COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-117-CV
IN THE INTEREST OF D.K.,
A.S., J.K., A.H., AND F.H.,
MINOR CHILDREN
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FROM THE 323 DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Mother appeals the order terminating her parental rights to
D.K., A.S., J.K., A.H., and F.H. In three issues, Mother argues that she did not
receive notice of the final trial, that the evidence is legally insufficient to show
that the Texas Department of Family and Protective Services (TDFPS) used
diligence in prosecuting the case, and that the trial court erred by failing to
1
… See Tex. R. App. P. 47.4.
grant a six-month extension under Texas Family Code section 263.401(b). We
will affirm.
II. B ACKGROUND2
Mother struggled with a heroin addiction and placed all five of the children
in their maternal grandmother’s care, despite that her mother was gravely ill.
The maternal grandmother ultimately could not take care of the children, and
CPS received referrals for neglectful supervision. CPS then placed all five
children with D.K.’s paternal grandmother.
At the termination trial on March 16, 2009, the caseworker testified that,
to her knowledge, Mother had not seen the children from July 2008 through
March 2009 and that D.K.’s paternal grandmother provides a stable home for
the five children and plans to adopt them. The State moved for Mother’s rights
to be terminated on the ground of constructive abandonment. 3 At the
conclusion of the termination trial, the trial court granted the State’s petition.4
2
… Because Mother does not challenge the factual sufficiency of the
evidence supporting the termination, we omit a detailed factual background.
3
… This is one of multiple grounds that the State pleaded in its petition.
4
… The order of termination states that Mother’s parental rights were
terminated because she constructively abandoned the children and because it
was in the children’s best interest to terminate Mother’s parental rights.
2
Mother timely filed a motion for new trial, which was overruled by
operation of law. Mother now appeals.
III. S IX-M ONTH E XTENSION
On the day of the termination trial, Mother’s attorney filed a motion for
extension stating that “[Mother’s] mother died this past December and it has
been an emotional hardship for her.” After hearing arguments, the trial court
denied the motion. In her third issue, Mother argues that the trial court erred
by failing to grant a six-month extension under Texas Family Code section
263.401(b).
We review a trial court’s determination on a motion for extension for an
abuse of discretion. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth
2008), pet. denied, 260 S.W.3d 462. Section 263.401 of the Texas Family
Code provides that, unless the court has commenced the trial on the merits or
granted an extension, it must dismiss TDFPS’s suit for termination on the first
Monday after the first anniversary of the date the court appointed TDFPS as
temporary managing conservator in a suit affecting the parent-child relationship.
Tex. Fam. Code Ann. § 263.401(a) (Vernon 2008). The statute also provides
that the trial court may extend this deadline for up to 180 days if the court
finds that extraordinary circumstances necessitate the child’s remaining in the
temporary managing conservatorship of the TDFPS and that continuing the
3
appointment of TDFPS as temporary managing conservator is in the best
interest of the child. Id. § 263.401(b).
Here, on the day of the termination trial, Mother’s attorney urged her
motion for extension. As set forth above, Mother’s attorney requested the
extension based on the fact that the children’s maternal grandmother had died
during December and that it had been an emotional hardship for Mother.
Mother’s attorney also argued that because of Mother’s transient lifestyle, she
was having difficulty locating Mother to get the services Mother needed to
work for her service plan. The attorney ad litem opposed the motion, arguing,
“I believe the children are interested in some finality in this case. And they’ve
been in their current placement for quite sometime. And I think the children
would desire this to be resolved and have a final placement.” The trial court
thereafter denied the motion.
Mother did not appear at the trial to testify, nor does the record contain
an affidavit from her regarding the extraordinary circumstances that would
require an extension. Because Mother presented no evidence in support of her
motion for extension, she cannot demonstrate that the trial court abused its
discretion by denying it. See D.W., 249 S.W.3d at 648. Moreover, it was
entirely within the trial court’s discretion to determine that Mother—who had
not seen the children throughout the time this case was pending—had failed to
4
present any extraordinary circumstances that would necessitate an extension.
See In re L.D.K., No. 02-07-00288-CV, 2008 WL 2930570, at *3 (Tex.
App.—Fort Worth July 31, 2008, no pet.) (mem. op.) (holding that father, who
argued that the service plan given to him was deficient, had failed to present
any extraordinary circumstances that would necessitate an extension); Shaw
v. Tex. Dep’t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL
2504460, at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.)
(holding that appellant had not shown that needing more time after failing to
make progress on the service plan for eight months amounted to “extraordinary
circumstances” that necessitated the granting of the continuance). Thus, we
hold that the trial court did not abuse its discretion by denying the motion for
extension,5 and we accordingly overrule Mother’s third issue.
IV. N OTICE OF F INAL T RIAL
In her first issue, Mother argues that she did not receive notice of the
final trial setting. In essence, Mother argues that the trial court erred by
5
… To the extent that Mother intended to move for a continuance through
her motion for extension, she did not comply with the requirements of rule 251
and therefore failed to preserve her complaint for our review. Cf. Taherzadeh
v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied)
(holding that appellant’s oral motion for continuance without supporting
affidavit failed to preserve his complaint for appellate review).
5
denying her motion for new trial and that she is entitled to a new trial because
of the alleged lack of notice of the termination trial.
Rule 8 requires all communications from the court or other counsel with
respect to a suit to be sent to the attorney in charge. Tex. R. Civ. P. 8.
Neither the trial court nor the clerk may communicate directly with a party
represented by counsel. The notice requirements for setting contested cases
are satisfied by serving the attorney of record. Tex. R. Civ. P. 21a, 245;
Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.—Corpus Christi 1994, no
writ). An attorney’s knowledge of a trial setting is imputed to his client.
Magana v. Magana, 576 S.W.2d 131, 134 (Tex. Civ. App.—Corpus Christi
1978, no writ). Furthermore, a party challenging a trial court’s judgment for
lack of notice has the burden of proving there was no notice and must produce
evidence in addition to an allegation in a motion for new trial. Welborn-Hosler
v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14th Dist.] 1994, no
writ).
Mother’s attorney received notice of the termination trial setting and
appeared on Mother’s behalf.6 At trial, Mother’s attorney stated that she had
6
… The record reveals that there was some confusion over the time of the
termination trial setting; the trial court’s order specified that it would be at 9:30
on March 16, while a letter from CPS to Mother’s attorney specified that the
hearing would occur at 3:00 on March 16. The trial court heard the termination
6
notified Mother of the March 16, 2009 termination trial by certified mail, return
receipt requested and that she had received the green card back; however,
Mother did not appear for the trial.
Thus, the trial court could have denied Mother’s motion for new trial on
the ground that notice of the termination trial setting was properly served on
her counsel, as well as Mother herself, and that her failure to appear at the
termination trial was the result of her conscious indifference. See In re S.H.,
No. 02-05-00174-CV, 2006 WL 59354, at *3 (Tex. App.—Fort Worth Jan. 12,
2006, no pet.) (mem. op.). We therefore hold that the trial court did not abuse
its discretion by denying Mother’s motion for new trial. We overrule Mother’s
first issue.
V. D UE D ILIGENCE IN P ROSECUTING C ASE
In her second issue, Mother argues that the evidence is legally insufficient
to show that TDFPS used diligence in prosecuting the case. Mother argues that
the trial court’s conclusion—that TDFPS made a diligent effort to locate her and
afford her a reasonable opportunity to request appointment as a managing
conservator—is erroneous because (1) TDFPS failed to use diligence to bring
Mother into the case, and (2) TDFPS failed to use diligence to work with
trial at 9:30, but neither Mother’s attorney nor Mother appeared. The trial
court, however, repeated the termination trial at 3:00.
7
Mother during the case. Mother argues that the alleged five-month delay 7 in
bringing her into the case deprived her “of the opportunity to meaningful[ly]
participate in the termination of her parental rights or to make substantial
efforts to avoid that.”
As an initial matter, we note that Mother did not object in the trial court
on the grounds that she argues here. To preserve a complaint for appellate
review, a party must have presented to the trial court a timely request,
objection, or motion that states the specific grounds for the desired ruling, if
they are not apparent from the context of the request, objection, or motion.
Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and
the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991)
(op. on reh’g).
Earlier this year, we decided a case involving a similar issue: a father
argued that delayed service deprived him of his right to due process under
Texas and federal law by denying him a meaningful opportunity and right to
reunite with his children. See In re E.J.C., No. 02-08-00295-CV, 2009 WL
885950, at *10 (Tex. App.—Fort Worth Apr. 2, 2009, no pet.) (mem. op.). In
7
… CPS filed its petition on May 29, 2008, and Mother signed a waiver
of service on October 17, 2008. During those intervening five months after
trying to serve Mother at three different addresses, CPS filed an affidavit for
citation by publication on August 22, 2008.
8
that case, the father had eight months to prepare for trial, we held that the
father’s delayed-service complaint did not rise to the level of fundamental error,
and because he did not raise his complaint in the trial court, he waived it. See
id. at *11. We likewise hold that because Mother had five months 8 to prepare
for trial, Mother’s delayed-service complaint does not rise to the level of
fundamental error, and because she did not raise her complaint in the trial court,
she waived it. Accordingly, we overrule her second issue.9
VI. C ONCLUSION
Having overruled Mother’s three issues, we affirm the trial court’s
judgment terminating her parental rights to D.K., A.S., J.K., A.H., and F.H.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DELIVERED: December 31, 2009
8
… As noted above, Mother filed a waiver of citation in October 2008,
and the termination trial was held in March 2009.
9
… Moreover, even assuming that Mother had preserved her diligence
complaints, she would not prevail. First, the family code does not impose a
deadline for service of process other than section 263.401’s one-year dismissal
deadline. See E.J.C., 2009 WL 885950, at *10. And second, Mother’s
parental rights were terminated based on constructive abandonment (a ground
that she did not challenge in this appeal), not a failure to work the services in
her service plan; thus, Mother fails to show how TDFPS’s working with her
more during the case could have changed the outcome of her case.
9