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In re C.P.

Court of Appeals of Texas, Fifth District, Dallas

July 1, 2019

IN THE INTEREST OF C.P., A CHILD

          On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-30012-2018

          Before Justices Whitehill, Molberg, and Reichek

          MEMORANDUM OPINION

          KEN MOLBERG JUSTICE.

         M.P. 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 States Constitution.[1]

         We 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 court's judgment.

         BACKGROUND

         M.P. 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.

         C.P. is the biological child of M.P. and B.M.[2] 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.

         On 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 attorney.

         Permanency Hearing Orders Provided the Trial Date

         The 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.

         At the 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, correct?"
• "You were present and participated in the 14 Day Hearing in this case, correct?"
• "Are you participating in any programs offered by the jail?"

         M.P. 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.[3] 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.)

         M.P. 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 hearing order.

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 this point.
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.

         At the 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.

         At a 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.

         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.[4] 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.

         Curran's Motions for Withdrawal of Counsel Provided the Trial Date

         M.P. 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.

         On 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.

         The 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 held.

(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 9 a.m.

         Evidence 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 present."

         As 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.

         At the 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.

         Noting 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.[5] 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.

         Solomon's Motion for Withdrawal of Counsel Provided the Trial Date

         On 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 [M.P.]."

         The 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 "prosecut[e]" Cason.

         M.P. 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.

         Evidence 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.

         At the 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 ...


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