In Re MCG
2010 WL 5033512
| Tex. App. | 2010Background
- Appellant moved for rehearing and the court issued a supplemental opinion addressing arguments about evidence used to affirm termination for failure to provide support.
- The termination of parental rights to M.C.G. was based, in part, on failure to provide support, as shown by trial evidence of no support but without establishing appellant's means to provide support during the relevant period.
- A central issue was whether testimony from prior hearings could be used at the termination trial since it was not admitted into evidence at that trial.
- The court concluded the prior-hearing testimony could not be used to support termination for failure to provide support because it was not admitted at the termination trial.
- The termination order was also supported by failure to complete the family services plan, specifically the failure to undergo individual therapy.
- The caseworker testified appellant was accepted into counseling but did not attend; appellant argued a paperwork mistake excused this, but the error was from prior testimony not admitted at trial, and the Family Code provides no excuses for compliance in the termination assessment; excuses relate to best interest, which was not challenged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior-hearing testimony can support termination for failure to provide support | Appellant claims prior testimony supports termination. | State argues only evidence admitted at termination trial may be used. | Insufficient on this ground; reliance on admitted-trial evidence does not prove support failure. |
| Whether failure to complete the family services plan supports termination and whether a paperwork mistake excuses compliance | Appellant contends the mistake excuses noncompliance. | Family Code does not provide excuses; failure to comply affects best interest, which is not challenged. | Termination upheld on the basis of failure to complete the plan; no excusal for the paperwork mistake. |
Key Cases Cited
- In re C.L., 304 S.W.3d 512 (Tex.App.-Waco 2009) (testimony from prior hearings admissibility at trial)
- Garza v. State, 996 S.W.2d 276 (Tex.App.-Dallas 1999) (prior testimony not admitted)
- Escamilla v. Estate of Escamilla, 921 S.W.2d 723 (Tex.App.-Corpus Christi 1996) (prior testimony rules)
- In re J.S., 291 S.W.3d 60 (Tex.App.-Eastland 2009) (no excusal for noncompliance; best interest considerations)
- Wilson v. State, 116 S.W.3d 923 (Tex.App.-Dallas 2003) (no excuses for noncompliance; statutory framework)
- In re S.K.S., 648 S.W.2d 402 (Tex.App.-San Antonio 1983) (best interest framework)
- In re T.N.F., 205 S.W.3d 625 (Tex.App.-Waco 2006) (best interest considerations in family services plan)
- Holley v. Adams, 544 S.W.2d 367 (Tex.1976) (standards for termination and compliance)
- In re T.T., 228 S.W.3d 312 (Tex.App.-Houston [14th Dist.] 2007) (no substantial compliance requirement)