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                                      MEMORANDUM OPINION

                                               No. 04-09-00241-CV

                                        IN THE INTEREST OF B.G.H.

                       From the 166th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2008-PA-00199
                                 Honorable Peter Sakai, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 14, 2009

REVERSED AND REMANDED

           This is an appeal from an order terminating Naamon D.’s1 parental rights to his child, B.G.H.

In two issues, Naamon D. contends the trial court erred in dismissing as frivolous his post-judgment

motion relating to lack of notice of the trial setting and the denial of his right to a jury trial. Because

the record shows Naamon D. received inadequate notice of the trial setting, we reverse the trial

court’s order terminating his parental rights and remand this cause for a new trial.




           … To protect the privacy of the parties in this case, we identify the children by their initials and the parents
           1

by their first names only. See T EX . F AM . C O D E A N N . § 109.002(d) (Vernon 2008).
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                                           BACKGROUND

       To initiate this suit, the Texas Department of Family and Protective Services filed its Original

Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the

Parent-Child Relationship. Throughout the course of the litigation, Naamon D. was represented by

two or three different attorneys, and numerous hearings were conducted. Naamon D. also filed a jury

demand. After the case had been pending approximately a year, Naamon D.’s then-attorney filed a

motion to withdraw, which was granted. The motion, which Naamon D. signed off on, noted that

trial was set for February 2, 2009. However, when the case was called for trial on February 2, 2009,

Naamon D. did not appear. The trial date was then reset to April 13, 2009. However, when the case

was called for trial on April 13, 2009, Naamon D. again failed to appear. The trial court then placed

a courtesy call to Naamon D., and he appeared shortly thereafter. Naamon D. was under the

impression he had an attorney representing him, but he did not. Naamon D. contended that he had

not received advance notice of the trial setting and requested a reset. In fact, Naamon D. stated

several times throughout the trial that he had not received notice of the trial setting. The trial court

denied Naamon D.’s request for a reset and proceeded with the trial.

       During the trial, there were several references to whether Naamon D. had received advance

notice of the trial setting. At one point, Mr. Willingham, the attorney representing the child, in

questioning a Department caseworker, asked the following:

       Q:      As far as notice, we had the trial set – we had prior jury trial setting,
               jury trial setting in February the 2nd, correct?

       A:      Correct.

       Q:      [Naamon D.] wasn’t present at that time?

       A:      Correct.


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       Q:       And we have – since then we also had a – permanency review on March 6th,
                2009, correct?

       A:       Yes.

       Q:       And Mr. – was [Naamon D.] present? He was notified of it at the January
                hearing, correct?

       A:       Yes.

Toward the end of the trial, the following exchange occurred:

       Naamon D.:      See, first of all, I was not notified that we had a
                       hearing today. I – I happened to call.

       Court:          Let’s clarify that. [State’s attorney], what notice do we
                       have that [Naamon D.] had notice of today’s hearing?

       State:          Judge, mailing out – a mailing out to his address.
                       Other than that, I don’t think we have anything else.

       Court:          Did you – he didn’t sign off on a scheduling order?

       State:          He was not present at the last trial.

       Court:          Okay.

       State:          – hearing. Now, he did sign for that trial date.

       Court:          Okay.

       State:          He did sign a scheduling order for that trial date.

       Naamon D.:      Somewhere down the line it was reset.

       State:          It was reset the day that he did not show up.

       Naamon D.:      I didn’t get no notice [sic].

       Court:          [Naamon D.], don’t interrupt.

       State:          Judge, I think I have the order of withdrawal with the
                       trial date on it. He was present at the withdrawal
                       hearing, and that was the order entered by the Court.


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Court:       Only reason I’m asking is because [Naamon D.] says
             he didn’t get any notice.

State:       I’m going to see.

Court:       And there is a fundamental premise that people should
             get notice.

State:       Show you, Judge.

Court:       That’s the other reason why this Court doesn’t like
             giving resets.

State:       Do you have the order of withdrawal?

Mr. Willingham:      Judge, we have got the motion for
                     withdrawal where it has got the
                     specific dates.

State:       May I approach?

Court:       Yes.

State:       This is the motion, and he was present at the hearing.

Court:       All right. Court has taken judicial notice of the motion
             to withdraw of counsel filed by Jamissa Jarmon
             [Naamon D.’s former attorney].

Ms. Huff:    I was letting him look at it. He – his signature is on it.
             He was there at the court date on it.

Naamon D.:   I have that form right there. Okay. But they didn’t let
             me know – they have no note from here that it going
             [sic] to be another.

Court:       That’s what happens when you don’t come to court,
             [Naamon D.]

Naamon D.:   They had – they reset it.

Court:       That’s right. They could have. They could have, and
             they should have entered a judgment back then. And
             had I been the monitoring court judge, I don’t think I


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                       would have given you a reset. I didn’t give any resets
                       this morning. I didn’t give any resets today. All right.
                       Anything else in closing? Anybody else have anything
                       to say?

Based on the evidence, the court then terminated Naamon D.’s parental rights.

       Naamon D. filed a timely motion for new trial and statement of appellate points with an

attached affidavit in which he argued, among other things, that he did not have advance notice of the

April 13, 2009, trial setting and that he had been denied a properly requested jury trial. Naamon D.’s

motion for new trial was heard on May 7, 2009. Naamon D. appeared by appointed counsel who

argued that, according to Naamon D.’s affidavit, Naamon D. had not received notice of the April 13,

2009, trial setting and had been denied a properly requested jury trial.

       No sworn testimony was given at the motion for new trial hearing. However, the State’s

attorney argued to the trial court that Naamon D. had received notice of the April 13, 2009, trial date:

       State: In regards to statement [of appellant point] one that [Naamon D.] has
              sworn to, he was not notified of the April 13, 2009, trial date, and
              further down it says it was not intentional nor the result of negligence,
              I would argue that it was negligence, judge. Prior to the April 13th
              date, we had a trial date in February of which [Naamon D.] was given
              notice of [sic]. He was given notice by his previous attorney of
              record, Jamissa Jarmon, that there was a jury trial set for February 2,
              2009, in the 166th District Court at 8:30 in the morning. This was by
              his own attorney. He was present at the motion for withdrawal. She
              handed him the motion and a copy of the order, so he was informed
              of that trial date. He did not show up. It was at that trial date that we
              did seek a continuance to further deal with some issues in the case.
              He was notified previously of the next trial date, which would have
              been April 13, 2009.

       Court: Is there any documentation to support that statement of yours?

       State: Judge, there was a mailing out and discussion at the staffing, but we
              did not do any certified mail in regards to that.




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        Court: What about the reset from that February trial date, did he not sign off
               on that?

        State: He did not sign off on it, Judge, because he was not present. He failed
               to show up.

        Court: So how can you make the assertion that he had knowledge of this last
               trial setting?

        State: There was evidence presented at trial by the caseworker that at the
               staffing she informed him and he acknowledged that the jury trial was
               on April 13, 2009.

        Court: So that was developed at the trial?

        State: Yes, sir. I believe it was. Now in regards – and so I would argue that
               he was negligen[t]. Had he shown up at the February 2nd trial date,
               he would have been able to sign the reset and show up at the April
               13th [trial setting]. Had he – and I will argue that he was informed of
               this trial date.

        The trial court then overruled Naamon D.’s motion for new trial, sustained Naamon D.’s

indigence claim, and ordered a reporter’s record prepared and delivered to this court and to Naamon

D.’s attorney. The trial court further found Naamon D.’s appellate points to be frivolous.

                                             DISCUSSION

        On appeal, Naamon D. argues that the trial court erred in dismissing as frivolous his attempt

to seek post-judgment relief relating to lack of notice of the trial setting and the denial of his right

to a jury trial.

A.      Frivolous Appeal

        Section 263.405 of the Texas Family Code sets forth the procedure for appealing a final order

terminating parental rights. A party wishing to appeal under that section must file with the trial court

a statement of the points on which the party intends to appeal. TEX . FAM . CODE ANN .

§ 263.405(b)(2) (Vernon 2008). Once a party files a statement of appellate points, the Family Code


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requires the trial court to hold a hearing to determine whether the appeal is frivolous. Id.

§ 263.405(d). The appellant may then appeal the trial court’s finding that his appeal is frivolous by

filing with the appellate court the reporter’s record and clerk’s record of the hearing in which the

issue of whether the appeal is frivolous was determined. Id. § 263.405(g). However, such an appeal

is limited to the trial court’s determination that the appeal is frivolous. See In re T.C., 200 S.W.3d

788, 791 (Tex. App.—Fort Worth 2006, no pet.).

        The trial court’s frivolous finding also results in a denial to an indigent appellant the right

to a free reporter’s record and clerk’s record of the underlying trial. See TEX . CIV . PRAC. & REM .

CODE ANN . § 13.003(a)(2)(A) (Vernon 2002); In re T.C., 200 S.W.3d at 792. In this case, however,

immediately after the trial court made the frivolous appeal finding, it ordered the court reporter to

provide copies of the reporter’s record of the trial on the merits to Naamon D.’s attorney and to this

court on appeal. Thus, in considering Naamon D.’s appellate issues, this court has the benefit not

only of a record of the post-trial hearing but also of the trial on the merits.

        In determining whether an appeal is frivolous, the trial court “may consider whether the

appellant has presented a substantial question for appellate review.” TEX . CIV . PRAC. & REM . CODE

ANN . § 13.003(b) (Vernon 2002); see TEX . FAM . CODE ANN . § 263.405(d)(3) (Vernon 2008)

(incorporating section 13.003(b) by reference). Frivolous is defined as lacking an arguable basis

either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San

Antonio 1998, no pet). We review a trial court’s finding of frivolousness under an abuse of

discretion standard. Id.




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B.      Notice of Trial

        A defendant who has made an appearance in a cause has a constitutional right to notice of

the trial settings pursuant to the Fourteenth Amendment’s Due Process Clause. LBL Oil Co. v. Int’l

Power Serv., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); see also U.S. CONST . amend. XIV. Further,

Texas Rule of Civil Procedure 245 provides that when a contested case has been previously set for

trial, the court may reset the case to a later day on any reasonable notice to the parties or by

agreement of the parties. TEX . R. CIV . P. 245. And, notice given on the day of trial has been held not

to be reasonable. See Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex. App.—Houston [1st Dist.]

2001, no pet.).

        We now turn to the record of the proceedings below to determine whether Naamon D.’s

appellate points relating to whether he received notice of trial are frivolous. As set forth above,

Naamon D. stated at trial that he did not receive notice of the trial setting until he received a phone

call that morning advising him to appear at the courthouse. He filed a post-judgment affidavit to the

same effect. During the trial, there were discussions pertaining to whether Naamon D. received

notice; however, there was no clear controverting evidence to Naamon D.’s claims that he had not

received notice. It was established during those discussions at trial that Naamon D. had, in fact,

received notice of the February 2, 2009, trial date but had failed to appear. It was further established

that the trial was reset to April 13, 2009. When questioned by the court, the State’s attorney said

notice had been mailed to Naamon D.’s address. However, there was no evidence or testimony at

trial that Naamon D. had received notice of the April 13, 2009, trial setting.

        Later, at the post-judgment hearing, when Naamon D.’s attorney urged lack of notice of the

April 13, 2009, trial setting, the State’s attorney again mentioned that Naamon D. had, in fact,



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received notice of the February 2, 2009, setting, a fact that was not in dispute. The State’s attorney

then stated, in conclusory fashion, that Naamon D. was notified of the April 13, 2009, trial date.

Upon questioning by the court, the State’s attorney represented to the court that notice of the April

13, 2009, setting had been mailed out and discussed at a staffing. In response to further questioning

by the court, the State’s attorney told the court that the caseworker had testified at trial about

informing Naamon D. of the trial date at a staffing and about him acknowledging the trial date of

April 13, 2009. The trial judge then asked, “So that was developed at trial?” The State’s attorney

responded, “Yes, sir. I believe it was.” The State’s attorney then argued Naamon D. was negligent

for not appearing at the February 2, 2009, trial setting and stated, “I will argue that he was informed

of this [April 13, 2009] trial date.”

        On appeal, the State argues that the record shows Naamon D. did receive notice of the April

13, 2009, trial setting. Specifically, in its brief, the State urges, “[i]t appears [Naamon D.] attended

the March 6 permanency review hearing, where his caseworker informed him of the new trial date.”

However, the record reflects that at trial, while the caseworker did refer to the March 6, 2009,

permanency review hearing, her testimony only confirmed that Naamon D. had been notified of the

permanency review hearing in January. The caseworker did not make any reference to whether

Naamon D. received notice of the April 13, 2009, trial setting.

        Further, in its brief, the State urges “[Naamon D.] had notice through his counsel of the trial

settings and it appears that the reset trial date had been mailed to his address.” In support of this

statement, the State references the clerk’s record, which shows Naamon D. received notice of the

February 2, 2009, not the April 13, 2009, trial setting. Further, the State references the reporter’s

record of the post-judgment hearing in which the State’s attorney represented to the judge that



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Naamon D. received notice of the April 13, 2009, trial setting through “a mailing out and discussion

at the staffing.” Upon further questioning by the court, the State’s attorney contended that the

caseworker had testified at trial that she had informed Naamon D. of the April 13, 2009, trial setting

at a staffing. However, a review of the reporter’s record from the trial shows the State’s attorney was

mistaken. The caseworker did not testify that she had informed Naamon D. of the April 13, 2009,

trial setting. Thus, the only references at either the trial or the post-judgment hearing regarding

whether Naamon D. received notice of the April 13, 2009, trial setting came from counsel’s

argument, which was erroneously based on her recollection of the testimony at trial, and not from

the witnesses’ actual testimony. In its brief, the State further argues that error, if any, was harmless

because Naamon D. did appear at trial and participated. However, as stated above, notice given on

the day of trial is not reasonable notice. See Mahand, 60 S.W.3d at 375.

        Our review of the proceedings in the trial court leads us to the conclusion that Naamon D.

did not receive notice of the April 13, 2009, trial setting until the morning of trial when the court

telephoned him. It further appears Naamon D. was erroneously denied a jury trial because he was

late for the April 13, 2009, trial setting. We, therefore, reverse the trial court’s findings that his

appellate points are frivolous.

        Ordinarily, at this point, we would be limited to determining whether the trial court erred in

making the frivolous appeal findings; however, because we do have the benefit of the record of the

trial on the merits, we are able to further find that Naamon D. is entitled to a new trial because he

did not receive adequate notice of the trial setting and was denied the right to a properly requested

jury trial.




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       We therefore reverse the trial court’s order terminating Naamon D.’s parental rights and

remand the cause for a new trial.



                                                    Karen Angelini, Justice




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