                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00237-CV


In the Interest of C.M.D. and H.M.A.       §    From the 323rd District Court
a/k/a H.M.A., Children
                                           §    of Tarrant County (323-93993J-11)

                                           §    November 29, 2012

                                           §    Opinion by Justice Walker

                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed, and the case is remanded to the trial court for a new trial.

The trial court must commence a new trial no later than 180 days after the date this

court issues the mandate in this appeal. See Tex. R. App. P. 28.4(c).



                                       SECOND DISTRICT COURT OF APPEALS


                                       By_________________________________
                                         Justice Sue Walker
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00237-CV


IN THE INTEREST OF C.M.D. AND
H.M.A. A/K/A H.M.A., CHILDREN




                                       ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                       ----------

                         MEMORANDUM OPINION1

                                       ----------

      This is an ultra-accelerated2 appeal from a post-answer default judgment

terminating Mother’s and Father’s parental rights to C.M.D. and H.M.A.           The


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights within 180 days after notice of
appeal was filed). We note that briefing was completed in this appeal on October
2, 2012, and that our opinion is required to issue on or before December 10,
2012, leaving this Court with less than sixty days to draft, circulate, and issue this
opinion.


                                           2
Friday prior to the termination trial, Mother and Father’s attorney filed a motion to

withdraw and an unsworn motion for continuance. The motion to withdraw did

not state that a copy of the motion had been delivered to Mother or to Father, did

not state that Mother or Father had been notified in writing of their right to object

to the withdrawal, did not indicate whether Mother or Father consented to the

motion, and did not set forth Mother’s or Father’s last known address or the

pending trial setting. See Tex. R. Civ. P. 10. The case was called for trial;

Mother and Father’s attorney appeared, informed the trial court that he was

under doctor’s orders to not participate in any court proceedings, and urged the

trial court to grant his motion to withdraw and for a continuance.

      Mother and Father did not appear for trial. Their attorney said that as far

as he knew, ―they [Mother and Father] were notified earlier [of the trial setting] at

the time it was reset.‖ He did not indicate that he had informed Mother and

Father of the trial setting. He said that he ―[had] not been able to have contact

with them [Mother and Father] in recent weeks‖ but that the ―last contact I had

with them was that they were still very much interested in defending their rights

and trying to at least maintain the best possible relationship with their children

and that their rights not be terminated.‖ When questioned by the trial court, the

Department indicated that it was in regular contact with Mother and Father during

their visitation with C.M.D. and H.M.A. and said that Mother and Father were

aware ―of this hearing today.‖ In fact, Mother and Father had visited the children

the Wednesday prior to trial.


                                         3
      The trial court granted Mother and Father’s attorney’s motion to withdraw

but denied the motion for continuance. The Department called three witnesses

whose combined testimony—including additional examination by the children’s

attorney ad litem—spans a mere thirty-six pages in the reporter’s record. The

trial court then granted the Department’s petition to terminate Mother’s and

Father’s parental rights and found that it was in the children’s best interest to do

so. The trial court signed a May 23, 2012 termination judgment immediately after

the Department presented its evidence.

      On June 22, 2012, Mother and Father filed a letter requesting a new trial

and indicating that they were never notified of any court hearing on the

termination of their parental rights to the children; the letter states that their

attorney explained to them that he ―got us a continuance due to his health issues,

so to his knowledge, as ours, the continuance was granted.‖            In affidavits

considered at the motion for new trial hearing, Mother and Father averred that

they were not aware that trial counsel had filed a motion to withdraw and that

they were not present for the trial because they were told by trial counsel that the

trial court had granted a continuance.3 Mother’s and Father’s affidavits further

deny all the allegations supporting the Department’s grounds for termination.

      3
        Counsel for the parties agreed and stipulated on the record at the motion
for new trial hearing that Mother’s and Father’s affidavits would be treated as if
they were attached to Mother and Father’s timely filed letter requesting a new
trial ―so that the Court of Appeals could consider the affidavits‖ and that the
affidavits would be treated as ―stipulated testimony for purposes of their Original
Motion for New Trial.‖


                                         4
Mother and Father’s appellate counsel argued at the motion for new trial hearing

that Mother and Father had met the requisites necessary to obtain a new trial

under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124

(1939). Apparently, at least in part because at the time of the motion for new trial

hearing only ten days remained until the automatic dismissal deadline,4 the trial

court denied Mother and Father’s motion for new trial.         Mother and Father

perfected this appeal and raise eight issues.

      In part of their seventh issue, Mother and Father argue that the trial court

erred by not setting aside the post-answer default judgment as required by

Craddock. See id. A post-answer default judgment occurs when a defendant

files an answer but neither the defendant nor his attorney appear for trial. See

LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (explaining that judgment

was not post-answer default judgment because although husband did not

personally appear for trial, husband’s counsel appeared and represented

husband at trial); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)

(explaining distinctions between no-answer default judgment, judgment nihil dicit,

and post-answer default judgment). A trial court must set aside a post-answer

default judgment when the defendant satisfies the test articulated by Craddock.

Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.


      4
       See Tex. Fam. Code Ann. § 263.401(a) (West 2008) (setting forth
deadlines that require dismissal of suits affecting the parent-child relationship in
which the Department requests termination).


                                         5
1994); Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Under Craddock, the

defendant must demonstrate that (1) his failure to appear was not intentional or

the result of conscious indifference; (2) there is a meritorious defense; and (3)

the granting of a new trial will not operate to cause delay or injury to the opposing

party. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Cliff, 724 S.W.2d at 779.

      Concerning the first Craddock prong, in deciding whether an appellant’s

failure to appear resulted from intentional disregard or conscious indifference, we

look to his knowledge and conduct and will examine all of the evidence in the

record that was before the trial court. See Evans, 889 S.W.2d at 269. In a

Craddock motion for new trial hearing, the trial court is bound to accept as true

the movant’s affidavits unless the opponent requests an evidentiary hearing and

offers controverting evidence. Averitt v. Bruton Paint & Floor Co., 773 S.W.2d

574, 576 (Tex. App.—Dallas 1989, no writ). We are to apply this first prong

liberally, considering each case on an ad hoc basis. See Gotcher v. Barnett, 757

S.W.2d 398, 401 (Tex. App.—Houston [14th Dist.] 1988, no writ). To establish

that the failure to appear was not intentional or the result of conscious

indifference, a defendant need not show a good excuse; a slight excuse will

suffice. State & Cnty. Mut. Fire Ins. Co. v. Williams, 924 S.W.2d 746, 748 (Tex.

App.––Texarkana 1996, no writ).        To satisfy his right to set aside a default

judgment on this prong, the defendant’s motion for new trial and affidavit need

only set forth facts that, if true, would negate intentional or consciously indifferent

conduct. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). ―Conscious


                                          6
indifference‖ means the failure to take some action that would appear obvious to

a reasonable person under similar circumstances. Prince v. Prince, 912 S.W.2d

367, 370 (Tex. App.—Houston [14th Dist.] 1995, no writ).

      Here, Mother and Father’s motion for new trial and their affidavits contain

the following facts that, if true, negate any intentional or consciously indifferent

conduct by Mother and Father in failing to appear for the termination trial. Mother

and Father did not appear for trial because their attorney had told them that he

had obtained a continuance of the trial due to his health conditions. Mother’s and

Father’s affidavit testimony dovetails with the events, set forth above, that

occurred when the case was called for trial. When the case was called for trial,

Mother and Father’s attorney requested a continuance based on his health

issues. At the same time, Mother and Father’s attorney presented a motion to

withdraw from the representation of Mother and Father; Mother’s and Father’s

affidavits averred that they did not know that their attorney had filed a motion to

withdraw.5 The motion to withdraw did not comply with the requisites listed in


      5
        We reference Mother and Father’s attorney’s motion to withdraw and the
trial court’s granting of it in our analysis of Craddock’s first prong because it
compounds the due process violation suffered by Mother and by Father. See In
re J.O.A., 283 S.W.3d 336, 343 (Tex. 2009) (recognizing that attorney must
satisfy the requirements of rule 10 of the rules of civil procedure in order to
withdraw and stating that attorney’s failure to do so left a father without
representation at a critical stage of the proceeding); Villegas v. Carter, 711
S.W.2d 624, 626–27 (Tex. 1986) (reversing trial court’s denial of continuance
and granting of motion to withdraw two days’ before trial and holding that ―[t]he
right to counsel is a valuable right; its unwarranted denial is reversible error‖);
Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 113 (Tex. App.—Waco 1999,
no pet.) (holding that a trial court abuses its discretion when it grants a motion to

                                         7
rule 10 of the rules of civil procedure or indicate that it had been served on

Mother or Father. Examining all of the evidence before the trial court concerning

the first Craddock prong and looking to Mother’s and Father’s knowledge, neither

Mother nor Father failed to take an action that would be obvious to a reasonable

person.    Mother and Father’s attorney told them that he had obtained a

continuance of the trial setting based on his ill health and that is why they did not

appear. This evidence constitutes more than a slight excuse for Mother’s and

Father’s failure to appear.     Thus, we hold that Mother and Father met their

burden of establishing that their failure to appear at the trial was not intentional or

the result of conscious indifference.       See, e.g., In re Marriage of Parker, 20

S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.) (holding that husband’s

failure to appear for trial was not the result of conscious indifference when

husband received fourteen-days’ notice and wrote to trial court clerk for

clarification and to complain of lack of forty-five-days’ notice of trial setting).

      On appeal, the Department agrees that Mother and Father established that

their failure to appear at trial was not the result of conscious indifference but

contends that controverting evidence exists from which the trial court could have

found conscious indifference. At the motion for new trial hearing, the Department

did not offer controverting affidavits or evidence on the first Craddock prong. In


withdraw that does not comply with the mandatory requirements of rule 10);
Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.—Tyler 1994, writ denied) (op. on
reh’g) (same).


                                            8
its brief, the Department points to two on-the-record statements made when the

case was called for trial as controverting Mother’s and Father’s affidavit

evidence. First, the Department points to the statement by Mother and Father’s

attorney when he appeared for trial on May 23—that ―I have not been able to

have contact them with them in recent weeks‖—as controverting Mother’s and

Father’s statements that their attorney had told them that he had obtained a

continuance based on his health issues.        The termination trial was reset on

February 14, 2012, at the same time Mother and Father’s attorney was

substituted in, for trial on May 23, 2012. Mother and Father’s affidavit testimony

that their attorney had told them that he had obtained a continuance is not limited

to a two-week timeframe before the trial setting; their attorney’s statement that he

had been unable to have contact with them in recent weeks does not controvert

Mother’s and Father’s affidavit testimony. The Department also points to the on-

the-record statement by its employee that Mother and Father ―are aware of this

hearing.‖ Again, this statement by a Department employee, however, does not

controvert Mother’s and Father’s affidavit testimony that their attorney had told

them that a continuance had been granted.         Because Mother’s and Father’s

explanation or excuse for failing to appear at the trial setting is uncontroverted,

the first prong of Craddock was established.




                                         9
      If Mother and Father are required to satisfy Craddock’s second prong,6 the

record establishes, and the Department concedes, that they did so.7

      Concerning the third prong of Craddock, the Department argues that the

Family Code’s mandatory dismissal deadline—which would have run within ten

days of the motion for new trial hearing—prevented Mother and Father from

establishing the third Craddock prong, i.e., that the granting of a new trial would

not operate to cause delay or injury to the opposing party, the Department. At

the time of the hearing on Mother and Father’s motion for new trial, neither the

parties nor the trial court had the benefit of the Texas Supreme Court’s opinion in


      6
        A defendant who has appeared or answered (like Mother and Father)
possesses a Fourteenth Amendment due process right to constitutionally
adequate notice of a dispositive hearing or trial setting, and the failure to provide
constitutionally adequate notice excuses the defendant from the requirement of
satisfying the second Craddock prong because to so require would constitute a
further impingement of due process. See, e.g., LBL Oil Co., v. Int’l Power Servs.,
Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (citing Peralta v. Heights Med. Ctr.,
Inc., 485 U.S. 80, 85–86, 108 S. Ct. 896, 899 (1988)); Lopez v. Lopez, 757
S.W.2d 721, 723 (Tex. 1988); In re Marriage of Runberg, 159 S.W.3d 194, 199–
200 (Tex. App.—Amarillo 2005, no pet.); Coastal Banc SSB v. Helle, 48 S.W.3d
796, 801 (Tex. App.—Corpus Christi 2001, pet. denied); In re Marriage of Parker,
20 S.W.3d at 818; accord Rorie v. Goodwin, 171 S.W.3d 579, 584 (Tex. App.—
Tyler 2005, no pet.) (holding that defendant filing Craddock motion for new trial
following entry of summary judgment when defendant did not receive notice of
summary judgment hearing need only satisfy first Craddock prong to obtain new
trial).
      7
       In its brief, the Department candidly states,

             With regard to the meritorious defense prong, the Department
      agrees that controverting evidence is irrelevant. In re R.R., 209
      S.W.3d 112, 116 (Tex. 2006). The Department, thus concedes that
      this element was satisfied.


                                         10
In re E.R., No. 11-0282, 2012 WL 2617604, at *1–12 (Tex. July 6, 2012). In

E.R., the supreme court reversed a default termination judgment appealed more

than six months later by a mother served by publication, stating,

      We appreciate the policy concerns the Department identifies. It, the
      parent, and the child share an interest in a quick and final decision.
      In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003). But finality
      cannot trump a parent’s constitutional right to be heard. Stanley v.
      Illinois, 405 U.S. 645, 646, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972)
      (noting that ―the Constitution recognizes higher values than speed
      and efficiency‖). We have twice held that Family Code provisions
      that expedite termination proceedings must yield to due
      process. See In the Interest of B.G., 317 S.W.3d 250, 258 (Tex.
      2010) (holding that failure to file requisite statement of appellate
      points could not, consistent with due process, form a basis for
      denying parent an appellate record and that Family Code section
      263.405 was unconstitutional as applied to parent); In the Interest of
      J.O.A., 283 S.W.3d 336, 339, 347 (Tex. 2009) (holding that despite
      parents’ failure to file timely statement of appellate points, due
      process required that they be allowed to appeal complaining of
      ineffective assistance of counsel; ―section 263.405(i) is
      unconstitutional as applied when it precludes a parent from raising a
      meritorious complaint about the insufficiency of the evidence
      supporting the termination order‖).

Id. at *10 (bolded emphasis added). The supreme court made clear in E.R. that

the family code provisions, like the mandatory dismissal deadline, must yield to

due process. Id.

      Here, just as in E.R., the family code provisions that expedite termination

proceedings must yield to due process. The family code’s dismissal deadline

must yield to Mother’s and Father’s constitutional due process right to participate




                                        11
in the termination trial8 after receiving constitutionally adequate notice.9 See id.;

accord R.R., 209 S.W.3d at 117 (reversing no-answer default judgment that

terminated parental rights). Thus, Mother and Father are entitled to a new trial

under Craddock’s third prong.

         Having determined that Mother and Father satisfied the requisites of

Craddock, we hold that the trial court abused its discretion by denying Mother

and Father’s motion for new trial. We sustain the pertinent portion of Appellants’

seventh issue, reverse the trial court’s judgment, and remand this case for a new

trial.   Because this issue is dispositive of Appellants’ appeal, we need not

address their remaining issues. See Tex. R. App. P. 47.1 (stating that appellate

court need only address every issue necessary for final disposition of the

appeal).


         8
       Mother and Father were deprived of the opportunity to participate in the
proceeding themselves because they were told that their attorney had obtained a
continuance. Mother and Father were deprived of the opportunity to participate
in the proceeding through their trial counsel because––unbeknownst to Mother
and Father––he withdrew when the case was called for trial, leaving them without
representation at a critical stage of the proceeding. Accord J.O.A., 283 S.W.3d
at 343 (recognizing that attorney must satisfy the requirements of rule 10 of the
rules of civil procedure in order to withdraw and stating that attorney’s failure to
do so left a father without representation at a critical stage of the proceeding);
Villegas, 711 S.W.2d at 626–27 (―The trial court should either have denied the
attorney’s motion to withdraw or granted the party’s motion for continuance; it did
neither. Therefore, we reverse the court of appeals judgment and remand for a
new trial.‖).
         9
        Here, just as in E.R., the Department’s allegations against Mother and
Father are serious and, ultimately if proven, may justify terminating their parental
rights.


                                         12
                                       SUE WALKER
                                       JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: November 29, 2012




                               13
