Interest of J.(B.B) M.

• Citation: 955 S.W.2d 405
• Decision Date: 08 October 1997
• Docket Number: No. 04-96-00827-CV,04-96-00827-CV
• Parties: In the Interest of J.(B.B.) M., A Minor Child.
• Court: Court of Appeals of Texas

Page 405

955 S.W.2d 405

In the Interest of J.(B.B.) M., A Minor Child.

No. 04-96-00827-CV.

Court of Appeals of Texas San Antonio.

Oct. 8, 1997.

David E. Garcia, Yanta, Flores & Korth, L.L.P., Laredo, John C.D. Drolla, Jr., Austin, for Appellant.

Kate Guinn Gonzalez, Patricia Wueste-Whitted, San Antonio, Jo Chris G. Lopez Shaddox, Compere, Walraven & Good, P.C., San Antonio, for Appellee.

Before HARDBERGER, C.J., and GREEN and ANGELINI, JJ.

OPINION

ANGELINI, Justice.

This appeal arises from an order terminating the parental rights of appellant, Laura Martinez, to the baby boy whom she delivered in May of 1996. In three points of error, Martinez contends that (1) the trial court erred in not allowing her to testify or present evidence at the termination hearing; (2) the trial court erred in denying her adequate time to prepare for trial; and (3) the trial court erred in denying her motion for new trial. In one cross point, appellee, Adoption Affiliates, Inc., argues that because validity of the Relinquishment of Parental Rights signed by Martinez is not contested on appeal, there is no real basis for reversing the trial court's judgment. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 1996, Laura Martinez gave birth to a baby boy in Austin, Texas. Before the birth, Martinez contacted Adoption Affiliates, Inc. (AAI) for information about placing her child for adoption. Because Martinez does not speak or read English, she was counseled regarding the adoption by a Spanish-speaking counselor. After making her decision to place the child for adoption, Martinez assisted in choosing the adoptive parents for her baby. When the baby was born, AAI representatives and the adoptive parents visited with Martinez at the hospital. The content and legal consequences of the documents necessary to facilitate the adoption were explained to Martinez in Spanish. Martinez executed the documents, including an Irrevocable Affidavit of Relinquishment of Parental Rights, two days after the baby's birth. Martinez signed two copies of the affidavit, one in English and one in Spanish. The baby was then placed with the adoptive parents, where he has since lived.

In order to finalize the adoption, AAI filed a Petition for Termination of Parental Rights on June 4, 1996. A hearing was set for June 11, 1996. Although Martinez waived her right to further notification of the termination proceedings via the affidavit of relinquishment she had signed, she was served with the petition and notice of the hearing on June 5, 1996. On June 10, 1996, Martinez filed an original answer, alleging that she was induced to sign the affidavit of relinquishment through the use of duress, fraud, and illegality.

At the hearing, AAI introduced the documents signed by Martinez as well as the testimony of several witnesses evidencing strict compliance with all statutory and procedural prerequisites in the procurement of the affidavit. Martinez's attorney cross-examined AAI's witnesses. The trial court also obtained testimony from an official Spanish translator who compared the English and Spanish affidavits for similarity. The trial court then ordered that Martinez's parental rights be terminated. Martinez filed a motion for new trial which was denied after a hearing.

ARGUMENT AND AUTHORITY

A. Time to Prepare for Trial

In her second point of error, Martinez complains that she was not given an adequate time to prepare for trial. Although Martinez waived her right to service of process and further involvement in the termination proceedings through the affidavit of relinquishment, the petition for termination of parental rights was served on Martinez six days prior to trial. Because Martinez filed an answer, she contends that she put into issue all matters pleaded by AAI. Accordingly, she argues that due process mandates that she be given at least forty-five days to prepare for trial.

Rule 245 of the Texas Rules of Civil Procedure does provide that "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...." TEX.R. CIV. P. 245. Where a party waives notice of citation but nonetheless chooses to answer, he is entitled to the notice required by Rule 245. Gonzalez v. State, 832 S.W.2d 706, 707 (Tex.App.--Corpus Christi 1992, no writ). However, any error resulting from a trial court's failure to provide the parties proper notice under Rule 245 is waived if a party proceeds to trial and fails to object to the lack of notice. State Farm Fire and Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex.App.--Amarillo 1992, writ dism'd by agr.); see Reyna v. Reyna, 738 S.W.2d 772 (Tex.App.--Austin 1987, no writ).

In the present case, Martinez contends that, before the termination hearing began, she made a motion for continuance based upon lack of adequate notice and the unavailability of her retained attorney. However, no written motion or supporting affidavit is in the record and Martinez acknowledges that no record of the oral motion was made. In fact, the record before us reflects that Martinez appeared at the hearing with her substitute counsel who announced his presence on her behalf. She then proceeded to present argument and to cross-examine witnesses. By failing to properly object to the short notice of the trial setting and by proceeding to trial, Martinez has not preserved this issue for appellate review. See Price, 845 S.W.2d at 432; TEX.R.APP. P. 33.1 (formerly TEX.R.APP. P. 52(a)). Martinez's second point of error is overruled.

B. Motion for New Trial

In her third point of error, Martinez argues that the trial court erred in denying her motion for new trial based upon newly discovered evidence. The newly discovered evidence proffered by Martinez consists of the affidavit of Michelle Langmead, a social worker involved with the adoption, and W.H. Hyde, Martinez's attending physician during and after the birth. Martinez contends that this evidence so materially demonstrates that she signed the affidavit of relinquishment under duress that it would produce a different result at a new trial.

A party seeking a new trial on the ground of newly discovered evidence must satisfy the court that 1) the evidence came to his knowledge since the trial; 2) it was not owing to want of due diligence that the evidence had not come to his attention sooner; 3) the evidence is not cumulative; and 4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983). Whether to grant or deny a motion for new trial lies within the sound discretion of the trial court, and the court's decision will not be disturbed absent a clear abuse of discretion. Id. When a trial court refuses to grant a new trial based on newly discovered evidence, every reasonable presumption is to be made in favor of the trial court's decision. Id. at 809-10.

The affidavits of Ms. Langmead and Dr. Hyde are clearly not cumulative as Martinez did not put on any evidence of duress, other than through cross-examination, at the original hearing. However, the remaining three criteria necessary for the granting of a new trial have not been satisfied. With regard to whether the evidence was discovered by Martinez since the original hearing through no fault or lack of diligence of her own, the record indicates that Martinez had knowledge of this evidence at the original hearing. In her affidavit, Ms. Langmead indicated concern regarding the amount of pressure AAI placed upon Martinez to complete the adoption. She noted that the medical team, including Dr. Hyde, expressed its concern to her regarding the presence of AAI staff at the hospital after the baby's birth. She also referenced a letter she sent to the Texas Department of Protective and Regulatory Services expressing such concern.

At the original hearing, Martinez's attorney cross-examined an AAI staff member extensively regarding Martinez's contact with Ms. Langmead. He specifically asked the staff member if "it would surprise [her] to learn that Michelle Langmead wrote a letter to the Texas Department expressing concern over the way the adoption was handled." Martinez's attorney also attempted to introduce the letter into evidence, but AAI's objection to the admission was sustained. Clearly then, Martinez had knowledge of Ms Langmead's concern at the original trial. However, she offered no explanation as to why Ms. Langmead was not present to express her concern through testimony at the trial. Under these circumstances, it is difficult to say that the proffered evidence is newly discovered.

Martinez's contention regarding the materiality of Ms. Langmead's and Dr. Hyde's testimony is likewise questionable. Ms. Langmead's affidavit consists primarily of a factual account of the events that transpired following the birth of the baby. She indicated that Martinez was understandably upset by placing her baby for adoption. She concludes by giving her opinion that a foster agreement would have been the preferred approach in this case and that AAI aligned itself with Martinez in a "manner designed to limit her knowledge of options and choice." Dr. Hyde stated in his affidavit that AAI staff were often seen in or near Martinez's room during her hospital stay. He further stated that he "did not see any sign that the individuals were acting improperly, rather [he] felt that their frequent presence could be influencing [sic] mother as she tried to decide whether or not to place her newborn for adoption." (emphasis in original). He concludes by stating that he expressed his concerns to Michelle Langmead.

Martinez has not demonstrated how this evidence would probably produce a different result at a new trial. This is particularly true in light of the other evidence adduced at the original...