Court of Appeals of Texas, Fourth District, San Antonio
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2018PA00541 Honorable Charles E. Montemayor, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Patricia O.
Alvarez, Justice Irene Rios, Justice
PATRICIA O. ALVAREZ, JUSTICE.
accelerated appeal of the trial court's order terminating
alleged Dad's parental rights to B.J.A., Dad argues he
was denied due process because the Department made little or
no effort to contact him. Because Dad failed to preserve his
claim of due process error by making a proper complaint to
the trial court, we affirm the trial court's order.
March 2018, when B.J.A. was about six months old, the
Department of Family and Protective Services received a
report alleging domestic violence in the home. The Department
petitioned for temporary managing conservatorship, and after
a hearing, it was granted, and B.J.A. was removed from the
home. Dad was served with citation and an
attorney was appointed to represent him. The Department
created a service plan for Dad and delivered it to Dad's
residence. After a series of hearings, the case moved to
one-day bench trial, the Department argued Dad's name was
not on the birth certificate, the paternity registry search
did not show Dad was B.J.A.'s father, and thus Dad was
merely an alleged father. The Department asserted that Dad
had failed to establish paternity, and in the alternative,
his course of conduct met section 161.001(b)(1)'s (E),
(N), and (O) grounds, and termination of any parental rights
Dad might have was in B.J.A.'s best interest.
argued that he never received a copy of the service plan, he
was not afforded an opportunity to visit B.J.A., and the
Department did not exercise "due diligence" to
advise him that he could see B.J.A. or work services while he
trial court found by clear and convincing evidence that Dad
was merely an alleged father and it terminated his parental
rights to B.J.A. The trial court also found, in the
alternative, that Dad's course of conduct met section
161.001(b)(1)'s (E), (N), and (O) grounds, and
terminating Dad's parental rights was in B.J.A.'s
only issue on appeal, Dad argues "he was denied due
process by the Department when the Department's
representatives made little to no effort to contact [him] and
wholly failed to make contact with [him] in any fashion
during the suit."
alleged father has some due process rights. See In re
P.RJ E., 499 S.W.3d 571, 576 (Tex. App.-Houston [1st
Dist.] 2016, pet. denied). But "even a complaint that a
party's due process rights have been denied must be
preserved by a proper objection or request." In re
R.L.L., No. 04-18-00240-CV, 2018 WL 6069866, at *3 (Tex.
App.-San Antonio Nov. 21, 2018, pet. denied) (mem. op.);
accord In re A.N.G., No. 04-16-00377-CV, 2016 WL
6775589, at *1 (Tex. App.-San Antonio Nov. 16, 2016, no pet.)
(mem. op.); see Tex. R. App. P. 33.1.
record does not show that Dad ever raised a due process
complaint in any pleading or at the trial on the merits. At
trial, Dad argued the Department did not exercise due
diligence, but merely arguing the Department had not
contacted him to discuss his service plan does not, without
more, raise a due process claim. In his arguments, Dad made
no reference to the Due Process Clause or the United States
or Texas constitutions; he never argued he had been denied
due process; and he sought no finding on any due process
claim. Cf. In re L.M.I., 119 S.W.3d 707, 710-11
(Tex. 2003) (holding father failed to preserve due process
claim). The trial court made no finding or ruling on any due
process claim, or otherwise indicate it understood Dad was
making a constitutional challenge. See id. at 710
(observing that "[t]he trial court obviously did not
discern a due process challenge").
conclude Dad failed to alert the trial court that he was
making a constitutional claim and get a ruling on that claim,
and he cannot raise that complaint for the first time on
appeal. See ...