                                  NO. 07-11-00511-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JUNE 29, 2012


                        IN THE INTEREST OF B.W.F., A CHILD


          FROM THE COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;

                  NO. 8017-L2; HONORABLE JACK GRAHAM, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant, C.W.K., appeals the trial court's order terminating his parental rights to

his daughter, B.W.F.1 He presents one issue on appeal. We will affirm.

                           Background and Procedural Facts

      Appellant does not challenge the sufficiency of the evidence to support the order

of termination.   We will discuss only those facts necessary to the disposition of

appellant’s appellate issue. B.W.F., a female, was born on June 11, 2010. The next

day, the Texas Department of Family and Protective Services (“the Department”)

received a report of the newborn’s exposure to drugs. When the infant was released

      1
       To protect the parent's and child's privacy, we refer to them by their initials. See
Tex. Fam. Code Ann. § 109.002(d) (West 2008); Tex. R. App. P. 9.8(b).
from the hospital, the Department placed her in foster care. On June 14, 2010, the

Department filed its original petition seeking relief that included termination of parental

rights of both parents. On June 23, 2010, temporary orders were signed naming the

Department temporary managing conservator.          Those orders contained a provision

setting a trial date for the case of May 10, 2011. Appellant signed the temporary orders

agreeing to their terms. The following day, appellant and the child’s mother signed a

Family Service Plan acknowledging the tasks they would need to perform to obtain the

return of their child.

       Between November 2010 and June 2011, the trial court held four permanency

hearings. At the first permanency hearing, the court set an original dismissal date 2 of

June 20, 2011. Each of the four permanency hearing orders recites that appellant did

not appear. On a date not stated in the record before us, but at a point between the first

and second permanency hearings, counsel was appointed for the child’s mother.

Counsel was not appointed for appellant.

       On June 10, 2011, appellant was incarcerated in the Randall County Correctional

Center, following his arrest on a charge of aggravated assault with a deadly weapon.

He remained in jail through the final hearing in the termination proceeding.

       On June 20, the trial court signed an order retaining the termination proceeding

on its docket.     See Tex. Fam. Code Ann. § 263.401(b) (West Supp. 2011).            The



       2
          See Tex. Fam. Code Ann. § 263.401(a) & (b) (West Supp. 2011) (court may
retain the suit on the court’s docket for a period not to exceed 180 days after the first
Monday after the first anniversary of the date the court rendered a temporary order
appointing the Department as temporary managing conservator).

                                            2
retention order established a new dismissal date of December 17, 2011. On June 27,

2011, the Department filed an amended petition.

       On October 20, 2011, the trial court signed a notice of trial setting, advising the

parties that a trial on the merits was scheduled for November 29, 2011. Both parents

appeared for trial. B.W.F.'s mother appeared individually and by her court-appointed

attorney and signed an affidavit of voluntary relinquishment. Based on that affidavit, the

trial court entered an order terminating her parental rights.        That order was not

appealed.

       On the date of trial, appellant appeared, voiced his objection to the termination of

his parental rights, and requested appointed counsel to oppose the termination. 3      The

trial court appointed counsel and reset the trial for December 13. The next day, on

November 30, appellant's appointed counsel filed an answer to the termination suit and

on December 13, the rescheduled date of trial, he filed and argued a motion to dismiss

the proceedings, asserting that his appointment to represent appellant at the "eleventh

hour" effectively denied appellant the right to counsel. Alternatively, counsel requested

a continuance. The motion was denied and the final hearing to terminate appellant's

parental rights continued that day. At the conclusion of the hearing, the trial court found

termination was proper under subsections 161.001(1)(D), (E), and (O) of the Family

Code and termination was in the best interest of B.W.F.         Tex. Fam. Code Ann. §

161.001(1)(D), (E), and (O) (West 2011). This appeal followed.




       The appellate record does not contain a reporter’s record of the November 29,
       3

2011 hearing.
                                            3
                                          Analysis

       The statement of appellant’s issue in his brief on appeal reads:

       Appellant did not receive proper legal notice of a final hearing pursuant to Texas
       Rule of Civil Procedure 245; therefore, he was denied due process of law in
       violation of his Fourteenth Amendment rights.

       Appellant’s argument on appeal focuses on the requirement of Texas Rule of

Civil Procedure 245 of “reasonable notice of not less than forty-five days to the parties

of a first setting for trial.” Tex. R. Civ. P. 245. His brief quotes his counsel’s argument to

the trial court that because of his “eleventh hour” appointment, he did not have “my

forty-five days’ notice.” He cites several cases, including Blanco v. Bolanos, 20 S.W.3d

809 (Tex.App.—El Paso 2000, no pet.), for the proposition that failure to comply with

Rule 245 in a contested case deprives a party of his constitutional right to be present

and voice his objections, resulting in a violation of due process.

       We find appellant’s argument unpersuasive, primarily because the 45-day notice

requirement does not apply, either to the November 29 or December 13 trial dates.

Neither was the first setting for trial. As noted, the court’s temporary orders contained a

trial setting for May 2011, of which appellant undisputedly had notice. The November

29 setting, and the December 13 continued setting, were subsequent settings subject to

the requirement for “reasonable notice.” See Osborn v. Osborn, 961 S.W.2d 408, 411

(Tex.App.—Houston [1st Dist.] 1997, pet. denied) (when the setting in question is not the

first setting, parties are entitled to reasonable notice under rule 245); State Farm Fire &

Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex.App.—Amarillo 1992, writ dism’d by agr.)

(by “the clear language of rule 245,” forty-five day notice applies only to first setting of

                                              4
the trial); In re R.M.R., No. 04-09-00253-CV, 2009 Tex. App. LEXIS 9356, at *9-10

(Tex.App.--San Antonio Dec. 9, 2009, pet. denied) (mem. op.) (applying Rule 245 in

similar fashion in parental rights termination case).

       If we read appellant’s argument to include a contention the fourteen days’ notice

given him and his newly-appointed counsel of the December 13 continued setting was

not reasonable, and even if we assume arguendo such notice was not reasonable, we

still are unable to agree reversible error is presented. To obtain reversal of a judgment

based on an error in the trial court, an appellant must show that (1) the error occurred

and (2) it probably caused rendition of an improper judgment, or probably prevented the

appellant from properly presenting the case to the appellate court. Tex. R. App. P.

44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 220 (Tex. 2005); Tex.

Dep’t of Human Services v. White, 817 S.W.2d 62, 63 (Tex. 1991).

       The Fort Worth court of appeals addressed a similar situation in In the Interest of

E.A.W.S., No. 02-06-00031-CV, 2006 Tex.App. LEXIS 10515 (Tex.App.--Fort Worth

Dec. 7, 2006, pet. denied) (mem. op.). There, after the State announced at a November

10, 2005, permanency hearing its intention to seek termination of the parent’s rights at

trial, trial was set for March 14, 2006. The dismissal date for the suit, however, was

January 23, 2006. On December 2, 2005, counsel for the parent received an e-mail

notification that the termination trial was rescheduled for December 15, 2005. At a

December 12 hearing on his motion for a continuance, counsel asserted he had

inadequate time to prepare for a termination trial and to conduct discovery on the

termination issues. He also argued the notice was unreasonable given the State’s

recent change in plan from permanent placement to termination. Id. at *13. The trial
                                             5
court denied the continuance. On appeal, the Fort Worth court agreed with the parent’s

contention that the case became contested when the State announced its decision to

seek termination. The original March 2006 trial setting would have given the required

45-days notice for the newly-contested case. By rescheduling the trial for December

15, however, thus reducing the notice to thirteen days, the trial court abused its

discretion. Proceeding to a consideration of the harm shown, the court of appeals found

the parent had not shown how denial of 45-days’ notice of the contested trial resulted in

harm. It noted instead that the reasons given for the need for more trial preparation

time were merely general references to discovery, sufficient time to meet with the client

and additional preparation time for trial. Id. at *29.

        We find the same is true here. Arguing to the trial court, appellant’s counsel said

fourteen days was insufficient time to prepare for a termination case and stated he had

not had time to conduct discovery or properly investigate the case. He said he had

done some research, but “there’s more that could be done.” Those general statements,

however, do not demonstrate that the two-week preparation time given counsel

probably caused the rendition of an improper judgment, or prevented appellant from

presenting his case on appeal.4 See also In re Baby Boy R., 191 S.W.3d 916, 922-23

(Tex. App.--Dallas 2006, pet. denied) (similarly holding that even if court abused its

discretion by not granting continuance, father facing termination of parental rights failed

to show how this probably caused the rendition of an improper judgment).




        4
            We note appellant’s brief on appeal does not present an argument regarding
harm.
                                              6
       Appellant took the witness stand at the December 13, 2011 trial.        Appellant

candidly admitted he did not complete all of the services required in the Department’s

service plan. Appellant also admitted he did not abstain from using illegal drugs and did

not dispute he tested positive for cocaine on two occasions and hydrocodone on one

occasion during the pendency of the case.

       For these reasons, we resolve appellant’s sole issue against him and affirm the

judgment of the trial court.



                                                      James T. Campbell
                                                           Justice



Pirtle, J., dissenting.




                                            7
