in the Interest B.J.A., a Child ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00474-CV
IN THE INTEREST OF B.J.A., a Child
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2018PA00541
Honorable Charles E. Montemayor, Judge Presiding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: December 18, 2019
AFFIRMED
In this accelerated appeal of the trial court’s order terminating alleged Dad’s parental rights
to B.J.A., Dad argues he was denied due process because the Department made little or no effort
to contact him.2 Because Dad failed to preserve his claim of due process error by making a proper
complaint to the trial court, we affirm the trial court’s order.
BACKGROUND
In March 2018, when B.J.A. was about six months old, the Department of Family and
Protective Services received a report alleging domestic violence in the home. The Department
petitioned for temporary managing conservatorship, and after a hearing, it was granted, and B.J.A.
1
The Honorable Michael E. Mery is the presiding judge of the 37th Judicial District Court, but the Honorable Charles
Montemayor, Associate Judge, heard the case and signed the final order.
2
We use aliases for Appellant and the child. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
04-19-00474-CV
was removed from the home. 3 Dad was served with citation and an attorney was appointed to
represent him. The Department created a service plan for Dad and delivered it to Dad’s residence.
After a series of hearings, the case moved to trial.
In a one-day bench trial, the Department argued Dad’s name was not on the birth certificate,
the paternity registry search did not show Dad was B.J.A.’s father, and thus Dad was merely an
alleged father. The Department asserted that Dad had failed to establish paternity, and in the
alternative, his course of conduct met section 161.001(b)(1)’s (E), (N), and (O) grounds, and
termination of any parental rights Dad might have was in B.J.A.’s best interest.
Dad argued that he never received a copy of the service plan, he was not afforded an
opportunity to visit B.J.A., and the Department did not exercise “due diligence” to advise him that
he could see B.J.A. or work services while he was incarcerated.
The trial court found by clear and convincing evidence that Dad was merely an alleged
father and it terminated his parental rights to B.J.A. The trial court also found, in the alternative,
that Dad’s course of conduct met section 161.001(b)(1)’s (E), (N), and (O) grounds, and
terminating Dad’s parental rights was in B.J.A.’s best interest.
DUE PROCESS ISSUE
In his only issue on appeal, Dad argues “he was denied due process by the Department
when the Department’s representatives made little to no effort to contact [him] and wholly failed
to make contact with [him] in any fashion during the suit.”
An alleged father has some due process rights. See In re P.RJ E., 499 S.W.3d 571, 576
(Tex. App.—Houston [1st Dist.] 2016, pet. denied). But “even a complaint that a party’s due
process rights have been denied must be preserved by a proper objection or request.” In re R.L.L.,
3
Mom did not appeal. We focus our recitation of the facts on those pertaining to Dad and B.J.A.
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04-19-00474-CV
No. 04-18-00240-CV, 2018 WL 6069866, at *3 (Tex. App.—San Antonio Nov. 21, 2018, pet.
denied) (mem. op.); accord In re A.N.G., No. 04-16-00377-CV, 2016 WL 6775589, at *1 (Tex.
App.—San Antonio Nov. 16, 2016, no pet.) (mem. op.); see TEX. R. APP. P. 33.1.
The record does not show that Dad ever raised a due process complaint in any pleading or
at the trial on the merits. At trial, Dad argued the Department did not exercise due diligence, but
merely arguing the Department had not contacted him to discuss his service plan does not, without
more, raise a due process claim. In his arguments, Dad made no reference to the Due Process
Clause or the United States or Texas constitutions; he never argued he had been denied due
process; and he sought no finding on any due process claim. Cf. In re L.M.I., 119 S.W.3d 707,
710–11 (Tex. 2003) (holding father failed to preserve due process claim). The trial court made no
finding or ruling on any due process claim, or otherwise indicate it understood Dad was making a
constitutional challenge. See id. at 710 (observing that “[t]he trial court obviously did not discern
a due process challenge”).
We conclude Dad failed to alert the trial court that he was making a constitutional claim
and get a ruling on that claim, and he cannot raise that complaint for the first time on appeal. See
TEX. R. APP. P. 33.1; In re A.N.G., 2016 WL 6775589, at *1.
CONCLUSION
“[A]llowing appellate review of unpreserved error would undermine the Legislature’s
intent that cases terminating parental rights be expeditiously resolved,” In re L.M.I., 119 S.W.3d
at 711, and that we cannot do, see In re A.N.G., 2016 WL 6775589, at *1.
Because Dad failed to preserve his claim of error, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
-3-