COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00013-CV
IN THE INTEREST OF M.D.W., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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After a bench trial from which Appellant G.W. (Father) was voluntarily
absent, the visiting trial judge sitting for the trial court found by clear and
convincing evidence that Father, among other things,
8.1.1. knowingly placed or knowingly allowed [M.D.W.] to
remain in conditions or surroundings which endanger
[his] physical or emotional well-being . . . ;
8.1.2. engaged in conduct or knowingly placed [M.D.W.] with
persons who engaged in conduct which endangers [his]
physical or emotional well-being . . . [;]
1
See Tex. R. App. P. 47.4.
...
9.4.3. knowingly engaged in criminal conduct that has resulted
in [his] conviction of an offense and confinement or
imprisonment and inability to care for [M.D.W.] for not
less than two years from the date of filing the petition;
and
9.4.4. [had] been convicted or ha[d] been placed on
community supervision, including deferred adjudication
community supervision, for being criminally responsible
for the . . . serious injury of a child under the following
sections of the Penal Code . . . :
...
§ 22.011 (sexual assault).
The trial court also found by clear and convincing evidence that termination
of the parent-child relationship between Father and M.D.W. was in M.D.W.’s
best interest. Based on its findings, the trial court terminated Father’s parental
relationship with M.D.W.
Father does not challenge the sufficiency of the evidence to support the
termination of his parental relationship with M.D.W. Instead, he contends that
the trial court erred by not removing his appointed counsel and by denying his
motion for continuance and motion to extend the dismissal deadline. Because
we hold that the trial court did not reversibly err, we affirm the trial court’s
judgment.
After the Texas Department of Family and Protective Services (TDFPS)
announced ready for trial, Father’s appointed trial counsel argued an oral motion
to withdraw, a written motion for continuance, and a written motion to extend the
2
dismissal deadline. The written motions had been filed by trial counsel at 1:55
p.m. and 1:54 p.m. that day respectively, minutes before the scheduled trial
setting and less than two hours before the trial actually began. Father’s trial
counsel argued in support of the motions:
My client’s currently incarcerated. He asked that I file a
motion for a continuance for him. He’s eligible for parole in either
January or March [2013; that] is when his next hearing is scheduled
for, so he asked me to file a motion for continuance hoping that he
would get out and also for the motion for extension to give him a little
more time to try to get paroled out of prison so he has a chance to
get his son back.
We’d also ask that I withdraw from the case, and that’s in the
letter that I just had admitted into evidence in Respondent’s Exhibit
Number One. He’s doing what he can do while he’s in prison trying
to be able to get his child when he gets out. I have not received any
of the certificates or anything on the stuff that he’s done while he’s
been in there, but he stated in the letter that he’s doing everything
he can so that when he gets out he has a chance to try to get his
son back, and I’d ask that the continuance be granted and the same
with the motion for the extension of the dismissal date. He’d like to
have time to be paroled out and be able to work the services and
stuff that he needs to do to try to get his son back, so I would ask
that he be granted a six-month extension to try to get to where he
can get out and work his plan.
The trial court denied the written motions explicitly and implicitly denied the
motion to withdraw by having counsel participate in trial. 2
2
See Tex. R. App. P. 33.1(a)(2)(A); Thomas v. Long, 207 S.W.3d 334,
339–40 (Tex. 2006) (“Because a trial court cannot reach the merits of a case
without subject matter jurisdiction, a trial court that rules on the merits of an issue
without explicitly rejecting an asserted jurisdictional attack has implicitly denied
the jurisdictional challenge.” (citations omitted)); In re P.D.M., 117 S.W.3d 453,
455 (Tex. App.—Fort Worth 2003, pet. denied) (noting that by designating father
as temporary managing conservator, trial court implicitly denied grandmother’s
three motions related to her quest for conservatorship).
3
In his first issue, Father contends that the trial court erred by not removing
his appointed trial counsel. As the Supreme Court of Texas has explained, when
an attorney has been appointed in a termination case, he “cannot withdraw
without good cause and the court’s permission, and withdrawal is subject to
ethical restrictions.” 3 We review the trial court’s decision denying the oral motion
to withdraw for an abuse of discretion. 4
As Father concedes, during the pendency of the case, he waffled between
wanting different appointed counsel and wanting to represent himself pro se.
While he sent letters to the trial court seeking the removal of his appointed
counsel on more than one occasion, he did so ex parte, and the trial court
properly did not act on them. 5
3
In re B.G., 317 S.W.3d 250, 254 (Tex. 2010) (citations omitted).
4
See Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied); Elder v. Tex. Dep’t of Family and Protective
Servs., No. 03-10-00876-CV, 2011 WL 4424299, at *3 (Tex. App.—Austin Sept.
20, 2011, no pet.) (mem. op.); Sims v. Fitzpatrick, 288 S.W.3d 93, 100 (Tex.
App.—Houston [1st Dist.] 2009, no pet.).
5
See Tex. Code Jud. Conduct, Canon 3(B)(8), reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. G, app. B (West 2013) (“A judge shall not initiate, permit, or
consider ex parte communications or other communications made to the judge
outside the presence of the parties between the judge and a party, an attorney, a
guardian or attorney ad litem, an alternative dispute resolution neutral, or any
other court appointee concerning the merits of a pending or impending judicial
proceeding.”).
4
Even if Father’s argument that he had a constitutional right to proceed at
trial pro se were correct, 6 an argument that we need not resolve, 7 the evidence
indicates that Father intentionally chose not to proceed at trial. He “sent the
Courts a motion to wa[i]ve [his] rights to be at the hearing on [D]ec[.] 17th[,]” and
he “tried [himself] to stop the bench warrant.” Father’s mother testified that he
did not want to physically appear at trial because he was afraid that he would
lose his housing placement in prison and concerned that he would be sent to a
different unit:
Q [by Father’s trial counsel] And, at first, [Father] wanted to be
brought back for this hearing, is that correct?
A Yes, sir, he did.
Q And then you contacted me and I also received several letters
stating that he didn’t want to come back and also that he was
scared he would lose his spot at where he was housed in
prison and could be sent somewhere else, is that correct?
A Correct.
Father appears to argue that the trial court abused its discretion by
refusing to remove his appointed counsel because without that counsel (or new
counsel), Father would have been able to raise potential error on appeal related
to his absence from trial and a post-answer default judgment. With
6
See Faretta v. California, 422 U.S. 806, 818–21, 95 S. Ct. 2525, 2533–34
(1975). But see In re A.H.L., 214 S.W.3d 45, 52 (Tex. App.—El Paso 2006, pet.
denied) (holding that a right to self-representation is not a necessary component
of a fair parental rights termination trial).
7
See Tex. R. App. P. 47.1.
5
representation at a trial on the merits, that potential ground evaporated. 8 We are
not going to fault a trial judge for striving to complete an errorless trial on the
merits in any case, and certainly not in a parental rights termination case.
Because the evidence shows that Father deliberately absented himself from trial,
we cannot say that the trial court abused its discretion by not finding good cause
for the removal or withdrawal of his appointed trial counsel. We overrule Father’s
first issue.
In his second issue, Father contends that the trial court erred by denying
his motion for continuance. We review the trial court’s denial of a continuance for
an abuse of discretion. 9 Although verified by appointed counsel, the motion was
not filed until December 17, 2012, the day trial began. The motion was therefore
untimely under local rule 3.02. 10
8
See LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (explaining
that judgment was not post-answer default judgment because notwithstanding
husband’s absence, his counsel appeared and represented husband at trial).
9
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004);
see In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston [14th Dist.] 2002, no
pet.).
10
See Tarrant (Tex.) Loc. R. 3.02 (“A trial date cannot be postponed or
changed without the consent of the Court. Except as hereinafter provided and
unless otherwise set by the Court, any motion for continuance will be filed no
later than the Wednesday preceding the trial date and will be heard by the Court
in the courtroom at 2:00 p.m. on the Thursday preceding the trial date. Any
motion for continuance based upon facts which occur on or after the Wednesday
preceding the trial date will be filed as soon as possible and will be heard at a
time to be set by the Court.”).
6
Additionally, the motion lacks detail. The motion for continuance provides
that Father had been incarcerated since May 18, 2012 and “need[ed] additional
time to complete the services set forth in the plan”; that he “ha[d] a parole
hearing scheduled and would like additional time to complete services set forth in
the plan” if he was paroled; that he “ha[d] requested new counsel”; and that “[t]he
. . . continuance . . . [was] not sought for the purpose of delay.” The motion
provided no specifics regarding any steps completed by Father on his service
plan.
In arguing the motion, Father’s counsel presented little more in the way of
detail, noting that Father was eligible for parole in either January or March 2013
and had asked his appointed trial counsel to file the motion for continuance and
motion for extension to get “a little more time to try to get paroled out of prison so
he has a chance to get his son back.” Conceding that he had no proof, Father’s
appointed trial counsel stated that based on what Father had told him, Father
had done what he could to complete the service plan while imprisoned.
Among other things, the service plan required Father to “seek resources,
such as, counseling, parenting, and family therapy through the Texas
Department of Criminal Justice while . . . incarcerated”; to “communicate all
completions and certificates of courses while . . . incarcerated” to the CPS
caseworker; and to “stay in contact with the CPS caseworker [throughout] the
case.”
7
Without citing any authority or evidence, Father states in his brief that he
would not have been able to effectively work the services while in prison. In the
interest of clarity, we note that the CPS caseworker testified at trial that Father
had confirmed by letter that he had received the service plan in the mail, that that
had been their only contact, that she was not aware of any counseling or therapy
that he had obtained during his incarceration, and that Father had not sent her
any proof that he had completed any portion of his service plan.
Rule 251 of the civil rules of procedure provides that no continuance shall
be granted “except for sufficient cause supported by affidavit, or by consent of
the parties, or by operation of law.” 11 Further, we have repeatedly held that when
a parent, through his own choices, fails to comply with a service plan and at the
time of the termination trial requests a continuance or an extension of the
statutory dismissal deadline in order to complete the plan, the trial court does not
abuse its discretion by denying the continuance or extension. 12 The evidence
here shows that Father had not completed any portion of his service plan,
including maintaining contact with CPS, despite the fact that he had received a
copy of the service plan almost seven months before trial. We therefore follow
11
Tex. R. Civ. P. 251.
12
See, e.g., In re C.D.S.-C., No. 02-12-00484-CV, 2013 WL 1830398, at
*15 (Tex. App.—Fort Worth, May 2, 2013, no pet. h.) (mem. op.); In re K.P., No.
02-09-00028-CV, 2009 WL 2462564, at *4 (Tex. App.—Fort Worth Aug. 13,
2009, no pet.) (mem. op.); In re M.M.F., No. 02–08–00014–CV, 2008 WL
5265033, at *13 (Tex. App.—Fort Worth Dec. 18, 2008, no pet.) (mem. op.).
8
our precedent, hold that the trial court did not abuse its discretion by denying
Father’s motion for continuance, and overrule his second issue.
In his third issue, Father contends that the trial court erred by denying his
motion to extend the dismissal deadline. As we explained in In re L.E.M.,
Section 263.401 of the family code provides,
(a) Unless the court has commenced the trial on the
merits or granted an extension under Subsection (b), on
the first Monday after the first anniversary of the date
the court rendered a temporary order appointing the
department as temporary managing conservator, the
court shall dismiss the suit affecting the parent-child
relationship filed by the department that requests
termination of the parent-child relationship or requests
that the department be named conservator of the child.
(b) Unless the court has commenced the trial on the
merits, the court may not retain the suit on the court’s
docket after the time described by Subsection (a) unless
the court finds that extraordinary circumstances
necessitate the child remaining in the temporary
managing conservatorship of the department and that
continuing the appointment of the department as
temporary managing conservator is in the best interest
of the child. If the court makes those findings, the court
may retain the suit on the court’s docket for a period not
to exceed 180 days after the time described by
Subsection (a).
Because an extension of the dismissal date is similar to a
continuance and section 263.401(b) does not specify which
appellate standard of review should apply, we apply the abuse of
discretion standard. 13
13
In re L.E.M., No. 02-11-00505-CV, 2012 WL 4936607, at *16 (Tex.
App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op.) (citations omitted).
9
Given the evidence detailed above, we cannot say that the trial court
abused its discretion by failing to find that extraordinary circumstances justified a
six-month extension of the dismissal deadline. 14 We overrule Father’s third
issue.
Having overruled Father’s three issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: June 27, 2013
14
See In re A.J.M., 375 S.W.3d 599, 604–05 (Tex. App.—Fort Worth 2012,
pet. denied) (op. on reh’g en banc) (upholding trial court’s denial of extension to
incarcerated father who contended with no proof that his incarceration had
prevented compliance with service plan); 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 mother did not show that
needing more time after failing to make progress on the service plan for eight
months amounted to extraordinary circumstances).
10