      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00833-CV



                                           C.B., Appellant

                                                   v.

                 Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 255,526-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                C.B. appeals the trial court’s decree terminating her parental rights to her child, R.R.,

following a bench trial.1 C.B. contends that the trial court abused its discretion in denying her

motion for new trial and request to set aside the default decree. Because we conclude that the trial

court did not abuse its discretion, we affirm the trial court’s decree.


                       FACTUAL AND PROCEDURAL BACKGROUND

                The Texas Department of Family and Protective Services filed its petition seeking

termination of C.B.’s parental rights as to R.R. and/or managing conservatorship of R.R.2 and

obtained emergency orders appointing the Department temporary managing conservator until a



       1
           We use initials to refer to appellant and her child. See Tex. R. App. P. 9.8.
       2
          The Department also sought termination of the father’s parental rights, an issue not part
of this appeal.
hearing could be held.3 See Tex. Fam. Code Ann. § 161.001 (West Supp. 2012). C.B. appeared at

the initial show cause hearing with her court-appointed attorney, and the trial court named the

Department temporary managing conservator.4 After C.B. failed to appear at four subsequent

hearings, the trial court continued the temporary orders and set the case for final hearing. C.B. did

not appear at the final hearing, but her attorney appeared and announced not ready because of

C.B.’s absence. The trial court proceeded with the hearing, and C.B.’s attorney participated by

cross-examining the Department’s single witness, declining to offer any evidence, and presenting

a closing argument.

                The associate judge determined that C.B.’s parental rights should be terminated,

finding by clear and convincing evidence that C.B. had endangered the physical and emotional

well-being of R.R., see id. § 161.001(1)(E), and had failed to complete the family service plan, see

id. § 161.001(1)(O), and that termination of C.B.’s, and the father’s, parental rights was in the best

interest of R.R., see id. § 161.001(2), and appointed the Department permanent managing

conservator of R.R. C.B. filed a Motion for New Trial and Motion to Set Aside Default Judgment.

At the hearing on the motion, at which C.B. appeared and testified, the associate judge noted that

C.B. had failed to attend at least five hearings prior to the entry of the decree. Observing that the

basis of the motion for new trial was that C.B. did not appear, he found that her nonappearance at

the final hearing was consistent with her behavior throughout the case and denied the motion for new

trial. This appeal followed.

       3
           The facts recited herein are taken from the record on appeal. We accept as true the facts
stated in the briefs that are not contradicted by another party. See Tex. R. App. P. 38.1(g).
       4
           All matters in the case were handled by an associate judge.

                                                  2
                                           DISCUSSION

               In a single issue, C.B. argues that the trial court abused its discretion by denying her

motion for new trial when the uncontroverted evidence established the Craddock factors necessary

to set aside the order. See Craddock v. Sunshine Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)

(establishing three-pronged test defendant must meet to set aside default judgment). The disposition

of a motion for new trial is within the trial court’s sound discretion; we will not disturb the court’s

ruling absent an abuse of that discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.

2010). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or

without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838–39

(Tex. 2004). Generally, before a default judgment can be set aside and a new trial granted, the

defaulting party must satisfy the three elements of the Craddock test. See Craddock, 133 S.W.2d

at 126; see also Leblanc v. Leblanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam) (holding

Craddock applies to all judgments of default whether entered after failure to file answer or failure

to appear after filing answer).

               In this case, however, there was no default judgment. C.B. was represented by

counsel, who appeared on her behalf and participated in the trial on the merits, and therefore the

Craddock test does not apply. See Leblanc, 778 S.W.2d at 865 (Craddock inapplicable because no

default where husband did not appear personally but was represented at trial by counsel);

Velasco v. Ayala, 312 S.W.3d 783, 791 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (no default

where defendant did not appear but was represented by attorney ad litem at trial); In re K.C.,

88 S.W.3d 277, 279 (Tex. App.—San Antonio 2002, pet. denied) (mother could not invoke



                                                  3
Craddock procedure because no default where mother did not appear but her attorney appeared for

trial and trial on merits was conducted); cf. In re R.R., 209 S.W.3d 112, 114–17 (Tex. 2006) (per

curiam) (applying Craddock factors where mother received termination petition while in jail, did not

answer or make appearance, and was unrepresented at hearing); In re K.B.A., 145 S.W.3d 685,

691–92 (Tex. App.—Fort Worth 2004, no pet.) (applying Craddock test where pro se father filed

letter in answer to petition, did not appear at hearing, and was not represented at hearing);

In re C.M.D. & H.M.A., No. 02-12-00237-CV, 2012 Tex. App. LEXIS 9825, at *7–15 (Tex.

App.—Fort Worth Nov. 29, 2012, no pet.) (mem. op.) (applying Craddock factors where parents did

not appear for trial, trial court granted their attorney’s motion to withdraw, and hearing proceeded

with parents unrepresented). Here, because there was no default, the trial court did not abuse its

discretion in denying C.B.’s motion for new trial. See Williams, 313 S.W.3d at 813; Leblanc,

778 S.W.2d at 865. We overrule C.B.’s single issue on appeal.


                                          CONCLUSION

                  Having overruled C.B.’s sole issue on appeal, we affirm the trial court’s decree

of termination.



                                       __________________________________________

                                               Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: April 11, 2013

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