Opinion
No. 05-06-00542-CV
Opinion Filed March 26, 2007.
On Appeal from the 417th Judicial District Court, Collin County, Texas, Trial Court Cause No. 417-53518-04.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Counsel for Abraham Munoz appeals the termination of Munoz's parental rights, arguing in a single issue that the evidence is insufficient to support the trial court's finding of due diligence pursuant to service by publication. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's judgment.
The Collin County Unit of the Texas Department of Family and Protective Services (Department) filed a petition to terminate the parental rights of Munoz and his former wife, Wendy Quiroz, to K.E.Q. The Department alleged that Munoz's date of birth was unknown and that he was believed to be deceased, and prayed for citation by publication. The Department filed a "Diligent Search Affidavit" showing the efforts made by Angela Coleman, a child protective services specialist, to "identify, locate, and serve" Munoz. Munoz was served notice of the termination suit by publication in Collin County. Munoz's appointed counsel filed a motion to quash the service due to lack of diligence in attempting to locate him. After a hearing on the motion, the trial court ruled that the Department exercised due diligence in its search for Munoz. The trial court then terminated Munoz's parental rights to K.E.Q.
The suit also sought to terminate the rights to S.B.Q. and A.Q. This appeal only involves K.E.Q.
Under the abuse of discretion standard, our review of the trial court's termination of parental rights requires us to consider whether the trial court had sufficient information upon which to exercise its discretion, and whether its decision was reasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985); see Lindsey v. Lindsey, 965 S.W.2d 589, 592-93 (Tex.App.-El Paso 1998, no pet.) (explaining overlapping standards for sufficiency of evidence and abuse of discretion in family law cases). The trial court's ruling should be reversed only if it was arbitrary or unreasonable. Downer, 701 S.W.2d at 242.
In suits affecting the parent-child relationship, citation may be served by publication as in other civil cases. See Tex. Fam. Code Ann. § 102.010(a) (Vernon Supp. 2006). In suits involving citation by publication, "it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant . . . before granting any judgment on such service." Tex. R. Civ. P. 109. Any party to a civil suit may request service by publication if the residence of a defendant is unknown to the party and has not been discovered after due diligence or the defendant is located outside the state and the party has been unable to obtain personal service. Id. The rules of civil procedure do not make any presumptions concerning the best place to locate persons whose addresses are unknown. In re A.Y., 16 S.W.3d 387, 389 (Tex.App.-El Paso 2000, no pet.). Instead, rule 109 requires the trial court to determine the diligence used by the plaintiff in trying to locate the defendant's residence. Id.
The record shows the trial court questioned Coleman about her efforts to locate Munoz; she testified she was unable to obtain any information concerning Munoz's present location. Munoz's former wife informed Coleman that he had been killed in Uruapan, Mexico. Munoz's former wife and her mother were unable to provide any additional identifying information, such as his date of birth. Coleman contacted the Mexican Consulate for assistance in locating Munoz, but without additional information Munoz could not be located. Coleman also contacted the Immigration and Naturalization Service, but was unable to locate Munoz.
Munoz's authorities are distinguishable. Munoz's reliance on In re A.Y. is misplaced because in that case the plaintiff had some information that the defendant lived in Memphis, thus allowing contact of his former employer and the public utilities. See In re A.Y., 16 S.W.3d at 389. Here, Coleman testified she needed additional identifying information in order to locate Munoz in Mexico. Munoz also relies on In re Marriage of Peace, 631 S.W.2d 790, 793 (Tex.App.-Amarillo 1982, no writ), a divorce action, where the court concluded the wife's whereabouts could have been ascertained because the husband sent money to her at their property in Mexico, sent mail to her at that address, and received a telephone call from her. In contrast, here the record shows that neither the Department nor any other party involved had actual knowledge of Munoz's location in Mexico or anywhere else. The most specific information Coleman could obtain was that Munoz was dead, but even that could not be confirmed without additional information identifying Munoz.
Because we cannot say the trial court abused its discretion in finding due diligence in attempting to ascertain Munoz's residence or whereabouts, we resolve Munoz's sole issue against him. We affirm the trial court's judgment.