                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-117-CV


IN THE INTEREST OF D.K.,
A.S., J.K., A.H., AND F.H.,
MINOR CHILDREN

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            FROM THE 323 DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant Mother appeals the order terminating her parental rights to

D.K., A.S., J.K., A.H., and F.H. In three issues, Mother argues that she did not

receive notice of the final trial, that the evidence is legally insufficient to show

that the Texas Department of Family and Protective Services (TDFPS) used

diligence in prosecuting the case, and that the trial court erred by failing to




      1
          … See Tex. R. App. P. 47.4.
grant a six-month extension under Texas Family Code section 263.401(b). We

will affirm.

                                  II. B ACKGROUND2

      Mother struggled with a heroin addiction and placed all five of the children

in their maternal grandmother’s care, despite that her mother was gravely ill.

The maternal grandmother ultimately could not take care of the children, and

CPS received referrals for neglectful supervision.       CPS then placed all five

children with D.K.’s paternal grandmother.

      At the termination trial on March 16, 2009, the caseworker testified that,

to her knowledge, Mother had not seen the children from July 2008 through

March 2009 and that D.K.’s paternal grandmother provides a stable home for

the five children and plans to adopt them. The State moved for Mother’s rights

to be terminated on the ground of constructive abandonment. 3 At the

conclusion of the termination trial, the trial court granted the State’s petition.4




      2
      … Because Mother does not challenge the factual sufficiency of the
evidence supporting the termination, we omit a detailed factual background.
      3
          … This is one of multiple grounds that the State pleaded in its petition.
      4
      … The order of termination states that Mother’s parental rights were
terminated because she constructively abandoned the children and because it
was in the children’s best interest to terminate Mother’s parental rights.

                                          2
      Mother timely filed a motion for new trial, which was overruled by

operation of law. Mother now appeals.

                           III. S IX-M ONTH E XTENSION

      On the day of the termination trial, Mother’s attorney filed a motion for

extension stating that “[Mother’s] mother died this past December and it has

been an emotional hardship for her.” After hearing arguments, the trial court

denied the motion. In her third issue, Mother argues that the trial court erred

by failing to grant a six-month extension under Texas Family Code section

263.401(b).

      We review a trial court’s determination on a motion for extension for an

abuse of discretion. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth

2008), pet. denied, 260 S.W.3d 462. Section 263.401 of the Texas Family

Code provides that, unless the court has commenced the trial on the merits or

granted an extension, it must dismiss TDFPS’s suit for termination on the first

Monday after the first anniversary of the date the court appointed TDFPS as

temporary managing conservator in a suit affecting the parent-child relationship.

Tex. Fam. Code Ann. § 263.401(a) (Vernon 2008). The statute also provides

that the trial court may extend this deadline for up to 180 days if the court

finds that extraordinary circumstances necessitate the child’s remaining in the

temporary managing conservatorship of the TDFPS and that continuing the

                                       3
appointment of TDFPS as temporary managing conservator is in the best

interest of the child. Id. § 263.401(b).

      Here, on the day of the termination trial, Mother’s attorney urged her

motion for extension. As set forth above, Mother’s attorney requested the

extension based on the fact that the children’s maternal grandmother had died

during December and that it had been an emotional hardship for Mother.

Mother’s attorney also argued that because of Mother’s transient lifestyle, she

was having difficulty locating Mother to get the services Mother needed to

work for her service plan. The attorney ad litem opposed the motion, arguing,

“I believe the children are interested in some finality in this case. And they’ve

been in their current placement for quite sometime. And I think the children

would desire this to be resolved and have a final placement.” The trial court

thereafter denied the motion.

      Mother did not appear at the trial to testify, nor does the record contain

an affidavit from her regarding the extraordinary circumstances that would

require an extension. Because Mother presented no evidence in support of her

motion for extension, she cannot demonstrate that the trial court abused its

discretion by denying it. See D.W., 249 S.W.3d at 648. Moreover, it was

entirely within the trial court’s discretion to determine that Mother—who had

not seen the children throughout the time this case was pending—had failed to

                                       4
present any extraordinary circumstances that would necessitate an extension.

See In re L.D.K., No. 02-07-00288-CV, 2008 WL 2930570, at *3 (Tex.

App.—Fort Worth July 31, 2008, no pet.) (mem. op.) (holding that father, who

argued that the service plan given to him was deficient, had failed to present

any extraordinary circumstances that would necessitate an extension); Shaw

v. Tex. Dep’t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL

2504460, at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.)

(holding that appellant had not shown that needing more time after failing to

make progress on the service plan for eight months amounted to “extraordinary

circumstances” that necessitated the granting of the continuance). Thus, we

hold that the trial court did not abuse its discretion by denying the motion for

extension,5 and we accordingly overrule Mother’s third issue.

                            IV. N OTICE OF F INAL T RIAL

      In her first issue, Mother argues that she did not receive notice of the

final trial setting.   In essence, Mother argues that the trial court erred by




      5
       … To the extent that Mother intended to move for a continuance through
her motion for extension, she did not comply with the requirements of rule 251
and therefore failed to preserve her complaint for our review. Cf. Taherzadeh
v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied)
(holding that appellant’s oral motion for continuance without supporting
affidavit failed to preserve his complaint for appellate review).

                                         5
denying her motion for new trial and that she is entitled to a new trial because

of the alleged lack of notice of the termination trial.

         Rule 8 requires all communications from the court or other counsel with

respect to a suit to be sent to the attorney in charge.         Tex. R. Civ. P. 8.

Neither the trial court nor the clerk may communicate directly with a party

represented by counsel. The notice requirements for setting contested cases

are satisfied by serving the attorney of record.       Tex. R. Civ. P. 21a, 245;

Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.—Corpus Christi 1994, no

writ).       An attorney’s knowledge of a trial setting is imputed to his client.

Magana v. Magana, 576 S.W.2d 131, 134 (Tex. Civ. App.—Corpus Christi

1978, no writ). Furthermore, a party challenging a trial court’s judgment for

lack of notice has the burden of proving there was no notice and must produce

evidence in addition to an allegation in a motion for new trial. Welborn-Hosler

v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14th Dist.] 1994, no

writ).

         Mother’s attorney received notice of the termination trial setting and

appeared on Mother’s behalf.6 At trial, Mother’s attorney stated that she had



         6
       … The record reveals that there was some confusion over the time of the
termination trial setting; the trial court’s order specified that it would be at 9:30
on March 16, while a letter from CPS to Mother’s attorney specified that the
hearing would occur at 3:00 on March 16. The trial court heard the termination

                                          6
notified Mother of the March 16, 2009 termination trial by certified mail, return

receipt requested and that she had received the green card back; however,

Mother did not appear for the trial.

      Thus, the trial court could have denied Mother’s motion for new trial on

the ground that notice of the termination trial setting was properly served on

her counsel, as well as Mother herself, and that her failure to appear at the

termination trial was the result of her conscious indifference. See In re S.H.,

No. 02-05-00174-CV, 2006 WL 59354, at *3 (Tex. App.—Fort Worth Jan. 12,

2006, no pet.) (mem. op.). We therefore hold that the trial court did not abuse

its discretion by denying Mother’s motion for new trial. We overrule Mother’s

first issue.

                    V. D UE D ILIGENCE IN P ROSECUTING C ASE

      In her second issue, Mother argues that the evidence is legally insufficient

to show that TDFPS used diligence in prosecuting the case. Mother argues that

the trial court’s conclusion—that TDFPS made a diligent effort to locate her and

afford her a reasonable opportunity to request appointment as a managing

conservator—is erroneous because (1) TDFPS failed to use diligence to bring

Mother into the case, and (2) TDFPS failed to use diligence to work with



trial at 9:30, but neither Mother’s attorney nor Mother appeared. The trial
court, however, repeated the termination trial at 3:00.

                                        7
Mother during the case. Mother argues that the alleged five-month delay 7 in

bringing her into the case deprived her “of the opportunity to meaningful[ly]

participate in the termination of her parental rights or to make substantial

efforts to avoid that.”

      As an initial matter, we note that Mother did not object in the trial court

on the grounds that she argues here. To preserve a complaint for appellate

review, a party must have presented to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling, if

they are not apparent from the context of the request, objection, or motion.

Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and

the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991)

(op. on reh’g).

      Earlier this year, we decided a case involving a similar issue: a father

argued that delayed service deprived him of his right to due process under

Texas and federal law by denying him a meaningful opportunity and right to

reunite with his children. See In re E.J.C., No. 02-08-00295-CV, 2009 WL

885950, at *10 (Tex. App.—Fort Worth Apr. 2, 2009, no pet.) (mem. op.). In



      7
        … CPS filed its petition on May 29, 2008, and Mother signed a waiver
of service on October 17, 2008. During those intervening five months after
trying to serve Mother at three different addresses, CPS filed an affidavit for
citation by publication on August 22, 2008.

                                       8
that case, the father had eight months to prepare for trial, we held that the

father’s delayed-service complaint did not rise to the level of fundamental error,

and because he did not raise his complaint in the trial court, he waived it. See

id. at *11. We likewise hold that because Mother had five months 8 to prepare

for trial, Mother’s delayed-service complaint does not rise to the level of

fundamental error, and because she did not raise her complaint in the trial court,

she waived it. Accordingly, we overrule her second issue.9

                                VI. C ONCLUSION

      Having overruled Mother’s three issues, we affirm the trial court’s

judgment terminating her parental rights to D.K., A.S., J.K., A.H., and F.H.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DELIVERED: December 31, 2009


      8
      … As noted above, Mother filed a waiver of citation in October 2008,
and the termination trial was held in March 2009.
      9
       … Moreover, even assuming that Mother had preserved her diligence
complaints, she would not prevail. First, the family code does not impose a
deadline for service of process other than section 263.401’s one-year dismissal
deadline. See E.J.C., 2009 WL 885950, at *10. And second, Mother’s
parental rights were terminated based on constructive abandonment (a ground
that she did not challenge in this appeal), not a failure to work the services in
her service plan; thus, Mother fails to show how TDFPS’s working with her
more during the case could have changed the outcome of her case.

                                        9
