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Click here for the full text of this decision FACTS:The Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services (CPS) took custody of Ambrea Rodgers’ son R.R. after Rodgers was jailed on Aug. 31, 2004, for forgery, fraud and drug possession. Rodgers was pregnant at the time. On Sept. 2, 2004, CPS filed a suit affecting the parent-child relationship seeking temporary managing conservatorship of R.R. On Nov. 27, 2004, while Rodgers continued in custody on her criminal cases, she gave birth to S.J.S. CPS took possession of S.J.S. before the baby left the hospital, and on Nov. 30, filed an amended petition seeking to terminate the parental rights in both children of Rodgers and the children’s fathers. Rodgers did not file an answer or make an appearance in the termination suit. On May 20, 2005, the trial court held a hearing and entered a default judgment terminating Rodgers’ parental rights as well as the parental rights of the fathers. After being notified that her parental rights had been terminated, Rodgers wrote to the trial court stating that she wanted to appeal the decision and requested an attorney. The trial court then appointed an attorney to represent her. The attorney filed a motion for new trial and statement of points on appeal. Rodgers’ affidavit was attached to the motion. In her affidavit she averred, in part, that she had no prior experience with CPS and was not aware of how the system worked; she had received a lot of paperwork and did not realize the significance of the termination petition when she received it; the CPS caseworker told her she would get an attorney but did not tell her how that would happen or that Rodgers needed to do anything to get the attorney; and Rodgers relied on the caseworker, who did not tell Rodgers that Rodgers needed to write the court to oppose the termination or explain to the court that she was indigent and wanted an attorney. Following the hearing, the trial court denied the motion. The court of appeals affirmed. HOLDING:Reversed and remanded. Under Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex. 1939), a default judgment should be set aside and a new trial granted if: 1. The failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident; 2. the defendant sets up a meritorious defense; and 3. the motion is filed at such time that granting a new trial would not result in delay or otherwise injure the plaintiff. Examining the first Craddock prong, the Texas Supreme Court noted that Rodgers’ failure to file an answer occurred because, based on her prior experiences with the court system and her contacts with CPS, she believed that no action on her part was necessary for her interests to be protected and for an attorney to be appointed for her without further action on her part. Those experiences and Rodgers’ testimony, the court stated, together with the uncontroverted facts as to actions Rodgers took staying in regular contact with the caseworker about the progress of the case, writing her children and inquiring regularly about the children when taken as true, negated the element of conscious indifference to proceedings designed to terminate the parent-child relationship between Rodgers and her children. The court then examined the second Craddock prong: that Rodgers has a meritorious defense and has shown that her motion was filed at such time that the granting of a new trial would not result in delay or otherwise injure the plaintiff. The record, the court stated, reflects averments of fact by Rodgers that she regularly expressed interest in her children and their welfare, was off drugs, had arranged for a stable place where she could stay once she was released in August, had obtained information about how to get food stamps and had already researched which employers would hire felons. Evidence was also submitted that the children, in custody of CPS, were separated and in different foster homes. R.R. had been in an emergency shelter and a foster home since he was taken into custody and the children would be moved again if a foster home could be found that would take both of them. The court stated that judges, when determining whether termination of parental rights is in the best interest of the child, should take into account the stability of a proposed placement and the willingness of a child’s family to effect positive changes. Furthermore, the court noted a strong presumption that the best interest of a child is served by keeping the child with a parent. Based on those considerations as well as Rodgers’s factual assertions, the court concluded that Rodgers set up a meritorious defense to CPS’s claim that termination would be in the best interest of the children. As for the third Craddock prong, the court found that CPS presented no evidence that it or the children would be injured by any delay inherent in granting Rodgers a new trial. Thus, Rodgers satisfied all three Craddock requirements. OPINION:Per curiam.

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