Opinion
No. 05-17-00140-CV
06-26-2017
IN THE INTEREST OF L.G.T., A MINOR CHILD, Appellant
On Appeal from the 429th Judicial District Court Collin County, Texas
Trial Court Cause No. 429-52455-2016
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Boatright
The father of L.G.T. ("Father") appeals the termination of his parental rights. Following a bench trial, the trial court found that (1) Father had committed four statutory predicate acts supporting termination, and (2) termination of Father's parental rights was in L.G.T.'s best interest. Because there is no evidence that Father received reasonable notice of the trial setting, we reverse the trial court's judgment and remand the cause for new trial.
BACKGROUND
Father is incarcerated as a result of his conviction for assault bodily injury/family violence. L.G.T.'s mother ("Mother") filed a petition on May 3, 2016, seeking to terminate Father's parental rights. She pleaded five separate grounds for termination, including that Father "knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and the inability to care for the child for not less than two years from the date this petition is filed." See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q) (West Supp. 2016) (grounds for involuntary termination). Mother filed an amended petition on May 9, 2016, reciting that Father could be served with citation in the Dallas County Jail. The record contains a return of service, and Father appeared and answered on May 23, 2016.
The trial court signed a scheduling order on June 3, 2016, setting the case for trial on August 29, 2016. On August 3, 2016, Father filed a motion for continuance of the August 29 trial date, explaining that he had not been convicted of an offense but instead was "presently incarcerated awaiting trial to resolve this matter." Citing family code section 161.201(a), Father requested a continuance "until the criminal charges are resolved." See TEX. FAM. CODE ANN. § 161.2011(a) (West 2014) (if criminal charges are filed against parent "that directly relate to the grounds for which termination is sought," parent may request continuance of final trial until charges resolved).
The record reflects that on August 29, 2016, Mother's counsel appeared, and the trial court noted that (1) Father was in custody and had filed a motion for continuance, and (2) no amicus attorney had been appointed. The case did not proceed to trial.
On September 1, 2016, the trial court signed an order appointing Brook Fulks as amicus attorney pursuant to family code section 107.021. TEX. FAM. CODE ANN. § 107.021(a)(1) (West 2014) (discretionary appointment of amicus attorney). Fulks wrote a letter to Father at the John Middleton Transfer Facility in Abilene explaining her appointment and asking to speak with him so that she could make a report to the trial court. She also explained that the case was "set for final trial on December 5, 2016, at 9:00 a.m. in the 429th Judicial District Court of Collin County." The letter, dated September 28, 2016, was directed to Father individually and was sent by certified mail, return receipt requested. The record contains a green card showing receipt by W. Gladden as "agent" on October 4, 2016.
On November 10, 2016, Father filed a "Request for Appointment of Attorney Ad Litem to Represent Respondent and Motion for Issuance of Bench Warrant or in the Alternative, Motion for Continuance." He explained that he was indigent and requested that the court "appoint an attorney ad litem to represent Respondent's interests in this lawsuit." He also explained that he was "presently incarcerated in the NJ-Baten Unit of the Texas Department of Criminal Justice—Correctional Institutions Division in Pampa, Texas, as a result of the conviction for a felony offense." He stated that he was entitled to be present at trial, and argued that the child's best interest could not be fairly determined "without Respondent being at the hearing to testify on his own behalf and to assist counsel in the presentation of evidence, cross-examination of witnesses, and defense of this suit." He requested that the court issue a bench warrant to permit him to appear at trial, or in the alternative, to continue the trial date until his release from custody.
The case did not proceed to trial on December 5, 2016. On January 5, 2017, the trial court sent a letter addressed to "Texas Department of Criminal Justice, Baten Unit (NJ)" in Pampa, Texas, stating:
Greetings,The letter also contained contact information for the court coordinator and bailiff, and was signed by the trial court as "Judge Presiding."
This letter is to inform you that inmate [identification of Father by name and TDC number] has been ordered to appear telephonically for a Trial Before the Court in cause #429-52455-2016; In the Interest of [L.G.T.].
[Father] is ordered to be available by phone on January 30, 2017 at 9:00 am.
Inmate: [Father's Name]
TDC #: [number]
Trial Date: January 30, 2017
Trial Time: 9:00 am
The case proceeded to trial on January 30. Mother, her counsel, and Fulks appeared in person. Father appeared by telephone. When the trial court asked if Father wished to make any opening statement, Father replied:
I do. I wanted to start off by letting y'all know that I received no information of this hearing by either the Court or the petitioner's attorney. This is the first I've heard of this hearing. I have a letter in front of me dated January 5th from the presiding judge that was not delivered to me. And I am due representation of that. I'd like to put this on the record. I haven't been given time to know that there's a trial proceeding. So, I had no idea that was happening today.(Emphasis added). The court then asked for a response. Mother's attorney Lisa Hernandez explained that (1) Father was served a copy of Mother's second amended petition with a letter dated January 10, and (2) "at the last court hearing," the court "made arrangements with the prison for [Father] to be present today." She concluded, "I have no ability to control what they told him or they didn't tell him. It was my understanding that everyone at the prison was made aware of today's hearing and why we were here today." The January 10 letter was not offered or admitted into evidence, and is not included in the record.
Fults in turn referred to her September 28 letter and green card receipt informing Father of the December 5 trial date. She explained that "we did appear on that day and communicated with the prison to reset to this date," and concluded, "[s]o, I do believe he knew that there was a final trial setting in this case."
The trial court responded: "Okay. Then you may proceed. I will deny the oral Motion for Continuance as interpreted by the Court."
Mother then presented her case for termination, including evidence that Father was imprisoned because he had been convicted of family violence directed against another victim, and because his probation had been revoked on his conviction for family violence against her. Photographs were admitted into evidence showing injuries Father inflicted on Mother. Mother also introduced evidence that Father was not scheduled for release from custody until May, 2020, had been denied parole in December, 2016, and was not scheduled to be reviewed for parole again until January, 2018. Mother offered evidence that one of the reasons specifically stated for denial of Father's parole was the nature of his offense:
The record indicates the instant offense has elements of brutality, violence, assaultive behavior, or conscious selection of victim's vulnerability indicating a conscious disregard for the lives, safety, or property of others, such that the offender poses a continuing threat to public safety.Mother offered additional evidence to establish four grounds for termination, including Father's failure to support, visit, or contact L.G.T. for the statutorily-designated time periods. Father does not challenge the sufficiency of the evidence to support these grounds.
Again, after Mother had presented evidence and rested, Father stated:
I'm not prepared for this proceeding. I'd like to note on record that I was not given the ample opportunity to prepare for this. The letter that they sent to me on the 15th of January was a second amended pleading and a letterhead stating that it had been filed on the, I believe, the 15th of January. . . . There is nothing here that states any dates for this hearing. I have no representation, and I'm being forced into a proceeding that I am not prepared for. That being said, I'll take the petitioner for questions.(Emphasis added). The court responded, "I think he's saying that he is ready for you to question him, Ms. Hernandez."
On cross-examination, Father testified that he knew suit had been filed to terminate his parental rights. He conceded that he had filed papers in the case. He testified that he did not hire an attorney because he "did not have adequate funds." He acknowledged receipt of Mother's second amended petition. He admitted he had been sentenced to 10 years' confinement, and that his projected release date was not until 2020. On questioning by Fults, Father admitted receipt of the September 28 letter informing him of the December 5 trial date. But there was no evidence that Father received notice of the January 30 trial setting.
Fults also informed the trial court of the efforts she had undertaken as amicus attorney, including communications with Father and Mother, investigation of Father's criminal background, and an in-home interview with Mother and her current husband. She stated, "[a]nd the amicus attorney opinion, Your Honor, it's in the best interest of this child that [Father's] parental rights are terminated."
The court stated, "Then, given that, based on all the evidence and the testimony, the Court does terminate father's parental rights." On the same date, the trial court signed an order of termination reciting its findings, by clear and convincing evidence, of four statutory grounds for termination, and that termination was in the best interest of the child.
This appeal followed. With his notice of appeal, Father filed a pauper's oath and request for appointment of attorney on appeal. By order dated February 27, 2017, this Court ordered the trial court to conduct a hearing to determine whether counsel should be appointed to represent Father in this appeal. In the trial court, Father was found indigent, and appellate counsel was appointed who has filed a brief on Father's behalf.
Father asserts two issues. First, Father complains that the trial court erred by proceeding to trial when he did not have notice of the reset trial date. Second, he contends the trial court abused its discretion by failing to appoint an attorney to represent him at trial. Because our disposition of Father's first issue requires reversal of the trial court's judgment, we do not reach his second issue.
APPLICABLE LAW
A defendant who has filed an answer has a right to notice of all hearings as a matter of constitutional due process. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam); In re I.L.S., 339 S.W.3d 156, 159 (Tex. App.—Dallas 2011, no pet.). The law presumes that a trial court will hear a case only after proper notice to the parties. McLeod v. Gyr, 439 S.W.3d 639, 654 (Tex. App.—Dallas 2014, pet. denied). An appellant asserting lack of notice bears the burden to rebut this presumption. In re A.D.A., 287 S.W.3d 382, 387 (Tex. App.—Texarkana 2009, no pet.).
In suits affecting the parent-child relationship, including termination proceedings, procedures for contested hearings "shall be as in civil cases generally." TEX. FAM. CODE ANN. § 105.003 (West 2014) (procedure for contested hearing); see also id. § 101.032 (suit affecting parent-child relationship includes suit for termination of parent-child relationship). Under rule 21a, Texas Rules of Civil Procedure, notice may be served "by delivering a copy to the party to be served, or to the party's duly authorized agent or attorney of record," "in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct."
Notice properly sent pursuant to rule 21a raises a presumption that notice was received. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (per curiam). "But we cannot presume that notice was properly sent; when that is challenged, it must be proved according to the rule." Id. Rule 21a allows service of notice by anyone competent to testify. Id. "A certificate by a party or an attorney of record, or the return of the officer, or the affidavit or any other person showing service of a notice shall be prima facie evidence of the fact of service." TEX. R. CIV. P. 21a(e). But "[n]othing herein shall preclude any party from offering proof that the document was not received." Id. In Mathis, where the only proof of service was "the oral assurance of counsel," there was no presumption that notice was received. Mathis, 166 S.W.3d at 745.
Under rule 245, Texas Rules of Civil Procedure, the parties must be given "reasonable notice of not less than forty-five days" of a first setting for trial. TEX. R. CIV. P. 245. The trial court "may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties." Id. A party may waive an objection to lack of notice in compliance with rule 245 if it proceeds to trial and fails to object to the lack of notice. Fifteen Thousand One Hundred Ninety Six Dollars v. State, No. 03-16-00015-CV, 2016 WL 6833102, at *2 (Tex. App.—Austin Nov. 17, 2016, no pet.) (mem. op.). But absent waiver, failure to give the required notice constitutes lack of due process and is grounds for reversal for new trial. Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002, no pet.).
ANALYSIS
The record shows that the only letter containing the date of trial was directed to "Texas Department of Justice," not to Father. The letter's only instruction was that Father be "ordered to be available by phone" at 9:00 a.m. on the date of trial. The letter does not contain any instruction to the warden or other person to deliver the notice to Father, and the letter's statement that Father "has been ordered to appear telephonically for a Trial Before the Court" at least suggests that a separate order already had been signed and served directing Father to appear. The warden complied with the letter's only instruction, to have Father "available by phone on January 30, 2017 at 9:00 a.m." The record is devoid of any proof that Mother, her counsel, Fults, or any other person sent notice of the trial setting to Father in accordance with rule 21a.
The evidence showed that Father (1) knew Mother had filed suit to terminate his parental rights; (2) knew the case had been set for trial on two previous dates; (3) had filed pleadings and motions requesting relief from the trial court, including accommodation for him to attend and participate in the trial; (4) had received a copy of Mother's operative pleading prior to trial; and (5) had communicated with Fults, the amicus attorney. Nonetheless, there is nothing in the record to demonstrate that Father received reasonable notice of the January 30 trial setting. The only evidence is (1) Father's testimony that he did not receive notice until the morning that trial began, and (2) a letter that was not directed to Father and did not reflect delivery to Father.
"If a timely answer has been filed in a contested case or the defendant has otherwise made an appearance, due process rights are violated when a judgment is subsequently entered without the party having received notice of the setting of the case . . . ." In re K.M.L., 443 S.W.3d 101, 118-19 (Tex. 2014) (citing Peralta v. Heights Med. Ctr., 485 U.S. 80, 86-87 (1988)). K.M.L. also involved a father who appeared at trial and participated in the proceedings without moving for a continuance. See id. Similarly, the father denied receiving notice of the trial setting, and as here, the record did not show service of actual notice of the trial setting. Id. The father appeared at trial under subpoena "and, according to his testimony, was driven by a district attorney or possibly a police officer." Id. at 119.
After his parental rights were terminated, the father in K.M.L. appealed, complaining of the lack of notice of the trial setting. Id. The court recognized that "[t]he due process right to notice prior to judgment is subject to waiver," id., but explained that "such waiver must be voluntary, knowing, and intelligent[ ]." Id. The court declined to find a voluntary, knowing and intelligent waiver of notice where (1) father appeared under subpoena, (2) the trial court stated on the first day of trial that it was too late to appoint an attorney for the father and that "nobody would be looking out for him anymore," and (3) the father testified at trial that "I have a lot of stuff going through my head right now, and it's very difficult to sit up here, and be this nervous, and try not to burst into tears over y'all not letting me see my little girl." Id. at 119-20. The court concluded, "the record does not show that [the father] appeared voluntarily such as to waive his constitutional due process right to notice." Id. at 120. The lack of notice "render[ed] any judgment unenforceable and void." Id.
Here, both at the beginning of trial and at the beginning of the presentation of his case, Father objected to the lack of notice of the trial. He stated that he was "being forced into a proceeding that I am not prepared for." He complained that he had no representation by an attorney. As in K.M.L., Father did not move for a continuance, but also as in K.M.L., the record does not reflect that Father "appeared voluntarily such as to waive his constitutional due process right to notice." Id. As an incarcerated inmate, Father had no choice but to appear whenever the prison officials so directed.
Although Mother argues that Father's denial of notice was inarticulately expressed ("I have a letter in front of me dated January 5th from the presiding judge that was not delivered to me."), Father also told the court unequivocally that he had not received notice until the morning of trial ("This is the first I've heard of this hearing."). Mother also argues that the trial court was not required to believe Father, and that Father failed to overcome the presumption that "a trial court only hears a case after proper notice." See Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.—Dallas 1993, writ dism'd) (law presumes proper notice of trial; to overcome presumption "appellant must affirmatively show lack of notice"). But neither Mother nor Fults directed the trial court to any evidence that Father had received the "reasonable notice" required by rule 245 that the case would proceed to trial on January 30. The only evidence in the record, a letter that was not directed to Father and did not reflect service on Father, supported Father's statement that he did not receive notice. Cf. id. at 907 (defendant did not meet burden to overcome presumption where evidence included testimony of opposing counsel that he gave notice by telephone, and letter in court's file addressed to defendant informing him of specific date on which case had been set for trial).
In Smith v. Holmes, 53 S.W.3d 815 (Tex. App.—Austin 2001, no pet.), a post-answer default judgment was rendered against Smith. He filed a motion for new trial supported by an unsworn declaration stating that he had not received notice of the trial setting. Id. at 817. The motion was overruled by operation of law. Id. On appeal, Smith contended that trial without notice violated his due process rights. Id. Appellees presented evidence that they mailed notice by certified mail, but the green card was signed by someone other than Smith, "indicating that the trial-setting letter arrived at the prison where Smith was incarcerated." Id.
Smith, however, unequivocally denied receipt of the notice, overcoming any presumption that because the notice was mailed, he received it. Id. at 818. The court explained, "[a]fter Smith denied that he received notice, appellees were required to do something more than show that someone at the prison's address had received the notice. They did not introduce any other evidence to show that the signer of the green card or anyone else delivered the notice to Smith." Id.
Unlike Father's statements on the record here, Smith's declaration was in support of a motion for new trial, so that the trial court was required to accept it as true. Id. On the other hand, as in Smith, the evidence presented to the trial court showed only that someone at the prison other than Father received the notice. Id. Here, no presumption arose under rule 21a because there was no certificate of service that constituted prima facie evidence of the fact of service. See Mathis, 166 S.W.3d at 745 (under rule 21a, certificate by person competent to testify is prima facie evidence of fact of service). The court in Smith concluded that because there was no evidence of delivery of the notice to Smith, new trial was required. Smith, 53 S.W.3d at 818.
Mother also argues that Father failed to preserve his complaint because he did not file a motion for new trial. A rule 245 objection to lack of notice made only in a motion for new trial, however, is untimely and preserves nothing for review. In re A.H., No. 2-06-211-CV, 2006 WL 3438179, at *1-2 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem. op.). At trial, Father both testified to and objected to the lack of notice, and the trial court overruled his objection, although construing Father's complaint as a motion for continuance. See TEX. R. APP. P. 33.1 (complaint to and ruling by trial court required to preserve error for appeal); cf. In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (failure to preserve constitutional complaint waived issue on appeal). We conclude Father did not waive his objection by failing to file a motion for new trial.
We sustain Father's first issue.
CONCLUSION
We reverse the trial court's judgment and remand for new trial.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE 170140F.P05
JUDGMENT
On Appeal from the 429th Judicial District Court, Collin County, Texas
Trial Court Cause No. 429-52455-2016.
Opinion delivered by Justice Boatright; Justices Evans and Stoddart, participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial.
It is ORDERED that appellant Michael Aaron Taylor recover his costs of this appeal from appellee Nedra Lee Bounds. Judgment entered this 26th day of June, 2017.