05
- 18
- 01127
- CV
I N THE F IFTH D ISTRICT C OURT OF A PPEALS

A T D ALLAS , T EXAS

I N THE I NTEREST OF R.M., A C HILD

J ILL K UTKA , A PPELLANT T EXAS D EPARTMENT OF F AMILY AND P ROTECTIVE S ERVICES , A PPELLEE S HAWN I NGRAM AND J ENNIFER I NGRAM ,

A PPELLEES

Appeal from Order Granting Intervenor’s Petition in Intervention in Suit and Plea to the Jurisdiction Arising out of the 417 TH Judicial District Court o f Collin County, Texas

Cause No. 417

- 02593

- 2018 Honorable Cynthia Wheless Presiding



### APPELLANT’S BRIEF

S ubmitted by , CASEY T. BOYD State Bar No. 24059477 205 W. Louisiana Street, Suite 103 McKinney, Texas 75069 Tel: (469) 777

- 6129 Email: boydlitigation@gmail.com
C OUNSEL F OR A PPELLANT O RAL A RGUMENT R EQUESTED ACCEPTED 05-18-01127-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 1/31/2019 3:50 AM LISA MATZ CLERK5th Court of AppealsFILED: 01/31/2019Lisa Matz, ClerkIDENTITIES O F PARTIES AND COUNSEL

Petitioner / Appellant : Jill Kutka
Petitioner /Appellant’s Counsel in Trial Court : Mr. Casey T. Boyd State Bar No. 24059477 205 W. Louisiana Street, Suite 103 McKinney, Texas 75069 Tel: (469) 777

- 6129 Email: boydlitigation@gmail.com Respondent /Appellee : Collin County Unit of the Texas Department of Family and Protective Services Respondent /Appellee’s Trial Counsel : Ms. Alyson Dietrich State Bar No. 24012529 Assistant District Attorn ey Collin County District Attorney’s Office 2100 Bloomdale Road, Suite 200 McKinney, Texas 75071 Tel: (972) 548

- 4336 Fax: (972) 548

- 4767 Email: adietrich@co.collin.tx.us Respondent /Appellee’s Appellate Coun sel : Mr. John Rolater Assistant District Attorney Collin County District Attorney’s Office 2100 Bloomdale Road, Suite 100 McKinney, Texas 75071 Tel: (972) 548

- 4323 Fax: (214) 491

- 4860 Email: jrolater@co.c ollin.tx.usIntervenors/Appellees:

S hawn Ingram and Jennifer Ingram Intervenors/Appellees ’ Trial Counsel: Ms. Rebecca Rowan State Bar No. 24060729 KOONSFULLER, P.C. 1717 McKinney Avenue, Suite 1500 Dallas, Texas 75202 Tel: (214) 871

- 2727 Fax: (214 ) 871

- 0196 Email: rrowan@.koonsfuller.com
R.M. is the minor child subject of this suit . Attorney Ad Litem in Trial Court for R.M. , the Child : Ms. Terri Daniel State Bar No. 00796433 6675 Mediterranean Dr., S uite 407 McKinney, Teas 75072 Tel: (469) 519

- 2739 Fax: (877) 291

- 1215 Email: terri@terridaniellaw.comTABLE OF CONTENTS

Index of Authorities

............................................................ . ............ .. 5 Record References

.................. ............................................. . ........... . . 6 Statement of the Case

..................................................................... ... 7 Statement on Oral Argument

................................................ . ............ . . . . 8 Issues Presented

.................................................................. . ......... . . .. 8 Statement of Facts

.................................................................. ... ... ..... 8 Standard of Review

......................................................................... 1 2 Arguments and Authorities

............................................................... .. 13
A. Section 161.211 ( a ) of the Texas Family Code is Unconstitutio nal as Applied to Appellant

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 13
B. Intervenors ’ Petition in Intervent ion Should Have Been Denied

... ... ... ... ... . 20 Conclusion.................................................................................... 21 Prayer

.......................................................................................... 22 Certificate of Service........................................................................ 23 Appella nt ’ s Appendix

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..24INDEX OF AUTHORITIES

C aselaw Abdullatif v. Erpile, LLC , 460 S.W. 3d 685 (Tex.App.

- Houston [14 th Dist.] 2015, no pet.)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 20 Bland Indep. Sch. Dist. v . Blue , 34 S.W.3d 547 (Tex.2000)

... ... ... ... ... ... ... ... ... .. . 12 City of Dallas v. Carbajal , 324 S.W.3d 537 (Tex.2010)

... ... ... ... ... ... ... ... ... ... ... . . 12 F.F.P. Operating Partners, L.P. v. Duenez , 237 S.W.3d 68 0 (Tex.2007)

... ... ... ... ... . 13 Guaranty Fed. Sav . Bank v. Horseshoe Oper . Co. , 793 S.W. 2d 652 (Tex. 1990)

... ... 20 H. Tebbs, Inc. v. Silver Eagle Distribs ., 797 S.W.2d 80 (Tex.App.

- Austin 1990, no writ)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 20
In re C .M.D. , 287 S.W.3d 510 (Tex.App.

- Houston [14th Dist.] 2009, no pet .)

... ... .. 14
In re C.P.J. , 129 S.W.3d 573 (Tex.App.

- Dallas 2003, pe t. denied)

... ... ... ... ... . ... ... 13
In re C

. T.C. , 365 S.W. 3d 853 (Tex.App.

- Dallas 2012)

... ... ... ... ... ... ... ... ... ... 18, 19
In re D.J.R. , 319 S.W.3d 759 (Tex.App.

- El P aso 2010, pet. denied)

... ... . 13, 14, 18, 19 In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.

- Austin 2007, no pet.)

... ... ... ... . 12
I n re E.R. , 335 S.W.3 d 816 (Tex.App.

- Dallas 2011, pet. granted)

... ... ... ... ... ... . 15, 16
In re E

. R

. , 385 S

. W

. 3d 552 ( Tex . 2012)

... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 14, 15, 19
In re M.N. , 262 S.W. 3d 799 (Tex. 2008)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 15
In re Union Carbide , 273 S.W.3d 152 (Tex. 2008)

... ... ... ... ... ... ... ... ... ... ... ... ... ..20
In the Interest of B.G. , 317 S.W.3d 250, 258 (Tex.2010)

... ... ... ... ... ... ... ... ... ... .. .. 15
In the Interest of J.O.A. , 283 S.W.3d 336 (Tex.2009)

... ... ... ... ... ... ... ... ... ... ... .. ... 15Peek v. Equipment Serv. Co. of San Antonio , 779 S.W.2d 802 (Tex. 1989)

... ... .. ... . 13

Santosky v. Kramer , 455 U.S. 745 (1982)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 14
Serna v. Webster , 90 8 S.W.2d 487 (Tex.App.

- San Antonio 1995, no writ)

... ... ... ... . 20 Stanley v. Illinois , 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (19 72)

... .. ... .. 15
Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440 (Tex.1993)

... ... ... ... 13 Texas Dep't of Corrections v. Herring , 513 S.W.2d 6 (Tex.1974)

... ... ... ... ... ... ... .. . 13 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004)

... ... ... ... ... 12 Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex.1999)

... ... ... ... ... ... ... ... ... ... ... 12 Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864 (Tex.2001)

... ... 12
Walker v. Tex. D ep't of Fami ly & Protective Servs. , 312 S.W.3d 608 (Tex.App.

- Houston [1st Dist.] 2009, pet. denied)

... ... ... ... ... ... 14, 19
R ules and Statutory Authority Tex .Fam.Code S ection 161.001(1)(K)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7 , 9, 11 Tex.Fam.Code Section 161.211 ( a )

... ... ... ... ... ... ... 8, 13, 14, 15, 16, 17, 18 , 19, 21 Tex.Fam.Code Section 26 3.405

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... . 14 TRAP 20.1

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. . 1 2 TRAP 39.1

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .8 RECORD REFERENCES The Record references listed below are used throughout Appellant’s Brief:
CR at

__ Clerk’s Record
RR

__ :_

_ Reporter’s RecordSTATEM ENT OF THE CASE

On May 29, 2018, Appell ant f iled her Original Peti tion for Bill of Review on seeking to review an order terminating her parental rights which was signed by the Court on October 7 , 201 6 in Cause Number 417

- 30048

- 201 4 and styled “ In the
Inter est of R.M. , A Child ”

. The order terminating Appellant ’ s parental rights was predicated on a finding by the Court that Appellant executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by S ection 161.001(1)(K) of th e Texas Fami ly Code. CR at 7. On August 24, 2 018, Intervenors filed a Petition in Intervention in Suit and Plea to the Juris diction

. CR at 62.
On September 6, 2018, Interven ors filed their Original Answer to Original Petition for Bill of Review. CR at 6 8.
On S eptember 10, 2018, Intervenors filed a Br ief in Support of Plea to the Jurisdiction. CR at 75. Appellant ’ s Original Petition for Bil l of Review and Intervenors ’ Peti tion in Intervention and Plea to the Jurisdiction were set fo r a hearing on Septemb er 10,
2018. The trial court heard Intervenors ’ Petition in Intervention and Plea to the Jurisdictio n, after which the trial court signed an Orde r grant ing Interven or s ’ Petition in Intervention and Plea to the Jurisdiction, and dis mis sing Appellant ’ s Petit ion for Bill of Review with prejudice. RR 14:17

- 18 ; 33:8

- 11; CR at 87.This is an appeal from the Order Granting Intervenors’ Petition in

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction, which was sig ned by the trial cour t on September 10, 2018.

STATEMENT ON ORAL ARGUMENT Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, Appellant requests oral argument and believe s that the decisional process would be significantly aided by oral argume nt. ISSUES PRESENTED
C. Section 161.211 ( a ) of the Texas Family Code is Unconstitutio nal as Applied to Appellant . D. Intervenors ’ Petition in Intervent ion Should Have Been Denied. STATEMENT OF FACTS On August 27, 2015, in the underlying pro cee ding to terminate Appellant ’ s parental r ights, the parties entered into a Mediated Settlement Agreement wherein the parties entered into a series of agreements which resu lt ed in Appellant relinquish ing her parental rights , and which allow ed Appellant to have specific periods of supervised access t o the child “ after entry of the final order

. ” CR at 76.
Intervenors w ere not parties to the underlying termination proceeding , they

were not physically present at mediation, and they were not signatories to the Mediated Settlement Agreement. Notwithsta nding , the Mediat ed S ettleme ntAgreement included representations made by Intervenors regarding Appellant ’ s

future access to the child. CR at 26

. On October 7, 2016, the “Final Order in Suit Affecting Parent

- Child Relationship

– Termination of Parental Ri ghts, and Appointment of Managing Conservator” (hereinafter “ Termination Order ” ) was signed by the Court based on the M ediated S ettlement A greement

. The Final Termination Order terminated Appellant ’ s parental rights , and in so doing, the Court found by cle ar and

co nv incing evidence that termination of the parent

- child relationship was in the best interest of the child, and that Appellant executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Section 161.001(1)(K) of the Te x as Family Code

. CR a t 33. The Termination Order incorporated the provisions in the Mediated Settlement Agreement , including those specifying Appellant ’ s future access to the child after entry of the final order

. T he Termination Order also includ ed a
pr ovision requi r ing Appellant ’ s trial counsel, Karen Arias, to remain as
A ppellant ’ s attorney of record after entry of the termination so that she could

ensur e that the provisions of the Mediated Settlement Agreement and Final Order were inco rporated into a future Decree of Adoption. T he Termination Order requir ed that Appellant ’ s attorney receive copies of all pleadings and orders related to the ado ption of the child to ensure that the provisions of the MediatedSettlement Agreement were incorporated in to the adoption o rder “ for

enforceability purposes ”

. CR at 33. On August 4, 2017, the Court entered an Agreed Order Granting Adoption which did not incorporate any provisions regarding post

- t ermination contact from the Mediated Settlement Agreement or t he Termination Order. CR at 77. Appellant ’ s trial a ttorney did not receive any notice of the adoption proceedings, or an opportunity to review the adoption order prior to entry with the
Court. CR at 60. Intervenors allowed Appellant to have supervised vi sits with the child until March 2018 pursuant to the terms of the Medi ated Settlement Agreement and Termination Order

. Some time thereafter, it became apparent to Appellant that
In tervenors would no longer be honoring the terms of the Medi ated Settlement Ag r eement and Termination Order

. CR at 77

- 78. It was at that point that Appellant first be came aware of the fact that Intervenors had no intention of continuing to honor the terms of the Mediated Settlement Agreement and Termination Order. CR at 78; CR at 5 4

- 58. As a result , Appell ant f

iled her Original Peti tion for Bil l of Review on May 29, 2018 seeking to review t he order terminating her parental rights signed by the Court on October 7 , 201 6

. The order terminating Appellant ’ s parental rights was predicate d on a finding by the Court that Appellant voluntarily executed anunrevoked or irrevocable affidavit of relinquishment of parental rights as provided

by Section 161.001(1)(K) of the Texas Fami ly Code. CR at 7. On August 24, 2 018, Intervenors filed a Peti tion in Intervention in Suit and Plea to the Juris diction

. CR at 62.
On Septe mber 6, 2018, Interven ors filed their Original Answer to Original Petition for Bill of Review. CR at 68.
On S eptember 10, 2018, Intervenors filed a Br ief in Support of Plea to t he Jurisdiction. CR at 75. Appellant ’ s Petition for Bil l of Review and Interven ors ’ Peti tion in Intervention and Plea to the Jurisdiction were set for a hearing on September 10,
2018. The trial court heard Intervenors ’ Petition in Intervention and Plea to the Jurisdictio n, after which the trial court signed an Orde r grant ing Interven or s ’ Petition in Intervention and Plea to the Jurisdiction, and dis missing Appellant ’ s Petition for Bill of Review with prejudice. RR 14:17

- 18 ; 33:8

- 11; CR at 87. The trial cou rt granted Intervenors ’ Plea to the Jurisdiction without reaching the merits of Appellant ’ s Origi na l Petition for Bill of Review. RR 33:8

- 11. Appellant ’ s trial couns el made an offer of proof to the Court regarding the substance of Appellant ’ s Bill of Revi ew. RR 33:16 through 42:17. Appellant filed her Notice of Appea l on September 2 5, 2018. CR at 88.This is an appeal from the Order Granting Intervenors’ Petition in

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction, which was signed by the trial court on September 10, 2018.
A ppellant is presumed indigent and may proceed without paying costs under Rule 20.1 of the Texas Rules of Appellate Procedure.
STANDARD OF REVIEW A plea to the jurisdiction challe nges a trial court's su bject matter jurisdiction. See, e.g., City of Dallas v. Carbajal , 324 S.W.3d 537, 538 (Tex.2010) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) ). Whether a court has subject matter jurisdiction is a question o f law that we review de novo. Id. ( citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) ) ; see also In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.

- Austin 2007, no pet.) (motion to dismiss based on lack of subject matter jurisd iction is functional
eq uivalent of plea to jurisdiction and i s reviewed de novo). In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864 (Tex.2001) ; Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547 (Tex.2000)

. When t h e appellate court consider a trial court's order on a plea to the jurisdiction, it must construe the pleadings in the plaintiff's favor a nd look to thepleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440

(Tex.1993) ; P eek v. Equipment Serv. Co. of San Antonio , 779 S.W.2d 802 (Tex. 1989)

. When a plaintiff fails to plead facts that establish jurisdiction, but the petition do es not affirmatively dem onstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. See Peek , 779 S.W.2d at 804

- 05 ; Texas Dep't of Corrections v. Herring , 513 S.W.2d 6 (Tex.1974)

. Additionally, statutory construction and the constitutionality of a statute are legal questions and are reviewed de novo. S ee, e.g., F.F.P. Operating Partners, L.P.
v. Duenez , 237 S.W.3d 68 0 (Tex.2007) (statutory construction); In re C.P.J. , 129 S.W.3d 573 (Tex.App.

- Dallas 2003, pet. denied) (constituti onality of statute).

A RGUMENTS AND AUTHORITIES
1. Section 161.211 ( a ) of the Texas Family Code is Unconstitutio nal as Applied to Appellant . S ection 161.211 ( a ) of the Texas Family Code limits a direct or colla teral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment to i ssues relating to fraud, duress , or coercion in the execution of the affidavit of relinquishment. An individual who challenges the constitutionality of a statute bears the burden to establish its unconstitutiona lity

. In re D.J.R. , 319 S.W.3d 759 (Tex.App.

- El Paso 2010, pet. d enied) . A claim that a statute is unconstitutional as applied is aclaim that the statute, although generally constitutional, operates unconstitutionally

as to the claimant. Id. 857

. An as

- applied challenger is required only to demonstrate that the statute operates unconstitutionally when applied to his or her particular set of circumstances. Id.
C ourts should decide constitutional issues narrowly based on the precise facts of t he case, not speculative or hypothetical injuries. In re C.M.D. , 2 87 S.W.3d 510, 515 (Tex.App.

- Houston [14th Dist.] 2009, no pet .)

. Th ere is no need to reach the constitutionality of a statute where there is no showing the operation of the challenged statute harmed the A ppellant

. See In re D.J.R. , 319 S.W.3d 759, Tex.App.

- El Paso 2010, pet. d enied) ; Walker v. Tex. D ep't of Fami ly & Protective
Servs. , 312 S.W.3d 608 (Tex.App.

- Houston [1st Dist.] 2009, pet. denied)

. When the State seeks to sever permanently the relationship between a parent and a child, it must first o bserve fundamentally fair procedure s
. A parental rights termination proceeding encumbers a value "far more precious than any property right " and is consequently governed by special rules

. Santosky v. Kramer , 455
U.S. 745 (1982) ; In re E

. R

. , 385 S

. W

. 3d 552 ( Tex . 2012)

. In reference to Section 26 3.405 of the Texas Family Code, t he Te xas Supreme Court h eld that it did not indicate legislative intent to unfairly or unreasonabl y preclude parents from appealing final orders. In like manner, Section 161.211(a) does not indicate a legislative intent to unfairly or unreasonablypreclude a parent from challenging an order terminating par ental rights based on

fraud, duress , or coercion in the execution of an affidavit of relinquishment. In re
M.N. , 262 S.W. 3d 799 (Tex. 2008).
F inality cannot trump a parent's constitutional right to be heard. Stanley v. Illinois , 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (noting that "the Constitution recognizes higher values than speed and efficiency ") ; In re E

. R

. , 3 85
S

. W

. 3d 552 ( Tex

. 201 2 ). The Texas Supreme Court h as held that the Family Code provisions that expedite termination procee dings must still yield to due
process. See In the Interest of B.G. , 317 S.W.3d 250 (Tex.2010) ; In the Interest of
J.O.A. , 2 83 S.W.3d 336 (Tex.2009)

. T his Court held in In re E.R. , 335 S.W.3d 816 (Tex.App.

- Dallas 2011, pet. granted) that "[t]he mandatory language of family code section 161.211 leaves no room for a construction o ther than a requirement that any collateral or direct attack on the termination of parental rights, including a motion for new trial, be filed no more than six months after the termination order is signed." Id. at 820. The majority further co ncluded, "The six

- month deadline in family code section
161.2 1 1 is not a plea in avoidance, but is, rather, a bar to or preclusion of a challenge to a termination order more than six months after the termination order is signed." Id. The majority addressed the dissent by stating that while "[t]he dissent would hold t hat section 161.211's six

- month bar to [the mother's] direct orcollateral attack on the validity of a termination order is unconstitutional," the

mother "has not argued her constitutional right s have been violated or otherwise challenged the constitution a lity of the statute and, therefore, has not preserved or presented the issue for our review." Id. at 822

- 23. Appellant ’s case is distinguis h able from In re E.R. , and finding that Section
161.211 (a) is uncons titutional as applied to Appellant here would be consistent with th is Cour

t ’ s holding and opinion in In re E.R. First, Appellant argue d in the trial court that her constitutional rights have been violated , or she otherwise challenged the con stitutionality of the s tatute, and she has therefore preserve d th e constitu tional issues for this Court ’ s review , including her due process rights

. See RR: 10:2

- 25; 12:5

- 25; 13: 1

- 5 ; 18:21

- 24;
32:6

- 16; 34:10

- 19; 25:18

- 25. Appellant also made a showing that , to the extent allowed by the trial court, the operation of S ection 161.211(a) harmed Appellant

. Exhibit “ C ” to Appellant ’ s Original Petition for Bill of Review is a text message from Intervenors to Appellant indicating that it was within their sole discretion to follow or not fol low the terms of the Mediated Settl eme n t Agreement and the Termination Order

. I ntervenors ’ pleadings estab lish that they w ill only allow Appellant ’ s visits with the child a s they see fit

.The Court ’ s application of Section 161.211(a) to Appellant elim in ates any

adequate legal reme dy for Appel lant , and ratifies the material misrepresentations made by the Texas Department of Fa m ily and Protective Services to induce Appellant i nto signing a mediated settlement agreement which result ed in relinquishment of her parental rights and termination of her parental rights

. It further allows the Department and the In tervenors to completely renege on those agreements without any reco urse by a parent whose parental rights have been termin ated as a result of the promises made by the State of Texas in med iation , with the a pparent authori ty of the In tervenors.
It encourages the Department to comply with the terms of the Mediated Settlement Agreement and Termination O r der for six months , but t o then turn around and renege on thos e agreements after the time for Appellant to lodge a direct or collateral attack has expired under Section 161.211(a). The State of Texas and the Intervenors continued to perpetrate a fraud on A ppellant to ensure that s he would not act to timely assert her consti tutional parental r ights to the child, and t he interpretation of S ection 161.211(a) advocated by the majority opinion of this Court rewards them for committing fraud while depriving Appellant , and more importantly, the child, of any pro cedural safeguard s for Appellant ’ s pare ntal rights , and for the child ’ s constitutional relationship with Appellant

.Appellant has been harmed by application of Section 161.211(a) to her case

because she has forever relinquished her co nstitutional right to raise her child, an d had her constituti onal right permanently severed, without any rec ourse when the State of Texas and Intervenors decide d that their promises were dis cretionary. Appellant has lost time w ith her c hild, time that she was promised in the Mediated Settlement Agreement and Termina tion Order. C R at 54

- 58

. Appellant was harmed because the State of Texas decided to violate the terms of th e Mediated Settlement Agreement and Te r mination O r der by failing to give Appellan t ’ s trial counsel notice of the subsequent ad option proceedings.
Th is Court affirmed the t rial court ’ s judgment in In re C

. T.C. , 365 S.W. 3d 853 (Tex.App.

- Dallas 2012)

. In so doing, the Court stated that “ The record shows Father argued in the trial court, without objection by Mother, that section 161.211(a) is unconstitu tional as applied to him because it violates his due process
ri ghts. However, on this record, we cannot conclude Father has met his burden to show he was harmed by the application of that statute to his case. See In re D.J.R. , 319 S.W.3d at 765

- 66 . The record shows the agreed order of termination was signed on November 24, 2009. Thus, the six

- month time period during which Father could challenge that order expired on May 24, 2010. Se e TEX. F AM. CODE ANN. § 161.211(a). Father pleaded he was aware of the alleged fraud by Mother "on or about April 14, 2010," more than one and one

- half months beforethe end of the six

- month time perio d, and, according to his affidavit, he contacted

counsel by, at the latest, April 2010. Yet, despite the language in section 161.211(a) providing a six

- month deadline, Father did not file his attack on the agreed order of termination until September 29, 20 10. Father does not explain, and the record does not show, how section 161.211(a)'s six

- month time limit operated to adversely affect his right to attack the agreed termination order when the six

month time period had not elapsed at the time he became awar e of the alleged fraud and retained counsel. Accordingly, we de cide Father's second issue against him. See In re D.J.R. , 319 S. W.3d at 765

- 66 ; Walker , 312 S.W.3d at 625

. ” Unlike the father i n In re C

. T.C. , the six

- month time period ha d already passed w hen Appellant first became aware of the fraud, du ress, or coercion in her execution of the affidavit of relinquishment. The record affirmatively demonstrates that Appellant was harmed by the ap plication of Section 161 .211(a ). However, if this Court does not believe that the record affirmatively demonstrates that she was harmed by application of this section, then that deficiency is a result of the trial court ’ s refusal to allow Appellant to proceed with making her prima facie case in support of her Origin al Petition for Bill of Review.
D ue process should prevail over a state law time limit, even one imposed on challenges to termination of parental rights or adoption s
. I n re E

. R

. , 385 S

. W

. 3d
552 ( Tex

. 201 2 ).2. I ntervenors ’ Petition in Interventi on Should Ha ve Been Denied .

Intervenors ’ Petition in Intervention should have been denied

. The sufficiency of the petition in intervention is tested by the allegations of fact o n which the right to intervene depends

. Serna v. Webster , 908 S.W.2d 487 (Tex.App.

- San An tonio 1995, no writ) ; H. Tebbs, Inc. v. Silver Eagle Distribs ., 797 S.W.2d 80 (Tex.App.

- Austin 1990, no writ). Intervenors must have a justiciable interest in the suit. In re Union Carbide , 273 S.W.3d 152 (Tex. 2008). A party can intervene if it (1) coul d have brought all or part of the same suit in its own name or (2 ) would have been able to defeat all or part of the recovery if the suit had been filed against it. Guaranty Fed. Sav . Bank v. Horseshoe Oper . Co. , 793 S.W. 2d 652 (Tex. 1990). The court must have subject matter jurisdiction over any claims for relief asserted by the Intervenor. See Abdullatif v. Erpile, LLC , 460 S.W. 3d 685 (Tex.App.

- Houston [14 th Dist.] 2015, no pet.). The petition in intervention should allege facts that demonstrate the co urt ’ s subject matter jurisdiction. Id

. at 691. Appellant objected to Intervenors ’ Petition in Intervention , a nd Appellant ’ s objection was tried by consent. RR 6:18 ; 13 :9

- 16 ; 13:23

- 25; 14:1

- 16. After hearing the arguments of counsel, t he trial court overr uled Appellant ’ s objection and allowed Intervenors to proceed . RR 14:17

- 18

.Intervenors ’ Petition in I n tervention and Plea to the Juri s diction did not

allege facts that demonstrated the trial court ’ s subject matter jurisdiction over any claims for relief asserted by the Intervenor. CR at 62. To the contrary, Intervenors ’ Petition in Intervention and Plea to the Jurisdiction affirmatively refuted the trial
court ’ s subject matter jurisdiction when they asked the trial court to “ dismiss this action because this Court lacks subject matter juri sdiction under Texas Famil y Code § 161.211(a). ” CR1:6 3. It is impossible for the Intervenors to intervene in a proceeding over which they claim the trial court lacks subject matter jurisdiction. Further, Intervenors ’ fa iled to show that they could have brought all or part of the same suit in their own name , or that they would have been able to defeat all or part of the recovery if the suit had been filed against them.
T h e trial court should have denied Intervenors ’ Peti tion in Intervention.
CONCLUSION Section 161.211 ( a ) of the Texas Family Code is u nconstitutio nal as a pplied to Appellant , and Appellant preserved th e constitu tional issues for this Court ’ s review , including her due process rights

. See RR: 10:2

- 25; 12:5

- 25; 13: 1

- 5 ; 18:21

- 24; 32:6

- 16; 34:10

- 19; 25:18

- 25. Appellant also made a showing that , to the extent allowed by the trial court, the operation of Section 161.211(a) harmed Appellant

. Intervenor s ’ Petition in I n t ervention should have been denied. Appellant objected to Intervenors ’ Petition in Intervention , a nd Appellant ’s objection wastried by consent. RR 6:18 ; 13 :9

- 16 ; 13:23

- 25; 14:1

- 16. Intervenors ’ Petition in

I n tervention and Plea to the Juri s diction did not allege facts that demonstrated the trial cour t ’s subject matter jurisdiction over any claims for relief asserted by the
Intervenor , and actually argued against any subject matter jurisdiction of the trial
court

. CR at 62

- 63

. Intervenors ’ failed to show that they could have brought all or part of the same suit in their own name , or that they would have been able to defeat all or part of the recovery if the suit had been filed against them.
P RAYER Appellant prays that this Court reverse s the Order Granting Petition in
Inte rventi on and Plea to the Jur isdiction signed by the trial court below, and that this Court remands this case back to the trial court for a hearing on the merits of Appellant ’ s Origi nal Petition for Bill of Review. Alternatively , Appe llant prays for whatever relief to which this Cou rt finds that Appellant may otherwise be entitled. Respectfully submitted, BOYD LITIGATION GROUP 205 W. Louisiana Street, Suite 103 McKinney, Texas 75069 Tel: (469) 777

- 6129 Email: boydlitigationgroup@gmail.com
By:

_________________

________________

_ CASEY T. BOYD State Bar No. 24059477 Coun sel for APPELLANTC ERTIFICATE OF SERVIC E

I certify that on January 31, 2019 , I served a copy of the Appell ant’s Brief to the following counsel and parties by electronic mail or via facsimile : Respondent /Appellee’s Appellate Coun sel : Mr. John Rolater Assistant District Attorney Collin County District Attorney’s Office 2100 Bloomdale Road, Suite 100 McKinne y, Texas 75071 Tel: (972) 548

- 4323 Fax: (214) 491

- 4860 Email: jrolater@co.c ollin.tx.us Intervenors/Appellees ’ Trial Counsel: Ms. Rebecca Rowan State Bar No. 24060729 KOONSFULLER, P.C. 1717 McKinney Avenue, S uite 1500 Dallas, Texas 75202 Tel: (214) 871

- 2727 Fax: (214 ) 871

- 0196 Email: rrowan@.koonsfuller.com Attorney Ad Litem in Trial Court for R.M. , the Child : Ms. Terri Daniel State Bar No. 00796433 6675 Medit erranean Dr., S uite 407 McKinney, Teas 75072 Tel: (469) 519

- 2739 Fax: (877) 291

- 1215 Email: terri@terridaniellaw.com

CASEY T. BOYD Counsel for APPELLANT05
- 18
- 01127
- CV
I N THE F IFTH D ISTRICT C OURT OF A PPEALS

A T D ALLAS , T EXAS

I N THE I NTEREST OF R.M., A C HILD

J ILL K UTKA , A PPELLANT T EXAS D EPARTMENT OF F AMILY AND P ROTECTIVE S ERVICES , A PPELLEE S HAWN I NGRAM AND J ENNIFER I NGRAM ,

A PPELLEES



### APPELLANT’S APP ENDIX

1. Texas Family Code Section 162.211(a) Appendix Exhibit “ A ” 2. Texas Family Code Section 26 3.4 05 Appe ndix Exhibit “ B ”

# APPELLANT ’ S APPENDIX EXHIBIT “ A ”§ 161.211. Direct or Collateral Attack on Termination Order, TX FAMILY § 161.211

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Vernon's Texas Statutes and Codes Annotated Family Code (Refs & Annos) Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs & Annos) Subtitle B. Suits Affecting the Parent-Child Relationship Chapter 161. Termination of the Parent-Child Relationship (Refs & Annos) Subchapter C. Hearing and Order V.T.C.A., Family Code § 161.211 § 161.211. Direct or Collateral Attack on Termination Order
Currentness
(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.
(b) Notwithstanding Rule 329, Texas Rules of Civil Procedure , the validity of an order terminating the parental rights of a person who is served by citation by publication 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.

Credits Added by Acts 1997, 75th Leg., ch. 600, § 1, eff. Sept. 1, 1997 ; Acts 1997, 75th Leg., ch. 601, § 2, eff. Sept. 1, 1997

. Amended by Acts 1999, 76th Leg., ch. 1390, § 19, eff. Sept. 1, 1999

.

Notes of Decisions (48) V. T. C. A., Family Code § 161.211, TX FAMILY § 161.211 Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

# APPELLANT ’ S APPENDIX EXHIBIT “ B ”Sec. 263.405. APPEAL OF FINAL ORDER. (a) An appeal of a final order rendered

under this subchapter is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. The appellate court shall render its final order or judgment with the least possibl e delay. (b) A final order rendered under this subchapter must contain the following prominently displayed statement in boldfaced type, in capital letters, or underlined: "A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT

- CHILD RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN THE DISMISSAL OF THE APPEAL." (b

- 1) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011. (c) The supreme court shall adopt rules accelerating the disposition by the appellate court and the supreme court of an appeal of a final order granting termination of the parent

child relationship rendered under this subchapter. (d) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011. (e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. Septemb er 1, 2011. (f) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011. (g) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011. (h) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1 , 2011. (i) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011. Added by Acts 2001, 77th Leg., ch. 1090, Sec. 9, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 176 (H.B. 409 ), Sec. 1, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 526 (S.B. 813 ), Sec. 2, eff. June 16, 2007. Ac ts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906 ), Sec. 4, eff. September 1, 2011. Acts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906 ), Sec. 5, eff. September 1, 2011.