In re E.R. (2012): Notice by Newspaper When CPS Knows Where to Find You

The short answer

In In re E.R., the Supreme Court of Texas held that notice by newspaper publication violated a mother's due process rights. The Department knew who she was, was in regular contact with her, and met with her after it sued In re E.R., 385 S.W.3d 552 (Tex. 2012). The Family Code's six-month limit on attacking a termination order could not bar her challenge, but a parent who learns of such a judgment must act diligently In re E.R., 385 S.W.3d 552 (Tex. 2012).

Service by publication (also called citation by publication) is a substitute way of notifying someone of a lawsuit. It uses "a small notice published in the classified section of a local newspaper" In re E.R., 385 S.W.3d 552 (Tex. 2012).

What the case was about

The Department removed a mother's four children and later petitioned to end her rights In re E.R., 385 S.W.3d 552 (Tex. 2012). After one unsuccessful try at personal service, it decided to serve her by publication, and the trial court allowed it based on the caseworker's affidavit In re E.R., 385 S.W.3d 552 (Tex. 2012). The mother had given the caseworker a phone number but not an address In re E.R., 385 S.W.3d 552 (Tex. 2012). She attended court hearings, though late each time, and visited her children at the Department's offices a month before the termination hearing In re E.R., 385 S.W.3d 552 (Tex. 2012).

She did not appear at the final hearing. The transcript was twelve double-spaced pages In re E.R., 385 S.W.3d 552 (Tex. 2012). A lawyer appeared as "publication attorney" In re E.R., 385 S.W.3d 552 (Tex. 2012). The trial court terminated her rights In re E.R., 385 S.W.3d 552 (Tex. 2012). Within two years, she moved for a new trial In re E.R., 385 S.W.3d 552 (Tex. 2012). A divided court of appeals held her challenge was barred by section 161.211, which the opinion quotes as saying an order terminating the rights of a parent served by publication cannot be attacked after six months In re E.R., 385 S.W.3d 552 (Tex. 2012).

What the court decided

Chief Justice Jefferson wrote the opinion of the Court In re E.R., 385 S.W.3d 552 (Tex. 2012).

Notice comes first. The Court said that when the State seeks to end a parent-child relationship, it must use fundamentally fair procedures, and "the most basic of these is notice" In re E.R., 385 S.W.3d 552 (Tex. 2012). When a person's identity is known, service by publication is generally inadequate In re E.R., 385 S.W.3d 552 (Tex. 2012).

A real search. The opinion quoted a Family Code rule that if a parent is not personally served in a Department termination suit, the department must make a diligent effort to find that parent In re E.R., 385 S.W.3d 552 (Tex. 2012). A diligent search includes the inquiries "that someone who really wants to find the defendant would make," and it is measured "not by the quantity of the search but by its quality" In re E.R., 385 S.W.3d 552 (Tex. 2012). Here, the caseworker did not contact the mother's mother or try service by mail In re E.R., 385 S.W.3d 552 (Tex. 2012). A few faxes, website checks and three phone calls, none to the mother or her family, were not enough In re E.R., 385 S.W.3d 552 (Tex. 2012). Publication was "poor, hopeless, and unjustifiable" here In re E.R., 385 S.W.3d 552 (Tex. 2012).

The six-month limit. A complete failure of service makes a judgment void, and it "may be challenged at any time" In re E.R., 385 S.W.3d 552 (Tex. 2012). So the statute's time limits cannot bar a parent "who was deprived of constitutionally adequate notice" In re E.R., 385 S.W.3d 552 (Tex. 2012). Finality, the Court said, "cannot trump a parent's constitutional right to be heard" In re E.R., 385 S.W.3d 552 (Tex. 2012).

But act promptly. A parent who learns of a termination judgment must act diligently In re E.R., 385 S.W.3d 552 (Tex. 2012). If the parent unreasonably stays silent and relief would harm another person's substantial reliance on the judgment, the trial court may deny relief. The trial court was told to explore that on remand In re E.R., 385 S.W.3d 552 (Tex. 2012). The Court noted the Department's allegations were serious and, if proven, may justify termination, but not before notice and a chance to be heard In re E.R., 385 S.W.3d 552 (Tex. 2012). It reversed and sent the case back to the trial court In re E.R., 385 S.W.3d 552 (Tex. 2012).

On rehearing. Justice Lehrmann wrote a concurrence. She noted the mother never appeared in court after the termination petition was filed, and agreed with denying the State's motion for rehearing In re E.R., 385 S.W.3d 552 (Tex. 2012).

In the court's words

The most basic of these is notice.

In plain English: before a court ends your rights, you must be properly told about the case In re E.R., 385 S.W.3d 552 (Tex. 2012).

But finality cannot trump a parent's constitutional right to be heard.

In plain English: the wish to close a case quickly does not outweigh your right to notice and a hearing In re E.R., 385 S.W.3d 552 (Tex. 2012).

diligence is measured not by the quantity of the search but by its quality

In plain English: a real search for a parent matters more than a long list of quick checks In re E.R., 385 S.W.3d 552 (Tex. 2012).

Why it matters for Texas families

Today, in a suit by a governmental entity seeking termination or a conservator, the court must appoint an attorney ad litem for a parent served by citation by publication Tex. Fam. Code §107.013(a). The opinion cited this provision for the "publication attorney" in the case In re E.R., 385 S.W.3d 552 (Tex. 2012). See Your Right to a Lawyer in a Texas CPS Case.

If you learn that a court ended your rights after notice by newspaper, E.R. shows why acting quickly matters. Talk to a lawyer right away. This is legal information, not legal advice.

Related

• Your Right to a Lawyer in a Texas CPS Case
• In re Texas Department of Family and Protective Services (2008): The YFZ Ranch Removal
• In re E.N.C. (2012): Deportation, an Old Conviction, and Proof of Endangerment
• Stanley v. Illinois (1972): An Unwed Father's Right to a Fitness Hearing
• Santosky v. Kramer (1982): The Proof Needed to End Parental Rights