Opinion
No. 04-04-00085-CV
Delivered and Filed: April 27, 2005.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-00648, Honorable Barbara H. Nellermoe, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
After the mother of L.M.Q., H.D.Q., and A.D.Q. died, their maternal aunt and uncle filed a petition to terminate the parent-child relationship between the children and their biological father, Hen Quach. When Hen Quach failed to answer, the trial court granted a default judgment terminating the relationship. Hen Quach filed a restricted appeal. We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
1. Hen Quach first argues the evidence is insufficient to support the trial court's findings that he and the children's mother were properly served. We disagree. The record establishes the petition was filed April 14, 2003; Hen Quach was served with process on June 6, 2003; and the return of service was filed June 13, 2003. At the July 17, 2003 hearing, the trial court stated it was "checking the rest of the file." This record as a whole, including the petition, citation, and return of service, establishes that the only citation required was served on Hen Quach; and the return of service was on file with the clerk for at least ten days before the default judgment was granted. See Tex. R. Civ. P. 107. We therefore hold Hen Quach has failed to establish that error regarding service is apparent from the face of the record. See Regalado v. State, 934 S.W.2d 852, 854 (Tex.App.-Corpus Christi 1996, no writ) (holding that if citation and return show, with reasonable certainty, that citation was served, service of process will not be invalidated).
2. Hen Quach next argues the evidence is insufficient to support any of the grounds upon which termination was sought. We agree. The trial court found that Hen Quach (a) voluntarily left the children alone or in the possession of another not the parent without expressing an intent to return, without providing for the children's adequate support, and remained away for a period of at least three months; (b) voluntarily left the children alone or in the possession of another without providing adequate support of the children and remained away for a period of at least six months; and (c) failed to support the children in accordance with his ability during a period of one year ending within six months of the filing of the petition, see Tex. Fam. Code Ann. § 161.001(1)(A), (B),(C) (Vernon 2002); and that termination is in the children's best interest. Id. § 161.001(2). However, the only support for these findings are the unsworn statements of the appellees' attorney (that Hen Quach "pretty much has never been involved whatsoever with the children" and they "finally found [Hen Quach] in New Mexico"), appellees (they have been the children's principal caretakers during the last five to seven years, first while living with the children's mother and grandmother and later, since approximately two weeks after the children's mother died, in their own home), and the children's ad litem and the appellees' attorney (the appellees plan to adopt the children). Although the appellees' brief characterizes these statements as "testimony," the record does not reflect that either the appellees or the attorneys were sworn. Accordingly, these unsworn statements do not constitute evidence and cannot support the trial court's findings. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) ("opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary"); In re B.N.B., No. 04-04-00026-CV, 2005 WL 236665, at * 3 (Tex.App.-San Antonio, Feb. 2, 2005, no pet.) (holding "[s]tatements made by an attorney will not constitute evidence based on the absence of an objection where the party who should have objected is not present and is not represented by counsel" because "[u]nder those circumstances, the opponent of the testimony did not know and could not have known that an objection was necessary"). We therefore reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re H.R., 87 S.W.3d 691, 696 (Tex.App.-San Antonio 2002, no writ) (holding that clear and convincing evidence standard required for factual sufficiency review in termination cases requires court to determine whether sufficient evidence was presented to produce in the mind of the factfinder a firm belief or conviction that a ground for termination exists and that termination is in the best interest of the child).
Because Hen Quach requested only a new trial, that is the only relief to which he is entitled. See Horrocks v. Texas Dep't of Transp., 852 S.W.2d 498, 499 (Tex. 1993).