### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00833- CV

C.B., Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 255 ,526 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

C.B. appea ls the trial court’s decr ee terminating her pare ntal rig hts to her child, R.R., following a bench trial. C.B. contends that the trial court ab u sed its discretion in denying her 1 motion for new trial and reque st to se t a side the defa ult de cre e. Be cause we conclude that the trial court did not abuse its discre tion, we af firm the trial c ourt’s dec ree .
F ACTUAL AND P ROCEDURAL BACK GR OUND The Texas Depa

rtment of Family and Protective Service s filed its petition seeking termination of C.B.’s pare ntal rig hts as to R.R. and / o r m anag ing conser vatorship of R.R. and 2 obtained emer g ency order s appointing t he Depa rtment temporar

y manag ing conser

vator until a

We use initials to refer

to appellant and he r child. SeeTex. R. App. P . 9.8. 1 The Department also soug ht termination of t he father’ s pare ntal ri gh ts, an is sue not part 2 of this appea l.hear ing could be held. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2012). C.B. appea red at 3 the initial show cause hear ing with her court-a ppointed attorney , an d the trial court named the Depa rtment temporar

y manag ing conser

vator. After C.B. fa i l ed to appea r at four subsequent 4 hear ings, the trial court continued the temporar y order s and set the case for final hear ing. C.B. did not appea r at the final hear ing, but her attorney appea red and an n o u n ce d not rea dy beca use of C.B.’s absenc e. The trial court proce eded with the hear ing, an d C .B.’ s attorney participa ted by

cross-e x amining the Depa rtment’s si ng le wit ness, declining to offe r any eviden ce , and presenting a closing arg ument.

The associate judge deter mined that C.B.’s pare ntal ri gh t s s h ould be terminated, finding by clea

r and convincing evidenc e that C.B. had endang ere d the phy s i ca l and emotional well-be ing of R.R., see id. § 161.001(1)( E), and had failed to complete the family service plan, see id. § 161.001(1)( O), and that termination of C.B.’s, and the fathe r’s, pare ntal rig hts was in the best interest of R.R., see id. § 161.001(2), and appointed the Depa rtment perma

nent manag ing

conser vator of R.R. C.B. filed a Motion for New Trial and Motion to Set Aside Def ault J udg ment. At the hearing on the m otion, at which C.B. a p p ea re d and testi fied, the associate judge noted t hat C.B. had failed to attend at least five hear ings prior to the entry of t he decre e. Observ i n g t h at the basis of t he mot ion for new t rial was that C.B. did not appea r, he f ound that her nona

ppear ance at the final hear ing was consistent with her behavior throug hout the case and denied the motion for new trial. This appea l followed.
The fa cts rec ited here in are taken f rom the re cord on a

ppeal. We ac cept a s true the fac ts 3 stated in the brief

s that are not contradic ted by another party
. See Tex. R. App. P . 38.1(g ). All matters in the ca se we re ha ndled by an assoc iate judg e. 4 2DISCUSSIO N I n a single issue, C.B. arg ues that the trial court abused its discretion by denying her motion for new trial when the uncontrove rted evidenc e established the Craddock fac tors nece ssary to set aside the order

. See Craddock v. Sunshine Lines, Inc. , 133 S.W .2d 124, 126 (Tex

. 1939) (establishing three -prong ed test defe ndant must meet to set aside defa ult judgme nt). The dispositi on of a motion for new trial is w ithin the trial court’s sound discretion; we will not disturb the court’s ruling absent an abuse of that discretion. W affle House, Inc. v. W

illiams , 313 S.W .3d 796, 813 (Tex. 2010). A trial court abus es i t s d i scre tion if it acts in an unrea sonable or arbitra ry manner or without ref

ere nce to any g uiding rules and principles. Cire v. Cummings , 134 S.W .3d 835, 838–39 (Tex. 2004). Gene ra l l y , befor e a defa ult judgme nt can be set aside and a new trial g rante d, the defa ulting party must satisfy the t hree elements of the Cradd o ck test. See Craddock , 133 S.W .2d at 126; see also Leblanc v. Leblanc , 778 S.W .2d 865, 865 (Tex. 1989) (per curia m) (holding Craddock applies t o all judgme nts of defa ult whether e ntere d afte r fa ilure to file answ er or failure to appea r af ter filing answe r). I n this case , howeve r, there was no defa ult judgme nt. C.B. was repr es ented by counsel, who appea

red on her behalf and participa ted in the trial on the merits, and there fore the Craddock test does not apply

. See Leblanc , 778 S.W .2d at 865 ( Craddock inapplicable beca use no defa ult wher e husband did no t ap p ea r p ersonally but was repr esente d at trial by counsel); Velasco v. Ayala , 312 S.W .3d 783, 791 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (no defa ult wher e d ef

endant did not appea

r but was repr esente d by attorney ad litem at trial); In re K.C. , 88 S.W .3d 277, 279 (Tex. App.—San Antonio 200 2 , pet. denied) (mother could not invoke

3Craddock proce dure beca use no defa

ult wher e mother did not appea r but her attorney appea

red for trial and trial on merits was con d u ct ed); cf. In re R.R. , 209 S.W .3d 112, 114–17 (Tex. 2006) (per curiam) (apply

ing Craddock fac tors wher e mother rec eived termination petition while in jail, did not

answe r or make appea

ranc e, and was unrepr esente d at hear ing); In re K.B.A. , 145 S.W .3d 685, 691–92 (Tex. App.—For

t Worth 2004, no pet.) (apply ing Craddock t es t wh er e p ro se fathe r filed letter in answe r to p et ition, did not appea r at hear ing, and was not repr esente d at hear ing) ; In re C

. M. D. & H.M.A. , No. 02-12-00237- CV, 2012 Tex. App. L EXI S 9825, at *7–15 (Tex. App.—For

t Worth Nov. 29, 2012, no pet.) (mem. op.) (apply ing Craddock fac tors wher e pare nts did not a ppear for trial, trial cour

t gr anted their

attorney ’s motion to withdraw, and he aring proce eded with p ar en t s u n re p rese nted). Her e, beca use there was no defa

ult, the trial court did not abuse its d i s cr etion in deny ing C.B.’s motion for new trial. See W illiams , 313 S.W .3d at 813; L eb l a n c , 778 S.W .2d at 865. We overr ule C.B.’ s single issue on a ppeal.

CONCLUSION Having overr

uled C.B.’s sole issue on appea l, we aff irm the trial court’ s d ec ree of termination.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 11, 2013
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