in the Interest of K.C., Children

No. 04-01-00580-CV IN THE INTEREST OF K.C., A.K., J.K., and D.K. From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 99-PA-00601 Honorable Andy Mireles, Judge Presiding Opinion by: Sarah B. Duncan, Justice Dissenting opinion by: Phil Hardberger, Chief Justice (joined by Justices López and Stone) Sitting: Phil Hardberger, Chief Justice Alma L. López, Justice Catherine Stone, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: July 10, 2002 AFFIRMED Kathreen Cruz appeals the trial court's judgment terminating the parent-child relationship between her and her four children. On our own initiative, we have considered this case en banc to reconsider our recent holding in In re R.H., 75 S.W.3d 126, 130 (Tex. App.-San Antonio 2002, no pet.), that a party who does not appear at trial may avail herself of the procedure set forth in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), for setting aside a default judgment even though the party was represented at trial. Following the opinion of the Supreme Court of Texas in LeBlanc v. LeBlanc, 778 S.W.2d 865 (Tex. 1989) (per curiam), we now hold Cruz is not entitled to invoke the Craddock procedure and therefore overrule In re R.H. to the extent it conflicts with LeBlanc and this opinion. Factual and Procedural Background The Texas Department of Protective and Regulatory Services filed a petition seeking to terminate the parent-child relationship between Cruz and her children. Cruz did not appear at the first day of the ensuing bench trial because of a miscommunication; and she did not appear at the second day of trial because of car trouble. After the trial court signed a judgment terminating the parent-child relationship between Cruz and her children, Cruz filed a motion for new trial alleging her failure to appear at trial was not intentional, she had a meritorious defense, and a new trial would not cause delay or injury to the Department. After a brief hearing, the motion was denied. Applicability of Craddock Cruz argues the trial court abused its discretion in denying her motion for new trial because it met the requirements of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939), in which the supreme court held that a trial court abuses its discretion in denying a motion for new trial seeking to set aside a default judgment if the movant establishes: (1) the failure to answer "was not intentional or the result of conscious indifference ..., but was due to a mistake or an accident"; (2) a meritorious defense; and (3) the motion for new trial "is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff." Craddock, 133 S.W.2d at 126. A panel of this court recently held that Craddock applies in a termination case, "given the constitutional nature of the rights involved," when the defendant's attorney, but not the defendant, appears at trial; and the defendant contends "that her absence deprived her attorney from presenting material evidence on her behalf." In re R.H., 75 S.W.3d 126, 130 (Tex. App.-San Antonio 2002, no pet.). One justice dissented. See id. at 132 (Marion, J., dissenting). The Supreme Court of Texas addressed this precise issue in LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam), albeit in the divorce context. In LeBlanc the husband's attorney, but not the husband, appeared for trial. LeBlanc v. LeBlanc, 761 S.W.2d 450, 454 (Tex. App.-Corpus Christi 1988), application for writ of error denied, 778 S.W.2d 865 (Tex. 1989) (per curiam). On appeal, the husband argued the trial court abused its discretion in denying his motion for a new trial because it met the requirements of Craddock and "his failure to appear deprived the court of relevant information." 761 S.W.2d at 454. The court of appeals held that Craddock did not apply, because the case had been tried on the merits. Id. In so doing, the court erroneously stated that the case was not one of default because the husband had timely filed an answer. Id. In denying the husband's application for writ of error, the supreme court corrected the court of appeals' mistaken view that Craddock only applies in no-answer default cases. "Craddock has general application to all judgments of default, both those 'entered on failure of a defendant to file an answer and those entered on failure to appear for trial.'" 778 S.W.2d at 865. Significantly, however, the supreme court expressly stated its agreement with the court of appeals' conclusion that "Craddock has no application here because the case was tried on the merits." Id. Here, as in LeBlanc, the party's attorney, but not the party, appeared for trial; and a trial on the merits was conducted. Therefore here, as in LeBlanc, there was no default and no basis for applying Craddock. See id. We therefore overrule the panel's decision in In re R.H. to the extent it conflicts with this opinion and hold that, because Cruz is not entitled to avail herself of Craddock, the trial court did not abuse its discretion in denying her motion for new trial. Factual Sufficiency of the Evidence Cruz does not challenge the trial court's findings that she "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children"; she "engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children"; and she "failed to comply with the provisions of a court order that specifically established the actions necessary for [her] to obtain the return of the children." See Tex. Fam. Code Ann. §§ 161.001(1)(D), 161.001(1)(E), 161.001(1)(O) (Vernon Supp. 2001). She argues only that the evidence is factually insufficient to support the trial court's finding that termination is in the children's best interest. See id. at § 161.001(2). We disagree. The trial court's best interest finding is amply supported by the testimony of the Department's supervisor, caseworkers, and mental health specialist, as well as the CASA volunteer appointed to the case, that termination is in the children's best interest so that their basic needs are met and further abuse is avoided. We do not doubt that Cruz loves her children. Nor do we doubt that the children are concerned about being separated from their mother - the evidence upon which Cruz relies to support her factual sufficiency argument. But neither Cruz's love for her children nor their love for her obviates the fact that Cruz is unable to provide her children with a safe, stable home. We therefore affirm the trial court's judgment. Sarah B. Duncan, Justice Publish