IN the INTEREST OF S.L.W., a Child
No. 06-17-00062-CV
Court of Appeals of Texas, Texarkana.
Date Submitted: September 11, 2017
Date Decided: September 20, 2017
529 S.W.3d 601
Having concluded that the trial court‘s orders granting summary judgment did not finally dispose of every pending claim in this case or state with unmistakable clarity that they constitute a final judgment, we dismiss the appeal for want of jurisdiction.
Ebb Mobley, Attorney at Law, P.O. Box 2309, Longview, TX 75606, for appellant Mother of Child.
Jerry Reyes, Office General Counsel, TDFPS, MC: Y-956, 2401 Ridgepoint Dr, Bldg. H-2, Austin, TX 78754, for appellee.
Diane B. Macfarlane, Attorney at Law, P.O. Box 3466, Longview, TX 75606, for Intervenors.
Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
Opinion by Justice Moseley
On November 23, 2015, in the County Court at Law No. 2 of Gregg County, Texas (CCL2), the Department of Family and Protective Services (Department) filed a petition to terminate Allen and Alice‘s parental rights to their daughter, Sally.1 On May 1, 2017, the County Court at Law No. 1 of Gregg County, Texas (CCL1), entered an order terminating Mother‘s and Father‘s parental rights to Sally and naming the Department as Sally‘s permanent managing conservator.
On appeal, both parties initially argue that the CCL1 lacked jurisdiction over this dispute. In addition, Allen argues that the trial court erred in finding that (1) Allen engaged in conduct or knowingly placed Sally with persons who engaged in conduct which endangered her physical or emotional well-being, (2) Allen failed to comply with the provisions of a court order that established the actions necessary for him to obtain Sally‘s return after she was left in conservatorship of the Department for not less than nine months as a result of her removal for abuse or neglect, (3) termination of Allen‘s parental rights was in Sally‘s best interest, and (4) Sally‘s foster parents’ petition for intervention should not be struck. See
We find that (1) the CCL1 had jurisdiction over the Department‘s petition, (2) termination of Allen‘s parental rights to Sally was supported by legally and factually sufficient evidence, (3) the trial court did not abuse its discretion in failing to strike the foster parent‘s petition in intervention, and (4) Alice did not preserve any complaint about Judge Simpson hearing this case. Accordingly, we affirm the trial court‘s judgment.
I. The CCL1 Had Jurisdiction Pursuant to a Proper Transfer from the CCL2
When the Department initially filed its petition in the CCL2, the case was docketed under cause number 2015-2179-CCL2. On December 10, 2015, the judge of the CCL2 made a docket sheet entry stating that the case had been transferred to the CCL1. The CCL2 also notified the parties that a status hearing would be held in connection with a new cause number, 2015-2179-CCL1, in the CCL1. From that point on, the judge of the CCL1 presided over status and permanency hearings.
Prior to the expiration of the one-year deadline to commence trial on the merits under
Allen filed a motion for new trial and argued (among other things) that the CCL1 lacked jurisdiction to decide the case. Specifically, Allen argued (a) that the one-year deadline passed, (b) that the CCL2‘s transfer order was signed after the expiration of the one-year deadline, and (c) therefore, that the CCL1 had no jurisdiction to enter its prior order extending the deadline by an additional 180 days. Because
The Texas Supreme Court has explained that “although subsection 263.401(a) provides for what is called the ‘one-year dismissal date’ and subsection 263.401(b) provides for a 180-day extension of that one-year dismissal date (if the trial court finds that certain circumstances exist), nothing in the language of section 263.401 indicates that these deadlines are jurisdictional,” In re Dep‘t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). In issuing its opinion, the Texas Supreme Court noted that
A party to a suit under this chapter who fails to make a timely motion to dismiss the suit under this subchapter waives the right to object to the court‘s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences.
Moreover, Allen‘s argument that the CCL1 lacked jurisdiction in this case until the CCL2 entered its formal transfer order on April 4, 2017, also fails. The docket sheet stated that the judge of the CCL2 had already transferred the case to the CCL1 on December 10, 2015. Allen argues that
The judges of constitutional county courts, statutory county courts, justice courts, and small claims courts in a county may transfer cases to and from the dockets of their respective courts, except that a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred and may not be transferred unless it is within the jurisdiction of the court to which it is transferred. The judges of those courts within
a county may exchange benches and courtrooms with each other so that if one is absent, disabled, or disqualified, the other may hold court for him without the necessity of transferring the case. Either judge may hear all or any part of a case pending in court and may rule and enter orders on and continue, determine, or render judgment on all or any part of the case without the necessity of transferring it to his own docket....
II. Sufficient Evidence Supports Termination of Allen‘s Parental Rights
A. Standard of Review
We strictly scrutinize termination proceedings in favor of the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). To terminate an individual‘s parental rights to his child, clear and convincing evidence must show: (1) that the parent has engaged in one of the statutory grounds for termination and (2) that termination is in the child‘s best interest.
In a legal sufficiency review, termination findings are given appropriate deference. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Smith v. Tex. Dep‘t of Protective & Regulatory Servs., 160 S.W.3d 673, 679 (Tex. App.—Austin 2005, no pet.). In such cases, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder could reasonably have formed a firm belief or conviction that the grounds for termination were proven. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume that the disputed facts were resolved in favor of the findings if a reasonable fact-finder could do so. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573. Conversely, we disregard evidence that a fact-finder may have reasonably disbelieved or testimony from witnesses whose credibility may reasonably be doubted. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573.
“In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing.” In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of
B. Sufficient Evidence Supported Ground E Finding Against Allen
Only one predicate finding under
The trial court found that Allen knowingly engaged in conduct or knowingly placed Sally with persons who engaged in conduct which endangered Sally‘s physical or emotional well-being. We examine this finding for legally and factually sufficient evidence. Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, “the rights of natural parents are not absolute; protection of the child is paramount.” A.V., 113 S.W.3d at 361 (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “A child‘s emotional and physical interests must not be sacrificed merely to preserve parental rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
Under Ground E, the term endanger “means more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment.” In re Z.M., 456 S.W.3d 677, 686 (Tex. App.—Texarkana 2015, no pet.) (quoting E.N.C., 384 S.W.3d at 803). “It means to ‘expose to loss or injury.‘” Id. (quoting In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.)). Ground E “refers only to the parent‘s conduct, as evidenced not only by the parent‘s acts, but also by the parent‘s omissions or failures to act.” Id. (quoting N.S.G., 235 S.W.3d at 366-67). “The conduct to be examined includes what the parent did both before and after the child was born.” Id. (quoting N.S.G., 235 S.W.3d at 366-67). “To be relevant, the conduct does not have to have been directed at the child, nor must actual harm result to the child from the conduct.” Id. (quoting Perez v. Tex. Dep‘t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). “However, termination under this ground ‘must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.‘” Id. (quoting Perez, 148 S.W.3d at 436).
1. The Evidence at Trial
Sally was born to Alice and Allen in September 2015. The family lived in Al-
Alma Gaviria, a Child Protective Services (CPS) caseworker, testified that in January 2016, Alice admitted that she had relapsed and was again taking methamphetamine. Gaviria further testified that Alice was also hooked on morphine and had overdosed on the drug on June 22, 2016. According to Gaviria, in October 2016, Alice was living with Allen and again admitted that she was on drugs. As a result of her addictions, Gaviria testified that Alice lacked basic parenting skills.
Allen, who was still married to Alice at the time of trial, testified that she suffered from hallucinations and had attempted to commit suicide several times. Allen testified that he could not trust Alice with Sally and that he had “problems” keeping Sally away from Alice while she was using methamphetamine. Caseworkers testified that they were concerned about Allen and Alice‘s relationship because Alice had again become pregnant with Allen‘s child, was still using drugs, and was living with Allen until a month before trial. Allen admitted that he was concerned that Alice used methamphetamine during the pendency of this case while she was pregnant with his child.
Yet, the fact that Allen had left Sally with Alice while she was using drugs was not the only reason the trial court made a finding that Allen‘s parental rights should be terminated under Ground E. The evidence at trial established that Allen has bipolar disorder and a lengthy history of domestic abuse. In 2007, Allen punched Gloria Thomas in the eye, cut her cheek, and dragged her from her car by her hair, knocking over her infant daughter, all while under the influence of drugs. He was placed on community supervision for this family violence assault. In 2012, a trial court entered a protective order against Allen in favor of his then-girlfriend. Around that time, Allen entered a drug rehabilitation program, and the evidence established he remained sober since then.
However, Allen‘s sobriety did not extinguish his temper. On August 6, 2015, Allen was convicted of family violence assault against Alice, who was pregnant with Sally, and he was sentenced to community supervision for a period of fifteen months.6 Ocie Ellison, formerly a caseworker with the Department, testified that Alice said Allen had tried to choke her while he was holding Sally and threatened to beat her within an inch of her life. According to Ellison, the Department arranged for Alice and Sally to go to the Highway 80 Rescue Mission, but Sally was removed from Allen and Alice‘s care when Alice had to be taken to the hospital by ambulance. On March 28, 2016, police went to Allen‘s house to investigate reports of domestic violence against Alice. During the pendency of this case, Alice kept returning to Allen. Gaviria was concerned because she believed Alice was a “trigger” for Allen‘s violent behavior, but that the couple was still married. Kelsey Drennan, a CPS investigator, testified that there were indications that Allen was not taking his medications as prescribed.
Allen testified that he was still on community supervision, admitted that he had assaulted Alice while she was pregnant, and agreed that witnessing domestic violence could have a negative emotional effect on Sally. Allen testified that he received carbamazepine and Abilify to treat his bipolar disorder and had plans to divorce Alice. Allen also testified that he loved Sally, and the evidence at trial demonstrated that he was completing his family service plan, completed parenting classes, was in counseling, regularly attended visitation with Sally, and was generally doing well prior to the October assault.
Psychologist Donald Eugene Winstead, III, prepared a psychological evaluation for Allen at the Department‘s request. Winstead administered the Coolidge Assessment Battery, an instrument used to assess emotional and personality functions, and described Allen as “faking good... to present himself in an overly positive light.” According to Winstead, Allen suffered abuse and neglect as a child and had “significant personality impairment[s],” like “antisocial and schizoid” personality issues, paranoid traits, and apathetic features, all of which could result in Allen having unstable relationships. Winstead also testified that Allen had a social anxiety disorder and “was generally unhappy with his life, possibly suffering some low-grade depression.” Although Winstead “ha[d] no direct evidence that [Allen] ha[d] ever neglected his children,” he testified that being subjected to family violence poses danger to a child‘s emotional well-being. He explained that a parent‘s “ability to teach a child how to manage and regulate emotion is impaired” when a caregiver is suffering a significant emotional issue.
Locke Curfman, a licensed professional counselor, testified that Allen was “in counseling every time the doors were opened and he was scheduled, and he was making an attempt to improve himself.” However, due to the October assault, Allen‘s treatment plan was temporarily ceased. Curfman opined that Allen‘s violent behavior might continue and that witnessing domestic violence is damaging to a child‘s well-being.
2. Analysis
The evidence at trial established that Allen was aware of Alice‘s mental health and drug history, but had nevertheless left Sally in her care as an infant. Allen himself admitted that he had a hard time keeping Sally away from Alice while she was using methamphetamine. Although Sally was in their care for only eight weeks, the evidence showed that Allen had knowingly left Sally with Alice, a person who engaged in conduct which endangered Sally‘s physical or emotional well-being.
Allen points to evidence demonstrating that he had completed almost all of his family service plan, had never missed a visitation with Sally, had maintained stable employment as a barber, and was making progress with his individual counseling.8 Caseworkers also testified that Allen was doing well and that his home was always an appropriate one. Allen completed alcohol and substance abuse assessments and always tested negative for drugs during the pendency of the case. Allen testified that he loved Sally and maintained that he had never harmed the child.
Yet, in termination cases, “[w]hen there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005)). Based on all of the evidence introduced in this case, we conclude that a rational fact-finder could readily have reached the necessary firm conviction or belief that Allen engaged in conduct or knowingly placed Sally with persons who engaged in conduct that endangered her physical or emotional well-being. Accordingly, we find the evidence both legally and factually sufficient to support the trial court‘s finding of a statutory ground of termination and overrule Allen‘s second point of error.
C. Sufficient Evidence Supported the Best-Interest Findings
We next turn to Allen‘s challenge to the trial court‘s best-interest finding. “There is a strong presumption that keeping a child with a parent is in the child‘s best interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). “Termination ‘can never be justified without the most solid and substantial reasons.‘” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
- the desires of the child,
- the emotional and physical needs of the child now and in the future,
- the emotional and physical danger to the child now and in the future,
- the parental abilities of the individuals seeking custody,
- the programs available to assist these individuals,
- the plans for the child by these individuals,
- the stability of the home,
- the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and
- any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see E.N.C., 384 S.W.3d at 807; see also
Sally was nineteen months old at the time of trial.9 Alice‘s first child, Sally‘s half-brother, was previously adopted by Sally‘s foster parents, Barbara and Chester Mooney. When Sally was removed from Alice and Allen, they requested that she be placed with the Mooneys, who also had another son. The Mooneys and Gaviria testified that Sally was a happy, generally healthy baby who had bonded with the entire family. Barbara did note that Sally has ptosis in her left eye, had a medical procedure scheduled to alleviate her drooping eyelid, and had to have tubes put in her ears. Other than that, nothing established that Sally‘s emotional and physical needs differed in any respect to that of other children.10
The evidence at trial demonstrated that Allen had engaged in family violence assault with his paramours several times over the course of years. He had assaulted Alice once while she was pregnant with Sally, once while she was pregnant with Sally‘s sibling, and once while actually holding Sally. Several witnesses (including Allen) admitted that Sally could suffer emotionally if she witnessed domestic violence. The evidence at trial had also established that Alice had moved away from Allen‘s home several times during the pendency of this case, but had been allowed to return. The couple were still married at the time of trial, and Alice had lived with Allen as recently as a month before trial. Counselors testified that there was a risk that Allen could again commit an act of violence. The trial court, as fact-finder,
The Mooneys, who had intervened in these proceedings, testified that they wanted to adopt Sally. Barbara opined that due to the strong bond between Sally and the Mooneys, it would be detrimental to Sally to remove her from their home. Allen agreed that the Mooneys were providing good care for Sally and that she may have bonded with them. Although Allen had completed parenting class and engaged in regular visitation with Sally and no witness testified that he had a lack of parental skills, the evidence at trial showed that Allen had failed to protect Sally while Alice used methamphetamine in her presence. This fact, coupled with evidence that Allen had choked Alice while holding Sally, supplied enough evidence for a fact-finder to determine that Allen‘s parental abilities were lacking. We find the fourth Holley factor against Allen.
Next, the Department had provided many programs to assist Allen. However, after completing BIPP, Allen assaulted Alice. Allen‘s community supervision officer testified that BIPP was the most advanced program for batterers and that there were no other more advanced services to offer to Allen. We find the fifth Holley factor weights in favor of terminating Allen‘s parental rights.
As for plans to take care of Sally, the Mooneys testified that Barbara was a stay-at-home mother and planned to take care of Sally full time. They had a four bedroom home and were in a secure position to take care of Sally financially. Gaviria testified that the Mooneys’ home was a safe one. On the other hand, when asked how he planned to take care of Sally while at work, Allen testified that he could “make a few phone calls” to friends. That answer could have led a fact-finder to conclude that Allen had no concrete plan for childcare. Gaviria testified that while there was no evidence that Allen‘s home was inappropriate, Allen‘s home was not a safe and stable home as a result of his violent behavior towards others. We find the sixth and seventh Holley factors against Allen.
Allen‘s history of domestic violence, failure to protect Sally from Alice, and failure in the past to secure a drug-free environment for the child indicated that Allen‘s existing parent-child relationship was not an appropriate one. After Sally was removed from his home, Allen continued to assault Alice, even though he knew she was pregnant with another child. His counseling was placed on hold until he could “get some of the other things under control,” and he failed to pay for child support although ordered to do so. Allen did not seem to have any excuses for his acts or omissions involving domestic violence. We find that the last two Holley factors weigh in favor of terminating Allen‘s parental rights.
Based on the evidence presented at trial and an examination of the Holley factors, we conclude that the trial court could have reasonably formed a firm belief or conviction that termination of Allen‘s parental rights to Sally was in her best interests. Therefore, we find there is legally and factually sufficient evidence to support the trial court‘s best-interest finding. We overrule Allen‘s third point of error.
III. The Trial Court Did Not Err in Failing to Strike the Mooneys’ Petition in Intervention
Finally, Allen argues that the trial court erred in failing to strike the
Standing to sue is only conferred on “a person who is the foster parent of a child placed by the Department of Family and Protective Services” after the child is placed “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.”
Under the circumstances presented to it at the hearing, and with the child‘s best interests in mind, we cannot say that the trial court abused its discretion by deciding to deny Allen‘s motion to strike the Mooneys’ intervention, which was heard right before trial. See In re N.L.G., 238 S.W.3d at 831; see also Spurck v. Tex. Dep‘t of Family & Protective Servs., 396 S.W.3d 205, 218 (Tex. App.—Austin 2013, no pet.). Therefore, we overrule Allen‘s last point of error.
IV. Alice Failed to Preserve Any Challenge to the Trial Judge
From the inception of this case, all hearings were held by the Honorable Rebecca Simpson, the judge of the CLL1. During the pendency of the case, Judge Simpson retired. On May 8, 2017, the Honorable Mary Murphy, presiding judge of the First Administrative Judicial Region, entered an order of assignment for Judge Simpson to continue to hear this case. Alice complains that she did not have the opportunity to object to Judge Simpson. The Department argues that Alice has failed to preserve this issue for our review.
Because “[p]reservation of error is a systemic requirement on appeal,” we must first address the Department‘s contention. In re E.R.C., 496 S.W.3d 270, 276-77 (Tex. App.—Texarkana 2016, pet. denied) (quoting Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009)). “[T]he rules governing error preservation must be followed in cases involving termination of parental rights.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). Our appellate
V. Conclusion
We affirm the trial court‘s judgment.
BAILEY C. MOSELEY
JUSTICE
Notes
Where in such county there are two or more district courts having civil jurisdiction, the judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own courtroom try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the case is pending and at the time the judgment or order is rendered, and two (2) or more judges may try different cases in the same court at the same time, and each may occupy his own courtroom or the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or proceeding pending in his court to any other of said courts, and the judge of any court to which a case or proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his courtroom try any case pending in any other of such courts.