TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00572-CV
D. D., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 23-0001-CPSC1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING
MEMORANDUM OPINION
D.D. (Mother) appeals from the trial court’s final order in this suit affecting the
parent-child relationship. 1 Following a final hearing, the trial court found that Mother had
constructively abandoned her eight-year-old child (Child), that she had failed to comply with a
court-ordered family service plan, and that it was in Child’s best interest for Mother’s parental
rights to be terminated. See Tex. Fam. Code § 161.001(b)(1)(N), (O), (2). Based on these
findings, the trial court terminated Mother’s parental rights to Child.
On appeal, Mother does not challenge the sufficiency of the evidence to support
the trial court’s findings. In her two issues, Mother contends that the final order is void because
she did not receive proper notice of the final hearing or that the trial court signed the final order
1 We refer to the parents and other family members by their initials or their relation to the child and refer to the child as Child. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. In May 2024, the trial court signed an interlocutory order of termination as to Father’s parental rights based on his execution of an affidavit of relinquishment of his parental rights to Child. See Tex. Fam. Code § 161.001(b)(1)(K). outside the statutory deadline for doing so. Her issues are directed towards the trial court’s
alleged errors concerning the required forty-five days’ notice of a trial setting, see Tex. R. Civ. P.
245, and the statutory deadline to render judgment within ninety days of trial commencing, see
Tex. Fam. Code § 263.4011(a). For the following reasons, we affirm the trial court’s final order.
BACKGROUND
In June 2016, in a proceeding between Mother and Father in Dallas County, the
district court signed an agreed order establishing the parent-child relationship between Father
and Child, who was two months old. The district court appointed the parents joint managing
conservators of Child but ordered Mother’s possession and access to Child to be only by
agreement between Mother and Father and required Mother to take drug tests when requested by
Father. In September 2016, Father filed an emergency motion in the Dallas County proceeding
to enforce the agreed order supported by affidavit. Father alleged that Mother was violating the
agreed order by not returning Child to his possession and refusing to take a drug test. Although
Mother returned Child to Father, she then filed a petition to modify the parent-child relationship,
seeking to be appointed Child’s sole managing conservator. Child’s paternal grandmother
(Grandmother) intervened in the suit in Dallas County and alleged concerns for Child’s safety
when in Mother’s care. In February 2018, the suit was dismissed for want of prosecution.
On January 4, 2023, the Department filed the underlying suit. The Department
had received an intake alleging neglectful supervision of Child by Father. Child, who was
almost seven years old, had lived with either Grandmother or Father for most of his life. Mother
had not been involved or had contact with Child for many years, and Father did not have contact
information for Mother. The trial court signed an order for protection of Child in an emergency
2 and other orders, including ordering Mother and Father to comply with family service plans.
Child was placed with Grandmother and remained in her care during the case.
In March and September 2023, Department caseworkers were able to speak by
phone with Mother, who was living in California, about the proceeding. In July 2023, the trial
court also had appointed an attorney to represent Mother pending a determination of her
indigency. See Tex. Fam. Code §§ 107.013 (requiring appointment of attorney ad litem to
represent interests of indigent parent who opposes termination), .014 (addressing duties of
attorney ad litem appointed to represent parent whose location is unknown, including among
duties if attorney locates parent, to assist parent in making claim of indigence for appointment
of attorney).
On October 4, 2023, the trial court held a permanency hearing before the final
order. In its order following the hearing, the trial court set the trial on the merits on
December 12, 2023, and ordered Mother to submit an affidavit of indigence with the trial court
by October 18 or her attorney would be excused from the case. 2 The order reflects that her
attorney was present and agreed to the terms of the order. After the hearing, her attorney was
able to speak with Mother; she instructed the attorney to oppose the proceeding; he provided her
with a form affidavit of indigence; she filled out, signed, and dated the affidavit of indigence on
October 16; and she returned the filled-out affidavit to her attorney. 3 Mother included her phone
number, email address, and physical address in California, and she declared under oath that she
had been advised of her right to representation by counsel in connection with the proceeding, that
The permanency hearing order before final order reflects that the hearing occurred on 2
October 4, 2023, but the trial court did not sign the order until February 8, 2024.
The record reflects that the attorney also provided a waiver of service to Mother that 3
Mother signed and returned to him, but the waiver of service was not notarized. 3 she was without means to employ counsel of her own choosing, and that she was requesting that
the trial court appoint counsel for her. 4
On December 12, the trial court held a permanency hearing before final order. At
that time, the trial court signed and granted Mother’s application for court-appointed counsel.
The affidavit of indigence and approved application was filed a few days later, 5 and Mother’s
court-appointed attorney continued to represent her during the case. In other orders following
the December 12 hearing, the trial court reset the final hearing on the merits for March 19, 2024,
and extended the dismissal date to July 6, 2024. The orders reflect that Mother did not appear in
person for the hearing but through her attorney of record, and the attorney announced ready and
agreed to the terms of the orders. The Department, however, had been unable to obtain service
on Mother. A process server had unsuccessfully attempted to personally serve Mother multiple
times in December 2023 at the California address Mother had provided. 6 The trial court ordered
the Department to make its “best efforts to formally serve” Mother and, if its efforts were
unsuccessful, to “initiate alternative service.”
At the beginning of May 2024, the trial court signed an order for substituted
personal service of citation and set the final hearing for June 4, 2024. The Department again
4 Mother “declare[d] under penalty of perjury that the foregoing [was] true and correct.” 5 The record reflects that on October 18, Mother’s attorney notified court staff that he had been in contact with Mother and that he had received her signed affidavit of indigence but that he was having a hard time filing it. 6 On September 20, 2023, Mother was served with the citation and other documents through the email address that she had provided, and on December 17, 2023, the process server delivered a copy of the citation and other documents to a “Co-occupant/Family Member” at the California address. The record reflects that the “Co-occupant/Family Member” is Mother’s cousin. The trial court, however, had not yet authorized substituted service. See Tex. R. Civ. P. 106 (addressing methods of service of process). 4 attempted to personally serve the citation on Mother at the California address, but after multiple
attempts, the process server was informed by the resident that Mother had been living at that
address temporarily and had moved out in June 2023.
On June 5, 2024, the trial court signed an order for substituted service that
authorized the Department to serve Mother by email and text. See Tex. R. Civ. P. 106(b). The
following day, the Department obtained service on Mother by email and text, and the return of
service was filed with the trial court. Approximately one week later, the trial court signed an
order resetting the final hearing to June 24.
On June 18, Mother filed a motion to dismiss and, on June 21, an original answer.
Mother sought dismissal based on the delay in having her served with the citation. She argued
that even if she had been served on June 5, her answer would not have been due until July 1, and
“the date of her 45 days’ notice for a final trial would be July 20, 2024,” which would be beyond
the July 6 dismissal date for the case. See Tex. Fam. Code § 263.401(c) (providing that suit is
automatically dismissed when trial on merits is not commenced before dismissal date following
extension); Tex. R. Civ. P. 245 (requiring “reasonable notice of not less than forty-five days” of
first trial setting for contested case absent agreement). In a legal memorandum in support of her
motion to dismiss, Mother also argued that her attorney’s appearance on her behalf was not a
general appearance by her and did not waive the Department’s duty to properly serve her as
required by law.
In its responses to the motion to dismiss, the Department argued that dismissal
was not warranted because there was no disagreement that the trial court had personal
jurisdiction over Mother; that the provision in Texas Rule of Civil Procedure 245 requiring
notice of forty-five days only applies to the first trial setting; that only “reasonable notice” is
5 required for subsequent trial settings; and that Mother was aware of the case since March 2023,
and had actual notice of the first trial setting of December 12, 2023, which was reset as to
Mother to April 30, 2024, and then reset to June 4 and then June 24. The Department also
argued that Mother had made a general appearance in the case in December 2023. See Tex. R.
Civ. P. 120 (stating that general appearance “shall have the same force and effect as if the
citation had been duly issued and served as provided by law”).
On June 24, 2024, the trial court heard the motion to dismiss and took the matter
under advisement. The trial court then proceeded with the final hearing. The parties made
opening statements, and the Department called its first witness. When the Department passed its
first witness, the trial court recessed the hearing until August 13. In its order recessing the
hearing, the trial court found that it was in Child’s best interest to recess the hearing until then.
On July 31, the trial court denied Mother’s motion to dismiss, and on August 13,
the final hearing resumed. Mother did not appear in person at the final hearing or at any other
hearing in the case. The record reflects that the last time Mother spoke with her attorney was in
December 2023, but her attorney continued to represent her after his appointment, including
making opening and closing statements and cross-examining witnesses during the final hearing. 7
The Department’s witnesses were two of its caseworkers and the Court Appointed
Special Advocate (CASA) for Child. The evidence was undisputed that Mother had contact by
phone with the Department and CASA during the case. CASA testified that her contact with
Mother stopped in September 2023 because Mother asked CASA not to contact her again.
7 The record reflects that Mother and her attorney were communicating between October and December 2023; the last conversation between Mother and her attorney was on December 21, 2023; and during that conversation, Mother “told [the attorney] to stop calling her about the case because it was triggering her.” 6 Mother also was “hostile” to the Department caseworkers, did not engage in services, did not ask
to have visits with Child, did not ask how Child was doing, did not have a relationship with
Child, and did not reach out to Grandmother. At the time of the final hearing, Mother had not
had contact with Child for at least four years. The Department’s plan for Child if Mother’s
parental rights were terminated was for Grandmother to adopt Child. The evidence was
undisputed that Child was safe, content, loved, and well taken care of in his current placement
with Grandmother.
In the final order, the trial court found that Mother had constructively abandoned
Child, that she had failed to comply with a court-ordered family service plan, and that it was in
Child’s best interest for Mother’s parental rights to be terminated. See Tex. Fam. Code
§ 161.001(b)(1)(N), (O), (2). Based on these findings, the trial court terminated Mother’s
parental rights and appointed the Department as Child’s permanent managing conservator.
Mother’s appeal followed.
ANALYSIS
In two issues, Mother argues that the final order is void because Mother did not
receive the required forty-five days’ notice of the trial setting or that the trial court erred by not
dismissing the case because it failed to render an order within ninety days of the commencement
of the final hearing.
Required Notice of Trial Setting under Rule 245
In her first issue, Mother relies on Texas Rule of Civil Procedure 245 to contend
that the final order is void because she received improper notice of the final hearing. Mother
contends that the trial court did not have personal jurisdiction over her until June 6, when she
7 was officially served, and based on this contention, she argues that the deadline for providing her
notice of the final hearing did not start until June 6, which was less than forty-five days before
the final hearing commenced on June 24, 2024. See Tex. R. Civ. P. 245. Mother argues that
because she did not receive the requisite forty-five days’ notice of the trial setting, the final order
is void.
Rule 245 requires “reasonable notice of not less than forty-five days to the parties
of a first setting for trial, or by agreement of the parties.” See id. R. 245. “A trial court’s failure
to comply with Rule 245 deprives a party of its constitutional right to be present at the hearing,
to voice its objections in an appropriate manner, and results in a violation of fundamental due
process.” Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San
Antonio 2002, no pet.) (citing Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso
2000, no pet.)). “Failure to give the required notice constitutes lack of due process and is
grounds for reversal.” Id. We, however, presume that a trial court will hear a case only when
notice has been given to the parties, see id., and Rule 245 requires only “reasonable notice” to
the parties for subsequent trial settings, see Tex. R. Civ. P. 245; In re Marriage of Camp,
No. 07-13-00283-CV, 2014 Tex. App. LEXIS 7830, at *8 (Tex. App.—Amarillo July 18, 2014,
no pet.) (mem. op.) (explaining that Rule 245’s requirement of forty-five days’ notice “applies
only to first trial setting” and that “[n]otice of subsequent settings is not subject to a specific time
standard but must be ‘reasonable’” and collecting cases).
Whether personal jurisdiction exists is a question of law that we review de novo.
See Old Republic Nat’l Title Ins. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018). Personal jurisdiction
over a party is established by valid service of process. In re E.R., 385 S.W.3d 552, 563 (Tex.
2012). “If service is invalid, it is ‘of no effect’ and cannot establish the trial court’s jurisdiction
8 over a party.” Id. (quoting Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884,
885 (Tex. 1985) (per curiam)). But a general appearance has “the same force and effect as if the
citation had been duly issued and served as provided by law.” Tex. R. Civ. P. 120; see also id.
R. 120a (setting out procedure for special appearance and providing that “appearance, prior to
judgment, not in compliance with this rule is a general appearance”), R. 121 (“An answer shall
constitute an appearance of the defendant so as to dispense with the necessity for the issuance or
service of citation upon him.”). And an action taken by a party “seeking affirmative relief from
the court” constitutes a general appearance and waives the party’s personal jurisdiction
complaints. Crystalix Grp. Int’l, Inc. v. Vitro Laser Grp. USA, Inc., 127 S.W.3d 425, 427 (Tex.
App.—Dallas 2004, pet. denied) (citing Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.
1998)); In re D.M.B., 467 S.W.3d 100, 103–04 (Tex. App.—San Antonio 2015, pet. denied)
(explaining that party waives complaints regarding service if he makes general appearance and
concluding that parent generally appeared based on attorney ad litem’s actions in case).
Here, in October 2023, Mother instructed her attorney to oppose the proceeding
and signed an affidavit of indigence, expressly seeking affirmative relief from the trial court—
the appointment of an attorney to represent her in the proceeding. She declared under oath that
she had been advised of her right to representation by counsel in connection with the proceeding,
that she was without means to employ counsel of her own choosing, and that she was requesting
that the trial court appoint counsel for her. Following her instructions, the attorney filed the
affidavit with the trial court. After the affidavit was filed, the trial court granted her requested
relief, and the attorney continued to represent her, opposing the termination of her parental
rights. The attorney attended hearings on her behalf and signed orders as her counsel, such as
agreeing to extend the mandatory dismissal date and continue the final hearing.
9 Based on Mother’s actions seeking affirmative relief from the trial court, we
conclude that she made a general appearance in the proceeding before the trial court at the latest
by December 2023 and, thus, that the trial court acquired personal jurisdiction over her by that
time. See Crystalix Grp., 127 S.W.3d at 427; see also E.H. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-21-00576-CV, 2022 Tex. App. LEXIS 2190, at *14–16 (Tex. App.—Austin
Apr. 5, 2022, no pet.) (mem. op.) (concluding that trial court had acquired personal jurisdiction
over parent who made general appearance and listing among parent’s affirmative actions filing
answer and filing “affidavit of indigency requesting appointment of counsel”); J.O. v. Texas
Dep’t of Fam. & Protective Servs., 604 S.W.3d 182, 190 (Tex. App.—Austin 2020, no pet.)
(holding that parent had “waived any defects in service by filing an answer”); cf. In re T.M.E.,
565 S.W.3d 383, 394–95 (Tex. App.—Texarkana 2018, no pet.) (concluding that parent in
foreign country did not waive personal service by appearing through court-appointed counsel
when parent was not served pursuant to Hague Convention and counsel did not file answer on
behalf of parent, did not announce ready for trial, and did not speak to parent until after
final hearing).
In this case, the record supports that Mother through her attorney had notice of the
first trial setting in December 2023 more than forty-five days before that date, and she does
not contend otherwise. But, more importantly, after the first trial setting, this case was
reset several times, with the last trial setting of June 24, and Mother has not shown that the notice
to the parties of the June 24 trial setting was unreasonable. See In re Marriage of Camp,
2014 Tex. App. LEXIS 7830, at *8 (explaining that “[n]otice of subsequent settings is not
subject to a specific time standard but must be ‘reasonable’” and that “trial court is presumed to
hear a case only on proper notice to the parties”); In re Parker, 20 S.W.3d 812, 818 (Tex. App.—
10 Texarkana 2000, no pet.) (explaining that “[d]ue process requires only actual or constructive
notice [of trial setting] reasonable under the circumstances” and that forty-five-day notice
requirement in Rule 245 “goes beyond the requirements of due process”); see also Templeton
Mortg. Corp. v. Poenisch, No. 04-15-00041-CV, 2015 Tex. App. LEXIS 11813, at *7 (Tex.
App.—San Antonio Nov. 18, 2015, no pet.) (mem. op.) (concluding that forty-five-day
requirement of Rule 245 did not apply because “default judgment hearing was not first
trial setting”).
Moreover, Mother has not shown that any error by the trial court in proceeding
with the final hearing on June 24 was harmful. See Tex. R. App. P. 44.1(a) (stating that no
judgment may be reversed on appeal on ground that trial court made error of law unless error
complained of “probably caused the rendition of an improper judgment” or “probably prevented
the appellant from properly presenting the case to the court of appeals”); see also Ivey v. Ivey,
No. 05-07-01311-CV, 2009 Tex. App. LEXIS 3207, at *7 (Tex. App.—Dallas May 12, 2009,
pet. denied) (mem. op.) (explaining that even if appellant was entitled to and did not receive
forty-five days’ notice of trial setting, to be entitled to reversal, appellant “must establish the
error was harmful” (citing Tex. R. App. P. 44.1(a)). The trial court limited the first day of the
final hearing to the Department’s direct examination of its first witness and did not resume the
final hearing until August 13. The record also reflects that despite having notice and contact
with CASA, the caseworkers, and her attorney, Mother did not engage in the proceeding or
appear in person for the final hearing; she does not challenge the sufficiency of the evidence
supporting the termination of her parental rights; and she does not explain why she needed
additional time before proceeding to trial. See Ivey, 2009 Tex. App. LEXIS 3207, at *8
11 (concluding that appellant did not establish that alleged error concerning requisite forty-five
days’ notice of trial setting was harmful).
For these reasons, we overrule Mother’s first issue.
Ninety-day deadline in Section 263.4011
In her second issue, Mother argues that if this Court finds that she made a general
appearance in December 2023, the trial court erred by not dismissing the case because it failed to
render an order within ninety days of the commencement of the final hearing. See Tex. Fam.
Code § 263.4011(a) (“On timely commencement of the trial on the merits under Section
263.401, the court shall render a final order not later than the 90th day after the date the trial
commences.”). Mother argues that if she made a general appearance in December 2023, she had
proper notice of the hearing that was held on March 19, 2024, which resulted in the interlocutory
order of termination; that the date of that hearing was when the trial commenced; and, thus, the
trial court was required to render an order within ninety days of March 19, which was June 17.
See id. Because the trial court failed to do so, Mother argues, the case should have
been dismissed.
In the interlocutory order of termination, the trial court found that Father had
executed an affidavit of relinquishment of his parental rights to Child, found that it was in
Child’s best interest to terminate Father’s parental rights to Child, and terminated Father’s
parental rights based on its findings. See id. § 161.001(b)(1)(K), (2). In the context of this
appeal, we need not determine whether the hearing against Father commenced trial against
Mother for purposes of Section 263.4011 because, even if the trial commenced on March 19
against Mother, “the requirement [in Section 263.4011(a)] to enter an order within ninety days of
12 trial is not jurisdictional.” In re G.L.J., No. 05-23-01296-CV, 2024 Tex. App. LEXIS 3630, at
*13 (Tex. App.—Dallas May 24, 2024, no pet.) (mem. op.); see also In re T.D.,
No. 04-24-00185-CV, 2024 Tex. App. LEXIS 6790, at *21 (Tex. App.—San Antonio
Sept. 13, 2024, no pet.) (mem. op.) (explaining that when trial court fails to timely render final
order in compliance with Section 263.4011, “the statute provides a party’s remedy is through
writ of mandamus, not reversal for a new trial on direct appeal”). Thus, even if the trial court
failed to enter an order within ninety days of trial commencing against Mother, her remedy
would not have been dismissal but to seek mandamus relief requiring the trial court to enter an
order. See Tex. Fam. Code § 263.4011(d) (authorizing party to file mandamus proceeding if trial
court fails to render final order within ninety-day period); In re G.L.J., 2024 Tex. App. LEXIS
3630, at *13–14 (observing that Section 263.4011(d) authorizes parties to seek mandamus relief
when trial court fails to issue final order within ninety days of date trial commences and that “[i]t
would make no sense for an appellate court to compel a trial court to enter an order that the trial
court has no jurisdiction to enter”).
Mother also has failed to show how any error by the trial court in not entering an
order within ninety days of the March 2024 hearing was harmful to her. See Tex. R. App. P.
44.1(a). The remedy provided by the statute for noncompliance is entry of a final order, which
has happened. We overrule Mother’s second issue.
CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s final order.
13 __________________________________________ Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: December 12, 2024