in the Interest of C.M.D. and H.M.A. A/K/A H.M.A., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00237-CV
In the Interest of C.M.D. and H.M.A. § From the 323rd District Court
a/k/a H.M.A., Children
§ of Tarrant County (323-93993J-11)
§ November 29, 2012
§ Opinion by Justice Walker
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed, and the case is remanded to the trial court for a new trial.
The trial court must commence a new trial no later than 180 days after the date this
court issues the mandate in this appeal. See Tex. R. App. P. 28.4(c).
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00237-CV
IN THE INTEREST OF C.M.D. AND
H.M.A. A/K/A H.M.A., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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This is an ultra-accelerated2 appeal from a post-answer default judgment
terminating Mother’s and Father’s parental rights to C.M.D. and H.M.A. The
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights within 180 days after notice of
appeal was filed). We note that briefing was completed in this appeal on October
2, 2012, and that our opinion is required to issue on or before December 10,
2012, leaving this Court with less than sixty days to draft, circulate, and issue this
opinion.
2
Friday prior to the termination trial, Mother and Father’s attorney filed a motion to
withdraw and an unsworn motion for continuance. The motion to withdraw did
not state that a copy of the motion had been delivered to Mother or to Father, did
not state that Mother or Father had been notified in writing of their right to object
to the withdrawal, did not indicate whether Mother or Father consented to the
motion, and did not set forth Mother’s or Father’s last known address or the
pending trial setting. See Tex. R. Civ. P. 10. The case was called for trial;
Mother and Father’s attorney appeared, informed the trial court that he was
under doctor’s orders to not participate in any court proceedings, and urged the
trial court to grant his motion to withdraw and for a continuance.
Mother and Father did not appear for trial. Their attorney said that as far
as he knew, ―they [Mother and Father] were notified earlier [of the trial setting] at
the time it was reset.‖ He did not indicate that he had informed Mother and
Father of the trial setting. He said that he ―[had] not been able to have contact
with them [Mother and Father] in recent weeks‖ but that the ―last contact I had
with them was that they were still very much interested in defending their rights
and trying to at least maintain the best possible relationship with their children
and that their rights not be terminated.‖ When questioned by the trial court, the
Department indicated that it was in regular contact with Mother and Father during
their visitation with C.M.D. and H.M.A. and said that Mother and Father were
aware ―of this hearing today.‖ In fact, Mother and Father had visited the children
the Wednesday prior to trial.
3
The trial court granted Mother and Father’s attorney’s motion to withdraw
but denied the motion for continuance. The Department called three witnesses
whose combined testimony—including additional examination by the children’s
attorney ad litem—spans a mere thirty-six pages in the reporter’s record. The
trial court then granted the Department’s petition to terminate Mother’s and
Father’s parental rights and found that it was in the children’s best interest to do
so. The trial court signed a May 23, 2012 termination judgment immediately after
the Department presented its evidence.
On June 22, 2012, Mother and Father filed a letter requesting a new trial
and indicating that they were never notified of any court hearing on the
termination of their parental rights to the children; the letter states that their
attorney explained to them that he ―got us a continuance due to his health issues,
so to his knowledge, as ours, the continuance was granted.‖ In affidavits
considered at the motion for new trial hearing, Mother and Father averred that
they were not aware that trial counsel had filed a motion to withdraw and that
they were not present for the trial because they were told by trial counsel that the
trial court had granted a continuance.3 Mother’s and Father’s affidavits further
deny all the allegations supporting the Department’s grounds for termination.
3
Counsel for the parties agreed and stipulated on the record at the motion
for new trial hearing that Mother’s and Father’s affidavits would be treated as if
they were attached to Mother and Father’s timely filed letter requesting a new
trial ―so that the Court of Appeals could consider the affidavits‖ and that the
affidavits would be treated as ―stipulated testimony for purposes of their Original
Motion for New Trial.‖
4
Mother and Father’s appellate counsel argued at the motion for new trial hearing
that Mother and Father had met the requisites necessary to obtain a new trial
under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124
(1939). Apparently, at least in part because at the time of the motion for new trial
hearing only ten days remained until the automatic dismissal deadline,4 the trial
court denied Mother and Father’s motion for new trial. Mother and Father
perfected this appeal and raise eight issues.
In part of their seventh issue, Mother and Father argue that the trial court
erred by not setting aside the post-answer default judgment as required by
Craddock. See id. A post-answer default judgment occurs when a defendant
files an answer but neither the defendant nor his attorney appear for trial. See
LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (explaining that judgment
was not post-answer default judgment because although husband did not
personally appear for trial, husband’s counsel appeared and represented
husband at trial); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)
(explaining distinctions between no-answer default judgment, judgment nihil dicit,
and post-answer default judgment). A trial court must set aside a post-answer
default judgment when the defendant satisfies the test articulated by Craddock.
Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.
4
See Tex. Fam. Code Ann. § 263.401(a) (West 2008) (setting forth
deadlines that require dismissal of suits affecting the parent-child relationship in
which the Department requests termination).
5
1994); Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Under Craddock, the
defendant must demonstrate that (1) his failure to appear was not intentional or
the result of conscious indifference; (2) there is a meritorious defense; and (3)
the granting of a new trial will not operate to cause delay or injury to the opposing
party. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Cliff, 724 S.W.2d at 779.
Concerning the first Craddock prong, in deciding whether an appellant’s
failure to appear resulted from intentional disregard or conscious indifference, we
look to his knowledge and conduct and will examine all of the evidence in the
record that was before the trial court. See Evans, 889 S.W.2d at 269. In a
Craddock motion for new trial hearing, the trial court is bound to accept as true
the movant’s affidavits unless the opponent requests an evidentiary hearing and
offers controverting evidence. Averitt v. Bruton Paint & Floor Co., 773 S.W.2d
574, 576 (Tex. App.—Dallas 1989, no writ). We are to apply this first prong
liberally, considering each case on an ad hoc basis. See Gotcher v. Barnett, 757
S.W.2d 398, 401 (Tex. App.—Houston [14th Dist.] 1988, no writ). To establish
that the failure to appear was not intentional or the result of conscious
indifference, a defendant need not show a good excuse; a slight excuse will
suffice. State & Cnty. Mut. Fire Ins. Co. v. Williams, 924 S.W.2d 746, 748 (Tex.
App.––Texarkana 1996, no writ). To satisfy his right to set aside a default
judgment on this prong, the defendant’s motion for new trial and affidavit need
only set forth facts that, if true, would negate intentional or consciously indifferent
conduct. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). ―Conscious
6
indifference‖ means the failure to take some action that would appear obvious to
a reasonable person under similar circumstances. Prince v. Prince, 912 S.W.2d
367, 370 (Tex. App.—Houston [14th Dist.] 1995, no writ).
Here, Mother and Father’s motion for new trial and their affidavits contain
the following facts that, if true, negate any intentional or consciously indifferent
conduct by Mother and Father in failing to appear for the termination trial. Mother
and Father did not appear for trial because their attorney had told them that he
had obtained a continuance of the trial due to his health conditions. Mother’s and
Father’s affidavit testimony dovetails with the events, set forth above, that
occurred when the case was called for trial. When the case was called for trial,
Mother and Father’s attorney requested a continuance based on his health
issues. At the same time, Mother and Father’s attorney presented a motion to
withdraw from the representation of Mother and Father; Mother’s and Father’s
affidavits averred that they did not know that their attorney had filed a motion to
withdraw.5 The motion to withdraw did not comply with the requisites listed in
5
We reference Mother and Father’s attorney’s motion to withdraw and the
trial court’s granting of it in our analysis of Craddock’s first prong because it
compounds the due process violation suffered by Mother and by Father. See In
re J.O.A., 283 S.W.3d 336, 343 (Tex. 2009) (recognizing that attorney must
satisfy the requirements of rule 10 of the rules of civil procedure in order to
withdraw and stating that attorney’s failure to do so left a father without
representation at a critical stage of the proceeding); Villegas v. Carter, 711
S.W.2d 624, 626–27 (Tex. 1986) (reversing trial court’s denial of continuance
and granting of motion to withdraw two days’ before trial and holding that ―[t]he
right to counsel is a valuable right; its unwarranted denial is reversible error‖);
Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 113 (Tex. App.—Waco 1999,
no pet.) (holding that a trial court abuses its discretion when it grants a motion to
7
rule 10 of the rules of civil procedure or indicate that it had been served on
Mother or Father. Examining all of the evidence before the trial court concerning
the first Craddock prong and looking to Mother’s and Father’s knowledge, neither
Mother nor Father failed to take an action that would be obvious to a reasonable
person. Mother and Father’s attorney told them that he had obtained a
continuance of the trial setting based on his ill health and that is why they did not
appear. This evidence constitutes more than a slight excuse for Mother’s and
Father’s failure to appear. Thus, we hold that Mother and Father met their
burden of establishing that their failure to appear at the trial was not intentional or
the result of conscious indifference. See, e.g., In re Marriage of Parker, 20
S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.) (holding that husband’s
failure to appear for trial was not the result of conscious indifference when
husband received fourteen-days’ notice and wrote to trial court clerk for
clarification and to complain of lack of forty-five-days’ notice of trial setting).
On appeal, the Department agrees that Mother and Father established that
their failure to appear at trial was not the result of conscious indifference but
contends that controverting evidence exists from which the trial court could have
found conscious indifference. At the motion for new trial hearing, the Department
did not offer controverting affidavits or evidence on the first Craddock prong. In
withdraw that does not comply with the mandatory requirements of rule 10);
Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.—Tyler 1994, writ denied) (op. on
reh’g) (same).
8
its brief, the Department points to two on-the-record statements made when the
case was called for trial as controverting Mother’s and Father’s affidavit
evidence. First, the Department points to the statement by Mother and Father’s
attorney when he appeared for trial on May 23—that ―I have not been able to
have contact them with them in recent weeks‖—as controverting Mother’s and
Father’s statements that their attorney had told them that he had obtained a
continuance based on his health issues. The termination trial was reset on
February 14, 2012, at the same time Mother and Father’s attorney was
substituted in, for trial on May 23, 2012. Mother and Father’s affidavit testimony
that their attorney had told them that he had obtained a continuance is not limited
to a two-week timeframe before the trial setting; their attorney’s statement that he
had been unable to have contact with them in recent weeks does not controvert
Mother’s and Father’s affidavit testimony. The Department also points to the on-
the-record statement by its employee that Mother and Father ―are aware of this
hearing.‖ Again, this statement by a Department employee, however, does not
controvert Mother’s and Father’s affidavit testimony that their attorney had told
them that a continuance had been granted. Because Mother’s and Father’s
explanation or excuse for failing to appear at the trial setting is uncontroverted,
the first prong of Craddock was established.
9
If Mother and Father are required to satisfy Craddock’s second prong,6 the
record establishes, and the Department concedes, that they did so.7
Concerning the third prong of Craddock, the Department argues that the
Family Code’s mandatory dismissal deadline—which would have run within ten
days of the motion for new trial hearing—prevented Mother and Father from
establishing the third Craddock prong, i.e., that the granting of a new trial would
not operate to cause delay or injury to the opposing party, the Department. At
the time of the hearing on Mother and Father’s motion for new trial, neither the
parties nor the trial court had the benefit of the Texas Supreme Court’s opinion in
6
A defendant who has appeared or answered (like Mother and Father)
possesses a Fourteenth Amendment due process right to constitutionally
adequate notice of a dispositive hearing or trial setting, and the failure to provide
constitutionally adequate notice excuses the defendant from the requirement of
satisfying the second Craddock prong because to so require would constitute a
further impingement of due process. See, e.g., LBL Oil Co., v. Int’l Power Servs.,
Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (citing Peralta v. Heights Med. Ctr.,
Inc., 485 U.S. 80, 85–86, 108 S. Ct. 896, 899 (1988)); Lopez v. Lopez, 757
S.W.2d 721, 723 (Tex. 1988); In re Marriage of Runberg, 159 S.W.3d 194, 199–
200 (Tex. App.—Amarillo 2005, no pet.); Coastal Banc SSB v. Helle, 48 S.W.3d
796, 801 (Tex. App.—Corpus Christi 2001, pet. denied); In re Marriage of Parker,
20 S.W.3d at 818; accord Rorie v. Goodwin, 171 S.W.3d 579, 584 (Tex. App.—
Tyler 2005, no pet.) (holding that defendant filing Craddock motion for new trial
following entry of summary judgment when defendant did not receive notice of
summary judgment hearing need only satisfy first Craddock prong to obtain new
trial).
7
In its brief, the Department candidly states,
With regard to the meritorious defense prong, the Department
agrees that controverting evidence is irrelevant. In re R.R., 209
S.W.3d 112, 116 (Tex. 2006). The Department, thus concedes that
this element was satisfied.
10
In re E.R., No. 11-0282, 2012 WL 2617604, at *1–12 (Tex. July 6, 2012). In
E.R., the supreme court reversed a default termination judgment appealed more
than six months later by a mother served by publication, stating,
We appreciate the policy concerns the Department identifies. It, the
parent, and the child share an interest in a quick and final decision.
In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003). But finality
cannot trump a parent’s constitutional right to be heard. Stanley v.
Illinois, 405 U.S. 645, 646, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)
(noting that ―the Constitution recognizes higher values than speed
and efficiency‖). We have twice held that Family Code provisions
that expedite termination proceedings must yield to due
process. See In the Interest of B.G., 317 S.W.3d 250, 258 (Tex.
2010) (holding that failure to file requisite statement of appellate
points could not, consistent with due process, form a basis for
denying parent an appellate record and that Family Code section
263.405 was unconstitutional as applied to parent); In the Interest of
J.O.A., 283 S.W.3d 336, 339, 347 (Tex. 2009) (holding that despite
parents’ failure to file timely statement of appellate points, due
process required that they be allowed to appeal complaining of
ineffective assistance of counsel; ―section 263.405(i) is
unconstitutional as applied when it precludes a parent from raising a
meritorious complaint about the insufficiency of the evidence
supporting the termination order‖).
Id. at *10 (bolded emphasis added). The supreme court made clear in E.R. that
the family code provisions, like the mandatory dismissal deadline, must yield to
due process. Id.
Here, just as in E.R., the family code provisions that expedite termination
proceedings must yield to due process. The family code’s dismissal deadline
must yield to Mother’s and Father’s constitutional due process right to participate
11
in the termination trial8 after receiving constitutionally adequate notice.9 See id.;
accord R.R., 209 S.W.3d at 117 (reversing no-answer default judgment that
terminated parental rights). Thus, Mother and Father are entitled to a new trial
under Craddock’s third prong.
Having determined that Mother and Father satisfied the requisites of
Craddock, we hold that the trial court abused its discretion by denying Mother
and Father’s motion for new trial. We sustain the pertinent portion of Appellants’
seventh issue, reverse the trial court’s judgment, and remand this case for a new
trial. Because this issue is dispositive of Appellants’ appeal, we need not
address their remaining issues. See Tex. R. App. P. 47.1 (stating that appellate
court need only address every issue necessary for final disposition of the
appeal).
8
Mother and Father were deprived of the opportunity to participate in the
proceeding themselves because they were told that their attorney had obtained a
continuance. Mother and Father were deprived of the opportunity to participate
in the proceeding through their trial counsel because––unbeknownst to Mother
and Father––he withdrew when the case was called for trial, leaving them without
representation at a critical stage of the proceeding. Accord J.O.A., 283 S.W.3d
at 343 (recognizing that attorney must satisfy the requirements of rule 10 of the
rules of civil procedure in order to withdraw and stating that attorney’s failure to
do so left a father without representation at a critical stage of the proceeding);
Villegas, 711 S.W.2d at 626–27 (―The trial court should either have denied the
attorney’s motion to withdraw or granted the party’s motion for continuance; it did
neither. Therefore, we reverse the court of appeals judgment and remand for a
new trial.‖).
9
Here, just as in E.R., the Department’s allegations against Mother and
Father are serious and, ultimately if proven, may justify terminating their parental
rights.
12
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: November 29, 2012
13