Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Jennifer Perry and Gregory Alan Fox had a daughter together in 1992. Perry left the girl in Fox’s care until Fox was killed in a car accident in 1995. Fox’s parents, Patricia and Joseph Fox, filed a suit affecting the parent-child relationship, seeking to be named managing conservators. The Williamson County trial court granted a temporary appointment, while Perry had psychological and parental counseling, and then named Perry and the Foxes as joint managing conservators of the girl in 1996. Perry was named the primary joint conservator and given the exclusive right to establish the child’s legal domicile. Perry moved to Oklahoma to be near the Comanche Nation, of which she is a member. In 2001, Perry’s mother, Francetta Gentry, filed a petition for guardianship of the child in an Oklahoma tribal court. Gentry claimed Perry had abandoned the child three years ago, and that the girl had been living with Gentry and her husband. Gentry did not name the Foxes in her petition; therefore, the Foxes did not have notice of the hearing. Nonetheless, the Foxes found out and filed a motion to dismiss for lack of subject-matter jurisdiction. The tribal court granted the motion and dismissed the petition. The Foxes then filed a motion in Williamson County to modify the 1996 order and name them as sole managing conservators. Perry did not attend the July 2001 hearing, and the Foxes’ petition was granted. Later that month, Perry filed an answer at the same time that the Comanche Nation and Gentry filed motions to intervene. The Comanche Nation also filed a motion, under the Indian Child Welfare Act, to transfer jurisdiction to the tribal court in Oklahoma. In August 2002, the trial court put the case on the dismissal docket and sent notices to everyone stating that anyone wanting to retain the case on the docket and get a trial setting would have to appear in court on Sept. 26. The Foxes filed a motion to retain, but no one else did. The case was set for a Nov. 25 hearing, and notice was sent to everyone. Only the Foxes appeared at that hearing, and the trial court granted the relief they requested, which did not include any visitation for Perry. Perry and the Comanche Nation filed motions for new trial. The Comanche Nation and Perry relied on Craddock v. Sunshine Bus. Lines, 133 S.W.2d 124 (Tex. 1939), in which a party making a motion for new trial directed against a default judgment must prove: 1. the defendant’s failure to answer before judgment was not intentional or the result of conscious indifference on the defendant’s part, but was due to a mistake or accident; 2. the motion for new trial sets up a meritorious defense; and 3. the motion is filed at a time when its granting would not result in a delay or otherwise injure the plaintiff. The trial court denied the motions. Perry and the Comanche Nation now appeal. HOLDING:Reversed and remanded. The court notes most appellate courts have routinely applied the Craddock test to SAPCR proceedings, but that the 14th Court of Appeals in Lowe v. Lowe, 971 S.W.2d 720 (Tex. App. � Houston [14th Dist.] 1998, pet. denied), has expressed reservations over the application because of the difficulty of shoehorning the “best interest of the child” standard into the second prong. The court largely agrees with the Lowe court, but because the Texas Supreme Court has not outline a more fitting test, Craddock will be used. The court adds that it will apply the Craddock test liberally. The court notes that Perry presented uncontroverted evidence that she mistakenly relied on information from a Comanche Nation employee that she did not have to appear at the Nov. 25 hearing. The trial court wrongly looked at the pattern of Perry’s appearances (or lack thereof) for proof of Perry’s conscious indifference; the trial court should have looked only at Perry’s failure to appear on Nov. 25. “We conclude that Perry’s failure to appear at the November 25 hearing was the result of mistake rather than conscious indifference. Although her excuse � reliance on a third party’s assertions who has no apparent legal authority or responsibility to Perry or her legal rights � is not a very good excuse, we note that the record indicates that Perry has been appearing pro se throughout the modification proceedings and is indigent. Thus, her good-faith reliance on the advice of an ostensible authority figure in the Comanche Nation should not be held against her in determining her right to a new trial, especially in light of the fact that the Foxes have not controverted her assertion of mistake and the fact that this is a SAPCR, for which we will liberally apply the Craddock elements.” Turning to the second Craddock element, the court reviews Perry’s “defense,” which is primarily centered on the child’s best interest and refers to the child’s lack of a significant connection to Texas. Perry also stressed how she was the natural mother, how the Comanche Nation would provide assistance, stability and an extended family, how the child was enrolled in an Oklahoma school, and how the Foxes did not return the child once after a summertime visit. The Foxes generally denied Perry’s claim, but did not specifically controvert any of her statements. The court rules that Perry’s evidence about the child’s best interest was not heard by the trial court and is adequate, if proven, could produce a different result in that court. “The question of whether it is in the child’s best interest to terminate all contact with her mother, her maternal grandmother, and her Comanche heritage can best be answered after a full evidentiary hearing, not by enforcing a default judgment.” The court says the third Craddock element was established because the Foxes did not argue that they would be disadvantaged by a new trial. The court then applies the Craddock elements to the Comanche Nation’s motion for new trial. Again, the Foxes did not controvert the Comanche Nation’s offered excuse: that confusion in transferring the case from an Oklahoma attorney to a Texas attorney resulted in the tribe not attending the Nov. 25 hearing. The Comanche Nation’s defense is that Williamson County may not have had jurisdiction under the ICWA. The court finds, however, that ICWA has not been applied child custody modification proceedings, so this is not a meritorious defense, the court rules. But, the Comanche Nation also set forth general best-interest claims, too, and this is a meritorious defense. The third Craddock element is satisfied for the same reason as in Perry’s case. OPINION:Smith, J.; before Law, C.J., Smith and Patterson, JJ. Patterson, J., dissented.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.