                                   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, 2008.1


       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


       1
         The order erroneously reflected a date of entry of February 14, 2007. However,
this error was corrected by the trial court by a subsequent judgment nunc pro tunc.

                                             2
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).2 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



       2
           All further references to the Texas Family Code will be by “ch. __” or “§ ___.”

                                               3
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).3


       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.4 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



       3
        The trial court held a subsequent hearing on appointed counsel’s amended motion
to set aside default on June 12, 2008. That motion and hearing is not before the Court.
       4
        Our review of these documents reveals that they also evidenced Sarinana’s desire
to appeal the default judgment and comply with the requirements of the Texas Rules of
Appellate Procedure. See TEX . R. APP. P. 25.1(d).

                                              4
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 that Sarinana had been transferred from the Crosby County Jail to a TDCJ unit

two days prior to his answer date. Through Sarinana’s letters to the clerk of the court, it

was further established that all of his paperwork regarding the termination action had been

lost or misplaced at the time of transfer. Further, beginning with his letter of November 20,

2007, Sarinana continuously tried to determine the status of the case and seek assistance

                                              5
in fighting the termination. In the hearing on the motion to set aside the default judgment,

the Department raised the question of why Sarinana had not contacted their office during

this period. The record reflects that Sarinana had been furnished an address for the

Department, however, the address was not correct. There was no further evidence

regarding that matter before the court. It is further established in the record that Sarinana

consistently requested that he undergo DNA testing to determine if he was the father. The

failure to file an answer has been held to have been intentional or due to conscious

indifference when “the defendant knew it was sued but did not care.” Id. at 115 (citing Fid.

and Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006)). Based on

this record, Sarinana’s failure to file an answer was not intentional nor the result of

conscious indifference.


       Turning to the question of a meritorious defense, we begin by reviewing the

amended pleadings filed by the Department regarding Sarinana. Those pleadings alleged,

in addition to the statutory default provisions of Ch. 161, that Sarinana: 1) knowingly placed

or knowingly allowed the child to remain in conditions or surroundings which endangered

the physical or emotional well-being of the child and 2) engaged in conduct or knowingly

placed the child with persons who engaged in conduct which endangered the physical or

emotional well-being of the child.5 As to the allegations in the amended petition, the record

contains only vague references to Sarinana and what he knew or did not know about the

child. Further, in his affidavits and letters, which were made part of this record, Sarinana


       5
        There was a third allegation that he had executed an unrevoked or irrevocable
affidavit of relinquishment, which is not applicable to the case because the record fails to
reveal any evidence regarding the execution by Sarinana of the alleged affidavit.

                                              6
averred that he had no knowledge of the child until he was served. Sarinana also states

that it was never his desire to abandon the child nor to avoid his responsibilities. This

evidence raises a meritorious defense to the allegations contained in the Department’s

amended pleadings.


       Regarding the third issue under Craddock, the record reflects that the child, M.A.A.,

continues to reside in the same foster home. There is nothing in the record that would

indicate that the child’s situation will be, in any way, harmed by granting a new trial. It is

true that the foster parents have indicated a desire to adopt the child, however, we do not

view the delay in the adoption process as being any harm to the child. Further, the

attorney appointed to represent Sarinana has indicated that she is ready to go to trial

immediately.


       Based on the record before us, we find that Sarinana met the requirements to obtain

a new trial. Accordingly, the trial court erred when the new trial was not granted.


                                         Conclusion


       Having determined that a new trial should be granted, we reverse the judgment of

termination as to Sarinana and remand this case for a new trial.6


                                        Per Curiam



       6
        Our disposition of this appeal renders the parties’ agreed motion to dismiss the
appeal moot. Therefore, we deny the motion. The parties’ motion would have this Court
reverse the judgment by agreement without rendering a written opinion, something we
cannot do. See TEX . R. APP. P. 47.1.

                                              7
