In Re: Darren Mack--Appeal from 313th District Court of Harris County

Petition For Writ of Mandamus Denied and Memorandum Opinion filed October 30, 2003

Petition For Writ of Mandamus Denied and Memorandum Opinion filed October 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00878-CV

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IN RE DARREN MACK, Relator

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Original Proceeding

Writ of Mandamus

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M E M O R A N D U M O P I N I O N

A baby, H.F., was abandoned at Texas Childrens Hospital in Houston.[1] In November 2001, respondent, the Honorable Pat Sheldon, judge of the 313th District Court of Harris County, Texas, signed a default judgment terminating all parental rights to H.F. Real Party in Interest, C.J.F., then adopted H.F. Relator, Darren Mack, claims that H.F. is his daughter, K.A.D., who was kidnapped in Louisiana in June 2001 by her birth mother, Lisa DiMarco, taken to Houston and abandoned.

According to relator, he and DiMarco had a relationship, and she became pregnant. She wanted to give the child up for adoption, but relator would not consent and insisted he would raise the child. DiMarco gave birth to K.A.D. on March 2, 2001 in Jefferson Parish, Louisiana. Relator immediately signed an act of legitimation and filed a petition for paternity, custody, and name change in a Jefferson Parish court. A few days later, DiMarco gave physical custody of the child to relator, and he raised her for three months. Then, DiMarco picked up the child for a visit but did not return her.[2]

Over the next two years, DiMarco refused to divulge the child s whereabouts despite numerous orders by the Jefferson Parish court.[3] Finally, in April 2003, after being imprisoned for contempt, DiMarco admitted that she left the child at the St. Luke s children s hospital in Houston in July 2001 so she could be adopted. Relator claims that based on information from DiMarco s attorney, he discovered that H.F. is K.A.D., and all parental rights to the child had been terminated in the underlying Harris County proceeding.

Relator filed a special appearance and motion to vacate the termination order in the underlying proceeding asserting the order is void for lack of jurisdiction because the Jefferson Parish court had jurisdiction over H.F./K.A.D. under the Uniform Child Custody Jurisdiction and Enforcement Act[4] and the Parental Kidnapping Prevention Act.[5] C.J.F. filed a plea in bar and motion to dismiss on two grounds: (1) relator lacks standing to challenge the termination order; and (2) his challenge is barred by section 161.211 of the Texas Family Code. Respondent held a hearing on the plea in bar and motion to dismiss but did not consider any evidence. On August 7, 2003, he signed an order granting the plea in bar and motion to dismiss but did not specify on what grounds. Relator then filed this mandamus petition requesting that we vacate this order.

Relator s assertions raise serious constitutional and procedural questions. When C.J.F. challenged relator s standing by a plea to the jurisdiction, the trial court could not weigh the claim s merits but was required to consider only relator s pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A reviewing court is required to construe the pleadings in relator s favor and look to his intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). Here, it is hard to see how the trial court could rule on relator s allegations without compelling at least some DNA testing and evidence as to whether relator is indeed related to H.F., and therefore has standing to challenge the termination order.[6]

C.J.F. also asserted relator s challenge to the termination order is barred by section 161.211 of the Texas Family Code. Section 161.211 generally prohibits a direct or collateral attack on a termination order more than six months after it is signed. See Tex. Fam. Code Ann. 161.211 (Vernon 2002); see also Tex. Fam. Code Ann. 162.012 (Vernon 2002) (prohibiting attack on adoption order after six months). However, the application of section 161.211 in this case raises constitutional concerns. Relator could not have challenged the termination order within six months because despite his diligent efforts and due solely to DiMarco s contemptuous silence he had no notice the child was anywhere in or near Texas until almost two years later. If relator s allegations are true, he attempted to establish paternity, obtain custody, and assume parental responsibilities at the child s birth; however, he was prevented from doing so because DiMarco kidnapped the child and refused to reveal her whereabouts in defiance of court orders until it was allegedly too late for relator to challenge the termination. Relator could not have filed in the Texas paternity registry to ensure notice of the termination proceeding when he did not know where the child was. In these circumstances, there may be constitutional problems with the application of the general statutes. See Laura Oren, Righting Child Custody Wrongs: The Children of the Disappeared in Argentina, 14 Harv. Hum. Rts. J. 123, 167 n.240 (suggesting that despite sections 161.211 and 162.012 of the Texas Family Code promoting finality in termination and adoption proceedings, the Due Process Clause of the United States Constitution and the Due Course of Law and Open Courts provisions of the Texas Constitution may allow a challenge to an adoption on the grounds it was based on kidnapping).

Nevertheless, for reasons not explained in the record, relator did not appeal from respondent s August 7, 2003 order dismissing his claims, although he could have done so. See Tex. Fam. Code Ann. 109.002 (b) (Vernon 2002) (providing any party to a suit affecting the parent-child relationship may appeal a final order rendered therein). Because he had an adequate remedy by appeal that he did not pursue, we must deny his petition for writ of mandamus. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

PER CURIAM

Petition Denied and Memorandum Opinion filed October 30, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

[1] The record does not reflect the date H.F. was found at the hospital, but the Texas Department of Protective and Regulatory Services filed the suit to terminate parental rights to H.F. in July 2001.

[2] The court had not yet acted on relator s petition but had issued a temporary restraining order precluding DiMarco from removing the child from the jurisdiction of the court pending the custody hearing.

[3] The court ordered that DiMarco produce the child, reveal the location of a man named Chorentale whom she claimed at one point to be the father, take a lie detector test, submit to drug testing, produce an investigator trying to locate Chorentale, provide the names of her closest friends, and provide her bank account and credit card statements. There were many continuances, at DiMarco s request, between these various orders that caused the process to last almost two years.

[4] See generally Tex. Fam. Code Ann. 152.001-.317 (Vernon 2002) (precluding a state from exercising jurisdiction over a child when the child s home state is already exercising jurisdiction).

[5] See generally 28 USCA 1738A(g) (precluding a state from exercising jurisdiction over a child to make custody determinations while a proceeding regarding the child is pending in another state).

[6] Among other relief, relator requested that respondent order DNA testing of H.F.