With today’s orders list, the Texas Supreme Court released one opinion. The Court did not select any new cases for oral argument this fall.
Notice by Publication: Maybe not the best idea in parental-termination cases
In re E.R., J.B., E.G., and C.L., children, No. 11-0282 (DB) (Jefferson, C.J.)
With today’s unanimous opinion (PDF), the Texas Supreme Court held that the Texas statute that sets a six-month limit on challenges to parental termination must yield to the background constitutional concern that a person receive adequate notice of a proceeding. (( Tex. Fam. Code §161.211(b). This statute sets a six-month limit for challenging default judgments about parent termination after notice by publication — which is shorter than the two-year limit applicable to such challenges in most civil litigation. It appears that the Legislature wanted a strict, no-questions limit, which the Court today found incompatible with the parent’s interest in due process. )) Here, the state only gave formal notice through publication in a newspaper — which the Court called “poor, hopeless, and unjustifiable under these circumstances.”
This is undoubtedly an important decision for family-law practitioners. It also deserves some attention by anyone else who might deal with a default judgment — such as appellate lawyers or those on either side of the collections business.
The core of the Court’s holding is its discussion of notice by publication (pp. 8-13), which is applicable even beyond the family-law context. The Court noted that, even at the time of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) — when roughly 80% of the public read a newspaper — notice by publication was already acknowledged as an inferior and often ineffective means of service. As the Court explained, Mullane and later U.S. Supreme Court cases draw a distinction between defendants whose identity is known and those whose identity is unknown. For those whose identity is known, service by publication is only rarely appropriate.
The justification for using it here was particularly thin. The state knew the mother’s identity, had a telephone number for her, had a previous recent address, and knew the identity of some relatives. Yet, the case officer used almost none of that information in trying to effect regular service on her (see page 3). The Court also notes that the mother had actually visited the state offices during this time period, but had apparently not been told about the looming hearing.
The Court held that publication notice here was constitutionally insufficient and that, for that reason, the Texas statute limiting these challenges to six months could not be applied. The more difficult question was whether the parent was foreclosed for some other reason — such as a common-law notion of laches or waiver — from trying to overturn this judgment now.
That analysis began with the Restatement’s formulation, which in a comment suggests that courts should consider the reliance interests of third parties rather than strict notions about whether a judgment is “void” (see pages 23-24). The Restatement commentary suggested that, in cases about money damages, this might be very slow to occur. Indeed, the comment seems to suggest that reliance on a money judgment might not occur until some formal execution process is underway. By contrast, in judgments that determine marital or parental rights, there are other ways that third parties might justifiably rely on a judgment.
Adopting this basic approach, the Court decided to remand the case to the trial court for further proceedings — with the guidance that it should look at two questions: (1) whether the mother had unreasonably failed to act after learning about the judgment and, if so, (2) whether granting relief now would impair a third party’s “substantial interest in reliance on that judgment.”