In the Interest of C.G.B., A/K/A M.G.K., and J.R.B., A/K/A R.R.K., Children, 163 S.W.3d 805

In the Interest of C.G.B., A/K/A M.G.K., and J.R.B., A/K/A R.R.K., Children

163 S.W.3d 805 | Tex. App. | 2005

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00054-CV

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IN THE INTEREST OF C. G. B., a/k/a M. G. K., AND

J. R. B., a/k/a R. R. K., CHILDREN

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the 76th Judicial District Court

Titus County, Texas

Trial Court No. 30,610

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

Â Â Â Â Â Â Â Â Â Â Â Â For almost two years Wade and Debbie Kludt served as foster parents for C.G.B. and J.R.B., placed in their home by the Texas Department of Family and Protective Services. But the Kludts' hopes to adopt the children were first delayed, long beyond the required and customary time periods, and then were interrupted when the Department removed the children from the Kludt home. That removal was based on Department administrative findings that Debbie Kludt had inflicted a blunt force trauma on C.G.B. and then neglected the child's medical needsâfindings contained in a Department letter dated May 21, 2003, but contradicted by the Kludts, who maintained C.G.B. was injured in a bicycle accident. The Kludts ultimately asked the trial court to name them, rather than the Department, managing conservators of the two children. Mediation proved futile. Over a year after the children had been removed from the Kludts' home, the trial court was finally able to bring the Kludts' request to a hearing. The court denied the Kludts possession of the children, because by contract the Department could remove the children from the Kludts' home without cause and because the children, by the time of the hearing, had been out of the Kludts home for over a year. The trial court, however, directed at the Department some strongly-worded negative findings, which are not relevant to this appeal; ruled the Department's administrative findings against the Kludts were unfounded; and entered a number of orders, only two of which are challenged in this appeal.

Â Â Â Â Â Â Â Â Â Â Â Â The Department appeals, asking only that we strike from the trial court's order of April 8, 2004, the parts of the order exonerating the Kludts "from any wrongdoing toward" C.G.B. and J.R.B. and ordering the Department "to expunge from its records and its computer system the administrative findings contained in the letter dated May 21, 2003 and signed by Angela L. Nowell." The Department asserts that, once the trial court found the Kludts lacked standing, the trial court had no subject-matter jurisdiction to exonerate the Kludts or to order the Department's records expunged. We disagree and conclude the trial court had authority to enter its order because (1) the Kludts had standing, and (2) even if the Kludts lacked standing, the trial court had inherent power to enter the order.

The Kludts Had Standing

Â Â Â Â Â Â Â Â Â Â Â Â Ordinarily, standing must be established before a court will have the subject-matter jurisdiction essential to its power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553â54 (Tex. 2000). Here, the Kludts had standing under Section 102.003(a)(12) of the Texas Family Code, which provides that a suit seeking modification of the parent-child relationship may be filed by "a person who is a foster parent of a child placed by the Department . . . in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition." Tex. Fam. Code Ann. Â§ 102.003(a)(12) (Vernon Supp. 2004â2005).

Â Â Â Â Â Â Â Â Â Â Â Â The children were foster children in the Kludts' home from the time the Department placed them there, July 17, 2001, until the Department removed them April 2, 2003âa period of over twenty-one months. On June 19, 2003, seventy-eight days after the Department removed the children from their home, the Kludts filed their petition to modify. Therefore, pursuant to Section 102.003(a)(12), the Kludts had standing. The trial court erred in concluding they had none. Because the Kludts had standing, the trial court's order can be sustained on that basis.

The Court Had Inherent Power To Enter the Order

Â Â Â Â Â Â Â Â Â Â Â Â But even if the Kludts had no standing to seek conservatorship of the children, the trial court clearly has a continuing statutory duty to oversee the children's case, including the Department's supervision of them.

Â Â Â Â Â Â Â Â Â Â Â Â For example, the supervising court must review the conservatorship appointment of the Department or another agency and the substitute care thereunder. Tex. Fam. Code Ann. Â§Â 263.002 (Vernon 2002). The Department must create a "service plan" for each child in its custody within forty-five days after the court renders a temporary order appointing it temporary managing conservator. Tex. Fam. Code Ann. Â§ 263.101 (Vernon 2002). The plan must be filed with the court. Tex. Fam. Code Ann. Â§ 263.105(a) (Vernon 2002). In the plan, the Department must set out its goals for the child, specifying how it intends to seek a "permanent safe placement" for the child, whether by termination and placement for adoption, by return to their family, or by other means. Tex. Fam. Code Ann. Â§ 263.102 (Vernon 2002). The plan is explicitly subject to review by the court of continuing jurisdiction over the child. Tex. Fam. Code Ann. Â§ 263.105 (Vernon 2002).

Â Â Â Â Â Â Â Â Â Â Â Â The Department must prepare a "permanency plan" for each child. Tex. Fam. Code Ann. Â§ 263.3025 (Vernon 2002). The trial court must review the Department's permanency progress reports Â in Â connection Â with Â the Â "permanency Â plan" Â created Â for Â each Â child. Â Tex. Â Fam. Â Code Ann. Â§ 263.303 (Vernon 2002). The trial court's hearings must be held no less frequently than as set out by statute. See Tex. Fam. Code Ann. Â§Â§ 263.304, 263.305 (Vernon 2002). The statutory scheme sets out a number of things that must be done by the trial court, including reviewing the appropriateness of the current placement; determining the plans, services, and orders needed to ensure that a final order is timely rendered; deciding whether the Department has made reasonable efforts to finalize the permanency plan; and projecting a likely date for the child to be placed for adoption. See Tex. Fam. Code Ann. Â§Â 263.306 (Vernon 2002). At permanency hearings, the court is required to review the service plan, permanency report, and other information from the hearing, including the child's safety, the ongoing viability of the current placement, and the compliance and progress made, including whether the Department has made reasonable efforts to finalize the permanency plan. Tex. Fam. Code Ann. Â§ 263.306(b). The court should always be guided by "the best interest of the child." See Tex. Fam. Code Ann. Â§ 263.307 (Vernon 2002).

Â Â Â Â Â Â Â Â Â Â Â Â The Department appears to be taking the position that the trial court's review may be focused on only the actions of parents or foster parents toward the child, not the Department's actions that affect the child. The statute makes no such distinction, and there is no more reason to permit an agency to act outside the best interest of a child than to allow a parent to do so. Accordingly, the actions taken by the trial court fall well within the ambit of its explicit and implicit authority to review this type of proceeding, and it is clear from the court's findings that, in doing so, it was properly performing its duty to C.G.B. and J.R.B.

Â Â Â Â Â Â Â Â Â Â Â Â We affirm the judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Josh R. Morriss, III

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â April 27, 2005

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â May 3, 2005

font-family: Times New Roman">Date Decided: September 14, 2007

1. Sims also sued Donald Ray Holt in this case. Holt was served, but did not appear at trial and has not appealed the trial court's judgment.

2. The trial court conducted a final hearing in this case December 7, 2006. Sims appeared with her counsel; Jenkins appeared pro se.

3. Jenkins also paid Sims $600.00 to have the mobile home moved onto the disputed property. Part of Jenkins' mortgage payment was meant to reimburse Sims for that additional cost.

4. At the conclusion of the hearing, the trial court also made several oral pronouncements that were consistent with its later-entered written findings of fact and conclusions of law. The trial court stated that all the money Jenkins had paid to Sims should be considered as rental payments, which meant Jenkins was not entitled to a refund of any money.

5. Jenkins' appellate brief raises two issues that are, at best, far from a model of clarity. For example, the first issue raised appears to challenge the legal sufficiency of the evidence to support the trial court's judgment. Yet, the brief does not attempt to set forth the proper standard of review for such an issue. And in providing analysis on the issue raised, Jenkins appears to provide a factual sufficiency analysis. Then, to further complicate matters, she asks for this case to be remanded to the trial court for a determination of whether the mobile home is real or personal property. Thus, it would appear she has raised three separate and distinct issues within a single point of error, even though none of these issues have been clearly briefed or analyzed. A similar deficiency appears in the briefing portion for Jenkins' second point of error.

A party's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Given these deficiencies, we could conclude Jenkins has inadequately briefed these issues. See, e.g., El Paso Natural Gas Co. v. Strayhorn, 208 S.W.3d 676, 681 n.7 (Tex. App.--Texarkana 2006, no pet.). However, in this case, insofar as we can fairly do so, we will address what we have discerned to be the main two issues raised in Jenkins' brief. To the extent that any additional issues have been raised, we overrule those issues as both multifarious, see In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.--Texarkana 2007, no pet.), and inadequately briefed, see Strayhorn, 208 S.W.3d at 681 n.7.

Our leniency in substantively addressing any issues in this case should not be interpreted as future permission to submit briefs that raise multifarious points of error, because our law grants us discretion to summarily overrule the entirety of any multifarious or inadequately briefed points of error. See, e.g., Foster v. State, 101 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (three separate issues combined into single point of error ruled inadequately briefed and multifarious); H.B. Zachry Co. v. Ceco Steel Prods. Corp., 404 S.W.2d 113, 133 (Tex. Civ. App.--Eastland 1966, writ ref'd n.r.e.) (overruling four separate issues as duplicitous and multifarious).

6. Neither party raised at trial or on appeal whether a writing was required even if the mobile home was classified as personal property. See Tex. Bus. & Com. Code Ann. §Â 2.201 (Vernon 1994) (writing is required for a sale of goods for the price of $500.00 or more).

7. Additionally, we note the record is not clear whether the trial court characterized the mobile home as "personal" or as "real" property. But in finding Sims was the owner, the court labeled the properties at issues as both "real and personal property" under a single grouping, a characterization which appears in the trial court's findings.

8. We note that the possible application of Section 5.072(a) of the Texas Property Code (which prohibits oral contracts for sale of land) to the doctrine of promissory estoppel was not at issue in this case. See Tex. Prop. Code Ann. Â§ 5.072(a) (Vernon 2004).