in the Interest of G.T. and D.M.T., Children ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00436-CV
IN THE INTEREST OF G.T. and D.M.T., Children
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA01964
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 28, 2016
AFFIRMED
Appellant Elena R., whom we will refer to as “Mother,” challenges the trial court’s order
terminating her parental rights to her children, G.T. and D.M.T., arguing she was denied due
process because she was not permitted to participate at trial in a meaningful manner. We affirm
the trial court’s order.
BACKGROUND
In September of 2015, the Texas Department of Family and Protective Services (“the
Department”) received a referral alleging neglectful supervision of G.T. and D.M.T. The referral
alleged that Mother was using and selling heroin out of her home and that she asked G.T. to hold
weapons in the home. On September 21, 2015, the Department filed an Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
04-16-00436-CV
Relationship. After an adversary hearing on October 13, 2015, the trial court issued temporary
orders naming the Department sole temporary managing conservator of the children.
The case proceeded to a trial on the merits on June 21, 2016. Because Mother was not
present, her attorney announced, “not ready.” The trial court stated, “No parents are present and
there’s been a significant level of disengagement for quite some time. Mom was served on
November 13th, 2015, and dad was at the 12/7/15 hearing. We’re going to go forward today. We
have children, [G.T. and D.M.T.], who need resolution. I see no extraordinary circumstances to
delay this, and we’re going to go forward.” No further objections were lodged, and the Department
proceeded to present two caseworkers as witnesses.
The initial caseworker testified about the referral alleging heroin use and sales, and Mother
asking G.T. to hold a gun. The children talked to the caseworker about Mother using drugs in the
home and were very descriptive about the types of guns in the home. The caseworker stated that
Mother was incarcerated at the time she was served with the Department’s petition. The
caseworker personally went over the service plan prepared by the Department with Mother and
Mother signed the service plan. Once Mother was released from jail, she did attend a few parent-
child visits, but otherwise did not engage in services. Mother had not appeared for any court
hearings related to the case. The caseworker lost contact with Mother at the end of April or
beginning of May 2016. The current caseworker, who began working on the case approximately
three weeks prior to trial, testified she found out Mother was arrested again on June 8, 2016, and
was presently confined. She stated the children were currently living with their paternal aunt and
uncle who wished to adopt them. At the conclusion of the bench trial, the trial court terminated
Mother’s parental rights to G.T. and D.M.T. pursuant to section 161.001(b)(1)(D), (E), (N), and
(P) of the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (P) (West Supp.
2016).
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04-16-00436-CV
DUE PROCESS
In her sole issue on appeal, Mother contends she was denied due process of law under the
United States Constitution and due course of law under the Texas Constitution because she was
not permitted to participate at trial in a meaningful manner. See U.S. CONST. AMEND. XIV, § 1;
TEX. CONST. art. I, § 19. Parental rights termination proceedings must comply with procedural
due process requirements. In re B.L.D., 113 S.W.3d 340, 351-52 (Tex. 2003). To determine
whether a government decision has deprived an individual of procedural due process, we balance
the three Eldridge factors against the presumption that the rule comports with due process. Id. at
352 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); accord In re J.F.C., 96 S.W.3d 256,
303 (Tex. 2002). However, a parent may fail to preserve such a complaint for appellate review if
she does not specifically raise a constitutional challenge in the trial court. See TEX. R. APP. P.
33.1(a)(1)(A); In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); Tex. Dep’t of Protective &
Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001); In re Baby Boy R., 191 S.W.3d 916,
921-22 (Tex. App.—Dallas 2006, pet. denied), cert. denied sub nom. Gidney v. Little Flower
Adoptions, 549 U.S. 1080 (2006).
In her brief, Mother asserts the trial court denied her due process and that the Eldridge
factors overcome the presumption that the rule comports with due process. However, Mother did
not make a constitutional objection below, or otherwise make the trial court aware that she was
raising an objection based on her constitutional right to due process. Nor did she raise any
constitutional ground or cite any constitutional authority in any pretrial or post-judgment motion.
Her attorney announced “not ready” and did not object any further after the trial court explained it
was moving forward. Thus, we conclude the constitutional arguments Mother raises here were
not preserved below. See TEX. R. APP. P. 33.1(a); In re L.M.I., 119 S.W.3d at 710-11; In re Baby
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Boy R., 191 S.W.3d at 921-22; In re Z.C.J. Jr., No. 04-12-00010-CV, 2012 WL 3597209, at *1-2
(Tex. App.—San Antonio Aug. 22, 2012, pet. denied) (mem. op.).
Rebeca C. Martinez, Justice
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