In re D.W.

• Decision Date: 18 November 2011
• Docket Number: No. 06–11–00064–CV.,06–11–00064–CV.
• Citation: 353 S.W.3d 188
• Parties: In the Interest of D.W., A Child.
• Court: Texas Court of Appeals

353 S.W.3d 188

In the Interest of D.W., A Child.

No. 06–11–00064–CV.

Court of Appeals of Texas, Texarkana.

Submitted: Oct. 20, 2011.Decided: Nov. 18, 2011.

Judy Hodgkiss, The Moore Law Firm, LLP, Paris, for appellant.

Michael C. Shulman, Office of General Counsel, Austin, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Della ¹ appeals from the termination of her parental rights to her three-year-old son, D.W., contending that the trial court erred (1) by denying her motion for new trial, (2) by denying a motion for continuance filed on her behalf, and (3) by severing her case from the case seeking to terminate the biological father's parental rights. She also contends that the evidence is insufficient to support termination. We find no error and affirm.

The record in this case shows that although Della is a person biologically capable of bearing a child, she is mentally of such a low level of intelligence as to be incapable of effectively rearing one. She is not merely below average intelligence; the evidence is that she is at such a low level that she could at most care for the direct physical needs of an infant, but could not act as a mother for the child beyond that point. She failed to consistently maintain contact with the Child Protective Services Division of the Texas Department of Human Services (the Department or CPS) after her child was in its custody, did not visit the child for months while the child was in the custody of CPS (although provided with transportation to the child's location), and although she did live in one site for five months, she otherwise moved from place to place in a random fashion, lodging in eight different places during the course of this proceeding. She did not know the last name of the biological father of the child, and only completed portions of various programs and counseling that the Department made available for her. After her then-boyfriend represented to her that the child suffered from sickle cell anemia (an untrue representation) and that she was unequipped or unable to care for him, she voluntarily surrendered the child to others following an emergency room visit.

Denial of Motion for New Trial—Notice of and Opportunity to Attend Trial

In her first point, Della contends that the trial court abused its discretion in refusing to grant her motion for new trial. Della sought a new trial based upon the fact that she was not personally present at trial. Although proper notice of the setting for trial was provided to her court-appointed attorney, Della failed to maintain contact with her counsel, rendering her lawyer unable to give her actual notice (either in person or by telephone) of the trial setting. Neither her trial counsel nor investigators could locate her, and she remained uninformed that the case was set for a final hearing on the merits. Della was finally located only after the trial had taken place and a motion for new trial (based upon the fact that she had not been provided actual notice of the docketing of the matter for a trial on the merits) had been filed.

Generally, determining whether to grant or deny a motion for new trial is a matter which falls within the sound discretion of the trial judge. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.2009); In re C.J.O., 325 S.W.3d 261, 267 (Tex.App.-Eastland 2010, no pet.). For the most part, a party is entitled to a new trial when her failure to appear is due to a failure to receive notice of the trial setting. Tex.R. Civ. P. 245; In re A.D.A., 287 S.W.3d 382, 387–88 (Tex.App.-Texarkana 2009, no pet.); Vela v. Sharp, 395 S.W.2d 66, 67–68 (Tex.Civ.App.-San Antonio 1965, writ ref'd n.r.e.). This is generally true regardless of whether her attendance would affect the ultimate outcome of the hearing.

However, once a party has made an appearance, she has the responsibility to keep the court and her own counsel apprised of a location where such notice can be effected. In this case, there is a considerable amount of evidence provided about Della's location and her moves from one location to another. It is clear, however, that she ultimately did not provide her final address to either the court or to her counsel. Rule 8 requires all communications from the court or other counsel with respect to a suit to be sent to the attorney in charge, a practice that was followed in this case. See Tex.R. Civ. P. 8. Indeed, neither the trial court nor the clerk may communicate directly with a party who is represented by counsel. Withrow v. Schou, 13 S.W.3d 37, 40 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The notice requirements of Rule 245 are therefore 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, 133 (Tex.Civ.App.-Corpus Christi 1978, no writ).

When efforts were made by Della's counsel to contact her by written and telephonic means, Della could not be reached at the address last known to her attorney. To compound the immediacy of maintenance of the setting date, this is yet another case in which the State was faced with a “drop dead” date upon which the case either had to be tried or dismissed. See Tex. Fam.Code Ann. § 263.401 (West 2008). Trial courts have no discretion to provide more time than that specified by the Legislature, irrespective of how appropriate or reasonable a judge might deem it appropriate to do so. Under these facts, we cannot conclude that the trial court abused its discretion by denying the motion for new trial.

Continuance

Della also contends that the court abused its discretion by denying her motion for continuance. We review the denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Unless the record discloses a clear abuse of that discretion, the trial court's action in granting or refusing a motion for continuance will not be disturbed. Id. In deciding whether a trial court has abused its discretion, we do not substitute our judgment for the trial court's judgment, but decide only whether the trial court's action was arbitrary and unreasonable. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex.1986). We will not reverse the ruling unless the record clearly shows a disregard of a party's rights. Id.; Rodriguez v. Cuellar, 143 S.W.3d 251, 260 (Tex.App.-San Antonio 2004, pet. dism'd).

In this case, counsel filed a motion for continuance on the first day of trial (April 7), asserting that she did not know Della's whereabouts and thus was unable to talk with her and that her presence at trial was vital to her case. Nevertheless, it remained the party's responsibility to make herself available and her whereabouts known to her counsel; it is apparent that Della failed to do so. We recognize that Della's mental shortcomings almost surely contributed to her failure to maintain contact with her attorney. That, nevertheless, does not legally excuse the party from her responsibilities to herself or her child.

We take into account that an action for the termination of parental rights is a type of action recognized as having extraordinary consequences and an effort to terminate parental rights involves “a fundamental liberty interest” of the parent. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). If anything, that makes the need to maintain communications more important, and the failure to do so has consequences. The resultant consequences are unfortunate, but under the law, if Della wished to retain rights to her child, it was necessary for her to take the actions necessary to exercise those rights. Finally, as noted above, the dismissal date for the suit as mandated by statute was only about a month away (May 15) from the date of final hearing, but Della had been out of touch with her counsel since October of the preceding year; at the time preceding trial and at the time of trial itself, the investigator could not determine her whereabouts. Under these circumstances, we cannot conclude that the trial court abused its discretion by denying the request to continue the proceeding until a later date.

Severance

Della contends that the court abused its discretion by severing the parental rights in the case against her from the parental rights termination case of the biological father. A severance splits a single suit into two or more independent actions, each action resulting in an appealable, final judgment. Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex.1985). Severance of claims rests within the sound discretion of the trial court. Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996) (orig. proceeding). The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990) (op. on reh'g), In re T.T.F., 331 S.W.3d 461, 477 (Tex.App.-Fort Worth 2010, no pet.).

In this case, except for the biological father's first name, his identity was unknown. An ad litem had been appointed to represent his interests. The court stated that the child had been born in Arkansas, but that no effort to determine whether the child's father's name appeared in the Arkansas paternal registry had been made. As jury selection concluded, a last name for a possible father appeared, but the status of that person, if any, remained unclear. The trial court noted both the short time remaining for the case to be brought to completion and the length of time that it had been pending already. After that observation, the trial court decided to sever the action against the mother from that of the potential father and to proceed.

Della suggests that the decision was outside the range of the court's discretion...