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in the Interest of M. A. A., Child

Court of Appeals of Texas·Decided November 6, 2008·No. 07-08-00125-CV·Published

Opinion

NO. 07-08-0125-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL C


NOVEMBER 6, 2008


______________________________



IN THE INTEREST OF M.A.A., A CHILD


_________________________________


FROM THE 72ND DISTRICT COURT OF CROSBY COUNTY;


NO. 6,942; HON. KEVIN HART, PRESIDING


_______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

 

MEMORANDUM OPINION

 

          Appellant, Tony Sarinana, Jr., is the natural father of M.A.A., who was the subject of a parental rights termination suit filed by the Texas Department of Family and Protective Services (Department). For the reasons expressed herein, we will reverse the trial court’s judgment and remand this case for a new trial.

 

 

Factual and Procedural Background

          On October 17, 2006, the Department filed an original petition seeking immediate possession of M.A.A. and requesting to terminate the parental rights of the parents. The parents were alleged as Bertha Hinojosa, mother, and Alfredo Anzaldua, father. DNA testing conducted after the filing of the original action excluded Anzaldua as the father. On April 12, 2007, Hinojosa signed an affidavit of status naming Sarinana as the possible father. On April 26, 2007, the Department filed an amended pleading alleging Sarinana as the father and requesting his parental rights be terminated. Citation for service on Sarinana was issued on May 15, 2007, and Sarinana was subsequently served with the citation on that same day. Service was obtained on Sarinana at the Crosby County Jail, where he was an inmate. Sarinana was transferred to the custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ) two days prior to the deadline for filing an answer. A final hearing was conducted by the Associate Judge on October 4, 2007, and a default order terminating Sarinana’s parental rights to M.A.A. was entered on February 14, 2008.

          On November 20, 2007, the clerk of the court received a letter from Sarinana requesting information about the termination suit and requesting DNA testing. The letter further asserts that, when Sarinana was transferred to TDCJ, all of his paperwork regarding the termination suit was lost or misplaced and, therefore, he did not have access to it. By a letter dated February 26, 2008, Sarinana requested the assistance of the clerk of the court in obtaining the proper paperwork so that he might appeal the decision to terminate his parental rights. This letter also contained information advising the clerk of the location of Sarinana within the TDCJ system. By separate letter dated the same date, Sarinana also filed a motion for a bench warrant and an original answer that contained a request for an appointed lawyer based on Sarinana’s indigence. In a letter dated February 27, 2008, and filed with the clerk the same day as the other letter, Sarinana gave another notice of appeal and request for DNA testing. This letter further contained a declaration of inability to pay costs with an attached unsworn declaration that all of the facts stated in the documents were true and correct. The trial court entered an order appointing an attorney for purposes of appeal on March 4, 2008. The attorney filed a motion to set aside the default judgment on March 10, 2008. The March 10, 2008, motion to set aside the default judgment was filed outside the 15 day window established by the Texas Family Code and, therefore, cannot be considered by this Court. See Tex. Fam. Code Ann. § 263.405(b) (Vernon 2005). A hearing was conducted by the trial court on Sarinana’s motion to set aside the default on March 14, 2008. During the hearing on the out-of-time motion to set aside the default judgment, the trial court concluded that the letters from Sarinana to the court’s clerk made it clear he was attempting to set aside the default judgment and that the trial court should hear the request. However, the trial court appeared to conduct the hearing on the basis of the out-of-time motion filed by appointed counsel. At that hearing, the trial court entered an order for DNA testing on Sarinana and a judgment nunc pro tunc correcting the date of the original order terminating Sarinana’s parental rights. Because more than 30 days passed between the date the court signed its default order and the court’s ruling on the motion to set aside default judgment, the motion was overruled by operation of law. § 263.405(d).

          Through two issues, Sarinana alleges that the trial court committed reversible error. We find the allegations in Sarinana’s first issue to control the disposition of this matter and will only address that issue.

Motion to Set Aside Default Judgment

          Through his first issue, Sarinana alleges that he presented sufficient evidence to require the trial court to set aside the default judgment and, consequently, the failure to do so requires that we reverse the judgment. The first question we must determine is what motion was the trial court attempting to hear on March 14, 2008. A review of the record demonstrates that the trial court considered Sarinana’s letters filed with the clerk on February 28, 2008, as being a request for a new trial. Further, the letters alleged the same grounds formalized in counsel’s motion of March 10, 2008. Because the original order terminating the parental rights of Sarinana was based upon his perceived default, we can only conclude that the trial court was hearing evidence to set aside the default judgment. Accordingly, even though counsel’s motion to set aside default was outside the statutory 15 day period, the trial court still had the issue before it by virtue of Sarinana’s pro se filings.

          We review the denial of a motion for new trial under an abuse of discretion standard. See Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The test for reviewing the entry of a default judgment was first enumerated in the Craddock case. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). The Texas Supreme Court ruled that a default judgment should be set aside when 1) the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, 2) the movant sets up a meritorious defense, and 3) the motion is filed at such time that granting a new trial would not result in delay or otherwise injure the other party. Id. This test for setting aside a default has been applied to termination cases by the Texas Supreme Court. See In re R.R., 209 S.W.3d 112, 114-15 (Tex. 2006). We will address each element in turn.

          The record reflects that Sarinana was not the first person alleged to be the father. After the initial party was excluded by DNA testing, the mother of M.A.A. filed an affidavit of status. This resulted in Sarinana being served on May 15, 2007. At the hearing to set aside the default judgment, Sarinana’s appointed counsel presented to the court evidence showing th

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