Texas Department of Family and Protective Services v. N.J.

Supreme Court of Texas
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No. 20-0940
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Texas Department of Family and Protective Services,
Petitioner,

v.

N.J.,
Respondent

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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JUSTICE LEHRMANN, concurring.

I agree with the Court and the parties that this case is largely
moot, that the court of appeals’ judgment should be vacated, and that
the trial court’s judgment should be vacated in part. I further agree with
the Court’s denial of the Department’s motion to vacate the court of
appeals’ opinion in accordance with Morath v. Lewis. 601 S.W.3d 785,
790 (Tex. 2020) (explaining that we generally decline to vacate the court
of appeals’ opinion in response to mootness but that we may do so in an
appropriate case). I write separately to note that our decision to let the
court of appeals’ opinion stand is no endorsement of its reasoning or
conclusion. We took this case for a reason: the issue of how courts obtain
personal jurisdiction over minor parents in parental termination cases
is important and unsettled. And the court of appeals’ opinion further
muddies the waters.
The court of appeals held that N.J.’s (the mother whose rights
were terminated) repeated appearances in open court alongside her
appointed attorney ad litem were insufficient to waive service of citation
because, as a minor, she lacked capacity to do so. 613 S.W.3d 317, 321
(Tex. App.—Austin 2020) (citing TEX. R. CIV. P. 120 (providing that a
defendant may “in person, or by attorney, or by his duly authorized
agent, enter an appearance in open court” and that such appearance has
“the same force and effect as if the citation had been duly issued and
served as provided by law”)). In that court’s view, the Department
needed to personally serve either N.J., her legal guardian, or her “next
friend” for the trial court to obtain personal jurisdiction over her. Id.
But as the opinion itself implicitly acknowledges, the Department would
have run into difficulties serving any of these parties.
First, the court of appeals cites an opinion issued by another
appellate court concluding that minors’ legal disability means they
cannot be personally served. Id. at 322 (citing In re M.M.S., No. 14-16-
00349-CV, 2016 WL 6134456, at *4 (Tex. App.—Houston [14th Dist.]
Oct. 20, 2016, pet. denied) (“A minor is without legal capacity to waive
service of process or accept service of process.” (emphasis added))).
Accordingly, the court of appeals acknowledges that minors lack
capacity to accept personal service, thereby indicating that the
Department could and should not have personally served N.J.

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Additionally, the court of appeals’ opinion fails to explain how the
Department could have served N.J.’s legal guardian. The court of
appeals noted that N.J.’s parents’ parental rights may have been
terminated at the time of trial. Id. at 319 n.1 (“At trial, a representative
with the Department testified that N.J. had a history with the
Department as a ‘victim,’ and that N.J.’s mother’s parental rights had
been terminated. The representative was unsure whether N.J.’s father’s
parental rights had been terminated.”). Moreover, nothing in the record
indicates any other legal guardian had been appointed for N.J. And
based on the record, even if N.J.’s father had clearly retained his
parental rights, it is questionable whether serving him would have
provided N.J. with sufficient notice to “apprise [her] of the pendency of
the action.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314–15 (1950). N.J. was estranged from her father, and her living
situation and caregivers changed several times after the birth of her
child. 613 S.W.3d at 319 (noting that N.J. had been living with her
grandmother before the Department received the report regarding the
child, then moved in with her father when the Department received the
report, and then was arrested for physically assaulting her father and
placed in a juvenile detention center). Therefore, it is doubtful that
serving N.J.’s father would have afforded N.J. notice of the suit.
Finally, nothing in the Family Code required the trial court to
appoint a guardian ad litem for N.J. (as opposed to an attorney ad litem,
whom the trial court did appoint). Chapter 107 requires courts to
appoint a guardian ad litem to represent a child who is the subject of
parental termination proceedings. TEX. FAM. CODE § 107.011(a). No

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provision, however, requires or even contemplates appointment of a
guardian ad litem for a minor parent.
Therefore, under these circumstances, it appears that the
Department’s best option for properly joining N.J. to the suit was doing
so through her attorney ad litem. Courts specifically appoint an
attorney ad litem, as opposed to a guardian ad litem, to protect parents’
legal rights in parental termination cases. Id. §§ 107.0131, .0133. And
Section 107.010 expressly authorizes appointment of an attorney ad
litem for an incapacitated person who is “entitled to service of citation”—
seemingly indicating that attorneys ad litem are authorized to accept
service of citation for parties otherwise lacking capacity to consent to
suit. Id. § 107.010. Yet, under the court of appeals’ analysis, such
representation is insufficient for trial courts to obtain personal
jurisdiction.
In sum, perhaps the court of appeals is correct (and perhaps it is
not) that N.J. could not have waived service under Rule 120. If the court
is correct, however, N.J. and other minor parents in her position could,
effectively, be immune from suit in parental termination cases. 1 That
the Legislature would intend such a state of affairs blinks reality.

1 Technically speaking, the Family Code also allows citation to be served
by publication in suits affecting the parent–child relationship. See TEX. FAM.
CODE § 102.010(a). But it is not clear that minor parents may be properly
served through publication. And even if they could, it would seem
inappropriate here given our statement in In re E.R. that service by publication
fails to satisfy due process when the record shows that “it was both possible
and practicable to more adequately warn [a parent] of the impending
termination of her parental rights.” 385 S.W.3d 552, 566 (Tex. 2012). Indeed,
citation by publication would seem to provide N.J. with far less process than
joining her through her attorney ad litem.

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Therefore, while the court of appeals’ opinion stands, the issue raised in
this cause remains open. Hopefully, in due time, we will again be asked
to provide an answer in a properly presented case.

Debra H. Lehrmann
Justice

OPINION DELIVERED: April 22, 2022

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