## In the Court of App eals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00189

- CV

___________________________

On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360

- 677800

- 20

Concurring Memorandum Opinion by Justice Birdwell 

### I N THE 

### I NTEREST OF 

### S.W., A 

### C HILD2 CONCURRING MEMORANDUM OPINIO N
I concur with the m a jority in affirming the trial court ’ s judgment grant ing Little
Flower ’s motion for summary judgmen t. I write separately to provide additional facts relating to Father ’ s first sub issue on f raud.
Father arg ues that he ha s a “ me ri torious d efense i n tha t but for t he intentional
collusion t o commit fraud between [ Little Flower

] and [ Mother ] , [ Father ] would have
be e n able to register with the paternity registry and /or inter vene in the underlying termination proc eedings so that he co ul d have as serted h is pa renta l righ ts in the

req u ired statu t o ry timeframe. ” The majority , viewing the evidence in the light mos t
fav orable to Father ’ s position, held that there is no evidence in this record that
Mother a nd Little Flower defrauded Fat her i n any way pr e ven tin g him from registering with the paternit y registry. While I agree with the majority ’ s conclusion, I write separately to further e stablish that there was no f r aud upon the trial court or
upon Father.
Fir st, Father seems to suggest th at Mother and Lit tle Flower committed a fraud upon the trial court by representing t o the trial court that the biological father was
unknown

. Indeed, in our opinion in Mother and Father ’ s restricted appeal from the default jud gment of termination, we state d categorically, but incorrectly, that the
p e tition for termination filed by Little Flower “ alleged that S.W. ’ s biologi cal father was unknown[.] ” In re S.W. , 614 S.W.3d 311, 312 (Tex. App.

— Fort Worth 2020, no pet.). Although i t is undisputed that M o ther an d Little F l owe r k n ew the identity of3

Father , the clerk ’ s record in the restricted appeal does not show th at Mother and
Little Flower affirmatively represented to the trial court that the biological father was
unknown. See In r

e State Farm Mut. Auto. Ins. C o. , 61 4 S.W.3d 31 6, 3 36 & n.9 (Tex. App.

— Fort Worth 2020, orig. proceeding) ( holding a court of appeals may take judicial notice of the original record, including the briefing, in previous appellate proceedin gs ). On October 9, 2019, Little Flower ’ s origina l peti tion for te rmin ation state d : No man has, to the best of Petitioner’s information and belief, taken steps to legitimate the child in the manner provided by law. No legal parent

- child relationship ex ists between the child’ s biological father and the ch ild. It is in the chi ld’s best inte rest that the Court render judgment declaring that no legal parent

- ch ild relationship exists between the child and the child’s biological father. It is in the child’s b est interest that the C ourt render judgment terminati ng al l legal rela tion ships and righ ts which exist or may exist between the child and the child’s biologi cal father. Such termination is sought.

. . . As grounds for termination, Petitioner alleges that the b iological father has no t or will not, within the time pres cribe d by la w, r egistered wit h the paternity registry under Chapter 160 of the Texas Family Code

.
Moreover, Mother stated in her affidavit of relinquishment

— executed the d ay before
and att ached to Little Flowe r ’ s petition

— that S.W. “ has no presumed father un de r the
Texas Family Code. ” In Mother ’ s contemporaneously execute d an d similarly attache d
affidavit of nonsupport she further state d:

T he biological father has not established a financial or custod ial relations hip with the chil d. I was not married to nor did I a ttempt to4

marry any man at the time of conception or during my pregnancy. Paternity of the child has not been established under t he laws of any state or natio n. I have not deliberately misled any man who could be the fath er of my child by tel ling hi m that I am parenting the child, I was not pregnant, I miscarried the baby, I aborted the baby, or the baby died

. The child has no presu med father under the Texas Fa mily Code. The child was conceive d in the Stat e of Texas. Finally, the ce rtificate of pat ernity registry searc h , conducted and filed by Little F l ower

on November 7, 2019, certifie d that no one p urportin g to be the child ’ s father had regis tere d. Accordingly , neither Mo ther nor Little Flower affirma tively represent ed to the
trial court t hat the biologi cal father was unknown, but rather only represented that
the re was no presumed father, that no pare nt

– c hild relati onship existed between S.W
and the biological father, and that no ma n had registered wit h the pater nity regis try or
had taken legal ste ps t o legit imate the child. The record simply does no t support a finding tha t there was a fraud upon the trial court by misrepres enting to the t rial court
that the bi ological father w as unknown. And the pater nity reg istry provided Fat her
with the means of asse rting h i s ri ghts without depending on Mother , the courts, or anyone else to ident ify hi m. In re Baby Gir l S

. , 407 S.W.3d 904, 9 15 (Tex . App.

— Dallas 2013, pet. denied). Next, Fath er contends that Mother and Little Flo wer colluded to prevent him
from le arn i ng of S .W. ’ s birth. Father rep resents that he did not learn of S.W. ’ s birth
until Decem ber 7, 2019 ; however, as acknowledged by t he majority, there is eviden ce to the contrary. W h en considered in their entirety, t he t ext messages that F ather5

unqualifie dly urg es a s evidence of Mother and Little F lower ’ s alleged fraud show that
Father was aware of S.W. ’ s birth well before December 7, 2019 , and likely within the statutory tim e frame fo r asserting his r ights through the reg

istry

. On October 6 , 2 019, the da y af ter S.W

. ’ s birth, the following text message exchange occurred between Mother and an employee of Little Flower :

Little Flower: Did you want them to come dow n or no?
Mother: Yes . . . . I ’ m down the hall from them
Little Flower: Ok Is 11:00 o k fo r m e t o com e tomorrow to chat and g et started on the paperwork? I figure you mi ght want to sleep in a little
Mother: That ’ s fine

. . . Little F l ower: Also what nam e did you put on the b irth certificate? First middle and las t? You can put your last nam e if yo u h aven ’ t filled out alread y
Mother: I ’ m actually hoping [adoptive mot her] comes back down to talk about the last name I want to hyphenate the last name if s he ’ s ok with that The y will be back th ey went to eat Also, I want to have [S.W .] with me tod ay , si nce I might be leaving tomorrow
Little Flower: Ok. Ju st so you know. There ’ s an original birth certificate with the name you give her at the hospital an d then a
new one at 6 months so you are able to put whatever first middle and last name y ou w ant wh i ch will be her “ original ” name so if you want your last name alone you can. Up to you. Ju st let me know tonight some time so I can put on the paperwork.6 Als o leave the father inf

o blank otherwise he has to sign paper work and i t slows thing s down
T his te xt exchange supports the reasonable inference Father urges that not only did
Mother know him to be S.W. ’ s biological father, she also provided that information to

L ittle Flower befo re the filing of its petition for termination.
On Oct ob er 15, 2019, the re was another t ext message exchange bet ween
Mother and the owner of Little Flower :
Mother: Good Morning. I don ’ t know if [Little Flowe r employee] shared wit h you o ur recent exchang e. I have notified n umerous t imes from the fathers f a mi ly and they a re threat ening to have him petitio n his rights. W i th that being said I have a huge issue with the possibility of [Father] getting custody of [S.W.] I don ’ t believe th ey are fit to take ca re of her one & im only comf ortable with [S.W .] bei n g with [a doptiv e parents ]

. If she doesn’ t go the re than I have ever intention on fighting for my child.
Little Flower: Hi! Yes [L ittle Flower e m ployee ] told me what was going
on. At this point I think we should just sit and w ait. We are moving for w ar d with everyt hing and we shou ld just try to not engage with them too much. If they got an attorney, they would have to serve you with their legal notices and we would need to know ab out that asap. D o you think they are just tryi ng to bother you about i t? And not rea lly going to organ ize themselves t o do something official?
Mother: H o nesty I ’ m not sure . . . . But I don ’ t want to take an y chances. A n yt hing is possible. I just nee d the plan should I be served
Little Flower: Tell me about the bio f ather

– is he ca pable of obtaining
an attorney an d fi ling somethin g? O r are they likely sort of bluffing?
Mother: [Father] makes compound pharmaceuticals for cancer patients and he ’ s out the mili ta ry now, at times he c an be inc onsistent and stubborn b ut 9 times ou t of 1 0 if his moth er says s omething he does it. His mother h as a huge influence o f him and so does his aunt. I ’ m not sure what he does with his money b [sic]7 His mother is manipulative. His aunt is not capable of having kids so she wants [S .W

. ] the most
Mo the r alleged in her Bi ll of Review that on October 7, 2019, she was having misgivings about the adoption and that she was in a precarious physic al and mental
health co ndition. She c laimed sh e was “ badgered ” to s ign the affidavit of

r elinqui shment. Th is tex t message exchange , ho wever, does not reflect any misgivings on the part of Mother fully a week after the filing of the petition

. Presumably
recovered fr om her post

- delivery complications, Mother was concern ed with
p reventing Father or his family from obta ining custody of S.W. Evidencing his mother and au nt ’ s knowledge of Father ’ s paternity , a reaso nab le
inf ere nce from the text mes sage exchange is that Father was aware o f S .W. ’ s b irth no
later than October 15, 2019. First, it is im probable that Fat her ’ s f amily was aw are of
S.W

. ’ s birth on October 15 , but Father was not. Second, because Father wa s the only
one who could assert his ri ghts, the text messages p rov ide evidence that Fat her knew
of S.W. ’ s birth well before Decembe r 7, 2019 , and li kely within the statutory
tim e frame fo r asserting his rights through the registry

. F ather argues that Mother and Little Flower w ere aware of his identity and
concealed the i nformation from both the tri al court and from Father. As in Baby Girl
S ., the evid ence demo nstrate s that Father had reas on to believe that Mother could be
pregnant and , despite havi ng this information, fa iled to take any steps t o register his
intent to claim paternity to S.W. in a timely manner. 40 7 S.W.3d at 915.8

With the above addi tional facts dem onstrati ng that there w as no fraud on the trial court and no fraud preventing Father from asserting his parental rights, I agree

w ith the majority holding that there is no evidence in this r ecord that Mother and
Little Flow er defrauded Fath er i n any wa y pr eventing him from timel y regi stering with the paternit y registry.

/s/ Wade Birdwell
Wad e Birdwell Justice
Delivered: April 27, 2023