In re J.B.

93 S.W.3d 609

In the Interest of J.B., A Child.

No. 10-01-044-CV.

Court of Appeals of Texas, Waco.

November 27, 2002.

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John W. Segrest, McLennan County Dist. Atty., James Wiley, McLennan County Asst. Dist. Atty., Waco, for Appellee/Respondent.

C. Kevin Keathley, Law Office of C. Kevin Keathley, Waco, for Ad Litem.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury recommended that Kaltina Spencer's parental rights be terminated with respect to her three-year-old son J.B. The court rendered judgment in accordance with the verdict. Spencer presents fifteen issues in this appeal. In the first, Spencer contends that the court erred by requiring her to proceed to trial with less than forty-five days' notice as required by Rule of Civil Procedure 245. Because this issue is dispositive, we will address only those of her remaining issues which we are required to or which are likely to arise on retrial.

BACKGROUND

J.B. was born on February 11, 1999. At the time, Spencer had a pending state jail felony theft charge. She was placed on community supervision for this offense on June 10. The court ordered her to serve 120 days in a state jail as a condition of her community supervision and had her immediately taken in custody. Spencer left J.B. in the care of his uncle. The uncle contacted the Child Protective Services Division of the Department of Protective and Regulatory Services ("CPS") the next day and asked the agency to take custody of J.B. A CPS investigator contacted Spencer at the McLennan County Jail regarding any alternate placements. Spencer could provide no alternatives for placement, so CPS initiated custody proceedings.

Spencer remained incarcerated until October 12. During her incarceration, she wrote two letters to the trial judge. In the second, she asked for a bench warrant so she could appear for an upcoming hearing. After her release, Spencer apparently remained in contact with the CPS caseworker assigned to J.B.'s case. Permanency progress reports filed by CPS in November 1999 and March 2000 reflect communications between Spencer and the caseworker. Spencer wrote the judge another letter on April 4 asking that J.B. be returned to her custody and expressing her willingness "to do what ever the court ask me to do to make this possible." CPS filed an amended petition on April 18 seeking termination of the parental rights of Spencer and J.B.'s father.

The court signed an interlocutory no-answer default judgment on June 8 terminating Spencer's parental rights. The court signed a separate order on that date extending the statutory dismissal date to December 16. See TEX. FAM.CODE. ANN. § 263.401(b) (Vernon Supp.2002).

Spencer filed a motion to set aside the default judgment on September 7. Spencer alleged that the default judgment was improper because her letters to the judge constituted answers and she was not given notice of the trial setting. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 108 S.Ct. 896, 900, 99 L.Ed.2d 75, 82 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (per curiam). The court granted Spencer's motion for new trial on September 12.

In the meantime, the court sent notice of trial on September 8. The notice informed the parties that the case was set for "final hearing" on October 23. CPS sent a follow-up notice on September 21 clarifying that the case would be heard on October 24. Spencer filed a motion for continuance on September 26 asking for additional time to prepare for trial because: (1) she did not receive the forty-five days' notice required by Rule of Civil Procedure 245; and (2) her counsel needed additional time to organize the "approximately 1,000 pages" of documents provided by CPS on September 21 and to conduct appropriate discovery. The court heard Spencer's continuance motion on September 29 and "grant[ed] the continuance until October 31st."

Spencer filed a second continuance motion on October 19, contending that the notice given by the court on September 29 of the October 31 setting still did not provide the forty-five days' notice required by Rule 245. The court heard this motion on October 24 and denied it. Spencer noticed depositions for three of CPS's witnesses on October 25. CPS filed a motion to quash these deposition notices the next day. The court heard this motion on October 27. At the hearing, Spencer made a third continuance motion again urging Rule 245 as the basis for the continuance. The court granted CPS's motion to quash and denied Spencer's third continuance motion that same day.

The parties proceeded to trial as scheduled on October 31. The jury returned its verdict on November 9. The court signed the decree on November 17.¹

NO EVIDENCE

Spencer claims in her second issue that the record contains no evidence or factually insufficient evidence to support a finding that she knowingly placed or allowed J.B. to remain in dangerous conditions or surroundings.²

When we decide a "no evidence" point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV 361, 362-63 (1960)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). We apply this standard of review in termination cases, which require proof by clear and convincing evidence, even though this standard was developed in preponderance-of-the-evidence cases. See In re A.P., 42 S.W.3d 248, 256 (Tex.App.-Waco 2001, no pet.); Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 BAYLOR L.REV. 391, 413 (1996).

When J.B. was three months' old, part of the roof of the house in which Spencer and he were living collapsed in a rainstorm. They "immediately moved out." They lived for a period of time in a local motel. An acquaintance of Spencer's testified that her motel room was "filthy." She would not have allowed her own children to live "in something like that." According to this witness's testimony, Spencer and J.B. lived in the motel room for a period of time, though she could not say how long.

The evidence regarding the condition of Spencer's motel room constitutes some probative evidence that Spencer knowingly allowed J.B. to remain in dangerous conditions or surroundings. Thus, we conclude that the no-evidence portion of Spencer's second issue is without merit. In view of our disposition of the no-evidence portion of Spencer's second issue, we need not address the no-evidence portions of her third and fourth issues.³ In view of our disposition of Spencer's notice issue, we need not address those portions of her second, third and fourth issues which challenge the factual sufficiency of the evidence to support the verdict.

NOTICE OF TRIAL SETTING

Spencer argues in her first issue that reversal is required because she did not receive the notice required by Rule 245. We agree.

Rule 245 provides in pertinent part:

The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.

TEX.R. CIV. P. 245.

Rule 245 requires that a party to a contested case receive "notice of not less than forty-five days" for a first trial setting. See id. The district clerk notified the parties on September 8 that the case was set for trial on October 23. The clerk sent this notice by facsimile machine and by certified mail, return receipt requested. This added three days to the forty-five provided by Rule 245. Id. 21a; Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.1994) (per curiam). Thus, the trial could not have commenced before October 26. For this reason, the September 8 notice did not provide adequate notice of trial under Rule 245.

CPS sent a letter to the attorneys in the case on September 21 notifying them that the trial would begin on October 24. Although the record does not indicate the manner in which this letter was served on counsel, the letter itself is dated only thirty-three days before the trial setting. Thus, it did not satisfy Rule 245.

The court heard Spencer's first motion for continuance on September 29. Apparently the court agreed that its initial notice did not satisfy Rule 245, because it granted Spencer's continuance motion in part. The court rescheduled Spencer's trial for October 31. Thus, the court gave Spencer thirty-two days' notice of the October 31 trial setting. This did not satisfy Rule 245.

Spencer's second and third continuance motions objected that the court's September 29 notice still did not satisfy Rule 245. CPS responded that under the combined notices Spencer had more than forty-five days notice (from September 8 to ...