In the Interest of G.A.G., III, a Child--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00243-CV

IN THE INTEREST OF G.A.G., III, a Child,

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-PA-01445

Honorable John D. Gabriel, Jr., Judge Presiding (1)

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: November 14, 2007

REVERSED AND REMANDED

After a non-jury trial, the trial court terminated Appellant George Anthony Guilbeau, II,'s parental rights to GAG, III. Guilbeau complains of the trial court's finding that his appeal is frivolous. The specific issue listed in the original statement of appellate points about which Guilbeau complains on appeal is the trial court's finding that he failed to timely file an admission of paternity under Chapter 160 of the Texas Family Code before the final hearing in this suit.

Standard of Review

An appeal is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio 1998, no pet.); In re M.A., No. 04-05-00112-CV, 2005 WL 3115796, at *1 (Tex. App.--San Antonio Nov 23, 2005, pet. denied). In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review. A trial court's determination that an appeal is frivolous is reviewed under an abuse of discretion standard. In re M.A., 2005 WL 3115796, at *1 (internal citations omitted).

Paternity Admission or Counterclaim

Guilbeau maintains that he filed an answer with a judicial confession of an admission of paternity and, therefore, the trial court erred in terminating his alleged parental rights under Section 161.002(b)(1) of the Texas Family Code. Section 161.002(b)(1) provides that the "rights of an alleged biological father may be terminated if: (1) after being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160." Tex. Fam. Code Ann. 161.002(b)(1) (Vernon 2002). If the alleged father does not file such an admission or counterclaim, Subsection (b)(1) allows a trial court to summarily terminate the rights of an alleged biological father. Id.; see Phillips v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex. App.--Austin 2000, no pet.); In re A.D., No. 04-02-00310-CV, 2002 WL 31829510, at *1 (Tex. App.--San Antonio Dec. 18, 2002, no pet.). If, however, the alleged father files an admission of paternity or otherwise claims paternity, the alleged father is able to prevent summary termination of his rights, and Texas Department of Protective and Regulatory Services ("the Department") must instead meet the high burden of proof found in section 161.001. Tex. Fam. Code Ann. 161.002(a); Phillips, 25 S.W.3d at 357.

Section 161.002 prescribes the filing of an admission of paternity, but there is no reference in the statute to any formalities that must be observed when "filing" such an admission. Moreover, there are no formalities that must be observed for an admission of paternity to be effective. See In re D.D.S., No. 02-05-00313-CV, 2006 WL 2309813, at *2 (Tex. App.--Fort Worth Aug. 10, 2006, no pet.) ("This court has held that there are no formalities that must be observed for an admission of paternity to be effective; for example, an admission of paternity in letters written to the trial court will suffice."); In re K.W., 138 S.W.3d at 429-30 (concluding that the father's letters to the Department and the court, in which he asserted he was the child's biological father, constituted admissions of paternity sufficient to put the Department and the trial court on notice that he admitted his paternity and wanted to oppose termination of any rights he might have with respect to the child at issue).

This case is analogous to the reasoning followed in Estes v. Dallas County Child Welfare Unit of Texas Department of Human Services, 773 S.W.2d 800, 801 (Tex. App.--Dallas 1989, writ denied). In Estes, the State filed a petition to terminate the parental rights of an imprisoned father, under a former but substantially similar statute. Id. Two weeks before the final termination hearing, the father filed a pro se answer, alleging that he was an indigent parent and requesting the appointment of an attorney. Id. The court held "[t]here is no provision in the Texas Family Code that specifies any particular form or language required for an admission of paternity." Id. The court, applying strict scrutiny, stated that the father's answer constituted an admission of paternity and that the answer "was timely filed since it was filed prior to the final hearing in the suit for termination." Id. at 802.

Analysis

After the Department's initial efforts to serve Guilbeau with service were unsuccessful, Guilbeau was served with citation by publication on January 5, 2007. That same day, Guilbeau was arrested and placed in Bexar County Jail for an assault against the mother of the child, Bahaiti Byrd. Guilbeau was served in the county jail on January 11, 2007, while visiting with his previously appointed ad litem attorney. On January 12, 2007, an answer was filed on behalf of Guilbeau which included a judicial admission that he is the father of G.A.G. Guilbeau was subsequently released on a work-release program, but did not return to the county jail and a warrant was issued for his arrest.

The case was called to trial on February 5, 2007, at which Guilbeau failed to appear. The trial court denied the announcement of not ready by Guilbeau's counsel and proceeded to trial. The State's motion to strike the jury was granted and the State presented its entire case through the testimony of Lamar Davenport, a caseworker with the Department. The trial court granted the termination based solely on Guilbeau's failure to legitimate, specifically finding:

The court finds by clear and convincing evidence that, after having waived service of process or being served with citation in this suit, GEORGE GUILBEAU 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.

The trial court's finding was based on a perceived distinction between Guilbeau's counsel signing the pleadings containing the admission of paternity and Guilbeau signing a verified pleading admitting paternity. Although Guilbeau did not personally sign the pleading, unlike the letters sent in Estes, In re K.W. and In re D.D.S., Guilbeau's pleadings constitute a judicial admission. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). In Holy Cross Church, the Texas Supreme Court made no distinction between who actually signed the pleadings and stated that "[a]ssertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." Id. The court continued that a judicial admission that is "clear and unequivocal has conclusive effect and bars the admitting party from later disputing the admitted fact." Id. Here, the record clearly establishes that Guilbeau's admission of paternity was included within his original answer. The Texas Family Code requires nothing more. We, therefore, sustain Guilbeau's issue on appeal. The trial court's order of termination is reversed and this mattered is remanded to the trial court for further proceedings consistent with this opinion.

Rebecca Simmons, Justice

1. The Honorable Richard Garcia, Associate Judge, presided over the termination hearing. The Honorable John D. Gabriel, Jr., Judge of the 225th Judicial District Court of Bexar County, Texas, signed the order terminating parental rights.