotionally, and medically, and was willing to take the necessary steps to do so.
After trial, the trial court signed a final order that adjudicated Ricardo B. to be the father
of U.B., R.B., and B.B. The trial court terminated the parent-child relationship between Ricardo
B. and the children on the ground that
after having waived service of process or being served with citation in this suit,
[Ricardo B.] did not respond by timely filing an admission of paternity or by
filing a counterclaim for paternity or for voluntary paternity to be adjudicated
under chapter 160 of the Texas Family Code before the final hearing in this suit.
See TEX. FAM. CODE ANN. § 161.002(b)(1) (West 2008). The order does not contain any findings
regarding the alternative grounds for termination under Section 161.001(1) that were alleged in
the petition.
Section 161.002(b)(1) of the Family Code provides the trial court may summarily
terminate the rights of an alleged father if “after being served with citation, he does not respond
by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160.”
Id.; see Toliver v. Tex. Dep’t of Family & Prot. Servs., 217 S.W.3d 85, 105 (Tex. App.—
3
Although Ricardo B. considers S.L. to be his child, the trial court adjudicated another man to be S.L.’s father.
Ricardo B. does not challenge that finding on appeal. He only challenges the termination of his rights with respect to
U.B., R.B., and B.B.
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04-12-00687-CV
Houston [1st Dist.] 2006, no pet.). However, if the alleged father files an admission of paternity,
his rights may only be terminated if the Department proves by clear and convincing evidence one
of the grounds for termination in Section 161.001(1) and that termination is in the children’s best
interest. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012); § 161.002(a) (West 2008);
Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex. App.—
Austin 2000, no pet.).
There are no formalities that must be observed when filing an admission of paternity or
for such an admission to be effective. In re G.A.G., No. 04-07-00243-CV, 2007 WL 3355463, at
*1 (Tex. App.—San Antonio Nov. 14, 2007, no pet.) (mem. op.); see, e.g., Toliver, 217 S.W.3d
at 105 (holding that where alleged father did not file document claiming paternity, but appeared
at trial to assert paternity and oppose termination of rights, trial court could not terminate rights
under 161.002(b)); In re K.W., 138 S.W.3d 420, 430 (Tex. App.—Fort Worth 2004, pet. denied)
(holding letter sent by alleged father to Department and court coordinator, stating he is the father
and did not want to relinquish his rights is sufficient admission of paternity under Section
161.002).
We hold Ricardo B.’s letter to the trial court and his testimony at trial constitute an
admission of paternity within the meaning of section 161.002(b)(1) of the Family Code. In its
brief on appeal, the Department concedes that appellant’s letter to the trial court was sufficient to
trigger the Department’s burden to prove one of the grounds for termination alleged under
section 161.001(1) of the Family Code and that the termination order does not contain any
findings under that section. We therefore hold the evidence is legally insufficient to support the
trial court’s order terminating the parent-child relationship between Ricardo B. and the children
U.B., R.B., and B.B, and we reverse that part of the order.
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04-12-00687-CV
Ordinarily, the court would render judgment after holding the evidence is legally
insufficient. See In re J.E.H., No. 04-12-00110-CV, 2012 WL 4579296, at *5 (Tex. App.—San
Antonio Oct. 3, 2012, no pet.). However, Ricardo B.’s prayer asks the court to reverse and
remand for a new trial. In addition, the Department argues the circumstances of this case justify
remanding it rather than rendering judgment. In the interest of justice, we therefore remand this
cause to the trial court for a new trial. See TEX. R. APP. P. 43.3(b).
Luz Elena D. Chapa, Justice
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