Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 469th Judicial District Court Collin County,
Texas Trial Court Cause No. 469-30012-2018
Justices Whitehill, Molberg, and Reichek
appeals the trial court's order terminating her parental
rights to the minor child, C.P., after a bench trial. In two
issues, M.P. argues the trial court abused its discretion by
not granting her motion for new trial because she did not
receive actual or constructive notice of the trial date, in
violation of her right to be present at trial under the due
process clause of the Fourteenth Amendment to the United
conclude M.P. failed to preserve her complaint on appeal that
she did not receive constructive notice of the trial date.
However, even if preserved for appellate review, we conclude
the evidence shows M.P. had both actual notice and
constructive notice of the trial date. We affirm the trial
does not challenge the sufficiency of the evidence to support
the trial court's termination of her parental rights.
Therefore, we recount the complicated history of this case
only as necessary to resolve the issues before us, namely,
whether M.P. had notice of the trial date, and whether the
trial court abused its discretion by allowing M.P.'s
motion for new trial to be denied by operation of law.
the biological child of M.P. and B.M. On January 16, 2018, the
Texas Department of Family and Protective Services (the
Department) filed an original petition for protection of the
child, for conservatorship, and for termination in a suit
affecting the parent-child relationship (SAPCR). M.P. was
promptly served with notice and citation of the SAPCR. The
trial court appointed attorneys ad litem for C.P. and M.P.
After retaining Malcolm Miranda as her attorney, M.P. filed
an answer to the suit on January 25, 2018, and on January 26,
2018, M.P. filed an original counter-petition in the suit.
February 26, 2018, Miranda filed a motion to withdraw as
M.P.'s counsel. Miranda's motion for withdrawal
stated that he was "unable to communicate
effectively" with M.P and that M.P. consented to his
motion for withdrawal. The trial court granted Miranda's
motion, and later appointed Greg Gibbs as M.P.'s
Hearing Orders Provided the Trial Date
trial court held numerous hearings during the pendency of the
case. The record reflects that M.P. attended permanency
hearings on June 7, 2018 and September 24, 2018, and she was
represented by counsel at both hearings.
June 7 permanency hearing, M.P. was represented by Gibbs.
Alyson Dietrich appeared as attorney for the Department.
Melissa Cason appeared as attorney ad litem for C.P. At the
hearing, M.P. was called to testify. Claiming a Fifth
Amendment privilege against self-incrimination under the
United States Constitution, M.P. refused to answer the
following questions by Dietrich:
• "[D]o you go by any other names? Is [M.P.] the
only name you use?"
• "How long have you been incarcerated?"
• "[P]rior to being incarcerated did you complete
any services that the Department asked you to do?"
• "You have no motions on file right now disputing
the jurisdiction in this court, correct? In this court you
have no motions on file disputing the jurisdiction,
• "You were present and participated in the 14 Day
Hearing in this case, correct?"
• "Are you participating in any programs offered by
initially invoked the Fifth Amendment in response to
Dietrich's questions. Subsequently, M.P. refused to
verbally respond to Dietrich's questions at all. M.P. did
not follow the trial court's instruction to verbally
invoke the Fifth Amendment for each question she was
declining to answer. In a final act of defiance, M.P. refused
to comply with the trial court's order that she verbally
respond to the trial court's questions. The following
exchange occurred between the trial court and M.P.:
The Court: We're going to go through this again. You are
still going to have to respond to the question. You can plead
the Fifth if you like, but you have to respond. Are we clear?
I need a yes or a no on that. At this point, I'm ordering
you to answer my question. Do you understand, yes or no?
Okay. If you're not going to cooperate, do I need to just
have them take you back into the holdover cell?
[M.P.]: (Witness nods head.)
was removed from the courtroom and the proceedings continued
with Gibbs representing M.P. Before announcing a recess, the
trial court addressed the admonishments in the permanency
Ms. Dietrich: Did you want to bring [M.P.] back out to
admonish her or just - admonishments are also in the order
but she did not sign it.
The Court: I believe at this point with her lack of
cooperation and ability to follow the Court orders that
she's waived her right to be out here. The admonishments
are in the court order. I'm going to rely on those at
Ms. Dietrich: And I'll provide Mr. Gibbs a copy to give
to her if she wants to take it back with her.
The Court: I have signed off on the order. I will note for
the record that it is not agreed to as to the mother or the
father and their attorneys have not signed off on it either.
I have signed off on the order, though.
conclusion of the hearing, the trial court signed a
permanency hearing order that set the case for trial on
December 3, 2018 at 9 a.m. A copy of the June 7, 2018
permanency hearing order was provided to M.P.
hearing on August 3, 2018, M.P. told the trial court she did
not want Gibbs to represent her, and that she wished to
proceed pro se. On September 20, 2018, the trial court
appointed Michael Curran to represent M.P.
attended the September 24, 2018 permanency hearing, and she
was represented by Curran at the hearing. Dietrich appeared
as attorney for the Department. Cason appeared as attorney ad
litem for C.P. Brent Debnam and Michael Debnam appeared as
attorneys for intervenor S.D., M.P.'s
mother. At the September 24 permanency hearing,
the trial court and the parties confirmed the trial date was
December 3, 2018 while M.P. and her counsel were present in
the courtroom. At the conclusion of the hearing, the trial
court signed the permanency hearing order in the presence of
the parties. The September 24, 2018 permanency hearing order
stated that the case was set for trial on December 3, 2018 at
9 a.m. A copy of the September 24 permanency hearing order
was provided to M.P.
Motions for Withdrawal of Counsel Provided the Trial
was incarcerated from approximately April 10 to October 31,
2018. Record evidence shows that M.P. was charged with and
pled guilty to the felony offenses of abandoning or
endangering a child, attempted kidnapping, forgery of a
financial instrument, and attempted evading arrest or
detention with a vehicle.
October 22, 2018, Curran filed a motion for withdrawal of
counsel at M.P.'s request. Curran's motion provided
the date of the trial, stating, "Trial Before the Court
is set on 12/3/18 @ 9:00 a.m." On the same day, Curran
filed an amended motion for withdrawal of counsel, which also
stated the date of the trial was December 3, 2018 at 9 a.m.
Curran's motion for withdrawal and amended motion for
withdrawal declared that copies of the motions would be faxed
to M.P. at the Collin County jail. On October 23, 2018, the
trial court set the hearing on Curran's motion for
withdrawal for November 16, 2018 at 9 a.m.
docket sheet reflects that M.P. filed a response to
Curran's motion for withdrawal of counsel on October 29,
2018. On the same day, the trial court signed an
"Amended Order Setting Hearing Date," re-scheduling
the hearing on Curran's motion for withdrawal for
November 1, 2018 at 4:30 p.m. (Amended Order). The Amended
Order, however, erroneously stated, "the hearing on the
Final Trial is set for 4:30 p.m. on the 1st day of
November, 2018." The trial court's docket sheet
correctly reflected that the November 1, 2018 hearing was a
hearing on Curran's "Motion for Withdrawal of
Counsel (4:30 PM)." On the morning of October 30, 2018,
Curran notified M.P. of the November 1 hearing on his motion
for withdrawal by facsimile to the Collin County jail. The
fax coversheet stated,
[M.P.], attached is the Motion to Withdraw that was filed
last week. There is a signature line on page 3 for you to
sign and bring with you to court on Thursday, 11/1/18
@ 4:30 p.m., when the Motion to Withdraw hearing will be
(Emphasis added.) Curran received a confirmation receipt
showing the jail received Curran's fax. Curran filed a
second amended motion for withdrawal of counsel on November
1, 2018. Curran's second amended motion for withdrawal
reiterated that the date of the trial was December 3, 2018 at
attached to Curran's second amended motion for
withdrawal-including text messages by and between M.P.,
M.P.'s mother, and Curran-demonstrated that M.P. wanted
Curran removed as her attorney, and that M.P. knew the
November 1, 2018 hearing was a hearing on Curran's motion
for withdrawal of counsel and was not the date of the trial.
Beginning early on the morning of November 1, M.P. and Curran
exchanged text messages regarding the 4:30 p.m. hearing that
day on Curran's motion for withdrawal. M.P.'s text
messages to Curran stated, "I consent to you withdrawing
and substituting counsel with Hannah Stroud." M.P. also
accused Lynn Randel, C.P.'s child protective services
(CPS) caseworker, of engaging in "abusive actions,"
and M.P. demanded the assignment of a new CPS caseworker.
Curran replied, "Please call [M]s. Randall [sic] now. I
told your mom last night to call first thing this morning. We
can also take care of all these issues at 4:30 this
afternoon. Please be there." Additionally, on the
evening of October 31, 2018, Curran "received and traded
a number of text messages with [M.P.'s] mother . . .
clearly stat[ing] that there is a hearing [the following day,
November 1] at 4:30 and that [M.P.] needs to be
scheduled under the Amended Order, the trial court held the
hearing on Curran's motion for withdrawal of counsel on
November 1, 2018. At the hearing, the trial court confirmed
that "trial is set for December 3." Although M.P.
had notice of the hearing on Curran's motion for
withdrawal, she elected to not attend.
hearing on Curran's motion to withdraw, Curran confirmed
that he could not effectively represent M.P. because of a
"complete breakdown in communication." Curran told
the trial court,
[M.P.] certainly has a present ability to understand the
charges or the nature of this lawsuit, but there's
absolutely no way that [I can] effectively communicate, and I
don't believe that there's anything that I can do
that's going to allow her to feel that I'm providing
any sort of effective assistance of counsel.
In particular, she feels that I should have Ms. Randel
summarily removed as the [CPS] caseworker in this case. I
haven't been able to do that.
As an officer of the Court, [I] don't ever recall in
thirty-five years of practicing law that I've ever been
in a situation such as this.
that M.P. previously requested the removal of her
court-appointed attorney Greg Gibbs and that M.P. had
"gone through . . . several attorneys at this
point," the trial court granted Curran's motion for
withdrawal. The trial court's order granting Curran's
motion was filed on November 1, 2018. The order stated,
"Trial Before the Court is set on 12/3/18 @ 9:00
a.m." The order reflected the trial court's
determination that a copy of Curran's motion for
withdrawal of counsel "was delivered to [M.P.]" and
that M.P. consented to Curran's motion.
Motion for Withdrawal of Counsel Provided the Trial
November 12, 2018, the trial court appointed Amanda Solomon
as attorney ad litem to represent M.P. On November 19, 2018,
M.P. emailed Solomon at 1:19 p.m. and at 8:42 p.m., demanding
that Solomon withdraw as her counsel. Solomon filed a motion
for withdrawal of counsel on November 20, 2018. The first
page of Solomon's motion for withdrawal stated,
"This matter is set for a trial before the Court on
December 3, 2018 at 9:00 a.m." Solomon's motion
averred she was "unable to effectively communicate with
hearing on Solomon's motion for withdrawal was set for
November 30, 2018 at 9 a.m. Solomon's motion for
withdrawal certified that on November 20, 2018, copies of the
motion and the notice of the hearing were delivered to M.P.
"electronically via email" as well as by mail to
M.P.'s last known address. A November 22, 2018 email from
M.P. to Solomon confirmed that M.P. was apprised of the
November 30 hearing, stating, "It appears you are still
purporting to be my attorney until 11/30/18." In the
same email, M.P. threatened to file a grievance against
Solomon, fulminating, "If you don't want to do your
job and file motions or do anything at all like you indicated
in your prior email to me, I will be submitting a bar
complaint." M.P. demanded "an accounting of all
hours you claim to have worked and a description of what you
have done." Record evidence shows M.P. also threatened
to file grievances against Cason, and M.P. threatened to
elected to not attend the November 30, 2018 hearing on
Solomon's motion to withdraw. At the hearing, Solomon
underscored that she was unable to effectively communicate
with M.P. Solomon verified that M.P. had notice of the date
and the time of the hearing on Solomon's motion for
withdrawal. Solomon told the trial court,
[M.P.] gave me a confidential address to mail all things to.
I mailed [the notice of hearing on the motion to withdraw] to
that address. I E-mailed it to her in a PDF form [and] in a
Word form [and] actually cut and pasted it into the E-mail,
so she got it several ways.
admitted at the hearing included M.P.'s November 19 and
November 22, 2018 emails, which verified that M.P. was in
contact with Solomon and receiving Solomon's emails.
November 30 hearing on Solomon's motion for withdrawal,
the trial court confirmed that the trial was set for Monday,
December 3, 2018. Solomon assured the trial court that M.P.
was "aware that we are set for trial on Monday[,
December 3, 2018]." Testimony at the November 30 hearing
provided additional evidence that M.P. knew the date of her
trial was December 3, 2018 and that M.P. planned and intended
to absent herself from the trial. Randel testified that she
listened to "[p]robably no less than a hundred"
recordings of jail telephone calls between M.P. and
M.P.'s mother. Randel testified that the recorded jail
telephone calls made it "clear" that "[M.P.]
was aware that the trial" was set for December 3, 2018.
In the recorded calls, M.P. described "her plans [for]
the trial" and how she intended to "go
forward." M.P. stated that she "does not intend to
attend [the trial]. Her plan is to relinquish her rights, she
believes she already has, . . . and that her dad is to hire
an attorney to fight for [C.P.] back and then give [C.P.] to