IN THE TENTH COURT OF APPEALS
No. 10-20-00281-CV
IN THE INTEREST OF S.R., JR., A CHILD
From the 278th District Court Madison County, Texas Trial Court No. 18-16060
MEMORANDUM OPINION
S.R., Sr. appeals from a judgment that terminated his parental rights to his son,
S.R., Jr. TEX. FAM. CODE ANN. § 161.001(b). S.R., Sr. complains that the trial court violated
his due process rights by failing to properly admonish him of his right to counsel in the
early stages of this proceeding and by considering evidence at his second trial from the
time he was erroneously not represented by counsel pursuant to this Court's opinion and
judgment reversing this proceeding for a new trial and erred by failing to inquire whether
he had reasonable notice of the trial. Because we find no reversible error, we affirm the
judgment of the trial court.
The first trial in this proceeding was reversed by this Court due to the trial court's
failure to properly admonish S.R., Sr. and the child's mother regarding their right to have counsel appointed in the early stages of the proceeding, including the adversary hearing,
the status hearing, and the first permanency hearing. In re S.R., Jr., No. 10-19-00235-CV,
2019 WL 7374736, 2020 Tex. App. LEXIS 11277 (Tex. App.—Waco Dec. 31, 2019, pet.
denied). We found that the evidence presented from those hearings and during the
period of time in which the parents were not given the benefit of the assistance of counsel
was harmful and reversed the proceeding for a new trial; however, no specific
instructions were included in that opinion as to what was required other than a new trial.
See id. The Texas Supreme Court denied the Department's petition for review, and this
Court issued the mandate reversing the judgment and remanding this proceeding for a
new trial on August 4, 2020. Prior to the issuance of the mandate, the trial court replaced
S.R., Sr.'s appointed appellate counsel with the same trial counsel from the first trial on
July 23, 2020. On August 6, 2020, the trial court set a pretrial hearing for August 13, 2020
and sent notice to the attorneys of record, including trial counsel for S.R., Sr. On August
13, 2020, S.R., Sr. did not appear; however, the docket sheet indicates that S.R., Sr.'s
appointed counsel had spoken with S.R., Sr., who informed him that S.R., Sr. was no
longer indigent and wanted to represent himself. However, the trial court refused to
release S.R., Sr.'s appointed counsel because of the issues surrounding the failure to
admonish and appoint counsel which led to the reversal of the first judgment. On the
docket sheet for that date, the trial court noted that S.R., Sr. did not indicate to his counsel
that the trial date was an issue. On August 13, 2020, the trial court also entered a formal
order setting this proceeding for a pretrial hearing on September 17, 2020 and for a trial
In the Interest of S.R., Jr., a Child Page 2 on October 8, 2020. S.R., Sr. and his appointed counsel appeared at the pretrial hearing
and the final trial. The docket sheet indicates that the procedures of the final trial were
discussed, including S.R., Sr.'s ability to represent himself with the assistance of his
appointed counsel and the trial court entered orders regarding witness and exhibit lists
to be exchanged by the parties prior to trial.
The trial was conducted before the trial court on October 8 and 12, 2020.
Caseworkers, both parents, the prospective adoptive mother, and the guardian ad litem
testified at the trial. At the conclusion of the trial, the trial court took the matter under
advisement and later issued a written ruling which granted the termination of parental
rights as to both parents.
FAILURE TO FOLLOW MANDATE
In his first issue, S.R., Sr. argues that his due process rights were violated by the
trial court's failure to admonish him of his right to appointed counsel in the early stages
of this proceeding and further by the trial court's failure to follow this Court's mandate
which had found that the trial court erred by admitting evidence in the second trial from
the periods of time when he was not represented by counsel. We have reviewed the
record and it does not appear that S.R., Sr. raised this issue to the trial court during the
second trial by the objection to the introduction of any such evidence to the trial court on
this basis or a request or motion for the trial court to take any affirmative action relating
to this error during the second trial. Under the rules of appellate procedure, a party must
present to the trial court a timely request, motion, or objection, state the specific grounds
In the Interest of S.R., Jr., a Child Page 3 therefor, and obtain a ruling. TEX. R. APP. P. 33.1. Even constitutional claims such as this
must be raised before the trial court or they are not preserved for appellate review. In re
L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); Tex. Dep't of Protective & Regulatory Servs. v. Sherry,
46 S.W.3d 857, 861 (Tex. 2001). To preserve this issue for review, S.R., Sr. was required to
object or raise this complaint to the trial court in the second trial but he did not.
In a termination case, "adhering to our preservation rules isn't a mere technical
nicety; the interests at stake are too important to relax rules that serve a critical purpose."
In re L.M.I., 119 S.W.3d at 708. And "allowing appellate review of unpreserved error
would undermine the Legislature's intent that cases terminating parental rights be
expeditiously resolved, thus '[promoting] the child's interest in a final decision and thus
placement in a safe and stable home.'" Id. at 711 (internal citations omitted). Accordingly,
we conclude the issue S.R., Sr. raises here was not properly preserved for our review. Id.
We overrule S.R., Sr.'s first issue.
NOTICE OF FINAL HEARING
In his second issue, S.R., Sr. complains that the trial court erred by failing to inquire
into whether or not he had reasonable notice of the trial setting for the second trial. S.R.,
Sr. argues that the record does not reflect that he personally received reasonable notice of
the trial. Further, S.R., Sr. argues that because he stated several times that he did not fully
understand the purpose of the hearing taking place during the trial, the trial court should
have made an inquiry into whether or not S.R., Sr. had reasonable notice of the trial
setting. On appeal, S.R., Sr. contends that the record does not affirmatively reflect that
In the Interest of S.R., Jr., a Child Page 4 he personally received reasonable notice of the trial setting. S.R., Sr. did not appear at the
pretrial hearing on August 13, 2020, although his appointed counsel appeared and
informed the trial court that S.R., Sr. wished to represent himself. However, the trial court
refused to allow his appointed counsel to withdraw. The record reflects that notice of the
final hearing was sent to S.R., Sr.'s appointed counsel when he was first appointed on
July 24, 2020 and again on August 13, 2020.
At the final hearing, the trial court inquired as to preliminary matters and had an
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IN THE TENTH COURT OF APPEALS
No. 10-20-00281-CV
IN THE INTEREST OF S.R., JR., A CHILD
From the 278th District Court Madison County, Texas Trial Court No. 18-16060
MEMORANDUM OPINION
S.R., Sr. appeals from a judgment that terminated his parental rights to his son,
S.R., Jr. TEX. FAM. CODE ANN. § 161.001(b). S.R., Sr. complains that the trial court violated
his due process rights by failing to properly admonish him of his right to counsel in the
early stages of this proceeding and by considering evidence at his second trial from the
time he was erroneously not represented by counsel pursuant to this Court's opinion and
judgment reversing this proceeding for a new trial and erred by failing to inquire whether
he had reasonable notice of the trial. Because we find no reversible error, we affirm the
judgment of the trial court.
The first trial in this proceeding was reversed by this Court due to the trial court's
failure to properly admonish S.R., Sr. and the child's mother regarding their right to have counsel appointed in the early stages of the proceeding, including the adversary hearing,
the status hearing, and the first permanency hearing. In re S.R., Jr., No. 10-19-00235-CV,
2019 WL 7374736, 2020 Tex. App. LEXIS 11277 (Tex. App.—Waco Dec. 31, 2019, pet.
denied). We found that the evidence presented from those hearings and during the
period of time in which the parents were not given the benefit of the assistance of counsel
was harmful and reversed the proceeding for a new trial; however, no specific
instructions were included in that opinion as to what was required other than a new trial.
See id. The Texas Supreme Court denied the Department's petition for review, and this
Court issued the mandate reversing the judgment and remanding this proceeding for a
new trial on August 4, 2020. Prior to the issuance of the mandate, the trial court replaced
S.R., Sr.'s appointed appellate counsel with the same trial counsel from the first trial on
July 23, 2020. On August 6, 2020, the trial court set a pretrial hearing for August 13, 2020
and sent notice to the attorneys of record, including trial counsel for S.R., Sr. On August
13, 2020, S.R., Sr. did not appear; however, the docket sheet indicates that S.R., Sr.'s
appointed counsel had spoken with S.R., Sr., who informed him that S.R., Sr. was no
longer indigent and wanted to represent himself. However, the trial court refused to
release S.R., Sr.'s appointed counsel because of the issues surrounding the failure to
admonish and appoint counsel which led to the reversal of the first judgment. On the
docket sheet for that date, the trial court noted that S.R., Sr. did not indicate to his counsel
that the trial date was an issue. On August 13, 2020, the trial court also entered a formal
order setting this proceeding for a pretrial hearing on September 17, 2020 and for a trial
In the Interest of S.R., Jr., a Child Page 2 on October 8, 2020. S.R., Sr. and his appointed counsel appeared at the pretrial hearing
and the final trial. The docket sheet indicates that the procedures of the final trial were
discussed, including S.R., Sr.'s ability to represent himself with the assistance of his
appointed counsel and the trial court entered orders regarding witness and exhibit lists
to be exchanged by the parties prior to trial.
The trial was conducted before the trial court on October 8 and 12, 2020.
Caseworkers, both parents, the prospective adoptive mother, and the guardian ad litem
testified at the trial. At the conclusion of the trial, the trial court took the matter under
advisement and later issued a written ruling which granted the termination of parental
rights as to both parents.
FAILURE TO FOLLOW MANDATE
In his first issue, S.R., Sr. argues that his due process rights were violated by the
trial court's failure to admonish him of his right to appointed counsel in the early stages
of this proceeding and further by the trial court's failure to follow this Court's mandate
which had found that the trial court erred by admitting evidence in the second trial from
the periods of time when he was not represented by counsel. We have reviewed the
record and it does not appear that S.R., Sr. raised this issue to the trial court during the
second trial by the objection to the introduction of any such evidence to the trial court on
this basis or a request or motion for the trial court to take any affirmative action relating
to this error during the second trial. Under the rules of appellate procedure, a party must
present to the trial court a timely request, motion, or objection, state the specific grounds
In the Interest of S.R., Jr., a Child Page 3 therefor, and obtain a ruling. TEX. R. APP. P. 33.1. Even constitutional claims such as this
must be raised before the trial court or they are not preserved for appellate review. In re
L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); Tex. Dep't of Protective & Regulatory Servs. v. Sherry,
46 S.W.3d 857, 861 (Tex. 2001). To preserve this issue for review, S.R., Sr. was required to
object or raise this complaint to the trial court in the second trial but he did not.
In a termination case, "adhering to our preservation rules isn't a mere technical
nicety; the interests at stake are too important to relax rules that serve a critical purpose."
In re L.M.I., 119 S.W.3d at 708. And "allowing appellate review of unpreserved error
would undermine the Legislature's intent that cases terminating parental rights be
expeditiously resolved, thus '[promoting] the child's interest in a final decision and thus
placement in a safe and stable home.'" Id. at 711 (internal citations omitted). Accordingly,
we conclude the issue S.R., Sr. raises here was not properly preserved for our review. Id.
We overrule S.R., Sr.'s first issue.
NOTICE OF FINAL HEARING
In his second issue, S.R., Sr. complains that the trial court erred by failing to inquire
into whether or not he had reasonable notice of the trial setting for the second trial. S.R.,
Sr. argues that the record does not reflect that he personally received reasonable notice of
the trial. Further, S.R., Sr. argues that because he stated several times that he did not fully
understand the purpose of the hearing taking place during the trial, the trial court should
have made an inquiry into whether or not S.R., Sr. had reasonable notice of the trial
setting. On appeal, S.R., Sr. contends that the record does not affirmatively reflect that
In the Interest of S.R., Jr., a Child Page 4 he personally received reasonable notice of the trial setting. S.R., Sr. did not appear at the
pretrial hearing on August 13, 2020, although his appointed counsel appeared and
informed the trial court that S.R., Sr. wished to represent himself. However, the trial court
refused to allow his appointed counsel to withdraw. The record reflects that notice of the
final hearing was sent to S.R., Sr.'s appointed counsel when he was first appointed on
July 24, 2020 and again on August 13, 2020.
At the final hearing, the trial court inquired as to preliminary matters and had an
extended discussion with S.R., Sr. regarding his desire to represent himself and that the
trial court had previously explained that he would be required to follow the rules of
evidence and procedure in the same way an attorney would. S.R., Sr. indicated that he
was not fully informed as to why he was there and that he was not ready because he
could not follow the rules like an attorney. He had filed several documents prior to trial
seeking to rescind his agreement or contract with the Department, questioning the trial
court's jurisdiction, and making claims for monetary damages and for the return of his
"property," the child. The trial court addressed and overruled his jurisdictional claims
and contentions that he was not ready to proceed.
In his brief, S.R., Sr. cites to Rule 245 of the Rules of Civil Procedure, which requires
"reasonable notice of not less than forty-five days" for a first setting for trial. Tex. R. Civ.
P. 245. S.R., Sr. further cites to and contends that this notice must have been sent pursuant
to Rule 21a of the Rules of Civil Procedure which must be served on a party if he is pro
se, or his attorney. TEX. R. CIV. P. 21a.
In the Interest of S.R., Jr., a Child Page 5 On appeal, S.R., Sr. does not argue that he was not represented by counsel at the
time the final hearing was set by the trial court nor does he complain that he received
ineffective assistance of counsel by his trial counsel’s failure to timely inform him of the
nature of the trial. S.R., Sr. has presented no authority in support of his contention to
show that the trial court failed to comply with any alleged duty to inquire regarding
notice. Nor do we find that the trial court has erred. We overrule issue two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Neill, and Justice Johnson Affirmed Opinion delivered and filed March 3, 2021 [CV06]
In the Interest of S.R., Jr., a Child Page 6