Appellate court sides with father from Mexico in child custody case
A Texas appellate court headquartered in Texarkana has reversed a lower court’s termination of a Mexican man’s parental rights to his three children.
In an opinion issued last week, the 6th Court of Appeals found that state officials failed to properly serve the father with notice of the state’s intent to terminate his parental rights in violation of controlling international treaties including the Hague Convention. The opinion, penned by Associate Justice Ralph Burgess and handed down Wednesday, sends the case back to the trial court for further proceedings.
The mother of the children is a U.S. citizen who came to the attention of child welfare officials in 2013, according to the appellate opinion. In 2014 the Texas Department of Child and Family Services filed a petition seeking to terminate the mother’s and father’s rights to the children.
Texarkana lawyer John Delk, who was appointed to represent the father in October 2017, said the father was unable to be with the children because of his immigration status and was unaware that the state was moving to permanently sever his parental rights until after a Bowie County district judge granted the termination. Delk noted that at some point in the past, the mother was deported from Mexico to America after overstaying a visa there.
The failure to effect proper service was complicated by notices mailed to wrong addresses and a letter from the father erroneously filed as an answer by staff in a clerk’s office, the opinion states. The opinion also notes that just because the court appointed a lawyer to represent the father, it could not use the lawyer’s appearance in the case as a substitute for notification of the parent.
“Here, counsel never filed an answer on (the father’s) behalf, did not announce that he was ready to proceed with trial, and did not speak with (the father) until after the final hearing,” the opinion states. “To hold that a parent—who never received service of process—entered a general appearance through his court-appointed counsel—whom he never talked to—and thereby made a general appearance that negated the need to show service of process would create a bad precedent. By that reasoning, a parent could have his parental rights terminated in a proceeding he knew nothing about simply because the trial court appointed him an attorney.”
Delk said he is now in communication with the Mexican consulate and is working to get the father a temporary visa to the U.S. that might allow him contact or unification with his children, who hold dual status as U.S. and Mexican citizens.
“We are thankful to the Court of Appeals for their decision affirming the importance of parents regardless of their national origin,” Delk said. “We look forward to a chance to reunite a non-offending father with his children.”