In the Interest of J.P.

196 S.W.3d 434, 2006 Tex. App. LEXIS 5236
CourtCourt of Appeals of Texas
DecidedJune 20, 2006
DocketNo. 05-05-01069-CV
StatusPublished
Cited by13 cases

This text of 196 S.W.3d 434 (In the Interest of J.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of J.P., 196 S.W.3d 434, 2006 Tex. App. LEXIS 5236 (Tex. Ct. App. 2006).

Opinion

OPINION NUNC PRO TUNC

Opinion by

Justice FRANCIS.

On the Court’s own motion, we issue this opinion nunc pro tunc to correct an error in our opinion of June 12, 2006. We VACATE and WITHDRAW our opinion and judgment dated June 12, 2006. This is now the opinion of the Court.

Jose Garcia appeals the trial court’s judgment terminating his parental rights to C.G. In three issues, appellant contends the trial court erred in terminating his parental rights without notice, failing to grant him a new trial, and dismissing his sister’s petition in intervention. We affirm.

C.G. was born on August 24, 2004. At the time of his birth, his mother, Olivia James, was jailed for a drug-related parole violation. James named appellant as C.G.’s probable father, but she admitted to a CPS caseworker that Jeremiah Pope, the father of C.G.’s half-siblings J.P. and D.P., could also be C.G.’s father. The Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services (CPS) took possession of C.G. after his birth.

On August 25, 2004, CPS filed an amended petition naming appellant as C.G.’s father and requesting that CPS be named as temporary managing conservator of C.G. On October 4, 2004, CPS filed a petition to terminate the parental rights of James, Pope, and appellant. Trial was set for June 6, 2005.

On November 29, 2004, appellant filed a letter with the trial court in which he questioned his paternity of C.G. and requested a paternity test. On December 6, [437]*4372004, the trial court appointed appellant’s sister, Letitia Isabel Garcia (Garcia) as temporary possessory conservator of the children. On March 2, 2005, a deputy sheriff served citation on appellant in person at the prison unit where appellant was an inmate. Appellant did not file an answer.

On March 28, 2005, Garcia filed a petition in intervention seeking appointment as sole managing conservator of C.G. only. After James moved to strike the intervention, Garcia filed an objection to the motion and attached a sworn affidavit from appellant styled “Waiver of Citation and Consent To Paternal Aunt.” In his affidavit, appellant acknowledged that he was C.G.’s biological father, and he consented to Garcia’s appointment as sole managing conservator. Appellant’s affidavit concluded as follows:

I enter my appearance in this case for all purposes and waive the issuance, service, and return of citation on me. I agree that the Petition may be amended, and that the case may be taken up and considered by the Court without further notice to me. I waive the making of a record of testimony.

On June 1, 2005, the trial court held a hearing on James’s motion to strike the intervention. Appellant was not given notice of the hearing. During the hearing, the trial court struck Garcia’s petition on the ground she lacked standing to intervene.

After a short break, the trial court conducted a second hearing to prove up the default judgment against appellant and Pope. CPS admitted into evidence James’s affidavits relinquishing her parental rights to the children. In accordance with an agreement between James and CPS, and on the recommendations of James and a CPS caseworker, the trial court terminated appellant’s parental rights, but did not terminate James’s and Pope’s parental rights. James’s parents in California were named permanent managing conservators of all three children. James was named as a possessory conservator and ordered to pay child support.

In his first issue, appellant contends the trial court erred in terminating his parental rights without first notifying him of the trial setting. Appellant suggests that we construe his letter requesting paternity testing as an answer, thus entitling him to notice of the termination proceeding. Alternatively, appellant contends his failure to answer was the result of accident or mistake in that he consented to the appointment of Garcia as managing conservator, but he did not consent to termination of his rights without a hearing after Garcia’s intervention was struck. Appellant also contends the termination of his parental rights without notice deprived him of constitutional due process of law. We disagree with appellant’s contentions.

A defendant who appears and files an answer in some form is entitled to notice of his trial setting. Tex.R. Civ. P. 245; LBL Oil Co. v. Int’l Power Servs., Inc., Ill S.W.2d 390, 390-91 (Tex.1989); Lo-pez v. Lopez, 151 S.W.2d 721, 723 (Tex.1988). In the absence of an answer or appearance, a plaintiff is entitled to take a default judgment without notice to the defendant. In re R.R., 189 S.W.3d 915, 917 (Tex.App.-Dallas 2006, pet. filed); Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.Houston [1st Dist.] 2004, pet. denied). A letter filed by a defendant may serve as an answer sufficient to avoid default judgment if it identifies the parties, the case, and provides the defendant’s current address. Smith v. Lippmann, 826 S.W.2d 137,138 (Tex.1992).

In this case, appellant was served with citation and the petition for termination of [438]*438his parental rights. Appellant did not file a formal answer. Before being served with the petition, appellant did file a letter stating the cause number and a partial ease style. The letter does not, however, provide appellant’s address for service nor does it respond directly to the allegations in the petition for termination. The body of the letter states in its entirety:

I, Jose Reynaldo Garcia, I am requesting a DNA paternity test to be done to determine if I am the father of [C.G.]. I would greatly appreciative] if you could expediate this process.

Because appellant’s letter does not provide an address for notice, it does not meet the minimum Lippmann requirements to qualify as an answer. See Lippmann, 826 S.W.2d at 138. See also In re K.B.A., 145 S.W.3d 685, 690-91 (Tex.App.-Fort Worth 2004, no pet.) (father’s letter denying allegations, objecting to trial court’s jurisdiction, and identifying the parties, the parties’ addresses, the children, and the cause number, constituted an answer to termination petition).

Appellant did enter an appearance in connection with his affidavit. The affidavit, however, expressly waives his right to notice of the trial court’s proceedings. During oral argument, appellant suggested that we interpret the waiver as applying only to Garcia’s intervention. The waiver contains no such limitations.

Appellant did not raise his due process complaint in the trial court and, thus, failed to preserve it for appeal. See In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003), cert. denied, 541 U.S. 1043,124 S.Ct. 2175, 158 L.Ed.2d 733 (2004); Tex. Dept. of Protective & Regulatory Sens. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001). More over, appellant’s due process argument is unsustainable given his express waiver of notice.

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Bluebook (online)
196 S.W.3d 434, 2006 Tex. App. LEXIS 5236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jp-texapp-2006.