Opinion
NO. 01-17-00214-CV
07-03-2018
MONICA SHAW, Appellant v. HARRIS COUNTY GUARDIANSHIP PROGRAM, Appellee
On Appeal from the County Probate Court No. 2 Harris County, Texas
Trial Court Case No. 431155
MEMORANDUM OPINION
Appellee Harris County Guardianship Program serves as Doris Davis's guardian. At issue here, the Guardianship Program moved to terminate all contact between appellant Monica Shaw and Doris Davis. The probate court granted the motion.
Shaw appeals, arguing that (1) she received inadequate notice, (2) the probate court applied the incorrect standard in reviewing the merits of the motion, and (3) she was denied the right to a neutral and detached magistrate.
We find no reversible error and affirm.
Background
In 2015, the Harris County Guardianship Program was appointed Guardian of the Person and Estate of Doris Davis. On February 3, 2017, the Guardianship Program moved to terminate all contact between Davis and Monica Shaw.
Shaw is the niece of Davis's ex-husband. Shaw was a party to the guardianship proceedings before the Guardianship Program filed this motion. In fact, Shaw previously moved to be appointed Davis's successor guardian.
The Guardianship Program's motion to terminate contact included a statement of facts detailing incidents of Shaw's contact with Davis. The motion argued that termination was necessary because of Shaw's noncompliance with and continued disregard for the Guardianship's authority and Davis's personal care home, and that contact with Shaw was detrimental to Davis.
The motion certified that it had been sent, via fax, to Andrew McGee, Shaw's counsel at the time. The Harris County Clerk issued a personal citation addressed to Shaw commanding her "to appear by filing a written contest or answer on said Motion to Terminate All Contact Between Monica Shaw and Doris Davis . . . on or before 10:00 o'clock a.m. of the Monday next after the expiration of 10 days after the date of service."
On February 16, 2017, the Guardianship Program filed a notice of hearing for "a hearing for [the] Motion to Terminate All Contact Between Monica Shaw and Doris Davis" to be held on February 27, 2017 at 10:00 a.m. in Probate Court Two in the Harris County Civil Courthouse. The notice of hearing also certified that the county attorney sent notice of the hearing by fax to McGee. Shaw's new counsel, Holly Crampton, entered an appearance on February 23, 2017.
McGee withdrew as Shaw's counsel on February 27, 2017.
On February 24, 2017, Shaw filed her First Amended Special Exceptions, Objections, Opposition, and Response Subject to Objections to the "Motion to Terminate All Contact Between Monica Shaw and Doris Davis." She also filed a Motion to Quash Service and Reset Hearing. Shaw specially excepted to the Motion on multiple grounds, arguing in relevant part that:
• "It lacks any basis in law and should be ordered to be repled or be dismissed. It also lacks any basis in fact, being supported by a wholly hearsay affidavit, which affidavit was not 'served' upon Monica Shaw."
• "Service of the pleading is defective and incomplete and violates the rights of Monica Davis to due process of law under the Fourteenth Amendment to the United States Constitution.
• "Monica Shaw is entitled to a reasonable time to prepare and defend against the said "Motion to Terminate All Contact Between Monica Shaw and Doris Davis," however, a hearing on the merits was set by
Plaintiff for the exact moment in time when Monica Shaw's written answer to the said pleading must be filed and is therefore a further deprivation of Monica Shaw's right to a meaningful hearing and due process of law under the Fourteenth Amendment to the United States Constitution found at Art. 1 § 19. The hearing of February 27, 2017, should be reset for no earlier than 45 days from the date Respondent's answer is due. T.R.C.P. 245."
In her prayer for relief, Shaw asked the court to quash service of the motion, set her special exceptions for a hearing "prior to the final hearing setting," reset the case, provide her 45 days' notice of hearing pursuant to Rule 245 of the Texas Rules of Civil Procedure, and, "[u]pon hearing the merits of this matter," dismiss the motion.
On February 27, 2017, the probate court held a hearing on the Guardianship Program's motion. At the hearing, Shaw contended that she was served with only two pages of the motion and that her former counsel, McGee, learned of the hearing through her. McGee (prior counsel), who was also present, informed the court that his fax machine had not been working.
Specifically, Shaw's new counsel asserted that Shaw notified her about the motion, and counsel then discovered the setting and notified Shaw of the hearing. Shaw, in turn, informed her prior counsel.
The court decided to "go ahead and hold the hearing" because Shaw "had notice of the hearing" and her "previous counsel had notice of what was filed." Shaw argued she was entitled to 45 days' notice of the hearing pursuant to Rule 245 of the Texas Rules of Civil Procedure. The court responded: "It's a hearing. It's not a final trial."
Following the hearing, the probate court ordered the termination of all contact between Shaw and Davis. The probate judge noted on the record that "if [Shaw] wants to apply to get some kind of monitored visitation at some point in the future, she may do that; but it's going to have to be monitored." The court also explained that it has "continuing jurisdiction over Ms. Davis. If there's a reason . . . to change anything about what's going on with her, that can be brought up and should be brought up at anytime . . . by an appropriate motion."
Discussion
Shaw challenges (1) the notice she received; (2) the standard the court applied; and (3) the judge's neutrality. We address each in turn.
1. Adequacy of Notice
In her first and second issues, Shaw argues that she was given inadequate notice of the hearing in violation of the Texas Rules of Civil Procedure (in particular, Rule 245) and her due process rights. We disagree.
A. Background Principles - Access to Wards
Under the Texas Estates Code, "[u]nless limited by a court or otherwise restricted by law, a ward is authorized . . . to unimpeded, private, and uncensored communication and visitation with persons of the ward's choice, except that if the guardian determines that certain communication or visitation causes substantial harm to the ward." TEX. EST CODE § 1151.351(b)(16). The Code enables a guardian to "limit, supervise, or restrict communication or visitation, but only to the extent necessary to protect the ward from substantial harm." Id. § 1151.351(b)(16)(A).
When restrictions on visitation have been imposed, the Code provides that "the ward may request a hearing to remove any restrictions on communication or visitation imposed by the guardian under Paragraph (A)." Id. § 1151.351(b)(16)(B). Likewise, "[a] relative of a ward may file an application with the court requesting access to the ward, including the opportunity to establish visitation or communication with the ward." Id. § 1151.055(b).
B. Statutory Notice Requirements
Shaw argues that Rule 245 of the Texas Rules of Civil Procedure required the court to afford her 45 days' notice before the hearing on the motion to terminate all other contact with Davis. See TEX. R. CIV. P. 245 ("The court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties[.]"). She contends that the trial court committed reversible error because she did not receive 45-days' notice of the hearing.
The Texas Rules of Civil Procedure apply in probate matters, however, only when the rules do not conflict with specific provisions in the Estates Code. See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); see also Valdez v. Robertson, No. 01-14-00563-CV, 2016 WL 1644550, at *4 (Tex. App.—Houston [1st Dist.] April 26, 2016, no pet.) (mem. op.) ("The rules of civil procedure apply in probate matters, except where a rule conflicts with a specific provision of the Estates Code."); In re Estate of Hoelzer, 310 S.W.3d 899, 902 (Tex. App.—Beaumont 2010, pet. denied) (same).
The Estates Code expressly and unambiguously addresses notice requirements in guardianship proceedings. Specifically, section 1051.001 of the Texas Estates Code provides that "a person is not required to be cited or otherwise given notice in a guardianship proceeding except in a situation in which this title expressly provides for citation or the giving of notice." TEX. EST. CODE § 1051.001(a) (emphasis added). As section 1051.001 contemplates, the Estates Code delineates specific notice requirements in certain circumstances. For instance, the Code requires the person filing an application for guardianship to provide notice of the application to (1) each adult child of the proposed ward; (2) each adult sibling of the proposed ward; (3) the administrator of a nursing home facility or similar facility in which the proposed ward resides; (4) the operator of a residential facility in which the proposed ward resides; (5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward; (6)-(8) a person designated to serve as guardian of the proposed ward; and (9) each adult named in the application as an "other living relative" of the proposed ward within the third degree by consanguinity, if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child. Id. § 1051.104; see also id. § 1051.101 ("On the filing of an application for guardianship, notice shall be issued and served as provided by this subchapter."). The Estates Code also provides that the court may require notice. Id. § 1051.001(b).
Moreover, section 1051.201 of the Estates Code provides that "[a] citation or notice required by this title shall be issued, served, and returned in the manner specified by written order of the court in accordance with this title and the Texas Rules of Civil Procedure if: (1) an interested person requests that action; (2) a specific method is not provided by this title for giving the citation or notice; (3) a specific method is not provided by this title for the service and return of citation or notice; or (4) a provision with respect to a matter relating to citation or notice is inadequate." TEX. EST. CODE § 1051.201.
We take the statute as it is written, and the Estate Code establishes three options for notice requirements: (1) "a person is not required to be cited or otherwise given notice in a guardianship proceeding"; (2) an exception to that rule applies because the case involves a situation in which the Code expressly sets forth other notice requirements; or (3) the court nonetheless requires certain notice practices. Id. § 1051.001 (emphasis added). Here, Shaw offers no argument that this case presents an exception to the Estates Code's normal rule—she does not contend that the Estates Code expressly requires any specific notice in this case. She also offers no argument that the court nonetheless required any particular notice here. Thus, although due process and due course of law guarantees may exist apart from a statutory framework (as discussed below), the Estate Code addresses notice requirements applicable here and states that no notice is required.
Even assuming without deciding that this was a trial setting, because the Estates Code expressly addresses notice requirements, Texas Rule of Civil Procedure 245 does not apply. See Valdez, 2016 WL 1644550, at *5 (recognizing Estates Code does not provide that all interested persons must be joined in, or given notice of, a will contest, and courts have held that rule 39 "conflicts with the unambiguous language of the Probate Code" and "does not apply" to will contests); In re Guardianship of Guerrero, 496 S.W.3d 288, 291 (Tex. App.—San Antonio 2016, no pet.) (because Estates Code does not require ward's spouse to receive notice of temporary guardianship hearing, he was not entitled to notice under Rule 21); Wojcik v. Wesolick, 97 S.W.3d 335, 337-39 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("Under the unambiguous language of section 33(a) of the Probate Code, it is not necessary to join any person as a party or give notice of probate proceedings unless the Probate Code expressly so provides," so Rule 39 of the Texas Rules of Civil Procedure does not apply to will contests because it "conflicts with the unambiguous language of the Probate Code"); In re Estate of Wilson, 252 S.W.3d 708, 712 (Tex. App.—Texarkana 2008, no pet.) (Rule 21 of Texas Rules of Civil Procedure does not apply to will contests because it differs from exclusive notice procedures contained in Section 33 of Texas Probate Code).
C. Due Process
Shaw also argues that the notice here violated her due process and due course of law rights. We disagree.
Both the United States and Texas Constitutions protect the right to procedural due process. See U.S. CONST. amend. XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]"); TEX. CONST. art. I § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.").
As the United States Supreme Court has explained, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (internal quotation omitted). "Due process is flexible and calls for such procedural protections as the particular situation demands." Id. at 334, 96 S. Ct. at 902 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972)). "All that is necessary is that the procedures be tailored, in light of the decisions to be made, to 'the capacities and circumstances of those who are to be heard,' to [e]nsure that they are given a meaningful opportunity to present their case." Id. at 349 (internal citations omitted).
Texas law is in accord. The Texas Supreme Court has concluded that the "requirement of due process of law is met if the notice prescribed affords the party a fair opportunity to appear and defend his interests." Cunningham, 660 S.W.2d at 813 (citations omitted). Despite the different terms in the Texas and United States Constitutions, in this context, Texas has generally interpreted the procedural protections afforded by the Texas Constitution to mirror those provided by the federal Constitution. See Honors Acad., Inc. v. Tex. Educ. Agency, - S.W.3d. -, No. 16-0519, 2018 WL 1975025, at *4 (Tex. Apr. 27, 2018); Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995); Merritt v. Harris Cty., 775 S.W.2d 17, 21 (Tex. App.—Houston [14th Dist.] 1989, writ denied).
"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors": the private interest that will be affected; the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S. Ct. at 903.
Even if we were to assume that Shaw (the niece of Davis's ex-husband) had a liberty interest protected by constitutional due process guarantees, we cannot conclude on this record that additional process was due. In other words, we cannot conclude that the process afforded to Shaw was constitutionally insufficient when considering the interest at stake, the risk of erroneous deprivation of Shaw's liberty, the probative value of any longer notice period, and the governmental interest at in expeditiously addressing matters concerning (and protecting) the ward's best interests.
Shaw has offered no argument as to what she may have done differently had she had a longer notice period.
Shaw concedes that she had notice of the hearing and an opportunity to respond and be heard. The Guardianship Program filed its motion to terminate all contact 24 days before the hearing, and it served the motion on Shaw's counsel. Shaw filed a response to the motion (her special exceptions). She appeared at the hearing. In fact, at the hearing, Shaw's attorney argued on her behalf and cross-examined witnesses. Shaw was also present and available to testify.
This record presents no due process or due course of law violation. See In re Guardianship of Bays, 355 S.W.3d 715, 720 (Tex. App.—Fort Worth 2011, no pet.) (appellant had "been granted his opportunity to be heard and had his day in court" and received due process where he did not point to "any statutory requirement entitling him to notice prior to the hearing which he participated in;" he participated extensively in guardianship proceedings; he filed motions prior to hearing; and his counsel questioned multiple witnesses at hearing); Hardeman v. Judge, 931 S.W.2d 716, 720 (Tex. App.—Fort Worth 1996, writ denied) (appellants received due process and notice of all proceedings related to guardian's sale of ward's property where record reflected appellants' opposition on file and appellants fully and actively participated in hearings); Palermo v. Palermo, No. B14-94-00482-CV, 1995 WL 115819, at *2 (Tex. App.—Houston [14th Dist.] Mar. 16, 1995, no writ) (not designated for publication) (Family Code notice provision regarding protective orders did not violate due process; "[s]hort notice is not unreasonable or arbitrary when balanced against the statute's purpose, to protect the family. Short notice is required by the circumstances, to prevent family violence and preserve property. In addition, appellants were afforded the opportunity for a hearing with as much as 14 days['] notice, and were informed of this right[.]").
We overrule Shaw's first and second issues.
As part of her second issue, Shaw contends that the trial court erred in failing to hear her special exceptions before ruling on the merits of the Guardianship Program's motion. Notably, Shaw did not set her special exceptions for hearing, and, by granting the Guardianship Program's motion, the trial court effectively denied Shaw's special exceptions. For the same reasons that we overrule Shaw's first and second issues, we cannot conclude the trial court abused its discretion in denying Shaw's special exceptions.
Shaw also asserts a violation of her right to a jury trial. But Shaw did not request a jury trial nor raise this issue below. Thus, she did not preserve this issue for appeal. See TEX. R. APP. P. 33.1.
2. Best Interest Standard
In her third issue, Shaw argues that the trial court incorrectly applied the "best interest" standard, rather than the "substantial harm to the ward" standard, when ruling on the motion to terminate contact.
Section 1151.351 of the Texas Estates Code, titled "Bill of Rights for Wards," provides that:
[u]nless limited by a court or otherwise restricted by law, a ward is authorized . . . to unimpeded, private, and uncensored communication and visitation with persons of the ward's choice, except that if the guardian determines that certain communication or visitation causes substantial harm to the ward: the guardian may limit, supervise, or restrict communication or visitation, but only to the extent necessary to protect the ward from substantial harm[.]TEX. EST. CODE § 1151.351(b)(16) (emphasis added). Thus, the Code expressly contemplates that a guardian may limit, supervise, or restrict visitation with the ward "to protect the ward from substantial harm." But it does not specify the standard a court must use in reviewing a request by a guardian to limit visitation. And "[t]he probate court is [generally] vested with broad discretion in determining what is in the best interest of the ward[.]" Eddins v. Estate of Sievers, 789 S.W.2d 706, 707 (Tex. App.—Austin 1990, no writ.); see also In re Guardianship of Tonner, 514 S.W.3d 242, 246 (Tex. App.—Amarillo 2014), aff'd, 513 S.W.3d 496 (Tex. 2016) ("Texas also vests the trial court with broad discretion to decide both the type of guardianship needed, and the ward's best interests.") (citation omitted); In re Guardianship of Glasser, 297 S.W.3d 369, 376 (Tex. App.—San Antonio 2009, no pet.) ("The probate court has the ultimate responsibility for protection of an incapacitated person's best interest."); Bank of Tex., N.A., Trustee v. Mexia, 135 S.W.3d 356, 364 (Tex. App.—Dallas 2004, pet. denied) ("[A] trial court determines whether a guardian should be authorized to take action for a ward by evaluating the best interest of the ward."). We cannot conclude that the probate court erred in applying a "best interest" standard in reviewing the motion to terminate contact with Davis. We overrule Shaw's third issue.
3. Neutral and Detached Magistrate
In her final issue, Shaw argues that she was "deprived of a neutral and detached magistrate." She contends that the record reflects "that the court had already made a decision in the matter of the recently filed 'Motion to Terminate All Contact Between Monica Shaw and Doris Davis' before hearing any evidence in this case."
Undoubtedly, parties have a right to a fair trial, and a fundamental component of a fair trial is "a neutral and detached judge." Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App.—Houston [1st Dist.] 1994, writ denied). In assessing a claim that a judge was not neutral, we review the record for evidence of improper conduct. Id. at 39. To reverse a judgment on the ground of improper conduct of or comments by the judge, we must find (1) judicial impropriety in fact occurred, and (2) the complaining party suffered probable prejudice. Id.
Under Texas law, "opinions the judge forms during a trial do not necessitate recusal 'unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.'" Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Further, "expressions of impatience, dissatisfaction, annoyance, and even anger . . . ." do not show bias. Id. (quoting Liteky, 510 U.S. at 555-56, 114 S. Ct. at 1157). Nor do a judge's ordinary efforts at courtroom administration—including a stern and short-tempered judge's ordinary efforts at courtroom administration. Id. The trial court may maintain control in the courtroom, expedite a trial, and prevent what it considers to be a waste of time. Id. at 241.
"Such remarks may constitute bias if they reveal an opinion deriving from an extrajudicial source; however, when no extrajudicial source is alleged, such remarks will constitute bias only if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Barrientos v. Nava, 94 S.W.3d 270, 292 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
In support of her bias allegation, Shaw points to the following exchanges:
THE COURT: This is not a trial, a final trial.
MS. CRAMPTON: Well, she asked in—
THE COURT: It's a hearing. It's not a final trial.
* * *
THE COURT: What it asks for is to protect the ward, to protect the ward. I'm not going to give Ms. Shaw notice over and over and over and over again to stay away. She has notice. You knew about it a week ago, although you waited until Friday to file anything. Friday before the hearing you filed something for the first time making an appearance.
You called the court last Monday and said that's not a convenient time. I said, [w]ell, it may not be a convenient time for 20,000 people, but they're not counsel of record. So you became interested in this case when you filed a pleading on Friday. Before that, you couldn't call and ask anything about it. But it's not—[i]t's not a final trial. It's an application for an order involving the ward, not your client. Your client really doesn't have any rights vis-à-vis the ward. If you disagree with that—
MS. CRAMPTON: Yes, [y]our Honor.
THE COURT: —file a brief. Please handle it under State law, not Federal law. The first two paragraphs of your pleading said that her Constitutional rights were violated, her right of free speech and freedom of association. If I had to deal with that, we couldn't ever take care of any protected person because somebody else, somebody would come in off of the street and say, I have a Constitutional right to interfere with this person's life and, by God, I'm going to do it.
Take your best shot in Federal Court and be free—I'll be happy to have you do that. But I'm going to protect the ward. That's what this is about. I'm going to hear evidence about what protection the ward needs. Okay. You can cross-examine the witnesses if you want to. And if you want to have a hearing involving the ward—I don't think
that's a good idea - - but we'll have to deal with that later. Again, I'm not sure that your client has any rights to do that and I think it would be injurious to the ward.
* * *
THE COURT: Well, you haven't been here for the last two years to watch this case and watch [Shaw's] conduct in this case for the past two years and watch her interference with Ms. Davis' life for the last two years. I would welcome you to read the entire transcript of all the hearings that have been held and maybe get yourself up to speed a little bit so you have some facts before you make comments like that. Go ahead and call your first witness.
Under Texas law, and in the context of the entire record, these exchanges do not demonstrate judicial bias. See Dow Chem., 46 S.W.3d at 240-41; see also Barrientos v. Nava, 94 S.W.3d 270, 272 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (record did not reflect improper bias that resulted in harmful error; judge's opinions were based on evidence and testimony heard during trial); Metzger, 892 S.W.2d at 37-40 (finding no evidence that "judge's impatience was anything more than that, and no evidence of bias against [appellant] or his attorneys"; "record indicates that the judge's comments were mainly directed to the often disorderly process of the trial—a process over which the law makes him responsible.").
We overrule Shaw's fourth issue.
Conclusion
We affirm the trial court's order.
Jennifer Caughey
Justice Panel consists of Justices Higley, Brown, and Caughey.