in the Interest of A.S., a Child ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00350-CV
IN THE INTEREST OF A.S., A CHILD
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 75,619-L1, Honorable Jack M. Graham, Presiding
May 3, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Mother, appellant, appeals an order terminating her parental rights to A.S.1 Mother
raises two issues on appeal which concern the associate judge’s authority to preside over
the final hearing on termination and sufficiency of the best interest evidence supporting
termination. We affirm.
Issue One — Section 201.005 of Family Code
Section 201.005(c) states that:
1 A.S.’s father relinquished his parental rights, resulting in entry of an order terminating his parental
relationship with the child. He did not appeal.
A party must file an objection to an associate judge hearing a
trial on the merits or presiding at a jury trial not later than the
10th day after the date the party receives notice that the
associate judge will hear the trial. If an objection is filed, the
referring court shall hear the trial on the merits or preside at a
jury trial.
TEX. FAM. CODE ANN. § 201.005(c) (West 2020). Through its original petition at bar, the
Department objected “to the assignment of this matter to an associate judge for a trial on
the merits or presiding at a jury trial.” Mother did not join that objection or otherwise lodge
her own. Furthermore, the proceeding was not returned to or tried by the referring court,
but rather by the associate judge. Mother now contends that 1) she relied on the
Department’s objection and 2) the proceeding should have been returned to the referring
court.2 Because it was not, she allegedly is entitled to a new trial. For the reasons
mentioned below, we conclude that the issue was not preserved for review.
First, for a complainant to preserve error on appeal, "the record must show that . .
. [his or her] complaint was made to the trial court by a timely request, objection, or
motion." TEX. R. APP. P. 33.1(a)(1). Furthermore, "[o]ne party may not use another
party's objection to preserve an error where the record does not reflect a timely
expression of an intent to adopt the objection." Daniels v. Yancey, 175 S.W.3d 889, 892
(Tex. App.—Texarkana 2005, no pet.) (citing Scott Fetzer Co. v. Read, 945 S.W.2d 854,
871 (Tex. App.—Austin 1997), aff'd, 990 S.W.2d 732 (Tex. 1998)); accord In re G.M.G-
U., No. 06-16-00075-CV, 2017 Tex. App. LEXIS 2256, at *38 n.9 (Tex. App.—Texarkana
Mar. 16, 2017, pet. denied) (mem. op.) (stating the same). Mother neither invoked section
201.005(c) nor adopted the Department's invocation of same.
2 Mother did not cite us to anything of record indicating that she "relied" on the Department's
objection and, therefore, withheld her own.
2
Next, Mother first raised the issue before us through an amended motion for new
trial. These circumstances too raise a barrier to her complaint. In so observing, we allude
to the timeliness aspect of the rules about preserving complaints for review. It requires
the complainant to raise his objection at the first or earliest opportunity available so that
the trial court has the chance to consider it. See Mohamed Ahmed El-Rayes v. Jong Lee,
No. 05-19-00881-CV, 2020 Tex. App. LEXIS 10395, at *9–10 (Tex. App.—Dallas Dec.
30, 2020, no pet.) (mem. op.). This requirement has no greater importance than in a
proceeding to end parental rights. Indeed, our Legislature intended that such cases be
expeditiously resolved, thereby furthering the child's interest in a final decision and
placement in a safe and stable home. In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003).
To wait until after the final judgment is signed by the referring court to complain about the
associate judge adjudicating the dispute hardly fosters that legislative intent. Rather, it
provides opportunity for gamesmanship and invites litigants to take a "wait and see"
approach before complaining. If they win, there is no need to complain. If they lose, then
1) complain, 2) cause all that transpired to be for naught, and 3) obtain another bite at the
proverbial apple. Such tactics are not favored. See Ward v. Lamar Univ., 484 S.W.3d
440, 450 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (observing that no litigant should
feel free to gamble on winning a favorable ruling on the merits while concealing alleged
issues in the event of a loss). Mother's first opportunity to complain about the associate
judge trying the matter arose no later than when the associate judge called the case for
trial. Having said nothing then, she lost her chance to object about it on appeal. To hold
otherwise here would be to risk rewarding potential gamesmanship, condone delay, and
thwart legislative intent urging the expeditious disposition of termination suits.
3
Issue Two—Sufficiency of the Evidence to Support Best Interest
Through her second issue, Mother argued that the evidence was insufficient to
support the trial court's finding that termination was in A.S.'s best interest. We disagree
and overrule the issue.
Texas Family Code section 161.001(b) permits termination of parental rights if
clear and convincing evidence illustrates that a parent engaged in one or more of the
enumerated grounds for termination and that termination is in the best interest of the child.
In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Because Mother challenged
only the court's best interest finding, she implicitly conceded that sufficient evidence
supported the findings underlying the statutory grounds for termination.3 Moreover, that
evidence may be considered in assessing the best interests of the child.
In determining the best interest of a child, courts apply the Holley factors to shape
their analysis. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). They include:
(1) the desires of the child; (2) the present and future emotional and physical needs of the
child; (3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to assist
these individuals to promote the best interest of the child; (6) the plans held by the
individuals seeking custody of the child; (7) the stability of the home of the parent and the
3 Pursuant to the Texas Supreme Court opinion in In re N.G., we generally review the trial court's
findings under section 161.001(b)(1)(D) and (E) when challenged. This is so because of the potential future
consequences to a parent's parental rights concerning another child. In re N.G., 577 S.W.3d at 235–
37. Here, Mother's use of drugs and alcohol including overdoses and her unwillingness to stop using same
is sufficient evidence establishing § 161.001(b)(1)(D) and (E) of the Texas Family Code. See In re B.C.A.,
No. 07-20-00258-CV, 2021 Tex. App. LEXIS 58, at *6 (Tex. App.—Amarillo Jan. 6, 2021, no pet.) (mem.
op.); see also In re V.A., No. 07-17-00413-CV, 2018 Tex. App. LEXIS 1521, at *10 (Tex. App.—Amarillo
Feb. 27, 2018, no pet.) (mem. op.) (stating that a parent's continued use of drugs demonstrates an inability
to provide for the child's emotional and physical needs and a stable environment warranting termination).
4
individuals seeking custody; (8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. Id. These factors are not exclusive. Nor does the
absence of evidence proving one or more of them ipso facto preclude a finding that the
child's best interests favor termination if the existing evidence of record nonetheless
supports that conclusion. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). We further note as
a factor meriting consideration the old adage about history repeating itself. That is, a trier
of fact may measure a parent's future conduct by his or her past acts. In re E.D., 419
S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). That said, we turn to the
record.
It shows Mother has a significant history of domestic violence, drug and alcohol
use, and untreated mental health issues. A.S. was present during instances where these
issues showed themselves. Such, alone, may support a finding that termination is in the
best interest of the child. In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (noting parent's drug use supports a finding that termination is in
best interest of the child). Yet, there is more. The Department also introduced evidence
of Mother’s criminal activity, her multiple (6) attempted suicides and ensuing psychiatric
hospitalizations related thereto, her bipolar disorder which can negatively impact the life
of her offspring, her penchant for mixing medications with alcohol, her desire to have a
continuing relationship with A.S.’s stepfather despite his violent conduct and
imprisonment, her deceit regarding her desire for an ongoing relationship with stepfather,
her extensive history of emotional instability, her personality disorder, and her history of
relationship instability. According to one witness, her mental condition involved "core
5
characterological problems" normally requiring "extensive and ongoing intervention for
there to be significant change."
We further add that A.S. was approximately thirteen years old at the time of trial
and had witnessed and felt the effects of her mother’s and stepfather’s activities for much
of her life. She experienced sleep issues and restlessness. At the time of trial, A.S.
resided with and bonded to her grandmother in Illinois. Her brother B.F. also lived with
them. Efforts were being made to ameliorate her sleep issues, and the child was
progressing and improving. So too was she happy and grateful to be with her
grandmother. Evidence also indicated that A.S. sought security and safety. The latter
were found living with her grandmother. Consequently, A.S. did not want to return to
Texas and resume living with Mother.
Based on the foregoing evidence, we find the evidence clear and convincing and
more than sufficient to enable a fact-finder to form a firm conviction and belief that
terminating Mother’s parental rights was and is in A.S.’s best interest. Thus, the evidence
supporting the trial court's decision is both legally and factually sufficient.
Having overruled Mother’s issues, we affirm the judgment terminating her parental
rights to A.S.
Per Curiam
6