                                 NO. 07-06-0371-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                MARCH 14, 2007
                        ______________________________

                       IN THE INTEREST OF T.L.B., A CHILD
                      _________________________________

          FROM THE COUNTY COURT AT LAW #2 OF POTTER COUNTY;

               NO. 72,293; HONORABLE PAMELA SIRMON, JUDGE
                      _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Levohn H. Brown brings this appeal from an order terminating his parental rights to

his son, TLB. Acting pro se, appellant complains of numerous acts and omissions in the

trial court which, he posits, deprived him of due process and require reversal of the

termination order. Agreeing, we reverse the trial court’s order and remand for further

proceedings.
                   FACTUAL AND PROCEDURAL BACKGROUND1


      Brown’s marriage to appellee Shanda L. Vance was terminated by a 1998 divorce

decree of the 114th District Court of Wood County, Texas. The decree named the parties

joint managing conservators of the couple’s two children, TLB and MLB.           A 1999

modification order gave Brown the right to determine the children’s residence. Both

children were living with him in Indiana in February 2000 when MLB died as a result of

injuries caused by Brown. He was convicted of her murder. TLB, who is now twelve years

old, has lived with Vance since July 2000 and Brown remains incarcerated in Indiana.


      Vance filed suit in Potter County in November 2005 seeking termination of Brown’s

parental rights to TLB. That suit was assigned cause number 71632-22 in the Potter

County Court at Law No. 2. Brown was served and responded in December with a letter

to the district clerk requesting appointment of an attorney. In February 2006 Vance filed

a notice of non-suit stating she no longer desired to prosecute the suit. The trial court

signed an order dismissing the case. See Tex. Fam. Code Ann. § 161.203 (Vernon 2002)

(non-suit in termination proceeding requires approval of court).


      Vance then filed a virtually identical petition in the 114th District Court of Wood

County on March 28, 2006, under the original divorce cause number 98-208. Citation was


      1
        Recitation of the procedural history of this appeal requires we take notice of the
record in the companion appeal assigned docket number 07-06-0372-CV. See Douglas
v. American Title Co., 196 S.W.3d 876, 883 n.1 (Tex.App.–Houston [1st Dist] 2006, no
pet.).
      2
       This cause number also appears as 71632-00-2. It is clear both numbers refer to
the same case.

                                            2
issued by the Wood County district clerk, and served on Brown on May 1, 2006.3 The

district court in Wood County signed an order transferring the case back to Potter County

Court at Law No. 2 on April 7, 2006. The documents from Wood County were filed-marked

in Potter County on April 18, and the transferred case was assigned cause number 72293-

2.


       Brown’s brief states that he received notice from Wood County on May 27 that the

case had been transferred to Potter County.4 In July 2006 Brown filed four motions with

the Potter County district clerk in which he sought discovery, asserting he had not received

copies of motions or other documents filed in the case, sought an “enlargement of time,”

and requested to participate at trial by video conference. The motions bore the cause

number of the non-suited Potter County case, 71632-00-2, and were filed under that

number. The record does not reflect further action taken with respect to the motions, nor

does it reflect further communication directed to Brown until after the hearing on the

termination petition in cause number 72293-2.




       3
         The return of service does not appear in the record provided us, but Brown’s brief
acknowledges he was served on that date, and he attached a copy of the officer’s return
to his brief. The return apparently was contained in the trial court’s file because the trial
court made reference to it on the record. Vance’s counsel also stated the May 1, 2006
service date during the final hearing. Brown also represents he filed a response in Wood
County on May 10, 2006, without notice the case had been transferred. That response
does not appear in the record.
       4
        Vance has not contradicted the statement, so we accept it as true. See Tex. R.
App. P. 38.1(f) (in a civil case, court will accept as true facts stated in appellant’s brief
unless contradicted by another party).

                                             3
       At the hearing in cause number 72293-2, held August 30, 2006, Vance represented

to the court through counsel that Brown had not responded to the suit. Vance was the only

witness at the hearing. The trial court’s order terminating Brown’s parental rights was

signed the same day, and recited Brown was cited but “did not appear and wholly made

default.” On September 20, after receiving a copy of the order, Brown filed a notice of

appeal in cause numbers “72,293, 71632-00-2, and 98-208.” The notice was filed in both

Potter County cause numbers. Trial court cause number 71632-2 was docketed on appeal

under number 07-06-0372-CV and cause number 72293-2, under number 07-06-0371-CV.

We dismissed the appeal in 07-06-0372-CV on October 26, 2006 for want of jurisdiction.

Brown v. Vance, No. 07-06-0372-CV (Tex.App.–Amarillo October 26, 2006, no pet.)

(memorandum op.)


                                       DISCUSSION


       Brown’s issues on appeal each support his core argument the trial court proceeding

denied him due process in violation of the Fourteenth Amendment to the United States

Constitution. Vance’s brief does not address the merits of Brown’s argument but seeks

affirmance on the basis Brown waived any complaints by failing to present his complaints

to the trial court and by deficient briefing on appeal.


       At a minimum, procedural due process rights protected by the Fourteenth

Amendment require that a defendant have notice and an opportunity to be heard.

Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 94 L.Ed. 865


                                              4
(1950). The fundamental liberty interests implicated by termination of parental rights make

the need for procedural protections critical. Santosky v. Kramer, 455 U.S. 745, 769, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982) (termination sought by state); Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985) (citing Santosky in private termination action). As courts often

have noted, due process incorporates the requirements of fundamental fairness. See, e.g.,

In re B.L.D., 113 S.W.3d 340, 351-52 (Tex. 2003) (applying requirements of due process

to termination proceeding); In re Marriage of Runberg, 159 S.W.3d 194, 201

(Tex.App.–Amarillo 2005, no pet.) (Reavis, J., dissenting) (due process implies

fundamental fairness in the context of the particular case).


       Vance’s reliance on Rule of Appellate Procedure 33.1 requiring preservation of

complaints by timely request, objection, or motion to the trial court is misplaced where, as

here, the record shows the complaining party had no opportunity to present complaints to

the trial court. The cases she cites involved appellants who did have such opportunity.

See, e.g., Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993) (plaintiff’s failure to present due

process argument in trial court was waiver); Pratt v. Trinity Projects, Inc., 26 S.W.3d 767,

769 (Tex.App.–Beaumont 2000, pet. denied) (waiver by plaintiff). See also In re J.P.H.,

196 S.W.3d 289, 295 (Tex.App.–Eastland 2006, no pet.) (finding waiver, court noted

appellant had opportunity to file motion to recuse). Considered in conjunction with its

companion, No. 07-06-0372-CV, the record in this appeal shows appellant was not

afforded that opportunity.




                                             5
       Brown was served with citation issued in Wood County, but, by the time he was

served via a citation that instructed him to appear in that county, the case had been

transferred to Potter County some two weeks before. The record shows the transfer was

not made in accordance with the procedure established by the Family Code. See Tex.

Fam. Code Ann. § 155.204 (Vernon Supp. 2006). The transfer order was signed before

expiration of the statutory period in which a controverting affidavit objecting to the transfer

could be filed. See § 155.204(d) (affidavit opposing transfer due on first Monday after 20th

day after service).5 More significantly, it appears that Brown was not notified that the

transferred suit had been docketed in Potter County, as required by § 155.207(c). That

notice, of course, would have given Brown the proper cause number for the transferred

suit. His ignorance of the cause number assigned to the case on transfer from Wood

County led to the filing of his motions in the wrong cause, which apparently led in turn to

Vance’s counsel’s mistaken belief, and representation to the trial court, that a default

judgment was proper.


       Although Brown was given notice of the filing of the termination petition through

service of citation, we find that the events occurring after the petition’s filing in Wood

County deprived Brown of due process of law. Accordingly, we reverse the trial court’s

order and remand for further proceedings affording Brown a reasonable opportunity to be

heard on the merits of the termination proceeding.



       5
        The record does not show when the motion to transfer was filed, or when (or if)
Brown was given notice of the filing of the motion, but the transfer order was signed
prematurely even if the motion was filed with the petition to terminate on March 28 and
notice given at that time.

                                              6
       As the issue will likely arise on retrial, we overrule appellant’s first issue complaining

of the trial court’s failure to appoint counsel to represent him in the termination proceeding.

See Wynn v. Johnson, 200 S.W.3d 830, 832 (Tex.App.--Texarkana 2006, no pet.); Tex.

Fam. Code Ann. § 107.013 (Vernon Supp. 2006) (requiring counsel be appointed only

when termination sought by a governmental entity).




                                                   James T. Campbell
                                                       Justice




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