i          i      i                                                                 i       i      i




                                 MEMORANDUM OPINION

                                         No. 04-09-00253-CV

                          In the Interest of R.M.R., R.G.R., R.R., and J.J.R.

                      From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 08-04-018909-CV
                             Honorable Cathy O. Morris, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 9, 2009

AFFIRMED

           A trial court terminated the parental rights of appellant Reymundo Rodriguez during his

incarceration in an Oklahoma federal prison. This is an appeal from the trial court’s order denying

appellant’s motion for new trial as frivolous. We affirm.

                                          BACKGROUND

           On April 18, 2008, the Texas Department of Family and Protective Services (“Department”)

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

the Parent-Child Relationship. The petition named appellant as the father of the four children in

interest. The petition listed appellant’s address as “Register #61342-180, Federal Prison (Address
                                                                                      04-09-00253-CV

unknown—In Transit).” On June 10, 2008, the trial court issued a pretrial scheduling order setting

the date of the trial on the merits for March 6, 2009. On August 5, 2008, because the trial court

found appellant had filed an affidavit of indigence, the trial court appointed Mary Ann Miranda to

represent appellant. Two days later, Miranda sent appellant a letter, which, among other things,

stated, “I am enclosing a copy of the scheduling order so you will know when the hearings are.” On

October 7, 2008, Miranda appeared on behalf of appellant at a permanency hearing.

       On February 10, 2009, the trial court held a pretrial conference. Subsequently, the trial court

issued a Pretrial Conference/Permanency Hearing Order resetting the case for trial from March 6,

2009, to April 16, 2009. On April 3, 2009, Miranda sent another letter to appellant discussing

preparations for the trial. On April 16, 2009—the day of trial—appellant filed a pro se Father’s

Motion for Substitution of Counsel and Request for Continuance.                   During the trial,

appellant—appearing by telephone from a federal prison in Oklahoma—further argued his motions.

After the trial court admonished appellant, and after appellant insisted, “No, I don’t want [Miranda]

to represent me,” the court allowed appellant to proceed pro se. However, the court also allowed

Miranda to remain for the purpose of assisting appellant in preserving his rights for appeal. After

a trial on the merits, the trial court terminated the parent-child relationship between appellant and

the children. Subsequently, the trial court denied appellant’s motion for new trial and found the

appellate points to be frivolous. This appeal followed.

                                   STANDARD OF REVIEW

       Once a trial court determines that an appeal is frivolous, the scope of appellate review is

statutorily limited to a review of the trial court’s frivolousness finding. TEX . FAM . CODE ANN .


                                                 -2-
                                                                                        04-09-00253-CV

§ 263.405(g) (Vernon 2008). In determining whether an appeal is frivolous, “a judge may consider

whether the appellant has presented a substantial question for appellate review.” TEX . CIV . PRAC.

& REM . CODE ANN . § 13.003(b) (Vernon 2002); TEX . FAM . CODE § 263.405(d)(3) (incorporating

section 13.003(b) by reference); see In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006,

no pet.). It is well established that a proceeding is frivolous when it lacks 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 the abuse of discretion

standard. Id. The test for abuse of discretion is whether the trial court acted without reference to any

guiding rules and principles, or whether it acted arbitrarily and unreasonably under all the

circumstances of a particular case. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682,

687 (Tex. 2002); see In re H.R., 87 S.W.3d 691, 702 (Tex. App.—San Antonio 2002, no pet.).

                         INEFFECTIVE ASSISTANCE OF COUNSEL

       In his first issue on appeal, appellant argues the trial court erred in dismissing as frivolous

his attempt to seek post-judgment relief relating to ineffective assistance of counsel. The statutory

right to counsel in parental-rights termination cases embodies the right to effective counsel. In re

M.S., 115 S.W.3d 534, 544 (Tex. 2003). We apply the well-established standard set forth in

Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).

       In his first argument, appellant asserts his trial counsel failed to file a timely “Motion to

Dismiss for Want of Prosecution” based on appellant’s contention that he was not personally served

with process until about fifteen days before trial. Appellant argued that had trial counsel done so,

“the likelihood of the Court’s granting of a Motion to Dismiss for Want of Prosecution was very


                                                  -3-
                                                                                                 04-09-00253-CV

high.” In his fourth argument, appellant asserts the “return of service was not filed with the Court

until July 30, 2009, more than three months after [appellant’s] parental rights had already been

terminated.” Therefore, according to appellant, Miranda should have objected to the trial court’s

personal jurisdiction over him. Texas Rule of Civil Procedure 120 addresses both of appellant’s

arguments.

       Rule 120 states a person “may, in person, or by attorney . . . enter an appearance in open

court. Such appearance shall . . . have the same force and effect as if the citation had been duly

issued and served as provided by law.” TEX . R. CIV . P. 120 (emphasis added). On August 5, 2008,

after appellant filed an affidavit of indigency, the trial court appointed Miranda to represent

appellant. On October 7, 2008, Miranda made a general appearance for appellant at a permanency

hearing. On February 10, 2009, Miranda appeared at a pretrial conference on behalf of appellant.

Finally, Miranda appeared as counsel for appellant at the trial on the merits on the termination.1

Because counsel made a general appearance on behalf of appellant, appellant waived service of

process as well as any claim that the court lacked personal jurisdiction over appellant. See id.; Fridl

v. Cook, 908 S.W.2d 507, 515 (Tex. App.—El Paso 1995, writ dism’d w.o.j.) (party generally

appearing in case waives any complaints as to personal jurisdiction). Moreover, because we indulge

a strong presumption that Miranda’s conduct fell within the wide range of reasonable professional

assistance—and because appellant gives us no valid argument to the contrary—appellant’s

conclusion that Miranda’s performance was deficient because she did not file a motion to dismiss

for want of prosecution is without merit.


       1
        … W e note appellant appeared at the trial on the merits by telephone from a federal prison in Oklahoma.

                                                       -4-
                                                                                        04-09-00253-CV

       Appellant’s second argument for ineffective assistance of counsel is that Miranda should

have challenged the May 6, 2008, order granting the Department temporary custody of the children

on the basis that the court had no personal jurisdiction over him because he had not yet been served

with process. When the location of a parent is unknown during a full adversary proceeding held

pursuant to Texas Family Code section 262.201, the court may render a temporary order without

delay at any time after the filing of the action without regard to whether notice of citation by

publication has been published. TEX . FAM . CODE ANN . (Vernon Supp. 2009) § 262.201(f). Here,

the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship on April 18, 2008. In the petition, the

Department lists appellant’s address as “Register #61342-180, Federal Prison (Address

unknown—In Transit).” The trial court then held a full adversary hearing pursuant to section

262.201 on May 6, 2008. Although the record does not reveal appellant was given notice by

publication, appellant does not dispute that as of April 18, 2008, his whereabouts were unknown

because he was in transit, and he does not assert the Department or trial court knew his whereabouts

as of May 6, 2008. Under subsection 262.201(f), therefore, the trial court’s order granting the

Department temporary custody was proper.

       Appellant’s third argument for ineffective assistance of counsel is that Miranda “could have

asserted [appellant’s] statutory right to at least 20 days to respond/file an answer and his right to no

less than 45 days advance notice of trial.” First, a defendant is allotted “twenty days after the date

of service” to file a written answer. TEX . R. CIV . P. 99. Here, although the record on appeal does

not contain a copy of any answer filed on appellant’s behalf, the record supports the following: (1)


                                                  -5-
                                                                                          04-09-00253-CV

appellant was actively in communication with Miranda as early as August 7, 2008; (2) appellant and

Miranda collaborated in preparing for the April 16 trial; (3) Miranda had already made several

appearances on appellant’s behalf; and (4) appellant and Miranda were aware of the April 16 reset

date as early as February 10, 2009. These facts indicate appellant was fully aware of the proceedings

against him, and they call into question what effect a Rule 99 objection would have had on the

outcome of the proceedings. Accordingly, because we indulge a strong presumption that Miranda’s

conduct fell within the wide range of reasonable professional assistance, Miranda’s failure to assert

a Rule 99 objection does not amount to ineffective assistance of counsel.

        Second, Texas Rule of Civil Procedure 245 provides:

        The Court may set contested cases . . . with reasonable notice of not less than
        forty-five days to the parties of a first setting for trial, . . . provided, however, that
        when a case previously has been set for trial, the Court may reset said contested case
        to a later date on any reasonable notice to the parties . . . .

Thus, Rule 245 does not require forty-five days’ notice for a second setting or for any subsequent

settings. See Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet.

denied) (plain import of Rule 245 is court must give forty-five days notice of first trial setting, but

may reset case to later date on any reasonable notice). Here, the trial court held a pretrial conference

on February 10, 2009, and reset the case for trial from the initial date—March 6, 2009—to April 16,

2009. Miranda, actively representing appellant, was present at that conference and subsequently

corresponded with appellant about the conference. On March 31, 2009, appellant and his attorney

participated in a mediation, which resulted in a Rule 11 Mediated Settlement. Pursuant to the

settlement agreement, the parties agreed the Department would proceed to termination of appellant’s

parental rights at the April 16, 2009, trial on the merits, and the Department would seek appointment

                                                   -6-
                                                                                        04-09-00253-CV

as permanent managing conservator. On April 3, 2009, Miranda sent appellant a letter stating the

“merits hearing, as you know, is set for April 16, 2009.” She also informed appellant that she would

attempt to set up a conference call to “discuss [the case] further and . . . answer any other questions

you may have.” Finally, appellant appeared at the April 16 trial on the merits by telephone

conference from the Federal Correctional Institution in El Reno, Oklahoma. Because appellant was

entitled only to reasonable notice of the reset date of the trial on the merits—notice to appellant that

the record before us supports—there is no indication that counsel’s failure to make a Rule 245

objection amounted to ineffective assistance. For these reasons, we hold the trial court did not abuse

its discretion in dismissing appellant’s arguments as frivolous.

                         DENIAL OF MOTION FOR CONTINUANCE

        In his second issue on appeal, appellant argues the trial court erred in dismissing as frivolous

his attempt to seek post-judgment relief relating to the denial of his motion for continuance.

Appellant contends the court abused its discretion in overruling his motion for continuance by

disregarding Rule 245’s reasonable notice requirement. Appellant alleges the trial court’s error in

denying his motion for continuance—coupled with his pro se participation by telephone—resulted

in a trial that was not fair and a final result that was unreliable.

        A trial court’s denial of a motion for continuance rests within its sound discretion and should

not be disturbed unless there is a clear abuse of discretion. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 161 (Tex. 2004). For example, in the case In re Marriage of Roberson, No.

05-07-01061-CV, 2008 WL 4868345 (Tex. App.—Dallas Nov. 12, 2008, no pet.) (mem. op.),

appellant had filed a petition for divorce, and, after the trial had already begun, appellant co-signed


                                                   -7-
                                                                                            04-09-00253-CV

her attorney’s motion to withdraw from the case. Id. at *3. Five days later, appellant filed a pro se

motion for continuance. Id. The trial court heard both motions, and the court then explained to

appellant that the trial was proceeding and that the court would not appoint appellant another

attorney. Id. at *4. The trial court specifically asked the appellant, “Do you understand that?” to

which appellant responded, “Yes, I do.” Id. The court then granted the motion to withdraw and,

after noting the previous trial settings and the fact that the trial had already started, denied appellant’s

motion for continuance. Id. In her motion for new trial, appellant argued that “the trial court abused

its discretion in denying her motion for continuance because she was forced to go forward with the

trial pro se,” and on appeal she argued she “suffered from her lack of attorney” because she did not

know how to object to evidence, was not prepared to call witnesses, and “was also not able to

effectively advocate her case . . . .” Id. In holding that the trial court did not abuse its discretion in

denying appellant’s pro se motion for continuance, the appellate court noted (1) the appellant fired

her attorney and (2) the trial court did not grant appellant’s attorney’s motion to withdraw until after

appellant confirmed she understood the trial was going forward, appellant would not be appointed

another attorney, and appellant would be representing herself. Id.

        Here, appellant first sought new counsel in a pro se motion filed on April 16, 2009—the day

of trial. Upon learning of the motion at the trial, Miranda brought the motion to the court’s attention,

stating “[appellant] is asking the Court to appoint him another attorney and to grant a continuance

to the merits hearing today.” The appellant then testified, “I just don’t agree with [Miranda].” The

trial court then admonished the defendant:

        The Court:      [A] parent, if they oppose the Department having conservatorship of
                        their children, they’re entitled to an attorney if they’re indigent. The

                                                    -8-
                                                                                      04-09-00253-CV

                      court did appoint a[n] . . . attorney for you. Ms. Miranda is a fine
                      attorney. . . . [S]he may be telling you things you don’t want to hear,
                      but . . . [t]here is not a better attorney. And if you want to hire
                      another attorney then that is your privilege. But the court is not going
                      to . . . pay county money to offer you a different attorney. So at this
                      time I’m denying your motion for . . . substitution of counsel and
                      denying your continuance.

                      ....

                             . . . [W]e are here today to go forward with the Department’s
                      request for conservatorship of your children. So are you ready to
                      proceed, I mean in light of the fact that your continuance and your
                      motion have been denied?

       Appellant:     I don’t want—I don’t want her to represent me. Sorry. I just—I don’t
                      think she has done anything for me and—

       The Court:     Well, do you want to represent yourself at this hearing?

       Appellant:     I have no other choice, I guess.

       The Court:     Well, all I can tell you is Ms. Miranda does know what she is doing.
                      And you’re going to be a lot better off if you have an attorney at this
                      hearing than if you are trying to represent yourself. Do you
                      understand that?

       Appellant:     I understand that.

       The Court:     So, we’re going to proceed. Are you wanting to proceed on your own
                      or with—I mean I understand that you’re asking for somebody else.
                      But in view of the fact that I’m not going to give you another
                      attorney, are you willing to go ahead with this hearing with Ms.
                      Miranda representing you?

       Appellant:     No, I don’t want her to represent me.

       Just as in Roberson, the trial court did not permit appellant to proceed pro se until after

appellant confirmed he understood the trial was moving forward without a continuance, the trial

court would not appoint appellant another attorney, and appellant would be proceeding pro se. Like

                                                -9-
                                                                                      04-09-00253-CV

the Roberson court, we conclude the trial court did not abuse its discretion in denying the request

for continuance. See also Thomas v. State, No. 01-08-00305-CR, 2009 WL 3321411, at *4-5 (Tex.

App.—Houston [1st Dist.] October 15, 2009, no pet. h.) (no abuse of discretion to deny defendant’s

pro se motion for continuance filed morning of trial); Johnson v. State, 257 S.W.3d 778, 781 (Tex.

App.—Texarkana 2008, pet. ref’d) (because defendant’s action in waiting until seven days before

trial to demand to act pro se and request continuance was decision attributable solely to defendant,

denying continuance would not amount to abuse of discretion). Accordingly, we conclude the trial

court did not abuse its discretion in finding appellant’s argument to be frivolous.

                                         CONCLUSION

       We overrule both of appellant’s issues on appeal, and we affirm the trial court’s judgment.



                                                       Sandee Bryan Marion, Justice




                                                -10-
